Post- Mabo: The Prospect of the Recognition of
a Regime of Customary (Indigenous) Law in Australia
H A Amankwah
Senior Lecturer in Law, James Cook University of North Queensland. *
'Many decisions of the High Court have resulted in controversy but, few, if any, have
given rise to such diversity of responses, ranging from euphoria to deep anxiety as Maho
v Queensland.'
Sir Harry Gibbs (former Chief Justice of the High Court of Australia) in M Stephenson and S Ratnapala (eds), Mabo: A Judicial Revolution: The Aboriginal Land Rights
Decision and Its Impact on Australian Law (Brisbane: UQP, 1993), xiv.
Introduction
There can be no doubt about the centrality of Mabo v Queensland1 to Australianjurisprudence. The High Court of Australia in 'one fell swoop' has upturned two hundred years
of judicial posture in relation to Aboriginal entitlement to land rights. Spanning a decade,
the case which had been argued at various levels 2 was decided in June 1992, by a six to
one majority in favour of the plaintiffs whose leading figure, Eddie Mabo, had died the
previous January.
The judgment doubtless will be scrutinised by both legal practitioners and academics
in the months to come. In this paper it is proposed to address the issue of indigenous or
customary law whose existence the Court has recognised without an examination of its
nature and other problems associated with such recognition.
I.
Native title and the existence of Aboriginal customary law
The thrust of the decision of the High Court of Australia is that native title survived the
settlement of the continent by the British. The Court however did not attempt to define
native title or its content. It rather threw on the native people the burden of giving content
to their interests. In his nine point summary of the Australian common law in respect of
land titles, Brennan J in the Court's leading judgment said:
*
1
2
Thanks to Peter Poynton, one of my students at JCU, for his contribution and critique of this article in its
development.
(1992) 175 CLR 1.
In May 1982, the plaintiffs on their own behalf and as representatives of certain clans on Murray Island initiated
legal proceedings against the Queensland Government in response to the Queensland State Government's
promulgation of the Land Act (Aboriginal and Islander Land Grants) Amendment Act 1982 (Qld) establishing
a system of deed of grant in trust which the people of Murray Island rejected as an encroachment on their right
to their land under traditional law and custom. The Government of Queensland by legislation sought to stultify
the plaintiffs' claim and passed the Queensland Coast Islands Declaratory Act 1985 (Qld) retrospectively
extinguishing the plaintiffs' alleged traditional title. The plaintiffs then sued the State for that legislation's
violation of their constitutional right of freedom from discrinlination among other things; the High Court of
Australia by a 4 to 3 majority found for the plaintiffs, holding that the Queensland legislation in question was
discriminatory of the plaintiffs (1988) 166 CLR 186. The Court then remitted the case to the Queensland
Supreme Court for findings of fact on the admissibility of evidence in proof of the plaintiffs' claim (1992) 1
Qd R 78. On 3 June 1992, the High Court of Australia finally ruled in favour of the plaintiffs (1992) 175
CLR 1.
16
HAAmankwah
Native title to particular land (whether classified by the common law as proprietary, usufructuary or othelWise), its incidents and the persons entitled thereto are ascertained according to the
laws and customs of the indigenous people who, by those laws and customs, have a connection
with the land. It is immaterial that the laws and customs have undergone some change since the
Crown acquired sovereignty provided the general nature of the connection between the indigenous people and the land remains. Membership of the indigenous people depends on biological
descent from the indigenous people and on muwal recognition of a particular person's membership by that person and by the elders or other persons enjoying traditional authority among
those people.3
Clearly the Court is leaving room for an exposition of customary land rights by the indigenous people themselves. The Court apparently recognised that long assumed nomenclatures (eg, proprietary, usufruct) are deficient as definitions.
In private international law there is an area in which the 'personal laws' of parties operate because more than one system of law is involved in a particular dispute, and it
would be inequitable and unjust to apply the system of law of a country to a party who
has no connection whatever with that country. The private international law analogy
serves as a convenient starting point for us here, also, although we are in the area of domestic law, ie Australian common law. When appropriate, the High Court itself felt the
need to apply public international law in a domestic setting; it is therefore submitted that
we could apply the same judicial technique of the High Court, ie employ analogies from
the jurisprudence of the international law area. The difference here, however, must be
noted: unlike systems of law in the area of private international law which are already
predetermined, Aboriginal customary law is in the main wholly unknown to the majority
of Australians. But on the assumption that it exists, but 'hidden', we are left with the task
of uncovering it. It remains hidden from the majority of Australians because of the judicial system's refusal to recognise it.
In Coe v Commonwealth4 the High Court could not accept that there could be a regime
of law in Australia different from the common law in the absence of an organised and
centralised political authority. Gibbs J characteristically asserted:
The Aboriginal people are subject to the laws of the Commonwealth and of the states or territories in which they reside. They have no legislative, executive or judicial organs by which sovereignty might be exercised. If such organs existed, they would have no powers, except such as
the laws of the Commonwealth, or of the state or territory, might confer upon them. The contention that there is in Australia an Aboriginal nation exercising sovereignty, even ofa limited kind,
is quite impossible to maintain in Law. 5
That kind of judicial posture was the product of a philosophy of law identified as positivism, which views state law as a single consistent body of doctrine - the commands of
a sovereign. It was an ideology which asserted 'the exclusivity and unity of state authority' .6
In a pluralistic society however, the claims of minority groups such as the Aboriginal
and other ethnic groups would seem to be an effrontery to the ideology of state monopoly
of the legal regime, the integrity of legal authority and the inevitability and uniform
source of state law. The fallacy inherent in this dogma is exposed once the potential of
customary law as part of state law is acknowledged because since its source cannot be 10-
3
4
5
6
Mabo v Queensland (1993) 175 CLR 1.
(1979) 53 ALJR 403.
ld 408 (emphasis added).
See G Woodman, 'Studying the Laws: Respecting Customary Laws in the Curriculum' a paper presented at
ALTA 41 st Annual Conference, 27 August 1986, Goroka, (PNG).
Recognition of Customary Law
77
cated in any of the traditional legal materials, statutes and law reports, we must look in
the direction of alternative processes in the evolution of state law such as social, political
and economic circumstances. That effort leads us to the works of sociologists, political
scientists and perhaps historians.?
Ironically in Milirrpum v Nabalco 8 where Blackburn J found that the system of political and social organisation prevailing among the indigenous Australians was a system of
'government of laws and not ofmen';9 that 'the system of law was recognised as obligatory upon them by the members of a community which, in principle, is definable, in that
it is a community of Aboriginals'; 10 he nevertheless gave judgment in favour of the defendant because concepts of property among the Aboriginal plaintiffs differed from those
of white Australians. He said further:
I think this problem has to be solved by considering the substance of proprietary interests rather
than their outward indicia. I think that property, in its many fonns, generally implies the right to
use or enjoy, the right to exclude others, and the right to alienate. I do not say that all these rights
must co-exist before there can be a proprietary interest, or deny that each of them may be subject to qualifications. But by this standard, I do not think that I can characterize the relationship
of the clan to the land as proprietary. I I
He then came to the startling conclusion:
The evidence seems to me to show that the Aboriginals have a more cogent feeling ofobligation
to the land than of ownership of it. It is dangerous to attempt to express a matter so subtle and
difficult by a mere aphorism, but it seems easier, on the evidence, to say that the clan belongs to
the land than that the land belongs to the clan. 12
It is impossible to find anywhere in the world a comparable system of jurisprudence
wherein the principle is that the land owns a people, rather than that the people own their
land!
However, in the Indian sub-continent and Africa where the British also transported the
common law from the inception of the colonies, the colonists recognised indigenous laws
and enjoined the courts to observe and enforce native laws and customs. Initially this resulted in a pluralism in the legal system,13 but eventually the systematic application of
both the received common law and the indigenous native laws and customs led to the inauguration of an integrated legal system about which one would express the same sentiment as was once expressed about the fusion of law and equity - that there is one court
system in which both the principles of the common law (including equity) and those of
native laws and customs apply.14 Because in Australia the legal system consistently refused to accord Aboriginal customary law recognition, briefly set out below are some of
its salient characteristics of customary law employing African customary law as the point
of reference.
7
Ibid
(1971) 17 FLR 141.
Id267.
Ibid
Id272.
Id 270-271.
See M B Hooker, Legal Pluralism: An Introduction to Colonial andNeo-Colonial Law (Oxford: The Clarendon
Press, 197S), passim.
14 Accomplished by the promulgation of the Judicature Act 1852 and the Common Law Procedure Act 1873. In
Walsh v Lonsdale (1882) 21 Ch D 9 Jessel MR however said, 'There is only one court and the equity rules
prevail in it': id 14.
8
9
10
11
12
13
78
HAAmonkwoh
(i) Nature
A great deal of misconception exists in the world, especially in the West, concerning the
nature of customary law. No doubt this is the result of traditional thinking about what a
judicial system should be. In the minds of persons in whose culture a judicial system is
regarded as made up of written laws, courts and judges, indigenous African legal systems
do not deserve the appe]]ation of a judicial system. Indeed the author of a recent book on
legal philosophy claims that the notion that jurisprudence exists in some African tribes is
nothing more than an attempt on the part of natural law philosophers to find some basis
for asserting the universality of law. 15 Undoubtedly this reference to natural law philosophers and their view of African law is a reference to Professor Max Gluckman and persons of his ilk. 16 African customary law to legal traditionalists is a myth, just as people
assert that they are mystified by natural law. Part of the problem of recognition of customary law as binding legal concepts is due to the fact that the greater portion of the literature on customary law is the work of sociologists and anthropologists whose interest
is not primarily in jurisprudence as such but in the question of man's social behaviour. I?
Be that as it may, it is perhaps generally accepted today that a dichotomy of cephalous
and acephalous groups exists in so called prinlitive societies. The one is highly developed
and has some form, no matter how rudimentary, of political and social organization and
a central authority which sees to the enforcement of a body of rules within the community; 18 the other lacks the essentials of 'government' and is predominantly organized
around a patriarchal authority who lacks the power to enforce a set of rules and uses
therefore the techniques of persuasion and consensus. 19
In order to appreciate African customary law the foreign enquirer may do well to heed
this admonition of Roberts:
European conceptions of law and justice have to be discarded. They have nothing in common
with African cultures - they are alien in growth and sentiment, and can not be used to explain
the basis of primitive legal theory.20
15 Shklar, Legalism (Cambridge, Mass: Harvard University Press, 1964), 34.
16 Gluckman, 'Natural Justice in Africa' (1964) 9 Natural Law Forum 1, also Cowen, 'Human Rights in Africa'
(1964) 9 Natural Law Forum 25.
17 See Woodman, 'Some Realism about Customary Law: The West African Experience' (1969) Wisconsin Law
Review 128 where the learned professor said that those involved in the controversy of the nature of customary
law which is part of the problem of the proper definition of law have usually been sociologists or lawyers. He
asserts: 'It is understandable that experts with such diverse skills have been unable to reach agreement ... The
practice of the courts have given the impression that their task is to enforce what sociologists regard as
customary law'. Thus in Owonyin v Omotosho (1961) 1 All NLR 304, 309 the court in Nigeria said customary
law was 'a mirror of accepted usage'.
18 This group includes the Ashanti of Ghana, the Yoruba of Nigeria, the Zulu of South Africa and the Baganda
of Uganda. See generally M Fortes and E E Evans-Pritchard (ed~) African Political Systems (London: Oxford
University Press, 1940); Elias, The Nature ofAfrican Law (Manchester: Manchester University Press, 1956);
H J Maine, Ancient Law (London: John Murray & Sons, 19(6); C C Roberts, Tangled Justice (London:
Macmillan & Co, 1937); J B Danquah, Akan Laws and Customs, (London: Routledge & Co, 1928); Haydon,
LawandJustice in Buganda (London: Butterworths, 1960)~ Matson, 'Judicial process in the Gold Coa~t' (1953)
2 International and Comparative Law Quarterly Review, 47; Beattie, 'Informal Judicial Activity in Bunyoro'
(1957) 9 JAA 188.
19 This group includes the Tallensi of Northern Ghana, the Nuer and Tiv of Nigeria and the East African tribes
of Tswana and Ngwato. See Fortes and Evan-Pritchard, supra note 18~ E E Evans-Pritchard, The Nuer,
(London: Oxford University Press, 1940).
20 Roberts, supra note 18, 63.
Recognition of Customary Law
79
Not infrequently Western commentators go into African societies with predetermined
ideas and expect African institutions to fit into those ideas. Perhaps a better way of evaluating foreign institutions is not by importing yardsticks from abroad for measurement but
rather by 'delving into the political and legal order' of the people concerned 'to discover
the peculiarly (indigenous) sources of political and legal determinants' so that the assessment would not be devoid of local content. 21
Some scholars appear to accept without question the postulate that the main preoccupation of primitive legal systems is the conferment of 'status' and that it has no concern
for 'contract' .22 Thus Dr Ocran says:
The jural postulates of a (tribal- communal society) is status. As Sir Henry Maine pointed out,
one's rights and duties in this society are acquired on the basis of ascription - that is, membership through birth in a primordial group such as the family, clan, lineage or tribe. 23
It is true, perhaps, that nearly all the diverse tribal groups in Ghana instituted their own
clearly-defined corpus of rights and obligations. Lineage, kinship and age largely determined the communal relationships and communal status of individuals.
Thus, using the Akan group as a paradigm, the rights of succession and inheritance
were determined by the matrilineal principle. In the political sphere, the method of selecting a chief for example, was regulated by the lineage principle by which a person could
become a chief only if he was a menlber of one or more royal1ineage. 24 Socially an important obligation was the respect and reverence that should be paid to age. Prestige,
power and authority were the prerogatives of the aged because of the belief that it was the
older people who knew and therefore best qualified to transmit to the younger folk the
customs, usages and traditions of the community to which all should conform. 25 But that,
it is submitted, is not the entire picture. There were situations which clearly could be
characterized as contractual relationships which created personal rights and obligations
the breach of which gave rise to action for damages or some such remedial action. Marriage was one such situation; also transactions involving the transfer of one's interest in
some property to another were contractual. Legal consequences which flowed from such
relationships were not predicated on status but on contract. These fit into our concept of
civil matters. Matson wrote about the Akan of Ghana:
Akan customary law recognises two classes of acts giving rise to judicial proceedings: those
causing danger (spiritual more than mundane) to the community, either as a whole or in the person of its head; and those causing hann only to individuals. 26
21
22
23
24
25
26
Asante, 'Law & Society in Ghana' (1966) Wisconsin Law Review 1113, 1119 which is a commentary on
Professor Harvey's Law and Social Change in Ghana (Princeton University Press, 1964). Dr Assante's view
has been echoed in the works of other authorities on African Law, for exan1ple, Cowen, 'A Survey of the Field
and the Role of the United States' (1962) 27 Law & Contemporary Problems 545; Franck, 'New Development
- Can American Law and Legal Institutions Help Developing Nations?' Wisconsin Law Review 767.
Maine, supra note 18, ch. 5.
'Law, African Economic Development and Social Engineering - A Theoretical Nexus' (1971) 5 Zambian
Law J ournal32. For a similar assertion, see Seidman, 'Constitutions in Independent Anglophonic Sub-Saharan
Africa - Form and Legitimacy' (1969) Wisconsin Law Review 83 in which the author argues that the chiefs
and their people are governed by or favour the maintenance of the regime of 'status' while the modernizing
elite are governed by or favour the regime of 'contract'.
K A Busia, The Position of the Chief in the Modern Political System ofAshanti (hereinafter The Position of
the Chief) (London: Frank Cass & Sons, 1951) 9.
Ibid
Matson, supra note 18. Mr Matson was Judicial Adviser to the Governn1ent of the Gold Coast and his view
can therefore be taken as authoritative. His view exposes one more fallacy in the jurisprudence of Sir Henry
Maine at least when applied to the Akan of Ghana, for he asserts that the penal law of ancient communities
was not the law of wrongs, or to use the English technical word, of torts: Maine supra note 18, 379. See also
Rattaray, Ashanti Law and Constitution (Oxford: Clarendon Press, 1929), chs 26-32.
20
HAAmankwah
An attempt at the definition of customary law in terms of the general definition of law
poses many jurisprudential problems since this has been done both by sociologists and
legal philosophers.
The analytical positivist may be disappointed in customary law because it does not
bear any resemblance to the commands of a political sovereign in a politically organized
society regulating the social conduct of the subject. 27 Enacted laws are, however, today
introducing changes and variations into customary law to the extent that some rules of
customary law have assumed the characteristic of commands. 28
However, if Hart's dual system of 'primary' and 'secondary' rules which he suggested
as a replacement for Austin's monolithic model is carefully considered, customary law
may be found to have the attributes of law for as with English law, customary law also
consists of rules of obligation which are general in nature and rules which are ancillary to
the rules which prescribe standards of behaviour. 29
Locke's explanation concerning the existence of law in a political society based on a
so called social contract when applied to customary law renders it a meaningless institution. 3o
Dean Pound considered the function of law as that of 'social engineering' - the dictates of social interests which seek to regulate men's conduct in society.31 African customary law would seem to perfonn the same function and indigenous arbitral
proceedings exemplify this since the restoration of the status quo and the maintenance of
the social equilibrium are the two aims of arbitration at customary law. 32
The socialist interpretation of law as a system developed and controlled by the economically dominant class in furtherance of the interests of that class has been criticized
by many legal writers. The recent collapse of Soviet style communism, the failure of
Lenin's 'dictatorship of the proletariat', the non-arrival of the 'classless society' and the
consequent failure of class based laws to become obsolete33 indicate the adaptability and
dynamism of the capitalist system and the rollback of socialist ideas. The 'class struggle'
paradigm has always lacked relevance in African tribal societies, which were not industrialised and had only rudimentary class divisions. The socialist model does not shed
much light on the nature of customary law. 34
Some writers say that traditional customary law is deeply rooted in the habits and usages of a people. Thus Dr Dundas wrote:
27 John Austin in his Lectures on Jurisprudence wrote 'laws proper, or properly so called are commands', ie
'laws set by political superiors to political inferiors', reproduced in C Morris (ed), Great Legal Philosophers:
Selected Readings in Jurisprudence (Philadelphia: University of Pennsylvania Press, 1956), 336-7. Austin
thus excluded customary law from the category of 'laws proper'.
28 See Twinning, 'The Place of Customary Law in the National Legal Systems of East Africa', lectures delivered
at the University of Chicago, April-May 1963.
29 See his Concept ofLaw (Clarendon, aup, 1961), ch 5.
30 J Locke, Two Treaties on Civil Government in Morris supra note 27, 137-147. It must be remembered that Sir
Henry Maine said status and not contract detem1ined social and legal obligations in so called primitive societies,
see supra note 18.
31 Roscoe Pound, Social Control Through Law (New Haven: Yale University Press 1942), and passim, Pound,
My Philosophy ofLaw in Morris supra note 27,532; Woodn1an supra note 17.
32 For the requirements of a binding arbitration at customary law, see Kwasi v Larb; [1953] AC 164; Twumasi v
Badu (1959) 3 WALR 204; Ankrah & Ors v Olaga 1(1959) 3 WALR 84.
33 This is the so-called socialist theory of law first propounded by Karl Marx, see his Manifesto ofthe Communist
Party, Adoratsky (ed) (New York: International Publishers Co, 1964), 241.
34 It is to be noted that customary law contributed importantly to the socialist canons. Frederick Engels was
influenced by Australian Aboriginal customary law in writing The Origins ofthe Family, Private Property and
the State. He utilised the text of American anthropologist L H Morgan's Ancient Society, which drew upon
correspondence with L Fison and A W Howitt, whose Kamilaroi and Kurnai (Melbourne: George Robertson,
1880) was a seminal work of Australian Aboriginal anthropology, albeit a social darwinist text!
Recognition of Customary Law
27
Customary law is the experiences of generations which successively have cast this and that
aside, tried many methods and found them to fail, until at least some course remained open
which proved itself the most workable and acceptable, not because it fitted into all other circumstances. Therefore it is a deeply thought out code, and the experience and intellect of generations have worked to make it one link in a chain of usages and ideas. For the law as approved
by custom is but part of the mechanism of society.35
Dr Ogwurike said:
There seems to be a general notion among writers on African Law - at least those of the
Savignian School that customary law is law 'par excellence'. Its derivation from local customs
and usages of traditional Africa points to the fact that it has its root in the people and therefore
cannot but reflect their common consciousness. 36
In ABott's view it is unwritten and not the work of a legislature or law-giver; 'the rules
of law trace back to the habits, customs and practices of the people which engender and
support the norms expressly fonnulated from time to time for the decision of disputes';
and that it is flexible. 37
Mr Justice Ollennu said: 'Basically the customary law is the usage or custom which
exists in a particular locality or community and is accepted as binding upon the people of
that community' ,38 Professor Gluckman defined law with reference to arbitral proceedings among the Barotse as 'a set of rules accepted by all normal members of the society
as defining right and reasonable ways in which persons ought to behave in relation to
each other and to things including ways of obtaining protection for one's rights' ,39 Following Professor Gluckman's definition, Dr Elias wrote of African law: 'The law of a
given community is the body of rules which are recognized as obligatory by its members' ,40 Professor Goodhart also stressed the obligatory aspect of law,41
Professor Woodman rejects the definitions of both Professor Gluckman and Dr Elias
and argues at length that it is surprising that jurists should adopt the definition of law as
given by sociologists whose field of knowledge is not law but social behaviour, He asserts that in fact some judicial decisions involving customary law are not what the people
concerned believe to be the law, but what the judges believe it is; that judges have sometimes employed logic in arriving at their decisions; and that at other times they are
swayed by their own preconceptions; and that by employing legal technicalities and procedural rules such as placing the onus of proof on one of the parties rather than the other,
the courts have reached results which may be at variance with the ordinary man's conception of the law. 42 He concludes on a somewhat Holmesian note, that what the law is (in
35 The Organization and Laws of Some Bantu Tribes in East Africa' (1915) 45 Journal of the Royal
Anthropological Institute 343, 305. It must be borne in mind however that Dr Dundas, like all anthropologists,
was not concerned with jurisprudence but with social behaviour.
36 'The Source and Authority of African Customary Law' (1966) 3 University ofGhana Law Journal 11. This
is an allusion to von Savigny's oft-quoted passage in his Of the Vocation of Our Age for Legislation and
Jurisprudence reproduced in Morris supra note 27, 290. See also Friedman, Legal Theory (4th ed, London:
Sweet & Maxwell, 1960) 159-160.
37 A N Allott, New Essays in African Law (London: Butterworths, 1970), 62. In Lewis v Bankole (1909) 1 NLR
81, 100-101 the Full Court said, per Osborne 0: 'One of the most striking features of West African native
custom ... is its flexibility; it appears to have been subject to motives of expediency, and it shows
unquestionable adaptability to altered circunlstances without entirely losing its individual characteristics'.
38 'Law of Succession in Ghana' (1965) 2 University ofGhana Law Journal 4_ 11.
39 M Gluckman, The Judicial Process Among the Barotse of Northern Rhodesia (London: Oxford University
Press, 1955), 229.
40 Elias, The Nature ofAfrican Customary Law (Manchester: Manchester University Press, 1951), 55.
41 'The Importance of Definition of Law' (1951) 3 JM 106.
42 Woodman supra note 17, 134.
22
HAAmankwah
this case customary law) is in fact the prediction of what the courts would do;43 the prospective client - Holmes' 'bad man' - who goes to see a lawyer does so in order that
he will be able to arrange his business and conduct by 'reference to possible judicial action', and not by reference to what the people of the community consider to be a reasonable way of doing what he wants to do. 44 He concedes, however, that the lawyer may
have need for sociological methods, eg where the law is not clear even from scrutiny of
available decisions. In such a case the lawyer may refer to sociological work with a view
to swaying the court to his point of view. Since customary law changes with change in the
people's conditions, sociological method could be used also in a situation where the lawyer wants to prove a change in the law due to a change in conditions. He concludes that
the lawyer and the sociologist may be neighbouring landowners but not joint tenants. 45
It is worthy of note that the sociologist's definition of customary law has received the
approval of the Privy Council. In Eleko v Officer Administering the GovernmentofNigeria,46 the Court said: 'It is the assent of the native community that gives custom its validity, and therefore barbarous or mild, it must be shown to be recognized by the native
community whose conduct it is supposed to regulate'.47
Incidentally, colonial legislations concerning the definition of customary law are also
not helpful, for instance the Gold Coast (Colony) Native Courts Ordinance, Cap 98, 1944
provided, 'customary law means a rule or body of rules regulating rights and imposing
correlative duties being a rule or body of rules which obtains and is fortified by established usage and which is appropriate and applicable to any particular cause, matter, dispute, issue or question' .48
(ii) Proofofcustomary law
Customary law is mainly unwritten; it is part of the history and culture of a people and is
passed on from generation to generation by nleans of oral tradition. This is why people
entertain the thought that it would be lost with the extinction of the older members of a
society. We shall revert to that argument later.
In colonial Africa, as indicated earlier, initially a parallel system of courts developed
43 'The Path of the Law' (1897) Harvard Law Review 457,460-1.
44 Woodman supra note 17, 143.
45 Id 152.
46 [1931] AC 662.
47 ld 673.
48
See now the Interpretation Act 1960, (CA 4). Section 18( 1) provides: 'Customary law as comprised in the laws
of Ghana consists of rules of law which by custom are applicable to particular communities in Ghana, not being
rules included in the common law under any enactment providing for the assimilation of such rules of customary
law as are suitable for general application'.
As Professor Woodman properly points out in his essay, 'Sonle Realism about Customary Law', supra note
17, 129, the positive part of this definition, ie, 'rules of law which by custom are applicable to particular
communities in Ghana', does not help to discover customary law; in particular, it does not help to distinguish
rules of law from rules of convention or morality.
The Constitution of Ghana 1969 reiterates in Art 126 (3) the definition of customary law as given by the
Interpretation Act 1960. It reads: 'The expression' 'customary law" nleans the rules of law which by custom
are applicable to particular communities in Ghana'. By Art 126 (2) some rules of customary law when
'determined by the Superior Court of Judicature' become part of the common law of Ghana.
Recognition of Customary Law
23
with the recognition of customary law, ie the regular courts and native courts, Native
courts were generally empowered to administer the native law and custom in the area of
their jurisdiction.49 In addition, they were to apply any law binding beween the parties to
a dispute except where the parties had agreed or could be taken to have agreed that the
transaction involved in the dispute be governed by English law. 5o This would seem to
empower the courts to apply some customary law other than that prevailing in the area.
These provisions were repeated in the Local Courts Act 1958.
Native Court personnel were supposed to know the law; indeed as native Africans,
there was presumption that they were repositories of customary law. However, to the extent that their decisions were subject to the supervision of administrative officers,judicial
advisers and magistrates, which supervision was not limited to procedural matters only,
the principles of customary law which they enunciated were liable to change. It is believed however, that such supervision was generally over matters of procedure and remedies. In this regard Dr Fallers wrote of the situation among the Basoga:
What we see in operation today, therefore, is a systetn of courts and a body of law which have
deep roots in traditional society and culture but which have been modified, particularly in the
direction of colonial administration. It is significant that such modifications have been slight
enough and gradual enough so that the Basoga may feel that these are still their courts and their
law. Certainly to the outside observer this appears to be true. 51
This observation about the Basoga was true of Ghana also at least up to the time of the
passage of the Courts Act 1960.
With regard to the superior courts, they were allowed the freedom to resort to chiefs
and other persons with special knowledge of customary law, and to consult books and
manuscripts recognized as authoritative on customary law. They were also empowered to
refer cases dealing with native customary law to native courts for their decision. The decisions of native courts on customary law had no binding force either on the customary
courts themselves or when such matters came before the higher courts. The Evidence Ordinance of Nigeria provided, however, that judicial notice could be taken of a custom,
with respect to any circumstances and it could then be adopted as part of the law governing those circumstances. 52 The power to refer to persons knowledgeable in customary
law has been taken to indicate that native law always required proof. Thus for example in
Limbani v R53 it was held that the mere decision of a native court that a particular custom
exists does not establish that custonl. But the Privy Council stated in the Ghanaian case
49 See TO Elias, 'Colonial Courts and the Doctrine of Judicial Precedent' (1955) 18 Modern Law Review 356;
also Elias, Customary Law in Africa (Leiden: African-Institute, 1956), 121.
Up to 1960 a parallel court system prevailed in Ghana, one was inferior and applied in the main customary
law, the other was superior and applied English law and appeals lay to it from the inferior native courts. Initially,
British attitude to the establishnlent of these inferior native courts was one of indifference. Thus the Native
Jursidiction Ordinance 1878 made no provision for native courts, and the Supreme Court Ordinance which
established the Gold Coast judiciary was silent on the matter. In 1927 with the pa~sage in that year of the Native
Administration Ordinance, the British authorities gave these courts overt recognition. This wa'i the period of
Indirect Rule during which the Government strengthened native institutions - chieftaincy and indigenous
arbitral proceedings - as a means of buttressing its authority over the people. By 1944 these courts were being
regulated by statutes and graded A, B, C, and D: see the Native Courts (Colony) Ordinance 1944, Cap 9. The
Local Courts Act 1958, prepared the way for the eventual fusion of these courts and the regular and superior
courts which was effected by the Courts Act 1960. See generally, H A Amankwah, 'Ghanaian Law: Its
Evolution and Interaction with English Law' (1970) 4 Cornell International Law Journal 37; E Nwogugu,
'Abolition of Customary Law: The Nigerian Experiment' (1976) 20 Journal ofAfrican Law 7.
50 Native Courts (Colony) Ordinance 1944, (Cap 98), s 45.
51 'Customary Law in the New African States' in (1962) 27 Law and COlltemporary Problems 695.
52 Cap 68, ss 14, 15,6],62. See also Mr Justice Butler Lloyd's dictum in Burabno v Bangbose (1938) 14NLR
42, 44, on the effect of a notorious custom.
53 (1946) NLR 6.
24
HAAmankwah
of Angu v Atta that, 'In the Gold Coast Colony the principal customs as to the tenure of
land have now reached the stage at which the courts recognize them and the law has become as it were crystallized' .54 Their Lordships went on:
As is the case with all customary law, it has to be proved in the first instance by calling witnesses acquainted with the native customs until the particular customs have, by frequent proof
in the courts, become so notorious that the courts will take judicial notice of them. Difficult
questions sometimes arose in court when oral evidence was given to establish a custom as
where two witnesses gave conflicting evidence on the same custom, or where a witness' oral
evidence was in conflict with contemporaneous written documents. In such situations Lord
Denning suggested a way of resolving the problems. In Adjeibi Kojo Ii v Bonsi55 speaking for
the Board he said: 'In such a case demeanour (of the witnesses) is little guide to the truth. The
best way is to test the traditional history by reference to the facts in recent years as established
by the evidence and by seeing which of the two competing histories is the more probable' .56
Earlier on however, it was held in Hughes v Davis57 that, 'As native law is foreign law,
it must be proved as any other fact'.
This vacillation on the part of the superior courts to recognize customary law in its
own right, and their equating it with customs as that word is understood in English law58
has had some unfortunate results.
First, as Professor Woodman pointed out, there was the possibility that the court could
be misled by those who were called to give evidence in proof of a particular custom. 59
Secondly, reliance on the work of publicists could lead to the situation where due to a
paucity of authoritative writings, what was accepted as law in one community was automatically considered the law for an entirely different tribal community.60 Thus it was that
Sarba's Fanti Customary Law has been accepted as the authority on customary law, and
principles enunciated therein applied even to Ewe and Ga communities, although as the
title of the book suggests, it is a recording of Fanti Customary law for an Akan community and the Ewe and Ga are non-Akan people. Thirdly, the requirement 'that the law
should be proved until it became notorious' meant in principle that the notoriety consisted in previous decisions of the superior courts on points of law with the result that
there was a real danger of perpetrating errors. Professor Woodman wrote:
If in one case a court accepts incorrect evidence of customary law, subsequent decisions are
more likely to make the same mistake because of the weight accorded to the initial decision.
Moreover, even if the initial decision is correct, its conclusions as to custom may be applied to
a later case involving a different ethnic group with possibly different customs.61
Indeed this has been done so often out of zeal to force a unitary system of customary
law that there is a real danger that the actual customs of some tribal communities are lost
in the maze of confusion. Thus inFoli v AgyaAtta62 a case involving the Ewe community
54
55
56
57
58
(1916) Gold Coast Privy Council Judgments (1874-1928) 43, 44.
[1957] 1 WLR 1223 (PC).
Id 1227.
(1909) Ren 550, 551.
At common law custom must have the qualities of antiquity, certainty, reasonableness, continuance,
obligatoriness and consistency: C K Allen, Law in the Making (4th ed, Oxford: Clarendon, 1946), 127-135.
For some thoughts on proof of customary law, see: A N ABott supra note 37, Essays in African Law, ch 37;
A N ABott, 'The Judicial Ascertainment of Customary Law in British Africa' (1957) 20 Modern Law Review
244,257. N C E Daniels, The Common Law in West Africa (London: Butterworths, 1964), ch 10; FH R Bennion,
The Constitutional Law ofGhana (London: Butterworths, 1962), ch 12; Hannigan, 'The Imposition of Western
Law Forms Upon Primitive Societies' (1961) 4 Comparative Studies in Society and History 1.
59 Woodman, supra note 17, 131.
60 Id 132.
61 Id 133.
62 (1976) 1 GLR 194.
Recognition of Customary Law
25
in the Volta Region of Ghana and which came on appeal before the Court of Appeal, the
Court applied the principle of law in an Akan case to the case before it without a shred of
evidence that the particular custom was one which was recognized among the Ewe people. The Court characteristically said:
The case of Abadio II v Nsemfo (1947) 12 WACA 127 shows that where subjects of a stool are
found upon a detennination of a dispute with an adjacent stool to have made fanns bona fide on
land belonging to the other stool, they should be given an opportunity to enter into tenancy
agreements with the stool adjudged owner of the land. And it is only after they have failed to do
so that they should be sued to show cause why they continue to fann on the other's land without
attoming tenants. This is a decision emanating from the Akan area of the courts. It may be argued therefore that it is not applicable to the present case which comes from the Ewe area. But
the rule involved is so sensible and reasonable that it ought to have general application.63
The contention is not that the decision is palpably wrong, the argument simply is that
there is insufficient evidence in support of the Court's conclusion that since the decision
is reasonable it could be applied mutatis mutandis to other ethnic groups.64
Matters have not been improved by the provisions of the Courts Act 1971 (Act 372).
Section 50 provides:
(1)
(2)
Any question as to the existence or content of customary law is a question of law for
the Court and not a question of fact.
If the Court entertains any doubt as to the existence or content of a rule of customary
law relevant in any proceedings after considering such submissions thereon as may
be made by or on behalf of the parties and consulting such reported cases, textbooks
and other sources as may be appropriate, the Court may adjourn the proceedings to
enable an inquiry to take place under the next subsection.
(3)
The inquiry shall be held as part of the proceedings in such manner as the Court
considers expedient, and the provisions of this Act relating to the attendance and
testimony of witnesses shall apply for the purpose of the tendering of opinions to
the Court at the inquiry, but shall apply subject to such modifications as may appear
to the court to be necessary:
Provided that:
(i)
the decision as to the persons who are to be heard at the inquiry shall be one for the
Court, after hearing such submissions thereon as may be made by or on behalf of
the parties:
(ii)
the Court may request a House of Chiefs, or a Divisional or Traditional Council or
other body possessing knowledge of the customary law in question to state its opinion which may be laid before the inquiry in written form.
63 Id 198.
64 For a detailed discussion of this problem of the imposition of the customs of one ethnic group on another
through judicial activism, see Bentsi-Enchill, 'Interstate succession Revisted' (1972) 9 University of Ghana
Law Journal 123.
26
HAAmankwah
Section 51 (1) gives statutory sanction to the practice of judges of the superior courts
deciding cases on the basis of their preconception of native law. 65 However they may
now call for evidence of the existence of a custom if they so wish. 66
Section 51(2) merely states the doctrine of stare decisis which the courts have been
applying all along. 67
In Australia the High Court recognised the existence of 'traditional evidence' in the legal system of Australia's former colonial territory, Papua. In Administration of PNG v
Daera Guba68 Barwick CJ said:
By traditional evidence I understand statements of a witness who claims either to have been the
repository of the folk lore of a primitive community or to have been told relevant facts by some
of his forefathers who had an important place in that community, a standing which was likely to
have made them knowledgeable in relevant respects. 69
However, Blackburn J was of the view that 'traditional evidence' was not part of the
common law as it is understood in Australia. 7o
(iii) Conflict and integration
The potential for conflict was reduced by the application of the 'repugnancy rule'. Integration resulted from the interplay of principles of the general law and those of customary
law and the adaptation of principles of the general law to customary law issues. To begin
with, certain native customs such as slavery and human sacrifice which were regarded as
barbaric or tainted in any way with indecency were proscribed. In Edet v Essien71 and
Chawere v Aihenu72 the 'repugnancy rule' was applied to the Yoruba custom by which if
a woman was married under native custom and she has a child with another man while
the dowry paid on her remained unrefunded, the child was regarded as belonging to the
husband of the woman and not the natural father. In the Edet case a woman married under
native law left the husband to live with another man. She had two children by this other
man, the respondent. He did not refund to the appellant (the lawful husband) as custom
demanded, the dowry which the appellant paid as bride money on the wife. The appellant
therefore claimed the two children. It was held that to uphold the claim would be contrary
to natural justice. It was inequitable to allow the appellant to claim another's natural children simply because the other man had deprived the appellant of his wife without paying
dowry for her. In the Chawere case, the first defendant who was seduced by the plaintiff
was originally the wife at customary law of one, Algbohandi. The plaintiff then paid to
65 See Woodman, supra note 17, 139.
66 The writer is aware the chiefs have not utilized this unique opportunity under s 51(3) (11) to declare customary
law. It may be that the courts have not been calling upon them to do so. Under the Chieftaincy Act 1961 (Act
81) the Regional Houses of Chiefs are empowered under ss 58-64 to declare customary law for assimilation
by the common law. Professor Bentsi-Entshill cited the exan1ple of Akim Abuakwa State Council which acting
under s 130 of the Native Administration Ordinance declared in 1943 what it believed to be the law on
nuncupative will among the Akim people. See Bentsi-Entsill, Ghana Land Law (London: Sweet & Maxwell,
1964), 201. But in 1948 the modification of Ashanti law of succession effected by the Ashanti Confederacy
Council was declared invalid because the Council did not adopt the proper procedure. See Kosia v Nimo
(1948-51) Div Ct 239 cited in Woodman, supra note 19, 140. In the KokOinlemle Consolidated Cases (1951)
Div Ct (1948-1951) 32, Jackson J laid down a formula for the proof of a Ghanaian custom; this includes
consulting written authorities and unwritten sources.
67 On the application of the doctrine in Ghanaian courts, see Asante, 'Stare Decisis in the Supreme Court of
Ghana' (1964) I University of Ghana La'tv Review 52; Ollennu, 'Judicial Precedent in Ghana' (1966) 2
University ofGhana Law Review 139; Harvey 'The Evolution of Ghana Law Since Independence' (1962) 27
Law and Contemporary Problems 281.
68 (1973) 130 CLR 353.
69
70
71
72
ld 374.
See Milirrpurm v Nabalco (1971) 17 FLR 141, 159.
(1932) 1I NLR 47.
(1935) 12 NLR 4.
Recognition of Customary Law
27
the husband twenty pounds which was said to be the dowry. The woman later left the
plaintiff to live with the second defendant. The plaintiff now claiming that the woman
was the wife of the second defendant demanded twenty-four pounds and ten shillings
'being dowry paid on the first defendant to her first husband and also for the purchase
price of a sewing machine given by the plaintiff to the first defendant'. Graham Paul J
said of this claim:
If the suggestion is that there is a native custom by which a wife who commits adultery, ipso
facto of the adultery becomes automatically the wife of the adulterer, I have two comments to
make. First, that there is no evidence of such a custom, and second, that I am clear that such custom is one to which this court would not be prepared to give judicial sanction.?3
In the Ghanaian case of Sarteng v Darkwah74 the issue was whether the child of a
slave should be considered a member of the father's family for the pUlposes of succession. The court held contrary to custom that the child of a slave is a member of the father's family and that to hold otherwise would be to uphold the institution of slavery
which was not only abolished by statute but also repugnant to the common law of England. 75
Not only was English law, both common law and equity, concerned with the problem
of refashioning rules of customary law, but also equitable decisions were enforced in the
strict English sense. This inevitably conflicted with local practices. The maxim nemo judex in sua re flew in the face of situations where a chief or other authority might often
adjudicate on breach of his own decree or an injury to his own right. The maxim alteram
partem audi might conflict with some customary practice because although in ancient
African law a man was generally given an opportunity to be confronted with his adversary, the institutions of 'oath' and 'ordeal' might lead to a man's condemnation without
an effective chance of putting his own point of view across. However, the rule that a man
is entitled to know the particulars of the offence with which he is charged was rarely departed from. The maxim that decisions should be supported by reasons might be violated
where a man's guilt was made to depend on the ordeal institution. And there might be no
way of finding whether the rule that punishnlents and awards should not be excessive,
but should be proportionate to the circumstances of the offence, was always observed.
The word equity was not only interpreted to mean fair play. It was also intelpreted
technically to mean that rules formerly administered in the Court of Chancery such as
constructive notice and laches were applicable to customary law situations at least where
procedural matters were in issue. Thus the equitable principle of estoppel by acquiescence in Willmott v Barber76 was applied in Abbey v Ollennu. 77 In the Willmott case Fry
J said:
It has been said that the acquiescence which will deprive a man of his legal rights must amount
to fraud, and in my view that is an abbreviated statement of a very true proposition. A man is not
to be deprived of his legal rights unless he has acted in such a way as would make it fraudulent
for him to set up these rights. What, then, are the elements or requisites necessary to constitute
fraud of that description? In the first place the plaintiff must have made a mistake as to his legal
rights. Secondly, the plaintiff must have expended some money or must have done some act
(not necessarily upon the defendant's land) on the faith of his mistaken belief. Thirdly, the defendant, the possessor of the legal right, must know of the existence of his own right which is
inconsistent with the right claimed by the plaintiff. If he does not know of it he is in the same
73 Id 5.
74 (1940) 6 WACA 52, 53.
75 See Gold Coast Slave-Dealing Abolition Ordinance 1874 (No 1) and Gold Coast Emancipation Ordinance
1874 (No 2).
76 (1880) 15 Ch D 96.
77 (1954) 14 WACA 567.
28
HAAmankwah
position as the plaintiff, and the doctrine of acquiescence is founded upon conduct with a
knowledge of your legal right Fourthly, the defendant, the possessor of the legal right must
know of the plaintiff's mistaken belief of his rights. If he does not, there is nothing which calls
upon him to assert his own rights. Lastly, the defendant, the possessor of the legal right, must
have encouraged the plaintiff in his expenditure of money, or in the other acts which he has
done, either directly or by abstaining from asserting his legal right. Where all these elements exist, there is fraud of such a nature as will entitle the court to restrain the possessor of the legal
right from exercising it, but, in my judgment nothing short of this will do. 78
This was approved by the West African Court of Appeal in Abbey v Ollennu79 where
the whole passage was quoted. Here, one Fiscian sold and conveyed land to the respondent Ollennu who later built on it in ignorance of the fact that after his purchase and before he built, the appellants (the Abbey family) had sued his vendor Fiscian and obtained
a declaration of title in their favour. After the building was completed, the appellants as
plaintiffs sued the respondent in the Native Court and obtained judgment for recovery of
possession and mesne profits; this was set aside on appeal before the Land Court. The appellants then appealed to the Court of Appeal. The Court affirmed the decision of the
Land Judge that all the five elements existed in the present case which amounted to
fraudulent acquiescence on the part of the plaintiffs.
Trusts and fiduciary principles were adapted for application to cases involving the
management and use of corporate property such as community land over which a chief
or other authority had charge and family property over which the head of the family had
contro1. 80 Agency principles were similarly employed to resolve issues in which individuals acted in a representative capacity on behalf of others. 81
The tension and conflict which existed between customary law and the received English law was not one which lent itself to an easy solution. It was not easy in spite of the
provisions of s 83 of the Suprenle Court Ordinance 1876 to determine whether English
law or customary law should be the applicable law in particular instances. Typical of this
problem were cases in which a native was involved in some relationship with a non-native. In Marshall v Dawson 82 where an action was brought by the father of a native girl
against a whiteman who had a child by the girl, the court held that the case ought to be
decided according to native law. The court awarded damages which included, the maintenance of the girl during pregnancy, medical expenses, and compensation for the loss of
services to the father. In Duncan v Robertson83 the court held, under similar circumstances to those of Marshall v Dawson, in the words of Cleaver J:
I am of opinion that this is a case which should be decided by native law. The appellant is not
known to be and there is no evidence as to his nationality; but admitting that he is a European,
I think that where a man enters into concubinal relations with a native woman, his liabilities
(and rights if any) should be determined by the same rules, whether or not that man is a European or native. The position of the one should be no worse nor better than that of the other.
78 (1880) 15 Ch D 96,105-106.
79 (1954) 14 WACA 567, 568.
80 S K Asante, 'Interests in Land in the Customary Law of Ghana: A New Apparaisal' (1965) 74 Yale Law Journal
848; 'Fiduciary Principles in Anglo-American Law and the Customary Law of Ghana' (1965) 24/nternational
and Comparative Law Quarterly 1144; Property Law and Social Goals in Ghana (Accra: Ghana Universities
Press, (1976) passim, and A K Kudze, 'Accountability of the Head of Family in Ghana' (1987) 31 Journal of
African Law 107.
81 See Attav Bonsra (1952) 24 WACA 149.
82 (1885) Sar FCL 131.
83 (1891) Sar FCL 134.
Recognition of Customary Law
29
Sometimes even where it was clear that the parties intended their relationship to be
governed by English law, non-compliance with procedural requirements thwarted that intention. In De Bordes v De Bordes 84 where a wife petitioned for divorce from her husband on grounds of adultery, although it was shown that the marriage was solemnised in
a Wesleyan church by a Wesleyan clergyman, the court found that the chapel in question
was not licensed as a place where bans could be published or marriages celebrated, and
no registrar was present as required by the English Marriage Acts of 1823 and 1836, held
that the alleged marriage was a nullity and that therefore there was no bond to dissolve.
A decree nisi was however granted on grounds of public policy.
At other times it was not clear from the nature of the relief sought whether the action
was one at common law or customary law. In Kwaku v Addo85 the plaintiff instituted an
action for damages for one thousand pounds for slander. The parties were both Ghanaian
natives. The plaintiff alleged that the defendant said at a meeting that he (the plaintiff)
was one of 'evil-minded citizens' who wrote a letter to the Accra Municipal Council out
of malice and thereby caused some buildings to be demolished in Nungua, a suburb of
Accra. At customary law the remedy for slander lies in making the defendant pay a small
fine, and in addition, making him recant publicly while he is paraded through the town or
village carrying a heavy stone. But the fact that the plaintiff claimed such substantial
damages was construed by the court to be indicative of his intention to seek damages at
common law. 011ennu J said:
The remedy for the wrong (at customary law) will be an order to recant and a small fine by way
of compensation. The claim made in this case is not for such a remedy; it is for damages in the
large sum as one thousand pounds. Obviously that must be a claim made in accordance with
English law which lays emphasis on damages in an action for defamation. I hold that if the
claim is based on native custom, it must fail because the particular custom has not been proved,
and if the claim is based on English law as appears from the nature of the writ, it must also fail
as the words complained of are not actionable per se. 86
The Courts Act 1960 and the Courts Decree 1966 which superseded it were designed
to help in the solution of such problems of conflict. The prevailing law, the Courts Act
1971, s 49 provides:
(1)
Subject to the provisions of this Act and any other enactnlent, the Court when determining the law applicable to an issue arising out of any transaction or situation,
shall be guided by the following rules in which references to the personal law of a
person are reference to the system of customary law to which he is subject or to the
common law where he is not subject to any system of customary law:
Rule 1. An issue arising out of a transaction shall be determined according to the
system of law intended by the parties to the transaction to govern the issue or the
system of law which the parties may, from the nature or form of the transaction be
taken to have intended to govern the issue.
Rule 2. In the absence of any intention to the contrary the law applicable to any
issue arising out of the devolution of a person's estate shall be the personal law of
that person.
Rule 3. In the absence of any intention to the contrary the law applicable to an issue as to title between persons who trace their claims from one person or group of
persons or from different persons all having the same personal law, shall be the persona1law of that person or those persons.
Rule 4. In applying Rules 2 and 3 to disputes relating to title to land due regard
84 (1884) Sar FCL 173.
85 (1957) 2 WALR 306.
86
Jd 310-311.
HAAmankwah
30
shall be had to any overriding provisions of the law of the place in which the land is
situated.
Rule 5. Subject to the foregoing Rules, the law applicable to any issue arising between two or more persons shall, where they are subject to the same personal law,
be that law; and where they are not subject to the same personal law, the court shall
apply the relevant rules of their different systems of personal law to achieve a result
conformable to natural, justice, equity and good conscience.
Rule 6. In determining any issue to which the foregoing Rules do not apply, the
court shall apply such principles of the common law, or customary law, or both, as
win do substantial justice between the parties, having regard to equity and good
conscience.
Rule 7. Subject to any directions that the Supreme Court may give in exercise of
its powers under article 107 of the Constitution, in the determination of any issue
arising from the common law or customary law the Court may adopt, develop and
apply such remedies from any system of law (whether Ghanaian or non-Ghanaian)
as appear to the Court to be efficacious and to meet the requirements of justice, equity and good conscience.
(2)
Subject to the provisions of this Act and any other enactment, such rules of law and
evidence (including the rules of private international law) as have hitherto been applicable in proceedings in Ghana shall continue to apply, without prejudice to any
development of such rules which may occur.
On the misleading appearance of clarity and certainty of these rules Professor Harvey
commenting on similar provisions in the repealed Courts Decree 1966, said:
The use of the concept of personal law in a legal order based primarily on the concept of territoriality of law introduces great complexity. Many of the legal norms of Ghana are applicable
within the geographic boundaries of the nation. The common law and the general systems of
customary law are 'personal' however, and their application depends on the particular persons
involved. Sutprisingly the Courts Decree is entirely silent as to the criteria by which one's 'personallaw' is to be detennined. Presumably this detennination must still be made on the basis of
such ethnic factors as determined the jurisdiction of the fonner Native Courts, that is, the person
of Africa descent? Is his way of life that of a native community? If so of what native community
is he a member? While the legislative draftsmen were able to avoid the use of the word 'native',
the concept of the personal law seemingly commits the courts to criteria reminiscent of the colonial period in answering the choice of law questions. 87
It will be seen that English law has impinged on African customary law in two ways:
(i) in its modifying influence on those parts of indigenous customary law which have
so far survived the onslaught of British legal and cuI tural impacts;
(ii) in its role of filling in the gaps (creative role) and supplying the deficiencies of indigenous law and usage brought about by new economic and commercial values,
and national development values.
The first category concerns such phenomena as changes in property law (for example,
corporate and inalienable ownership becoming gradually individual and alienable), the
growth of landlord and tenant relationships as rents become payable in lieu of traditional
dues, the increasing through gradual break-up in the customary ties of family and lineage
with a resultant narrowing in the individual's sense of obligation towards his kith and kin.
The second category embraces the introduction of criminal law and procedure, commerciallaw (banking, insurance, bills of exchange, corporations) and industrial law regulat87 Harvey, supra note 67, 599, 600.
Recognition of Customary Law
37
ing the relationships of those who control capital and the means of production and wageearners - originally an unknown group in indigenous society.
(iv) Codification
The popularly held opinion is that codification has the potential of ossifying the law, thus
arresting development by adaptation. Professor Ajayi for example said:
Codification of Customary law now might on the one hand, minimize if not bar altogether any
chances of progressive development to meet the ever changing conditions in society and thus
amount to an attempt to make the regulations of human conduct in modem life subject to a kind
of mummified ancient law. It might on the other hand, (as codification usually involves alterations in existing law) lead to another of those futile attempts to make people good by Act ofParliament.88
It needs to be remembered, however, that a great number of English statutes have simply attempted to codify the existing common law or to update the common law in the
light of changing conditions. 89 In the Civil law countries additions are always made to the
Civil Code when the need arises to make it conform to prevailing social circumstances.
Should customary law remain the sole exception in a world where legislation is becoming more and more the rule rather than the exception? An alternative position is that restatement of the law should be embarked upon. In the modern world of advanced
communication systems, computers etc there is no better way of preserving information
than to have matters recorded in one form or another.
II. The reference to the Australian Law Reform Commission
In Australia such recognition as the legal system initially accorded Aboriginal native law
amounted to no more than the power in individual judges to exercise judicial discretion
when dealing with Aboriginal citizens, eg taking into account for purposes of sentencing
an accused person's Aboriginal background. 9o In February 1977, the then Federal Attorney-General Mr RJ Ellicott QC referred to the Australian Law Reform Commission the
question:
Whether it would be desirable to apply either in whole or in part Aboriginal customary law to
Aborigines, either generally or in particular areas or to those living in tribal conditions only.91
88
'The Future of Customary Law in Nigeria' in The Future of Customary Law in Africa (Leiden: Leiden
University Afrika Institute, 1956), 42, 66.
89 See, for example, the Sale ofGoods Act 1893 (56 & 57 Vict c 7); Bills ofExchange Act 1882 (45 & 46 Vict c
61); and the Law ofProperty Act 1925 (15 & 16 Geo V). But note the African Law Restatement Project of the
School of African and Oriental Studies, University of London. A step towards codification?
90 See M C Kriewaldt, 'The Application of the Criminal Law to the Aborigines of the Northern Territory of
Australia' (1960) 5 University of Western Australia Law Review 1. Typically, the Queensland Community
Services (Aborigines) Act 1984 which repealed the Aborigines Act (1911) (Qld) which confers jurisdiction to
deal with Aborigines in a Magistrates Court limits the power to hear and determine:
(a) matters of complaint that are breaches of the by-laws applicable within its area;
(b) disputes concerning matters within its area that are not breaches of the by-laws applicable within its area
or of any law of the Commonwealth or the State; and
(c) matters committed to its jurisdiction;
and (the court) shall exercise that jurisdiction referred to in provision (a) in accordance with the appropriate
by-law of the community within its area and that jurisdiction referred to in provision (b) in accordance with
the usages and customs of the community within it~ area.
91 Australian Law Reform Commission Report No 31, vol 1 (1986),3. The Report covers 1000 pages and is
contained in two volumes. The Report and the Draft Bill cover only the issues of Aboriginal customary law
concerning marriage, succession and inheritance, adoption, criminal procedure (prosecution evidence and
sentencings) in respect of Aboriginals. The all-important land issue is not covered, apparently because the
Woodward Aboriginal Land Rights Commission Report, Canberra, 1973 had dealt with that issue, seeALRCR,
No 31, vol I (1986) 7.
32
HAAmankwah
It must have become evident that this question which had been debated since the foundation of the first Australian colony was in need of resolution, and that time was running
out. Such opposition as was offered to the proposition came from conservative groups
who were not concerned with the injustice inherent in the application of alien law to the
indigenous people of Australia, but were concerned only with the preservation of the
status quo. Much issue was taken with the 'heresy' of establishing a plural legal system;
the fact that the present system is working well and should not be disturbed, that Aborigines were a minority most of whom preferred the certain protection of the common law,
that social change and mobility might have led to the extinction of the system or its adulteration and transformation from its previous pristine and unsullied form into a modem
incomprehensible hybrid. 92 It is strange that people whose legal tradition is steeped in the
common law should forget that as was the case with the 'primitive' stage of the common
law which was based on 'local customs' and gradually metamorphosed into the 'common
law' only after consistent application of the principles and doctrines throughout the realm
by the royal itinerant justices, so also customary law should be seen first as the initial
stage of a system of law with potential for development and expansion. 93
Despite the Law Reform Commission's favourable recommendation in 1986 that
Aboriginal customary law was a reality and was in need of legal recognition with an accompanying draft Bill for that purpose, to date no action has been taken to implement the
Commission's recommendations. It would seem that there is not enough political will to
see the matter through. Australia's political leaders seem not to appreciate that there is
some urgency about the matter. The High Court's decision in the Mabo94 case amounts to
an implied legal recognition of Aboriginal customary law. What the executive and legislative arms of government have been shying away from, the judiciary has accomplished
by one stroke of judicial legislation.
Laudable as this initiative is, in its concern to leave as much land as possible outside
the regime of customary law, the Court has created several exceptions to the application
of the novel doctrine of the survival of native title upon settlement, the most contentious
being that contained in point seven of Brennan }'s nine point summary of the common
law of Australia with respect to land titles. It reads:
7. Native title to an area of land which a clan or group is entitled to enjoy under the laws and
customs of an indigenous people is extinguished if the clan or group, by ceasing to acknowledge those laws and (so far as practicable) observe those customs, loses its connection with the
land or on the death of the last of the members of the group or clan. 95
With the greatest respect, it is submitted that it is possible for a people to abandon their
land if the abandonment is accompanied by animus diserandi et relinquandi;96 but their
custom does not vanish until the people (tribe, clan) become extinct. Like von Savigny of
the Historical School it is asserted rather:
In the earliest times to which authentic history extends, the law will be found to have already
attained a fixed character, peculiar to the people, like their language, manners and constitution.
Nay, these phenomena have no separate existence, they are but the particular faculties and tendencies of an individual people inseparably united in nature, and only wearing the semblance of
distinct attribute to our view. That which binds them into one whole is the common conviction
of the people, the kindred consciousness of an inward necessity, excluding all notion of an ac92 ld ch 8. 86-94.
93 See generally W S Holdsworth. A History ofEnglish Law (8th ed, London: Methuen, t 978) passim.
94 (1992) t 75 CLR 1.
95 ld 494-5.
96 See the Ghanaian cases, Kwao II v Ansah II (1975) 2 GLR 176, Mansah v Asamoah (1975) t GLR 225. In
Australia, the High Court applied the same principle in resolving the issue whether an easement of right had
been abandoned or not: Treweeke v 36 Wolseley Road Pty Ltd (1972) 128 CLR 274.
Recognition of Customary Law
33
cidental and arbitrary origin ... Law grows with the growth and strengthens with the strength of
the people, andfinally dies away as the nation loses its nationality ... Law is originally formed
in the manner, in which, in ordinary but not quite correct language customary law is said to have
been formed; ie that it is first developed by custom and popular faith, next by jurisprudence everywhere, therefore, by internal silently operating powers not by the arbitrary will of a lawgiver. 97 •
In this regard Toohey J came much closer to the truth when he said:
But modification of traditional society in itself does not mean traditional title no longer exists
... An indigenous society cannot, as it were, surrender its rights by modifying its way of life.98
Deane and Gaudron JJ would seem to concur with the view of Toohey J. They said:
The traditional law or custom is not, however, frozen as at the moment of establishment of a
Colony. Provided any changes do not diminish or extinguish the relationship between a particular tribe or other group and particular land, subsequent developments or variations do not extinguish the title in relation to that land.
The rights of an Aboriginal tribe or clan entitled to the benefit of a common law native title
are personal only. The enjoyment of the rights can be varied and dealt with under the traditional
law or custom. The rights are not, however, assignable outside the overall native system. They
can be voluntarily extinguished by surrender to the Crown. They can also be lost by the abandonment ofthe connection with the land or by the extinction ofthe relevant tribe or group. It is
unnecessary, for the purposes of this case, to consider the question whether they will be lost by
the abandonment of traditional customs and ways. Our present view is that, at least where the
relevant tribe or group continues to occupy or use the land, they will not.99 •
In the Australian context, conventions such as 'pay back' involving homicide, ie
spearing to death the culprit who was subject to this kind of traditional punishment; sorcery involving coronial divination designed for the revelation of the identity of the 'murderer' of a deceased Aboriginal person while the deceased was laid in state in 'sorry
camp' where the mourners were sequestered from the rest of the community; compulsory
initiation of youth and some other ritual ceremonies, would require careful scrutiny with
a view to determining their continued observance by Aborigines today or their consignment to limbo.
A whole world separates Aborigines of Australia from natives of West Mrica. For instance, while the Ashantis of Ghana, and the Yorubas of Nigeria are cephalous in terms
of their social organisation and practiced sedentary agriculture, Aboriginal people of
Australia are acephalous and nomadic. Chieftaincy and the existence of central authority
in West Africa aided the formation of a system of customary law. The absence of a central
authority in Aboriginal society capable of uniting clans and people and offering them
leadership meant loyalty was a localised affair usually to a family, and the imposition of
'kings' on the Aboriginal people did not change the picture. Further, in West Africa,
chieftaincy was propped up by the indirect rule philosophy, a philosophy attributed to
Lord Lugard a former Governor of the former British West African colony of the Gold
Coast.
It was believed at the time that it was wrong to extend to Black Africa the system of
parliamentary government which the Donoughmore Commission of 1927 recommended
for Ceylon, the substantial majority of Africans being illiterate and not even remotely familiar with Western European modes of 'civilized' existence. Consequently Africans
could hardly be expected to accommodate the operating of a Western type of parliamentary government. The policy to adopt, therefore, was to follow the principle of Indirect
97 See von Savigny, Of the Vocation of our Age for Legislation and Jurisprudence, reproduced in Morris, The
Great Legal Philosophers, supra note 27 (emphasis added).
98 (1992) 175 CLR 1, 192.
99 Id 110 (emphasis added).
HAAmankwah
34
Rule by which the indigenous political institutions of a colony would be adopted to the
structure of Crown Colony government, which government would serve as the general
guardian of the well-being of the natives. It was hoped that Indirect Rule would make it
possible for 'the necessarily autocratic exercise of power by the colonial government' to
be 'tempered and transmitted indirectly, through well understood familiar organs of local
administration' .100
In the case of Australia, however, Trigger says:
The imposed office of kingship was conceived of as a form of leadership by Whites, and seen
as contextually confined brokerage by Aborigines. From the perspectives of both employers
and bureaucrats, establishing kings was an attempt to systematise necessary dealings with Aboriginal people. It cannot be regarded as any real attempt at incorporating certain individuals into
the ruling colonial apparatus, and thereby legitimating White rule. Kings did achieve influence
among other Aborigines through regulating their access to desired commodities, and through
associated high status. However, while kings were perceived as being able to draw on powerful
Whites for support, they were not seen to be part of the ruling colonial apparatus. They did not
engender broad Aboriginal attribution of legitimacy to the structures and processes of White
domination. lOl
However, all traditional or indigenous societies share certain common values among
which are the people's attachment to the past, especially ancestors, and the inseparability
of land from traditional norms which makes the African situation relevant to the Australian situation.
One of the perceived difficulties inherent in the application of Aboriginal customary
law is the claim that it lacks substance, and particularly that it is shrouded in clouds of
mystery.102 Much has been said about the secrecy which some Aboriginal communities
maintain in respect of their tribal customs. No doubt this is the result of the fact that in
indigenous societies there is a continuum between religion and law and secrecy ensure
the protection of custom from outside influences. Admittedly this could pose enormous
problems in the area of the law of evidence. However, this should not necessarily be regarded as an insurmountable obstacle to the administration of customary law. In West Mrica, for example, ideas about land are rooted in religious and sacred beliefs. Most tribal
groups share a common existence. The land has been the symbol of the continuity of the
community and in this lies a good deal of the religious significance of land. Ancient Ghanaians, for example, had good cause, no doubt, to view land with religious awe.
Among the Talensi and Dagomba tribes of the Northern and Upper Regions of Ghana,
land was believed to belong to the earth spirit who was said to be the giver of life and fertility. Cardinal said:
The tindana has therefore become what is to all intents and purposes a high priest He is between (the people) and their local deity; he is on behalf of the latter the caretaker of the land, for
he alone can propitiate the earth when blood is wantonly shed or vile crime pollutes the purity
of the life-giving soil.
It will be seen that, the chief is as regards the land no better than his subject ... today, as the
authority of the Chief, ie the political head of the people, increases, so does the tindana's wane
... ; chiefs command the people not the land. 103
And Lord Hailey also said:
The principal mediator between the people and the Earth God was, the tendana a priest holding
a hereditary office, who lived the life of a recluse in communion with the god and the ancestral
100
101
102
103
D Kimble, A Political History ofGhana (Oxford: The Clarendon Press, 1963) ch 12.
D S Trigger, Whitefella Comin' (Cambridge: Cambridge University Press, 1992),54.
Australian Law Reform Commission Report No 31, supra note 86,82.
Cardinal, Natives of the Northern Territories of the Gold Coast (London: George Routledge & Sons, 1921),
6(}"61.
Recognition of Customary Law
35
spirits, and had considerable control over the lives of the people in his particular tengari area.
Since the tendana of one area could not propitiate the Earth God or ancestral spirits of another,
the area for which a tedana was responsible came to be recognised as a land unit, with its own
established boundaries. The land itself was regarded not as the property of a family or other
unit, but of the Earth God, the Tendana was its trustee, and was the authority in any issue such
as the allocation of the bush for cultivation. 104
Among the Ga-Adamgbe of Southern Ghana land was said to be the property of the
lagoon spirits. lOS Among the Ashanti, land was identified with a supernatural female the Earth Goddess called Asaase Yaa. 106 Dr Busia said: 'The Ashanti believed that the
Earth had a power of its own which could be helpful if propitiated and harmful if neglected. This power in the Earth was conceived as a female principle, Asaase Yaa (Earth)
whose natal day is Thursday' .107 The Earth was regarded as the sanctuary of the souls of
the departed ancestors. This is the explanation for the restraint on the sale of land, the native maxim being, 'Land belongs to a vast family of whom many are dead, a few are living and countless hosts are still unborn' .108 Writing on the Ewe, Dr Kludze commented:
It (ie the earth) has decreed certain taboos and avoidances, failure to obseIVe which is visited
with a sanction in the fonn of an incurable disease leading to an inevitable death. To swear, for
instance, by the earth or to strike or even touch the soil with the palm or finger or swallow a bit
of the soil, is a mode of proof of one's truthfulness, for to forswear in this manner is believed to
mean a certain death to him who utters the falsehood. In case of such false swearing or violation
of the earth's taboo, the offence may be purged by propitiating the earth with appropriate sacrifices involving a sheep or goat or a fowl with drinks. 109
In Ghana therefore it is generally believed that the earth, as an abstract power, is capable of being placated with offerings or sacrifices to bestow its blessing in the form of
increased fertility. Thus in the event of prolonged drought or bad harvest, it is usual, particularly among the tribes of Northern Ghana and the Ewe, to make sacrifices to the
Earth; the rain makers are also usually called in aid to ensure a good harvest. For the same
reason at the annual harvest of the first crops of the fields, special rituals are performed
and celebrations held to thank the Earth God or Goddess and the ancestral spirits for their
bounty, and to pray for the prosperity of the coming years. This is the origin and the significance of the annual Akan Odwira, the Ga Homowo and the Ewe Tedudu festivals in
Ghana.
In short, to put it in the words of Dr Asante:
Concepts of land were ... bound up with the cult of ancestral worship. The cult is predicated
upon the belief that the departed ancestors superintended the earthly affairs of their living descendants protecting them from disaster and generally ensuring their welfare, but demanding in
return strict compliance with time-honoured ethical prescriptions. Reverence for ancestral spirits dictated the preservation of land which the living shared with the dead. In effect land was an
ancestral trust committed to the living for the benefit of themselves and generations unborn.
104 W M H Hailey, Native Administration in the British African Territories, vol III (London: HMSO, 1951),
159-160 quoted in David Apter, Ghana in Transition (rev ed, New York: Athenium Press, 1968),54.
105 Manoukian, Akan and Ga-Adangbe Peoples of the Gold Coast (London: HMSO, 1950), 86; Field, Social
Organisation ofthe Ga People (London: HMSO, 1940).
106 R S Rattray, AshQnti (Oxford: The Clarendon Press, 1923), ch 21.
107 K A Busia, The Position ofthe Chief, supra note 24, 40.
108 011ennu attributed this to the late Nana Ofori Atta I: see his Principles ofCustomary Land Law (London, 1962),
4. Kom attributes it to a Nigerian Chief: see 'Unlawful Disposition of Family Land Void orVoidable' (1967)
4 University ofG1u:lna Law Journall11. See also Bentsi-Enchill, Ghana Land law (London: Sweet & Maxwell,
1964), 24, and Meek, who attributes it to Chief Gboteyi, the Elesi of Odogbolu who gave evidence before the
West African Land Commission (1912). See Land Tenure and Land Administration in Nigeria and the
Camerouns (London: HMSO, 1957), 113. Also Ola, Town and Country Planning Law in Nigeria (lbadan:
Oxford University Press, 1977), 9.
109 Ewe Law of Property (London: Sweet & Maxwell, 1973),105.
HAAmankwah
36
Land was the most valuable heritage of the whole community and could not lightly be parted
with. ttO
In Moslem dominated Northern Nigeria, land was conceived as the property of Allah.
From this conception of land flows the idea that God being deity of justice, the wealthy
should pay tax on their land for the maintenance of the poor. This tax was called 'poor
due' , ie what was due to the poor. Land per se, therefore, is not the subject of taxation.
Again since land belongs to Allah, on compulsory acquisition of land, the occupant is not
entitled to compensation. 111 Yet in West Africa the ceremonial aspects of law have been
successfully separated from the hard corpus of law and do not conflict with its judicial
administration. Besides there is no reason why legislation cannot be used to proscribe
such customs as are generally regarded as barbaric or odious, as 'panyarring' and human
sacrifice practised in the then Gold Coast, now Ghana. 112
Ironically in Australia the law recognises (albeit grudgingly) the link between customary law and indigenous religious ideas especially ancestral worship. The Woodward
Commission Report113 in recommending Aboriginal right to make a land claim to unalienated Crown land outside town or city limits restricted such a right to traditional Aboriginal owners who constitute a 'local descent group'. The Aboriginal Rights (Northern
Territory) Act 1976 defines a local descent group as a 'group of Aboriginals who have
common spiritual affiliations to a site on the land, being affiliations that place the group
under a primary spiritual responsibility for that site and for the land, and are entitled by
Aboriginal tradition to forage as of right over that land' .114 The Report itself stated:
A local descent group is associated with a stretch of country within which special sites are located. Possession of that country is validated through mythoritual statements. The sites within
it contain the deathless and eternal spiritual manifestations of the mythic characters: just as the
members of such a unit are living manifestations of those land-based (spiritually speaking)
mystic beings. lts
The Aboriginal Land Act 1991 (Qld) defines Aboriginal tradition as the 'body of tradition, observances, customs and beliefs of Aboriginal people generally or of a particular
group of Aboriginal people, and includes any such traditions, observances, customs and
beliefs relating to particular persons, areas, objects or relationships.' 116
Conclusion
The blending of Aboriginal customary law and the common law could be productive of
some felicitous consequences among which could be the evolution of a peculiarly Australian common law - the underlying law. It? The same claim is made as was made in
respect of the codification of African customary law, ie that the law should be allowed to
develop without attempts to crystallise it at the moment by codifying it. A series of restatements would be quite apposite at this time, and the current effort of social scientists
110 Asante, supra note 80, 852.
111 Mahmud, 'Land in Accordance with Islanlic Law and Decree' in Report ofa National Workshop on the Land
Use Act (Lagos, 1982), 23.
112 This was provided for in the Bond of 1844entered into between the British authorities and 'some Fanti Chiefs'.
See W Claridge, A History ofthe Gold Coast andAshanti (London: Murray, 1915), 4.
113 A E Woodward, Aboriginal Land Rights Commission, 2nd Report, April 1972, 2.
114 Section 50(1)(a) and 50(3). For a criticism of this legal recognition of the link between the supernatural and
Aboriginal law, see D G Stewart, Kakadu Conservation Zone Inquiry (Canberra: AGPS, 1991).
1151d21.
116 Section 202.03.
117 See The Constitution ofPapua New Guinea 1975, ss 20-21 and Schedule 2. Australia played a crucial role as
the administering authority at the time of independence in the production of this Constitution. The underlying
law derives from doctrines of the received common law and customary law.
Recognition of Customary Law
37
to record the traditions and law of groups of Aboriginal country folk is a step in the right
direction. 118
No doubt the High Court of Australia has by the Mabo decision redeemed Australia's
image as a country committed to human rights ideals. As this author indicated a few years
ago:
The Australian judiciary continues to draw on its blinkers refusing to take cognizance of all the
new developments around the world on the question of native title: see the recent decisions of
the Supreme Court of Canada in Calder v A-G for British Columbia [1973] DLR (3rd) 34 and
Guerin v R (1985) DLR (4th) 336. A similar position was taken by the IC] in its Advisory Opinion on the Western Sahara (1975) IC] Rep 39. 119
That image has disappeared, and whether Australia will attempt a comprehensive political settlement as Canada did after the Calder case or leave the matter to ad hoc judicial
determination remains to be seen. With its Native Title Act 1993 the Federal Government
has moved to legislatively implement the Mabo decision and the establishment of the
Joint Parliamentary Committee on Native Title 120 to advise the Government on what
course it should take may be a step in the right direction. The Committee's work will not
amount to much if it does not include an examination of customary law. Such a course
would further enhance the observance of human rights in Australia. 121
118 See, for example, K Maddock 'Aboriginal Customary Law' in P Hanks and B Keon-Cohen (eds) Aborigines
and the Law (Sydney: George Allen & Unwin, 1984),212; R Tonkinson, 'One Community, Two Laws: Aspects
of Conflict and Convergence in a Western Australian Aboriginal Settlement' in B Morse and G Woodman
(eds) Indigenous Law and the State (Netherlands: Foris, 1988), 395. The Australian Institute of Aboriginal
Studies holds in its library the largest single collecti<;>n of archival material in existence on Aboriginal and
Torres Strait Islander culture.
119 H A Amankwah, Book Review, (1988) 11 Adelaide Law Review 488,489.
120 Pt 12, ss 204-207.
121 See Art 1(1), International Covenant on Economic Social and Cultural Rights, GA Res. 2200 (XI) UN DOC.
GAOR XXI Supp. 16 (A16316), 49-52.