Jurisdiction of the Buganda Courts and the Scope of Customary Law in Uganda

Author(s): H. F. Morris
Source: Journal of African Law , Autumn, 1965, Vol. 9, No. 3 (Autumn, 1965), pp. 154-
161
Published by: School of Oriental and African Studies

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JURISDICTION OF THE BUGANDA COURTS
AND THE SCOPE OF CUSTOMARY LAW IN
UGANDA

BY H. F. MoRius

The appeal, The Kabaka's Government v. N. S. W. Kitonto, he

recently by the Court of Appeal for Eastern Africa,' is of considera
interest not merely in respect of the basic issue in dispute a
whether the High Court or the Principal Court of Buganda h
exclusive jurisdiction to try the original case but also in respec
the far-reaching observations made in the appeal judgment as to th
place of customary law in relation to the common law. In this
the respondent had sued the Kabaka's Government in the Hig
Court of Buganda,2 alleging that a Mr. Sebowa "acting in
capacity and the scope of his authority as a servant of the Gov
ment" had negligently and unskilfully removed from the respo
ent's mouth two sound wisdom teeth instead of two decayed te
The Kabaka's Government pleaded that the transfer of the cas
the Principal Court of Buganda was obligatory under section 7 of t
Buganda Courts Ordinance, since the Principal Court had juri
diction to try the case. SLADE, J., refused to order transfer and t
case was tried in the High Court and decided in favour of
respondent. On appeal, it was held that the decision to ref
transfer was erroneous, the judgment being, accordingly, set a
on the ground of lack of jurisdiction.
In view of the number of recent cases involving the question
the scope of section 7 of the Buganda Courts Ordinance and
their constitutional significance, and particularly in view of the f
that the recently enacted Magistrates' Courts Act3 would once
were applied to Buganda-and so far it has not been so appl
effect the full integration of the Buganda and the Magistrat
Courts, it may be of interest first to review the history of this sect
Section 7, which reads as follows: "where any proceedings of
civil or criminal nature which a [Buganda] court has jurisdict
to try are commenced in a subordinate court or the High Cou
they shall be transferred to a [Buganda] court having jurisdicti
has its origin in the Buganda Agreement of Igoo. Article 6 of
Agreement states that "the Kabaka shall exercise direct rule ov
the natives of Buganda to whom he shall administer justice throug
the Lukiko [and his officials]". Although the judicial provision
the original Agreement were subsequently amended by the Bugand
(Judicial) Agreement of 1905 and by Proclamations made, with
Kabaka's consent, under the Courts Ordinance of 1911, which

1 Civil Appeal No. 14 of 1965 (as yet unreported).

2 [1963] E.A. 684-
3 Act 38 of 1964.

154

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Vol. 9. No. 3 Buganda Courts; Customary Law in Uganda 155
inter alia, removed from the jurisdiction of the Buganda courts cases
involving government servants and offences committed in townships
or under any "special or local laws", the exclusive jurisdiction of
the Buganda courts over Buganda was, in general, maintained. An
important change did, however, take place in I917 when, in
exchange for surrendering jurisdiction in criminal cases involving
death, the Buganda courts were given jurisdiction over "natives of
the Protectorate", whether or not they were Baganda. It must, on
the other hand, be borne in mind that the Uganda Order in
Council of 19o2 gave the High Court full jurisdiction over all
persons and matters in Uganda.
The position of the jurisdiction of the Buganda courts1 vis-a-vis
that of the High Court was clearly expounded in a memorandum
by J. M. (later Sir John) Gray, then a district magistrate, in 1928.
He distinguishes between the jurisdiction which the Buganda courts
exercised in respect of Baganda from that in respect of non-Baganda
Africans. In the case of the former, the terms of the Courts
Ordinance and Criminal Procedure Ordinance conferring on
"British courts" concurrent jurisdiction with native courts had, in
the case of Buganda, to be read subject to the terms of the Agree-
ments which gave the Buganda courts exclusive jurisdiction over
Baganda, except in so far as this had been limited by Proclamations
made with the Kabaka's consent.2 As far as non-Baganda Africans
were concerned, however, the Proclamation of 1917 conferred upon
Buganda courts full jurisdiction in respect of these people. Full
jurisdiction was not, however, Gray maintained, the same as
exclusive jurisdiction and, as far as these Africans were concerned, the
Buganda courts exercised jurisdiction concurrently with the High
Court.
Gray's dictum that the Agreements overrode the provisions of
enactments represented the current view of the time, based upon
the opinion of the Legal Advisers of the Secretary of State expressed
in 1907 in connection with the case Katosi v. Kahizi3 that the Order
in Council of 19o2 must be read subject to the terms of the Agree-
ments. This legal opinion was, however, reversed in 1930 when the
Secretary of State was again consulted on the point4 and the Legal
Adviser to the Colonial Office stated that in his opinion the decision

I Since the establishment in 1962, under the terms of the Constitution, of a

High Court of Buganda, the term "Buganda court" has become somewhat mis-
leading. The term is applied to the Principal Court and to the lower courts
subordinate to it, all of which operate within the framework of the Buganda
Courts Ordinance and administer basically the Buganda laws enacted by the
Buganda legislature and the unwritten customary law. The High Court of
Buganda, which has the same jurisdiction within Buganda as has the High Court
of Uganda, is not, in this sense, a "Buganda court" and this term, as used in this
article, does not include the High Court of Buganda. References to "the High
Court" in the Buganda Courts Ordinance have been held in the appeal judgment
under consideration to include the High Court of Buganda.
Z As an Attorney-General of Uganda pointed out on another occasion, these
Proclamations were, in effect, subsidiary agreements.
3 I U.L.R. 22.
4Section 4 of the Foreign Jurisdiction Act provides for reference to a Secret
of State of questions of jurisdiction.

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156 Buganda Courts; Customary Law in Uganda [ 1965] J.A.L
in the Swaziland case of Sobhuza II v. Miller' had destroyed the
validity of the earlier view.2
Although according to this new interpretation of the legal force
of the Buganda Agreement the Protectorate Government would
have been able to override its provisions in respect of the Buganda
courts' jurisdiction, there is no reason to suppose that this was the
Government's wish, even had it been prepared to face the political
storm which such action would have aroused. In fact, in I940 the
Buganda Courts Ordinance placed in statutory form the rights of
these courts to enjoy the residue of the exclusive jurisdiction which
the I900 Agreement had envisaged by the inclusion of section 7
quoted above. Indeed, this exclusive jurisdiction was extended
since it now applied in respect of all "natives" without distinction
between Baganda and non-Baganda.3 Moreover, the rights which
the Buganda courts enjoy under the Ordinance have since been
placed in an unassailable position. Article 8 of the Buganda Agree-
ment, 1955, laid down, in effect, that the Buganda Courts Ordinance
could not be amended or replaced except with the consent of the
Kabaka's Government and section 74 (5) of the Constitution has
likewise provided that the Ordinance can only be amended or
replaced with the consent of the legislative assembly of Buganda.4
The position regarding the jurisdiction of the Buganda courts
under the Ordinance is, accordingly, as follows. If a Buganda
court has jurisdiction to try a case and that case is instituted in a
subordinate court or the High Court, then it must be transferred to
a Buganda court for trial. The problem is to determine whether or
not in a particular case a Buganda court has jurisdiction. The
Buganda Courts Ordinance states5 that Buganda courts shall
administer "(a) the provisions of any native law; (b) the native
customary law prevailing in Buganda on or after the commence-
ment of this Ordinance" and expressly excludes from their juris-
diction6 proceedings "taken under any Ordinance or any English
or Indian law in force in the Protectorate, unless such court has
been authorised to administer and enforce such Ordinance or law".
In criminal matters the position has, at any rate in the past, been
clear. If, by the framing of the charge, it was clear that the case

1 [1926] A.C. 518.

2 There have since been a number of important constitutional cases in Uganda
in which it has been held that the Agreements were not part of the municipal law.
3 "Natives" were defined in the Ordinance as being members of an indigenous
tribe of Uganda and of certain of the neighbouring territories. The Ordinance
did not repeat the earlier restriction on Buganda courts, leaving cases involving
government servants and offences committed in townships.
4 The entrenched position of the Buganda Courts Ordinance is well illustrated
by the fact that, although in the forthcoming Revision of the Laws of Uganda all
ordinances will be redesignated as acts, an exception is to be made in the case of
the Buganda Courts Ordinance, since even to change its title, without the consent
of the legislative assembly of Buganda, would be to infringe the Constitution. This
enactment will, therefore, appear as the only "ordinance" in the statute book. A
result of this entrenched position is of course, that the new Magistrates' Courts
Act, which of necessity entails the supersession of the Buganda Courts Ordinance,
cannot be applied to Buganda without the consent of its legislative assembly.
s Section xo.
6 Section 9.

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Vol. 9. No. 3 Buganda Courts; Customary Law in Uganda 157
was being prosecuted under a section of the Penal Code or an
Ordinance which the Buganda courts had not been empowered to
administer, then the case was in the sole jurisdiction of the High
Court or a subordinate court, even though a similar offence existed
under Buganda customary law; if, on the other hand, the accused
was charged with an offence under customary law, then the Buganda
courts had sole jurisdiction.' With the disappearance of unwritten
customary criminal law and its replacement in Buganda by a local
codified criminal law, duplicating, though not necessarily in the
same terms, many sections of the Penal Code, it remains to be seen
whether the same principle for the determination of jurisdiction will
be applied.
As far as civil cases are concerned, the position is far more
complex. There is a large body of case law on the subject and from
these cases the following general principles emerge. Although on
the analogy of a criminal case it might be thought that the wording
of the plaint would be a determining factor, this is not so.2 Nor is
it necessarily the intention of the parties or the nature of the trans-
action that determines which court has jurisdiction. This, it
appears, can only be decided by an answer to the question whether
or not a Buganda court, if it were to try the case, would have to
rely substantially upon some law which it has no jurisdiction to
enforce; if so, then a Buganda court has no jurisdiction to hear the
case; if not, then a Buganda court alone has such jurisdiction. It
has, for example, been held, where the parties were partners in a
company and the plaintiff wanted accounts to be taken, the partner-
ship dissolved and a receiver appointed, that the trial of such a
case would involve administering the Partnership Act and that,
therefore, a Buganda court had no jurisdiction.3 On the other hand,
it has been held, where a plaintiff claimed for return of part payment
for a motor-car which had not been delivered and asserted that this
was a claim under the Sale of Goods Act, that this was a matter
which could well be settled by customary law, and that the Sale of
Goods Act need not be invoked and that, therefore, a Buganda
court had jurisdiction.4 In the case of Haji Ibrahim Mutyaba v.
Arthur Asaph Kalanzi5 it was held that "any English law in force in
the Protectorate" (which Buganda courts had no jurisdiction to
administer) included applied English statutes and the English
common law. Nevertheless, provided the cause of action were
known to customary law, even though it were also known to the
common law, the Buganda courts would still have jurisdiction. This
has resulted in the Buganda courts having extremely wide exclusive
jurisdiction, since the law applied these days in these courts as
customary law has absorbed to a very large degree the principles
and content of the English common law and it has been held, for

1 R. v. Muigira s/o Kataraina (1942), 6 U.L.R. II8.

2 H. I. Mutyaba v. A. A. Kalanzi, [196o] E.A. 367.
3 E. K. M. Kibalama and Ali Sentamu v. Joseph M. Basazemagya and ors. ('944)
6 U.L.R. 137. See also Nasanairi Njserikomawa and aror. v. Taibu Lwanga and anor.,
[i96I] E.A. Ig9.
4 Fabiano Buketya v. D. Mutebi, [s959] E.A. 366.
s [1960] E.A. 367-
2

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158 Buganda Courts; Customary Law in Uganda [1965] J.A.L.
example, that an action concerning damage arising from the
negligent driving of a motor car is within the Buganda courts'
jurisdiction.'
During the last few years, however, the tendency of court
decisions has been to restrict the exclusive jurisdiction of the
Buganda courts. In Reuben Musanje v. Tomasi Tamulemye2 it was held
that the burden of showing that a Buganda court would not have to
resort to statute or other law which it had no jurisdiction to ad-
minister lay upon the party seeking transfer to a Buganda court. A
more serious blow to the Buganda courts' position was the view
expressed by SLADE, J., in Wamala v. Sebutemba3 that the customary
law which the Buganda courts had jurisdiction to administer did
not include that body of the law which had come into existence
since the Buganda Courts Ordinance was enacted in i940. This
view was expressed even more forcibly by Mr. Justice SLADE when
the present case of Musa Kitonto came before the High Court and
in the following terms:
"The effect of this submission on the interpretation of section io
(b) is therefore that new custom, previously unknown and which
may indeed by foreign to the previous concepts of customary law,
can be established after the date of the commencement of the
Buganda Courts Ordinance. With respect to Mr. Jayarajan I
unable to accept that proposition. It does not seem to me that
words 'customary law prevailing in Buganda on or after the c
mencement of this Ordinance' have the positive effect claimed
them: the paragraph in question, in my opinion, means that
Buganda courts have jurisdiction to administer and enforce custo
ary law which had effect in Buganda at the date of the comme
ment of the Ordinance which continues to have validity at an
material time subsequent to that date and which has not cease
have validity by reason of, for example, replacement by writ
law or being regarded as obsolete and so no longer applicabl
modern conditions. In other words, I do not think that by claim
to have adopted into customary law the principles of the com
law, it can be said that the Buganda courts can confer jurisdic
upon themselves which by virtue of section 9 of the Ordinance
would not otherwise possess."

The Court of Appeal was, however, unable to accept Mr. Ju

SLADE'S view regarding customary law and the judgment of
J.A., stated as follows:
"As WHITLEY, C.J., said in Kivu v. Lukiko (VI U.L.R. io9)
'native customary law is capable of growth, and this is recogn
in the Buganda Courts Ordinance where by section io (b) t
native courts are empowered to administer "the native custom
law prevailing in Buganda on or after the commencement of t
Ordinance." The word "after" is important. The spread
education, contact with European civilization, and the setting
of a complex political order are bound to introduce new le
concepts'.

I E.g. Mutyaba v. Kalanzi and Flora d/o Agoya v. D. Kasigwa, [1962] E.A. 304.
s [ig61] E.A. 716.
3 [1963] E.A. 631.

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Vol. 9. No. 3 Buganda Courts; Customary Law in Uganda 159
"Clearly, if the legislature had intended to restrict native courts
to the administration of customary law in force in I94o, to the
exclusion of customary law which might develop thereafter, it would
have so provided specifically. I have no doubt that section to (b)
confers jurisdiction on the Buganda courts to administer native
customary law as from time to time in force, whether it developed
before 1940 or after.... The short answer seems to me to be that
where a cause of action at common law in a suit to which Africans
are parties, and which does not involve consideration of an
Ordinance or applied statute, is shown to be known to and form
part of the native customary law prevailing in Buganda, then for
the purposes of the Buganda Courts Ordinance that suit is within
the exclusive jurisdiction of the Buganda courts, under section io (b)
of the Ordinance, and is not to be considered to be English law
excluded from the jurisdiction of those courts by section 9 (c),
although the suit is expressed to be 'taken' under the English common
law."

CRABBE, J.A., discussed in some detail the purport of section io

(b). This section was capable of meaning either that the customary
law to be enforced was that prevailing when the Ordinance was
enacted or that prevailing when the dispute arose and, since either
interpretation was reasonable, it was the court's duty to adopt the
one more in accord with the presumed intention of the legislature.
"The construction that the learned judge adopted would, with
respect, lead to absurd results, because it would prevent the courts
from recognizing any evolutionary changes that have taken place
since Ist September, 194o. A statute is deemed to be speaking all
the time until it is repealed, and I have no doubt that if it was the
intention that the application of the native customary law was to
depend upon its existence at a particular date the legislature would
clearly have said so. A characteristic feature of the native customary
law is its flexibility. .... In its contact with European civilization
foreign concepts may creep into the native customary law and
influence it without necessarily depriving it of its essential character
of custom. A customary law that once prevailed may now exist in
a modified form owing to modern political, social and economic
developments. The new or modified custom may be deemed to have
acquired the force of law if it is shown that the members of the
community recognize it as an obligatory rule which regulates the
conduct of persons within that community."

DE LESTANO, J.A., was also in agreement with these views. In

his judgment, LAW, J.A., examined the question of whether, in fact,
the type of negligence involved in this case was known to the present
day customary law of Buganda and accepted the submission, based
upon such works as Haydon's Law and Justice in Buganda and Elias's
The Nature of Customary Law, that the doctrine of vicarious liability
was known to customary law. As to whether the concept of "pro-
fessional negligence" was known to customary law, no decision was
necessary. Sebowa was not qualified professionally as either a
doctor or a dentist and, though a Medical Assistant, "he was no
more of a professional man in the matter of dental surgery than a
jeweller is a surgeon when he undertakes to pierce a customer's
ears".

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16o Buganda Courts; Customary Law in Uganda [1965] J.A.L.
This decision of the Appeal Court would seem to have reversed
the recent trend of judicial opinion tending to restrict the exclusive
jurisdiction of the Buganda courts and on this account has been
hailed as a triumph by the champions of the rights of the Buganda
judicature. The judgment appears, however, to have much wider
implications, relevant not only to Uganda as a whole but to East
Africa in general. These concern the whole position of the customary
law vis-a-vis the common law and they will now be discussed. First,
however, it may be mentioned that this question is of particular
interest in Uganda at the present time, since there has been con-
siderable doubt as to the significance of the omission in 1962 from
the Judicature Act of the provision which had been contained in
section 20 of the Uganda Order in Council of 1902, which stated
that:

"... in all cases, civil and criminal, to which natives are parties,
courts shall be guided by native law so far as it is applicable and not
repugnant to justice and morality and not inconsistent with any
Order in Council, Ordinance or rules or regulations made there-
under."

The reason why this provision was omitted is unknown.

LAW, J.A., in his judgment quotes from Musanje's case' (decided
before the repeal of the Order in Council).
"It is clear from the provisions of section 20 that the English
common law, in its application to Uganda cases to which natives
are parties, is subject to native law (except in so far as that native
law may be repugnant to justice or morality)."

He then points out that since the repeal of the Order in Council
the High Court is no longer to be guided by customary law. Never-
theless, the fact that the Judicature Act incorporates the provision,
originally in the Order in Council, that the common law shall be
in force only so far as the circumstances of Uganda and its in-
habitants permit, supports the view that "where the common law
and customary law conflict, the customary law prevails".
DE LESTANG, J.A., in his judgment considered the same problem
and came to a similar conclusion.

"It will be observed that although the High Court is no longer

required to be guided by native law, it is not enabled to administer
the common law without qualification. The common law which it
is authorised to administer is subject to the Buganda Courts
Ordinance . . . and only applied (a) so far as that Ordinance does
not extend or apply and (b) so far as the circumstances of Uganda
and its inhabitants permit and subject to such qualifications as local
conditions may render necessary. Since the Buganda Courts
Ordinance establishes courts to administer and enforce [customary
law], it seems to me to be clear that in so far as Africans are con-
cerned native customary law, to which they are subject, prevails
over the common law even now."

This view as to the subordination of the common law to customary

law contained in the judgment of DE LESTANG, J.A., is of course,
I Reuben AMIusanje v. Tomasi Tamulemye, referred to p. 158, ante.

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Vol. 9. No. 3 Buganda Courts; Customary Law in Uganda 16i
expressed in relation to the special jurisdiction of the Buganda
courts but the similar view of LAW, J.A., quoted above, though
again expressed against the background of this special jurisdiction,
would appear to be of general application and to assert, in effect,
the general subordination of the common law to customary law.
This, indeed, would seem to be the interpretation which had been
given in Musanje's case (quoted above) to the provision in the
Order in Council requiring courts to be guided by customary law.
As SLADE, J., observed, with reference to Musanje's case, in the case
of Wamala,

". .. the effect of section 20 of the 1902 Order in Council . .

appears to be that where the parties were Africans . . . native law
prevailed over the common law (unless the native law was repug-
nant to justice or morality) but that if native law were inconsistent
with statutory enactments then the latter prevailed. It would seem
to follow that it was a logical extension of this principle that if in any
case between Africans before the High Court the case for either party
depended on consideration of both a statutory enactment and
common law and it appeared that native law provided a remedy but
that that native law was inconsistent with both the statutory provi-
sion and the common law, then the High Court must administer and
enforce the statute law so far as it affected some of the issues and
decide the remainder according to native law."'

The appeal judgment in Kitonto's case gives a similar interpretation

to the provision in the Judicature Act limiting the scope of the
common law with reference to the circumstances of Uganda and its
inhabitants. The effect of such an interpretation would seem to be
to restrict the common law to such matters as are unknown to
customary law as enforced today; and since, as has already been
noted, such customary law has absorbed a great deal of the content
of the common law (though not necessarily in identical terms), this
restriction would be a severe one.2 It is submitted that so wide an
interpretation was not in the past given to section 20 of the Order
in Council and that, although the provision that the general law
(other than local statute law) shall be subject to the circumstances
of the country concerned and of its inhabitants has, of course, been
invoked before in East Africa to clarify the jurisdiction of the High
Courts,8 its terms have not previously been accorded so ample a
scope. If the interpretation of the Appeal Court's judgment in this
case suggested above is correct, then its results could indeed be
far-reaching.

1 radically
had SLADE,.J., was, however,
altered of the
the position opinion
in this that the repeal of the Order in Council
respect.
2 In cases where the common law and the customary law are identical, then
it would not seem to matter whether the term "common law" or "customary
law" is given to the actual law applied in a particular case, except, perhaps, in so
far as the authority of judicial precedents is concerned. It should be borne in
mind that under the Magistrates' Courts Act such courts will be administering
both the common law and customary law; if the latter law is to prevail in the case
of choice of law, then the former will be confined to a comparatively narrow field.
3 E.g., Maleksultan v. Sherali Jeraj (I954) 22 E.A.C.A. 142, in which the provision
was invoked to justify the application of the Islamic law of marriage.

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