- 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".
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.