Commentary on Chapter VI: CIVIL PROCEDURE IN NATIVE COURTS
| Date | 01 April 1957 |
| Published date | 01 April 1957 |
| DOI | http://doi.org/10.1002/j.1099-162X.1957.tb01132.x |
10
SPECIAL
SUPPLEMENT
TO
THE
JOURNAL
OF AFRICAN
ADMINISTRATION
factor reducing
the
danger of codification of certain branches of customary law
is
the
comparative ease with which such law can be altered by legislation.
Certain basic principles of customary law are common to large areas, extending
beyond tribal and even territorial boundaries,
but
local variations on points of
detail can be found even within the area of a single tribe. Variations in a limited
area increase
the
difficulties of codification, and
the
possibility of encouraging
uniformity on a wider scale depends on local circumstances.
Material available (para. 3)
2. Attention was drawn to a new publication,
the
Journal
of
African Law,
the
first number of which will appear in March 1957. This
Journal
should
provide a useful medium for exchange of information
about
the
study
and
development of customary law, including
the
reporting of native court cases
and
comments on their significance. Reports of
the
more
important
decisions
on local customary law are now being regularly published by Kenya, Tangan-
yika
and
Basutoland. Similar reports are included in ordinary Law Reports
elsewhere.
It
is hoped
that
such reports will be published by other territories,
and
it is suggested
that
they
should be collected in a separate
part
of ordinary
Law Reports.
Change
of
customary law (para. 7)
3.
In
most territories, legal provision in some form exists for
the
declaration
of customary law by native authorities.
Commentary on Chapter
VI
CIVIL
PROCEDURE
IN NATIVE COURTS
Summons personal order
of
chief (para. 2)
1.
It
is a mistake to refer to
the
summons as
"the
personal order of the
chief".
It
is the summons of
the
court. When
the
parties live in areas
ｵｮ､ｾｲ
the
jurisdiction of different courts, civil proceedings should generally be instI-
tuted
either where
the
cause of action arises or where
the
defendant resides.
In
Somaliland, however, proceedings in such cases are usually instituted in the
district in which
the
defendant's tribe normally resides.
Clarification
of
civil claims (para. 4)
2. There
has
been little advance in this matter.
In
most territories the
written summons contains a brief statement of claim.
In
Buganda written
processes, including pleadings, are invariably employed before
the
Principal
Court
and
generally before
the
subordinate Buganda courts.
Adjournments and appearances (para. 5)
3. There appears to have been a general improvement in
the
･ｬｩｭｩｮ｡ｴｩｯｾ
of repeated adjournments. Default of
｡ｰｰ･｡ｲｾｮ｣･Ｌ
however, gives rise to a
ｾｲ･｡
deal of trouble
and
is a frequent cause of adjournments.
If
one
party
fads to
appear,
the
usual practice in native courts is for
the
case to be struck
ｯｵｴｾ
fees
paid by
the
party
not
in default being
refunded;
the
matter
is
not
res
ｪｵ､Ｑ｣｡ｴｾＮ
It
appears more salutary
and
fairer to
the
party
who appears if judgment
IS
given in default of appearance and this is sometimes done when it is
the
､･ｦ･ｮｾＺ
ant
who is absent,
but
only if the plaintiff proceeds to prove his case to
the
satls
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