NO.

11

Article 15(2) of the Uganda order in council provided that, the legislation of colonies and other treaties
where the English common law in a whole part or in part prevails is governed by some rules of
constructions as applied in England. In the light of the above provisions, evaluate the applicability of the
English common law and statutes of general applications in Uganda.

Common law can be best understood by tracing the origin of English law

In 1066, William of Normandy gained the crown by defeating king Harold at the battle of Hastings
before the arrival of the Normans, there was nothing as the English law, therefore the Anglo-Saxon legal
system was based on the local community. Each area (Dane, Mercia, and Wessex) had its own court in
which local customs were applied. After taking over, king William1 embarked on unification of Dane,
Mercia and Wessex to form 1 kingdom called the United Kingdom. This created the right climate for the
evolution of the uniform law and the whole country that is Jus commune

The Normans under king William 1 abolished land ownership and declared that all land was to be
owned by a king. He also dominated commerce

In 1100 king Henry dominated and ruled the United Kingdom in his reign, he introduced assizes
(courts) to different courts of the United Kingdom. The Normans exercised central control by sending
representatives of the kingdom from Westminster to all parts of the country to check on the
administration. At first those royal commissioners called curia Regis performed a number of tasks like
making land and wealthy records tax collections.

When the commissioner had completed their travels around the country, the returned to West minister
and discussed the different culture they encountered. They then rejected the ones which were
unreasonable and accepted the one which were reasonable, then formed a uniform pattern of law
throughout England. The selection of certain culture and applying them in all future cases created the
common law.

Therefore, according to Sir William Blackstone in his book commentaries of English laws volume 4,
defined common law as set of rules and regulation that were established by courts of law in England and
Wales through judicial decisions. It includes the application of the decisions combined with all legal
principles appreciated and applied in courts of law in England and Wales.

Judicial legislation were laws made by the courts of law which led to stare decisis.

Over the period of time, the common law became a very rigid system of law hence making the
court of common law fail to give redress in some cases where redress was needed. This left a big gap to
be filled hence giving a rise to equity.

According to the Blacks law dictionary revised fourth edition page 636, defines equity as a body
of jurisprudence differing in its origin, theory and methods of application from common law. Equity can
also be defined as fairness, justice and equal treatment. It was brought to soften the rigidity of common
law. Therefore, without common law, equity does not exist. The decision of court of chancery was often
at odds with those made by common law courts. This proved to be a source of conflicts until the start of
the 17th century when king James 1 ruled that in cases of conflicts between common law and equity,
equity was prevailed. Equity is therefore a gloss on common law since it was designed to complement
the common law rules and not replace them.

In the case of Earl of oxford of 1615, the lord chancellor Elsemere contented that he
had power to set aside a common law judgement on the basis of equity and good conscience. Equity is
based on number of maxims namely, -equity follows the law, equality is equity, delay defats equity, he
who seeks equity must do equity.

There are many ways in which common law has been applied in uganda as seen below;

 spauls immunity, this is provided under article 28 clause 11where a person is being tried for a
criminal offence neither that person nor the spools of that person shall be compelled to give
evidence against that person. In the case uganda vs Kato peter and others 1976.
 Self-defense, this is provided under section 15 of the penal code act.
According to the black’s law dictionary, a statute is a particular law enacted and
established by the will of the legislative department of government. Uganda was declared a
British protectorate on June 18th and August 21st 1894.Sir Henry Johnson came as a special
commissioner to negotiate the 1900 Buganda agreement and it was regarded as the first
constitution .1902, we had the uganda order in council which provided that the jurisdiction of
the court will be exercised so far as circumstances permitted upon the principles of and
inconformity with the substance of the law for the time being enforced in England. There was no
parliament or law-making body but the administration was governed by the order in council
which thus brought in the English law. Firstly, the order in council established the high court of
uganda through its amendment in 1911 and it clearly provided for the date of reception of the
law of England. It also introduced the repugnant doctrine. The 1911 amendment is important in
the sense that it established the date of reception of English law ;11 th August 1902.
The jurisdiction was to be exercised in conformity with the substance of the common law,
doctrine of equity and statutes of general application in courts in England on 11 th August 1902.
The 1902 order in council brought in law through of English origin but from India except so far as
it may otherwise be provided would apply in Uganda. It remained the substance of the law until
1962.
The Judicature Act of 1967 was made by Parliament of Uganda by then. It
provided in Section 2 that the substance of the reception shall continue to apply provided the
said common law, doctrines of equity and statutes of general application shall be in force in
Uganda only so far as the circumstances of Uganda and its inhabitants permit, subject to such
qualifications as local circumstances may render necessary.
The judicature act of 1967 ended the statutes of general application as the
applicable in Uganda. This was not in expressed terms, it was simply an omission on their
mentioned. This position is further well enunciated in the holding of justice PIATT, J.S.C in
UGANDA MOTORS LIMITED VS WAVAH HOLDINGS LIMITED CIVIL APPEAL NO.19 OF 1991 where
he held that the reference to Acts of general applicability was deleted from the 1967 Judicature
Act. Such acts consequently no longer apply to Uganda Section 3(2) of Act 11 of 1967 provides
for the supremacy of the constitution and continues that the Jurisdiction of the High Court shall
be exercised:
a) In conformity with the written laws including any laws in force immediately before the
commencements of this Act:
 b) Subject to any written law and in so far as the same does not extend or apply and in
conformity with:
 The common law and the doctrines of equity
 Any established and current customs or usage and
 Matter of practice and procedure

c) where no express law or rule is applicable to any matter in issues before the high courts in
conformity with the principles of justice, equity and good conscience.

d) The applied law, the common law and the doctrines of equity shall be enforced only in so far
as the circumstance in Uganda and of its people permit and subject to such qualifications as the
circumstances may render necessary.

The conclusion can only be that the Acts of general application no longer have any place in the
Jurisdiction of the High Court and that is perhaps as it should be currently in Uganda, we have
our sources of law and they are explained in their hierarchy here under:
The 1995 Constitution of the Republic of Uganda (as amended) according to article 2, it talks
about the supremacy of the constitution. Article 2(1) states that “This constitution is the
Supreme laws of Uganda and shall have binding force on all authorities and persons throughout
Uganda Article 2(2), if any other law or any custom is inconsistent with any of the provisions of
this constitution, the constitution shall prevail and that other laws or customs shall to the extent
of inconsistency, be void for example in the case of Attorney General vs Savatori Abuki