English law, as limited or modified, applies as one of the residual systems of law in Northern Nigeria, the other being customary law. The assumption underlying both the reception of English law and the retention of customary law was that both would be eroded and a new system would be created by local legislation and local decisions. While some erosion of both systems has taken place, such a process is necessarily slow and there remains a large area of law where the relationship of the received and retained law to local legislation is difficult to elaborate with any degree of precision. This is particularly true of the relationship of English law to the provisions of the Land Tenure Law and its predecessor, the Land and Native Rights Ordinance. The primary difficulty encountered in this context is the analogy which can be drawn between a lease in English form and the statutory right of occupancy, since the latter interest is granted by the appropriate authority normally, although not necessarily, for a definite term of years and may be governed by covenants which relate to rent, use and occupation, assignment and subletting, recovery of possession and so on.

The more the self-government of Nigeria becomes a reality, the more important is the question of the independence of the judiciary and the more relevant is the question of the law of contempt of court. The judiciary is mainly staffed by British and Nigerian judges and magistrates drawn from the different national groups and regions of the Federation. It is therefore not impossible that as more cases of political interest go before the courts, the judges and magistrates may be exposed to unnecessary suspicion or pressures because of their places of origin, whatever the colour of their skins. Let me illustrate this point.

In Kenya there are no restrictions as to where a farmer may borrow money for the development of his farm and almost all institutions which lend money give considerable financial assistance to farmers. Kenya's economy is based largely on agriculture and the government has always supported agricultural industries in every way possible; one of these ways has been to make money available to farmers. To carry out this function, the government set up various institutions for the lending of money for agricultural purposes. Most of those institutions have now been dissolved and a few of those remaining are no longer actively engaged in the lending of money. At the present time, the main government credit institution is the Agricultural Finance Corporation.

This article is concerned with the application of the doctrines of equity by the courts in East Africa. “Equity” is used in two main ways in the laws of Commonwealth Africa: firstly, the courts were directed to apply the doctrines of equity;2 secondly, the courts were commonly directed to exclude indigenous laws if they were repugnant to “natural justice, equity and good conscience”.3 Sometimes it is used in a broad sense—“justice, equity and good conscience” is to be applied in resolving cases for which there is no other available rule. This article is concerned with the first meaning, equity in the technical, rather than the general, sense,4 with the circumstances in which the courts have applied the doctrines of equity (although it will be seen that the boundary between technical equity and equity in the sense of natural justice is notas rigid as is sometimes supposed). 5

The Wills and Inheritance Act,1 passed by the Malawi Parliament in November, 1967, is an attempt to provide a comprehensive scheme of interlocking succession provisions applicable to members of all racial groups. This is an ambitious objective and there is little need to stress here the numerous difficulties which stand in the way of its attainment. The greatest of these difficulties is to formulate a set of rules for those persons hitherto subject to diverse systems of customary law. Here the need is not only for a scheme which strikesan acceptable balance between the contemporary demands of the customary heirs and those of the immediate family, but also for one which is sufficiently flexible to accommodate the further changes which are bound to take place. Preferably the new rules will also be effective to guide future developments along lines which are deemed to be socially desirable. A further difficulty is to combine with this scheme the rules applicable to those persons who were not previously subject to customary law. Lastly, the system as a whole must be simple enough, in the case of small estates at least, to be administered in the Local Courts. It is against these requirements that the new Act will be measured in this note.

The description of Bali matrimonial law which follows is based on research undertaken during the first half of 1969, while the author was on secondment from the School of Oriental and African Studies of the University of London to the Faculty of Law and Economic Sciences of the Federal University of Cameroon.

This article contextualizes the debate about the implications of the investment treaty regime for regulatory autonomy. It points out that, to understand why the investment treaty regime limits sovereign powers and to be able to reconstruct a regime to make it responsive to the needs of both foreign investors and host countries, it is necessary to revisit the history of investment protection by treaty and assess the terms of investment treaties in relation to that history. The article argues that investment protection by treaty was primarily aimed at protecting the private business interests of investors from the developed world who invested abroad. This overarching historical objective influenced the terms of investment treaties. This is manifested in the terms of classical investment treaties which provide for absolute rights for foreign investors. The article calls for the reconstruction of investment treaties to make room for public interest regulation.

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.

DEFINING THE LIMITS OF PERMISSIBLE EMPLOYMENT DISCRIMINATION AGAINST PERSONS LIVING WITH HIV/AIDS IN SOUTH AFRICA: HOFFMAN V. SOUTH AFRICAN AIRWAYS [2000] 12 BLLR 1365.

Perhaps the most positive and exciting aftermath of the apartheid era is the construction of the new South Africa upon the foundation of a Constitution and other legal instruments that are unanimous and unambiguous in two respects. The first is in their proscription of unfair discrimination and the second is in their permission of statutory and other measures aimed at eliminating the effects of past discrimination on those groups of persons who were at the receiving end of same. The provisions of these instruments as well as their tenor and spirit reveal an unmistakable national resolve to break from a culture of racial discrimination to a constitutionally protected culture of human rights for South Africans of all ages, classes and colours. Without doubt, the most important of those provisions is the equality clause of the Bill of Rights contained in the second chapter of the Constitution. This probably follows from a realization of the fact that equality is fundamental to “the maintenance and propagation of human rights in a democratic body politic, particularly in an acutely divided society” such as South Africa.

A substantial part of the rules governing land tenure and its conveyance has had the prevention of fraud and double-dealing as its object. Rapacious vendors have perfected the skill of selling the same piece of land successively to more than one purchaser. Trespassers have brazenly taken possession of land in which they have no vestige of interest, challenging the owner and asserting limited or absolute rights to it. Some of these frauds are perpetrated because land transactions are not publicised. It is no surprise therefore that the elimination of secrecy in such dealings was appreciated early in man's history.

The oldest recorded land transaction, which took place almost 4,000 years ago in 1881 BCE in the Middle East, was concluded in the presence of witnesses, “before the eyes of the sons of Heth among all those entering the gate of his city”. Witnesses give the transaction publicity and they are also people who could testify to it. But the testimony, useful as it is, has its shortcomings and cannot always be relied on to determine either whether the transaction took place or the nature of the rights and obligations it conferred on the parties. With the passing of time the frail memory of the witnesses fails; on their death any evidence given becomes hearsay with the attendant possibility that subsequent persons may alter what they were told.

It is a happy coincidence indeed that in the 40th year of publication, the Editors of this Journal have had the privilege of publishing a liber amicorum for Professor James Read. In 1996 he retired from 40 years of teaching in the University of London, since 1974 as Professor of Comparative Public Law with special reference to Africa, a Chair which he retains in an Emeritus capacity. It has been a formidable task to attempt to do justice to the work of this “able, patient, effective and thoughtful scholar” (to adopt the words of two of our contributors) to African legal studies. However, this volume contains essays by colleagues and erstwhile students upon subjects which will at least in part reflect the richness and diversity of James Read’s interests.

A theme which has not gained much of the attention of scholars of African law is the historical development of European law and legal institutions in Africa. There is a tendency to take their “reception” for granted, as if to say that it is redundant to know how they came to be established on the African soil. By historical development is not meant simply the chronological order of events, treating law almost as a self-contained system in no way related to the environment in which it operates. A more useful approach, it is submitted, would be to evaluate the role of European law and legal institutions in the total context of African social, economic and political development. From our appreciation of the role law has played in the past in the moulding of African societies, we are likely to be more conscious than ever of the importance of law in African development. Furthermore, historical analysis of European law and legal institutions in Africa may yield some insight into the nature of African legal institutions as they are today. This paper, a plea for the historical dimension in African legal studies, discusses the role of a class of men in the English-type courts in Lagos before the legal profession, as we know it, established itself.