“ For a long time, customary law was regarded as a vestige of the past that was bound to disappear, but it is clearly far more resilient than was expected. It is subject to change, and it always develops in relationship with, and in response to, other normative orders-of which most important are the state legal system and religious law …”1
Introduction
Today2 marks exactly sixty-four years when the cord linking Ghana’s justice system to Britain was effectively severed and the place of the Privy Council, which had hitherto served as the final appellate court for the people of Ghana, was taken by an indigenous Supreme Court. We may recall that when European powers invaded the territories of Africa, they did not only target the political and economic structures, they also ‘configured’ the legal system. English law was formally introduced into the Gold Coast in 1876 through the passage of the Supreme Court Ordinance.
The Ordinance allowed local customs to be applied to the indigenes in the native courts and tribunals, only to the extent that they were not repugnant to natural justice, equity, and good conscience. In their own country, the Africans were made to understand that their customs were ‘foreign laws’ that needed to be proved.3 The attitude of regarding customs as a fact worked injustice against the natives and placed customary law in an inferior position in the corpus juris of the country.4 It has been observed that the proof of customary law in each case by the introduction of evidence touched the sensitive nerve of emergent national pride, since to require proof by witnesses suggested that customary law was not real law but merely an operative fact.5
Therefore, when on the 1st day of July 1960, native or customary law ceased to be a question of fact and became law, it had been restored to its rightful and dignified position. Nevertheless, the countervailing forces that had previously worked against it continued to exist. Some Ghanaian judges found themselves inheriting the prejudice and discord nursed by the colonial administration against it.6
The consequence is that customary law is feared to be at the verge of extinction. There is a loud cry, however, by indigenous and some sympathetic foreign jurists to invigorate it. In this paper, the writer painstakingly espouses the values of customary law and calls upon all well-meaning Ghanaians who believe that the problem of the African can be solved by the African through the African traditional systems and laws, to join in the crusade in the revival of customary law.
Treatment meted by the Colonial Administration to Customary Law
Prior to the advent of colonialism, the sole legal tradition of sub-Saharan Africa, including the Gold Coast, was what is described today as “customary law”.7 The singular source of customary law is social practice as exercised by indigenous population and passed down from generation to generation through oral tradition.8 For indigenous population, custom is law. Its content differed from among different tribal groupings, and it was an eclectic mix of varying ethnic norms and practices.9
Africans had a peculiar way of living, by which they seamlessly ordered their affairs, until colonialism wrecked it. It must be reiterated that upon the passage of the Supreme Court Ordinance in 1876, provisions were made for the indigenes to apply native law to some extent, but also riddled it with so-called “repugnancy clauses”, in order to avoid the aspects of indigenous customs that European culture found most appalling, ridiculous and simply unhelpful.10
Admittedly, some customs such as human killing and panyarring were disturbing; but every human institution and legal rule has its negative aspect; only the gods can be perfect! Hence, it was wrong for the colonial powers to treat the entire cluster of customary law with scorn. According to a Filipino proverb, [N]ot all that is black is charcoal.11
From the pen of an administrative officer who served in Nigeria,12 “The attitude of the English lawyer towards African law and custom is not that of adaptation but contempt for a worthless thing …”
Captain MacLean, the President of the Committee of Merchants, has said, “[British justice] has had the happiest effect in maintaining peace … and promoting the civilization of the natives.”
He extolled the colonial system thus: “Let but the local government deny or cease to administer even-handed justice to the population for a single day, and the whole country would again become a scene of warfare, rapine and oppression.”13
However, in the view of Abott, such statements could come from: “[I]gnorant outsiders who lacked both sympathy and knowledge of customary law.”
What Significantly contributed to the demeaning of customary law was the Supreme Court Ordinance of 1876 which allowed customary law to be applied in any court in the Gold Coast only in so far as it was not “repugnant to natural justice, equity and good conscience…”14
The limiting criteria were interpreted and applied by the courts, in the main, by the superior courts staffed principally by English personnel, though it was, of course, possible for a Native Court to exclude customary law on such grounds.
Thus, in Wood v. Thompson,15 Earnshaw J. said: “Any native law or custom depending on slavery … must at once be regarded with suspicion; and if… repugnant to natural justice, equity and good conscience … then this Court is not compelled, and indeed ought not, to enforce it.”
The attitude of the Privy Council generally towards the customs of Sub-Saharan Africa was to either accept the custom wholesale or reject it entirely. Modification of a custom was out of the equation.16 In Eshugbayi Eleko v. Officer Administering the Government of Nigeria,17 it was held that
“[T]he court cannot itself transform a barbarous custom into a milder one. If it still stands in its barbarous character, it must be rejected as repugnant to ‘natural justice, equity and good conscience.”
Lord Denning does not seem to agree with the proposition that a native custom could not be modified when he held in Nyali Ltd. v. Attorney-General18 that English law could not be transplanted to a foreign country successfully unless it was moulded to suit the local circumstances of the people to be affected.
The question by what criterion customary law was to be recognised, yielded different answers to different individual judges and colonial administrators. Some officials were emphatic that in order that it might be recognised, it had to conform to English colonial notions of justice and not African conceptions of these; for an Englishman because he is an Englishman and not someone quite different, cannot adopt some other person’s conception of justice.19
In a lecture delivered by Lord Justice Scarman in 1974, he defended the “success” of English law overseas on the controversial supposition that:
“Wherever it went, it found a legal vacuum …” And in some lands as in Central Africa and great areas of North America, the existing systems of law were “too primitive to compete with the imported product.”20
Commenting on the above statement, Professor Ekow Daniels21 writes,
“With the greatest respect to the learned justice, statements of this nature tend to distort the truth. No student of colonial history will disagree with the proposition that English law was decidedly exported to Africa to be used as an instrument for government notwithstanding the existence or the quality of the indigenous law prevailing in the area of settlement.”
The learned Professor added that statements such as this, coming from the lips of a top colonial legal officer contributed to lowering the standing of customary law in the eyes of the colonial powers; but the value of customary law was not lost on all colonial officials, especially for those who took pains to study and acquaint themselves with native customs.
It is gratifying to say that as far back as 1887, Chief Justice Macleod expressed his faith in customary law with these words:
“I have found the native laws and customs always founded on very good and intelligible reasons, which are perfectly rational and consistent.”22
There were other officials who were sympathetic in their evaluation of customary law. Griffith C.J. in Yirenkyi v. Akuffo23 confessed that customary law:
“generally, consists of the performance of the reasonable in the special circumstances of the case.”
In Okuma v. Tsutu,24 Graham C.J. dilating on fair trial at a native tribunal said:
“Decisions of the Native Tribunals on such matters which are peculiarly within their knowledge arrived at after a fair hearing on relevant evidence should not be disturbed without very clear proof that they are wrong.”
Lord Atkin had formed the same view in Nathan v. Bennieh.25 Recounting his experience as a judge in the Gold Coast, Sir James Marshall revealed:26
“What I wish to say is that the natives of the Gold Coast and the West Coast of Africa, have a system of laws and customs which it would be better to guide, modify, and amend, rather than to destroy by Ordinance and force.”
A writer on African law similarly had written27
“Let us be gentle with custom, more particularly when we are not fully acquainted with it. Custom is the outcome of generations of experience under conditions which we can hardly fully appreciate, and as a working principle we shall do well to assume that no custom is entirely foolish or groundless.”
Apart from the repugnancy clause, what incensed the sensibilities of the nationalists was when customary law was held in Hughes v. Davies28 to be a foreign law in the courts of Ghana other than the Native Courts and Tribunals. The Privy Council reaffirmed the earlier proposition in Angu v. Attah29 thus:
“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.”30
It may seem that, that was a subtle way of emotionally communicating to the indigenes that they were aliens on their own land. The need to prove customs paved way for the Europeans to reformulate their own notions of customary law, resulting in several distortions in native customs. As George Grierson has said: “The oblique paradox of propaganda is that the lie in the throat becomes, by repetition, the truth in the heart.”
Hence, in cases such as Lakai v. Amorkor,31 Vanderpuye & Ors. v. Botchway,32 Amarfio v. Ayorkor,33 they held that the people of Ga Mashie tribe practised a matrilineal system of inheritance, as the Akans, forgetting that the various tribes in Ghana had their peculiar customs. The British also understood the word ‘stool’ in two senses: the town or “Oman” stool and the family stool.34
Is the English Notion of Custom the Same as that at Native Law?
The notion of custom under the English law differed substantially from that of customary law. In England, a custom must have existed from time immemorial, that is from the year 118935 before it could be applied by the courts. Strangely, the English judges sought to set the same criteria for the enforcement of Ghanaian customs in Welbeck v. Brown,36with Bailey C.J. stating:
“… [t]hey are speaking of a custom, if custom it can be called, which only does not date from ‘a time to which the memory of man runneth not to the contrary,’ but actually dates from a time which is in the memory of men now living. How can this be called a custom? … one thing does concern me, and that is, that the Courts should do all that is in their power to fix these fugitive will-o’-the wisps called native customs, and transfer them to the records of the Court, rejecting all those which are alleged to be custom, but which do not bear the test to which I have subjected this one.”
In the view of Woodman, that would probably mean that no custom in Ghana could be enforced.37 Towards the end of colonialism in Ghana, the British had appreciated the operations of Ghanaian customs, so in Golightly v. Ashrifi,38some of their judges decided that native custom need not be shown to have existed from time immemorial in the English sense. In the thinking of Ollenu,39 this modification suited local conditions, since writing was unknown to customary law, but the memory of man as to tradition may not extend beyond two or three generations.
Immediately, after Independence, the newly domestic instituted Court of Appeal in Sasraku v. David40 emphatically rejected the British notion that a custom must have been in existence for a long time before it could be enforced. Their Lordships decided thus;
“Stagnation of the law in a fast-developing state should be regarded as abhorrence.”
In Roscoe Pound’s famous epigram,41
“[l]aw must be stable and yet it cannot stand still.”
About half of a century earlier, the illustrious son of the Gold Coast in the preface to his book stated:
“A great thinker has said, “The value of a custom is its flexibility in that it adapts itself to all the circumstances of the matter as of the locality. Customs may not be wise as laws, but they are always more popular.”42
“Customary law is not static, for it is developing and unfolding itself, and its existence and administration side by side with the common law and the enacted law, is conducive to progress and adaptability,” writes Ollenu.43
The Attitude of Ghanaian Judges Towards English Law
The eloquent expressions of the frustrations and indignation of some judges in areas where English legislations continued to apply in Ghana after Independence is striking.
In Dodoo v. Dodoo,44 Edusei J. said:
“I personally fail to understand why in a free and sovereign state like Ghana, our matrimonial laws must be an exact replica of what takes place at Westminster … It is hoped that Parliament will waste no time to enact … laws that will serve as a memorial of our rich culture, and not leave us at the beck and call of the parliamentarians at Westminster who live in a world different from our own.”
Taylor J. shared similar sentiments in Anokyi v. Anokyi45in these terms:
“This is certainly a most unsatisfactory state of affairs; that the law and practice … in Ghana should be made subject to the fluctuations in thinking in a foreign country is to be deplored. The law in a country must reflect the attitudes and experiences of the people. To interpret any provision of any law properly one must be conversant with the psychology, the sociology and the customs and traditions of the people. One must have a fairly good grasp of the conditions of life and the background of the people and the general purpose which the legislation is to serve having regard to the habits, idiosyncrasies, way of life and the thinking of the people.”
In his judgment Adumua-Bossman J.S.C. in Bata Shoe Co. Ltd v. Roura & Forgas Ltd.46described some English processes applicable in Ghana as
“[A]wesome archaism and incongruity [that] have been accepted for such a long period of time now.”
The learned Supreme Court Judge then advocated:
“[T]heir incongruity and technicality in the light of present local conditions seem now to be more conspicuous and intolerable than ever …”
Repugnancy Clause – Much Ado About Nothing!
Natives were made to believe that the repugnancy clause was intended to gauge obnoxious customs. However, it has been discovered that it was not in all cases that the repugnancy clause abated what appeared to be unconscionable rules of Customary Law. Sometimes, the repugnancy clause was brought in aid as a cover-up to discard natives’ initiatives and customs.
As Professor Raymond Atuguba recounts,
“[I]n some cases, the repugnancy clause was used to disrupt intelligent, scientific, progressive, and sustainable rules of Customary Law.”
The learned University don discusses a case decided in the year 1899 which he came across in his research work47 where the Colonial Secretary of Agriculture ordered the chief of Winnebah in present day Ghana to withdraw a set of laws prohibiting the use of three types of nets. The Chief of Winnebah claimed that these nets were the causes of overfishing and scarcity in the local fish supply. In a communication to the Provincial Commissioner at Winnebah, the Secretary stated that he could not agree to the Chief’s objections to the nets which were ‘sound’ because “the best fishing net is the one which catches the most fish.”
Earlier in 1898, Judge Griffith had decided in the case of Akwufio and Others v. Mensah and Others that the colony would not support a law prohibiting nets, citing section 19 of the Supreme Court Ordinance 1876; a decision which clearly went against the customary law principles of sustainable fishing and sustainable development.
Commenting on the above, Professor Atuguba surmised:
“In plain language these cases held that sustainable fishing, an aspect of sustainable development, was repugnant to ‘natural justice, equity, and good conscience.” It is therefore not true as opined by many experts, including one of the most revered judges of England, Lord Atkin, that the essence of the repugnancy clause was to eradicate ‘barbarous customs’ which ought to be rejected as repugnant to natural justice, equity and good conscience”48.
To satisfy my curiosity, I have been imagining whether the entire English law would have survived if they were subjected to the repugnancy test standards with the lenses of a different culture, particularly with regard to their marriage laws.
Macqueen in the second edition of his book on the “Law of Husband and Wife” expounded at pages 4 and 5 that according to the common law of England, a marriage not celebrated in facie ecclesiae, was considered to be a ‘private marriage’.49 A marriage was deemed to be celebrated in facie ecclesiae only when it was solemnized in a parish church. A private marriage was thus limited in many respects – It did not give the woman the right of a widow as regards dower; the children born out of the marriage were considered illegitimate and if either of the parties to the marriage lived with a third party, it did not render the marriage void.
There is an air of oddity surrounding a marriage that had been ‘properly’ celebrated not to be recognized by the law, simply because the church at which it was solemnized was not a parish church. Why should such a marriage that has been celebrated come with burdens on the ‘innocent children’? Had it been an African custom or law, what would its fate have been? Your guess is as good as mine! It would obviously have been considered repugnant to equity and good conscience.
Another English marriage custom which Sarbah found despicable but has survived the ages was the bridegroom’s best man. At pages 41- 42 of his Fanti Customary Laws,50 he gave an insight into the ‘best man’ custom in England which emerged when marriage by capture was the order of the day. A man who saw a woman he fancied would forcibly seize her without her consent, with the support of a best man who carried a sword or a spear to assist and protect him.
What then about the perils of the English custom of coverture51 which reduced wives to the status of mere objects without rights in society? As at the nineteenth century, an English married woman could not own properties or make wills, when the Ghanaian woman was far ahead of such seemingly meaningless social restriction. Kludze52 writes:
“Before 1st January 1883, married women in England could not make wills. They were not liberated until the passage of the Married Women’s Property Act, 1882 … The women of Ghana did not have to fight for this right and it had been assumed that women could make wills.”
There was also the English doctrine which allowed an undisclosed principal to enforce a contract to which he was not privy. This doctrine has been severely criticized across the world as an anomalous doctrine,53 yet the British have held unto it for centuries. What is even surprising is that it conflicts with their own fundamental contractual principle of privity of contract.54
What then can we say about the English law which rendered void a marriage between a woman in the colony and a British man? Why would the law in addition to annulling the marriage focus on punishing only the woman and regard her as a witch?55
If the tables had turned, I doubt whether the Europeans would have allowed the custom to flourish, because as Prof. Modibo Ocran56 puts it:
“… any customary rule that was inconsistent with colonial legislation would be declared invalid.”
Yet English customs inconsistent with the common law were not abolished. A Yiddish proverb says, “[A] boil is fine as long as it is under someone else’s arms.” Tindal C.J., in Tyson v. Smith,57 had held:
“[T]hat a custom is not invalid merely because it is contrary to a rule of the common law.”58
Professor Allott seemed to have recommended the approach adopted by Tindal C.J. in England for the natives of Africa when he said:
“On the whole, it is unreasonable to invalidate a rule of customary law because it is inconsistent with an introduced rule of English law…”59
In the English case of Williams v. Williams,60 the Court held that the custom of merchants was part of the common law.61
Unpretentiously, a custom may not always appeal to persons who are not associated with the community; but for those who observe it, it may have some values. In justification of customary law, His Lordship Acquah in a paper published in the Review of Ghana Law62 while criticizing some customary practices, acknowledged that most of the varied tribaltaboos and offences in the various communities of Ghana have laudable objectives: –
“[F]or example, the Krobo custom of “dipo” is aimed at ensuring that girls lead virtuous lives before they reach the age of puberty. And in the face of the present campaign against promiscuous sexual practices to stop the spread of the AIDS epidemic, no custom can be more in keeping with such a national objective than the “dipo” custom.”
It needs stressing the point here that Ghanaians generally felt slighted by the repugnancy clause that was used in assessing the validity of their customs during the colonial days. Since customs represent the pride, identity and cultural heritage of the people, it was thought that when Ghana weaned itself from colonial domination and its own citizens took over the Judiciary, they would discard the repugnancy notion about native custom. Regrettably, that was not to be; the courts continue to use the same yardstick to evaluate native customs as gleaned from a host of cases such as Abebrese v. Kaah and Others;63Sarkodee I v. Boateng II64 and Asante v. Bogyabi & Others.65
The Clamour for the Revival of Customary Law
Customary law in Africa has attracted respectable international attention in recent times and the interest in it promises to grow greater. Those days are past when, on the one hand, attempts were made to discredit the customary law, to show that it is not scientific, is not based upon any sound philosophical concept, and is not conducive to progress; and on the other hand, to show that the customary law is more reasonable and more humane, and consequently is more progressive than the Western systems of law with their many rigid and intricate technicalities.
The above were the passionate words of Ollenu, when he triggered the pedal of the revival of customary law.66 It is believed that there is significant revivalism of Customary Law in many African countries today. Customary Law is the lived reality of the majority of urban and rural folk in Africa, hence has been implanted in the Constitutions of many African States. Yet there are many forces that seek to counteract it.67 The secret of customary law’s survival despite the calculated attempt to dislodge it lies in its rich values and flexibility to adapt to social change.
There were instances where justice that would otherwise have been unavailable at common law due to its strict nature, was dispensed at customary law (due to its flexibility). In Bura and Amonoo v. Ampima,68 Hayes Redwar, Acting Judge, underscored that the English rule did not admit hearsay evidence and
“[t]hat if the English rule is rigidly applied, evidence on both sides of this case would be rejected; … I hold, therefore, that, as a rigid adherence to the English law, in this respect will work injustice, the evidence in the nature of hearsay adduced in this court is admissible.”
In Adjowei v. Yiadom III & Ors.,69 Sowah J.A. decided:
“In our ancient society, the presence of the independent witness in all business dealings was considered essential. It is on the testimony of the independent witness that the elders can verify the truth of such matters as were in dispute. It seems to me reasonably to suppose if in spite of the absence of such witness, sufficient evidence could be brought to establish the truth of the matters in dispute, no reasonable group of elders would hold that the matter had not been proved because no witness was present. Even in the giving and payment of loans the presence of witness was considered important and essential.”
It may appear that in The Republic v. The Judicial Committee of the Good afternoon Traditional Council, Adjiy Tetteh, Ex parte Nettey,70 Twumasi J.A. ranked customary law above the common law in terms of true justice and fair trial, when he held thus:
“It follows from leading cases therefore that customary law draws its nerve wire from the most ancient concepts of the rule of law, natural justice and fair trial and we must recognise that our customary law is tenacious of the truth and would leave no vestiges of doubt in its pursuit of the truth and it achieves this objective through the investigative process of calling witnesses and subjecting them to the rigours of cross examination albeit in an informal manner not fettered by the technical rules of evidence as pertain in the common law practice.”
Within West Saharan Africa, Ghanaian customary law is esteemed, and it is interesting to note that Nigeria Courts have sometimes held themselves bound by Ghanaian decisions on customary law, although there is no significant ethnic group common to both countries.71
It is gratifying to observe that other jurists not of African descent have recommended for the deepening of our customary laws in the determination of justice. The American ADR practitioner, Professor Jacqueline Nolan-Haley explains that customary dispute resolution has a long and revered history of providing access to justice for indigenes in African societies.72 She pointed out that prior to colonialism, the traditional customary justice system focused on non-adversarial, amicable and peaceful methods of settlement which proved highly successful than the methods designed by western countries today. She advises policymakers to pursue the consensus features of mediation, which honour the rich tradition of the consensual decision-making in African customary law.
“Mediation is more likely to emerge as a vibrant force in the justice systems of African countries if it acknowledges local traditions and customs …,” the learned Professor opines.
In a way, she was vindicating Casley Hayford when he said during the early nationalist struggle that:
“[I]f you are free to admit it, you will see that you find here in the Gold Coast] already a system of self-government as perfect and efficient as the most forward nations of the earth today can possibly conceive. A people who could, indigenously, and without a literature, evolve the orderly representative foreign interloper, are a people to be respected and shown consideration when they proceed to discuss questions of self-government.73
Conclusion
Africa’s colonial masters sought to change its laws immediately they stepped on the shores of Africa. They perceived the native laws to be barbaric and tried to mould them to suit their cause.74 Our forebearers did not relent in their struggle for autonomy until they succeeded in restoring native custom to its rightful place as law and disconnected the country’s Judiciary from that of Britain on the 1st day of July 1960. It will be churlish on my part not to recognize the gains made so far.
However, the story is not yet ended. There has been a severe onslaught by human rights and feminist movements in recent times on many aspects of the African Customary law, often attempting to throw away the baby with the bath water.75 One commentator believes that customary law is
“[A] legacy handed down from generation to generation…enjoy[ing] wide acceptance among many [Africans] … and does not just represent a phase in the legal and political development of Africa.”76
Nevertheless, it may seem that we have lost that consciousness and have slowed down the momentum in our pursuit of a complete legal and judicial independence from the drudgery of imperialist control. As Professor Atuguba noted:
“The general impression that Customary Law is dying slowly as it is weakened by the Received law, domestic statutory law and the forces of globalization appearing in the guise of international commercial trade, human rights and criminal law is well-founded.”
Customary law has what it takes to become one of the best legal frameworks in contemporary times, but this dream has been far from reality due to the apathetic posture of those who can push its philosophy. While it is easy to say that judicial independence has been won from the British, it is still worrying that Ghanaian judges continue to use the same repugnancy test, which the nationalist movements found demeaning, to assess the validity of customary laws.
Why have we, as a people, continued to honour the ‘best man’ custom which has a shameful origin but have been quick to abolish most of our customs passed unto us by our forebears? If the jury system, introduced to us by the British, continues to occupy space in our statute books for well over six decades, despite its general opprobrium among legal analysts; then it is fair to say that customary law might have won the fight for recognition in 1960, but English law continues to be in some form of control, its physical absence notwithstanding.
1 K. von Benda-Beckmann in International Encyclopaedia of the Social & Behavioural Sciences (2001).
2 Ist July, 2024.
3 See Angu v. Atta [1916] P.C. 1874-1928, 43, 44. Earlier in Hughes v. Davies [1909] Ren. 550, 551, it was held that, “as native law is foreign law, it must be proved as any other fact.”
4 See A. Allott, The Judicial Ascertainment of Customary Law in British West Africa, 20 M.L.R. 244, at 257 (1957).
5 See William Burnette Harvey, “A Value of Ghanaian Legal Development since Independence” [1963] Vol. 1 No.1 UGLJ 4.
6 Ghanaian judges continued to used the same standard used by English judges to assess customary law. Therefore, in cases such as Atomo v. Tekpetey [1980] G.L.R. 738, Abangana v. Akologo [1976] GLR 382, Asamoah Mono v. M & K (Gh.) & Anor., Suit No. FAL/729/12, dated 31 May 2018, the courts applied the repugnant test to assess some customs.
7 Tinenenji Banda, in International Encyclopedia of the Social & Behavioural Sciences (Second Edition) (2015).
8 Benneth, 2008.
9 See Justice Modibo Ocran, ‘The Clash of Legal Cultures: The Treatment of Indigenous Law in Colonial and Post-Colonial Africa,’ Akron Law Review (July 2015) 465.
10 Supra.
11 A Filipino Proverb.
12 Arnett E P (1939) 8 JAS at 161.
13 J. Sarbah, Fanti National Constitution (1897) at p. 95.
14 See William Burnette Harvey, “A Value of Ghanaian Legal Development since Independence” [1963] Vol. 1 No.1 UGLJ 4.
15 [1909] Earn 15 at p. 17.
16 See Ogwurike C., “The Source and Authority of African Customary Law” [1966] Vol III No. 1, 11-20.
17 [1931] A.C. 662.
18 [1956] 1 Q.B. 1 at p. 11.
19 Sir Sidney Abrahams, “The Colonial Legal Service and the Administration of Justice in the Colonial Dependencies” (1948) 30 J. Comp Leg & JL at p.1 & 8.
20 English Law – The New Dimension. Stevens at p. 1.
21 See Professor Ekow Daniels W.C., “Developments of Customary Law” )1991-92) Vol. XVIII R.G.L. 68.
22 Sarbah, op cit preface xii.
23 [1905] 1 Ren p. 362 at p. 367.
24 [1944] 10 W.A.C.A. 89 at p. 90.
25 See also Nathan v. Bennieh [1927].
26 (1987) 16 JAL 180 at p. 181.
27 Dundas C C F (1926) 25 JAS at 389.
28 [1909] Ren. 550 at p. 551. It was further emphasized in the Asamankese Arbitration (1929) D. Ct. 1926-29, 220 at p. 306.
29 [1916] P.C. ’75-/28/ at p. 44.
30 Sarbah supra at p. 137.
31 [1933] 1 W.A.C.A. 323.
32 [1951] 13 W.A.C.A. 164.
33 [1954] 14 W.A.C.A. 554.
34 See Mensah v. Toku [1887] Sarbah F.L.R. 42; Toku v. Ama [1890] F.L.R. 58; Gambra v. Ewear [1892] 1 Ren 93 and Sarbah F.L.R. pp. 42-43.
35 See Sarbah’s explanation at p. 27 of his Fanti Customary Laws.
36 Reported in J.M. Sarbah, Fanti Customary Laws, 185 (1897).
37 See Gordon R. Woodman, “Some Realism about Customary Law – The West African Experience”, footnote 7.
38 [1955] 14 W.A.C.A. 676.
39 See Ollenu N.A. “Law of Succession in Ghana” [1965] Vol. II. No. 2 UGLJ 4.
40 [1959] G.L.R. 7 at p. 14.
41 Pound, “Interpretation of Legal History,” p. 1.
42 John Mensah Sarbah, Fanti Customary Laws
43 See Ollenu N.A. “Law of Succession in Ghana” [1965] Vol. II. No. 2 UGLJ 4.
44 High Court, Sekondi, 27 February 1970 (unreported), digested in [1970] C.C. 65.
45 High Court, Kumasi, 24 June 1970, unreported, digested in [1970] C.C. 90.
46 [1964] G.L.R. 190 at p. 218, S.C.
47 RA Atuguba & R Atta-Kesson, “Of Fish, Fishing, Fisherfolk, the Law and Fishing Institution” (Research Report submitted to Corporate Social Responsibility Movement, 2007) at 4.
48 See Eshugbayi Eleko v. Officer Administering Government of Southern Nigeria [1931] A.C. 662 at 673.
49 See Macleod J.’s decision in Des Bordes v. Des Bordes & Mensah decided on January 23, 1884; reported in Sarbah Fanti Customary Laws at p. 267.
50 See the footnotes.
51 The doctrine of coverture has extensively been discussed by the writer in his new book, “Contemporary & Evolving Issues in Civil Procedure & Litigation” to be launched on July 9, 2024 at the Law Court Complex in Accra.
52 See Kludze A.K.P., “Modern Law of Succession in Ghana” (2015 edition) at pp. 28-29.
53 Muller Freiensfels in his paper, “The Undisclosed Principal”, 16 MOD. L. REV. 299 claims: “No decision and no textbook omit to call it expressly ‘an anomaly in the law of contracts’ out of harmony with basic legal principles.
54 For a better understanding of the principle on the undisclosed principal, read the writer’s new Civil Procedure book supra.
55 For details of this, read chapter 16 of the author’s Civil Procedure book supra.
56 Justice Modibo Ocran (2006), “The Clash of Legal Cultures: The Treatment of Indigenous Law in Colonial and Post-Colonial Africa,” Akron Law Review: Vol. 39: Iss. 2, Article 4.
57 9 A. and E. page 421.
58 Supra at page 27.
59 Reported by Sarbah supra at p. 27. Ironically, Abott C.J. in R. v. Joliffe, 2 B. and C., at p. 59 decided that a custom which was against a known rule or practice of law, cannot stand, no matter its antiquity.
60 See Sarbah supra at p. 27
61 See also Goodwin v. Roberts, R L. 10, Exchequer 337, per Cockburn C.J.
62 See Acquah G. A. ”Customary Offences and the Courts” (1991-92) Vol. XVIII R.G.L. 36-37.
63 [1976] 2 G.L.R. 46.
64 [1982-83] G.L.R. 715.
65 [1966] G.L.R. 232.
66 See Ollenu N.A. ’The Case for Traditional Courts under the Constitution’ [1970] Vol. VII No. 2 UGLJ 82.
67 Raymond Atuguba, “Customary Law Revivalism: Seven Phases in the Evolution of Customary Law in Sub-Saharan Africa”.
68 Decided on September 28, 1891 and reported by Sarbah in his Fanti Customary Laws at page 214 at p. 216.
69 [1973] 2 G.L.R. 90 at p. 97.
70 Civil App. No. 151/99, dated 20 June 2000, C.A. (unreported).
71 E.g., Awodiya v. Apoesho, [1959] W. Nigeria L.R. 221.
72 See Jacqueline Nolan-Haley, “Mediation and Access to Justice in Africa: Perspective from Ghana” 21 Harv. Negot L. Rev. 59 (2015) at p. 11.
73 See Casely Hayford, ‘Gold Coast Native Institutions with Thoughts upon a Healthy Imperial Policy for the Gold Coast and Ashanti’ (London: Sweet and Maxwell, 1903) at 128-129.
74 Raymond Atuguba, “Customary Law Revivalism: Seven Phases in the Evolution of Customary Law in Sub-Saharan Africa”.
75 Op cit.
