Since the day when, in my first year of teaching, I found myself trying to explain the feudal origins of trover to a puzzled class of Sudanese students, I have had occasional flickers of doubt whether the English law of torts has been one of Britain's most appropriate colonial legacies. One journey down the Lagos-Ibadan road should suffice to raise questions about the suitability of the common-law action for negligence as an instrument for compensating for or reducing road accidents in Nigeria; while the amount of damages awarded in some East African personal injuries actions, like the Mercedes Benz, contrasts sharply with the general living standards of the vast majority of the local population. Nevertheless the distinction between libel and slander, and between aggravated and punitive damages, and even some survivals from the Year Books have found their way into the law reports and treatises of some African jurisdictions. The elegant generalities of civilian doctrines of extra-contractual obligation seem, not surprisingly, to have made the transition to warmer climates more smoothly.

The trend of some Nigerian decisions where the defence of honest claim of right is raised is disturbing and shows a lack of proper appreciation of its scope. The defence is contained in section 23 of the Criminal Code which provides as follows:

“A person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud”.

This defence applies to all offences relating to property: stealing, robbery, demanding property with menaces, malicious damage to property etc. But it features more in theft offences than in other offences relating to property.

When Lord Denning made his Report on Legal Education in Africa in 1961,2 there were very few African lawyers in Kenya, Tanganyika and Uganda.3 During the 1960's the number of African lawyers in these countries rapidly increased. The public sector has been largely Africanized, but the private sector of the profession remains predominantly non-African.4 The 1970's will see an even more rapid increase in the number of African lawyers.5 This increase and the departure of numerous non-African lawyers,6 will bring about almost complete Africanization of the profession by 1980.7

(I) Si les États de l’ex-Afrique française ont fait preuve depuis leur indépendance d’une intense activité législative dans le domaine du statut personnel, ils ont été beaucoup plus réservés en ce qui concerne le droit des obligations et singulièrement celui de la responsabilité civile extra-contractuelle. À notre connaissance, en effet, seuls deux pays ont jusqu’ici pris l’initiative d’élaborer en cette matière une législation nouvelle. Il s’agit de Madagascar, d’une part, du Sénégal, d’autre part, qui, à peu près à la même époque, ont promulgué un Code des obligations.

On October 1st, 1972, the Minister of Justice of the Democratic Republic of the Sudan constituted a committee consisting of 25 leading members of the Sudanese Legal Profession for the purpose of “re-examining fully the Sudan Civil Code, 1971, the Civil Procedure Code, 1972, the Civil Evidence Code, 1972, and the draft Penal and Commercial Codes”. The Committee was requested to recommend to the Minister whether all or any of the aforementioned codes should be abrogated, temporarily suspended (if already in force), kept as it is, or amended. The Committee was asked to submit its findings and recommendations as soon as possible and was authorised “to receive evidence from experts as well as from those directly connected with the application of the law”.

Academic disputation continues as to whether Nigerian courts are bound to apply English decisions subsequent to 1900. From a practical point of view, however, such decisions are treated as authorities which ought to be followed unless there is strong reason to the contrary. In the area of tort, only when the question of damages has arisen have judges in Nigeria shown conspicuous signs of independence. For practical purposes, therefore, one may treat the Nigerian law of tort as being identical with that of England except where the latter has been modified by statute. The tort of negligence has, of course, been little affected by legislation in England. The most important legislative change, relating to apportionment of damages in contributory negligence cases, has been adopted in all parts of Nigeria. In the Northern States, however, the doctrine of common employment is still in force, and only Lagos has legislation based on the Occupiers' Liability Act, 1957.

The Republic of the Sudan, born on January 1st, 1956, is, like many other independent states in Africa, a political, and not an ethnic unit. It ranks high among the countries with extraordinary ethnic and cultural diversity. Besides the Arab tribes which constitute 39% of its population, there are numerous non-Arab tribes of several racial and linguistic families.

Civil liability can be defined as “the obligation attaching to an individual or his group to make good damage caused to another by himself, by persons related to him, or by animals or things of which he has the ownership or custody”. In the first place liability is objective, for which the only requisite is to prove the harm suffered by the victim. Fault, or rather the mental state of the person liable, does not enter into the matter except at the stage when it becomes necessary to determine the measure of damages: damages will vary in accordance with the degree of “wrongful intent” of the defendant. While it does not take fault into consideration, customary law, on the contrary, considerably extends the notion of actionable damage: harm of any kind whatever can give rise to a right to compensation. In the result, there is no question of the chain of causation between the damage suffered and its author; the only question is to decide who shall pay the compensation payable in respect of such damage.

Oral data are an integral part of the raw material used in anthropological research on social organization. They have also been heavily relied upon in the study of disappearing American Indian societies and, more recently, in the reconstruction of African history. By contrast, with some striking exceptions, they are in danger of being neglected in the anthropological study of law. Oral data have only recently been employed in Frenchsponsored studies in this field. In the English-speaking world, the dominant theme of dispute settlement and its apparent corollary, the case method, may leave little room for the systematic collection and the careful analysis of oral data.

The purpose of this article is to review the application of the English law of defamation in the East African countries (Uganda, Kenya, Tanzania) and to assess the possible contribution of the Kenya Defamation Act, 1970.

The case of Oguche v. Iliyasu & Ors. raises several interesting issues in the law of the Northern States of Nigeria, in particular the definitions of “native” and “non-native” and the powers of the Commissioner under the Land Tenure Law, the relationship between title to land and the rules governing trespass to land, the protection afforded by the Public Officers (Protection) Law and the award of exemplary damages for oppressive acts by public officers. The facts of the case will be given first, followed by a summary of the judgment and comment on the issues raised.

En République du Zaïre, la conscience de la nécessité de remettre en honneur les valeurs traditionnelles et de puiser aux richesses de la culture africaine, la volonté de “recourir à l’authenticité” comme on a coutume de dire, est actuellement très forte. Cela laisse supposer que la réforme du droit civil, récemment mise sur le chantier, sera marquée par la volonté de revaloriser la tradition.

Since the British established the first statutory native courts in Nigeria, attempts have been made to reserve for such courts original civil jurisdiction in customary law matters which were considered to be within the peculiar knowledge of traditional authorities, who, consistently with the indirect rule system, normally manned the tribunals. The first legislative measure reserving original civil jurisdiction for the statutory native courts was the Protectorate Courts Ordinance, 1933 which established a High Court for that part of the Colony and Protectorate of Nigeria known as the Protectorate, and provided that the High Court was not to exercise original jurisdiction in cases raising any issue as to title to, or interest in, land and which were subject to the jurisdiction of a native court, except where the Governor in Council directed otherwise or where the case was transferred from a native court under the provisions of the Native Courts Ordinance, 1933. Thus matters involving land tenure with respect to which native courts had jurisdiction were regarded as. customary law matters which could best be dealt with by traditional courts or courts having a traditional setting.