In the southern parts of Nigeria, as in many other African territories,2 two systems of law, English and customary law, are both in force at the same time. That situation naturally presents problems of what are termed internal conflicts: which system of law should be applied in a particular case? When, as is most common, such a problem arises directly out of some transaction, the difficulty is not likely to be great, since there have been enacted by statute fairly precise rules which cover that sort of situation.3 Those rules, however, are framed in terms of the persons involved in the case (are they “natives” or “non-natives”?4) and of agreements and transactions between such persons. There can arise other issues involving conflicts where the statutes give little guidance, and it is the object of this article to examine one such issue, namely the applicability of English and customary law to land, as opposed to the persons owning it. Only the Nigerian authorities on the point are discussed, but it is fair to assume that the problems with which they have dealt are typical of the experience of many other countries where a system of law of European origin and adapted to the purposes of a commercial society has been superimposed upon an indigenous law which has mainly evolved in static, rural communities.

To what extent do the methods of treating criminal offenders in African states require revision ? This question is increasingly under discussion at present. Problems of crime and punishment are changing. To some extent such problems appear in a changed form after the end of the colonial period, when foreign governments have been replaced by representative national governments. The prison, an alien institution in much of Africa, which, moreover, in colonial days may have contained popular political leaders, does not confer on its inmates the stigma which is an important punitive aspect of imprisonment elsewhere.2 Most African governments are seriously concerned to combat crime: partly because many forms of crime are inimical to nation-building and economic development, but partly too from idealistic determinations to cleanse national life.

The Federation of Nigeria is the most populous and potentially the most powerful nation in Africa.2 These two facts alone give particular importance to the Nigerian Republican Constitution which came into operation on October 1st, 1963.

There is no single definition of customary law agreed by lawyers, jurists, social anthropologists and others who may be concerned with it. This in itself is not surprising for both “custom” and “law” may be used in a number of differing senses depending upon the requirements of a writer's approach. The fact that these terms may mean different things to different persons in different contexts is not in itself important. But the place of customary law in the developing legal systems of new African states is a matter of some considerable contemporary importance which calls for some precise definition in this immediate respect. In general terms it may perhaps be said that here a lawyer looks for rules of law such as are familiar to him in other legal systems, whilst the anthropologist is more concerned with the interaction between law and the social and political system of a people, and in any case recognizes that legal relationships are but a part of the total relationships between individuals in a society. Some of the divergences of view on the concept and definition of customary law may be lessened however if it is recognized that a diachronic approach may clarify part of the disputed field.

The appeal, The Kabaka's Government v. N. S. W. Kitonto, heard recently by the Court of Appeal for Eastern Africa, is of considerable interest not merely in respect of the basic issue in dispute as to whether the High Court or the Principal Court of Buganda had exclusive jurisdiction to try the original case but also in respect of the far-reaching observations made in the appeal judgment as to the place of customary law in relation to the common law. In this case the respondent had sued the Kabaka's Government in the High Court of Buganda, alleging that a Mr. Sebowa “acting in his capacity and the scope of his authority as a servant of the Government” had negligently and unskilfully removed from the respondent's mouth two sound wisdom teeth instead of two decayed teeth. The Kabaka's Government pleaded that the transfer of the case to the Principal Court of Buganda was obligatory under section 7 of the Buganda Courts Ordinance, since the Principal Court had jurisdiction to try the case. Slade, J., refused to order transfer and the case was tried in the High Court and decided in favour of the respondent. On appeal, it was held that the decision to refuse transfer was erroneous, the judgment being, accordingly, set aside on the ground of lack of jurisdiction.

The question, “What is customary law?”, poses a number of different problems. It can (and no doubt it will) give rise to answers which stem from differing interpretations of the sort of discussion that it is attempting to stimulate. It is fair to suppose that some of these will deal with the jurisprudential aspects of customary law, and its relation to other branches of the law. Others may cover the purely procedural and administrative factors that govern the application of customary law in various countries. And yet others may choose to emphasize the changing nature of customary law and the doubts which surround the precise details of its future in many contemporary countries.

Expressions Indicating varying degrees of dissatisfaction with systems of land tenure prevailing in sub-Saharan Africa are very common, and the view is widely held that the traditional institutions which govern land rights operate in a manner obstructive to agricultural development. “If enterprise is to be given an opportunity to express itself”, writes Dr. Yudelman in a recent book, “there must be a break with traditional institutions which govern land”.Views of this kind call for decisions regarding the substitution of one system of law for another, or for various kinds of radical reform including the engrafting onto the traditional system of legal expedients and devices proved useful in other systems of law. Such decisions, however, patently require much more than a mere nodding acquaintance with the existing local law, the changes sought to be introduced therein, and their functioning in the systems of law from which they are to be borrowed. Accordingly a need exists for a kind of comparative legal analysis of existing systems of landholding which can throw into relief the real points of weakness that need to be remedied or pruned away, while also indicating the elements that are worthy to be retained, if even only as the stock upon which novel arrangements may be engrafted.