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The Common Law in the Sudan: An Account of the 'Justice, Equity and Good Conscience' Provisionby Zaki Mustafa

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Page 1: The Common Law in the Sudan: An Account of the 'Justice, Equity and Good Conscience' Provisionby Zaki Mustafa

Editorial Committee of the Cambridge Law Journal

The Common Law in the Sudan: An Account of the 'Justice, Equity and Good Conscience'Provision by Zaki MustafaReview by: Akolda TierThe Cambridge Law Journal, Vol. 32, No. 2 (Nov., 1973), pp. 351-352Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4505711 .

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Page 2: The Common Law in the Sudan: An Account of the 'Justice, Equity and Good Conscience' Provisionby Zaki Mustafa

C.L.J. C.L.J. Book Reviews Book Reviews 351 351

faculties are everywhere apparent, tempered only where he discusses the judgments of the International Court or the views of its Judges. Yet, as an official of the Registry of the Court, one must forgive normal collrtesy and prudence. Let us hope this will not be the last ambitious venture into doctrine undertaken by Mr. Thirlway.

D. W. BowErr.

The Common Law in the Sudan: An Account of the ' lustice, Equity and Good Conscience' Provision. By ZAK1 MUSTAFA, Attorney-General of the Sudan. [Oxford: Clarendon Press. 1971. xv, 268 and (Index) 4 pp. £3 50 net.]

SecrloN 9 of the Civil Justice Ordinance 1929 is the most important source of civil law in the Sudan. It provides that, in cases which are not covered by legislation, the courts shall act according to ' justice, equity and good conscience." Dr. Mustafa gives a definitive account of its origin, extent and limits of application and the stages in the evolution of the common lasv in the Sudan.

The author considers the use of Section 9 as a source of law m the Sudan against the background of the Indian legal system (Chap. I), from which it is deri:ed. This is followed by an examination of the state of Sudanese law when the section was enacted (Chap. II). The actual work- ing of Section 9 is examined in Chapters III-VIII. The author shows how the courts started by referring to unlimited foreign legal systems for principles of ' justice, equity and good conscience" (Chap. III) and ended by applying English common (Chap. IV) and statute (Chap. V) law. Chapter VI (Deviaiions from English Law) concerns the extent to which the courts took account of the special circumstances and inhabitants of the Sudan. The application of English law brought with it common law techniques (Chap. VII) and set a foundation which bound the courts. It is to be expected that Independence is not affecting the growth of the common law in the Sudan (Chap. VIII).

l:)r. Mustafa examines the factors which underlie the reception of the common law in tlae Sudan and the continued domination of the 4' justice, equity and good conscience" provision by principles of English law. The book is well documented and there are many references to cases. Of the unreported cases which he has cited some have, since 1969, been published in the two volumes of Sudan Law Reports svhich cover the period 1900- 40. The number of cases remaining unreported will be reduced, it is hoped, by publication of those decided between 1941 and 1955.

Perhaps the onty cases which fall to be decided under Section 9 but without resorting to English law for principles of " justice, equity and good conscience" are cases of interpersonal conRicts. In the context of conflict of personal laws the directive in Section 9 that in cases not covered by legislation the courts shall act according to " justice, equity and good conscience" means that the courts should decide interpersonal conflict cases according to choice of law rules. Since English law does not contain rules of intexpersonal conflicts, the Sudan courts had to work out these choice of law rules unaided by the guidance which English law gives to cases decided under Section 9. These rules are analogous to those of private internationaI law in that each comprises two parts, one of which is a legal reEationship and the other a connecting factor. Both

faculties are everywhere apparent, tempered only where he discusses the judgments of the International Court or the views of its Judges. Yet, as an official of the Registry of the Court, one must forgive normal collrtesy and prudence. Let us hope this will not be the last ambitious venture into doctrine undertaken by Mr. Thirlway.

D. W. BowErr.

The Common Law in the Sudan: An Account of the ' lustice, Equity and Good Conscience' Provision. By ZAK1 MUSTAFA, Attorney-General of the Sudan. [Oxford: Clarendon Press. 1971. xv, 268 and (Index) 4 pp. £3 50 net.]

SecrloN 9 of the Civil Justice Ordinance 1929 is the most important source of civil law in the Sudan. It provides that, in cases which are not covered by legislation, the courts shall act according to ' justice, equity and good conscience." Dr. Mustafa gives a definitive account of its origin, extent and limits of application and the stages in the evolution of the common lasv in the Sudan.

The author considers the use of Section 9 as a source of law m the Sudan against the background of the Indian legal system (Chap. I), from which it is deri:ed. This is followed by an examination of the state of Sudanese law when the section was enacted (Chap. II). The actual work- ing of Section 9 is examined in Chapters III-VIII. The author shows how the courts started by referring to unlimited foreign legal systems for principles of ' justice, equity and good conscience" (Chap. III) and ended by applying English common (Chap. IV) and statute (Chap. V) law. Chapter VI (Deviaiions from English Law) concerns the extent to which the courts took account of the special circumstances and inhabitants of the Sudan. The application of English law brought with it common law techniques (Chap. VII) and set a foundation which bound the courts. It is to be expected that Independence is not affecting the growth of the common law in the Sudan (Chap. VIII).

l:)r. Mustafa examines the factors which underlie the reception of the common law in tlae Sudan and the continued domination of the 4' justice, equity and good conscience" provision by principles of English law. The book is well documented and there are many references to cases. Of the unreported cases which he has cited some have, since 1969, been published in the two volumes of Sudan Law Reports svhich cover the period 1900- 40. The number of cases remaining unreported will be reduced, it is hoped, by publication of those decided between 1941 and 1955.

Perhaps the onty cases which fall to be decided under Section 9 but without resorting to English law for principles of " justice, equity and good conscience" are cases of interpersonal conRicts. In the context of conflict of personal laws the directive in Section 9 that in cases not covered by legislation the courts shall act according to " justice, equity and good conscience" means that the courts should decide interpersonal conflict cases according to choice of law rules. Since English law does not contain rules of intexpersonal conflicts, the Sudan courts had to work out these choice of law rules unaided by the guidance which English law gives to cases decided under Section 9. These rules are analogous to those of private internationaI law in that each comprises two parts, one of which is a legal reEationship and the other a connecting factor. Both

This content downloaded from 91.229.248.152 on Tue, 17 Jun 2014 20:12:12 PMAll use subject to JSTOR Terms and Conditions

Page 3: The Common Law in the Sudan: An Account of the 'Justice, Equity and Good Conscience' Provisionby Zaki Mustafa

352 352 The Cambridge Law Journal The Cambridge Law Journal [19730 [19730

Charalambous Cocoias v. A. Cocolas HC-CS-259-1952 and Nicolas Stephanon Stergion v. Aristea Nicolas Stergion (1963) S.L.J.R. 182 discussed bythe authoratpp. 123-124 and 19S198respectivelyunder the heading Persona! Law) are consistent with this choice of law technique

The book is importants not only for an account of the factors under- lying the reception of the common law in the Sudan, but also for an inter- pretation of them in the context of the future. Irl his final chapter (Chapw IX) Dr. Mustafa considers contemporary views which silggest considera- tion of other factors in selecting principles of " justice, equity and good conscience." His penultimate conclusion (p. 244) that Section 9 is un- likely to disappear entirely from the Statute book is, of collrse, quite correct. Recent legislation in the Sudan has given it a new vitality. The Civil Code 1971 repealed Section 9, and virtually alI rules of the common law which have roots in it perished wiffi it. In May 1973, however, after Dr. Mustafa had become Attorney-General of the Sudan, the Civil Code was abolished (Iby the Organization of Laws Act, 1973) and the Civil Justice Ordinance I929 was restored with few modifications.

The Contmon Law in the Sudan is an outstanding piece of work and shows a profound understanding of, and sympathy withs the subject. Its value to Sudanese lawyers and students is enormous. It is also a book which comparative lawyers will wish to read. The quasi-legislative function of the courts is not unique to the Sudan and India. Section 1 of the Swiss Civil Code 1907, which provides that in cases which are not covered by legislation and customary law the iudge shalI decide " accord- ing to the rilles which he would lay down if he had himself to act as legislator" (see Williams, Swiss Civil Code (Sources of Law), Oxford University Press, 1923, p. 22), is a modern European example of the kind of legislation which Dr. Mustafa has investigated.

AKOLDA TIER.

Annual Survey of Af} ican Law, Volume 1, J967. Edsted by N. N. RUBINP B.A., LL.B., and E. COTRAN, LL.B., DIP l.L., Lecturers in African Law, SchooI of Oriental and African Studies, University of London. [London: Frank Cass and Co. Ltd. 1970. XXYi, 422 and (Index) 4 pp. £6*30 net.]

As would be expected when fifteen contributors combine together to provde an annual survey of Iegal developments in all fields in as wide an area as sub-Saharan Africa, the result is a medley of style and content. The first survey of African Law covers case and statute material for the year 1967. It is far from comprehensive (Liberia and Francophone Africa generally are important omissions) and the treatment given to Ethiopia and Zambia, in particular, is very sketchy. Nonetheless, ffie annual survey-if it can provide a somewhat more contemporary service could well prove invaluable to those who have an academic or professional interest in African legal developments. It is extraordinarily difficult to keep abreast of events in a continent as large and as politically mobile as Africa.

The present reviewer found the most valuable chapters in this first volume to be those on Tanzania (by J. S. Read); Rhodesia (by Professor Claire Palley) and Botswana, Lesotho and Swaziland (by N. N. Rubin). In the middle of a Iong and detailed account of developments in 1967 in

Charalambous Cocoias v. A. Cocolas HC-CS-259-1952 and Nicolas Stephanon Stergion v. Aristea Nicolas Stergion (1963) S.L.J.R. 182 discussed bythe authoratpp. 123-124 and 19S198respectivelyunder the heading Persona! Law) are consistent with this choice of law technique

The book is importants not only for an account of the factors under- lying the reception of the common law in the Sudan, but also for an inter- pretation of them in the context of the future. Irl his final chapter (Chapw IX) Dr. Mustafa considers contemporary views which silggest considera- tion of other factors in selecting principles of " justice, equity and good conscience." His penultimate conclusion (p. 244) that Section 9 is un- likely to disappear entirely from the Statute book is, of collrse, quite correct. Recent legislation in the Sudan has given it a new vitality. The Civil Code 1971 repealed Section 9, and virtually alI rules of the common law which have roots in it perished wiffi it. In May 1973, however, after Dr. Mustafa had become Attorney-General of the Sudan, the Civil Code was abolished (Iby the Organization of Laws Act, 1973) and the Civil Justice Ordinance I929 was restored with few modifications.

The Contmon Law in the Sudan is an outstanding piece of work and shows a profound understanding of, and sympathy withs the subject. Its value to Sudanese lawyers and students is enormous. It is also a book which comparative lawyers will wish to read. The quasi-legislative function of the courts is not unique to the Sudan and India. Section 1 of the Swiss Civil Code 1907, which provides that in cases which are not covered by legislation and customary law the iudge shalI decide " accord- ing to the rilles which he would lay down if he had himself to act as legislator" (see Williams, Swiss Civil Code (Sources of Law), Oxford University Press, 1923, p. 22), is a modern European example of the kind of legislation which Dr. Mustafa has investigated.

AKOLDA TIER.

Annual Survey of Af} ican Law, Volume 1, J967. Edsted by N. N. RUBINP B.A., LL.B., and E. COTRAN, LL.B., DIP l.L., Lecturers in African Law, SchooI of Oriental and African Studies, University of London. [London: Frank Cass and Co. Ltd. 1970. XXYi, 422 and (Index) 4 pp. £6*30 net.]

As would be expected when fifteen contributors combine together to provde an annual survey of Iegal developments in all fields in as wide an area as sub-Saharan Africa, the result is a medley of style and content. The first survey of African Law covers case and statute material for the year 1967. It is far from comprehensive (Liberia and Francophone Africa generally are important omissions) and the treatment given to Ethiopia and Zambia, in particular, is very sketchy. Nonetheless, ffie annual survey-if it can provide a somewhat more contemporary service could well prove invaluable to those who have an academic or professional interest in African legal developments. It is extraordinarily difficult to keep abreast of events in a continent as large and as politically mobile as Africa.

The present reviewer found the most valuable chapters in this first volume to be those on Tanzania (by J. S. Read); Rhodesia (by Professor Claire Palley) and Botswana, Lesotho and Swaziland (by N. N. Rubin). In the middle of a Iong and detailed account of developments in 1967 in

This content downloaded from 91.229.248.152 on Tue, 17 Jun 2014 20:12:12 PMAll use subject to JSTOR Terms and Conditions