Ascertainment of Customary Law: A Question of Law or of Fact or Both?

Abstract

Perhaps, one element of colonialism that most traumatized the Gold Coast before independence is the fact that native or customary law was tagged ‘foreign’ and subjected to customarily unknown tests of validity. This fact gave Gold Coasters, and particularly nationalists, intense nausea and goose pimples.  Indeed, for the nationalists in the Gold Coast, English law was, or at least ought to have been considered as, the guest of the indigenous customary law. However, the British regarded the received English law as the common law of Ghana and viewed native customary law as foreign and unknown. The native customary law therefore had to be proved as any other fact before it could be accepted as a rule of law.