CHAPTER VI: CIVIL PROCEDURE IN NATIVE COURTS
| DOI | http://doi.org/10.1002/j.1099-162X.1953.tb00027.x |
| Published date | 01 October 1953 |
| Date | 01 October 1953 |
Ch, V. STUDY, RECORDING AND DEVELOPMENT OF NATIVE CUSTOMARY LAW 25
(2) that it was preferable to preserve this distinction and to deal with new
situations and offences accordingly, rather
than
to extend method (a) (i) to
unnatural lengths ;
(3)
that
it was possible that attempts to change the law too drastically by
judicial decisions in native courts could in some cases be explained by
the
identity of the court members with
the
elders who expound the customary law
on the one
hand
or with the bodies which legislate on the other; and
(4) that this danger will diminish with the increased independence of
the
judiciary.
CHAPTER
VI
CIVIL PROCEDURE IN NATIVE COURTS
Historical background: judgment personal order
of
chief
1. In the early stages of development of native courts
the
need for a regular
system of procedure is scarcely felt. Judgments are the arbitrary decisions of
the
chiefs or tribal authorities and the parties appear before
them
by virtue of the fact
t~at
to disobey the call is to disobey the chief and to risk substantial penalties
for
~Isobedience.
The
position is different both in the case of tribes which lack a
tradi-
tional chieftainship and where native courts have no traditional foundation,
for
the authority which establishes the courts also furnishes
them
with simple rules
of procedure.
Summons personal order
of
chief
2.
That
the summons is the call of the chief makes it a personal matter between
him and his subject.
This
personal relationship is undesirable, both because it is
essential that there be introduced the notion of the Rule of Law, that is, obedience
~o
a set of rules binding equally on the chief and on his subjects,
but
also because
It does not cover cases where the person summoned is not within the jurisdiction
of the summoning authority. Unless both chiefs arc equally
bound
by the Rule of
Law it becomes merely a courtesy for a summons to be served at all on the
party
~hose
appearance is desired and for him to be encouraged to appear in the
court
In which the dispute is being heard.
Use
of
written processes
~.
In many, indeed in most, territories native courts have the power to Issue
Wntten process
but
even where the machinery exists it is not always used.
It
is
therefore strongly urged in
support
of the authority of the courts as courts of law,
as distinct from the authority of chiefs as executive agents,
that
the use
~f
~vritten
processes be introduced where it is lacking, and be encouraged where It
IS
neg-
lected.
Clarification
of
civil claims
4.
It
was suggested during the Conference
that
steps might be taken to clarify
On
the summons the nature of the claim so that both the defendant and the court
can understand more clearly than at present. the nature of
~ssu~s
in dispute
..
It
~as
r~marked
that
there are occasions on which the courts give
Ju~g~ents
which
ear little relation either to
the
claim on the summons, to the plaintiff sstatement.
?r the defendant's reply. Where these difficulties exist, the remedy may be found
~n
COnstant
scrutiny by the Administrative staff and Judicial Advisers, of
the
way
In Which claims
ar~
drawn up, and by means of suggestions made by
them
for
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