This paper unravels the concept of judicial establishment of customary law in Anglophone Cameroon, specifically analysing the role played by State courts in the ascertainment of, or judicial establishment of customary law. The paper draws inspiration from the other countries in sub-Saharan Africa, to strengthen the arguments made herein.
The paper adopts the qualitative research methodology, based on the doctrinal and content analyses of primary and secondary sources of data. The paper argues that the concept of judicial establishment of customary law is a very vital concept, which has over the years been plagued with a multiplicity of conundrums regarding the issue. The paper further argues that the process of
judicial establishment has a nexus with another process known as the judicial regulation of customary law, which requires that a custom passes the duality tests of repugnancy and incompatibility before being incorporated/institutionalised in the official legal system. Finally, the paper reveals that the absence of professionalization in the delivery of customary justice and the essentialist articulation of customary law are some of the factors which militate against the realistic existence and enforcement of customary law in Anglophone Cameroon.
Table of Contents
1.1 INTRODUCTION
1.2 RESEARCH METHODOLOGY
1.3 OVERVIEW OF THE CONCEPT OF JUDICIAL ESTABLISHMENT OF CUSTOMARY LAW
1.4 CASE LAW JURISPRUDENCE ON THE JUDICIAL ESTABLISHMENT OF CUSTOMARY LAW
1.4.1 The Case of Angu v. Attah (1916)
1.4.2 The Case of Liadi Giwa v. Bisiriyu Erinmilokun (1961)
1.5 CRITICISMS OF THE JUDICIAL ESTABLISHMENT OF CUSTOMARY LAW
1.6 CONCLUSION
Research Objectives and Themes
This paper examines the process and criteria of the judicial establishment of customary law within State courts in Anglophone Cameroon, analyzing how judicial recognition serves to institutionalize customary rules and evaluating the associated legal implications and scholarly criticisms.
- The judicial ascertainment and recognition of customary law by State courts.
- The doctrine of judicial notice as a legal mechanism for validating custom.
- Jurisprudential precedents shaping the proofs and requirements for customary norms.
- The divergence between "sociologists' customary law" and "lawyer's customary law."
- Critical perspectives on the institutionalization of customs within official legal systems.
Excerpt from the Book
1.4.1 The Case of Angu v. Attah (1916)
The principle of judicial establishment of customary law was clearly stated by the Privy Council in the landmark Gold Coast case of Angu v. Attah. The Privy Council in this case stated that:
“A rule of customary law 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.”
This view of indigenous customary law became known as the rule in Angu v. Attah. It is worth noting that this view of customary law was not only disliked by jurists in the Gold Coast (Ghana), but it was also vehemently opposed by politicians and nationalists. Dr Kwame Nkrummah strongly inspired African jurists and nationalists to quickly find a way to reverse what he described as “Travesty of local custom” which had been made foreign in its own land of origin. In his address at the formal opening of the Accra Conference of Legal Education of the Ghana Law School on 4th January 1963, Dr Kwame Nrummah said: “African law in Africa was declared foreign law for the convenience of colonial administration which found the administration of justice cumbersome by reason of the vast variations in local and tribal customs. African law had to be proved by experts. But no law can be foreign in its own land and country, and African lawyers, particularly in the independent African states must quickly find a way to reverse this judicial travesty.”
Summary of Chapters
1.1 INTRODUCTION: This chapter introduces the role of State courts in stabilizing society through the adjudication of customary law, defining the concept of judicial establishment as a process of recognition.
1.2 RESEARCH METHODOLOGY: This section details the qualitative and doctrinal approach utilized, focusing on desktop-based research and the analysis of legal statutes and documents.
1.3 OVERVIEW OF THE CONCEPT OF JUDICIAL ESTABLISHMENT OF CUSTOMARY LAW: This chapter provides a theoretical framework for how customary norms are validated and institutionalized by courts, referencing statutory requirements and the burden of proof.
1.4 CASE LAW JURISPRUDENCE ON THE JUDICIAL ESTABLISHMENT OF CUSTOMARY LAW: This chapter examines significant legal precedents, specifically analyzing the "rule in Angu v. Attah" and its impact on how customary law is proven in court.
1.5 CRITICISMS OF THE JUDICIAL ESTABLISHMENT OF CUSTOMARY LAW: This chapter critiques the process of judicial establishment, highlighting the divergence created between socially practiced norms and those recognized by the state legal system.
1.6 CONCLUSION: This final chapter synthesizes the role of the judiciary in the validation of customary law and stresses the necessity of the repugnancy and incompatibility tests.
Keywords
Customary Law, Judicial Establishment, State Courts, Anglophone Cameroon, Legal Pluralism, Judicial Notice, Evidence Ordinance, Institutionalization, Repugnancy Test, Incompatibility Test, Jurisprudence, Adjudication, Legal Doctrine, Sociologists Customary Law, African Law.
Frequently Asked Questions
What is the core subject of this research paper?
The paper investigates the concept of "judicial establishment of customary law," focusing on how State courts in Anglophone Cameroon identify, validate, and incorporate customary norms into the official legal framework.
What are the primary thematic fields covered?
The study covers legal history, judicial methodology, the relationship between colonial-derived legal systems and indigenous customs, and the scholarly criticism of how customary law is institutionalized.
What is the central research objective?
The primary aim is to examine the practice and process by which State courts recognize and enforce customary law, specifically analyzing the conditions under which a custom becomes a legally binding norm.
Which scientific methodology does the author employ?
The author uses a qualitative research methodology, specifically a doctrinal approach, which involves the desk-based analysis and interpretation of legal statutes, court documents, and academic commentaries.
What topics are discussed in the main body of the work?
The main body covers the theoretical overview of the concept, the statutory requirements for proving custom, an analysis of landmark case law like Angu v. Attah, and an extensive critique of the formalization of custom.
Which keywords best characterize this research?
Key terms include Customary Law, Judicial Establishment, Anglophone Cameroon, Legal Pluralism, Judicial Notice, and Institutionalization.
What is signified by the "rule in Angu v. Attah"?
It refers to the judicial precedent established by the Privy Council that requires customary law to be proven by expert testimony or frequent usage in courts until it becomes notorious enough for judicial notice.
How does the author define the "divergence" in customary law?
The author, referencing Professor Woodman, describes a gap between "sociologists' customary law" (socially accepted norms) and "lawyer's customary law" (the version of custom enforced by the State court).
What role do the "repugnancy and incompatibility tests" play?
These tests act as a filter through which a custom must pass, ensuring it does not violate principles of natural justice, equity, or good conscience, nor conflict with existing statutes, before it can be enforced.
How does the 2011 Nigerian Evidence Act impact the judicial establishment process?
The Act creates a single requirement for the judicial establishment of a custom, stating that it can be judicially noticed once it has been previously adjudicated upon by a superior court.
- Arbeit zitieren
- Akoted-Daniel Oben (Autor:in), 2023, Judicial Establishment of Customary Law and its Manifestations from Anglophone Cameroon, München, GRIN Verlag, https://www.grin.com/document/1436515
