LEGAL METHODS

Nature, classification and sources of law

It aims at equipping a law student with different skills that will help a law student to be
capable to study law.

LAW: there are different definition of the term law meaning that there are many authors
who have different definitions.
The encyclopedia says that law comprises of all principals, rules and enactments that are
applied in courts and enforced by the the state
From oxford English dictionary says that law is the body of rules whether proceeding from
formal enactment or from customs which a particular state or community recognizes .
Law is a body of principals recognized and applied by the states in the administration of
justice.
According to Blackstone he says law is a rule of civil conduct prescribed by the supreme
power in the state, commanding what is right and prohibiting what is wrong.
According to Simonton he says that law is the body of principals and rules recognized and
enforced by the courts by which the relations of the members of the community with each
other are regulated
Generally law is a body of rules and principals recognized by a particular state and enforced
by It to administer justice and regulate social behavior. By regulating social behavior the law
brings about equilibrium by balancing the conflicting interests in a particular community.
For the law to be in a position to achieve this it must set a standard of behavior that ought
to be complied by every citizen, this standard is enforced by the state through imposition of
penalties for those who go against it, this is known as normativity character of law.

NORMATIVITY CHARACTER OF LAW: this is the character of law that

differentiate law from other things where by it establishes standards where by when
someone goes against those standards a punishment is given to him or her. But law is
created and regulated by a state while others are just created by customs.

FUNCIONS OF LAW
Law has mainly three basic functions which are as follows

PERMISSIVE FUNCTION
This is the function of law that actually allows or permits the subjects of it to do or engage in
a range of transactions for example entering into marriage, entering into contracts, in
cooperative companies etc.
DIRECTIVE FUNCTION
This is the function of law where by the law allows a subject to to enter into various
transactions or relations but it directs the subjects as to what to do should be done or
complied with for the purpose of validating the transaction or relations in question. Example
the element of a valid contract, the necessary documents for formulating a company

PROHIBITIVE FUNCTION
This is the function of law where by the law prohibits certain defiant behavior by terming
them as crimes and providing sanctions or punishment on contravention example the penal
code which provides for various offensives and punishment the economic and organize
crimes and contract act

THE NATURE OF LAW

There are basically two thoughts of law

IDEALISM
HISTORICAL MATERIALISM/MARXI’SISM
IDEALISM
This is a school of thought which maintains that law originate from God and it was written
no where but imprinted on people’s hearts this was known as natural law. The supporter of
this were Plato, Cicero , St. Thomas Aquinas e.t.c they are maintaining that natural law was
superior, unchanging, universal and the kings were under this law.

HISTORICAL MATERIALISM/MARXI’SISM
Origin of law nearly came from God but it came from human beings, they are also saying
that law is the result of social relations and production relations, they are adding that during
primitive communalism there was no law, it started to develop during class societies. When
people were in a position to produce in surplus, due to that two classes emerged “the
haves” and “the not haves”, “the haves” wanted to dominate “the have not’s” so they
introduced leadership in the form of a state and laws enforced by the states so as to
continue their dominance over “the have not’s” and that is why state and law are in
separate according to Marxist’s law is an oppressing instrument by the ruling class to
impose their wishes over the ruled ones.

METHODS OF SOCIAL CONTROL THROUGH LAW

This basically refers to the various systems a legislature can adopt to achieve social earns
through law prof Robert S summers an American tourist has identified five basic techniques
used in modern law to control social behavior
The penal technique:
it involved rules prohibiting certain defiant behaviors, the maintenance of a police force
and other enforcement agencies to detect and prosecute violations, together with a system
of courts to adjudicate question of criminal liability. It also involves the maintenance of
prisons, custody centers and other such places as a penal system N.B the existence of the

penal system deters people from committing crimes. It prescribes certain conduct and
terms them as crimes, A crime considered to be committed against the state and it is the
state itself that will prosecute you. This only deals with criminal matters

Grievance remedial technique;

This shows or prescribes specifies remedies and provides for enforcement of remedial
awards it involves the statement of substantive legal rules, principals and standards which
creates rights and duties and remedies to backup those rights. It involves the existence of
civil courts to process claims for the establishment of particular rights and machinery for
enforcement of remedies. While this only deals with civil matters not criminal matters. It
+nalso establishes courts.

The private arranging technique

It deals with a providing a frame work of rules which primarily determines the validity of the
transaction. It deals with private arrangements such as marriages, purchase and sale, gifts,
making a will, the creation of leases, formation of a club e.t.c. the law also provides a system
for the determination of rights and duties and other liabilities although this may subsume
under the previous remedial technique N.B as the society becomes more and more
correctives there is a movement towards direct government intervention in the private
arrangement. This deals with private arrangement but it sets a frame work or standard to be
followed for those who will engage themselves in a particular transaction. Lawyers say that
when you formulate a will you die responsibly.
The constitutive technique
Here the law recognizes a group of people constituting themselves as company with legal
capacity to sue and be sued independently of the person s forming it. In Tanzania his is
governed by the company Act # 12 of 2002. This means that it focuses on one kind of
transaction which a people form a company and once the organization is formulated there
are some procedures to be followed so as the company can be ran. Example registration of
the company, the company must be registered to the government because it becomes a
legal person meaning it can be accused the company itself you don’t write the names of the
owner but the name of the company.

The administrative regulatory technique

this technique exists to regulate wholesome activities rather than prohibiting antisocial
forms of behavior as is the case with the penal techniques it is designed to operate
prevented before grievance has arise, as is distinguished from the grievance remedial.
Under these technique officials adopt regulatory standards, communicate there on with
those subject to them and take steps to insure compliers. The steps will usually include a
system of licensing, inspection, and warning letters, often with some further steps such as
revocation of licenses or the brining of administrative proceedings, civil litigation or criminal
prosecution. When we talk about this it doesn’t not specifically concerns with criminal
matters but it focuses with issues related to administration, meaning the law through
officials set a certain standard that should be observe in that specific field.

Fiscal technique
This is a technique that covers legislation through the government raise his money to
finance its expenditure by imposing certain taxes some of which are direct and follow
natural and legal persons and property while some are indirect and are based on
consumption of goods example income tax, VAT etc. this means that the government uses
law of purposes of raising money for its expenditure. That is why we have tax laws which its
aims is to collect tax while some taxes are direct paid by natural persons, but indirect tax
you pay taxes without feeling that your paying taxes

Conferral of social benefits technique

in this technique when the government has money they pay people back in terms of
providing social services such building hospitals and schools and as other infrastructures.
This technique used by the government to spend money raised by application of the fiscal
technique on a wide range of benefits and services which in earlier times were left to the
individual, to the local community or in some cases to the church example is our education,
roads , national health service and social security. N.B usually these benefits are regulated
by statutes so there is a basic legal task of interpreting the statues to know who are the
benefiters, who administers the scheme, how is the scheme administered etc.

OTHER RULES OF CONTROLLING SOCIAL BEHAVIOR

Law is the not the only means of regulating social behavior there are other rules which
include.
Rules of morality : these are statements about how people should behave or
must behave in society as a whole or in certain group within the society saying what is good
or what is bad.

Customs: these are rules of social behavior based on long experience of what is right
or useful in a certain situation. There are there for justifying by usage and tradition. By
following customs people behave in this or that way( read case Gwao bin kilimo v. Isunda
bin ifuti) 1948 TLR 403

Organizational rules: these are rules that are governed by certain

organizations. These rules of social, political or cultural organizations and institutions
example the constitutions of political parties contain rules of behavior governing party
members by pronouncing fundamental principals of the party policy, regulating organization
of the party and establishing rights and duties of the parties.
Rules of politeness;These are rules that show how a person should behave
according to the society he is in meaning that he or she should be polite towards his elders
and respect them as well example in a bus giving a seat to elders
Distinction btn law and other means of social control:

CLASSIFIACTION OF LAW
Law can be classified in in various parts, this means that by making reference to subject
compartments or to classify it generally

General categorization

common law and civil law

it means that we are not dealing with specifics law but we are dealing wit specific legal
systems that are found in different countries.
-common law: this is a legal system that originated from England which was a result of
judges decisions basing on customs, once upon time in England various customs were used
in various places to decide cases on various matters example family matters etc, for
purposes of standardization and unification the King formed a panel a of judges to travel all
the country and decide cases in various places using the customs of that particular area, at
the end of the day good customs were collected and formed a body of law with general
application all over England not withstanding where specific customs originated hence the
name common law, in deciding cases common law uses (adversarial system) and case law or
precedents forms an important part of justice dispensing system
-Civil law: this is a legal system, a characteristic of continental Europe which was highly
influenced by roman law it is used in countries such as France, Portugal, Germany and most
countries of southern America. In civil law system case law is of little value if at all. The basis
of dispensing justice is on codes or series of codes; the legal system of adjudication is
(inquisitorial )which is a judge centered system.

Public law and private law

-Public law: this is the branch of law that deals with or regulates the relationships between
the state on the one hand and the citizens on the other hand, under it there are sub
categories: criminal law, constitutional law, and administrative law.
-Private law: this is the branch of law that regulates the relationship of individuals amongst
themselves, under this , generally, the state has no direct interest except for few occasion
like marriages.

Criminal law and Civil law

-Criminal law; this is a branch of public law that terms certain behaviors as crimes and
provides for punishment on contravention
-Civil law: this is a system of law that regulates the relationship between the individuals and
provides the rights and duties of the parties together with a system of courts. Example in a
contract a person will know all his rights.

Substantive and Procedural law:

- Substantive law: is the branch of law that provides all the rights, duties and obligation of
the parties, it also provides for a system of courts whether criminal or civil for purposes of
determining rights of the parties example, criminal law, contract law, family law etc. we
could say that it deals with the substance of something.
--Procedural law: this is a branch of law that deals with the procedures to enforce your
rights under substantive law, where to go to enforce the rights and also what procedures
that should be follow for the purpose of enforcing that right.
- this is also a branch of law that deals with 1. The institutions that have mandate to deal
with violations of rights and duties under substantive law and 2. The procedures to follow to
enforce that right. An example of this is criminal procedures cap.20.

SOURCES OF LAW
I should refer to the sources that I have written in the notes of criminal law

LEGAL RESEARCH AND WRITING

INTRODUCTION: a lawyer is constantly engaging in researching so as to give
authoritative materials for what he is saying or writing; the aim being to discover principals
to be used in supporting arguments for solving cases, the same may be done by judges or
magistrates for purposes of baking up their judgments or rulings as the case may be

TYPES OF AUTHORITATIVE MATERIALS

There are 3 types

1. LEGISLATION
2. PRECEDENT / CASE LAW
3. OTHER SECONDARY SOURCES

NB; in terms of usage the materials can be categorized into 2 major categories
(1) BINDING OR MANDATORY AUTHORITY; is an authority which you are
required or obliged to use in solving a problem or advancing a legal argument. This means
that you are obliged it is not a request but a requirement, in any case you should do
citations which will support you in your case and probably persuade the judge.

LEGISLATION OR LAW ENFORCE: we call it law enforce because we are

talking about laws present at the moment and not replaced laws or dead laws.

-These are laws enacted or made by the authorities having power to make such laws in that
particular country, they may be principal or subsidiary NB; these laws should not have been
repealed or replaced. Repealed laws means they are no longer in existence if you say
repealed and replaced meaning that it means they took it away then made another one to
cover it. However, there are other circumstances where the laws of other countries may be
used and this may be the case where there is a lacuna or a gap in the laws of that other
country. In Tanzania this is a result of the reception laws of the TOC which was repealed and
replaced by JALA cap 358 section 2(3)

PRECEDENT
Precedent are also used as authorities to back up an argument the same way legislation
does however for a decision to be applied it has to be a decision of a court of records which
may either be the High court or the Court of Appeal
NB; the judgment should be relevant and direct to the issue in question hence it should not
have been REVERSED OR OVER RULLED.
REVERSED: means if the court of appeal delivers a judgment that differs the high courts
means that the judgment of high court ceases and automatically dies, OVER RULLED there is
implied over ruling It means that the the decision of court applied impliedly it has been over
ruled, Express over ruling meaning that the judge says directly that the decision made in
high court has ceased.
(2) PERSUASIVE AUTHORITY; this the authority which does not have any
forced law but can only be used to persuade the court for example persuading the court to
allow a principal in a particular case made by the high court or supreme court of England or
that of the East African court of Appel. You may do this as well by citing written materials
written by a prominent author such as IAN BROWN in International law or MULLER in civil
procedures
NB: persuasive materials cover all the remaining sources such as books dictionaries bible,
Quran , journals and articles etc.

ORDER OF AUTHORITIES
i. THE CONSTITUTION
ii. STATUTES
iii. PRECEDENTS
iv. OTHER SECONDARY SOURCES
v. THE CONSTITUTION
LEGISLATION; it begins with a bill, a bill is a draft version of an act of parliament
which is laid before the parliament for approval

TYPES OF BILLS
Government bill; this is a bill that is initiated by the cabinet. The respective ministry drafts a
paper including what it wants the respective la to cover, then it presents it before the
cabinet for approval, should the cabinet approve it, it becomes a cabinet paper. Then the
paper is submitted before the Chief Parliamentary drafts man (CPD) to be drafted in the
form of a statute then it is presented before the National assembly for discussion.
Private bill or private member’s bill: it is a type of a bill that originates from a member of pa
rliament. When the parliament is satisfied b that bill then the same is sent to the CPD then
to the President for his assent.

A STRUCTURE OF AN ACT OF PARLIAMENT

• It must have a court of arm

• There must be the Act number and the year of Enactment
Example Act 4 2012
• Presidential assent, it has the name, date, month and year I JK
(PRESDIDENT)
• Long title, it is written in black ink or it is in bold it explains the
purpose of that law. Sometimes instead of having a long tittle
a law may have a preamble
• An enacting formula, it tells you who has passed it.
• Short tittle and citation, tells you how will you cite a law
• Interpretation Provisions, these act as internal dictionary of a
statute, they state various meanings of the words contained in
 the statute example Minister Shall mean, the minister
responsible for labor matters.

CITATION OF LAWS: there are various ways on how we can cite

some cases.
(A) CITATIONS OF LAW IN TANZANIA: there are three ways of
citing the statutes

• Using short title and the year example money laundering Act, 2006
• Using short title, year and cap number example money laundering Act, 2006, [ cap
423]
• Using cap number and year example [ cap 458 R.E 2002] . more details in section 20
of cap 1 Interpretation of laws act.

SEARCHING A STATUTE
When looking for statutes in the library look at the index of Tanzania statues. It is a
document that provides for the names or titles of all legislation, the years in which they
were enacted, chapter number if any and the volume in which it is found. N.B when citing a
statute cite the latest version of it, meaning citing a law that is in existence. In Tanzania our
system is very complicated in the sense that everyday new laws are enacted.

CITATION OF LAWS IN ENGLAND

By short title, which includes the calendar year example The fatal accidents Act 1846 N.B for
Acts passed before 1963 they had a comma in the short title before the date, in 1962 a
change was made and the comma was dropped it seems sensible also to drop the comma in
pre 1963 Acts as well.
By the regnal year and the chapter example 9&10 vict. c. 93 it means that an Act received
the royal assent in the session of parliament beginning in the the 9 th year of Queen Victoria
and concluded in her 10th year, being the 93rd statute passed in that session.
Citation by a compromised of the two, example The Fatal accidents Act 1846 [ C. 93]

LAW REPORTS
These are reports of more important cases that have significant legal importance and which
have been decided by the superior courts in the judicial Hierarchy. For the case of Tanzania
are the decisions of the High court and Court of Appeal.
 CRITERIA OR HINTS FOR CITING A CASE IN
A LAW REPORT
It should be a decision that introduces a new principal example BiHawa Mohammed V. Seif
+Ally
If a case modifies an existing principal
If a case comes to solve a conflict between judgment or decisions that were existing etc.

(A)LAW REPORT FROM ENGLAND

why law reports from England? The major reason is because of
-the reception clause article 17(2) then was replaced by JALA ……
-so as to get principal from common law
-just to get persuasive authorities made by courts in England

HITORY OF LAW REPORTS IN ENGLAND

-A nominate law report is a report where by there is an initial letter of the reporter.

I=this history may be divided into two periods

Pre 1865
Post 1865

Pre 1865: before 1865 law reports in England were not centralized, they were chiefly bu=y
private reporters under their own names ( nominate reports) example Ramsey V. Webb
1842 c.m. there were some hundreds of diffenert series though many of them run only for a
short time most of them were reprinted in a series known as the English reports ( ER )
Post 1865, in this time there was established an official body know as The Incorporated
Council for Law Reporting. At present they are published in 3 series
The Queens bench division cited as 1975 [ 2QB 100]
Chancel division cited as 1975 [ 1Ch. 100]
The family division cited as 1975 [Fam. 100]
N.B previously there were 11 series but in 1873 things changed after the introduction of the
judicature Act 1873 which unified the common law courts and the Chancery to form the
High court.

(B) LAW REPORTS FROM EAST AFRICA

it began in 1897 in Kenya in a series known as East African Protectorate Law reports. It
began in Kenya because there was a privy council. This was a committee in Britain which
played the role of courts and used to hear appeals all over the world in British colonies. The
1922-1956 period saw the emergence of some 21 Volumes of the Kenya law reports (KLR)
this included the decision of the high court only and were collected, compiled and edited by
different judges and magistrates
-In Tanganyika we had the Tanganyika law reports that began in 1921

-in 1934 started the court of Appeal for East Africa law reports (E.A.C.A) it stopped in 1956
because a new series of reports known as East African Law reports was introduced (EA) . it
reported the decisions of the court of appeal for East Africa and the Superior courts of the
Constituent territories namely Kenya, Uganda, Tanzania, Aden, Seashells and Somali land.

-the EA stopped in 1967 from this period we (Tanzania) started to have the High Court
Digest (H.C.E) which ended in 1973 from 1973 we started to have the Law reports of
Tanzania (L.R.T) which stopped in 1979 and from 1980 we started to have the Tanzania Law
Report (T.L.R).

why do other cases have squared brackets and other normal brackets?
Round brackets are used when after there is a volume number which means that to get the
report the year in the round bracket is not important meaning you can ignore it because you
can use the volume number that is just after the brackets. And it is the year in which that
particular judgment was made.
Square brackets are used to show the year in which the case was reported.

BRIEFING A CASE / CASE NOTES

While reading a case not everything is important. This is all about short summary of the
judgment, by putting the important issues only. We need to know that the part of the case
that carries authorities Ratio decidendi (RD).

In reading a case or judgments you have to read the entire judgments so that you may be in
a position to identify the relevant
or material facts, issues to be determined, reasoning of the court, the principal of a case
etc. this in aw is called writing case notes.

CONTENT OF THE CASE NOTES

Title and citation of the case example R V. Juma Shaban 1986 TLR 100
You must select materials facts: materials facts are the ones on which the judgment of the
court is going to base. however, it is not easy to identify what facts are materials because,
what facts are materials is dependent on a judge or magistrate making that decision but
there are some indicators or identifiers of facts that are material for example the nature or
the transaction in question, the nature of breach or commission in a civil or criminal case
respectively, damage suffered circumstances of the commission or breach etc. when a
judgment is read there are material facts which are the most important, these are arts
which the judgment of the court is going to base. A principal of the case is the result of the
material facts of the case and the reasoning and judgment of the court.
Issues: you must identify relevant issues that might require the indulgent of the court and
that might be relevant or important in the decision to be made. Issues may be on a point of
law, may as well be on the procedure or may as well be on the facts. A simple way of
identifying issue in a judgment is to look for questions or the word whether. Almost all
judge’s facts appear on the first page and probably on the first line. ISSUES:
These are points or questions that the court must answer in delivering a judgment. The
simplest way to find an issue is to ask yourself a question.
-arguments by the parties:
Reasoning of the case: refers to the reasons or justifications for the court to arrive at a
particular decision example the reasoning may base on policy issue example Gender
empowerments etc. Before a judge arrives at a judgment he must make a reasoning that
will act as a judgment.
Ratio decidendi (RD): these are important issues that you must be able to extract in a case.
This is a principal of a case or part of the case that carries authority and it result of the
material facts plus reasoning and judgment of the court. Facts are also important because
those lines will bring that principal.

LEGAL WRITING
Language is the professional tool that enables a lawyer to communicate well with his
audience so language is an important aspect to be considered and to be given much weight
so it is important to learn on how you can effectively communicate with your audience also
language will enable you to put forward your argument with articulation.

PROBLEMS IN WRITING
• Poor planning
• Lack of care
• Inability to capture and maintain the readers interest
• Lack of structure
• Poor grammar

IMPORTANT CLUES IN WRITING

Clarity: Your writing should make a reader to understand what you have written with
minimum efforts, your statements should be clear and free from ambiguity.
Simplicity: use simple but relevant legal terminologies or language. Avoid long and complex
sentences unless it is necessary.
(1) Use one idea in one sentence
(2) Avoid using difficult words
(3) Avoid technical jargons

Accurate and precision: write something that is exact and free form errors, being very
careful.
Persuasive: try to convince your reader on what you are writing.

CITATION OF AUTHORITIES:
MANNER OF CITING AUTHORITY
Legislation: there is section subsection , roman and paragraph. 42(2) (e)
Constitution: there is Article, sub article, roman and paragraph
Subsidiary Legislation: Rule or regulation, example Regulation, sub regulation, roman
number and paragraph.
Rule- Sub rule, roman number and paragraph

CITING BOOKS
-Immediately after the name of the author the year comes, the title, edition, place where it
is published and the publisher.

❖ Author’s name
❖ Year of publication
❖ Title of the book
❖ Edition if any
❖ Place of publication
❖ The publisher
Example Fintch, J. D, (1974) , Introduction to legal theory, (2nd edition) , sweet and
Maxwell.

IMPORTANT HINTS IN CITING

When the book is written by more then 1 author you write the name of the 1 st author then
you write “et al” meaning and others.
If the book is compiled with an article 1st start with the writer of an article and the title of
the article, then continue with the editor of the book. Example Engels, A.,” The origin of
family, private property and the state, “ in Max, C and F. Engels, selected words, progress
publishers, 1968,PP. 20-35.

CITING AN ARTICLE IN A JOURNAL: it is a compilation of articles. In citing an article in a

journal start with the author of the article, the title of the article, the year and volume
number of the journal, and page number.

Example: Fridmann,G., “ The intention of Tort and contract”

ACTUAL REFERENCING
 FORMS AND PRECEDENTS
i. PLAINT
ii. WRITTEN STATEMENT OF DEFENSE (WSD)
iii. AFFIDAVITS
iv. CHARGE SHEET
v. DEED POLL

PLAINT: this is a legal document which is used to institute a civil proceeding in a court of law
which contains all the material facts on which the plaintiff relies to substantiate his plaint.
Governed by order VII of the civil procedure court N.B a plaint does not include evidences
which the plaintiff intends to rely upon this means that are those facts that you will rely on
example if it is a contract you will tell the court your story and you attach a copy of the
contract but evidence meaning that you want to prove.
The facts are arranged in paragraphs and at the end the plaintiff has to sign and his
advocate too. a plaint must contain
Facts establishing the cause of action (what did that person do)
Facts showing that the court has jurisdiction
Remedies or reliefs the plaintiff seeks from the court.
A plaintiff is a person who takes a case to court, but in criminal cases there are no plaintiff.

WRITTEN STATEMENT OF DEFENSE: this is a legal document drawn by the defendant

traversing the plaint paragraph after paragraph for purposes of denying what is contained in
a plaint with a prayer that the suits be dismissed in some circumstances with costs.
A (WSD) is to be filed within 21 days from the date of service
A (WSD) may contain:
-points of objection example that the court has no jurisdiction, the suit is time barred etc.

AFFIDAVITS: these are sworn statements by the deponent stating facts that are within the
knowledge of the deponent.
However sometimes the deponent may state facts which are not within his own knowledge
but he has to show or state the source of that information.
Affidavits ae sworn before a commissioner for oaths.
The facts to be stated have to be in numbered paragraph.
An affidavit has to be signed and verified by the deponent N.B affidavits are of different
types
Affidavits on verification of names
Affidavits declaring nationality of the deponent.
Affidavits in support of an application in the court of law etc.

CHARGE SHEET : this is a legal document that is formally used to institute criminal
proceedings, they are governed by the criminal procedure Act Cap 20 revised edition 2002.

Content of a charge sheet

• Title of the court (name of court)

• Title of the document (Charge)
• Details of the accused (name and other details)
• Counts
• Statement of the offense
• Particulars of the offense
• Details of the state atoner

DEEP POLL: this is a legal document that is used to change names where by a person who
wants to change names abondons those old names and assumes new ones which he would
like to be recognized by. For it to be effective it has to be registered with the registraor of
tittles and an announce to that effect has to be published in a government gazette.
NEW TOPIC :

DISPUTE SETTLEMENT METHODS AND PROCEDURES

It is common for disputes to arise in any society because disputes are by social economic
factors. Once a dispute arises parties may be affected by it so it is necessary that it to be
solved so that parties may live peacefully or to ingress the parties whose rights have been
inquiry.
-A dispute may be defined as a special form of interaction. It is a misunderstanding between
or more parties in a society or between one society and another or between one country
and another.

WHAT IS A DISPUTE SETTLEMENT:

This is a method of solving or settling misunderstanding that occurs between individuals or
society. It is concerned with the rules, procedures and institutions involved in settling
disputes.

WHAT IS DISPUTE SETTLEMENT PROCEDURE: this refers to all procedures which are used to
resolve a dispute, it involves:
-Establishing whether a dispute has occurred or not
-if a dispute has occurred, what are the interests
-what is the applicable law
-what institutions are there to settle such dispute

DISPUTE SETTLEMENT METHODS:

there are two methods of dispute settlement

the traditional or communal dispute settlement methods

the modern dispute settlement methods
NB: the methods of solving disputes depends on the nature of the societies involved,
meaning that the methods used to solve disputes depend or relates to social economic and
political development of that society.

TRADITIONAL METHODS OF DISPUTE SETTLEMENT

These are methods which were used by pre capitalistic societies to settle their disputes,
these societies depended much on land that is why many dispute relate to land.

BASIC PRINCIPALS INVOLVED

 Land is valued for its use, that is , land has use value and it is the major means of
production and so, land disputes therefore, mainly involved the question as to who has the
right to use that land. One may claim that he has a better title to use that land because
either:
-he has been in possession of that land
-he has inherited it or he has cleared it from the bush.

Questions of ownership absolute does not arise, only the question of possession is
considered, that is to say disputes settlement institutions do not have to decide as to who is
the owner of the land in any absolute sense but only who has the right to possession.

CHARACTERISTICS OF TRADITIONAL SOCIETIES

i. low level of production
ii. no classes
iii. no surplus production
iv. low level of science and technology
v. major means of productions were based on land

LEGAL CONTEXT OF THE TRADITIONAL SOCIETY

They depended on customs established by long experience,
the customs were sanctioned by the whole society example out casting a person.
morals had force of law
rules were simple, no differences between law of property or law of lands or personal law.

Read the following cases, ISAC NGUVUMALI V. PETROL BIGULAKO HCD 1972 139
SWALEY V.SALIM HCD 1972 140 , KAPASYU V. MWADILEMO HCD 1968

METHODS USED TO SETTLE DISPUTES

there were many methods used to settle disputes such as

But the first three were common

1. mediation and conciliation

2. drumming the scandal
3. trial by Ordeal
• Retaliation
Mediation and conciliation:
This is a method of dispute settlement where by a mediator who was an old person comes
between the disputants and help them to solve their disputes amicably, at the end of the
dispute the parties in dispute became friends. In case KADUME V SOINE.

Drumming the scandal:

This was a method of dispute settlement where by the disputants were exchanging harsh
words in the form of songs and dances. When the dispute became stiff a leader could call
the disputants and declare who between the two is right and would make an order in that
regard (NB) the governing principal was that if something alleged was possible to be done
by a human being then such allegation should be true otherwise a jir (super natural power)
could be called to punish that person who raised such allegation. TORGINDI V MTSWEN;
Mtsweni was a guardian of daughter who torgindi’s son wanted to marry, Torgindi had paid
the bride price for his son but Mtswen prevented the marriage and refused to refund
torgindi’s bride wealth, a dispute started where by the parties exchanged harsh words and
started to drum the scandals of each other both higher sound makers and many people
came to dance and sing together while drinking bear.

MTSWENI ACCUSATONS: he accused one of Torgindi’s wife of stealing yams, there was local
consensus, so this was probably true, also that Torgind changed himself into a pig at night
and eat sow.

TORGINDI’S ACCUASTION: Mtwseni was a skunk which is a black and white stripped
mammal in America that can produce a full smelly liquid from its anal to its ( NB) the
drumming contest continued every night for more then 3 weeks before the village leader
One Chake took notice that if the contest was to continue it would end up in fights for which
he would himself be answerable to the dispute officer, Change sent notice to both Mtswedi
and Torgindis and their people to come to his compound the following afternoon and both
would sing and drank and they would decide the case

DECISION: 1: torgindi won the case and Mtsweni had better songs
2: he then orders both song makers to go home immediately and not to return to that
village for a couple of months until the feelings which were arose had died down.

Trial by Ordeal: this is the type of dispute resolution which involves the use of local liquids
or any other substance with super natural powers which will affect the wrong doer and live
safe the innocent ones example mwavi if you are a wrong doer PALAMBA FUNDIKILA V
REPUBLIC. This was a trial by ordeal to discover who had by witchcraft cause the death of
the eleven children of the 1st appellant in this case. The two appellant went to a medicine
man (Juju man) to get traditional medicine known as mwavi. If you are guilty you will die but
if innocent, you will only vomit. Four women from the 1st appellant’s house took mwavi 2
died and other 2 vomited, the 2 appellants were charged for murder but their conviction
was crushed due to absence of malice aforethought.

ADVANTEGES OF THESE METHODS:

 • Reconcile parties meaning people become friends (disputes were solved)
• You did not have to pay for anything (cheaper compared to modern methods)
• The wrong doers are known
• Brings peace and solidarity in the society
• The disputes were solved in a short time
• It made all members to participate
• Principals were known to everyone in the society
• Satisfaction of people.

DIS ADVANTAGES

• Some methods were Against justice (trial by ordeal)

• Time of production was waist
• Injustice (loosing properties)
• No clear rules and procedures would result to misunderstanding
• Some methods caused chaos

MODERN METHODS OF DISPUTE SETTLEMENT

These re methods of solving disputes which are used by societies with advancement in
social economic developments that is to say under capitalist societies these methods have a
common feature that is winner takes all and loser loses all

BASIC PRINCIPAL OF THOUGHT

land becomes a commodity bought and sole for money

one property class acquires the use of land at the expense of another class.
The purchaser of land becomes the owner of the land with good title against the whole
world

LEGAL CONTEXT OF A MODERN SOCIETY:

Existence of formal institutes like courts and tribunals etc.

Existence of people with specialize knowledge of law example judges, advocates and
magistrates etc.
Disputes are settled by reference to a rule of law which is established authoritatively then
applied to the facts of the case.

METHODS DEALS TO SOLVE DISPUTES

They can be divided into to two major groups

1. ADVERSORIAL SYSTEM:
2. INQUSITORIAL SYSTEM:
ADVERSORIAL SYSTEM: it comes fro England meaning common law, the major principal is
that a dispute is settled out of a due process meaning there are some procedures that must
be followed as to know if that person is guilty or not. Read section 258 in penal code. You
have to prove by producing witnesses and prove evidence. It is a characteristic of the British
legal system which based on the principal that he who alleges must prove and he is the one
to put the process in motion.
The legacy is that justice is done through a legal process of law this is evidenced or effected
through elaborate procedures where evidence is adduced and allowed to be challenged and
the existence of an Umpire to conclude which side was right this umpire can be a judge or
magistrate depending on the level of a court entertaining that dispute. The parties are
involved in a sort of a fight and are termed as adversaries who accused each other in the
presence of an unbiased or impartial umpire. Each side produces its own witnesses who are
1st examined by a party who called them (examination in chief) and what they have said is
tested by cross examination on behalf of the opposite party. The presiding judge or
magistrate does not initiate a line of inquiry, he or she assumes the role of umpire, it sees
that question put to witnesses are proper and the questioning is fair. Upon conclusion of
the evidence the presiding judge or magistrate sums it up for the assessors if any normally
in customary or Islamic law then the presiding judge or magistrate delivers a judgment in
the form of winner takes all and loser loses all.

MAIN CHARACTERISTIC OF ADVERSORIAL

1. Judgment takes the form of

2. Rules are precisely defined and strictly applied.
3. The procedures and rules of evidence are technical and advocacy is necessary
4. It helps the judge or magistrate to make up his or her mind for he or she has an
opportunity to see and hear the parties.

STAGES OF DISPUTE STELLEMENT

Identification of the disputed issues between the parties

Finding the rules applicable in the dispute
Discovering of the relevant facts and application of the rules to the facts.
ADVANTAGES OF ADVVERSORIAL SYSTEM

• -it is possible to keep records of the proceedings and use them later
➢ it produces greater precession about the issues thus saving time for the court
as parties must be very well prepared when they come to court.
• -the parties control their case.

DIS ADVANTAGES OF ADVERSORIAL SYSTEM

➢ The technicality can cumbersome nature of procedural rules

➢ Most people are ignorant of their rights and how to pursue them in courts
 ➢ It is expensive especially to indigent claimants as they can not afford higher fees
charged by advocates

INQUISITORIAL SYSTEM:

This is a characteristic of continental Europe and states of the World which were under the
colonial rule of the French and Portuguese. Under this system there is no trial in the sense
of concentrated events where parties face each other with their respective witness. At the
preliminary stage pleadings are submitted and a hearing judge is appointed it involves
written communication (depositions) between the judge and the representative of the
parties at which evidence is produced. The judge conducts the questioning of witnesses thus
the term inquisitorial.
NB: in theory a judge can ask whatever he thinks necessary to discover the truth. However,
he restricts himself to lines of questions which have been submitted to him in writing by the
parties. Meaning that it is characterized by exchange of written documents.

RULE OF EVIDENCE:

The rule is that one witness is no witness that you can not prove your case using one
witness only but in Adversarial with even one witness its allowed. the judge prepares a
written record of the case and reports to a panel of judges who study the written briefs and
give their judgment.
NB: this system is based on codes and precedent played no important parts in decision
making thus citation of a case is evidence for the application of the law or rule.

ADVANTAGES OF INQUISITORIAL SYSTEM

➢ Court controls the proceedings hence limits the costs as well as time.
➢ Parties may not need representation
➢ It avails the parties an opportunity to go and search for legal aids and they are given
the questions before hand

DISADVANTAGE

➢ -The judges do not see the parties hence this makes it difficult for them to see the
parties’ demeanors.

ADR: alternative dispute resolution: this refers to the methods of solving disputes without
the involvement of courts, however this is a general rule meaning that there are exceptions
NOTE: ADR is not a replacement of the adversarial court litigation but it is the supplement
to it in the sense that ADR works hand in hand with the traditional adversarial litigation.
These are methods used to solve disputes without involving courts.

HISTORY OF ADR IN TZ:

this highly developed in 1976 in America meaning it came to existence and it proved to be
effective sense so many cases were resolved through ADR compared to litigation. In 1990s
the then CJ of TZ Francis Nyalali paid a visit to America to see how ADR processes were
taking place, he was impressed by ADR in USA and he when he came back he was
determined to introduce ADR in TZ. As a result some judicial personnel including judges and
magistrates were sent to America to learn how ADR process were conducted. Chief Justice
using his powers under sections 81 and 82 of the CPC Civil procedure court amended orders
Viii A,B,C of the CPC through government notice GN number 422 of 1994. Order ViiiA deals
with a pre trial conference where by the parties together with the court select a proper
speed track depending on the complexity of the matter in question. Order ViiiB deals with
the final pre trial conference whereby issues are framed and final conference is scheduled.
Order ViiiC deals with mediation, negotiation and arbitration.

PRE-TRIAL CONFERENCE : Pleadings are complete and parties meet for purpose of framing
issues (speed track ) means time a case supposed to be completed.

NOTE: ADR; involves mediation, negotiation and arbitration. There are 2 types of ADR

COURT ANNEX / COMPLUSORY: where by the court is also involved in where by there is a
judge or magistrate acting as a mediator who is there to assist or facilitate or soften the
dispute meaning he does not make a decision. In case if it fails he will not be a witness and I
will not be a judge or magistrate in the court when this matter is brought forward.

OUT OF COURT ADR / VOLUNTARY: the court does not have a directly involved in the
dispute. Meaning in case of any dispute we should not go to court, could be solved using
arbitration. However, if any of the party go to court without involving arbitration the other
party can raise an objection that Judge you do not have the jurisdiction to proceed with this
case.

ADR PROCESSES:
The major processes are
➢ MEDIATION
➢ ARBITRATION
➢ NEGOTIATIONS

MEDIATION: this means reconciliation. This is a process where by there is an intervention of

a neutral third party between the disputants for purposes of helping those parties to resolve
their disputes. That third party is known as a MEDIATOR and he has to be IMPARTIAL or
neutral. In court annex mediation the mediator might be a judge or magistrate depending
on the level of the court.
NOTE: in court annex mediation the mediator in his introductory statements he must inform
the parties that dispute the fact that he is a judge or magistrate but for purposes of a
mediation he will not act as such. He must also inform the parties that everything that
transpires a mediation shall remain a secret and should mediation fail he will not be a
witness to any of the parties neither will he be a judge of magistrate in that matter in the
sub sequent proceedings.

ADVANTAGES OF MEDIATION
It is cheaper then litigation because mediators are magistrates and judges who are
employed by the government and so you do not have to pay them (In as far as court annex
is) .

You do not have to follow the rules and procedures that are cumbersome for example
production of documents.

It takes a short time.

The resolution is made by the parties themselves

Dispute is resolved amicably

DIS ADVANTAGE OF MEDIATION

There can be the use of delaying techniques

There is no uniformity because no rules are used to conduct mediation

(for out of court)

Not applicable in certain cases example constitutional cases and criminal cases.

ARBITRATION: this is governed by arbitration Act cap 15 and 2nd schedule to the CPC which
specifically deals with court annex only. This is a dispute resolution method in which there is
n intervention of a neutral third party preferably a lawyer, who will have powers to make a
binding decision (award) which the parties will have to follow. In out of court arbitration the
parties may describe in their contract that should a dispute arise the mater should be solved
through arbitration before a party may consult litigation. CONSTRUCTION ENGENEERS AND
BUILDERS VS. SUDEPO 1983 TLR 13. There are no criminal case and marriage matters in
arbitration only commercial cases.
NB: according to section 7 of the arbitration act the parties have the right to appoint the
arbitrator but if they fail the court will appoint one for them. In case of …… in course outline
RAHCASSI SHIPPING COMPANY OF SOUTH AFRICA VS. THE BLUE STARLINE LTD (1967) All
ENGLISH REPORTS 301. Check section 6 or 27. There is also international arbitrations
example ICC(International chambers of commerce)

ADVANTAGES OF ARBITRATION PROCESS

➢ There is flexibility of procedures as parties sit down and decide.
➢ It has got privacy as proceedings are conducted in private compared to litigation.
Proceedings in camels is the opposite of open court example children rape.
➢ It saves time.
➢ Reduces the burden of cases in courts

DIS ADVANTAGES OF ARBITRATION

Some how expensive as an arbitrator is to be paid in case of a voluntary or out of court
arbitration. Voluntary Arbitration another name of Out of court.
Might be time consuming depending on the matter at hand and the applicable law.

NEGOTIATION: there is no third party meaning that the two parties discuss and make a
decision

COMMON LAW CASE LAW TECHNIQUE/ CASE TECHNIQUE: (obiter dicta) courts opinion but
not decisions.

3 CONCEPTS THAT WILL ALWYS APPEAR IN CASE LAW

TECHNIQUE:
1. RATIO DECIDENDI
2. OBITER DICTA
3. MATERIAL FACTS

RATIO DECIDENDI: Is that part of a case which carries authority and which may be used by
lower courts as their authority in disposing of a case that is before them provided that the
materials facts of the 2 cases are almost similar. It is formulated from the material facts of
the case and the decision of the court. (Abstraction) is the capability to link the material
facts and the court’s decision.

- (R.D )where by a person negligently parks his car on a public road and a a result of that
negligence the car hits another person OR where by when a moving object is wrongly
parked and as a result it hits a person that person should be responsible for his actions OR
carelessness of any driver should be liable for his actions. R.D are made by judges and their
decisions.
There are 2 R.D a narrow and wider one. MR has a wife which is B the neighbor approached
the wife and told her that I have received a call from ur husband he has been involved in a a
car accident and both of his legs have been paralyzed so he is taking to the hospital so I
wanted to inform you then the lady suffered from a shock and admitted to the hospital and
realized that

decision: C was liable to pay b compensation because of wrong statements he made.

Where someone gives false information intentional and that person rely on that information
and as a result the person suffers from nervous shock that person shall be liable for his
actions.

WIDER R.D: involves more information and and its has general language where by it
generalizes things

OBITER DICTA: is a minor principal that is formulated by the court from hypothetical
(thoughtful) facts for purposes of clarifying a certain point. It is said “by the way” and it has
no direct link with the case at hand “
NB: an obiter is not binding however it’s weight depends on the eminence of the court and
the status of the judge who formulated it. basing on that an Obiter, in future may be used as
a principal. There are no authorities used to formulate it that is why it can not be binding.

MATERIAL FACTS: these are facts on which the decision of the court will base however
there is an ongoing debate as to what are material fact of the case NB: there is no heard and
fast rule on how to select the material facts of the case, that being the case, material facts
are those which the court declares to be so. facts that describe how the dispute came to be
and the court will be basing on those facts and making a decision.

- How to identify material facts. They usually come at the very initial paragraph but in some
cases in England there could be a set of 3 or 4 material facts. This because case maybe be
solving by more then 2 judges and each judge will give his or her materials facts and give
decision. But if there are 4 judges and 3 of them have the same material facts and gave a
decision then the majority win meaning they will take that R.D made by those 3 judges. Its
possible to have 2 R.D because it depends to your situation and similarity of your own case.

Example of extracting an R.D:

Page 11 Rickinson V . Danton 1897

M.F: The defendant lied on the plaintiff Rickison that her husband was involved in an
accident and that both of his legs were amputated and so she should go to the hospital with
a pillow, as a result of such information she suffered from nervous shock and she was
hospitalized for some days. Material facts can never be 100% similar

N.R.D: where the defendant has willfully or intentionally told the plaintiff a lie that is likely
to and frightened her and consequent physical or mental harm that person is liable to
compensate the victim.
W.R.D: it is a tort to do any act with intent to affect someone in a body or in mind.
USE OF NEGLIGENCE CASES:

why do we use them?

➢ They help us to extract material facts
➢ They help us to extract R.Ds
➢ They help us to know how an R.D can be used in future
➢ They help us to know whether judges make law or not.

DEVELOPMENT OF THE LAW OF NEGLIGENCE

Negligence developed systematically and took long time and judges used long time
principals to develop new principals. This development was a 3 stage process. these r series
of cases that led to a development of negligence as an independent thought. There 2 types
of judges we call Liberals or bald judges were ready and willing to extend the development
of negligence or conservative judges they only wanted pigeon holes to remain 3.

3 STAGES
1. A court will pronounce a principal
2. Later courts will appraise that principal if it is good
3. The application of a principal in cases

BEFORE NEGLIGENCE WAS RECOGNIZED THERE WERE ONLY 3 PEAGEN HOLES

Tort of deceit: is where u tell lies to someone and as a result when that person relies on
that lie and suffers an injury. You can sue the seller if he lies to you. If a stress passer passes
at his risks, you he can not sue you should not intentionally hurt him though.

Breach of contract:

Occupiers liability

NB: it will be noted that the law of negligence has evolved from such concepts as contract,
fraud, dangerous instruments, doctor patient relationship, actual knowledge of the
consumer, fiduciary relationship, occupiers of premises, proximity extra.
The process of the development of the law of negligence consists of the following aspects or
processes

ASPECTS OR PROCESSES OF REASONING:

➢ Analogy reasoning: is the reasoning by comparison or by examples. Meaning

comparing two cases by saying that the case of so and so have the same products as
the case of so and so.
 ➢ Inductive reasoning: is the process of reasoning from particular rule or situation to a
general one. It involves an analysis of different situations before formulating a
general principal.
➢ Deductive reasoning : this is a reasoning from general rule to specific situations that
is to say it involves the application of a ready made principal to individual cases

CASES :
1. Langridge vs levy
2. Wilkinson vs downton
3. Derry vs peek
4. George and wife vs skivington
5. Heaven vs pender
6. Candler vs crane

SECOND SEMESTER
LOGIC: this is a Greek word.
LOGIC: is the science dealing with the principals of good reasoning and arguments. So it
governs a listening to be done properly from the given statements(premises) to the
conclusion.

REASONING: it’s a faculty of a mind by which will distinguish the truth from false
statements, good from evil and which enables the processors to reduce truth from facts.
You can know that a person is lying because of the nature of the reasoning.
ARGUMENTS: it is a set of influences or propositions. In this common words are premises or
statements and conclusion these are common vocabs. Example
-men love football. ( this is logical because the conclusion has arrived from the premises
there is a flow of statements). THIS MEANS THAT ITS VALID BUT NOT TRUE.
-john is a man.
-john loves football.
you should never attack the major premises and as well as not attacking the conclusion
because in the conclusion the major premises is also in it. Meaning that you should always
attack the minor premises as a lawyer.

NB; the validity of an argument should be distinguished from the truth of the conclusion. If
one or more premises are false, the conclusion of a valid argument may be false but it may
also be true however this is by chance.
Example:

❖ All mammals are four footed animals (argument is correct)

❖ All people are mammals
❖ All people are four footed animals. (conclusion Is false)

WHY LEGAL REASONING:

It helps to employ the faculty of mind in order to understand principals, rules and
propositions of the law. This will enable lawyers and judges to reach at a good judgment by
evaluating well the facts, evidences and arguments.

WHY STUDYING LOGIC

Helps lawyers or advocates to predict the outcome of cases. (because lawyers always
advance arguments to the court). Meaning a lawyer can predict a loosing case and winning
case by listening to the statements made by your client.
It helps in development of the laws through judgments. Judgments are a result of reasoning.
(reasoning by judges).

TYPES OF LOGIC:
1. FORMAL LOGIC/ SYLLOGISM:
This is a kind of arguments that consists of three parts that is two premises and a
conclusion. Example

❖ -girls love isidingo

❖ -Maria is a girl
❖ -Maria loves Isidingo
Syllogism is also referred to as a closed system of thinking.

NB. In legal syllogism the legal provision forms

-the major premise
- the statement of facts forms the minor premise and
-the judgment forms the conclusion.

Example section 294(HOUSE BREAKING) of the penal code

Any person who breaks and enters a building, tent or vessel used a human building with
intent to commit an offense there in is guilty of house breaking and is liable to
imprisonment for 14 years.
John on 7th feb 2009 at 11am broke and entered Mr. Juma’s house with an intent to steal
Juma’s radio cassette
Therefore, John is guilty of an offense of house breaking and is liable to be sentenced for 14
years of imprisonment.

DIS ADVANTAGES OF SYLLOGISM:

❖ Does not always guarantee the truth as an argument can be accurate but the
conclusion may be false.
❖ It is a closed way of thinking as it does not take into account other factors.

ADVANTAGES OF SYLLOGISM:

❖ Saves time
❖ Easy to arrive to a conclusion
❖ It makes a judgment predictable
❖ Decisions are made easily

Lawyers should always rely on the statements and the arguments given and tell the court as
if you were present at that particular scene.
(The thing speaks for itself)

SERIAL ARGUMENTS/ SORRTIES: this is abit similar to syllogism but the difference here is
that this has several premises or arguments.
This is a mechanism of thinking where by the conclusion is reached out of many premises.
It is an argument consisting of series of premises arranged so that the predicate of each
premise forms the subject of the next premise. The conclusion unites the subject of the 1 st
premise with the predicate of the last premise. Example
A person who takes the property of another person shall be guilty of theft.
To be guilty of theft the person should take the property of another person without any
recognized defense in law.
Bonified claim of right is one of the recognized defenses in law
Juma has taken the property of another person
Juma did that honestly and reasonably believing that he had the right to do so.
Therefore, juma is not guilty of theft.

NB: sorrties are useful in reducing judgments as they enable a reader to know why was the
case decided the way it was. It also assists the reader to know the premises used by the
judges in arriving to the conclusion. Also I giving the R.D of that case.

LEGAL REASONING:

METHODS OF REASONING:

INDUCTIVE REASONING: this is the reasoning from a particular rule to the general one that
is a conclusion.
This is process of reasoning that involves making a number of observations and then
proceeding to formulate a principal which will be of general application. It is similar to
scientific experimentation where if the same ting happens repeatedly it is assumed that
there is a principal which ensures that it will always due so. Example
Given V Pender. the decision was based on inductive reasoning as the judge used examples
of cars, ships and train to arrive at his major propositions known as Brett’s major
propositions. However, there is a weakness that however many observations support the
conclusion, there remains a possibility that some other observation may refute the
conclusion. Example in law the doctrine of (per incuriam) may refute the conclusion. It is
sometimes called synthetic reasoning that is the building up of a general rule from many
particular observation, the observations or assumptions upon which the reference is made
are called premises of assumptions.
NB: inductive reasoning is based on some common assumptions such as
That the future will follow the same paten as the past
That a sufficiently large number of observed objects give us round to attribute something to
another object which you have not yet observed in the case of Home Office V. Dorset yacht
company limited 1970 V2 ELR 294. He said the justification of the court in giving effects of
law to the judges conception of a public interest in the field of negligence is based on the
cumulative experience of the judiciary of the actual consequences of lack of care in
particular instances. And the judicial development of the law of negligence rightly proceeds
by seeking first to identify the relevant characteristics that are common to the kinds of
conducts and relationships which have been held in previous decisions of the court to give
rise to the duty of care. The method adopted at this stage is analytical and inductive. It
starts with an analysis of the characteristics of the conducts and relationships involved in
each of the decided cases

This may come to the test (INDUCTIVE REASONING READ THE CASE ABOVE)
DEDUCTIVE REASONING: is the process of reasoning from the general to particular rule to
arrive at a conclusion. In deductive reasoning propositions are asserted and then are used
as the basis of reasoning, refer to Bret’s major propositions in givens v. Pender, thus
deduction is a process of reasoning in which reasons are given in supporting a claim. The
reasons are the premises or justifications. The premises support the conclusion in such a
way that it would be impossible for the premises to be true and for the conclusion to be
false. The process of deductive reasoning involves stating one or more propositions and
then reasoning your way to a conclusion by applying established principals or logic.
Deductive reasoning is typified by the mathematical method where propositions are
asserted and then used as the basis of reasoning, thus if A = B it falls that 2A=2B and that A-
B is equal to 0 and so on

MAJOR WEAKNESS OF DEDUCTIVE REASONING OR DISADVANTAGE:

The premises may be false and the reasoning itself may be invalid in the case of WARD V.
JAMES 1965 Vol 1 ELR 563 .
example where an employee is injured at his work place where he was working. Here the
employee has to prove that he was injured while doing what he was supposed to do and the
employer also has to prove that the employee was injured when not doing his work.

REASONING BY ANALOGY: the process of reasoning by analogy involves saying that, if a

number of different things are similar to each other in a number of different specific ways,
they are, or should be, similar to each other in other ways as well. This process maybe seen
operating in the doctrine of precedent, which requires that cases with similar facts should
be treated as being similar in law, the problem with reasoning by analogy is to identify
which points need to be similar and how similar they need to be

STAGES IN ANALOGICAL ARGUMENT

Looking for similarities between the case before the judge and the other cases that have
been decided.
Pronouncing the rule of law that is the (RD) that is inherent in the previously decided cases.
Applying the rule of law (RD) found in the decided case to the current case before the judge
example
The court made analogy by looking at the facts in the case of Donoghue V. Stevenson and
tried to see whether they were relevant to the case of Grant V. Australian knitting mills,
langli V Levy the court compared to the case of Fredrick long made and Eliza V. Holiday.
(Submission in chief) narrating or talk on the court

NB: it is not necessary for the whole case to be the same but even 1 fact or rule in 1 case
can be used in another case.

JUDICIAL HUNCH OR INTUITION:

this is the use of meta legal examples, that is, examples outside the law to support the
arguments or rulings. They can use example sin the society especially where the law is of so
far back while the society is dynamic so they pick examples from the contemporary society
to support their arguments example: before the bill of rights was asserted in the
constitution judges could guarantee the people’s rights by using examples in the society

NB; judicial hunch is done in the following instances

Where there is controversy between the law that is between case laws and statutes.
Where there is lacunae in the law
Where a judge wants to match with time to provide a decision that reflects the present
society in the case of Laiton Kigala V. Mussa Banji TLR 40
In this case the judge used the TANU manifest, the preamble to the constitution, and
international convections to justify his arguments

STYLES OF JUDICIAL OPINIONS

These styles have nothing to do with the decision itself, they just give a route so as to arrive
at a particular decision. In deciding cases judges ultimately have to justify their end results.
Styles of judicial opinion is the model applied by judges in justifying their results. It is not
concerned with the result itself but the way the result is arrived at.

formal style: this is a style that have judges or magistrate who believe that the task of the
court is only to interpret the law and not to make the law, law making is the exclusive task
of the parliament, meaning they will focus themselves on what the law is saying. These
people always follow the laws. It is the one which strictly applies the rules of law. It applies
the provisions of a statute as they are, no judicial hunching. By a applying the formal style
the judges usually avoid social factors, they simply look at the law and apply the rule of law
to the facts before them. The underlined presumption is that, judges ought to abide only to
that which has been passed by the parliament. The only sources of law that apply in formal
style are STATUTES and PRINCIPALS LAID DOWN BY COURTS OF LAW example Given V.
Pender and Donoghue V. Steveson. Read the case of Murray V. South Carolina Railway Co. 1
MC 385

this is a case involving an action by an employee of a railroad against his employer for
injuries arising fro the negligence of a fellow employee Johnson Chancellor Maintained,
inter Alia that the foundation of legal liability is the omission to do some act which the law
commands, the commission of some act which the law forbids, or the violation of some
contract by which a party is injured. From this rule above the judge deduced biological
reasoning that, since the railroad had not done or omitted to do anything within the forbid
categories it was not liable

grand style: before they make their decisions they look on the impact of the decisions that
are so they compare on their decision that they have, meaning that if they find that their
decision is favorable then they will find out reasons to support their decision. is the style of
opinion based on reasoning rather precedents. In arriving at it decision the court proceeds
on what we may call a situational consensus. It looks at the consequences of the decision
before drawing a conclusion. In this style application of rules of law comes after analyzing
the situation, this style combines both the law and policy J DICKSON says “ whenever an
issue arose which seemed to the judge to call for relief not directly warranted by precedent,
the case was up to be decided on broad and vague grounds of ‘ natural justice and an
unnalysied sense of right and wrong and what is fair and just from a lay point of view”

in the case of Priestley V. Fowler 3 Mess and Wejs 1

in the cause of his employment, while riding on a wagon of the employer, the van failed by
reason of the negligence of the fellow employee. The plaintiff then sues the employer for
damages arising from the accidents, basing himself on the then well embodied rule that an
employer was liable for injuries inflicted on a third party through the negligence of on of his
employees. Lord Habinga delivered the opinion of the court, he was the son of a rich blunter
in Jamaica, educated at Cambridge, married to a daughter of a county gentlemen and
himself a land owner.

he began his discussion of the applicable law by stating that “ it is admitted that there is no
precedent for the present action by a servant against his master we are therefore to decide
the question upon the general principal, and in so doing we are at liberty to look at the
consequences of a decision one way or the other”.

Realist styles: these judges do not even know Precedent because they base on the decision
which is made in the court and that they say that law is unpredictable. Basing on that any
case should be decided on its own merits. Meaning that in the process of making decision
they have no time to think of precedent that are binding. Realist define law not as a body of
rules but a system that is based on facts not rules. According to the realist style what judges
say and what the lawyers argue in court it is the law. Hence law is not the same always and
not predictable at all, law can be X today provide for X today but maybe Y and provide for Z
tomorrow until a court has provided a ruling on the facts before it no law on that subject is
in existence. This is because in the cause of pronouncing judgments the judges make law and
not the parliament even precedents are not law because judges can over rule them. Realists
say that every case should be judged on its own facts

Where the hierarchy of the court is regular because the precedents are binding depending
on the hierarchy of courts the principal will only be used if the material facts of the cases
are similar example Donoghue V Stevenson and Grant V. Australian Knitting mills also the
principal of the previous case must have been decided by a higher court In the judicial
hierarchy however that principal will only be applicable if it has not been abrogated by a
court which has powers to over rule or it has not been super seeded by a provision of the
law

NB: a court is bound by its previous decisions unless for some exceptions. the higher courts
may follow the decision of a lower court but it is not bound by that decision but it has only
approved that decision. Lower courts are also bound by the decisions of the higher courts
even if they are incorrect (implied over ruling) this is when the high court establishes a
principal then the Court appeal establishes another principal from the principal of the high
court by not saying it is a bad law but they just change the principal.

IMPORTANCE OF THE PRINCIPAL OF STARE DECISIS

❖ It promotes consistent in the decision making process
❖ It promotes predictability
❖ It promotes uniformity in decision making

DISADVANTAGS OF THE PRINCIPAL OF STAIR DECISIS

❖ It makes the judges to be lazy

❖ It kills researching skills
❖ Kills reasoning of the court
❖ It may lead to injustice to decision making

BINDING NATURE OF PRECEDENTS

Precedents may be persuasive or authoritative

AUTHORITATIVE PRECEDENTS: these are binding decisions they can be absolutely binding
or conditionally binding
Absolute Precedent: is where the lower courts take them as authoritative even if they are
wrong (vertical application) relationship between the higher court and the lower court.
Conditional Precedent: is where a court may choose to be bound or not it is applicable only
among the court of concurrent jurisdiction ( horizontal application )

NB: the choice may be a result of any of the following factors or circumstances

o CIRCUMSTANCES
❖ if it is contrary to the law
❖ if it is contrary to reason so it is wrong either because of either

❖ fault interpretation of the previous case.

❖ If the case was per incuriun ( no use at all) that is to say it was given because of
forgetfulness, or it is inconsistent to the law.
❖ It has to be over ruled or doubted
❖ If the decision is highly criticized by the academicians

PERSUASIVE PRECEDNTS: are those decisions made by courts of other jurisdictions. They
are only persuasive in other jurisdictions and not binding, however this is a general rule.
 TECHNIQUES USED IN HANDLING RATIOS OR PRECEDENTS/ EVASIVE
TECHNIQUE

We are interested much with how the judges and lawyers may behave in order to avoid the
binding ness of precedents (Ratios) in their arguments when reasoning the ways or
techniques include the following:

OVER RULING: it occurs where a superior court in Hierarchy is satisfied that not only that
the previous decision is wrong, but also that it should no longer be followed then it over
rules it. The earlier decision thus is deprived of any power to bind any court in future
example the court of Appeal of Tanzania over the decision made by the High Court

Express over ruling: this is when the court express that this decision is a bad law.
Implied over ruling: this is when a court decides to change the principal of another court by
making its own principal which will over rule the other.

DIS REGARDING: it simply means not following a precedent. It is done by court of

concurrent jurisdiction. It may occur for example where there are 2 conflicting decisions,
and if this occurs then the latter is preferred to the prior decision. This happens where the 2
courts are of the same court (oordinate)

DISTINGUISHING: it occurs where a judge or advocate compares the material facts of a

previous case and those of a present case and finds that there are some differences
between the 2 cases and so declares that the principal in the previous case does not fully
apply in the present case. In practical terms distinguishing is the most significant technique
of all.

NB: distinguishing an earlier case is simply a way of saying that a previous case or decision is
irrelevant to the latter case.

TYPES OF DISTINGUISHING:
RESTRICTIVE DISTINGUISHING: it cuts down the expressed ratio decidendi of the earlier
case by treating as material to the earlier decision some fact, present in the earlier case,
which the earlier court regarded as immaterial or by introducing a qualification (exception)
in to the rule stated by the earlier courts that is to say the judge in the present case
considers the R.D in the previous case to be narrow. You do more research on the R.D by
digging in more in the material facts.

NON RESTRICTIVE DISTINGUISHGING: it occurs where a court accepts the expressed R.D of
the earlier case and does not seek to curtail it , but finds that the case before it does not fall
within these R.D because of some material difference of facts. You do not attempt to
challenge the previous R.D at all.
STARE DECISIS IN ENGLAND

STRUCTURE OF THE ENGLISH COURT SYSTEM:

CHART

SUPREME COURTS/ HOUSE OF LORDS( house of lords was abolished

and established the supreme court 2010)

Criminal courts civil courts

Court of appeal
Ground courts
Magistrate courts Court of appeal
High court of justice
(Queens bench, chancellery and family)
County Courts

THE OLD RULE

This was that the house of lord’s decisions binds the lower courts and bind itself. This means
that the house of lords was bound to follow its previous decisions. this is evidenced in the
following cases 1st Beamish V. Beamish (1861) 11 ER 735 and in the case of London Street
Tramway Ltd V. London County council [1898] AC 378.

EXCEPTIONS:

Where the decision was (per incurium where by this is a decision made when there is a
failure to follow a binding decision) or out of ignorance there is a case of London Street
Tramway Ltd V. London County council [1898] AC 378.

Where there are 2 conflicting decisions meaning same courts but made 2 decisions at
different times meaning with that situation the House of Lord’s may not be bound on it own
decisions discussed in the case of Calidonia Railway V. Walkers Transport Company
……………………………….

Where public policy changes. A decision basing on some public policy particularly
commercial was not binding if social conditions change there is a maxim which says
“Cessinte rational Cessat Ipsa Lex” which means where the rational for the law ceases hence
the law also ceases. There is a case of Nordenfelt V. Maxim Nordenfelt.

NEW RULE:
 THE PRACTICE STATEMENT OF 1966( exam question)

In 1966 Lord Chancellor made a statement to the effect that, the house of lords was free to
depart from its own decisions where it appears right so to do the full text of the statement
is reported under the heading

PRACTICE STATEMENT (JUDICIAL PRECEDENT) in 1966 Vol 3 AER 77

“their lord ship’s regard the use of precedent as an indispensable foundation upon which to
decide what the law is and its application to individual cases. It provides at least some
degree of certainty upon which individuals can rely in the conduct of their affairs, as well as
the basis for orderly development of legal rules.
‘ their lord ship’s never the less recognize that 2 rigid adherence to precedents may lead to
injustice in a particular case and also un dully restrict proper development of law. They
propose therefore to modify this present practice and, while treating former decisions of
this house as normally binding, to depart from a previous decision when it appears right to
do so.
‘ in this regard, they will bare in mind the danger of disturbing retrospectively the basis on
which contracts, settlements of property and fiscal arrangements have been entered into,
and also the especial need for certainty as to the criminal law.
‘ this announcement is not intended to affect the use of precedent else where then in this
house” there is the case of Conway V. Rimmer ……… where the house of lord’s departed
from its decision in Dunkan V. …………. Also red the case of Jones V. secretary of state of
social services where the house of lord’s departed from its previous decision in the case of
Redowling V. ……………….

THINGS TO CONSIDER

❖ It maintains certainty
❖ It recognizes the danger of adhering precedent
❖ Not intended to effect retrospectively (means the law must operate on the time
made)
❖ Applies only to the house of lord’s (means other courts are still bound by their own
decisions)

THE COURT OF APPEAL

It is the 2nd court in hierarchy, it was established in 1873 and it abolished the old courts
example Exchequer Chamber and Chancery court of appeal so it inherited the jurisdiction of
the courts which appeared before it .

THE COURT OF APPEAL OF ENGLAND WAS BOUND BY THE DECISIONS OF THE HOUSE OF
LORD’S

EXCEPTIONS:
Where there are conflicting decisions of the house of lord’s. where this occurs the court of
appeal may wish to choose any of those decisions of the house of lords.
Where the decision of the house of lord’s was made per incurium then the court of appeal
may not follow that decision read the case of Broome V. Cassell [1971] Vol 2 QB 354

OWN DECISIONS BINDING

The court of appeal is bound by its own decisions and the leading statement to this effect
was found in the case of Young V. Bristol Aeroplane Co Ltd [1944] All ER 293

EXCEPTIONS:

Where the court encounters 2 conflicting decisions of its own. In this situation the court will
have to choose to follow 1 and not the other discussed in the case of William V. Fawcet
1985 Vol 1 ALL ER 787

Where there is constructive over ruling it is the same as implied over ruling. It arises where
the house of lords makes a subsequent decision which does not expressly over rule a
decision of a court of appeal but which the court of appeal never the less feels is of such a
nature that the 2 cases can not stand along side each other. In such cases the court of
appeal will decline to follow its own decision.

Where it is satisfied that the decision was given per incurium

If the decision is disapproved by the privy council, the court of appeal is not bound to follow
its own decision if the same is disapproved by the privy council as per lord Denning MR in
the case of Worcester Works Finance Co. V Gooden 1971 Vol 3All ER 708.

Where the application of the previous decision of the court of appeal would cause in justice
in a criminal case where laws were misapplied or misunderstood and following that decision
would lead to a confliction in the present case.

THE PREVY COUNCIL

This was established as a judicial committee by the judicial committee Act of 1833 (st.3&4
William iv) comprising of legal experts to hear appeals from the colonies and to advice the
King or Queen on other matters. It continues to hear appeals from some common law
countries example West Indies (Caribbean countries) it was at the apex of the judicial
hierarchy in East Africa and other British colonies, it is not a court of law but an advisory
body composed of a permanent committee of legal experts. It is not within the hierarchy of
the English court system and its decisions are not binding on English courts but they are only
persuasive example case of Portline Ltd V. Ben Line [1958] 2 QB 146 (pg19) where a single
high court judge refused to follow a privy council’s decision. It acts like a court of law and
could make decisions like other courts of law but their decisions are not binding.

NB: the privy council was not bound by its own previous decisions.
( B) APPLICATION OF STARE DECISIS IN EAST AFRICA

THE DECISIONS OF THE PRIVY COUNCIL:

Before the abolishment of the appeals to the privy council, that is to say before
independence of respective states, the decisions of the privy councils were binding on the
colonies by virtual of the East Africa protectorate (privy council ordinance of 1909). This was
particularly in 3 areas.

pronouncement of common law: in the case of Chacha Wambura V. R

Pronouncement on Muhamedan Law: meaning Islamic law, those decisions were binding.
Privy council’s decisions interpreting (statutes in pari material) in other courts of the British
Empire. Page 16 Abdullah Aude V. R.

The decisions of the privy council after the East African courts abolished their appeals to it.

Appeals to the privy council from Tanzania were abolished in 1962 by the Appellate
Jurisdiction Act of 1962 (before that the Tanzanian courts were bound)
Appeals to the privy council from Kenya and Uganda were abolished in 1965 and 1966
respectively by the constitution of the respective countries.
NB: after abolishment of appeals to the privy council the East African court of Appeal
became the highest Appellate court in East Africa, however the East African court of Appeal
felt bound to follow its previous decisions except where

it was faced with its own prior conflicting decisions

where its own prior decision was arrived at or given per incurium.

DIVERGENT VIEWS ON THE BINDINGNESS OF THE PRIVIY COUNCIL’S DECIONS AFTER

INDEPENDENCE

there were 2 views after independence

it maintained that the decisions of the privy council were binding on East African Courts
because we have existing laws which have been used prior to independence example
Precedents, hence they include the decisions of the privy council in the case of Rashid
Molidina co and others V. Hoima ginneries co. Pg 16 and Jairos V. R (1971) HCD 199 read
the OD: of spry JA and new Bold P. Jairos V. R

( ii) the privy council’s decisions were not binding on East African Courts in the case of
Dotheya V. National and greenlay land. (read this case)

STATUS OF ENGLISH DECISIONS IN EAST AFRICA AFTER INDEPENDENCE

(remember the reception dates 22nd July 1920(general) and search for (special reception
date) January 1920 ) .

General reception dates (22 July 1920)

Special (1st January 1922)\

-English decisions in East Africa were received or imported by the general and special
reception dates

GENERAL RECEPTION (22 July 1920)

ENGLISH DECISIONS BEFORE INDEPENDENCE

The rule was that English decisions of the superior courts which were made before the
general reception date were binding in East Africa, however they should not have been over
ruled or reversed subsequent to that date. All the decisions here were binding provided that
it was not over ruled or reversed after the reception date. It is in the case of Kiriri Cotton Co
Ltd V. Dewan [ 1958] E.A 239

-Oconor J held that “……… and in my opinion, established decisions on the common law or
doctrines of equity of the superior courts in England, given before the date of reception of
the common law and doctrines of equity in to the relevant colony or protectorates within
the court’s jurisdiction are binding on this court as well as the supreme court or High Court
of that territory…..”

NB: decisions of English courts that is supreme court (house of Lords , Court of Appeal and
High Court) after the general reception date were not binding on East African Courts, they
were merely persuasive

ENGLISH DECISIONS AFTER INDEPENDENCE:

The rule is that English decisions after independence were not bidinging on East African
Courts, they were merely persuasive in the case of Dothia V. National & Grindlays [1970] EA
195

“ …… since this court became the final court of appeal for the sovereign coutries of Kenya ,
Tanzania and Uganda no decision of the privy council or of any English court or of any
foreign court is binding on this court. Indeed, no such decision would be binding on any
court in Kenya, Tanzania or Uganda unless it was a decision of the privy council on an appeal
from any of those countries, though in so far as any such decision sets out what is the
English law, The High court of Kenya, Tanzania and Uganda would normally accept such to
be the position and this court would, I have not doubt, have regard to any decision of an
English Court setting out what is the English law. In the case of Rashid Moledina Co
(Mombasa ) ……..
Spray J says no decision is binding on this court. Unless the appeal specifically originated
from that particular country.

SPECIAL RECEPTION DATES:

This was a reception of specific aspects of English laws through provisions in a number of
local statutes, they were of 2 types

Those which referred to the law as it is stood at a specific date (specific reception) example
1st January 1922.

Those mentioned with no date

English decisions on English laws under special reception before independence.

Those with specific date: 1st January 1922, English decisions on English laws which were
imported in Tanganyika by a specific reception date were only binding if they were made
before such reception date Example Tanganyika land (law of property and conversing)
ordinance made reference to the common law and practice enforced in England on 1 st
January 1922, thus pre 1st January 1922 English decisions on this law were binding in
Tanganyika while those made after that date were not binding and hence merely
persuasive.

Those which mentioned with no date: these occurred where a local statute made reference
to the law of England without mentioning a specific date example on the Contract Act cap
75 in Uganda English decisions before 1902 were binding but those made after 1902 were
not binding. (might be on test) in the case of Jupiter general Insurance Co. V Kasanda Cotton
Company

English decision on English law under special reception after independence. After
independence English decisions or any foreign decisions were not binding on East African
Courts refer to the case of Dothia V. National & Grindlays [1970] EA 195

ENGLISH DECISIONS INTERPRETING STATUTES IN PARI MATERIA

These are statutes which are laws that are similar or closely related or resemble in terms of
structure and provisions of such Acts example the Civil Procedure Code it resembles more of
Civil Procedure Code of India of 1908.
These are statutes which were made in the same structure and provisions, that is to say
statutes which are similarly worded. They were model statutes in East Africa during the
period of British rule.

Before Independence: English decisions interpreting statutes in pari materia were binding
on the East African courts in the case of National Grindlays V. Vallabji [1966] E.A 186.
When interpreting the Kenyan statute which was in pari materia with a New Zealand statute
which was the same with that of England the Judge was of the view that the parliament did
not want to make those statute being interpreted differently … .

After Independence:
There were 2 views

The decisions are binding on East African Courts( Rashid Moledina

English decisions on statutes in pari material were not binding on East African Courts in the
case of Kiriri Cotton Co Ltd V. Dewan [ 1958] E.A 239 and Riziki Binti Abdullah V. ..

CONDITIONS FOR IT TO BE APPLIED IN

The decision should not be wrong

The decisions should be consistent with interpretation of statutes rules.
There must be a substantial similarity between the local statutes and its foreign parent

STARE DECISIS IN EAST AFRICA

AFTER INDEPENDENCE: after abolishment of appeals to the privy council the East African
Court of appeal became the final Appellate court. The rules or the principal was that the
EACA was free to depart from its own previous decisions when ever it appeared right to do
so. in the case of Dothia V. National & Grindlays [1970] EA 195.

PRECEDENTS IN TANZANIA

The Court of Appeal of Tanzania was formed in 1979 by the Appellate jurisdiction Act after
the collapse of the East African Community in 1977. Between 1977-1979 there was an
adhoc of appeal of East Africa it decided only 3 appeals. The CAT inherited all principals of
the EACA. The CAT has final Appellate powers for appeals of all cases from the High Court Of
Tanzania Mainland and High Court of Zanzibar except in matters involving Islamic Law.

OWN DECISIONS: the CAT is bound by its own previous decisions except that it can depart
from its won decision whenever it appears right to do so. in the case of JUHATA V KYIUTA …
Nyallai CJ said that the court of appeal should be free in both civil and criminal cases to
depart from such previous decisions when it appears right to it to do so. it can also over rule
its own decision in the case of Zambia Tanzania Road Services Ltd V. J.K Pallangyo
HIGH COURT: this is bound by the decisions of the Court of Appeal , however sometimes
some High Court judges refuse to be bound by the decisions of the Court of Appeal example
Biron J in the case of Yesaya Gweseko V. R [1970] HCD in 160 refused to follow and
departed from the decisions of the Court of Appeal in the case of Mbaruku V. R because the
decision based on the Britain precedent which was merely persuasive.

STATUTORY INTERPRETATION
In law various words mean different things depending on the context, in most cases where
the words of the statutes are not clear, the court would find the means either within the law
itself or somewhere else outside the law.
WHAT IS STATUTORY INTERPRETATION: this is the process by which courts determine the
meaning of a statutory provision for purposes of applying it to the situation before them.

WHAT IS A STATUTE: already discussed on the 1st semester.

AN OVERVIEW: interpretation of law is the primary function of a court, courts are often
times called to interpret a variety of legal texts ranging from wills, contracts, statutes
(principal legislation), regulations and by laws. in interpreting statutes, the court is not
expected to interpret statutes arbitrarily it is usually guided by certain principals which have
been developed over the years. Example on issues of writing wills you have to be specific.

: RULES/ CANONS OF STATUTORY INTERPRETATION

Although they use the word rule they are not rules properly so called as Mac Leod cites the
statement of Lord Raid in the case of Maumsell V. Olins [1975] 1 All. ER 16.
“ they are not rules in the ordinary sense of having some binding force, they are our
servants not our masters. They are aids to construction: presumption or pointers not in
frequently one rule points in one direction another in a different direction. In each case we
must look at all relevant circumstances and decide as a matter of judgment what weight to
attach to any particular rule”

NB: it is on this ground that although these guides are famously referred to as rules, modern
writers increasingly suggest the use of other terms like principals, approaches, techniques,
canons or maxims.

LITERAL RULE/ PLAIN MEANING RULE/ STRICT APPROACH TO STATUTORY

INTERPRETATION: it provides that where the words of the provisions of a statute are clear,
the courts ought to apply the words as they are even where the interpretation of the
statutes leads to something which is unreasonable or absurd, it Is not the duty of the court
to make sense of the provisions of the statutes, that is the work of the legislature meaning
they make the laws. they should not only be clear but also make sense so as to give the
actual meaning that was intended to by the legislature even if the result is absurd. There is a
case of R V. Judge of the City of London ( 1892) QB 273. Lord Esher said “ if the words of an
Act are clear, you must follow them even though they lead to a manifest absurdity, the
court has nothing to do with the question of whether the legislature has committed an
absurdity” there is another case of Hill V. West India Dock Co. Ltd. ( 1894) 448 . “I think it I
infinitely better, although an absurdity or other objectionable results may be evolved as a
result of your construction, to adhere to the words of an Act of Parliament and leave the
legislature to set its rights than to alter those words according to one notion of what
amounts to absurdity. Also in the case of Bell V. Fisher. Also in the case of Whiteley V.
Chappel (1868) 4 LR 147. Also in the case of Singida Regional Trading Co. Ltd V. Tanzania
Posts and Telecommunication Corp. 1979 LRT 11. Chipeta J said “it is true that a victim of
an error in a telegram, such as the defendants, may raise eye brows about the fairness of
the provisions, but that is not a moral question. Courts may not question the morality of
statutory law. All they are to do is to discover what the legislature has said and meant and
to find out, from the language used in the statute, whether it has said what it meant and
meant what is has said”.

ADVANTAGES OF THE PLAIN MEANING RULE

❖ It is the only guarantee of ascertaining (correct) the meaning of a statute because of

length and details of modern legislation.
❖ If a statute is long, then the legislature has expressed its full meaning and therefore
there is no need to look for any other additional meaning. It is long and all
explanations are there there is no need to add more.
❖ Authorities have argued that anything that has been omitted in a statute is “Casus
Omissus” (omitted with knowledge) and if the court supplied anything to it that will
amount to legislating which is not the business of the court in the case of Hassan
railways and Trade Co V. Inland (1935) QB 445 Lord Right said “ a duty of a court is to
interpret the words that have been used by the legislature, even where the words
are ambiguous, the power of the court to travel outside them on a voyage of
discovering is limited”
❖ The plain meaning rule promotes certainty
❖ Complies with the doctrine of separation of powers

DISADVANTAGES/CRITICS OF THE PLAIN MEANING RULE

❖ It is based on the false premise that words have ordinary and standard meaning
apart from the context in which they are used.
❖ It relies in most cases on a definition given by a dictionary where as a dictionary itself
usually gives out different meaning of a word.
❖ This rule makes no room for natural ambiguities of language, it pre supposes that
the draftsmen can not make natural mistakes and also they can predict the future
with certainty.
❖ It is not based on reason and principal but on the arbitral rule preference of the
judge. This means it does not attract any kind of reasoning. WHITELEY V. CHAPPEL
(1868) 4 LR 147.

GOLDEN RULE: this is a modification of the plain meaning rule, although the court has a
limit as to avoid that particular absurdity. An absurdity is determined by the judge
themselves.
This is a modification of the literal or grammatical rule of interpretation, it states that
ordinarly the court must find out the intention of the legislature from words used in the
statutes by giving them their natural meaning but if this leaves to absurdity, repugnant,
inconvenience, hardship, injustice or evasion the court must modify the meaning to such an
extent and no further as would prevent such a consequence sometimes it is refereed to as a
liberal approach to statutory interpretation in the case of RIVER WOYA COMMISIONERS
V.ANDERSON ….. page 21. Lord black ban said “ the golden rule is………… that we are to take
the whole of the statue together, and construe it all together, giving the words their
ordinary signification, unless when so applied they produce an inconsistency or an absurdity
or inconvenience so great as to convince the court that the intention could not have been to
use them in their ordinary signification, and to justify the court in putting on them some
signification which, though less proper, is one which the court thinks the words will
bear…….” Read the case of GREY V. PIERSON Lord Wensley Dale said “ the grammatical and
ordinary sense of the words it is to be adhered to, unless that would lead to some absurdity
or some repugnant or inconsistence with the rest of the instrument, in which case the
grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity
and inconsistence but no further …..” . IMPORTANT CASE:
National and Grindleys Banks Company V. Kentile …..page 21. Before the privy council the
bank contended that a company was not a person eligible for the consent under the land
control and crown land ordinances, it was held that the proper construction of the word
person in section 7 of the land control ordinance has amended included a company so that
the absence of any consent under that ordinance and the crown land ordinance invalidated
the purported grants of the legal mortgage.

IMPORTANT. In the case of R V ALLEN important page 21. In England there was a law that
was prohibiting a married person to get married to another wife if your wife is still alive. The
court said that the word “Marry” in this particular law means undergoing through particular
ceremony

(RE) this means an application RE SIGWETH V……. . in England there was a law when
parents die and they have kids it is that particular kid who will inherit as a general rule.
There was a guy who intentionally kid his father so he could inherit his properties “ the word
death “ means natural death so he was not entitled to the inheritance in this case we got a
principal of “no person can benefits from his own wrongs”.

ADVANTAGES

❖ Protects the integrity of the courts by allowing the judges to side step absurdity.
❖ It gives room for a judge to arrive at a desirable result.
❖ Allows the court to make open exceptions that are based on political and social
policies behind the act.

DISADVANTAGES

❖ It makes it difficult to predict what was considered by a judge to be an absurdity, this

would lead to uncertainty in the legal system making business unpredictable and
becomes difficult to rely on precedents.
❖ The rule is silent on what the court should do when it comes across an acceptable
absurdity.

MIS CHIEF RULE / THE RULE IN HEYDON’S CASE: because it was initiated in this case. This
rules aims at asking a question, (a mischief) means reason behind. Many rules were formed.
This is a rule that examines the intentions of the legislature in passing that particular statute
, it is designed to assist the court , to consider why the statute was passed in the past days,
then, the court is invited to apply that knowledge in giving the words under consideration
whatever meaning that will best suit the social purpose of the legislation.
NB: mischief rule is far more improved then literal and golden rule. The approach was
advanced in the famous case, Heydon’s case (1584) 76 ER 637. According to this case there
are 4 points to be considered by a court when construing a statute using the mischief rule.

POINTS
❖ What was the common law before making the act on the matter.
❖ What was the mischief and defect for which the common law did not provide, that is
to say what is the problem underline the society.
❖ What remedy has the legislature resolved and appointed to cure the mischief
❖ What was the true reason for the remedy in the eyes of the judge construing the
provision with a view to get rid of the mischief by making sure that he addresses the
intention of an Act.

READ the case of SEA FOOD COURT V. ASIA Lord Denning said “ it would certainly serve
judge’s trouble if Acts of Parliament were drafted with divine prescience and perfect clarity.
In the absence of it, when a defect appears, the judge simply can not fold his hands and
blame the drafts man. He must set himself the constructive task of finding the intention of
the parliament. Read the case of SMITH V. HUGH page 21 .. it was an offense under one
section of the street offenses Act 1959 for a prostitute to solicit in the street….. for the
purpose of prostitution. The fact were that prostitutes, who were either behind the
windows or on the Balconies of buildings over looking the street were soliciting men were in
the street. The provision could be interpreted in 2 ways
That the defendant did not commit the offense because she was not on the street
The provision could also be interpreted that it prohibited soliciting men who were on the
street.
The court went for the 2nd meaning when Lord Parker CJ said “ everybody knows that this
was an act intended to clean up the streets, to enable people to walk along the streets
without being molested or solicited by common prostitutes…. For my part I am content to
base my decision on that ground alone”. There is another case read REGINNA V. OBIJWAY.
Read this IMPORTANT (F IMPORTANT)
Also in the case of ASHA SALIM V. TANZANIA HOUSING BANK

ADVANTAGES OF MISCHIEF RULE:

It is a great improvement of golden and literal rule in the sense that it encourages the court
to have regard the context of the doubt
It is only sensible to permit the courts to go beyond the narrow confines so that it may
consider the social circumstances of the provision that is not clear.

DISADANVANTAGES OF THE MISCHIEF RULE:

The rule does not tell the court where to get the Mischief

-PURPOSIVE APPROACH TO STATUTORY INTERPRETATION: ( MODIFICATION OF THE MIS

CHIEF RULE)
apart from the traditional 3 rules of interpretation the courts has in recent years
increasingly applied the so called purposive approach to statutory interpretation.
-Purposive approach is a way of interpreting a statute by considering the intention of the
law maker not only by considering the 4 corners of the statutes but by also looking at
extraneous aids example Hansards (books that record proceedings in the parliament) etc.
sometimes the courts may read in words in a statute for purposes of fulfilling the intentions
of the legislature where it finds that there is a mistaken omission by the legislature. This is a
process where the court can also go outside the court and look for other extraneous aids,
and there the court may found out that there are some words which have been forgotten so
they can read in new words that will cover that omission. There is a case of Jumuiya ya
wanawake V. Registrar and Pepper V. Hart [1993] 1 All. ER 42, Lord Griffiths said “ the days
have long passed when the courts adopted a strict constructionist view of interpretation
which required them to adopt the literal meaning of the language. The courts adopt a
purposive approach which seeks to gives effect to the true purpose of legislation and are
prepared to look at much extraneous materials that bares on the background against which
the legislation was enacted. Why cut ourselves off from the one source in which may be
found an authoritative statement of the intentions with which the legislation is placed
before parliament.” In the case of Nothman V. Barnet London Borough [1978] 1 All. ER
1243. Lord Denning MR said “ the literal method of construction is now completely out of
date. It has been replaced by …... the purposive approach ……. . in all cases now in the
interpretation of statutes we adopt such a construction as will promote a general legislative
purpose underline the provision. It is no longer necessary for the judges to wring their
hands and say ; there is nothing we can do about it whenever the strict interpretation of a
statute gives rise to an absurd or unjust situation, the judges can and should use their good
sense to remedy it by reading words in if necessary, … so as to do what parliament would of
done had they heard the situation in mind.” Read the case of Joseph Sinde Warioba V.
Stephen Wasira [1997] TLR 272
the court

HELD:

“Our view of the matter is that where, as in this case, strict construction gives rise to
absurdity or discriminatory effect of the provision, such construction or approach should
not be adopted and that is what we have done.
Thus for the reason set out above we feel justified to read the word “Corrupt or” into
section 114 and it is not necessary or desirable to wait for parliament to amend the law…. .”
PRESUMPTIONS APPLIED IN STATUTORY INTERPRETATION

Presumptions; ideas that are taken to be true.

In the cause of statutory interpretation, the courts have also developed certain principals
which are known as presumptions. They assist the courts in interpreting statutory provisions
the include the following.

PRESUMPTION AGAINST RETROSPECTIVE OPERATION OF THE LAW: when a court is

dealing with a particular law the presumption that the court has in mind is that this law
should operate Prospectively meaning past events or situations in this manner it would be
past laws. INTERPRETATION OF LAWS ACT.
There is a strong presumption that statutes should not be made to Act Retrospectively
unless where a statutes expressly provides that it shall operate. This presumption is said,
applies to substanstive statutes as opposed to procedural ones Abdul Mnuye V. R [ 1990]
TLR 13]
And Municipality of Mombasa V Nyali 1963 EA 371 , New Bold P said “a retrospective
operation will cause miscarriage of justice”.

PRESUMPTION OF STRCIT INTERPRETATION OF PENAL STATUTES: penal statutes should be

strictly interpreted in favor of the accused person , penalty will only be imposed where the
law says punishment should be imposed.
There is age long presumption that criminal or penal statute are to be construed strictly in
favor of the accused person in the case of Dickenson V. Fletcher (1873) LR 9 CP 1 Brett J said
“ those who contend that a penalty may be inflected must show that the words of the Act
distinctly enact that it shall be incurred under the present circumstances. They must fail if
the words are merely equally capable of construction that would, and that one that would
not inflict the penalty. In the case of R. V Mabula Mihambo [1984] TLR, where the court held
that among others where the construction of a delegated legislation results in ambiguities
or absurdities or give rise to oppressive doubtful results, the benefit of doubts should
always be given to the accused

(c) PRESUMPTION IN RESPECT OF TAXATION STATUTES: when the court interprets

taxation statutes they should give strict interpretation on those statutes and a person
should pay tax where the words are clear that a person should pay tax.
Taxation statute should be strictly interpreted in favor of the tax fair. This occurs in the
situation where a tax statute Is capable of 2 alternative meaning then the court will prefer
the meaning more favorable to the subject, but if clearly worded revenue statutes must be
applied even though they operate against the subject in a manner that may appear to have
been unintended by the parliament in the case of Jaferali Alibhai V. R [1961] EA 610 the
court said “where words of the tax statutes are to be construed, they must be given a clear
interpretation and they must not be virgule or else tax should not be imposed”.
(d) PRESUMPTION ON INDIVIDUL LIBERTY
in construing a statute construe it in favor of the individual of liberty especially where
custodial sentences are involved.
Where the law says when an accused person is convicted of an offence the court may either
impose fines or custodial sentences or both in the case of R V. Hallstrom ex p. W [ 1986] ..
Mac Cullough said “ there is … a canon of construction that parliament is presumed not to
enact legislation which interferes with liberty of the subject without making it clear that this
was the intention in the case of A.G V. Lesinoi Ndeinai [1980]

(e) PRESUMPTION AGAINST PROVISION OUSTING JURISDICTION O FTHE COURT

the decisions of ministers shall not be questioned by any court of law. His decision is final
and conclusive. Therefore, there is a tag of war between the courts of laws and the
parliament.
According to this presumption statutory provisions should not be interpreted in such a way
as to oust the jurisdiction of the court. In most cases provisions that purport to oust courts
jurisdiction are construed strictly. Vidyadhar Chavda V. The Director of Immigration Services
and Other [1995] TLR 125 Samata JK said “ any statutory provision which purports to
restricts this court’s jurisdiction, including inherit jurisdiction, must, in the interest of
everyone leaving within the territorial boundaries of the United Republic, be construed
strictly” in the case of Mtenga v. UDSM (1971) HCD 247.

(f )PRESUMPTIONS AS TO PROPERTY RIGHTS

there is a general presumption that a parliament does not intend to take away private
property rights unless the contrary is indicated Lord Atkin in the case of Central Control
Board (Liquor Traffic ) V. Cannon Brewery Co Ltd [1919] AC 744 … Said that “ there is a
canon of interpretation that an intention to take away the property of a subject without
giving him a legal rights to compensation for the loss of it is not to be imputed to the
legislature unless that intention is expressed in an equivocal terms