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Penal Code


Published: 1934-11-30

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PART V
Documents Emanating outside Botswana and Intended to be Used
inside Botswana
(ss 9-17)

[Ch1402s9]9.       Certain powers of attorney and affidavits

            A document which is-

     (a)     a power of attorney authorizing any person to take, defend or intervene in any legal proceedings which purports to have been signed in Lesotho, Swaziland, Zambia, Zimbabwe, the Republic of South Africa, or Namibia and to have been attested by two competent witnesses;

     (b)     an affidavit, which purports to have been sworn before and attested by a Commissioner of Oaths of Botswana outside Botswana, or by a Commissioner of Oaths of Lesotho, Swaziland, Zambia, Zimbabwe, the Republic of South Africa, or Namibia within those respective countries, bearing the seal or stamp of the Commissioner of Oaths,

shall be accepted for use in any court in Botswana without further authentication unless it is proved not to have been signed or sworn by the person by whom it purports to have been signed or sworn.

[Ch1402s10]10.     Certain official documents

            Section 6 shall apply in respect of a document emanating outside Botswana, which purports to bear the signature of any person holding office under the State in any place outside Botswana as they apply in respect of a document emanating in Botswana which purports to bear the signature of any person holding such office therein.

[Ch1402s11]11.     Documents from Lesotho and Swaziland

            Subject to section 9, a document signed in Lesotho or Swaziland and attested by an administrative officer in a manner similar to that provided in section 4 shall be sufficiently authenticated if authenticated by a certificate under the signature and seal or stamp of office of a Permanent Secretary, the Registrar or Assistant Registrar of the High Court or a District Commissioner of that country.

[Ch1402s12]12.     Documents from Commonwealth countries

            (1) A document signed in any Commonwealth country shall be sufficiently authenticated if authenticated by the certificate of a notary public, under his signature and seal of office, the mayor or provost of any town under his signature and seal of office, the permanent head of a Government Department, the Registrar or Assistant Registrar of a court of justice having unlimited jurisdiction, the High Sheriff of a county or any person designated for the purposes of the Convention as an authority competent to issue a certificate or "apostille":

            Provided that a document so signed which affects or relates to property not exceeding in amount or value P1 000 shall require no further authentication if it is authenticated by the certificate, to the like effect of one of the certificates in the First Schedule, of a magistrate or a justice of the peace of the country or place in which such document is signed.

            (2) Subject to sections 9 and 11, subsection (1) of this section shall apply to documents signed in the Republic of Ireland, the Republic of South Africa, or any protectorate, protected state or trust territory as defined in the British Nationality Acts 1948 to 1981, as it applies to documents signed in a country or territory within the Commonwealth.

[Ch1402s13]13.     Public documents from convention countries

            Notwithstanding sections 10, 11 and 12, a public document signed in any country or territory in which the Convention is in operation shall be sufficiently authenticated if authenticated by a certificate or "apostille" in the form in the Second Schedule, signed by any person designated in that country or territory for the purposes of the Convention as an authority competent to issue a certificate or "apostille".

[Ch1402s14]14.     Other documents

            Notwithstanding any other provisions contained herein, a document signed in any other country shall be sufficiently authenticated if authenticated by a suitable certificate under the signature and seal or stamp of office of-

     (a)     a member of the Diplomatic Branch of the Botswana Foreign Service attached to a Botswana Embassy or High Commission in such country; or

     (b)     a person shown by the certificate of-

           (i)       a member of the Diplomatic Branch of the Botswana Foreign Service attached to a Botswana Embassy or High Commission in such country;

          (ii)       a person holding an office in such country equivalent to that of Secretary of State or Under Secretary of State;

          (iii)       a Diplomatic or Consular Officer of such country serving in Botswana, Lesotho, Swaziland or the Republic of South Africa; or

         (iv)       a British Consular Officer attached to a British Embassy or High Commission in such country, where such country has no member of the Diplomatic Branch of the Botswana Foreign Service accredited thereto on a residential basis,

to be duly authorized to authenticate such document by the law of such country.

[Ch1402s15]15.     More than one mode of authentication

            Where under this Act a document may be authenticated in more than one manner, it shall be no objection to the acceptance of the document that the authentication could have been carried out in some manner other than that which has been adopted.

[Ch1402s16]16.     Translations

            A certificate or "apostille" which is not in the English or French language shall be accompanied by a translation.

[Ch1402s17]17.     Documents executed by persons on active service

            Notwithstanding the provisions of this Act, a document signed by a person on active service in the armed service of the State, wherever signed, shall be sufficiently authenticated if authenticated by the signature of a commissioned officer of such service.

FIRST SCHEDULE
AUTHENTICATION BY ADMINISTRATIVE OFFICER

Form I

I, X.Y. in my capacity as ....................................... (1) ......................... do certify that A.B. signed this document in my presence, and that A.B. is personally known to me (or that C.D. and E.F., being persons known to me, have severally testified before me that the person signing this document is personally known to them as A.B.) ........................ (2) .........

     Given under my Hand (and Seal) ............................... (3) ........................... at ................. (4) ................... in .................. (5) ............................ on the ....................... day of 20 .......

 

.........................................................
(Signature)

Seal or stamp of office or statement in lieu thereof.

 

Form II

I, X.Y., in my capacity as ................... (1) ......................... do hereby certify that the Common Seal of A.B. Company Limited was affixed to the above written (or annexed) ................... (2) ..................... document in my presence in accordance with the provisions of the Memorandum and Articles of Association thereof, which have been examined by me, and that the signatures L.M. and O.P. thereon are respectively the true signatures of ................... and .................... (give full names) who are respectively a director and the secretary (or as the case may be) of the said company.

     Given under my Hand (and Seal) ............................... (3) ........................... at ................. (4) ................... in .................. (5) .................................. on the ........................... day of ................ 20 .......

 

 

.........................................................
(Signature)

Seal or stamp of office or statement in lieu thereof.

OR

I, X.Y., in my capacity as ................. (1) ......................... do hereby certify that on the date hereunder written there appeared before me A.B. who is personally known to me (or was identified see Form I) and who produced to me a Power of Attorney which appeared to have been given on the ................... day of ..................... 20 ........ by L.D. of ........................ and to have been duly registered at ...................... and in his capacity as the attorney of the said L.D., he signed the above written (or annexed) (4) document in my presence at .................... (5) .......................

Date ............................................................

 

...................................................................
(Signature)

Seal or stamp of office or statement in lieu thereof.

(1) Here insert qualifications to authenticate

(2) Whichever is applicable

(3) Delete if no seal or stamp and add statement under section 5

(4) Name of place

(5) Name of country if not Botswana

 

SECOND SCHEDULE
CERTIFICATE OR APOSTILLE

The certificate will be in the form of a square with sides at least 90 mm long.

APOSTILLE
(Convention de la Haye du 5 Octobre 1961)

1.  Country ........................................................................................................................      This public document

2.  has been signed by ......................................................................................................

3.  acting in the capacity of ................................................................................................

4.  bears the seal/stamp of .................................................................................................

Certified

5.  at .................................

6.  the ........................................................

7.  by ................................................................................................................................

8.  Seal/Stamp:

9.  Signature:

     ............................................................

     .............................................................

 

[Chap1403]CHAPTER 14:03
FOREIGN DOCUMENTS EVIDENCE

ARRANGEMENT OF SECTIONS

     SECTION

 

                1.         Short title

                2.         Reciprocal arrangements for acceptance of registers of public documents between Botswana and other countries

                3.         Proof of birth

 

Proc. 65, 1934,
Cap. 11, 1948,
Cap. 10, 1959,
L.N. 84, 1966.

An Act making provision for the admissibility in evidence of entries contained in the public registers of other countries and for the proof by duly authenticated official certificates of the entries in such registers and in consular registers and of other matters.

[Date of Commencement: 30th November, 1934]

[Ch1403s1]1.       Short title

            This Act may be cited as the Foreign Documents Evidence Act.

[Ch1403s2]2.       Reciprocal arrangements for acceptance of registers of public documents between Botswana and other countries

            (1) The President, upon being satisfied with respect to any country that, having regard to the law of that country as to the recognition therein of public registers of Botswana as authentic records and as to the proof of the contents of such registers and other matters by means of duly authenticated certificates issued by public officers of Botswana, it is desirable in the interests of reciprocity to do so, may, with respect to public registers of that country and certificates issued by public officers therein, make such order as is hereinafter mentioned.

            (2) An order issued under this section may provide that in all parts of Botswana-

     (a)     a register of the country to which the order relates, being such a register as is specified in the order, shall be deemed to be a public register kept under the authority of the law of that country and recognized by the courts thereof as an authentic record, and to be a document of such a public nature as to be admissible as evidence of the matters regularly recorded therein;

     (b)     such matters as may be specified in the order shall, if recorded in such a register, be deemed, until the contrary is proved, to be regularly recorded therein;

     (c)     subject to any conditions specified in the order and to any requirements of rules of court a document purporting to be issued in the country to which the order relates as an official copy of an entry in such a register as is so specified, and purporting to be authenticated as such in the manner specified in the order as appropriate in the case of such a register, shall, without evidence as to the custody of the register or of inability to produce it and without any further proof, be received as evidence that the register contains such an entry;

     (d)     subject as aforesaid a certificate purporting to be given in the country to which the order relates as an official certificate of any such class as is specified in the order, and purporting to be signed by the officer, and to be authenticated in the manner, specified in the order as appropriate in the case of a certificate of that class, shall be received as evidence of the facts stated in the certificate;

     (e)     no official document issued in the country to which the order relates as proof of any matters for the proof of which provision is made in the order shall, if otherwise admissible in evidence, be inadmissible by reason only that it is not authenticated by the process known as legalisation.

            (3) Official books of record preserved in a central registry and containing entries copied from original registers may, if those entries were copied by officials in the course of their duty, themselves be treated for the purposes of this section as registers.

            (4) For the purposes of this Act, the term "legalisation" means the act by which a judge or competent officer, such as a notary, consul, magistrate or the like, authenticates a record or other matter in order that the same may be lawfully read in evidence.

            (5) The President may vary or revoke any order previously made under this section.

[Ch1403s3]3.       Proof of birth

            In all parts of Botswana entries made, whether before or after the commencement of the British Nationality Acts, 1948 to 1981, in any register kept by an officer in the diplomatic or consular service of the United Kingdom for the registration of the births and deaths of British subjects born or dying outside the United Kingdom may be proved by certified copies of such entries, and the copies of any such entries shall be evidence of any matters authorized to be inserted in the register.

[Chap1404]CHAPTER 14:04
GENERAL LAW (CAPE STATUTES) REVISION

ARRANGEMENT OF SECTIONS

     SECTION

 

                1.         Short title

                2.         Application of certain Cape Statutes to Botswana to be discontinued

                3.         Saving

                4.         Extent of continuance

 

Proc. 2, 1959,
Cap. 36, 1959,
L.N. 84, 1966.

An Act to provide that certain laws of the Colony of the Cape of Good Hope which are in force in Botswana but are obsolete, or otherwise unnecessary in the circumstances of Botswana, should no longer be in force therein.

[Date of Commencement: 1st January, 1959]

[Ch1404s1]1.       Short title

            This Act may be cited as the General Law (Cape Statutes) Revision Act.

[Ch1404s2]2.       Application of certain Cape Statutes to Botswana to be discontinued

            All laws enacted by the legislative authority of the Colony of the Cape of Good Hope, in force in Botswana by virtue of the provisions of the General Law Proclamation, 1909, other than-

     (a)     laws which, notwithstanding that they may have been made before the 10th day of June, 1891, have been applied to Botswana, or to anything in Botswana, by some other law; and

     (b)     the laws specified in the Schedule (to the extent set out in the third column thereof),

shall from the commencement of this Act no longer be in force in Botswana.

[Ch1404s3]3.       Saving

            Nothing in this Act shall-

     (a)     revive anything not in force or existing at the date of its commencement;

     (b)     affect the previous operation within Botswana of any law the application of which to Botswana is hereby discontinued;

     (c)     affect any right, privilege, obligation or liability (other than a liability to criminal prosecution or the right to bring such a prosecution) acquired, occurred or incurred under any law so discontinued;

     (d)     be construed as affecting the continued application of the Roman-Dutch common law in Botswana, or of any other laws other than enactments of the legislative authority of the Colony of the Cape of Good Hope which were in force in the Colony of the Cape of Good Hope on the 10th day of June, 1891, and were in force in Botswana on the 1st January, 1959.

[Ch1404s4]4.       Extent of continuance

            The laws continuing in force by virtue of section 2(a) and the Schedule, shall so continue mutatis mutandis, and so far as they are not inapplicable.

SCHEDULE

Number and Year of Law

Subject Matter

Extent to which it (subject to the provisions of the General Law Proclamation, 1909), remains in force

1. Ordinance 62, 1829

Age of Majority

The whole.

2. Ordinance 72, 1830

Law of Evidence

The preamble, sections 1-4, 6, 13, 17, 19, 25, 32, 34-40, 42, 43-48, insofar as they do not relate to or affect evidence or witnesses in criminal proceedings.

5. Act 4, 1861

Law of Evidence

The preamble, sections 4, 7-9, 10 (excluding the proviso), 12, 13, 15-18, insofar as they do not relate to or affect evidence or witnesses in criminal proceedings.

6. Act 5, 1861

Tacit Hypothecs

The whole.

7. Act 26, 1873

Law of Inheritance

The whole.

8. Act 23, 1874

Law of Inheritance

The whole.

9. Act 21, 1875

Antenuptial Contracts

The preamble, sections 1, 2, 5, 9-13.

10. Act 21, 1877

Law of Evidence

The whole insofar as it does not relate to or affect evidence in criminal proceedings.

11. Act 8, 1879

General Law Amendment

The preamble, sections 2-4, section 6 insofar as it does not affect inferior courts, sections 8 and 9.

12. Act 10, 1879

Powers of Attorney

The whole, excluding section 1.

13. Act 29, 1879

Lunatics

The whole, excluding section 4.

14. Act 41, 1882

Telegraphic Messages

The preamble, sections 1, 2, insofar as they do not relate to criminal warrants, summonses and other criminal process, section 8.

15. Act 5, 1884

Transfer Duty

The whole, as amended by the Transfer Duty Reduction Act, 1896, applied to Botswana by section 5 of the Land Registration and Transfer Proclamation (Chapter 89 of 1948) and as amended by the Bechuanaland Transfer Duty (Amendment) Proclamation, 1955 (85 of 1955).

 

[Chap1405]CHAPTER 14:05
APPLIED LAWS (CONTINUATION)

ARRANGEMENT OF SECTIONS

     SECTION

 

                1.         Short title

                2.         Revival of certain discontinued applied legislation

                3.         Amendment of Schedule

 

                            Schedule

 

Act 10, 1972.

An Act to provide for the continuation in force in Botswana of certain applied legislation which is not in force at the present time.

[Date of Commencement: 21st April, 1972]

[Ch1405s1]1.       Short title

            This Act may be cited as the Applied Laws (Continuation) Act.

[Ch1405s2]2.       Removal of certain discontinued applied legislation

            Notwithstanding anything contained in the Cap. 01:01 Revision of the Laws Act, the written laws specified in the Schedule to this Act shall be deemed to have remained in force at all times in Botswana since the date of the coming into force of such written laws and shall remain in force until repealed by the Parliament of Botswana.

[Ch1405s3]3.       Amendment of Schedule

            The President may, by order published in the Gazette, add other written laws to the Schedule but any such order shall lapse unless approved by resolution of the National Assembly at the meeting commencing next after such order is published in the Gazette.

SCHEDULE

United Kingdom Statutory Instrument, 1966 No. 1169:

The Bechuanaland Protectorate (Benefits under Retirement (Schemes) Order, 1966:

United Kingdom Statutory Instrument, 1966 No. 1173:

The Botswana (Compensation and Retiring Benefits) Order, 1966.

[Chap1501]CHAPTER 15:01
POWERS OF ATTORNEY

ARRANGEMENT OF SECTIONS

     SECTION

 

                1.         Short title

                2.         Signature alone to make power of attorney valid

                3.         Stamp duty not affected

 

Cap. 16, 1959,
L.N. 84, 1966.

An Act to amend the law relating to the execution and attestation of powers of attorney.

[Date of Commencement: 10th June, 1891]

[Ch1501s1]1.       Short title

            This Act may be cited as the Powers of Attorney Act.

[Ch1501s2]2.       Signature alone to make power of attorney valid

            It shall be sufficient for the validity of any power of attorney made after the passing of this Act that the same shall be signed at the foot or end thereof by the person making the same with his signature or mark:

            Provided that it shall be lawful for the Registrar of Deeds, Master of the High Court, or any other person, before paying out any money, or doing any other act, or authorizing any act to be done by virtue of any power of attorney, to require that the signature or mark of the person making the same shall be attested-

     (a)     by the signature of two witnesses who are above the age of 14 years, and competent to give evidence in a court of justice, and who shall affix their signatures as near as conveniently may be to the signature or mark of the person making the power of attorney;

     (b)     by the declaration of one such witness as aforesaid, who shall declare that he was present and saw the person making such power sign the same, or affix his mark thereto, or that such person acknowledged his signature or mark thereto in the presence or hearing of the witness; or

     (c)     by the certificate of a Justice of the Peace or Notary Public.

[Ch1501s3]3.       Stamp duty not affected

            Nothing contained in this Act shall alter or affect any stamp duty which may now or hereafter be imposed upon powers of attorney.

[Chap1502]CHAPTER 15:02
CHANGE OF NAME

ARRANGEMENT OF SECTIONS

     SECTION

 

                1.         Short title

                2.         Penalty for change of surname without authority

                3.         Exceptions

                4.         Applications to the Minister

                5.         Minor children of an applicant

                6.         Penalty for use of unauthorized surname

                7.         Regulations

 

Law 28, 1963,
L.N. 28, 1965,
L.N. 84, 1966,
Act 44, 1968.

An Act to restrict and regulate the right of any person to assume a surname and to provide for matters incidental thereto.

[Date of Commencement: 31st December, 1963]

[Ch1502s1]1.       Short title

            This Act may be cited as the Change of Name Act.

[Ch1502s2]2.       Penalty for change of surname without authority

            (1) Subject to the provisions of this Act, no person who at any time bore or was known by a particular surname shall assume or describe himself or pass under any other surname (other than a surname which he had assumed or by which he had described himself or under which he had passed before the commencement of this Act) unless the Minister has-

     (a)     authorized him to assume that other surname; and

     (b)     caused a copy of that authorization to be published in the Gazette.

            (2) Any person who contravenes the provisions of subsection (1) shall be guilty of an offence and liable to a fine not exceeding P200.

            (3) A conviction or an acquittal of a person on a charge under subsection (1) of having assumed or described himself by or passed under a particular surname shall not be a bar to a further charge and conviction under that subsection if that person after the first-mentioned conviction or acquittal, again assumes or describes himself by or passes under that surname or any other surname.

[Ch1502s3]3.       Exceptions

            Section 2 shall not apply where-

     (a)     a woman on her marriage assumes the surname of her husband;

     (b)     a married or divorced woman or a widow resumes a surname which she bore at a prior time;

     (c)     a woman who lives or lived with a man as his putative wife assumes the surname of that man or, after having assumed his surname, resumes a surname which she bore at a prior time;

     (d)     a person who has been adopted in Botswana in accordance with any law relating to the adoption of children, assumes the surname of the person who adopted him;

     (e)     a person, born as an illegitimate child, assumes the surname of his father after the marriage of his parents to one another;

     (f)      a person assumes, as a surname, a name attaching to a title to which he succeeded by inheritance or which was conferred upon him by the state; or

     (g)     a woman, on her husband assuming another surname under the provisions of this Act, assumes that other surname.

[Ch1502s4]4.       Applications to the Minister

            (1) An application to the Minister for his authority under the provisions of section 2(1) shall be in such form as the Minister may determine, shall be accompanied by such fees as may be prescribed, and shall state the reason why a change of name is desired.

            (2) The Minister shall cause notification of an application under subsection (1) to be published in the Gazette and in a newspaper circulating in the district in which the applicant resides; the notice shall call upon any person who objects to the application to notify the Minister of such objection and the grounds thereof within 30 days of the publication of such notice.

            (3) The Minister shall, after considering any objection lodged under the provisions of subsection (2) and after making such inquiries as he may deem fit, grant his authority in accordance with the provisions of section 2(1) unless he has reason to believe that there is insufficient reason for the assumption of another surname or that the application has been made for an improper purpose.

[Ch1502s5]5.       Minor children of an applicant

            (1) Where the father of a minor child assumes another surname under the provisions of this Act, that child shall be deemed to have assumed such surname under this Act, unless the Minister otherwise directs.

            (2) The Minister shall cause notification of any direction given under subsection (1) to be published in the Gazette.

[Ch1502s6]6.       Penalty for use of unauthorized surname

            A person who, being at the time authorized under this Act to do so, assumes a particular surname and thereafter assumes, or describes himself or passes under a surname other than that particular surname, shall be guilty of an offence and liable to the penalty provided by section 2.

[Ch1502s7]7.       Regulations

            The Minister may make regulations for carrying into effect the provisions of this Act, and without prejudice to the generality of the foregoing, may, prescribe anything which, under this Act, is required to be prescribed.

[Chap1601]CHAPTER 16:01
CUSTOMARY LAW

ARRANGEMENT OF SECTIONS

     SECTION

 

                1.         Short title

                2.         Interpretation

                3.         Customary law to be applied in proper cases

                4.         Customary law to be applied in certain civil cases and proceedings between tribesmen

                5.         Application of customary law in accordance with an agreement

                6.         Special provision relating to custody of children

                7.         Special provision in relation to intestate succession

                8.         Special provision in relation to claims arising out of personal injuries and death

                9.         Legal capacity of tribesmen

               10.         Conflict of customary laws

               11.         Ascertainment of customary law

               12.         Certain statements to be prima facie evidence of the customary law

               13.         Saving

 

Act 51, 1969.

An Act to provide for the application of customary law in certain actions before the courts of Botswana, to facilitate the ascertainment of customary law and to provide for matters ancillary thereto.

[Date of Commencement: 22nd August, 1969]

[Ch1601s1]1.       Short title

            This Act may be cited as the Customary Law Act.

[Ch1601s2]2.       Interpretation

            In this Act, unless the context otherwise requires-

            "common law" means any law, whether written or unwritten, in force in Botswana, other than customary law;

            "customary law" means, in relation to any particular tribe or tribal community, the customary law of that tribe or community so far as it is not incompatible with the provisions of any written law or contrary to morality, humanity or natural justice;

            "tribe" includes a section of a tribe;

            "tribesman" means member of a tribe or tribal community of Botswana or member of a tribe or similar group of any other country in Africa prescribed by the Minister by notice published in the Gazette for the purposes of the Cap. 04:05 Customary Courts Act, and includes the legal personal representative of such member;

            "tribal community" means any community which is living outside a tribal territory but is organized in a tribal manner.

[Ch1601s3]3.       Customary law to be applied in proper cases

            The courts of Botswana shall, within the limits of their jurisdiction, apply customary law in all cases and proceedings in which, by virtue of the provisions of this Act or any other law, customary law is properly applied and where it is not properly applied such courts shall apply the common law.

[Ch1601s4]4.       Customary law to be applied in certain civil cases and proceedings between tribesmen

            Save as is otherwise provided under this Act or any other law, customary law shall be applicable in all civil cases and proceedings where the parties thereto are tribesmen unless-

     (a)     it shall appear either from express agreement or from all relevant circumstances, that each intended or may reasonably be deemed to have intended the matter to be regulated according to the common law;

     (b)     the transaction out of which the case or proceedings arose in one unknown to customary law; or

     (c)     the parties express to the court their consent to the common law being applicable; and any consent referred to in this paragraph shall be recorded in writing and attached to the court record of the case and shall be irrevocable.

[Ch1601s5]5.       Application of customary law in accordance with an agreement

            Subject to any written law, where in any cases or proceedings between tribesmen and non-tribesmen-

     (a)     it shall appear either from express agreement, or from all relevant circumstances, that each intended or may reasonably be deemed to have intended the matter to be regulated according to customary law; or

     (b)     the parties express to the court their consent to any customary law being applicable,

that law shall be applied accordingly, and any consent referred to in paragraph (b) shall be recorded in writing and attached to the court record of the case and shall be irrevocable.

[Ch1601s6]6.       Special provision relating to custody of children

            Notwithstanding anything to the contrary in this Act, in any case relating to the custody of children, the welfare of the children concerned shall be the paramount consideration irrespective of which law or principle is applied.

[Ch1601s7]7.       Special provision in relation to intestate succession

            Notwithstanding the provisions of section 4, customary law shall be applicable in determining the intestate heirs of a tribesman and the nature and extent of their inheritances.

[Ch1601s8]8.       Special provision in relation to claims arising out of personal injuries and death

            (1) Nothing in section 4 shall prevent the application of the common law where the claim arises out of personal injury to or the death of any person.

            (2) Proceedings in which damages are claimed arising out of personal injury or death to any person may be instituted notwithstanding that the claim has already been determined under customary law; but in assessing damages the court shall take into account any such previous determination.

            (3) Any person entitled under customary law to support from any other person shall be entitled to claim damages under the common law for loss of support from any person who unlawfully causes the death of or personal injury to that other person or who is liable in law in respect thereof.

[Ch1601s9]9.       Legal capacity of tribesmen

            (1) Where the existence or extent of any right held or alleged to be held by a tribesman or of any obligation vesting or alleged to be vesting in any tribesman depends upon or is governed by the customary law, the capacity of the tribesman concerned in relation to any matter affecting that right or obligation shall be governed by customary law.

            (2) In any case other than such a case as is referred to in subsection (1) the capacity of any tribesman to enter in any transaction or to enforce or defend any rights in a court of law shall, subject to any written law affecting any such capacity, be determined in accordance with the common law.

[Ch1601s10]10.     Conflict of customary laws

            (1) In any case where customary law is applicable and the question arises as to which system of customary law is applicable-

     (a)     in land matters the applicable customary law shall be the customary law of the place where the land is situate;

     (b)     in cases and proceedings arising from inheritance the appropriate customary law shall, subject to the provisions of paragraph (a), be the customary law applying to the deceased;

     (c)     subject to the provisions of paragraphs (a) and (b) the court shall apply the customary law which the parties intended or may reasonably be deemed to have intended should regulate their obligations in the matter or, in the absence of such actual or deemed intention, the customary law of the place where the action arose.

            (2) If the system of customary law cannot be ascertained in accordance with subsection (1) or if the customary law is not ascertainable, the court shall determine the matter in accordance with the principles of justice, equity and good conscience.

[Ch1601s11]11.     Ascertainment of customary law

            If any court entertains any doubt as to the existence or content of a rule of customary law relevant to any proceedings, after having considered such submissions thereon as may be made by or on behalf of the parties, it may consult reported cases, textbooks and other sources, and may receive opinions either orally or in writing to arrive at a decision in the matter:

            Provided that-

      (i)     the decision as to the persons whose opinions are to be consulted shall be one for the court, after hearing such submissions thereon as may be made by or on behalf of the parties;

      (ii)     any cases, text books, sources and opinions consulted by the courts shall be made available to the parties;

     (iii)     any such oral opinion shall be given to the court in the same manner as oral evidence.

[Ch1601s12]12.     Certain statements to be prima facie evidence of the customary law

            The President may, by order published in the Gazette, declare that any statement of customary law shall be prima facie evidence of the customary law to the extent stated in the order, and in such event, such statement shall, to such extent, be admissible in any court of law (including a customary court) as prima facie evidence of the customary law.

[Ch1601s13]13.     Saving

            Nothing in this Act shall affect the operation of any written law in force immediately prior to the commencement hereof.