COLONIAL COURTS AND THE DOCTRINE OF JUDICIAL PRECEDENT

DOIhttp://doi.org/10.1111/j.1468-2230.1955.tb00307.x
Publication Date01 Jul 1955
AuthorT. O. Elias
COLONIAL COURTS
AND
TIIE
DOCTRINE
OF
JUDICIAL PRECEDENT
INTRODUCTORY
ONE
of the inevitable consequences of British rule over dependent
territories is the introduction into them of English law at the same
time as an existing local law is recognised within limits. In certain
cases one finds express provisions in colonial legislation stating the
dates from which English law applies to particular territori,es. The
usual clause runs something like this
:
the principles of English
common law, the doctrines of equity and statutes of general
application, which are in force in England on a given date, shall
apply to this colony
(or
protectorate
or
territory, as the case may
be). Thus, to take
a
few random examples: in the case
of
Bermuda the date
is
July
11, 1612;
of Northern Rhodesia,2
August
17,
1911;
of Hong K~ng,~ April
5,
1843;
of
British
Columbia," November
19,
1858;
of the Gold Coast and the old
Lagos Colony,5 January
24,
1874;
of
Fiji,6
January
2,
1875;
of
Gibraltar,' Dec,ember
31, 1883;
of
Uganda,' August
11,
1902,
and
of
Nig~ria,~ January
1, 1900.
It
follows from this operation of English law in the colonies
that fundamental doctrines based upon
it
should also apply therein
unless specifically excluded either by clear 1,egislation
or
on the
ground that local circumstances render their adoption impracticable.
As it is, the all-important doctrine
of
judicial precedent, with which
w,e are here concerned, is such a corner-stone of any legal system
based on case-law that
it
automatically applies in
all
British
colonies, protectorates and trust territories, all of which take the
English legal system for their model. Even those colonies which
6
Sec
Colonial Reports: I%errrinda,
for
1951 and
1952,
p.
36.
2
(:oiirts
Ordina.nc*e,
Cap.
3
of
1953 Revised Etlilioii
of
(lie
Trn,ws.
s.
1
I.
3
Siiprenie
(hirt
Ordinance
No.
72
of
1873.
4
Siiprcnie
Court
Ordinnnce
No.
7
of 1867.
5
Siipreine
Court
Ordinance
No.
4
of
187G.
6
Stipreine
Court
Ort1in;ince
No.
14
of
1875.
7
Order
in
Council
of
Feh.
2,
1884,
CI.
'3.
*
Order in (:oiiiicil
of
1002
a.1~1
Report,
for
1952,
p.
69.
9
Supreme
Court
Ordinance,
Cap.
211
of
1948 edil,ion
nf
the
1,:~~s.
s.
17.
10
e.g.,
Maiiritiiis,
a
French colony,
was
siirrendered
lo
Great
Bridairi in
1810
on i,hr condit~ion
that
the inliobiilatits rct,ain their religion,
I:LWS
and
CIIR~OI~S;
:i,ccordingly,
the French Code
has
prevailed there in civil cases:
Re
Adam,
1
Moo.P.C.C.
400,
at
p.
470. Again, in Rribish Giiiana, the Roman-Dntch
law
governed
civil
matters
till 1017:
McDcrmolt
V.
JlttEges
of
nrifiah
Guiana,
L.R.
'J
P.C.
3.41.
Similarly, Spanish
law
which
W:LS
in force in 'I'rinided in 1797
whrn
the isl:rnd
WDR
cnpl.urrcl
by
Great
Britain, remained operative in the
colony:
Escalicr
v.
Escalier,
L.R.
10
hpp.Css.
312.
Of
conrse, in every case,
i.he
specific limits
of
thetie permitted
laws
have
had
to be lixed by sobsequent
loc:i,l
legislat,ion.
356

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