THE CHANGING CHARACTER OF CUSTOMARY COURTS
| Author | N. J. Brooke |
| Date | 01 April 1954 |
| Published date | 01 April 1954 |
| DOI | http://doi.org/10.1002/j.1099-162X.1954.tb00048.x |
THE CHANGING CHARACTER OF CUSTOMARY COURTS
THE
CHANGING CHARACTER OF CUSTOMARY
COURTS
By
N.
J.
Brooke.
67
THE history of native courts in Africa since the first legislation concerning
them was enacted at the end of the last, or beginning of this, century, has been a
brief one.
The
pre-existing tribunals which ranged from chiefs' councils to village
or kindred gatherings, whose composition for judicial purposes did not differ much
from that for other business, have been compared with similar Anglo-Saxon
Institutions which formed the foundation of the English judicial system.
The
shire and hundred moots gave way to the King's courts
but
justice continued to
be administered locally on a popular basis which ensured the association of
the
communities with the administration of justice.
The
judicial unit was the hundred
court and a collection of hundreds made up the shire. In the larger vills, which
were then known as burhs, there were courts of their own and they in most cases
had the status of hundreds.
They
were communal courts of free men or their
representatives and assembled with a president; the
assembly-and
not the person
presiding-were
the judges. These local courts have been described as
" having no professional assistance, being assemblies of the neighbours in which
every man was his own lawyer.
They
had no policemen, and no process by
which they could compel attendance.
If
a man declined to appear the only
thing to do was to declare him an outlaw
...
the business of the tribunals was
mainly the trial of offences of violence and thefts usually of cattle. Civil
business was scanty, and credit almost unknown.
The
court declared the
local customs, awarded compensation and acted generally as a board of mutual
arbitration in neighbours' disputes."!
There
were also similarities in procedure in that the tribunal heard the complaint
and decided how and by whom the proof should be given and the consequences of
failure or success which might depend in some form or other on supernatural
agency, as inferential processes were not relied on. There was no appeal as it is
known to-day.
The
social system was ruled by custom of which the members
of the highest age group were the depositories and little change in this system
came from within until there were outside contacts for assemblies, met to decide
What the custom had been in the past and not what it should be in the future.
But the similarity of the early administration of justice in England cannot be carried
far, for there were courts of private jurisdiction and the subsequent development
Was
on entirely different lines.
For
the next two hundred years after the Conquest
central justice gradually superseded other justice and a common law of the land
Was
produced, though the local courts continued to be the normal tribunals for
ordinary cases and royal justice was still exceptional at the beginning.
In the African territories the native tribunals were recognised or established by
statute little more than fifty years ago, when a fully developed system of courts
and law with a highly technical system of procedure which it had taken some 800
yea~s
to develop was suddenly superimposed upon what was little more than a
~oclal
system, and had concurrent jurisdiction with the native tribunals, administer-
Ing Customary law, over which chiefs presided in accordance with native law and
C~stom,
or, lower down the scale, reconciliation meetings to try and settle disputes
Within the local or kindred group. An exception to this is to be found in the
Mohammedan courts in the Northern Region of Nigeria which were presided
over by an alkali and administered Muslim law as
part
of the territorial customary
IA.
T.
Carter: History of the English Courts.
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