History & Nature of Torts

THE HISTORY OF TORTS. A tort is defined by Winifield and Jolowicz as a civil wrong for which the remedy is a common law action for un liquidated and which is not exclusively the breach of contract trust or any other equitable obligations. The development of the law is closely related to the development of society. In society people organize themselves in different ways. They have institutions that assist in the running of the society. GENTILE SOCIETY. This society was organized on the basis of clans and produced on a collective basis. This was in response to the fact that they had limited skills and instruments of production so they had to work together to sustain themselves. They lived in a natural economy as opposed to a market economy. Today human beings have developed to a level when they can produce their own means of production and can manipulate nature to their advantage. The stages of development were savagery where they had no skills at all and just appropriated nature to survive. The middle stage of savagery is marked by the discovery of fire, then the club and spear. In the upper stage of savagery they made bows and arrows out of polished stone and hunting became established. In the lower stage of barbarism there was pottery, weaving and the domestication of animals/agriculture. In the middle stage there was introduction of bronze tools and weapons. It was then that division of labour began. In the upper stage of barbarism there was iron smelting and this led to large-scale agriculture. It also increased the effectiveness in war. The final stage was civilisation. At each of these stages productivity of labour developed and there was development of skills. Because of the collectiveness of the production political organisation also became collectivist. It was a classless society based on kinship ties. In many societies the clans were totemic. They were governed by taboos as a means of social regulation. They were cohesive and conflict was minimal. They were democratic and had no laws because they had no government to institute the laws. Many of the civil wrongs that today make up the corpus of tort law were nonexistent. SLAVE SOCIETY. These were differentiated in classes and were organised in states. When people became able to produce in surplus it became possible to sustain a class of persons who were not producing anything. The barbery stage then fades in to civilisation. They had leisure and time to think which led to discoveries like writing. It was the persons who learnt to write who became philosophers. As a result of the fact that they were not engaged in production their philosophies were idealist. They were aimed at projecting their status of life. They regarded mind and spirit as primary and matter and life as secondary. To hem thinking was primary and labour was secondary. This resulted in classes as the philosophers started appropriating the wealth of those who produced under slavery. Those who owned property became the minority with no way of directly asserting their will on the majority. The only way they could do this was through the state as an instrument of coercion. It is important to note that not all societies were slave societies, in places like Africa there was a mixture. The mode of production was slave labour which was owned by the minority in society. They had private means of production like land owned by the minority free men on which the slaves worked. The state had a number of instruments like the prisons to impose the will of the minority on the majority. Law developed as an aspect of the state to sanctify the unfair relations. It bound the slaves to work for the masters. The state was not sufficient so they developed ideology to back it up. This was in the sense of false consciousness. It was against this background that the philosophies thrived. This ideology later achieved social prejudice as a way of maintaining the supremacy of the minority. Roman law had already begun to develop delicit that was the basis of tort. It began to reflect the interests of society, it promoted inequality in society. 90% of society had no rights and no remedies for injuries to person and property. Whichever law developed was for the benefit addressed the 10% who had property and rights. These could get remedies if they were injured or their property rights were violated. The law that was produced was a class law designed for a class of persons. The slaves could only benefit from incidental protection. Today the law plays an ideological role. Unlike during the period of slave society the law is not open about the inequality it perpetuates. The issues of human rights and principles of equality before the law it perpetuates the false notion that people are actually equal before the law and generally in society. Eventually slave societies collapsed because the empires had become unsustainable. The slave population became too small to sustain the majority who were not participating in production. As the slave were exploited trade developed in the Roman Empire. The slaves had therefore to sustain all the trading partners. The Roman got slaves from conquest but as trade developed war and conquest ceased to be viable sources of slave labour. This inevitably led to a decline in the slave population. The rate of reproduction among the slaves was also very low because of the high proportion of males. Later slaves could be freed which further depleted the population of slave labour. This made the large-scale agricultural estates unsustainable. The Romans were overrun by the Barbarians. It was out of the ashes of the slave system that the feudal mode of production evolved in Europe. The large-scale agricultural units collapsed in to smaller units. The slaves scattered and sought patrons and lived in what came to be called colonii. They lived together and shared common facilities. It was out of these societies that the feudal system developed. FEUDAL SOCIETIES. 800AD to 1450AD. When the Roman Empire collapsed all urban life collapsed and people reverted back to rural conditions. This was when the common law system began to emerge forming the foundation of today’s legal system. The economic base was feudal land ownership (serfdom). The serfs were the direct producers and were tied to the land. Production was agricultural and the water wheel, harness, and the plough were the main instruments of production. It was possible to use animals as it was mainly small scale agriculture. There was scattered handcraft industry. It was a natural economy and they produced use values for consumption. The main economic unit was the manor which developed from the colonii. There were landlords who owned large estates of land occupied by serfs who produced the means of production. The serf produced for his own sustenance and also for the landlord. They engaged in surplus labour. There was also common land for grazing. Exploitation here was based on land ownership and the landlords extracted the surplus from the serfs in the from of rent for the use of the land. This rent was payable in various forms including labour or produce. Guilds also later developed and were under guild master who had apprentices and journeymen working for them. Guilds engaged in pottery, weaving and blacksmithing. In the countryside they had the cottage industry doing the same. The feudal state was part of the economic structure. Here there was also the hegemony of the church. The church was the largest land owner and had a lot of political power. The feudal state was highly decentralized with the feudal lords wielding a lot of power. The monarchy was the first among equals and though the serfs were not slaves in the sense of being owned by the landlords they were tied to the land by law. DEVELOPMENTS OF THE LAW IN THIS PERIOD. Feudal exploitation depended on land ownership. The law therefore was preoccupied with protecting interests in land. This was opposed by the Magna Carta of 1215 which was in a sense an early version of a bill of rights. It tried to protect the rights of the serfs. The developed writs which were in a sense the causes of action. A writ is a way of starting a legal action and covered various forms of conduct which was considered to be actionable. If no writ covered a particular situation then the person had no remedy in law. The la w of torts as it exists did not exist until about 1280. Court action could be begun in two ways: by the individual (appeal) and by the state (indictment). Note the strong language of criminal summons as opposed to the “humble prayer” of a plaintiff in civil actions especially petitions. All cases were regarded as criminal and there was no demarcation as we have it today. Private actions were risky because they could be tried by battle and if one lost they could lose their property or even be sent to jail so the indictment was very popular. Towards the 13th century the writ of trespass was introduced and it was the foundation of all torts and it was both civil and criminal. It was designed to address serious breaches of the peace. Trespass was both civil and criminal because if successful it ended in the compensation of the plaintiff and punishment for the defendant. As society developed there arose situations where trespass was not a direct consequence of the actions of the defendant and could not be remedied under the traditional writ of trespass. The courts created a writ analogous to trespass to remedy consequential trespass i.e. trespass on the case. Trespass on the case is what developed in to negligence to remedy consequential harm. In its early stages it was limited to persons carrying on common callings e.g. innkeepers, blacksmiths, journeymen and common carriers. The law further developed to apply to a person not because they pursued a common calling but because they undertook to perform something. This was called assumpsit and laid the foundation for the law of contract. Case expanded to cover other feudal interests like the writ of debt, the writ of detinue and account. Detinue was the wrongful detention of a chattel and was usually against a bailee. The writ of debt was used to recover money, the price of goods, money from a surety, money promised under a sealed document and statutory penalties. Covenant dealt with undertakings under seal. The writ of account dealt with accountability. It was usually brought by feudal lords against baillees who collected for them rent from their estates. What is to day called assault, battery and theft were covered by trespass because there was infliction of physical injury. When there was trespass intention was immaterial. False imprisonment was handled as a battery since there was application of force directly. This was aimed at protecting the rights of mobility granted by the Magna Carta. Malicious prosecution was not distinguished from false imprisonment but when it was it was called a writ of conspiracy. The writ of nuisance was designed to protect immovable property from interference especially land since it was the most important form of property. The writ of defamation begaun as a criminal case. It was not available for the peasants in the beginning since they did not have a reputation to protect. It was aimed at protecting the state from ridicule but even private individuals could benefit from its protection. The manorial courts had jurisdiction to hear these cases until they were taken over by the king’s courts. The court of Star Chamber had exclusive jurisdiction to hear defamation cases. The king’s court punished defamation and the ecclesiastical courts punished slander. The general characteristics of tort liability. · In its initial development, it was criminal but later took on a quasi-criminal nature. · When the common law begun to develop civil liability it was based on an act causing harm. it had to fit in a given writ to be remedied. Writs were designed to address particular interests and issues of serfs were not considered. · It did not make a distinction between careless, intentional and accidental wrongs. It was in the nature of strict liability. The period of mercantilism 1450 -1700. This was a period of great change. In this period feudalism was fading and capitalism was taking centre stage. It was marked by the rise of towns and merchant capital. Trade developed out of the expansion of guilds. The merchant class emerged and became differentiated from the guilds. Trade towns developed based on fairs. Trade fairs were temporary markets. It was still a natural economy and trade could not have permanence. As the fairs became permanent trade towns developed. The merchants then begun to penetrate the feudal economy. · Serfs and peasants engaged in the cottage industry and the merchants supplied them with the materials for production and bought the products from them. · The merchants begun selling luxuries to the feudal lords and money penetrated the feudal economy. There were natural limits to feudal exploitation but when money came in the nobility desired the luxuries supplied by the merchants and the level of exploitation escalated. This led to the peasant riots which rocked Europe during this period. The merchant class was growing much richer and superseded the nobility. The feudal arrangement was not compatible with a money economy so the lords begun to ask for money rent which made the serfs free to work elsewhere to earn the money to pay the lords. They then lost their ties with the land and became free peasants. This infiltration of money into the feudal economy led to the development of an exchange economy which enriched the merchants at the expense of the nobility. The people in the country side ceased to be self-sufficient and the feudal economy died. 2. The development of manufactories. In the beginning merchants supplied raw materials to the cottage industry and bought products from them. They later consolidated the manufactories in to manufactories. They were different from the modern factories in the sense that there was no division of labour, the direct producers owned the means of production and there was no wage labour. Manufactories led to commodity production that facilitated the exchange economy. Enclosure movement. This completed the process in that there was an unprecedented expansion in the manufacture and trade in wool, which was highly priced. Capitalist farmers engaged in the production of wool inn the countryside. Because of the high prices of wool, the capitalist farmers enclosed the countryside to make sheep rands. The free peasants were uprooted from the countryside and became labour. It led to the emergence of a labour market in the urban areas. This led to a larger market, which facilitated an international economy. The enclosure movement went hand in hand with the disruption of the feudal system and affected the church as the largest landowner. The transformation in feudalism also took the from of a reformation in the church. International trade. Trade in the beginning was international and occasional in nature. When international trade begun in Europe it took the form of plunder and brigandry. The exploration of a route to the east begun in search for silver and gold as the mines in Europe were exhausted. Silver and gold were used as money and thus were very important. This led to the establishment of the triangular trade. Because of the expansion in trade the merchants became very powerful. The merchants begun to combine with the monarchy in the state. The monarchy sold charters tot trade to the merchants and the merchants extended credit to the lords that led to the accumulation of the public debts. They established a central bank to take care of the public debt. This weakened the feudal nobility and the merchants rose to power. The feudal kings relied on the merchants and abandoned the nobility. This led to the emergence of despots because the nobility could not control the kings and yet the merchants also did not have the power or the goodwill to restrain the kings. This period ends when industrial capital is coming in leading to revolutions. Developments in the law. Economic activity became more and more socialized. An exchange economy developed over the natural economy. The common law begins to absorb principles of law developed by the merchants ( lex macartoria). The merchants moved from community to community, had their own laws and their own courts called fair courts or dust courts to solve their conflicts in trade. The common law courts did not handle issues related to commercial transactions which were alien to the natural economy. The merchant law principles developed separately and applied throughout Europe. As trade developed the merchant courts begun to merge with the common law courts. The common law courts then became able to adjudicate in commercial transactions. This strengthened the bond between the nobility and the merchants. The law of contract was firmly established. The law of tort also developed to cover new areas for example transport and injuries in manufactories. This period witnessed important political developments. The overthrow of feudalism was manifested in the reformation by Henry VIII. The church as a powerful ally of the state was overthrown. There were also bourgeois revolutions to establish constitutional arrangements. The law of tort developed to cover malicious imprisonment, defamation etc. owing to the fact that this was the first exchange economy it produced principles suited to the exchange economy. Trover was developed to cover situations were the defendant was willing to return a chattel but had either willingly or wrongfully damaged it or parted with possession of it. The essence of the action was not wrongful detention but failure to return it,. This is what is called conversion to day. Mis-feasance. This was intended to cover breach of contract. The common law developed a mature concept of contract. They were not conversant with commercial transactions and were not sure which type of contract was enforceable and which ones were not so they developed the concept of consideration in order to deal with the question of enforceability. Detinue at first was limited to bailment but was later extended to cover situations were the defendant refused to return a chattel when it was demanded by the plaintiff. The mobility of chattels had led to a transformation in the law. Debt was also extended to cover a wider variety of debts. Liability for dangerous things was also established. An action on the case could be brought against someone who engaged I dangerous projects on his land irrespective of intention to cause damage. Trespass at that time did not have regard to questions of intent or accident. Because of the rising populations injuries were more intentional than not soothe concept of strict liability developed to address such situations. It was adjusted to cover negligence. Defamation continues as a crime and includes sedition. It was crucial for the survival of the state because of the upheavals that rocked Europe at the time. The law of defamation and sedition were perfected at this time. In this period printing had begun and there was a need to control publication. Defamation had begun in the 16th century as a common law action. A person could bring an action for defamation. Ecclesiastical courts handled the less serious forms of defamation so there was competition with the kings courts. However, the church did not award damages as the common law courts did. As the tort developed the essence of the case became damage and not the words. The feudal nobility were prone to gambling and dueling. They did not understand the action so they turned it into a way of making money. The courts were forced to formulate the action in more precise terms. I.e. · Truth was a defense. One who spoke the truth was not liable. · There must be publication to a third party and this was intended to exclude mere insults. · An action for defamation does not survive a plaintiff for the benefit of his estate. · There was a distinction between libel and slander. Malicious prosecution. In 1589 a writ of conspiracy had been established. Conspiracy became the action for malicious prosecution. The essence of the action became damages and not the conspiracy. It covered issuing of malicious warrants against people. Lovett V Faulkner. In this case the court held that the action could not lie against one who reported a case of treason. In a later case it was reversed and the court held that when one brought a case of treason against another maliciously they were liable in malicious prosecution. Walter V Smith In the 1858 case of Knight V King the court held that the essence of the action was not the conspiracy and even one person could be sued. · In Saville V Robert the court held that the plaintiff must have suffered damage to his name or property in an action for malicious prosecution. · There had to be express malice and iniquity. · The ground of the action was not conspiracy and it could be brought against a single person. · No action could lie in a malicious civil action because the court would award damages to the successful party. · The proceedings relied on must have terminated in favour of the plaintiff. INDUSTRIAL CAPITALISM 1700 – 1870.

This period was distinct from those before it because it was characterized by commodity production based on wage labour on the one hand and private ownership of means of production on the other. Production is by machinery and factory system on the basis of competition. The social basis for the capitalistic production had been laid in the period of mercantilism through primitive accumulation. This was done through unequal exchange, brigandage, long distance trade etc. The technical developments were furnished by the industrial revolution which was marked by extensive invention especially in the textile industry. In this period manufactories were superseded. The aim of production was profit and accumulation of surplus value. The initial form of capital was user capital. The capitalists bought commodities and resold them at a profit. There was exploitation of labour which led to struggles between labour and the capitalist over the level of remuneration, working conditions etc. as a result the capitalists accumulated a lot of wealth and controlled the state. This led to bourgeoisie revolutions in a bid to establish democracy and republican rule. There emerged the ideologies of freedom, equality and liberty. The monarchy either accepted the dictates of the bourgeoisie like in England or resisted and got thrown aside like in France. Developments in the law. There was a greater magnitude of risks of injury especially in the factories and out of the transport system. The working class lived in horrid conditions because they were at the mercy of the profit oriented capitalists. There was also mass production as a result of the industrial revolution, which heightened the risks to consumers. The capitalists were in frantic competition and needed to survive. They were not ready to reduce their profits to pay workers or pay them compensation for any injuries. The law was preoccupied with the protection of capitalists at the expense of other classes of society. There was introduction of democracy and the state is somewhat liberalized. The law of defamation was relaxed. Trespass became a personal action. Many of the injuries that occur are not remedied because the law is preoccupied with preserving the profitability of the capitalists. Developments in the law of defamation. This time there were developments to try and put aside the law especially in regard to public affairs. The law creates a lot of defenses to the action of defamation. There was a representative government and public affairs had to be discussed even the conduct of public officials. They had public rallies with a lot of freedom of speech. In 1840 there was a Parliamentary Papers Act, which provided for freedom from defamation liability for publishers of parliamentary papers. In 1843 Lord Campbell’s Act allowed an apology to be pleaded in mitigation of damages in an action for defamation. In 1868 there was the case of Wason V Walter, which accepted an apology to be pleaded in mitigation of damages for defamation. It extended the defense of qualified privilege to publishers of independent paper reports of parliamentary proceedings. In 1881 the Newspaper Libel Act had a lot to do with criminal defamation. It provided that where there was an accurate, fair and un malicious report of proceedings at a lawfully convened public meeting, such a report would be privileged even if it contained defamatory matter as long as the editor allowed the person concerned a chance to explain in the next issue of the paper. Summary of developments during this period. The law was concerned with the protection of private enterprise. In order to achieve this, three defenses were developed. · Common employment. · Contributory negligence. · Voluntary assumption of risk. These were used to reduce the liability for injuries. Vicarious liability also became established during this period, thus widening liability. A person was held liable for the torts of another on the basis of the legal relationship between them (Principal/ agent, Employer/ Employee relationship). The Principal/ Employer/ Master was made liable for the torts of his agent/ employee. This was because torts in industries were more likely to be committed by employees than employers. Therefore employers were made liable in damages for torts committed by their servants in the course of employment. Common employment. A workman could not recover damages against his employer (vicarious liability) for injuries caused to him by another workman in the same employment. In this way the benefits of vicarious liability were denied to employees in the industries. This development was due to the fact that the majority of accidents were caused by fellow employees Contributory negligence. If a person was injured as a result of the negligence of another person but the victim in some way contributed to his own injuries the courts could not allow him to recover damages to the full extent of his injuries. This was therefore an absolute defense at that point in time. Voluntary assumption of risk. If one consented to risks he could not recover damages in respect of the resultant injuries. This was used by employers to prevent workers in factories from recovering damages in respect of their injuries. The employers claimed that the employees entered employment knowing the risks they faced. Strict liability. Rylands V Fletcher. The law developed strict liability in relation to the use of land. It was designed to redress disputes amongst property owners. If one committed a tort he would be liable even if he had put in place precautions against the tort or had good intentions in committing the same. Capitalism was unplanned and the competing use of land was bound to result in injuries to some people, which made strict liability necessary. It was limited to the protection of property owners through recovery of damages to property and was not extended to personal injuries. Qns: 1. Discuss the developments in the law of torts during industrial capitalism and give reasons for those developments. 2. “The development of the law of tort during the era of industrial capitalism was influenced by the principle of welfarism more than capitalism.” Discuss. THE PERIOD OF FINANCE CAPITAL. This was a period of monopoly capital. It emerged from industrial capitalism which was geared towards profit accumulation. There was a lot of competition and massive technological innovation. Because they produced for an unplanned market and due to stiff competition some industrialists were out competed, undercut, forced to sell their capital or became subsidiaries of bigger enterprises and monopolies begun to emerge. This was due to the cost of production. The price of raw materials was rising and monopolies had to be organised to control the price of the raw materials. Monopolies emerged through two main processes: centralization and concentration. Concentration is the process of accumulation (ploughing back the profits into production in order to accumulate value.) it is a quantitative process. Centralization is a qualitative process. Capital already accumulated is spread among smallholdings that are merged into bigger units e.g. cartels that are more qualitative as smaller units. The two processes affect each other: after accumulation, there is a better position to centralize. These processes resulted in to monopolies and since they grew out of competition they became self- enhancing and they grew bigger and bigger in to international monopolies. The new role of banks. The formation of monopolies also occurred in the field of banking. Bigger banks took over smaller ones. Through credit facilities, they became universal keepers and distributors of capital/ means of production. They accelerated and intensified the process of centralization and concentration through the credit facilities. They determined which enterprise should be funded and this favoured the big monopolies at the expense of the small firms. The high profile of the banks is reflected in the collapse of the stock exchange. This was because they collected large sums of money through extending credit, discounting bills of exchange and maintaining current accounts. Finance capital This was not money capital but a social phenomena that occurred in the 1870’s. One of the most important developments in this period is the emergence of a close connection between the banks and the industries. Previously banks had been intermediaries for deficit and surplus budgets. Banks developed a close relationship with the industries through their multiple dealings with the industries which enabled the banks to obtain fuller and more detailed information about the economic conditions of those enterprises. In the result, the industrial capitalists became more and more dependent on the banks. There was thus establishment of personal links between the banks and the big industrial and commercial enterprises, acquisition of shares and appointment of bank directors to boards of directors of the commercial enterprises and vice versa. This is enhanced by appointing government representatives and civil servants to boards of these industries. The result is that banks hold shares in industries and industries hold shares in banks. There is a “merger”. There is no independent bank capitalism and industrial capitalism, thus forming a new form of finance capital. Banks developed division of labour amongst themselves, i.e certain directors for certain areas in industry and also developed research units to improve on production. The concentration of production and the monopolies arising there from, the merging of coalitions between banks and industries, is the history of the rise of finance capital. The export of capital Capital that was concentrated in Europe could not be used profitably due to over production (capitalist production became more and more capital intensive and the labour variable reduces) which lowers prices and the wages. There was need for cheap sources of raw materials and the need to control such sources. Capital was exported, on the basis of monopoly, from Europe to open up new markets, new sources of raw materials and infrastructure in those areas. Division of the world amongst monopoly companies As a result of the potential export of capital, the monopolies that emerged divided the world amongst themselves. They curved out sphere of influence for themselves where they could export capital exclusively and acquire raw materials cheaply to maintain their monopoly power and keep out others eg I.B.E.A.Co. Partition of the world The division of the world between companies could only be guaranteed by the state and its power of coersion acting on behalf of the monopolies. This was the essence of imperialism and colonization. LEGAL DEVELOPMENTS With the export of capital to places with cheap raw materials and access to markets, supernormal profits were earned. These profits provided an opportunity to make concessions that were necessary for capitalism to continue. This was because the conflict between the capitalist and the working class has sharpened. By the mid 19th century and onwards the working class had organized themselves into trade unions and socialist parties to overthrow capitalism. They cultivated socialist ideologies like Marxism and socialist revolutions. Capitalism was therefore under siege and it became necessary to make concessions to the working class to alleviate their living conditions and maintain capitalism. The concessions are represented through welfarism to benefit the working class. There were unemployment benefits, compensation in case of injuries and insurance to protect the working class. These were not based on tort but statute. Within the law of torts the concessions were represented in the relative liberalization of the law. a) There developed liability in negligence based on fault which was a broad basis of liability for the manufacturers, liability in negligence based on statute and the law was no longer exclusive b) The defenses of common employment, voluntary assumption of risk and contributory negligence were modified: - Common employment and contributory negligence were modified by statute. Contributory negligence was no longer an absolute defense. Rather the damages a plaintiff receives are reduced. Common employment was abolished by statute - The courts modify the defense of voluntary assumption of risk. Court imposed stringent measure for it such that it no longer afforded much protection to the industries. c) The new technological developments as a result of the industrial revolution produced new risks. The chemical industry was invented and became the basis of manufacture. This led to mass production of consumer products, which presented new risks to the consumers due to the quality of products. Product liability was developed to safe guard consumers, which became the basis of the law of negligence. See Donogue V. Stevenson d) There also developed liability for negligent misstatements mainly in respect of banks that gave investment advice and other such firms. See Hedley Byrne & Co. V. Heller Relationship between the law of tort and insurance: Insurance provided an opportunity for people to insure against new risks that technological developments presented. There was social insurance by the welfare state e.g motor accidents insurance and health insurance. LAW OF TORTS IN UGANDA With the exportation of capital to Uganda, it was imperative that the legal system be exported as well. In Uganda English law was received as it was on the 11th of August 1902. Although the legal principles theoretically existed, the actual practice was lacking. Torts like product liability are not compensated because of financial constraints. RECEPTION AND EVOLUTION OF ENGLISH LAW IN UGANDA Uganda was declared a British protectorate on June 18th/ august 21 1894. sir Harry Johnson came as a special commissioner to negotiate the 1900 Buganda agreement and it was regarded as the first constitution. In 1902, we had the Uganda Order in Council which provided that the jurisdiction of the court would be exercised so far as circumstances permitted upon the principles of and in conformity with the substance of the law for the time being in force in England. There was no parliament or law making body but the administration was governed by the OIC. It thus brought in the English law. The OIC, (1) established the high court of Uganda. (2) Through its amendment in 1911, it clearly provided for the date of reception of the law of England. (3. It introduced the repugnancy doctrine. The court had jurisdiction to hear non natives and cases which involved a native and a non native. The 1911 amendment is important in the sense that it established the date of reception of English law, that is, 11th August 1902. Any law existing in England as at 11th August 1902 would be the law enforced in Uganda. Jurisdiction was to be exercised in conformity with the substance of the common law, doctrines of equity and statutes of general application in courts in England on 11th August 1902. The 1902 OIC brought in law though of English origin but from India. It provided that civil procedure, criminal procedure and the penal code of India except so far as it may otherwise be provided would apply in Uganda. it remained the substance of the law till 1962. The Judicature Act 1962 was made by the parliament of Uganda by then. It provided in sec 2 that the substance of the common law of England, doctrines of equity in force in England on the date of 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 1967, ended the statues of general application as the laws applicable in Uganda. this was not in expressed terms. It was simply an omission on their being mentioned. See UG motors Ltd v Wavah Holdings Ltd. Art 20, of the 1902 OIC provided as follows: in all cases, civil and criminal to which natives are parties every court case shall be guided by native law so far as applicable and is not repugnant to morality or inconsistent with any OIC or ordinance or regulation or rule made under any OIC or ordinance. In summary, the law applied is categorised as statutory law: principal and subsidiary law, also known as written law customary law, other than criminal law applied law: law which is made by British parliament and accepted by the judicature statute doctrine of equity note: see 1st schedule of the judicature act for applied law. See interpretation act for definition What is common law? How did common law become part of the law applied in Uganda? what are the present guidelines/ principles to the application of common law. Common law is the common sense of a community crystalised and formulated by our ancestors. It’s the customary law uniformly accepted in society. It evolved through certain courts in England through their administration of justice. They recognised and applied certain customs as being uniform. Thus its either: the system which puts emphasis on legal decisions (the doctrine of precedent) or common law according to common law countries and is civil law. The Africa Order in Council of 1889 required the consul to exercise jurisdiction in conformity with the substance of the law in England. Specifically for Uganda it was the 1902 OIC. These continued to operate till independence when they were repealed and the judicature acts came in to carry on the substance of the application of the common law. Guiding principles in application of common law “substance of the common law”-court does not apply the whole common law but the substance of it applied only in so far as the circumstances permit if there is a conflict between the rules of equity and common law, the rules of equity prevail because the principles of equity(natural justice) are more acceptable and less alien than the common law. The MCA sec 10 (3) says if in any cause or matter there is a conflict or variance between the rules of equity and rules of common law with reference to the same subject matter, the rules of equity shall prevail. The contract act sec. 3 specifically provides that the common law of England shall apply.