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19671 LEGAL SYSTEMS
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other areas of law, and the impact of unfamiliar law will not be so
great there. 50 If customary law is to be retained, it will likely be in
the areas of family law, succession, and land tenure. In those areas
there will be different law for different peoples. There will either be
separate courts, primarily applying customary law,' 5 ' or the regular
courts will apply customary law in appropriate cases, or both methods
may be employed.
The other alternative is to avoid any separate system of customary
law. There will be only one body of law, though customary concepts
may be embodied in that law, and in certain instances customary law
may be incorporated by reference. 52 The significant feature of this
approach is that customary law does not exist as such except in the
few cases where it may have been incorporated by reference.
We may now consider how some other African countries have dealt
with this question. Upon such a consideration, we observe that almost
universally they have chosen to retain customary law as a separate
body of law, though limiting its operation and effect. 153 In Ghana,
customary law is to be applied by all courts where it is applicable,
and its applicability is specifically defined. 154 For example, if all the
parties claiming to be entitled to land trace their claims to a person
subject to customary law or from a family or group of persons subject
to the same customary law, the issue is to be determined according
to customary law. 55 The circumstances in which customary law is
applicable are comparatively few. The initial presumption favors the
application of the common law, and the burden is on the person seeking
the application of customary law to prove its applicability.' 5 " The
theory is that all persons are subject to the common law, but that
when a person shows that as a member of a particular locality he is
entitled to the benefit of a local custom in accordance with the law,
150 See note 129 supra.
15 In some countries these courts have limited jurisdiction in penal matters
and may apply the formal law in certain cases.
152To the extent that customary law is incorporated by reference there will be
different law for different peoples.
'1' At present it appears that Guinea is the only other country that has completely
abolished customary law. See Pageard, supra note 57, at 479.
154See A. ALLor, supra note 56, at 34-36. The former rules made customary
law applicable in cases between natives and between natives and non-natives if
the application of the English law would work an injustice and the parties had
not agreed to be bound by English law. The new approach avoids ethnic criteria;
it creates a concept of personal law and a series of rules to determine whether
the personal law is applicable. Harvey, supra note 53, at 599. There are also
local courts having jurisdiction in certain cases involving customary law. See
A. AmLoTT, supra note 56, at 40-43.
3.55. I LoTr, supra note 56, at 34.
156 Harvey, supra note 53, at 600.