SIGNIFICANCE
- Documentary Evidence on African Customary Law admissible by the High Court.
- A Court cannot take Judicial Notice of African Customary Law.
- Supervisory jurisdiction of the High Court.
- Applicability of Customary Law.
The Judgement was delivered by BLAGDEN, C.J. in the High Court for Zambia.
This case concerned the Lala custom of “Akamutwe”.
According to this custom, the surviving spouse and their relatives are demanded
to pay compensation to the deceased spouse’s relatives. The Compensation is
seemingly paid as a result of either a speculative concept of the
responsibility of the surviving spouse in the death of the deceased spouse or
as the means of cleansing the surviving spouse from the deceased spouse’s
spirit so they are free to marry again.
In the current case, it was the husband
who died and seemingly there was no dispute as to the “Akamutwe” custom but as
to the amount of compensation payable by the wife and her relatives. The matter
came before the Shaibila Native Court which ruled in favour of the respondent
(Jairus) and awarded the payment of £12 damages and £1 hearing fee. The appellant
(Kaniki) appealed against, this decision because the compensation awarded was
too high.
The learned Resident Magistrate, after
reviewing the history of the case and referring to various aspects of the
customary law, concluded that the custom itself was repugnant to natural
justice and therefore could not be enforced in a court of law. In coming to
this conclusion, he was largely guided by certain passages in a document
purportedly issued by the Native Courts Department of the Ministry of Justice
on the 20th of August 1964 (under ref.: NCL) as Circular No. 2, under the
heading of "Law of Persons: Marriage and related subjects General
Principles".
Issues
Whether the document “Law of Persons:
Marriage and related subjects General Principles” was evidence.
Whether the Lala custom of “Akamutwe” was
repugnant to natural justice and therefore could not be enforced in a court of
law
The High Court Held
It has jurisdiction to supervise any civil
or criminal proceedings before any subordinate court to ensure that justice is
duly administered by any such court.
The Native Courts Circular No. 2 of 20th
August 1964, was not evidence. It did not prove itself to have rendered it
admissible as evidence by the conditions prescribed by section 3 of the
Evidence Act, No. 8 of 1967 and the failure of the learned Resident Magistrate to
have the contents of the documents proved correctly in evidence before him was
a technicality.
In dealing with the document, the
magistrate had no power to consult it under the Subordinate Courts Ordinance, However,
the High Court has the power to refer to any publication that it considers
authoritative to ascertain customary law. The magistrate also could not take
judicial notice of African customary law. To acquaint himself with African
customary law he would either have to sit with African
assessors and seek their advice or receive the evidence of witnesses’
expert in African customary law. Which he did not in Casu.
All in all, despite the technicalities,
the High Court held that the learned Resident Magistrate could conclude that
the compulsory observance of the “Akamutwe” custom - that is, its actual
enforcement, - was contrary to natural justice, even though its voluntary
observance might not be.