EASTERN AFRICA "wo | LAW REVIEW™ ; A Journal of Law and Development L Vol. 9 No. | 1975EASTERN AFRICA LAW REVIEW ‘A Journal of Law and Development Editor Pheroze Nowrojee Associate Editors David Anyoti Paschal B. Mihyo ‘All correspondence dealing with editorial matters should be addressed to: The Editor, Eastern Africa Law Review Faculty of Law University of Dar es Salaam P.O. Box 35093, Dar es Salaam, Tanzania. Business Address: Kenya Literature Bureau, P.O. Box 30022, Nairobi, Kenya. Each issue of Eastern Africa Law Review will contain approxim- ately 110 pages. Three issues will form one annual volume. Subscription, including postage will be: Within Africa: Shs. 50/- Outside Africa: USS17 The journal will be kept by the University bookshops in East | Africa and can be bought direcily from them. }STATUTES OF GENERAL APPLICATION IN EAST AFRICA JOHN ERICKSON* and ANDREW LYALL** INTRODUCTION Between the mid-nineteenth and early twentieth centuries, there appeared in the laws of most of the new British dependencies in Africa, either by Order in Council or by local enactment, a provision by which the High Court (or the Supreme Court) was given the power to administer, subject to the other written laws in force in the dependency and only so far as the circumstances of the dependency and its inhabitants permitted, “‘[tJhe common law, the doctrines of equity, and the statutes of general application which were in force in England” as at a certain date. The purpose of this “reception clause”, as it is often called, was to give the dependency a basis of English law which could later be superceded by local enactments. It has been the centre of much comment and criticism,? the latter focussing primarily on the uncertainty surrounding the concept of “statutes of general application”.* The continued usefulness of this method of incorporating English statutory law is still very much in doubt; yet now, nearly one hundred years after the appearance of the first reception clause in Africa, English statutes of general application are still part of the law of all of these original dependencies except for the Western Region of Nigeria The prime uncertainty lies in not knowing for certain which English statutes are in force in any receiving country. The duty of deciding which statutes apply has been left to the judiciary of each country, and a declaration on any particular statute can only come through the accident of litigation: yet one would think that eventually sufficient English statutes would have been considered, and sufficient local laws enacted, to narrow the number of possibly applicable statutes of general application considerably.* There is no evidence of a tapering off of judicial declaration on general applicability, however. In the present decade, as many new English statutes have been declared to be applicable in East Africa through the reception clause as in any decade since the reception dates.* How long this rate of discovery would continue is of course uncertain, but it is obvious that over 50 years of } *A. B. (Yale) M.A, J.D. (Berkeiey), member of the State Bar of California, presently Managing Atorney)_at West Oakland Office of the Legal Aid Society of Alameda Came oatiand, ‘California. Much of the research for this study was done while John Erickson was the holder ‘of a Boalt Intemational Legal Studies Fellowship to East Africa. Tee B (London), LLM. Dar es Salaam), Advocate of the High Court of Tanzania Senior Lecturer 1 Law, University of Dar es Salaam. The authors wish to express Mar Grattude to Mr, Nume-Nyanzi, a student of the Faculty of Law, University of Dar’ S"Salaam, for his valuable assistance in the research for this study. EEJOHN ERICKSON AND ANDREW LYALL 2 judicial decisions on the subject have left the list of applicable statutes far from complete. This uncertainty is compounded by the fact that there has been no clear, comprehensive test put forward by court or commentator for defining which English statutes are statutes of general application.** Courts have often adopted a case-by-case approach typified by the following statement of Gamble, J., in Chatrubhuj Nagji v. Abdulla bin Abdulla, (1938) 6 U.L.R. 43:7 [Counsel for plaintiff] has cited three Uganda cases dealing with Statutes ‘of General Application: I have read these and do not consider that they are, or can be, helpful; whether or no a statute is of general application can only be considered in reference to each individual statute and there can be no general rule making a statute or class of statutes generally applicable. Even more frequently the courts “have been content to state their decisions on the applicability of a statute, without going in details into the principles on which the decisions are based." It is often difficult to predict, therefore, from past judicial decisions whether an English statute is likely to be declared “of general application” in the future. ‘There are other difficulties than uncertainty inherent in the “statutes of general application” terminology. An English statute, when judicially declared to be applicable, must be applied in its reception-date form without the refinements and improvements of the later amending and repealing statutes enacted by the English Parliament. Thus the Limitation Act, 1623, was applied in Uganda, not the Limitation Act, 1939,* and the Forfeiture Act, 1870, is applied in Kenya, not the Criminal Justice Act, 1948.%° In Zanzibar, the Bills of Exchange Act, 1882, is applied without the amendments of the Bills of Exchange (Time of Noting) Act, 1917, or either the Bills of Exchange (Crossed Cheques) Act, 1906, or the Cheques Act, 1957. Although courts are usually given by the reception clause the power to subject the English statutes of general application “to such qualifications as circumstances may render necessary”,”* this power has never been held to allow the incorporation of post reception-date amendments. Such a holding would both render the inclusion of the reception date in the reception clause meaningless and without warrant substitute the word “desirable” for the word “necessary”, It is of course possible for the legislatures of the receiving countries to replace outdated English statutes that have been declared applicable with more suitable locally-enacted ones, and in fact such legislative action is often taken. The initiative remains with the judiciary however. It is called on by the reception clause to perform an essentially legislative function which it neither has the power nor the inclination to perform adequately. This inability becomes evident when one examines those enactments of East African legislatures which are based on English enactments covering the same subject matter. The East African statutes are more often than not extensively modified to meet local conditions. The courts also have the power to modify applicable statutes of general application, but it is3 STATUTES OF GENERAL APPLICATION IN EAST AFRICA limited to “necessary” qualifications, and to those made necessary by local circumstances. Even this restricted power is rarely used: there seem to be only three examples of such judicial modification in the East African cases. The courts nearly always either accept a statute as it is or reject it outright, and whether this all or nothing approach, which has little to do with the usefulness of the substance of the statute to East Africa, adequately forms a basic law to fill the gaps between local enactments is doubtful. Finally, there are some very practical objections to continued reliance on statutes in force in England 50 or more years ago. Many of these statutes have been repealed or extensively amended in England and are neither included in the current statutory reference materials such as Halsbury's Statutes of England, second edition, nor The Statutes Revised, third edition, nor extensively discussed in the textbooks and law journals. To find any statute which might be applicable through the reception clause, it is necessary to have available cither the English Statutes at Large from the year 1235 to the reception date, or an edition of the English statutes in force published slightly before or at the reception date.'* As one might expect such volumes are not generally available to judges and counsel in East Africa.” It seems clear, therefore, that the reference to “statutes of general application” in the reception clause has outlived its usefulness. Surprisingly few former British dependencies have so far attempted to alleviate the difficulty, In Africa, there have been only three attempts:** The Gold Coast Statute Law Revision Ordinance, No. 1 of 1893, s. 2, stipulated that notwith- standing the reception clause, 21 English statutes which might be statutes of general application were declared “not be in force within the jurisdiction of the Supreme Court”. In Tanzania, Government Notice No. 168 of 1943, the Land (Law of Property and Conveyancing: Application of English Acts) Order, lists 16 acts concerning the law of property which are declared not to apply. A far more ambitious project was completed in the Western Region of Nigeria in 1959 when sections 3 and 4 of the Law of England (Application) Law were enacted: From and after the commencement of this Law and subject to the provisions of any written law, the Common Law of England and the doctrines of Equity observed ‘by Her Majesty's High Court of Justice in England shall be in force throughout the Region. ..- Subject to the provisions of this Law no Imperial Act hitherto in force within the Region shall have any force or effect therein, To make the enactment of these sections possible a law reform committee had examined all the laws in force in England on 1 January, 1900 (the reception date) and had adapted for re-enactment by the legislature portions of over 50 English statutes. Statutes of general application have therefore ceased to be a problem in Western Nigeria but remain a burden elsewhere, including in all four East African jurisdictions. ‘The purpose of this paper is to alleviate the difficulties surrounding the “statutes of general application” terminology by attempting to develop some comprehensive criteria for deciding which statutes are statutes of