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1967] LEGAL SYSTEMS
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These provisions are illustrative of the situations where the customary
law and practice has been the source of the formal law. They
represent customs that were considered sound or too deeply rooted
to change. The customs incorporated satisfy the criteria set forth by
Professor Krzeczunowicz above. In addition, there are a number of
references to custom; that is, certain matters are to be determined
according to the customary law or practice. In those areas, the law
will not be uniform. But for the most part those references do not
significantly affect substantive rights, and either concern matters of
form or matters to which references to custom are made in other legal
systems. 196
It is only in the area of adverse possession that substantial rights
can be determined according to customary law. This is a result of a
change made in the draft by Parliament. Under Article 1168 of the
Civil Code, a possessor who for fifteen consecutive years had paid
the taxes relating to the ownership of an immovable acquires ownership.
There is, however, a proviso to the effect that land which is
jointly owned by members of one family in accordance with custom
may not be acquired by adverse possession and that any member of
the family may claim the land. If the law of prescription is not applicable
in the area and the conditions of the proviso are met, adverse possession
creates no rights. 197 So, the legal effect of adverse possession
depends on whether the law of prescription was traditionally applicable
in the area and whether the land is deemed to be owned by a family
in accordance with custom.
This, then, is the extent of customary law in Ethiopia today. Customary
law and practice were the source of some of the provisions of
the formal law, and there are some references to custom, only one of
which significantly affects substantial rights. This is not likely to
change, as customary law is not looked upon with favor by most Ethiopian
jurists and lawyers. Experience may indicate that some dispositions
of the Code may have to be modified to take account of customary
practices, but even this is not too likely. Clearly, customary law
will not be included as a separate system.
Most significantly, there are a number of instances where the law
tion is for redress of the insult to the husband or the family and represents a
traditional practice. Id. at 62.
196 See the discussion and list of examples in Krzeczunowicz, supra note 36, at
60. 197 The Supreme Imperial Court passed on this article in a fairly recent case,
Tefera Sebhat & Eskias Sebhat v. Bahta Tesfaye (1965), 2 J. ET. L. 202 (1965).
It found that the plaintiff was not a member of the defendant's family claiming an
interest in family land and that, therefore, the exception to article 1168 was not
applicable. It is also reported that the government has a register showing the
areas where the law of prescription is applicable and where it is not.