Legal transfer of the English fraud doctrine for the regulation of bank failure to the Uganda Protectorate c. 1885-1965

PhD Project

Image titled ‘The Panic in the City’ depicting a scene on Lombard Street immediately after the failure of Overend, Gurney and Co (Limited) as published in The Illustrated London News. 48 (19 May 1866). The directors of the bank were charged with various forms of fraud. — Image titled ‘The Panic in the City’ depicting a scene on Lombard Street immediately after the failure of *Overend, Gurney and Co (Limited)* as published in *The Illustrated London News*. 48 (19 May 1866). The directors of the bank were charged with various forms of fraud.

Public Domain

Image titled ‘The Panic in the City’ depicting a scene on Lombard Street immediately after the failure of *Overend, Gurney and Co (Limited)* as published in *The Illustrated London News*. 48 (19 May 1866). The directors of the bank were charged with various forms of fraud.

Public Domain

This study explores the transfer of the fraud doctrine from Britain through India to the Ugandan Protectorate. The doctrine encompasses a set of ex ante and post facto legal interventions within the Victorian banking regulatory framework that grew out of a distinct cognisance of insider fraudulence when it was a major cause of bank failure.

Established by the King, the 1902 Order in Council conferred on the Commissioner, as a head of the imperial administration of the Uganda Protectorate, legislative power. In its exercise, the Commissioner could either (i) promulgate new law, (ii) apply existing law prevailing in the United Kingdom or (iii) apply law from another colony, including the British colony of India. Availing himself of these options in 1905, the Commissioner made the fraud doctrine of British India applicable to the Uganda Protectorate. The doctrine itself, having found initial legal expression in Britain, had arrived earlier on in the Indian colony, where it underwent material literal and contextual changes through the colonial legislative and judicial process.

While this study prioritises the historical account of the development and transfer of the doctrine, it also explores several theoretical aspects on legal transfer in the unique context of British East Africa. The provisions (i), (ii) and (iii) of the Order in Council are viewed as typical legal permissions and manifestations of the spatial movement of law which I call ‘trajectories’. British India is viewed as an intermittent jurisdiction, where law during the legal transfer process was first tested and modified to suit its final destination. I refer to this intermittent stage in the process as a ‘pitstop’. This study then intends to show how the process of moving the fraud doctrine in a trilateral trajectory from from jurisdiction A to B (a pitstop) and then to C takes place – a process others refer to as a ‘double transfer. The projects thesis then is that the combinations of trajectories and pitstops in the spatial movements of the doctrine suggests that the doctrine received in the recipient territory is a ‘hybrid’. In the specific context of the present case study, the British deployment of trajectories and pitstops in the transfer of the fraud doctrine is a delineation for legal hybridism in the Uganda Protectorate as a recipient state.

This study makes use of critical comparative and historical approaches and is intended to be as legal as it is historical.