The Authority of English Decisions in Colonial Courts

Author(s): A. N. Allott
Source: Journal of African Law, Vol. 1, No. 1 (Spring, 1957), pp. 23-39
Published by: Cambridge University Press on behalf of the School of Oriental and African Studies
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THE AUTHORITY OF ENGLISH DECISIONS
IN COLONIAL COURTS1
BY A. N. ALLOTT2
SYNOPSIS
INTRODUCTORY
A. DEcIsIONs ON THE COMMONLAW
I. Decisionsbeforethe date of reception.
2. Decisionsafter the date of reception.
3. The effect of colonialcodificationof commonlaw.
B. ONENGLISH STATUTES
DE-csIoNs
I. Decisionson Englishstatutesof generalapplication.
2. Decisionson Englishstatutesinparinmateriawith colonialstatutes.
The law of Englandhas been introducedinto colonialterritories
to a varying extent and by various means3;as a consequence,
whetheradoptedenblocor piecemealor borrowedby way of Indian
law, the Englishlaw formsthe majorpart of the law applicablein
each territory,and is often the residuallaw which is called on in
defaultof an expressrule. But this receptionof the law of England
immediatelyraisesa problemof some magnitude;to what extent,
if at all, are the decisionsof courtsin England to be followedby
colonialcourts? It is somewhatsurprisingthat, at thislate hour,the
problem should not apparently have been considered by legal
writers,exceptin a usefularticleby Dr. T. O. Elias4.
A glanceat the colonialstatutebookswill revealthe greatdebt to
the law of England;a similarglance at the coloniallaw reportswill
show that colonial courts constantly cite English decisions as
authorities for their guidance in the interpretationof colonial
statutes. At the same time the reportsshowthat thejudgesrarelyif
ever stop to considerhow far theseEnglishdecisionsare bindingon
them. A view of court-libraries in Africadisclosesa similarreliance
on textbooksof Englishlaw. In the circumstancesa re-appraisalof
the problem,whichis one fundamentalto the applicationof English
law in the colonies,seemscalled for.
English law has not been adopted without limitations or
qualificationsin the colonialterritories;if, for example,the current
law of Englandwere alone in force, our task would be simplified.
The limitationsare of two main kinds;by the time of introduction,
1The paper deals primarilywith the positionin the courts of BritishAfrican
territories,to which observationsare limitedunlessstatedotherwise;furthermore,
it must be rememberedthat in SouthernAfrica the generallaw is Roman-Dutch
ratherthan English.
2 Lecturerin AfricanLaw, School of Orientaland AfricanStudies,University
of London, and a memberof the EditorialCommitteeof this Journal.
3 By legislationby the BritishCrownor by coloniallegislationadoptingEnglish
common law, equity, and statutesof general applicationas at a certaindate; by
colonial legislationsubsequentlyadopting, or re-enacting in similar terms, the
provisionsof EnglishActs, etc.
' ColonialCourtsand the Doctrineof Judicial Precedent(1955),
x8 M.L.R. 356, esp.
at pp. 366 et seq.

23

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24 Articles [1957] J.A.L.
and by the necessity to adapt English law to local circumstances.
The limitation by time arises because the legislation of each territory
adopts the English common law, equity and statutes of general
application as they were at a certain date (usually that when the
territory received a separate legislature)X; e.g., that for the Gold
Coast is 24th July, 1874. This date (hereinafter called " the date of
reception ") varies from territory to territory, thus procluding need-
less disparity and complexity as between different territories.
Changes in the law of England after the date of reception do not
(with certain exceptions) affect the law applicable in the territory.
The date is therefore a critical one.
The adaptation of English law to suit local circumstances arises
partly from the operation of general principles, and partly from
subsequent local legislation repealing, amending, codifying or
replacing the English law as received. The general principles are
often enshrined in the appropriate legislation. For instance, the
East Africa Order in Council, 19o2, as amended by the East Africa
Order in Council, 1911, provided by Article 15 for the application
of " the substance of the common law, the doctrines of equity, and
the statutes of general application in force in England on August 12,
1897 " as the residual law in force in the East Africa Protectorate,
subject to this proviso:
" Provided always that the said common law, doctrines of equity,
and statutes of general application shall be in force in the Protec-
torate so far only as the circumstances of the Protectorate and its
inhabitants and the limits of His Majesty's jurisdiction permit and
subject to such qualifications as local circumstances render
necessary."
Even where there is no express legislative provision on this point, it
is submitted that the application of English law in a colony is always
to be restricted by some such qualifications as the above. The
grounds upon which English law is excluded in some matter are
twofold: (x) the rule of English law in question may have been
designed to deal with matters and exigencies peculiar to the local
conditions of England; or (2) the rule of English law may be
unsuitable in the receiving country by reason of differences of race,
religion, and social custom. These two grounds may, but need not
necessarily, coincide. Apart from excluding a rule of English law,
a colonial court may be entitled to modify or adapt it to suit local
circumstances2. The extent to which English law applies in the
1 Cf. Elias, op. cit., 356.
* Nyali, Ltd. v. Attorney-General,[1956] 3 W.L.R. 341, H.L., is a good recent
illustration of the application of the English law (in this case that relating to the
prerogatives of the Crown) in the Kenya Protectorate. Leongv. Lim Beng Chye,
[1955] 2 All E.R. 903; [1955] A.C. 648, P.C., a Malayan appeal, perhaps marks
the extreme in the application of English law without qualification. See also
v. East India Co. (1836), I Moo. P.C.C. 175; reap CheahNeo v.
Lyons Corporation
Ong ChengNeo (1875), L.R. 6 P.C. 381; Li Po Kam v. Li Ling Shi (90o8), 3 Hong
Kong L.R. 70.
The necessity for the adaptation of the English law to render it suitable to local
African circumstances was strongly affirmed in the recent Northern Rhodesia case
of Reg. v. Jovan Phiri (I955), 5 N.R.L.R. Part I, 324, by EVANs,J., at p.
The case concerned a charge of defilement; Wallace-Johnson v. R., [1940] I329.All
E.R. 241; [1940] A.C. 231, P.C., was followed.

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Vol. I. No. I English Decisions in Colonial Courts 25

African territories is further limited by the rule that African

customary law is generally applied in suits between Africans
(" natives "). Whilst this does not affect the authority of English
decisions, it may affect their interpretation.
In our examination of the authority of decisions by English courts,
it will be necessary to treat separately of decisions on the common
law, and decisions on English statutes (whether adopted by the
colonial law as such, or re-enacted as colonial ordinances). A rather
different basis of division is by reference to decisions before, and
after, the date when a colony received its English law. Both these
methods of classification are taken into account below.

A. DECISIONS ON THE COMMON LAW

t. Decisions before the date of reception. The courts of a given colonial

territory are usually empowered to administer the English common
law and doctrines of equity. The Gold Coast Courts Ordinance,'
e.g., provides by section 83:
" Subject to the terms of this or any other Ordinance, the common
law, the doctrines of equity, and the statutes of general application
which were in force in England on the 24th day of July, 1874, shall
be in force within the jurisdiction of the Courts'."
And section 86 provides for the concurrent administration of law
and equity by every ' Court'. The first problem of interpretation
is whether the specified date in provisions of this type refers only to
the statutes of general application, or also to the common law and
equity applicable. Whilst it is possible to read (and the punctua-
tion suggests that reading) section 83 as applying the limiting date
solely to the statutes, it is submitted that by necessary intendment
the date should govern the rules of common law and equity applic-
able as well. Had the intention of the legislature been different, the
relevant words might have followed those of section 17 of the Courts
Ordinance, which provides that the Gold Coast Supreme Court is
to exercise matrimonial jurisdiction " in conformity with the law
and practice for the time being in force in England ".
Against this view it can be argued that the common law remains
the same from time to time, and therefore it is not necessary to
assign any date by reference to which its rules are to be ascertained.
This argument is consistent with the extreme and now generally
discredited view that the function of the judges is merely to expound,
not to make, the common law. This view of the expository function
of English judges is of great importance when we come later to
assess the authority of English decisions on the common law
delivered after the date of reception3. The evaluation of the
authority of English decisions prior to the date of reception is not,
however, affected by which view is taken of section 83.
Since the common law and equity in force in England at the date

1 Cap. 4,
195i Revision of the Laws of the Gold Coast.
2" Court " here means the superior and magistrates' courts, but excludes the
native courts.
3 See below at pp. 26 et seq.

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26 Articles [ 957] J.A.L.

of reception are expressly applied to the colonial territory, and since

the rules of this law and equity are to be found in the reported
decisions of English courts, it may confidently be put forward as a
rule that:
Decisions of English courts on the principles of common
law or doctrines of equity given before the date when a
territory received its English law are of binding authority in
the courts of the territory.
This rule does not, however, dispose of the further enquiry: which
English courts so bind colonial courts? Normally the operation of
the doctrine of precedents requires that the court enouncing a
precedent and the court subsequently considering whether to follow
it should form part of the same hierarchy of courts in order that the
precedent may be binding, and that the earlier court should be of
superior rank to (or exceptionally of co-ordinate rank or the same
court as) the later court. It is arguable that a superior colonial
court (e.g., the Gold Coast Supreme Court), which is approximately
of equal rank with the English High Court, should be bound in these
circumstances by decisions of the House of Lords, the Court of
Appeal and Court of Criminal Appeal, and the High Court (and
earlier courts of similar rank). Trimblev. Hill', though dealing with
decisions of English courts on statutes in pari materiawith colonial
statutes, suggests that colonial courts should at least take the
decisions of the English Court of Appeal as authoritative. But in
Robins v. National Trust Co.2, an Ontario appeal, Lord DUNEDIN,
delivering the judgment of the Judicial Committee, observed3:
" ... when an appellate Court in a colony which is regulated by
Englishlawdiffersfroman appellateCourtin England,it is not right
to assumethat the ColonialCourtis wrong. It is otherwiseif the
authorityin Englandis that of the House of Lords. That is the
supremetribunalto settle Englishlaw, and that being settled, the
ColonialCourt,which is boundby Englishlaw, is bound to follow
it. Equally,of course,the point of differencemay be settledso far
as the ColonialCourtis concernedby a judgmentof this Board."
This dictum would give much greater scope to colonial courts to
refuse to follow English decisions; but it is doubtful how far it
governs decisions given before the date of reception; and, further-
more, it goes contrary to the invariable practice of the courts in the
African colonies. These courts assume that decisions of whatever
English court (High Court or court superior to the High Court)
before the date of reception are equally of binding authority upon
them.
2. Decisions after the date of reception. There are two possible views of
the effect of such decisions on colonial courts. The first is that
English decisions explanatory of the pre-existing law are binding
even though delivered after the date when the colony received its
English law, by virtue of the fact that the common law is fixed and
P.C. (New South Wales).
a (1879), 5 App. Cas. 342,
2 A.C. 515, P.C.
[I927]
8 At
p. 519.

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Vol. i. No. I EnglishDecisionsin ColonialCourts 27
the judge's function is merely to find, reveal and apply the relevant
rule. The second view is that such decisions are not in strict law
binding, though naturally the opinions of superior courts in England
(more especially the House of Lords and Court of Appeal) on the
principles of the common law are entitled to the highest respect and
will be of great persuasive authority. It is submitted that the first
view, and the conclusion based on it, is untenable, although colonial
courts appear constantly to treat such English decisions as binding
on them'. Lord DUNEDIN'Sdictum in Robinsv. National TrustCo.2,
already referred to, might seem to suggest that colonial courts are
at least bound by decisions of the House of Lords. But it is submitted
that that dictum was not necessary for the decision in that case, and
that it would not be right to follow it without qualification or
restriction. The rule can therefore be stated (with less confidence)
as follows:
Decisions of English courts on the principles of common
law or doctrines of equity given after the date when a
territory received its English law are not of binding authority
in the courts of the territory; though they are entitled to the
highest respect if the English law has not been subsequently
statutorily modified.
3. The effectof colonialcodificationof commonlaw. The question of
whether English decisions retain any authority, binding or per-
suasive, when part of the common law has been codified in a
colonial statute is one of some difficulty. The general position in the
English law relating to the interpretation of statutes is, it is sub-
mitted, clear; courts are not entitled to refer to or rely on precedents
expository of the common law once that law has been codified'.
The code is a tabularasa. Nevertheless, English courts have been
known to refer to earlier precedents, even whilst interpreting a code.
Another principle well-established in English law is that a statute
in derogation of the common law, and especially one of a penal
nature, will be construed strictly, on the presumption that the least
change in the existing law was intended by the legislature. Now the
criminal law in all the African colonies (except Sierra Leone) has
been codified; these codes generally trace back to the law of
England4. The operation of these two principles of interpretation,
1 Dr. Elias, op. cit., 369, says: "
Post-I9oo [i.e., after the date of reception for
Nigeria] English decisions will still apply-(i) as long as they do not involve a
change of any particular common law doctrine or principle .. ." It is uncertain
whether by " apply " he means " have binding force " or "have persuasive
force "-presumably the former. The sort of change in the common law here
envisaged appears to be that flowing from a later English statute, and not merely
that resulting from later re-interpretation of principles in the courts.
2 [1927] A.C. 515, 519, P.C.; see above at p. 26.
' But the distinction between codes and consolidating statutes (which do not
operate to prevent reference to earlier decisions), is by no means clear in practice.
- In
Kenya, Uganda, Tanganyika, Nyasaland and Northern Rhodesia, the local
Penal Codes replaced the previously-applied Indian Penal Code. The Nigerian
and Gold Coast Criminal Codes are eclectic compilations from several sources.

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28 Articles [1957] J.A.L.
which apply in the colonial territories by virtue of the general
application of English law, in relation to such penal codes is a good
illustration of the difficulties involved.
If an English code displaces previous English decisions on the
common law, afortiori they are displaced by a colonial code. This
principle seems to be clearly stated by the Privy Council in the
Gold Coast appeal of Wallace-Johnson v. R.1 This case concerned a
charge of sedition under section 330 of the Gold Coast Criminal
Code, the terms of which largely reproduce the relevant passage of
Stephen'sDigest, i.e., the law of England. The section, however,
omits2any reference to violent means, which is an essential ingredient
in the English definition of sedition. The Judicial Committee had
to consider whether this qualification from English law was to be
read into section 330. Their Lordships'answer was negative, on two
grounds: (i) the exhaustive nature of section 330 indicated that the
intention of the legislature was that the section should be self-
sufficient; (2) no express mention of violent means was made,
perhaps to suit the law to the circumstances of the people of the
colony. The Board said, in an often-cited passage3:
" The elaborate structure of s. 330 suggests that it was intended
to contain as far as possible a full and complete statement of the
law of sedition in the Colony. It must, therefore, be construed free
from any glosses or interpolations derived from any expositions,
however authoritative, of the law of England or of Scotland."
The Board did not refer to section 7 (3) of the Criminal Code, which
provides:
" In the construction of this Code, a Court shall not be bound
by any judicial decision or opinion in the construction of any other
statute or of the Common Law as to the definition of any offence or
of any element of any offence."
Nor was the Gold Coast decision of Inspector-Generalof Police v.
Amuah4referred to. Section 7 (3) of the Criminal Code, whilst
removing the binding authority of English decisions on criminal
law, does not destroy their persuasive authority. It is therefore
submitted that Gold Coast courts are still entitled to refer to, and
adopt the argument of, English decisions in construing the Criminal
Code.
The dictum of the Privy Council in Wallace-Johnson v. R.5 was
followed by the Court of Appeal for Eastern Africa in the Uganda
appeal of ronasani and ors. v. R.6 This case concerned the law relating
to the trial of accessories after the fact, and whether the old English
rule that the principal must first have been convicted before the
accessory could be charged applied in Uganda. The Court found
that the Uganda Criminal Procedure Code7 contained no special

1
[1940] 1 All E.R. 241; [1940] A.C. 231, P.C.
2 Following
Stephens' omission (presumably by an oversight).
3 At pp. 244 in each report.
" (1929), F. Ct. '26-'29, 513; dictum of MICHELIN, J., at p. 519; for which see
below at p. 16.
" [1940] I All E.R. 241, 244; [194o] A.C. 231, 244, P.C.
6 (942), 9 E.A.C.A. 65.
7 Cap. 24 of the Laws of Uganda, 1951 Revision.

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Vol. i. No. I English Decisions in Colonial Courts 29

provision for the trial of accessories after the fact; they therefore
held that the ordinary procedure as laid down in the Criminal
Procedure Code applied. The Court cited the dictum of the Privy
Council in Wallace-Johnsonwith approval, and went on':
" What is true of the Gold Coast law of sedition is true also of the
Uganda law of accessories after the fact, and it is unnecessaryin our
opinion to engraft anything on to it from English law."
The Court in ronasani's case were not, strictly, construing the
Uganda Penal Code, but the Criminal Procedure Code; but the
Penal Code contains a provision in marked contrast to section 7 (3)
of the Gold Coast Criminal Code. The Uganda Penal Code2,
section 3, provides:
'"This Code shall be interpreted in accordance with the principles
of legal interpretation obtaining in England, and expressions used
in it shall be presumed, so far as is consistent with their context, and
except as may be otherwise expressly provided, to be used with the
meaning attaching to them in English criminal law and shall be
construed in accordance therewith."
An identical provision in the Kenya Penal Code3 was, however,
considered in the earlier Kenya appeal of Kimno Arap Kipturji v. R.1
This case turned on the construction of the Kenya Penal Code,
section 189 (c) as it then was5, which deals with the definition of
malice aforethought. The question was whether the section was to
be construed as it stood, or construed with additional reference to
English decisions, the effect of which would be to qualify and limit
the definition. The Court referred to relevant English decisions, and
continued6:
" In differentiating thus between fatal acts of violence felonious
in themselves but done without homicidal intent and fatal acts of
violence done without homicidal intent but in the course of or
furtherance of felonies we recognise the difficulties which beset a
Court endeavouring to interpret a code which by s. 4 thereof is to
be interpreted in accordance with the principles of legal interpreta-
tion in England, which means in accordance with cases from which
it is by no means easy to extract general principles. But we are of
the opinion that in coming to the conclusion that we should not be
justified in affirming this conviction for murder, we are giving proper
effect to the wording of s. 189 of the Code as the Legislature with the
effect of English decisions in mind should be taken to have
intended."
What is the exact effect of the reference to " English criminal
law " in the East African Penal Codes ? Does this mean merely the
law, and the cases where it is to be found, prior to the date of the
Penal Code; or does it include the law and cases after the date of
1At p. 68.
' Cap. 22.
24 of the Laws of Kenya, 1948 Revision, now section 5.
4s Cap.
(1934), 1 E.A.C.A. x88.
5 Now section 202. The section provides:
" Malice aforethought shall be deemed to be established by evidence proving
any one or more of the following circumstances-
(c) an intent to commit a felony."
' Atp.190.

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30 Articles [1957] J.A.L.
the Code ? The presumed intention of the legislature must have been
to incorporate by reference the English law as laid down in cases
before the enactment of the Code, since cases after that date could
not have been in the legislature's contemplation. On this argument
English cases before the date when the Code was enacted are of
binding authority; those after that date of persuasiveauthority only.
The rule which can be tentatively extracted from statutes and
cases is this:
Where a Penal Code makes express and exhaustive pro-
vision in regard to the definition of any offence or of any
particular expression, the colonial court must construe that
Code free from any glosses or interpolations derived from
decisions of English courts. Where the Code does not make
express or exhaustive provision, English decisions may be
referred to in order to elucidate or supplement the provisions
of the Code (and such decisions will be of binding authority
on the colonial court if given prior to the enactment of the
code)1.
This rule will apply to the Penal Codes of Kenya, Uganda,
Tanganyika, Nyasaland, and Northern Rhodesia. It does not apply
in tototo the Gold Coast Criminal Code. The Nigerian Criminal
Code contains no express provision in regard to its construction, and
is therefore to be interpreted on the general principles applicable to
other colonial codes2.
In regard to other colonial codes, it is submitted that the rule is:
Decisions of English courts on the common law are of no
authority in colonial courts in the construction of codes
replacing the common law3.
B. DECISIONS ON ENGLISH STATUTES
x. Decisions on Englishstatutesof generalapplication.We have already
seen that colonial law generally adopts such statutes at the same time
as it adopts the English common law and doctrines of equity4. The
statutes adopted are those in force in England at the date of recep-
tion. Which statutes are of general application is a question which
has been widely considered by the courts in Africa. Other English
statutes have, subsequently to the date of reception, been adopted
x The words in brackets are inserted solely by reason of the special provisions
of the East African Codes relating to interpretation of their provisions. And see
Laila Jhina Mauwiv. The Queen:Unreported, Privy Council Appeal No. 9 of 1956.
2
In Ogbuaguv. Police (1953), 20 N.L.R. 139, the charge was one of seditious libel
contrary to section 51 (1) (c) of the Nigerian Criminal Code. BAIRAMIAN, J., held
that the Nigerian Code is " meant to be complete and exhaustive "; he approved
and followed Wallace-Johnson's case, holding that a defence available in England
which has not been expressly incorporated in the Nigerian Code is not available
in Nigeria.
3 Cf. the
dictum of WHITLEY, C.J., in the Uganda case of R. v. Lotelimoi(1941),
6 Ug. L.R. 99, at p. Ioo: " The Privy Council have laid it down over and over
again that where a Colony has its own Code it is that Code which must prevail,
even if its application results in a conflict with English decisions."
' See above, at p. I.

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Vol. I. No. I EnglishDecisionsin ColonialCourts 31
nominatim in particular territories'. Furthermore, some imperial
statutes are expressly extended to particular colonial territories. The
suggested rule in regard to such statutes is similar to that already
given in regard to the common law2:
Decisions of English courts on English statutes in force in a
territory are of binding authority if given before the date of
reception or adoption, and of persuasive authority if after
that date.
This rule derives from the presumption that the colonial legislature,
at the time when it adopted the Act in question, must have intended
to adopt the construction put upon the terms of the Act at the same
time,
Some African territories have adopted certain Indian Acts3; it is
submitted that the rule above should apply equally to Indian
decisions on such Indian Acts. Some observations, obiter,of GUTHRIE
SMrrH, J., in the Zanzibar appeal of OfficialAssigneev. Cowasji
Dinshaw4, when it was before the Court of Appeal for Eastern Africa,
are against this view. This case dealt with the law of mortgage, the
relevant statutory provisions being those of a Zanzibar Decree which
replaced (in similar terms) the previously-applied Indian Transfer
of Property Act, 1882. The learned judge said5 that cases decided
in India before the Act came into force in India
" obviously have no application in Zanzibar. Even decisions after
the Act came into force, although they may be useful guides to the
meaning of the language, are not binding on the courts here and
may often be misleading owing to the differencesbetween the general
laws of the two countries."
In the application of English statutes, and precedents interpreting
them, colonial courts are generally entitled to modify them so as to
suit local circumstances. The Gold Coast Courts Ordinance,
section 85, provides:
" All Imperial laws declared to extend or apply to the jurisdiction
of the Courts shall be in force so far only as the limits of the local
jurisdiction and local circumstances permit, and subject to any
existing or future ordinances of the Colonial Legislature; and for
the purpose of facilitating the application of the said Imperial laws,
it shall be lawful for the said Courts to construe the same with such
verbal alterations, not affecting the substance, as may be necessary
to render the same applicable to the matter before the Court .. ."
It is submitted that colonial courts generally have such a power to
modify English statutes, even in the absence of express statutory
1 E.g., in Sierra Leone, by the Imperial Statutes (Criminal Law) Adoption
Ordinance, cap. o107 (1946 Revision), the English Forgery Act, 1913, Perjury
Act, 191 1, and Larceny Act, 1916, were adopted as part of the law of Sierra Leone.
And in Tanganyika, by the Land (Law of Property and Conveyancing) Ordinance,
cap. 114, the whole of the English law of property as at Ist January, 1922, was
adopted as part of the Tanganyika law.
s See above at pp. 4 and 5-
* E.g., Tanganyika, by cap. 2, has adopted the Indian Contract Act, Succession
Act, Limitation Act, and Hindu Wills Act.
* (1930), 4 Z.L.R. iii.
6 See p. 114.

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32 Articles [ 1957] J.A.L.

provision. The Hong Kong Supreme Court drew attention to the

difference, in this matter, between the application of an English
statute applied at the date of the general reception of English law,
and one whose terms were later adopted by colonial legislation, in
the case of Li Po Kam v. Li Ling Shi'. The Court held that an English
statute which was introduced at the date of the Hong Kong Charter,
and to be applied in the Colony so far as local circumstances admit,
must, in the matter of the private rights of Chinese inter se, be
construed with due regard to Chinese family law; but this rule does
not apply to a later statute like the Partnership Ordinance, 1897,
which bodily reproduced English legislation, and which contained
no express reference to Chinese custom.
2. Decisions on English statutes in pari materia with colonial statutes. It
is a well-known rule of the construction of statutes in England that
a court construing a later Act is entitled to refer to, and indeed, in
the absence of reason to the contrary, is bound by, the construction
put on the same or similar words or phrases in an earlier Act in pari
materia2.One reason for this rule is that the Legislature is presumed
to be consistent in its use of language; another that the earlier and
later Acts together form a system, which it is appropriate should
receive where possible a common construction.
Now neither of these considerations can apply when the earlier
statute is an English Act, and the later one a colonial ordinance;
there is not a common legislature, and the statutes do not form a
single system. Nevertheless, partly from a desire to preserve the
uniformity of the law in different parts of the Commonwealth and
Empire, and partly in order to give effect to the presumed intentions
of colonial legislatures, judges both in England and the colonial
territories have been very ready to follow English decisions in the
construction of colonial statutes in pari materia with English Acts.
A further factor has been the seductive availability of the English
law reports in the colonies, which-in the absence of local authority
--colonial courts are tempted to rely on for precedents.
The rule which colonial courts are to follow was first authorita-
tively laid down in the case of Trimble v. Hill3, on appeal from New
South Wales. A New South Wales statute had re-enacted the
provisions of an English Act on wagering contracts. The English
provision had been authoritatively interpreted by the English Court
of Appeal. The question was the extent to which this decision was
an authority in the colony (as it then was). The Privy Council
observed4:
"Their Lordships think that the Court in the Colony [i.e., the
Supreme Court of New South Wales] might well have taken this
decision as an authoritative construction of the statute. It is the
judgment of the Court of Appeal, by which all the courts in England
are bound, until a contrary determination has been arrived at by
the House of Lords. Their Lordships think that in colonies where a
1 (190o8),3 Hong Kong L.R.
I70.
of Statutes,ioth edn., 33 et seq.
s See Maxwell, The Interpretation
3
(1879), 5 App. Cas. 342, P.C. See also Catterallv. Sweetman(x845), x Rob.
Ecc. 304, dictum of Dr. LUSHINGTONat p. 318.
4At p. 344-

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 Vol. x. No. I EnglishDecisions
in Colonial
Courts 33
like enactment has been passed by the Legislature, the Colonial
Courtsshouldalsogovernthemselves by it."
Trimble v. Hill' was followedin Huntv. Fripp2,which was a conflict
case in the EnglishChanceryDivision. It involvedthe application,
as aforeignlaw, of the Victorianbankruptcylaw. On the point at
issueit was foundthat the law of Victoriawas in the sametermsas
the EnglishBankruptcyAct. BYRNE,J., the trialjudge, said3:
" The effectof the [expertwitness's]
evidenceis, andthatis now
common ground ... that, although not in the strict sense of the word
binding,thedecisionsoftheCourtofAppealinEngland areregarded
with the highestrespectin the Courtsof the colonies,and that
you are entitledto lookat the Englishdecisionsin
substantially
mattersturninguponthe construction of similarstatutesas giving
the law which,shouldthe precisepointarise,the Courtsin the
Australiancolonieswouldact upon."
The rule in Trimble
v. Hill' was also approvedand followedin the
Ceylon appeal of Nadarajan Chettiarv. WalauwaMahatmea4, where
the Privy Councilcharacterisedthe rule as " a sound rule, though
there may be in any particularcase local conditionswhich make it
inappropriate". This appeal raisedthe problemof the authority
of English precedentsin a particularlyclear-cut form, and con-
siderablyclarifiedthe juristic basisof the rule in Trimblev. Hill'.
A preliminarypoint must be dealt with beforewe proceed to
considerthe factsof this caseand the observationsof theirLordships
on the ruleto be followed.
The extentto whicha colonialordinancereproducesthe language
of Englishstatutesvariesgreatly. At one end of the scale we have
caseswhereisolatedwordsor phrases,whosemeaningin relationto
their context in English statutes has already been explored by
judicial decision, are borrowed by colonial legislation, though
sunderedfromtheiroriginalcontextor contexts. Such, in effect,is
true of the whole of legal vocabulary:words like " ownership",
" occupier", " residence", " intention", " notice", are the
commoncoin of the colonial,as of the English,legislator;and they
are only given meaning in their context of colonial legislationby
reference,consciousor otherwise,to their meaningin Englishlaw.
But it could hardlybe arguedthat a colonialcourtis constrainedto
follow every constructionthat an Englishcourt may have put on
such words and phrases. The doctrineon statutesin pari materia
cannotapplyto this aspectof interpretation.
Next we have instanceswhere sections or other considerable
portionsof Englishstatutesare borrowedbodilyby coloniallegisla-
tion, thoughthe generalschemeof the statutesin whichthey appear
may be differentin the twojurisdictions,or only part of an English
Act may be taken. Such, for instance,is the case with the Gold
Coast Married Women's Property Ordinance, cap. 131, which
adopts, in part, the policy and language of the English Married
Women's PropertyActs, 1870-1882. Here the argumentthat a
1
(1879), 5 App. Cas. 342.
s[1898] Ch.
3 At 675.
p. 679.
4 [1950] A.C. 481, P.C.

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34 Articles [1957] J.A.L.
colonial court may or ought to refer to English decisions on the
comparable Act becomes stronger.
The danger of indiscriminate use of English statutes as standards
of comparison and guides to construction for colonial statutes was
clearly put by the Judicial Committee in the Straits Settlements
appeal of Commissionerof Stamps, Straits Settlementsv. Oei Tjong Swan
and ors.'. This case concerned the charging of estate duty under the
local Stamps Ordinance, the wording of which closely followed,
though with variations, that of the Finance Act, 1894. The Board
censured the technique of interpreting the colonial statute by " an
elaborate comparison of its provisions " with those of the Imperial
Act and by drawing inferences from variations between Ordinance
and Act; their Lordships called this a " perilous course to adopt ",
which did not commend itself to them:
" Decisions of the Imperial Courts on statutes dealing with
similar or the same subject-matter may often be useful in the inter-
pretation of similar provisionsin colonial measures,and a comparison
between similar measures of the Imperial and the Colonial Legisla-
tures may on occasion be helpful: cf. Alcock,Ashdown& Co. v. Chief
RevenueAuthority,Bombay. But it is quite a different thing to institute
a textual comparison such as has here been made and to rely on
conjecture as to the intention of the draftsman in selecting some and
rejecting other provisions of his presumed model."
Lastly we have instances where a colonial legislature has taken
over, word for word, an English statute, at the most with insig-
nificant verbal changes. Such was the case in the already-cited
Hong Kong case of Li Po Kam v. Li Ling Shi3 with the Hong Kong
Partnership Ordinance, 1897; and such was the case in Nadarajan
Chettiar v. Walauwa Mahatmea4, the already-cited Ceylon appeal,
which concerned the construction of the Ceylon Money Lending
Ordinance, 1918. The argument that colonial courts should take
notice of, and be bound by, English decisions on the parent English
Act becomes so strong as to be almost irresistible. Nevertheless, the
argument must be resisted. The facts in the Ceylon case were that
a borrower was claiming relief against a moneylender under
section 2 (2) of the Ceylon ordinance, which was in identical terms
with section I (2) of the English Moneylenders Act, 19oo. There
happened to be a decision of the English Court of Appeal construing
the relevant words in the English Act; was this decision a binding
authority for Ceylon courts construing the Ceylon ordinance ?
The opinion of the Board, delivered by Sir John BEAUMONT, was
a qualified negative. His Lordship referred to the rule in Ex parte
Campbell5,which has been frequently followed by English courts:
" Where once certain words in an Act of Parliament have received
a judicial construction in one of the Superior Courts, and the
Legislature has repeated them without any alteration in a sub-
sequent statute, I conceive that the Legislature must be taken to

1 [1933] A.C. 378.

2 L.R. 50 I.A. 227, 238.
(I923),
8 (1908), 3 Hong Kong L.R. 17o; see above at p. iI.
' 11950] A.C. 481.
6 (1870), L.R. 5 Ch. App. 703 at p. 70o6,per Sir W. JAMES, L.J.

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Vol. i. No. i EnglishDecisionsin ColonialCourts 35
have used them according to the meaning which a Court of com-
petent jurisdiction has given to them."
But His Lordship continued':
" It is, however, one thing to presume that a local legislature,
when re-enacting a former statute, intends to accept the interpreta-
tion placed on that statute by local courts of competent jurisdiction
with whose decision the legislature must be taken to be familiar; it
is quite another thing to presume a legislature, when it incorporates
in a local Act the terms of a foreign statute, intends to accept the
interpretation placed on those terms by the Courts of the foreign
country with which the local legislature may or may not be familiar.
There is no presumption that the people of Ceylon know the law of
England, and in the absence of any evidence to show that the
legislature of Ceylon at the relevant date knew, or must be taken
to have known, decisions of the English courts under the Money-
lenders Act, there is no basis for imputing to the legislature an
intention to accept those decisions."
These observations put the position very clearly, and show that the
rationale of the rule in Trimble v. Hill2 must not be sought in the
presumed intention of the legislature, despite several decisions and
dicta to the contrary. For instance, in the case of Chogleyv. Baines3,
a recent appeal from Kenya, the Privy Council had to consider
Kenya rent restriction legislation, and the procedure on a judgment
for possession. After referring to the English procedure, the Board
went on4:
" Their Lordshipswere rightly reminded that there are significant
differences in this respect between English procedure and Kenya
procedure (which is derived from the code of British India). But,
for all that, it would be deliberate blindness not to recognise that
section I6 (6) of the ordinance [Increase of Rent (Restriction)
Ordinance, 1949] is a reproduction of an English model-see, for
instance, the Increase of Rent and Mortgage Interest (Restrictions)
Act, 1920, section 5 (5)-and its purport must be understood in the
light of its English origin."
The rule in Trimble v. Hill2 is a rule for courts, not a rule for
legislatures; that is, it does not presume to dictate the way legisla-
tures are to use words and phrases, but prescribes for courts the
construction which they are to put on words and phrases actually
used by a legislature. Even if we adopt the explanation that the rule
rests on the presumed intention of the legislature, only English
decisions before the date when the colonial statute was enacted
could be deemed to be incorporated by reference. English decisions
after that date cannot, with any elegance, be binding authority for
colonial courts, though they may be of the highest persuasive
authority where the tribunal is the House of Lords or the Court of
Appeal.
The rule is not absolute in its terms. Even if we adopt the view-
which is not recommended-that English precedents may be of
binding authority, they will not be binding in all cases without
1 ]195o] A.C. 481, at p. 491.
2
(1879), 5 App. Cas. 342.
[1955] 3 All E.R. 148; [1955] I W.L.R.
3
877, P.C.
4 At p. 153-

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 36 Articles [1957]J.A.L.
qualification.Two of the majorreasonswhich dissuadea colonial
court from following an English precedentotherwiseapplicable
are: (i) that local conditionsmake the principlein the English
precedentinappropriateforlocal application(thisqualificationwas
considered in Nadarajan Chettiarv. Walauwa Mahatmeal); (2) that the
English decision does not accord with the policy of the colonial
legislature as expressed elsewhere in the statute under consideration,
or in other statutes constituting a scheme of which the particular
statute forms part-this was the position in the recent Nigerian
appeal of PatienceKasumuv. Gbadamosi
Baba-Egbe.
Kasumu's case also, coincidentally, concerned moneylenders. The
question at issue was the nature of the relief which may be granted
to a borrower by a moneylending transaction which infringes the
regulating statute, in this case section 19 of the Nigerian Money-
lenders Ordinance, cap. 136. As to the language and function of
section 19, Lord RADCLIFFE, for the Board, observed3:
"... section 19 is only one of a comprehensive set of provisions
contained in the Ordinance which regulate the conditions under
which moneylending can be carried on in Nigeria and the permitted
effects of moneylending transactions. These provisions reproduce
many of the sections of the current Moneylenders Act of the United
Kingdom, the Moneylenders Act, 1927, though section i9 itself has
no counterpart in that Act, and the scheme of the Ordinance is
largely modelled on the legislation of the United Kingdom. It does
not appear that the Nigerian courts have laid down any principles
of their own in the interpretation of the Ordinance and the decision
of the [West African] Court of Appeal which is now under appeal
consists essentially of a weighing of the authority of Lodgev. National
UnionInvestment Co. Ltd.' against that of Cohenv. Lester(J.) Ltd.5"
Kasumu's case thus presented a rather more difficult problem of
interpretation than the usual case where the ipsissima verba of an
English Act have been used in a colonial ordinance, since in this
case the relevant section, 19, had no exact counterpart in the
English Act. The task of the courts was therefore that of attempting
to marry English decisions on slightly different legislation to the
analogous legislation of Nigeria. As Lord RADCLIFFE continued6:
".. . It is necessary for their Lordships therefore to ascertain
clearly what principle is involved in the decision of Lodge'scaseand
then to decide whetL.erthat principle is capable of being applied
consistently with the policy of the legislature shown by such an
enactment as section Ig of the Ordinance."
After analysing the judgment of PARKER,J., in Lodge's case and
explaining its historical significance in English law, Lord RADCLIFFE
went on to say that, in their Lordships' opinion, the principle of
Lodge's case ought not to be applied to a transaction declared
unenforceable by section 19 of the Nigerian Ordinance, as it would
lead to anomalous distinctions':
1
[1950] A.C. 48!.
2
3 11956] 3 All E.R. 266; [1956] A.C. 539.
4 [1956] 3 All E.R. 266, at p. 269; [1956] A.C. 539, at p. 547.
I Ch. 300.
8 [1I97]
[1938] 4 All E.R. 188; [1939] I K.B. 504.
6 [1956] 3 All E.R. 266, at p. 269; [1956] 3 A.C. 539, at p. 548.
Ibid., at pp. 271, 551, respectively.

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Vol. I. No. I EnglishDecisionsin ColonialCourts 37
"... In their Lordships' opinion it is not possible to transfer the
principle which guided the courts in dealing with claims based on
the Usury Acts to claims for relief arising out of transactionsrendered
void or unenforceable under the system of regulation which is con-
tained in the Moneylenders Act. For in most respects the purpose
of the two sets of Acts is essentially different .. ."
Kasumu's case is not a perfect example of the way in which English
decisions are to be applied in the interpretation of colonial statutes,
since the English decision there considered would now seem to be
of doubtful authority in England, and its introduction into the case
was almost a red herring; but the careful judgment of the Board
exposing the historical explanation and social function of a particular
legal principle should serve as a model to other courts which may
perhaps be too ready to transfer a principle of English law untouched
into a different context, legal and social.
Which are the courts that are to be bound by decisions on
statutesinparimateria, and which are the courtswhosedecisionsare
to be thustreatedas binding? Trimble v. Hill' suggeststhat decisions
of the EnglishCourtof Appealare authoritative;Robinsv. National
TrustCo.2puts forwarddecisionsof the House of Lords and the
Privy Councilas authoritative. The better answeris that which
treatsEnglishdecisionsas, at the most,of persuasiveauthorityonly,
though the degree of persuasionmay vary with the rank of the
court whosedecisionis to be followed. As to the courtswhich are
governedby the rulein Trimble v. Hill', a furtherpointwas addedin
the Ceylonappealof Cooray v. TheQueen3, wherethe rulewas applied
to the constructionof the CeylonPenalCode in the light of English
decisionson the LarcenyActs, 1812and 1861. The Boardsaid,per
Lord PORTER4:
".. . It is true that in that case [Trimblev. Hill] the decision
referred to was one given by the Court of Appeal and that the courts
which it was said should follow it were courts of a colony, but in
their Lordships' view English courts should themselves conform to
the same rule where there has been a long-established decision as to
a particular section of an Act of Parliament, and even more so where
there has been a series of decisions over a period of years. They
accordingly are of opinion that in the case of the courts of a member
of the British Commonwealth of Nations a similar course should be
followed."
In short, what is sauce for the goose is sauce for the gander5.
1 (1879), 5 App. Cas. 342.
2
[1927] A.C. 515, P.C.; see above at p. 4.
A.C. P.C.
1 At p. 419. 407,
S[11953]
5 Such, in fact, was the position in the recent case of In re WesternManufacturing
(Reading)Ltd., [1955] 3 All E.R. 733; [1956] Ch. 436, coramWYNN-PARRY, J. The
case involved the construction of the English Companies Act, 1948, section 209 (I).
A Canadian decision on the Canadian Companies Act, 1934, section 124 (1) was
cited by counsel to support his construction of the English statute. WYNN-PARRY,
J., observed (at pp. 238 and 445, respectively):
"... Now, although that decision is not binding on me, even as a judge of
first instance, it is one which should of course be examined and treated with the
greatest respect. Further, I am bound to bear in mind, and I do bear in mind,
what was said by the Privy Council in Trimblev. Hill. . ... Nevertheless, it is
incumbent on me to construe section 209 of the Companies Act, 1948, for

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38 Articles [ 957] J.A.L.

Furthermore, the operation of the rule is not circumscribed by the

political independence of the country whose courts are considering
an English precedent. And again, the courts of England could thus
be bound by decisions of the Judicial Committee.
In the Gold Coast case of Inspector-Generalof Police v. Amuah'
the rule in Trimble v. Hill2 was not mentioned. The charge was
based on section 277 of the Gold Coast Criminal Code, and an
English decision on similar words in the Larceny Act, 1861, was in
point. MICHELIN, J., adverted to section 7 (3) of the Criminal Codes
(which was relevant here); but the learned judge added4
" Although, undoubtedly, the Court is not bound by such judicial
decisions, yet, if the section of the local Ordinance contains pro-
visions which are similar to those of the corresponding English
Statute, the decisions of the superior Courts in England are entitled
to respect here, and have in such circumstances for many years past
been, as a rule, followed by this Court in criminal cases."5
What rule is to be extracted from the cases? The following rule
is tentatively put forward, partly as a statement of the law, and
partly as a suggestion for its clarification or improvement. It should
be borne in mind, when contrasting this rule with that dealing with
decisions on English statutes adopted as part of the law of a colony,
that the English decisions relevant here are delivered, not on the
statute which forms part of the law of a colony, but on statutes in
similar terms to those of the colony.
Decisions of English courts construing an English statute
which is in pari materia with a subsequent colonial statute, or
construing words, phrases, or provisions taken from an
English statute and incorporated in a colonial statute, are
entitled to the highest respect in the courts of the colony, but
are of persuasive authority only. The degree of persuasion
to be attached to an English precedent varies according to
the following factors: (a) the rank of the enouncing court;
(b) whether the precedent was before or after the date of the
colonial statute; (c) the length of time that the precedent has
been established and the number of times that it has been
followed by English courts.
The above rule is qualified by the following exceptions:
(I) Decisions of the Judicial Committee of the Privy Council

myself,bearingin mind that a provisionequivalentto subsection(2) does not

appearin the CanadianCompaniesAct, and in the light of the relevantEnglish
decisions."
(1929), F. Ct. 1926-1929, 513, in the Full Court.
2 (1879), 5 App. Cas. 342.
3 For which see above at p. 7-
45 At p. 519.
However,there was a previousdecisionof the Gold Coast Full Courtwhich
disposedof the instantcase; the referenceto Englishdecisionswas thereforenot
strictlynecessary.

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Vol. I. No. I English Decisions in Colonial Courts 39
on a colonial statute are of binding authority for the con-
struction of statutes in pari materiaof other colonies.
(2) Where it is provided that any part of the law applicable
in a colony shall be the current law of England', English
decisions are thereby binding on the courts of the colony.
(3) Where the courts of a colony are expressly commanded
to adopt English rules of construction, then English decisions
may be binding on the said courts.
(4) Where the courts of a colony are expressly debarred in
any matter from referring to previous or existing English law,
then English decisions are of no authority whatever.
(5) In any case, English decisions apply only so far as local
circumstances permit, and subject to such qualifications as
are necessary to render them suitable to local conditions.

' Cf., e.g., the marriage law of the Gold Coast. Section 17 of the Courts
Ordinance, cap. 4, provides:
" The jurisdiction hereby conferred upon the Supreme Court in Probate,
Divorce and Matrimonial Causes and proceedings may, subject to this Ordinance
and to Rules of Court, be exercised by the Supreme Court in conformity with
the law and practice for the time being in force in England ..."

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