Legal Method Notes-1 - Lecture notes 1-10

Legal Method I (Cavendish University Uganda)

CHAPTER ONE.

MEANING, NATURE AND CLASSIFICATION OF LAW.

Meaning and Importance of Legal Method.

Legal method refers to the subject that teaches, students techniques of how to
find the law, where to find it, how to apply the law. It is a subject that cuts across
all legal subject because the skills that are learnt out of legal method will be
applicable in all aspects of law.

The Importance of Legal Method.

i) Legal method teaches students on how to apply abstract legal concepts to

factual situation.

ii) Legal method also teaches students how to find authoritative legal material
and how to apply them in a given situation.

iii) Legal method covers a broad task through statutory interpretation.

NB: In a state a smallest unit of a state is a family. So, in family normally

governed by the rules, when families come together with different rules, they
share common rules neutralize into customs with passage of time to time some
of these customs crystallize to law which is recognized and passed by the state.
Normally there must be usage considerable period of time become law.

When a person talks about the term “law” is normally used by people but not so
much in terms of particular laws but in terms of system. When a person talks of
law as a system it is normally equated to the Government and legal system, law in
terms of legal system consists of parliament, courts, legal profession, a police
and bureaucracy that services insists.

Law may also equated to legal process, when someone talks of law as a legal process
one primarily refers to the legislative process, judicial process. When law is referred to
as a legal process, one refers to how the Judges decides cases or what is known as
adjudication or how the laws are made.
Meaning of law.

Law has been a paradox of legal science over ages. John Austin defines law as a body
of commands of sovereign authority with sanctions. However, this definition has been
challenged because command is not integral feature for all laws apart from the penal
laws. Law normally exists in a politically organizes society as to how man should
conduct themselves. Holland on the other hand, defines law as rules of human action
set by a determinate human authority. Also, Thomas Aquinas attempted to define law as
a rational order for common good enacted by legitimate power.
In general, law entails a framework of principles that spells out what can be done
and what cannot be done in a society.

In broader sense, law entails either legal order or the whole body of legal
percepts agreement of men in a politically organized society. Basically law entails
a body of agreement of men in a politically organized society as to their relations
with one another. It is philosophically discovered system of principles which
express the nature of things to which man’s conduct ought to abide by.

Nature of Law.

Normativity is among the basic features distinguishing several rules or standards

governing the society form the law. While moral standards are merely recommendations,
law on the other hand is normative in the sense that it is obligatory hence the subjects
do not abide by it as a matter of choice. However, compliance to law is not necessarily
prompted by sanctions because at times compliance is a matter of internal convictions.
Generally, the law attracts legal sanctions in the form of fine, imprisonment or
customarily recognized sanctions among others which are geared ensuring compliance.
For example a common customary sanction among the Sukuma People in the lake zone,
Tanzania is known as Kutulija in which a member of society may be declared outcast
for social disobedience. However, customary or social sanctions are not
necessary endorsed in the state legal system.

Law and Morality.

Although law plays an important role in the social intercourse, most of social actions
are governed by morality and at some points law and morality intersect each other.
Morality and law regulate social intercourse at different angles. Moralities are
sanctioned by the community as a whole and not through determinate machinery as
the case of the law. Also law concerns with the physical order as opposed to abstract
phenomenon. Compliance to morality is normally appealed to supernatural, thus
results from conscience or internal conviction. Conversely the law acts externally
and normally enforced through external force through sanction.

FUNCTION OF LAW.
Regulatory function.
Law is a regulatory framework of the society albeit it is not the only one as noted before.
Other values that regulate the society include morals, religious rites and ethics.
Essentially, it regulates the social intercourse among the individual subjects inter se and
the relationship respectively. The law ties up state authorities within the proportional and
legitimate legal bounds. Thus it confines powers within the dictates of the law.

Preventive function.
Law inhibits or forbid various wrongs hence it is also known as prohibitive function.
It essentially prohibits defiant behavior of the subjects and the state machineries.

Directive function.
The law provides both substantive and procedural directives on how responsibilities can
be performed. For instance under the Constitution if the president finds it necessary to
declare state of emergence there are set of directives such as submission of

proclamation to the speaker1 which is basically an example of procedural directive.

SOURCE OF LAW.
The legal system of any country recognizes diverse sources of law. Among the
basic sources of law in Tanzania includes constitution, statutes, customary law,
Islamic law, case law and received laws.

a) Constitution.
A constitution is also a source of law in Uganda and all laws passed by the legislature
must conform to the constitution, a law which is repugnant to the constitution or
inconsistent to the constitution is null and void to that extent as per Article 64(5) of the
Constitution of The Republic of Uganda. All laws must conform to the constitution of
United Republic of Tanzania. Therefore, the legislature can only passed law which can
not contradict or contravene the constitution and that is why some authors argued that
in Uganda, there is no parliamentary supremacy but constitutional supremacy.

b) Statutes.

Statutes are all laws passed by parliament in its legislature capacity. Statutes can be
principal and subsidiary legislation. However, principal legislation all laws passed by
parliament and subsidiary legislation are normally not passed by parliament but by
the Minister concerned but sometimes are called Delegated Legislation.

c) Received Law.

Apart from legislations, Tanzania applies received laws. Just from the colonial era,
diverse English laws were received covering the gap of the existing legal framework. The
colonial state imported the Common law, doctrine of equity and Statutes of General

Application which were in force in England before the reception date, 22 nd July, 1920. Of
to date the courts have been resorting back to received laws where a gap is spotted in
the existing laws.

d) Customary law.
Customs are consistent long standing usages and practices of the society with
inherent legal force. Customs were applicable in Tanganyika before and during
colonial period and of to date. In the pre-colonial era it extended to civil and
criminal matters; however the colonial state limited it to civil matters. Currently,
the customary law governs personal matters such as marriage, legitimization of
children and succession among others provided that parties to the same
community.2 However, not all customary rule will be accepted as a source of law
unless it is not repugnant to the Constitution or rules of natural justice.

e) Islamic law.
It is a religious law applicable in matters of personal nature such as marriage,
succession and divorce where both parties confess Islamic religion. In the coast
of East Africa, the application of these laws can be traced from the early contact
with the Arabs by the 7th Century having dominated the coastal areas and the
long distance routes in Central and North West Tanganyika.

f) International law.

International legal instruments and customs are other sources of law in Tanzania.
States are bound by international instruments and indeed, derive various legal
principles from international law. Once become a source of law, the country has
to ratify a treaty and become applicable in domestic legal system.

For example, the law governing exploitation of marine resources in Tanzania has
significantly borrowed its principles from the UN Convention on the Law of the Sea,
2Section 11(1), The Judicature and Application of Laws Act [CAP 358 R.E 2002]. 1982. Similarly,
most of the constitutions extract the fundamental human rights from diverse
international legal instruments.

g) Precedents.
Are decided case or precedents form a bed rock of the Common law legal system.
Case law among other things reduces the gap in the existing laws besides
developing the legal principles.

CLASSIFICATION OF LAW.
Classification of law may hardly be exhaustive. Generally it may depend on
factors such as scope of application, role, form and other factors. Amongst the
common categories of law include the following;

1. Common law.
It is a body of norms, doctrines and rules rooting from the common values or customs of
the English people which were which developed by the court governing their intercourse.
The development of common law owes much from the Norman (French) Conquest by
1066. Following the conquest King Henry II appointed representatives in all shires
(provinces) in 1854 to study the conduct of local courts and administration of justice. The
recommendations of the representatives resulted into formation of circuits of courts
popularly known as justiciaeerrantes (wondering justice) replacing the local courts, it also
extracted diverse English rules which due course developed a body of rules applicable in
the court through out the state namely Common Law. It was “Common Law” because it
evolved from common values of the people and refined from embryonic stage to fully
fledged development through judicial decision.

2. Equity.
Literary equity means natural justice.3 It is a branch of English law which was
developed to complement common law which was so harsh and rigid. Initially people
aggrieved by common law courts petitioned their grievances to the crown being the
fountain of justice. In the due course court of chancery was established to
administer justice on substantial justice applying the rules of fairness namely equity.

3. Substantive law.
It refers to the law that is concerned with rights, powers and duties of the people.
For example, the Law of Contract creates rights and duties of parties and Family
Law deals with matrimonial rights and obligations.
 4. Procedural Law.
This lays down a framework for realization of rights by facilitating enforcement of
rights. This category of law is also known as adjective law, the good example
being the Civil Procedure Code [CAP 33 R.E 2002].

5. Public Law.
Public law deals with the relationship between the state authorities and the individual
subjects, spelling out the reciprocal relationship between the state machineries and the
people. Criminal Law, Constitution and Administrative law are among the public law.

6. Private Law.
Individuals normally fall into spontaneous relations for which requires legal framework
to define and protect rights and obligations. These relationships are governed by the
private law. Thus, private law is concerned with the private interests, rights and duties
among the individual subjects inter se. Private law principally is concerned not with the
state but with the private domain of the individuals such as contracts and torts.

NOTE.

The distinction between public and private law may not be watertight because the modern states
enter into contractual relationship thereby falling into the purview of private law. In that case
defining private law by focusing on private individuals and excluding the state may create
debate. All in all the state falls into private law as an exception to the general rule. Of
importance, private law is significantly subjected to the wish, interests and discretion of the
individuals who may set standards of their own choice. For example in contract, parties have
freedom to set terms of their choice and even when it comes to suing it remains a question of
choice as opposed to public law that may not have no such room, thus the state normally
intervenes in accordance to the existing rules whenever public law is disobeyed.

7. International law.
It is a branch of law that deals with the interaction among the states and international
societies. Basically international law came to regulate an inevitable interaction in the
international community. As a body of law, international law encompasses
conventional and customary rules. Conventional rules result from agreement while
customary rules entail usages and practices of the international community.

8. Municipal Law.
This entails the legal framework or laws governing the domestic or internal affairs
of the state with territorial implication in the sense it binds every subject in the
state. Although the municipal law does not generally extend beyond the territorial
boundaries, for citizens it has nationality implications. Thus it binds a citizen
irrespective of residence or territorial consideration.
CHAPTER TWO.

LEGAL LANGUAGE, LANGUAGE OF THE COURT AND LEGAL RESEARCH & WRITING.

Legal Language.

This refers to the language to the language customarily used by lawyers in the
course of discharging professional responsibilities. Legal language or language
of law does not refer to a particular language; it entails a species of language with
distinctive features normally used by lawyers or legal personnel. Indeed it is
peculiar because its features make it difficult for laymen to understand even
when used in a common lingua franca. Basing on its salient features a legal
document may hardly be understood even by a specialist in language.

Historical background to the legal language.

Legal language evolves in a historical discourse and basically it owes much from
the latin speaking missionaries, Normans, and Germans since its development
was invariably associated to European expansionism. The expansionism left a
significant legacy in the British legal system where as several French words such
as attorney, defendant, indictment, jury, demurrer as well as Latin words like
versus, caveat emptor, owes were imported.

Features of legal language.

a) Use of common words with uncommon meaning.

Normally lawyers use common words with technical meaning. Although the words may
have common use, may hardly be understood by lay persons when used in legal context.
For example, a word suit which in the ordinary sense refers to attire or clothes, in legal
context it means a case or legal action contrary to the ordinary meaning of the words.

b) Use of old language.

In legal document it is common to come across archaic or to find words which

are no longer commonly used. Currently archaic words such as bequeath,
witneseth, thy and dothare still largely used apparently for the sake prestige.

OLD ENGLISH: I doth witneseth the testament on this 15 th Day of

January, 2016
 MODERN ENGLSIH: I do witness the testament on this 15 th Day of
January, 2016

c) Latin words are frequently used.

As noted before the legal science owes much from the Continental Europe
especially from the Latin speaking states. Banking from the history of legal
science it is not surprising to find legal language featured with many Latin words
such as alibi, locus standiand many others. These words serve the purpose of
uniformity, brevity and retention of the original impression or meaning of words.

d) Frequent use of format words.

Legal language is normally very formal, indeed frozen style, for instance a judge
is normally addressed as Lord or Lordship, my Lord while a Magistrate as your
honour or honourable.

e) Use of appealing words or phrases.

A lawyer normally use an art of language to convince the bench, for instance an
Attorney may say “if it pleases your lordship, I pray for a temporary injuction.”

f) Polite expression of disagreement.

Principally the lawyers use polite ways in expressing disagreement with the
bench. For example, when a judge has made a decision in ignorance of law or
contrary to the law, a lawyer cannot say the Judge was wrong but will normally
say his lordship erred in law or mislead himself.

g) Use of phrases and complex sentenced.

In legal language complex sentences are commonly used. The rationale behind this
approach is to attain clarity by accommodating several conditions, for instance in the
Criminal Procedure Act there are several complex sentence as demonstrated below.

S.9(1) In any criminal case and at any stage thereof before verdict or judgment, as the case may be, the
Director of Public Prosecutions may enter a nolleproseque, either by stating in court or by forming the court
concerned in writing on behalf of the Republic that the proceeding shall not continue......................

h) Clustering of different words with similar meaning.

Lawyers may say the same thing in different ways. Although the lay persons may
perceives it as a deliberate abuse of language calculated to confuse them, the
practice is geared towards realizing emphasize and clarity.
I, ALLEN KAMINDA, of the town of Kinondoni in Dar es Salaam City, do here by and unreservedly
make, publish and declare this as my last Will and Testament, hereby revoking all subsisting wills
and codicils hereto I made prior to this will.
For example, declare and publish or will testament bear similar meaning but they
may be used together as portrayed above. Under normal circumstances it makes no

difference if the testator simply said I declare this my will to revoke all
subsisting/previous wills.

Also in the Law of Contract lawyers normally say “this contract isnull and void
abinitioandof no legal effect whatsoever thereby conferring no rights and duties
to the parties” instead of simply saying this contract is void ab initio or simply
void. It is however; important to note that this pattern aims at attaining emphasis.

Words may be similar yet with different impressions hence by clustering words
together the message becomes more effective and the chances for
misconception may be reduced.

LANGUAGE OF THE COURT.

It refers to the language(s) authorized by the law to be applicable in legal
proceedings and records of the court.

In Tanzania, the language of court is provided for under the Magistrate Courts Act [CAP

11 Revised Edition, 2002] where as in the Primary Court Kiswahili 4 is applicable in the
legal proceedings and records but in the Resident Magistrate and District Court both
Kiswahili and English is used except that all records are required to be in English.

The High Court and Court of Appeal use both English and Kiswahili in legal
proceedings while records are kept in English. The use of English in court is not
free from critism; the stakeholders find it as an impediment to many people who
are not conversant with English language.

In the early years of independence the use of English was justified by the circumstances
since the court was largely dominated by White Judges also there was one Court of
Appeal cutting across the whole East Africa in which English Language was
inevitably used.
It is also important recapitulate that most of the precedents referred are in English
which might have fuelled use of English Language leave alone the fact that lawyers
are trained in English and the Regional and Global influence of this language.
English is the lingua franca of the world estimated to have vocabulary of 1 million
words including scientific and technical terms and indeed its vocabulary is
extensive than any other language in the world save only the Chinese 5

LEGAL WRITING AND RESEARCH.

For lawyers legal drafting, drafting and research is inevitable.

Legal writing.
Legal writing is an art required of the legal profession which has been labeled as
a rare profession for many centuries this art and always lawyers have their own
style of writing just from the diction to the formulation of sentence structures
geared to influence the recipients.

In legal writing one must avoid ambiguity and ensure that every key aspect is clearly
and comprehensively elaborated while observing proper citation of authorities.

Preparation of documents.
It is important to make sure that a legal document contains relevant authorities. For
instance when you prepare pleading or charge sheets there must be a supporting

5
Jundu, F (2010), HotubayaKiongoziwa Tanzania naMgeniRasmiKatikaMahafaliyaTatuya Azania

College of Management, Diamond Jubilee, Tar 6th November, 2010, p.10.

provision of law. Failure to cite proper provision or a total omission may be

detrimental to your case. You may end up losing your potential case simply for
wrongful citation or non citation of law.

There are certain documents which are required to have minimum contents which a arty
or legal representatives have to observe. Thus as much as possible a drafter should
remember the basic contents and observe form or style required of a document.

Likewise one has to follow several stages before a document is finally done
starting from the preliminary stages which may involve search of relevant
authorities and brainstorming of the issues.
After gathering important information a first draft or a rough work may be prepared and
subsequently refined as often as possible until the prerequisite standards are satisfied.

LEGAL RESEARCH.
Research seeks to inform the society of various developments in the fields for
which the research is undertaken or to uncover hidden or obscure truth in legal
jurisprudence. The other purposes of legal research are to acquire and impart
knowledge for purposes of proving or disproving a legal issue or develop new
ideas. Lawyers do normally undertake researchers to address pertinent legal
issues in the field but research may simply entail search of cases bearing
fundamental principles which can be achieved through library survey.

BASIC STAGES OF RESEARCH.

a) Problem identification.
A problem is any situation or fact with hidden truth and normally a research
problem emanates from a phenomenon encountered by the society such as car
accidents, diseases or habitual rape.

b) Hypothesis/ research question.

It is literary a tentative conclusion or prediction on the factual correlation between
existing phenomenon and the underlying forces which may finally be proved or
disproved. For example, where most of secondary school students encounter
teenage pregnancies, one may predict that the situation is fuelled by poverty.

c) Literature review.
Normally a problem may be new to one person and not to others hence it is
recommendable to go through what others have studied to find out whether there
is any gap in the existing literatures in regards to purported research problem.
Research should only be conducted if the existing literatures do not cover such
problem or part for which research is geared to.

d) Data collection.
After establishing a gap in the existing data one may resort to data collection
using relevant or tools such as interview, observation and questionnaire.

e) Data presentation.
In this stage all the relevant data are presented, this stage may involve tables and
graphs.

f) Data analysis and interpretation.

This is a technical stage of the research because the researcher is expected to
make the data to speak. The research must be able to tell the correlation between
the data to speak. The research must be able to tell the correlation between the
data and the existing phenomenon. For example, when the data show high rate of
gender violence may create impression that the society is lacking civic education.

g) Formulation of theory/conclusion.
At the end of the day a research is expected to offer an answer or solution to the
research problem or at least tell about the underlying factors behind the social
phenomenon.

ANSWERING PROBLEM TYPE QUESTION.

To most of the students answering problem type question suffers headache and
among the reasons for fearing problem type questions is the lack of knowledge
on how to do these questions since answering such questions is an art.

Procedures of attempting problem type question.

There are four basic aspects in attempting a problem type question namely,
issues, rules, application of rules and conclusion which together form the so
called IRAC model.6

1. Identification of issues.
After coming across a problem type question a candidate should read it carefully
to uncover various contentious issues taking into account that in a scenario there
may be several facts. You should bear in mind that some issues may only aim to
the issues from a bundle of facts otherwise they may end up wasting time on
irrelevant facts. Focus should always base on facts which have some legal
implications. In the scenario below validity of marriage is the key issue hinged on
consummation and pregnancy by a third party (pregnancy per alium).
Scenario: Monica and David, aged 17 and 21 respectively, married in Kibaha District Office in June
2015. The marriage followed a two weeks colorful honey moon at Paradise Hotel. Monica did not tell
her parents
that she was getting married. The marriage was not consummated because Monica was afraid of
intercourse despite the fact that her friends had been narrating about the enjoyment of sexual
intercourse. In December 2015 David began seeing a psychiatrist so as to resolve this difficulty.
David who was repeatedly urged Monica to consummate the marriage has discovered that she is
having a long standing sexual relationship with her Psychiatrist and she is four months pregnant.
Advice a David on any course available in this cenario.

2. Proper rules.
A lawyer is trained on how to find a right rule and apply in a right scenario. Rules
can be obtained from relevant authorities such as statutes, case law, received law
and customary law and normally a candidate having identified the key issues in
the scenario finds a proper law from among the known sources. At this point one
has to locate the general rule and any available exceptions.

3. Application of rules.

Essentially this aspects entails discussion of the rules in the application of law a
candidate should be able to synthesize law and the facts logically and confidingly
and normally an examiner expects to see sufficient art craft in the discussion of
rules with due references to relevant authorities.

4. Conclusion.
As a matter of principle conclusion sums up the main discussion hence one should
not come up with new issues at this stage. Conclusion should reflect logical
sequence of the premises while avoiding deviating from the minor premises. For
example in one judgment inconsistence between the minor premises and conclusion
were alarmingly spotted where as the Magistrate discussed in details in details the
standards of proof in criminal cases apparently suggested apparently suggested to
agree that particular case the standards of proof was not attained but at the end of
the day accused was convicted leaving a lot to be desired.

LAW REPORTS

In a legal system which is based on precedent are repositories of cases decided by

the courts especially Appellate Courts or what are known as Courts of records.

In Tanzania most of the cases reported in the Law reports are those of or from
High Court and Court of Appeal.
The law reports are repositories of cases and provide information relating to
cases and rule of law laid down by the courts and they also contain information
related to statutory provisions.

WHICH CASES ARE REPORTED IN LAW REPORTS?

It is not possible to report all cases decided in courts, therefore cases to be

reported must be selected. In selection of cases to be reported, this is a matter of
editorial discretion in deciding what cases are to be reported in the Law Reports.

The Editorial body considered the following matters;

 Whether the cases make a new rule of law or re-state an existing rule of law.

 Whether the case clarifies conflicting decisions of lower courts.

 Whether a case interprets a statute which is likely to be of wide application

 Whether the case interprets a common clause in documents such as wills,

contract.

 Whether the case clarifies an important point of practice or procedure.

CITATION OF CASES ON LAW REPORTS.

Citation is a process that requires sufficient knowledge and in fact it is advisable

to read the instructional note of the statute before adopting an appropriate style.

a) Citing using page.

In this pattern a case is referred by the year in which it was reported followed by
page number. For example in Tanzania Law Reports follow this pattern is used such
as R v. Rweyemamu s/o Mukandara [1985] TLR X, where X stands for page number.

b) Citation using volume and page.

This pattern indicates volume number of the Law Report. Volume is necessary
where in one year several reports are authorized by the same person for the sake
of convenience. If simply refers say to Weekly Law Report of 1985 without
specifying volume may cause trouble to the users.

This pattern is common in the Weekly Law Reports Kings Bench and Queens
Bench reports in England as well as some reports in East Africa. Example of this
pattern: X represent page number where as Y stands for volume number.

c) Citation using case number.

This pattern makes no use of page numbers, the important thing is the case
number. The High Court Digest is among the Law Reports of Tanzania where
normally a case number is indicated by letter “n”. For example, James Shayo v.
JumaIssa (1970) HCD n. x. where X stands for case number.

CITATION OF REFERENCE AND BIBLIOGRAPHY.

Bibliography and reference are often used interchangeably but the two words do
not mean the same thing, while biobliography entails any relevant authorities not
necessarily cited in the literary work but reference confines itself to literatures
which are used in the work.

System of reference and bibliography (A.P.A).

There are diverse styles of citing books but in Tanzania most of the institutions use the

American Psychology Association (A.P.A) system that commences with the

surname of the author followed by the year of publication, title, place of
publication and publisher. Mind you when the author is unanimous, the citation
will commence with the title or subject covered.

Where a book is authorized by two persons instead of mentioning both authors

one may simply mention one author followed by the word another and where the
authors are nore than two the name of the first author will be followed by the
phrase “and others” or et al.
In other style the year does not come after the name of the author but it is put at
the end. Remember to bold or italicize the title and where the title has a subtitle
the two must be separated by colonies for example:

 Mzava, John (2016), Meru Customary Law and Practice, Vuga Press, Arusha/

Footnote and End note.

The two terms serves the same purpose except that the footnotes appear at the foot
or bottom of each whereas end note are appended at the end of the chapter.
Basically these notes facilitate quick reference, ensure credibility of the literary work
and serve as an acknowledgement of the source of the information or concepts.

Normally when the same reference is repeated the writer should not reproduce
the notes verbatim instead one may use the word ibid, [Link], or [Link] depending
on whether the references are consecutive or same page is referred.

Ibidem (ibid) means “at the same place” and it is often used where reference is
made to the same publication without interruption hence instead of repeating to
cite the same publication, the writer would instead use the phrase ibid followed
with the page number. For example in the first citation one may write:

 Ruhangisa, J (2013), Juvenile System in Tanzania: Law and Practice, p.33.

 Ibid, p.35

[Link] is an abbreviation of the latin phrase “Operecitate” which literary means in the
work(s) already cited. It is principally used where an author makes reference the
same publication more than once provided the references are not consecutive.

 Mwakaje, R, (2013), Women discrimination in Tanzania, p.33.

 Ngambilo, M (2000), Customary Marriage among the Bena People: A case

study of Inheritance of Widows, p.20.

 Mwakaje, R, (2013): [Link],p.25

Loco citati ([Link]) a latinword which means the place cited, which is always used
to refer to the same author, title and page of an earlier footnote or endnote but it
is not very common perhaps because it is more or less complementary to ibid.

In research reports the use of in text reference is very common whereas instead
of putting footnote one may put the name of the author in the brackets beside the
concept borrowed from the author(s).

Scenario

In 1985 Doctor Chris Peter Maina identified what he saw as the major reasons why the executive was not
being challenged in the court, most prominent was the “timidity and mediocrity on the part of Judges
accompanied by loyalty born out of pressures and expectations of favour from the executive” (Maina 1985:7)
…….This cartoon came in the wake the groundbreaking of favour early 1990’s Judgments of

Justices Mwalusanya and Lugakingira. JwaniMwaikusa (1996: 245) argues that a heightened perception
that the judiciary was or could becoming an ally of the emerging opposition during this time may have
been sharpened by the Attorney General request to remove the vocal government critic and activist
Judge Mwalusanya from hearing a petition filed by opposition activist Reverend Christopher Mtikila.

HOW TO READ A CASE.

The way of reading a case will depend on purpose of which case. However, there
are two major methods of reading a case namely,

a) Orthodox method.

This refers to a method of briefing or summarizing a case by reading a single

case. The outline form of precise includes;

 Name of the court

 Title of the Court

 Identity of the parties i.e natural or legal person

 Facts of the case

 Issues

 Decision
 b) Unorthodox Method.
This does not involve reading a single case but involve reading group of cases. In
facing a problem one may decide to research on particular subject, now in
conducting a research it is insufficient to read a single case but rather one should
read a group of cases so as to come up with concrete authorities.

WHY READ A GROUP OF CASES?

Reading a group of cases it serves different purposes;

 To resolve doubt about the law.

 A group of cases may be read to show their sequence on particular topic.

For example, the development of the law of negligence through a sequence
of cases it helps the court to develop new rules applying existing rules.

 To analyse style of reasoning judicial opinion where by Judges used

different type of reasoning like Formal Style and Grand style.

 Those following the formal style of reasoning are very reluctant to

advance the law and apply the law as it is, are known as Timorous souls.

 Those following grant style they are not afraid of advancing the law
and interpret the law to meet the prevailing social economic
conditions and Judges are known as Bold Spirit.

 A group of cases may be studied in order to make a critical analysis of the

corpus of the opinion of a single judge or making a critical analysis of
alleged political biases of one or more courts.

THE ART OR STYLE OF LEGAL WRITING.

In being a lawyer constantly it is required to write for their clients. In law language
is a tool of trade, lawyer may either write in a predictive or persuasive manner.

1. Predictive writing.
This refers to a written document called Office Memorandum which is a
confidential document between lawyer and client.
In predictive writing a lawyer will foretell the court how to resolve particular
dispute and normally employ predictive writing when giving legal opinion to a
client. However, such prediction given must base on sound legal reasoning.

2. Persuasive writing.
This refers to a document which is required to be in written submission namely,
Motion Memorandum.
In persuasive writing, the lawyer has a duty to convince the court to make a
favourable decision in order to influence the court to have the skills in arranging
points and arguments in a logical manner. However, in our legal system we
normally have a written submission which are both in Trial Court and Appellate
Court which are more general and normally used in a interlocutory proceedings.

CHAPTER THREE.

COMMON LAW CASE TECHNIQUE.

1. Ratio decidendi.
The part of a case which is binding is called Ratio Decidendi of the case. It is only
the ratio decidendi of the case that has binding authority.
The finding of ratio decidendi is an art which needs to be learnt and it is not a
mechanical process. However, finding of ratio decidendi is an important part of
the lawyers training because their argument and in citing precedent lawyers only
cite authoritative part of a precedent which contain the legal rule.
Formulating the ratio decidendi of a case is a creative process and one will have
to choose between the various possibility. The ratio decidendi is a part of a
judgement or decision.

Glanville Williams in his book “ Learning the Law” states that, “the finding of ratio
decidendi is not a mechanical process but an art one gradually acquires through
practice and studying.”
What is the ratio decidendi of a case?
There are various conflicting theorist show how extract ratio decidendi is. So,
various Jurist expose different views on ratio decidendi such ProffesorGood Hart,
Professor Julius Stone and Oliphant.

1. Professor Good Hart said that;

 The material facts of the case.

 The decision of the Judge based on the material facts.

 Judge make conclusion upon the facts as he sees them.

However, further Professor Good Hart said that, the Judge reaches a conclusion upon

the facts as he sees them. It is by the Judge choice of material facts that creates
law and the reason given by Judge in his opinion or statement.

Therefore, one is not to state the facts and conclusion but rather state the
material facts as seen by the Judge and his conclusion based upon them.

What facts are legally material?

It is generally agreed facts as to place person and time are immaterial, in extracting the

Ratio Decidendi one should pay attention to the following matters:

 Material facts.

 Issues are drawn by the parties to the disputes or by the courts.

 Decision of the court.

The essence of Prof. Good Hart argument is that the ratio decidendi can be discovered
by taking into account the material facts and the decision based on those facts.

2. Professor Julius Stone, he criticized on Good Hart theory on finding of the

ratio decidendi by saying that Good Hart attempting to provide prescriptive
 3. rather a [Link] Julius Stone argues that, “ the process of finding
the ratiodecidendi is basically one of choosing an appropriate level of generality .”

Professor Julius Stone his convinced that, Good Hart neglect of a level of
generality and concentrate on material facts which led him into error. So,
professor Julius Stone continue say that, it is not a question of material facts to
the decision in the earlier case but rather what he consider most is level of
generality (analogical relevance)or obstraction.

NB: Analogical relevance refers to the prior holding to the latter case requiring
the latter court to choose between possibilities presented by the earlier case.

3. Oliphant.
Oliphant said that, the ratio decidendi of the case can be identified by studying facts and
the conclusion. He argued that, one may ignore the opinion entirely and work out
to the principle from the facts and the judgment merged on those [Link]
to Oliphant “it is what the Judge does and not what he says that matters .” However,
Oliphant suggestion is faulted on the ground that facts are not constant but
relatively (facts play an important role in deciding the case). However, the Judge
founds its conclusion upon a group of facts selected by him and materials.

Therefore, in analyzing a case it is not a matter simply stating the facts as

suggested by Oliphant and conclusion, but a matter of stating a material fact as
seen by the Judge and his conclusion based on them, on those facts.

TYPES OF RATIOS.

a) Descriptive Ratio.
This refers to the way in which the earlier Judge reached his decision. However,
in descriptive sense a later Judge must acknowledge the material fact of the case.

b) Prescriptive Ratio.
This refers to the earlier case binds on the later Judge. However, it is the
interpretation which a later Judge places on an earlier Judgment when deciding
whether it is binding or not.
According to one Jurists called Karl Llwellyn in his book called “The Bramble
Bush” he contends that, “The Importance of prescriptive ratio decidendicannot be
underscored as no one case has a meaning by itself and this is because other cases
give you a background and give you guidance and assurance.”

OBITER DICTUM.
This refers to mere say by the way, it is not binding because it may be made without full
consideration of the case on the point. It’s merely a rule of law stated by the way of
analogy or illustration.i.e. hypothetical. It is suggested that rule from which the decision
is not finally rested unlike the ratio decidendi. Some author divided this categories into
two;

a) Gratis dicta.
These are mere saying that are given away as if they were free, this contain very little
value. They are considered to be a product which has not been much thought.

b) Judicial dicta.
A normally pieced by careful thought and extensive argument on the point in questions.

However, a judicial dicta carries more weight than gratis dicta.

CHAPTER FOUR.

DISPUTE SETTLEMENT METHODS AND PROCEDURES.

Meaning and rationale.

Dispute settlement is a process that aims at resolving misunderstandings affecting

mutual relationship between the opposing sides. Disputes are normally prompted by
conflicting interest over a matter, belief, or something of interest. They are spontaneous
outcome of political, economic, social, cultural or religious divergence. The rationale
behind disputes settlement is to attain social harmony as a basic socio-economic fabric.

Indeed social life has never been without disputes in fact the history of mankind has
been greatly shaped by disputes. Just from the pre-colonial society, the society has
social machineries such as elder’s councils to resolve disputes. Every society
establishes a framework for dealing with transgression of the law and basically even
the developments of the modern states have been influenced by disputes.
 HISTORY OF DISPUTES SETTLEMENT IN TANZANIA.

Disputes settlement is a social dimension that varies over time and from one society to
another depending on the material setting. In the pre-colonial society there were modes
suited to the material setting known as pre-capitalist modes of disputes settlement or
traditional modes of disputes settlement which were greatly affected in the second half

of 19th century following colonialism.

Western disputes settlement system was adopted in the colonies albeit, the traditional
system was similarly retained. In the Germany East Africa territory and subsequently
during the British era, the traditional disputes settlement existed side by side with the
Western system where as the disputes between the indigenous people per se were
regulated by the customary laws and the Western laws were applicable when the
European were involved which was known as double tier system. The double tier system
was retained until 1963 when Tanganyika went through significant legal reform geared
towards harmonization of laws where as the application of the customary laws had to be
limited to personal matters such as marriage, contract and succession.

BASIS FOR CLASSIFICATION OF MODES OF DISPUTES RESOLUTION.

Disputes settlement may be classified in various ways basing an underlying factors

behind each mode such as the machineries involved, procedures, outcome, beliefs,
and role of technology in dispute resolution, involvement or non-involvement of the
third parties and their role in the dispute resolution. For example when a dispute is
referred to the court of law is known as Judicial Dispute Settlement because judicial
machinery is involved but when it is settled without assistance of the court it
amounts to extra judicial dispute settlement. Modes of disputes settlement can
therefore be classified in the following categories;

Judicial Settlement and Extra Judicial Settlement.

Judicial settlement entails dispute resolution through the aid of the court of law.
This is also referred to as litigation. In this mode an aggrieved person refers the
matter to the court of competent jurisdiction as opposed to extra judicial
settlement as noted before. Judicial settlement is subject to some legal details
that one has to go through to realize the remedy or remedies seeking to.
 MODES OF DISPUTES SETTLEMENT.

1. TRADITIONAL DISPUTES SETTLEMENT.

Traditional disputes settlement basically entails customary approach of disputes

settlement. It comprises of ancient modes of disputes settlement which do not
abide by strict rule of procedure. Traditional disputes settlement was focused at
amicable settlement hence at the end of the day no one was a loser or winner as
to modern system where specialized machineries are established and the winner
always takes all. Amongst the traditional methods of disputes settlement include
trial by ordeal, trial by drumming the scandal, trial by oath, mediation,
conciliation, trial by battle and trial by jury.

a) Trial by Ordeal.
Ordeal may be traced from an old English “ ordl.” In Germany it is “ urteil” or dutch
“oordeel.” It is one of the universal classical judicial practices by exposing
persons to dangerous of fearsome circumstances or situation such as hot object.
In this practice proof of innocence was between death or injuries and survival.
This mode was also referred to as judgment by verdict.

The method was not hinged to ideal procedure but it had spiritual or magic or
mythical connections. In this method the judgment was believed to be made by God
or supernatural, thus judiciumdei on assumption that God stands for innocent person
hence death or injuries sustained by the accused person symbolized guiltiness and
conversely, the survival implies innocence. This was evidenced in the case of Rex v.
Palamba s/o Fundikira 14 E.A.C.A 96, this was a trial by ordeal to discover who had by
witchcraft caused death of the innocent children and the appellants takes a
traditional medicine used by witches known as “ Mwavi”. If a person takes it and he
has done something wrong he will die, whereas if a person takes it, and he or she
has not done anything wrong, he/she will not die but only vomits. The court held that,
Wamlunda was innocent of witchcraft for it does not exist. On this basis, Mwavi
medicine does not work on an innocent person because has not cause death hence
this navigated malice aforethought as per section 200 of the Penal Code for intent to
cause death or the knowledge that the act will probably cause death were absent.
The appeal was allowed and conviction and sentences were quashed.
 b) Trial by drumming the scandal.
This method involves exchange of words between the parties to the disputes but a more
creative approach may be elected by the parties whereby one may recite a son or poem
to convey message. At the end of the day a defeated person is believed to be guilty since
the method was build on beliefs that the supernatural have no championship with the evil
doers. There was a dispute between Torgindi v. Mtswen, the parties quarreled each party
live in different village, each party went home and sung a song, each party sung as loud
as they could, so that the whole village would heard. Now the drumming contest went on
more three weeks now the village elder took note of this and he was of the view that, if
the contest proceeded any favour it would end in the fight. The village elder called
Torgindi, Mtswen, and their people to come to his compound, he ordered each side to
sing and drum, and he would decide the winner, after both sides having sund and drum
the village elders announced that Torgindi won the case but Mtswen had the better song,
so both parties won and lost a little.

c) Trial by battle.
This is a method in which disputing parties get involved in actual physical fight.
This method operates under similar assumption that God stands only for
innocent persons. The important point to note is that a party may hire another
person to stand him or her for reason of illness under the same assumption.

d) Trial by oath.
This method required a party to take an oath a guarantee of the truth of the testimony.

The method was justified by a belief that having taken an oath one had to tell no
lies for fear of supernatural punishment. After swearing the council believed the
stories narrated by a party to be nothing but the truth. However, this method may
not be effective where a party cares not about the consequences of oath.

e) Trial by Jury.
This is one of the oldest forms of legal proceedings in the ancients Greek society.
A jury is a panel of adjudicators and in the common practice in the Greek society
the jury consisted of elders. For example the trial of the great philosopher,
Socrates consisted of 500 men. In the modern system jury entails by Judges or
laymen assisting a Judge on points of fact hence a jury may make findings of fact
leaving the judge to make decision on point of law. The Jury was impaneled to
assist determination of factual issues and not legal issues.
The opinion of the jury is not disposive but rather advisory to the Judge who
made final determination of facts.7In the Common Law Jury is normally involved
in serious criminal cases whereas in Civil Law System the use of Jury is common
in all cases although focus is in criminal cases. The common practice in Tanzania
is to impanel the court assessors who advise the Judge or Magistrate on factual
issues and their opinion does not bind the Judge or Magistrate.

The danger is that the jurors may deliver verdict prompted by popular perception
or emotion. Thus they are susceptible to the influence of media and general
public opinion. Also juries may be biased especially when the matter has
influence in the ideological, cultural or moral orientation of a juror.

The rule of practice did not require them to give reasons for decision hence it was
abolished in some countries such as Malaysia, 1995 and India 1960 basing on a number
of factors. Trial by Jury overemphasized on the number of witnesses for one to
win the case. That is to say one with many witnesses had great likelihood to win
the case as opposed to common law practice.

f) Mediation.
In this mode, parties refer their dispute to an impartial third party known as a
mediator who has potentials to create ideal atmosphere for resolution of dispute. A
mediator does not adjudicate the dispute but simply facilitates dispute settlement
hence a mediator is also known as a facilitator. Settlement of the dispute falls
squarely on the parties. The key role of mediator is to explore various courses
available by pointing out the advantages and disadvantages of each course.

A mediator may conduct separate and joint sessions depending on the attitude and
the reaction of each party towards one another but where the situation is so hard, it
is advisable to commence with separate session and proceed to joint session even
where the situation tense to accord a room for parties to escapeout grievances
especially with a party who feels weak against the other. It is not strange to find a
party to shading tears and airing out abusive words against them as a means of
venting out grievances which is likely to be achieved through joint session.
 2. MODERN DISPUTES SETTLEMENT.

Modern disputes resolution can be categorized into Litigation and Alternative

Dispute Resolution (A.D.R). Litigation may fall under systems namely Common
Law Systems and Civil Law System.

a) Litigation.
Litigation is involuntary, formal and structured and public process in which one has
to observe factors such as limitation time and jurisdiction. It involves a set of legal
procedures for channeling claims, for civil suits one has to commence with
proceedings followed by other stages such as mention, preliminary hearing, hearing
and others while criminal cases do normally commence with charge sheet but in
either case it is incumbent for parties to observe each stage or procedure involved
since abuse or failure of procedures may attract adverse consequences.

b) Alternative Disputes Resolution.

ADR is an acronym that entails an alternative course of disputes settlement which has
been adopted in recent years to remedy the weaknesses of litigation which was
expensive with results frequently unpredictable and normally occasioning undue delays.
ADR consists of various methods such as mediation, Arbitration and negotiation.

 Mediation.
Mediation entails dispute settlement in which a neutral third party is involved.
Basically it is a traditional mode of disputes settlement aiming at resolution of
disputes as discussed above.

 Arbitration.
It is a submission to an impartial third party namely arbitrator, normally being a
person with expertise in the subject matter for decision. Arbitration is not quite
different from litigation in the sense that an arbitrator conducts hearing, admit
exhibits and more important makes decision after hearing parties unlike a mediator
who is merely a facilitator. However, if differs with litigation since it admits some
procedural flexibility and basically less formal and structured. Also this process may
accords right to the parties to choose an Arbitrator unlike litigation.
 c) Negotiation.
Normally attorney’s may advise clients to resort to negotiation when there is likelihood of
losing the case or undue delay is anticipated. Negotiation is a back and forth
communication between the parties to the conflict geared towards resolution of the
dispute. Successful negotiation requires calmness, open mind, capacity and good faith.
However, being in a team one should have a bench mark of negotiation to avoid being
swayed away by the adverse party,you should not go beyond your determination point of
reference in such a way to completely compromise your interest.

Negotiation does not involve a third party in the real sense. However, the process
may either be direct in the sense that parties have a direct communication or
indirect whereas an Attorney or agent is involved not as a facilitator but as a
substitute of the party.

 Face to Face and Online Dispute Resolution.

With technological transformation, disputes settlement may not necessarily
involve a physical contact between parties and the facilitator. The process may
be carried out online, either through teleconference, Cellular phones or Skype.
Online Dispute Resolution (O.D.R) is very useful where face to face meeting leads
to undue inconveniences. However, the big challenge is that ODR may not give
opportunity for a facilitator to spot the demeanor and attitude of the parties. In
fact, it departs from traditional approach where parties get time to shake hands.

CHAPTER FIVE.

LOGIC AND LEGAL REASONING.

Logic Reasoning.
This is a science of reasoning, proof, thinking or reference. Logic reasoning is primarily
concern with internal thought and secondarily with language which express the thought.

 Logic reasoning also helps in analyzing an argument or a piece of

reasoning in order to determine whether it is likely to be correct or not.

 Logic reasoning deals with principles and criteria of good reasoning, it is also
plays an important part in legal reasoning. Logic reasoning is normally associated
with deductive form of argument which is also known as Syllogism.
Syllogism is an argument which contains two things;

 Premises

 Conclusion.

i) Premises are normally the assumptions upon which a person seeks to

dram conclusion. The argument will normally contain what is known as
major premises, minor premises and conclusion. The premises normally
provide reasons for ascertaining conclusion as true.

ii) Conclusion tries to establish or to proof the truth. In advising a client a lawyer

will employ this type of reasoning and such case as a statute will act as
a major premise and the lawyer will indentify his case has fall within a
statute and then, he will reduce has the conclusion the way it will apply
to its client case.

METHODS OF LOGIC REASONING.

a) Deductive logic.
This is only applicable once a major premise has been established. Where the
major premise is not the statute but case law, no major premise is likely to be
clear from just one case in order to formulate the major premise from precedent
one has to read several cases which are similar, in order to find the major
premise which underlies all the cases. What the reader will be doing in its effect
is ascertaining the ratio decidendi of the different cases in order to come up with
preposition which will then act as the major premise.

b) Inductive logic.
This is the process of reasoning from a particular case decision to a general
preposition as opposed to deductive logic where the reasoning is from general
preposition to the particular conclusion in the case itself.

A lawyer in advising on the application of case law the particular situation will
first employ inductive reasoning in order to find the general preposition of law
and then, the lawyer will apply deductive reasoning in determining how it applies
to the facts of the particular case.

NB: In Inductive reasoning the analyst must know what is looking for, the analyst
must have in mind the general conception which can be stated in general
preposition. The analyst must categorize the issue and decide which previous
decision are so closely analogous or similar to the issue in question that they can
be used as the basis for inducing the relevant preposition of law.

Types of logic reasoning.

i) Syllogistic reasoning.
This is a type of reasoning which was developed by Socrates and Aristotle, and it
is a type of reasoning which must always contain three premises such as major
premise, minor premise and conclusion. In actually a form of deductive
reasoning. It is categorized as reasoning from the whole part to the part or from
the general to the particular.

For example, one may have a major premise stating that;

Major premise: all fish are vertebrates.

Minor premise: Tilapia is a fish.

Conclusion: Tilapia are vertebrate.

In syllogism, they have advantage of certainty(assurance of conclusion) where the

premises are truth, then the conclusion cannot be false and this is because the
conclusion is contained in the premise, and it is a mere restatement of the premises.

NB: It is important to distinguish between the validity of form and truth of the
content, because it is possible for a syllogism logically valid but false. For
example
Major premise: all men are pigs.

Minor premise: Socrates is a man.

 Conclusion: Socrates is a pig.

Answer; the logical content of the argument it is valid but the conclusion it is not
true(false), because the major premises is false, because all men are not pigs. It
is also possible for a syllogism to be truth and valid yet based on false a premise.

For example, Major premises: all men are Greek.

Minor premise: Socrates is a man.

Conclusion: Socrates is Greek.

A logical form is correct but the major premise is wrong, however the conclusion
is [Link] syllogistic form of reasoning if the premises are true, then the
conclusion cannot be false in itself for it states nothing to the truth of the
premises or the truth of a conclusion derived from them.

NB: Most of the times legal argument is about a truth of a particular premise
rather than a validity of the logical form being operated.

ii) Deductive Reasoning.

This is a process of drawing out the conclusion from already existing premise. It
is arguing from a general preposition to a particular case, one argues from
established rule to a particular case. For example, any person who drives a motor
vehicle recklessly is liable to pay a fine or to be sentenced to a term of
imprisonment, this provision Act as a general preposition of law, or where X who
is insane drives a motor vehicle, X will not have committed an offence since he is
insane and therefore X cannot be guilty of the offence of driving recklessly.

NB: Where there is an established principle deduction is used to solve a problem.

The principle may either be contained in a statutory provision or it may be
deduced from precedent.

iii) Inductive Reasoning.

This is an open system of reasoning and it is a process of reasoning from a
particular case to a general principle, and in this type of reasoning one argues
from experience where by a general rule is formed from particular case.
Most progressive Judges use this reasoning unlike Timolous souls who prefer
deductive reasoning. One weakness of inductive reasoning it lacks certainty of
conclusion which are normally reached by deduction although it may have a high
degree of probability. Read case: Heaven v. Pender.

In inductive reasoning differs from deductive reasoning into two major respects:

 The conclusion reached is not simply a re-statement of what is already

contained in a basic premise.

 It is less certain in its conclusions than deductive logic.

iv) Reasoning by analogy.

According to Edward Levi in his book “An Introduction to Legal Reasoning” he

states that: “a basic pattern of legal reasoning is reasoning by example”. This
method involves making conclusion basing on the previous similar example. This
is a type of reasoning from case to case and it is three step process describe the
doctrine of precedent in which a proposition descriptive of a first case is made in
the rule of law and then applied to a next similar situation.

NB: The later Judge may manipulate ratio decidendi such as;

 A Judge has to look for similarities between the pending case and the
decided case that is about to be judiciary considered.

 Pronounce the rule inferring from the prior case.

 Use of precedent is a good example of reasoning by analogy.

The finding of similarity or difference is a key step in the legal process. It is a

judge function to determine similarity or difference.

v) Judicial Hunch.

This involves use of extra legal examples to support judicial decisions. In formulation
of rules and analyzing facts of case a judge may make use of slogans, maxims and
extra legal standards to justify the conclusion. Having decided what is good or bad, a
clever judge will invoke every faculty to justify his conclusion (all means of his
disposal). The judge will examine all cases see the principles and select what is most
useful to him and discard all rules and principles that block him on his way to his
[Link] judge called Justice Franklin in his book called “ Law and the Modern
Mind” argues that: “usually the courts begin the results they desire to accomplish
and then, they justify it i.e, the know who is liable”.

NB: In judicial reasoning principles are always primary and precedents are only
secondary.

STYLE OF JUDICIAL OPINION.

There are three types of judicial opinion:

 Grand style.

 Formal style.

 Realistic
style. a) Grand
style.
In this style the judge is much concerned with providing guidance for the future.
Therefore, a general preposition embodying a policy, only guides but does not
control [Link] used by judges who perceive legal principles as
general preposition which contain policy.

According to one jurist called Karl Llewellyn argues that: “the grand style is
based essentially on an appeal to reason and it does not involve adherence to
precedent (not follow strict). Under this style policy comes in for explicitly
examination. Before passing a law the parliament comes with a policy, there must
be some problem in order for the parliament to enact the law.

Under the grand style, a judge is not a mere positive interpreter of the law but
becomes an active interpreter meaning that in applying law under the grand style
the judge does not only apply the black letter of the law but also takes into
account the existing social economic circumstances over the society and it also
looks the intention of parliament in enacting the law. Most Bold spirits prefer the
grand style and mis-chief rule of interpretation.
 b) Formal style.
Under the formal style, judges focus on principles, authorities and case, and the
rule of law decide the case, and no attention is paid for a policy which is left for a
legislature, and formal style is not concerned with social fact.

The main characteristic of formal style is that, judge will normally prefer plain meaning
approach of statutory interpretation (applying a law as it is). Under the formal style,
judges consider themselves as bound by principle established in previous cases.

The court under the formal style is only there to discover and declare the
applicable rule, and apply to the facts of the particular case.

c) Realistic style.
It is most applied in Scandinavian countries, where the judge uses precedent by making
distinction, the judge uses precedent which will assist him to justify its conclusion and
cases that seem to contradict it desired result are distinguished on factual differences.

Therefore, precedent under realistic style only plays a secondary role, and they
do not necessary dictate the outcome of case.

STYLE OF JUDICIAL OPINIONS IN EAST AFRICA.

One author Robert Seidman identifies three phases in evolution of judicial

opinion in East Africa.

 From 0 to 1920.
The Tanganyika Order in Council was passed in 1920; it’s during this time that he
starts looking on this period. He said that the opinion of the court during this time
was very short and judgment and judges real cited rear authority, the role of the
court during this time was just to apply which law. In case of dispute issue the court
justified decisions by formal style. Reason given to this short opinion was that, there
were no enough material i.e. Cases and Textbooks (reference book system did not
require the judge to justify the decision this is because the lower court were not
manned by trained person and the role of the court was just to announce law.
  From 1930 to onwards.
From this period the court opinion became more sophisticated because of increasement
of lawyers and trained people. Lawyers started citing authority extensively. The court
were being manned by trained personnel and availability of material.

 From 1961 to the abolition of appeals to the privy council.

During this period which decisions of the court had to be meet expectations of
newly independent state, English decisions were no longer binding English
authorities and received laws only applicable which were conformity with local
condition, they were merely persuasive as per section 2(2) of the Judicial and
Application of Laws Act [CAP 358 Revised Edition, 2002].

LEGAL REASONING

The term “legal reasoning” is not easily defined but could mean three things;

 Reasoning to establish the existing content of the law on a given issue.

 It could be reasoning of the existing content of a law to do decision which

the court should reach in a case in involving that issue which is in a court.

 Reasoning on existing decision which the court should reach in a case all
things considered (extra-legal consideration).

The concept of legal reasoning is linked to interpretation and coherence. Interpretation

aims at both conserving and creation and it is not merely and attempt at producing but
also to make something or bring something out of an original. The element of
interpretation in legal reasoning is concern at striking the high balance between
conserving and creating and the constraint, that should be operating upon the judges as
they undertake the balancing act in interpreting the law, the judges applying the law as
current (conserve) is and they supplement, modify or bring something new ( create) in the
law in the course of reasoning from the content of law to a decision to a particular case.
Interpretation and legal reasoning play two major roles;

 Reasoning to establish the existing content of a law on given issue.

  It is reasoning from the existing content of law to decision that court will
reach in a given case involving an issue.

Legal reasoning and justification.

In reaching a conclusion a judge will have to justify his decision, meaning that
the decision reached must be well reasoned.

In justifying a decision a judge will appeal to the following:

 Authorities.

 Sources of law.

 Precedent.

 Statutory wording.

In justify decisions, two factors must be considered by judge as follows;

 The extent to which a proposed decision will cohere with existing

principles and authorities. The greater they are consistent will exist
principles and authorities the less likely it is to be.

 In justifying a decision a judge must consider the broader consequences of

the decision for potential litigants.

The consequences on legal system and the general rule of law in society or put
simply with the decision be in line with common sense and justice.

One jurists, professor John Wisdom he sum up the nature of legal reasoning by
saying the following:“it is not a chain of demonstrative reasoning…..a presenting and
representing of those feature of the cases which severally co-operate in favor of
the conclusion….the reasons are like the legs of a chair not the links of a chain”.

Therefore, legal reasoning employs practical reasoning we all use in everyday life
we tend to way a collection of reasons for or against to a particular reason rather
than deductive logic.
 TYPES OF CASES AND STYLE OF JUDICIAL OPINIONS.

There are several types of cases which may arise;

 Cases of first impression.

 Clear cases.

 Trouble cases.

a) Cases of first impression.

There is usually no precedent and in such circumstance the judge will be

interested in providing guidance for the future and will bear in mind policy
considerations will lay down the rule guided by grand style of judicial opinion.

b) Clear cases.
A clear case is a case which usually has a precedent covering the matter in issue.
In such circumstances there is not controversy as to the rule. The agreed rule of
the decision is derived from a previous decision. What the court does is just to
discover and disclaimed the law. In clear case the formal style is preferred.

c) Trouble cases.
It will normally arise where the rule is not clear and agreed upon. The lack of
clarity may be due to two reasons;

 Conflicting principles in different cases.

 Conflicting interpretation of the authorities in such situations, there’s

doubt as to which of the conflicting covenant the situation.

For example, the court of co-ordinate jurisdiction such as the High Court of Tanzania,
where the High Court and none, is superior to the other, and such court may issue
conflicting decision which will remain to be conflicting until by the court in judicial
hierarchy such as the Court of Appeal of Tanzania. [Link] Mohammed v. Republic
(1983) TLR, concern the interpretation of s.114 of the L.M.A, 197
 CHAPTER SIX.

STARE DECISIS.

The common law doctrine of precedent is to the effect that each court is bound to their
prior decisions. Prior decision of court above it in the hierarchy and some courts at least
to some extent bind themselves. High Court of Tanzania and Zanzibar binding
themselves. The doctrine of precedent is also called stare decisis. It means keep to the
decisions of past cases i.e a latin maxim.

The doctrine of stare decisis or stare rationibusdecidendi it means keep to

decisions of past cases, this doctrine plays a vital role in common law legal
system. However, in civil laws countries based on Roman law, precedent may be
followed but there is no strictly requirement or strict rule that may be followed.

NB: The earlier decision is superior not because it comes from a higher court
rather, the earlier decision becomes superior just because it is earlier. This
obligation of a court to follow its own previous decisions is typically known as
stare decisis latin for “stand by the thing decided”. Subordinate courts are required
to follow superior courts regardless to correctness. From the definition of common law
about doctrine of stare decisis, the application to be bound which precedent is of two
types such vertical obligation and horizontal obligation.

 Vertical obligation.

In the judicial hierarchy decisions of the superior court binds all lower courts,
under vertical obligation, the judge is bound to apply principle laid down by which
superior court, even if he think it’s not correct. The authority which precedent
depends on which court it proceed and court in which it’s re-cited (concurrent
jurisdiction). In addition, the courts following the decisions of a higher court.

 Horizontal obligation.

It refers to how some courts and courts of co-ordinate binds themselves, normally
Appellate Courts are bound by their own previous decisions. It occurs mostly from
High Courts or Court of Appeal. In addition to being obliged to follow the decisions
of courts above them in the judicial hierarchy, courts are also, although less

obviously and sometimes more controversially, expected to follow their own earlier
decisions.

PRECEDENT.

The core principle of decision making according to precedent is that courts should
follow previous decisions that they should give the same answers to legal
questions that higher or earlier courts have given in the past.
Initially, understanding the idea of precedent requires appreciating the difference
between learning from the past, on the one hand, and following the past just because of
the fact of a past decision, on the other. With respect to the former, which is not really
precedential reasoning at all, the instant court may learn from a precious case, or be
persuaded by some decision in the past, but the decision to do what another court has
done on an earlier occasion is not based on the previous cases status as a precedent.
Instead the decision exemplifies the fundamental human capacity to learn from others
and from the past. There are many instances in which the court will be persuaded by the
reasoning of another court, but if the instant court is genuinely persuaded, then it is not
relying on obeying precedent at all. For example, suppose I am boiling an egg. I boil it for
six minutes, and am pleased to discover that it is cooked to precisely my preferred
hardness. Consequently, the next time I boil an egg I do so, not surprisingly, for six
minutes, I am not boiling it for six minutes because I boiled it for six minutes on the
previous occasion. I am boiling it for six minutes because six minutes is the right time. I
know this because I have learned from the previous action, but on subsequent occasions
I make the decision because of what I then know.

Rationale to the doctrine of precedent.

One of the great virtues of law is certainty. The doctrine ensures the element of
predictability and uniformity which is essential in legal system. The doctrine also
promotes consistency, stability and efficiency. It also serves the court time should
similar dispute arise the consequences will be known and also desirable, that
similar cases should be decided in a manner.

Types of precedents.

 Declaratory precedent, is an application of an already existing rule of law

and used in clear cases.
  Creative precedent, this create and apply new rule in applying a rule of law it

involve making of choices between alternative, none is conclusive on the other,

this alternative may consist of conflicting principle contained in different cases or
conflicting interpreters of one among authoritative cases. This relate to the failure
to recognize and accommodate trouble case. This creative process is normally
outcome of the court exercise of developing and applying which law.

The binding nature of precedents.

Decisions of superior courts binding lower court in the hierarchy. This decision
may either be binding or persuasive.

 Binding decisions.

This refer to the pronounce by the High Court in judicial hierarchy in a given legal
system. A decision is binding on a later court when the relationship between two
court under the doctrine require court to apply decision. The binding force stems
from which relative position of the two courts on which hierarchy. In the theory it
has nothing to do with the merits of which the principle by the court.

 Persuasive decisions.

When a precedent is pronounced by a foreign court then that court can not
binding in the next because is not binding. For example, High Court of Kenya is
not binding on Tanzania Court because these are not court of the same judicial
hierarchy. A decision may be binding upon a latter court because it pronounces
outside the judicial hierarchy. However, this precedent are not binding
nevertheless they may carry great weight this is because such a decision may be
adopted by latter court and this adoption may depend on several factors;

 It may depend on the judges’ evidence or the court which pronounce that
decision.

 It may depend on which circumstance and decisions treated by other court.

 It may depend on which relevance of their decision of the case question on in

 hand.

Evasion Techniques.
The English doctrine of precedent is to be strictly observed by the court within
judicial pronounced all subordinate courts follows that decision of the higher
court is to be strictly followed because of that rigidity, the court have come with
what know as Evasion Technique in order to circumvent. Due to this rigidity court
have developed a principle of the technique;

 Overruling.

 Disregarding.

 Distinguishing.

i) Overruling.
This occurs when a precedent is denied of its authority. This is an act of a court
of superior jurisdiction to deprive a precedent of all its authority. This occurs
when a precedent is not merely wrong, but so clearly and seriously wrong that its
reversal is demanded in the interest of sound administration of justice.

In effect, a court denies that the supposed rule of law has ever existed. The effect
of overruling can either be prospective or retrospective.

NB: The effect of overruling is retrospective, except that it does not unsettle matters
which have already been settled between parties (res judicata) and accounts stated. In
our jurisdiction, it is only the Court of Appeal that may overrule its own earlier decision.

ii) Disregarding.

This is the refusal to follow a decision of a court of coordinate jurisdiction. This is

because the two courts have equal authority and none can overrule the decision of the
other. For example, the High Court of Tanzania and the High Court of Zanzibar. Each
court has coordinate jurisdiction and none can overrule the others decision. In such a
case, either of the two courts can refuse to follow the others decision.
NB: If precedent is not followed, it does not altogether disappear; it exists side by side
with the latter authority conflicting with each other until it is set aside by a higher court.

iii) Distinguishing/explaining.

This is the process of cutting down the express ratio decidendi. This process
involves the identification of factual differences and using it as a justification of
for departing from the ruling in the earlier case. Distinguishing can either be
restrictive or non restrictive.

In this approach a Judge avoids being bound by precedent by simply saying the
case is irrelevant to the present case. This technique is not basically concerned
with correctness of previous case or its principle but on the relevance. This
happens there are some material distinction between the earlier decision and the
instant decision. For example, in the case of Bridge v. Hawkesworth (1851) QB 75,
the customer was held to be entitled to keep money which he had found on the
floor of the shop but in Staffordshire.

Types of Distinguishing.

a) Restrictive distinguishing.
This may happen when the distinction between the two cases is just few aspects.
In this approach the previous case has limited utility. A restrictive approach
always cut down ratio decidendi of the earlier decision.

It may even go to the extent of treating as material of some facts which were
disregarded in the earlier decision for being immaterial. For example in Anns v.
Merton London Borough (1978) AC 728, the court made proposition that the
municipality was liable for negligence resulting from failure to properly inspect
building plan. However, in Peabody Fund V. [Link] Parkison Ltd (1984) 2WLR 953 ,
limited liability of municipality to possibility of safety or health as opposed to general
liability.

b) Non Restrictive distinguishing.

Material facts of the instant case may have a total departure from the previous
one in which hence the decided case may have no utility at all. Non restrictive
approach occurs where the court finds the case does not fall within the purview
of the instant case because of material divergence of the facts.

iv) Doctrine of Changed Circumstances.

The doctrine of precedent is founded not only on the similarities of facts but also on
rationale or reason. Cessation of circumstance or reason for the rule ( cessante ratione
Cessate ipsa lex) makes a subsisting precedent defunct. For example, a precedent
adopted before the entrenchment of the Bill of right denying the right of a wife to retain
after marriage will certainly cease after entrenching the Bill of rights on this account.

v) Per incuriam.
Normally the court is at liberty to avoid an erroneous precedent. The precedent is
said to be per incuriam under the following circumstances;

 Where the decision is given in ignorance or forgetfulness of relevant law or

binding authority as it was in the case of Morelle v. Wakeling (1979) QB 546.

 Misconstruction of statute may also render the precedent an un useful for

example in Dixon v. British Broadcasting corporation the construction of
the statute didi not take into account relevant words.

APPLICATION OF THE DOCTRINE OF PRECEDENT IN ENGLAND.

1. The House of Lords(The old rule).

Under the old rule, the House of Lords was absolutely bound by its own previous
decisions. Such decisions were also binding on all lower courts. This was established in
the case of Beamish v. Beamish (1861) 9HLC 274. The matter was finally settled by Lord
Halsbury in the case of London Tramways v. London County Council [1898] AC 375 where
he stated that: “there must be a final Court of Appeal. For it is in the interests of the
public that there should be an end in litigation. i.e. a finis litium.

Exceptions to the old rule:

 o Where a decision was given per incuriam. i.e. in forgetfulness or inadvertence
of an of a statutory provision or another earlier decision binding on them.

o Where there were conflicting decisions of the House of Lords, then it was
not bound. Conflicting decisions could either be due to:

 Inadvertence/forgetfulness of the existence of an earlier decision.

 The binding force of the precedent was not recognized.

o Public policy.
A decision based on some public policy, particularly commercial policy
was not binding if social conditions had changed. [Link] changed
circumstances doctrine.8

The New Rule

On the 26th July, 1966, Lord Gardiner, the Lord Chancellor read the famous

practice statement9 that the House of Lords would regard itself as free to depart
from its own precious decisions where it appeared to do so.

In a Press Release issued in connection with the practice statement stated that:

o The House of Lords would be free to depart from its previous decisions where
there were changed conditions.

o The new power would enable the House of Lords to take account of the
decisions of other superior courts in the commonwealth.

o This would allow the grow of the law.

NB: it is worth that the practice statement makes no mention of overrulingbut merely
departing from its own previous decision. This poses a bit of confusion, for
overruling and departing from a previous have different or distinct implication. E.g.
when a decision is overruled, its ratio ceases to have any binding effect, and when a
decision is departed from, thereafter there are two mutually inconsistent decisions.
This means theoretically that a future court may chose between the two decisions.

The Practice Statement in Action.

One of the earliest cases in which the practice statement was put into effect was the case
of British Railways Board v Herrington [1972] 1 ALL ER 749 . The House of Lords softened

its 192910 ruling that an occupier owed virtually no duty of care to a trespasser even
when he was a child. The reason appears to have been a change of opinion as to the

acceptable distribution of risks between occupiers and those injured on their premises.
One Law Lord, Lord Pearsonsaid that the previous decisions formulation of the duty of
occupier to trespasser is plainly inadequate for modern conditions. Another Law Lord,
Lord Diplock, explained the decision as reflecting ‘the general development of legal
concepts since 1929 as to the source of one man’s duty to take steps for the duty of
another.’ In Herrington’s case, a six year old boy who was trespassing on the appellant’s
railway line was burnt. It was held that the rule in Addie’s case had been rendered
obsolete by changed physical and social conditions.

2. The English Court of Appeal.

The Court of Appeal consists of two divisions;

 The Criminal Division.

 The Civil Division.

Is the Court of Appeal bound by the decisions of the House of Lords? (Civil Division).

Theoretically, the English Court of Appeal is absolutely bound by the decisions of the
House of Lords. One author11 contends that until recently there had never been any
doubt the fact that the Court of Appeal was bound by the decisions of the House of
Lords. However, in the case of Broome v. Cassell [1971] 2 QB 354, the Court of Appeal
held that the House of Lords had been wrong in its view in Rookes v. Barnard [1964]
AC 1129, on the circumstances in which exemplary damages could be awarded. In
the case of Rookes v. Barnard, Lord Devlin had laid down that exemplary damages
could only be awarded in three types of circumstances. The trial Judge in the case of
Cassell v. Broome regarded himself as bound by this rulling.
Is the Court of Appeal bound by its own decision?

In the case of Young v. Bristol Aeroplane Company Ltd [1944] 2 All ER 293 , the Court of
Appeal is generally bound by its previous decisions in Civil cases as well as those of
courts of coordinate jurisdiction. In the Bristol case, the plaintiff claimed damages for
injuries at work. The defendant argued that his claim was bad since according to the
Court of Appeal decision in Perkins v. Hugh Stevenson and Sons Ltd [1940] 1 KB 56 , a
claim for common law damages was barred where the injured workman had received
compensation under the Workmen’s Compensation Acts.

Exceptions.

i) Where there are two conflicting decisions.

 Two conflicting decisions were reached were both reached before

Young’s case in 1944 established that the Court of Appeal was
bound by its own decisions.

 Is when the Court of Appeal discovers a conflict where previously

it had thought that none existed.

ii) Inconsistent House of Lord’s decisions.

Where a Court of Appeal decision, though not expressly overruled, could

not stand with a decision of the House of Lords. Where the House of Lords
decision is subsequent to that of the Court of Appeal this exception creates
no problem. This is simply a case of implied overruling.

iii) Where the decision was reached per incuriam.

As a general rule, a decision given is in ignorance or in forgetfulness of

some statutory provision or of some binding authority on the court
concerned. In the case of Boys v. Chaplin (1968) 2 QB 1 , it was held that the
Court of Appeal is not bound by its earlier decisions dealing with
interlocutory matters i.e an application on a preliminary point. Again in the
case of Worcester Works Finance Ltd v. Cooden Engineering Co. Ltd [1972]
1 QB at 217, Lord Denning was of the view that a decision of the Court of
Appeal which was disapproved or doubted by the Privy Council then the
Court of Appeal was at liberty to depart from such a previous.
The Court of Appeal, Criminal Division.

The basic rule has been that stare decisis is applied without any rigid endorsed and
several examples were refused to follow an earlier decision. As it was stated in the case
of R v. Taylor [1950] 2 KB 368, in this case the appellant had pleaded guilty to a charge of
bigamy. He had been advised to do so because the facts of the case were virtually
identical to those of R v. Treanor, a previous decision given by three Judges of the Court
of Criminal Appeal. The Court was of the opinion that since criminal cases dealt with the

liberty of the individual, and it was felt that the law had either been misapplied or
misunderstood in a decision previously given, and that on the strength of the wrongly
decided case an accused person had been sentenced and imprisoned, then it was the
duty of the court to reconsider the earlier decision that was binding on it. It was further
stated by Lord Goddard CJ that:

The exception which applies in civil cases ought not to be the only ones applied in
such a case as the present, and in this particular instance the full court of seven
Judges is unanimously of opinion that the decision in Rex v. Treanor was wrong.

However, some recent decisions show that the Court of Appeal, Criminal Division
is bound by its own decisions in the same way as the Civil division (and subject
to the same exceptions). In Spencer [1985] 1 All ER 673, the Criminal Division of
the Court of Appeal said that there was no difference between it and the Civil
Division in regard to precedent save that when the liberty of the subject was at
stake it might decline to follow one of its own decisions.

THE DOCTRINE OF PRECEDENT IN EAST AFRICA.

Origin of the doctrine of Precedent in East Africa.

The superior courts of East Africa followed the doctrine of precedent as it was applied in
England. Courts of East Africa have accorded authority to their earlier decisions and

especially cases heard by the courts of England.12 This was due to three major factors:

a) The Colonial Context.

The three East Africa countries were former British colonies. It was natural that
England the colonizers should provide leadership and inspiration for all the
colonies in the law and other spheres of life.
 b) Professional training and countries of origin of the Judges.

Most of the Judges in Colonial East Africa English men drawn from the English
Bar. Their English origin and training influenced them, thus influenced English
decisions, practice and decisions.

c) The Reception clause.

The doctrine of precedent was also received by the Reception Clause, which is
contained in section 2(3) of the Judicature and Application of Laws Acts [CAP 358
R.E 2002].

APPLICATION OF THE DOCTRINE OF EAST AFRICA.

i) The Privy Council.

This was the ultimate court of appeal of the British Colonies and those countries of the
Common Wealth which have not abolished the right of appeal to that court. During the
colonial time, it constituted the apex of the judicial pyramid in East Africa as in other
British colonies and dependencies. Decisions of the Privy Council do not bind English
courts or Privy Council itself. However, its decisions have great persuasive authority.
The decisions carry a lot of persuasive authority because most of the law Lords who are
members of the House of Lords decide cases in the Privy Council. Prior to the
independence of the East Africa states under British rule, the Privy Council was the
highest organ in East Africa judicial hierarchy. The Privy Council was an advisory organ.

Before Abolition of Appeals to the Privy Council.

Appeals from the East Africa Court of Appeal went to the Privy Council. The
decisions of the Privy Council were binding on the East Africa Court of Appeal
regardless of the origin of the appeal. According to the case of Wambura v. R [1950]
20 EACA 339, the decisions of the Privy Council were considered as settling:

 General point of law especially the Common Law and Equity and
interpretation of English statutes.
  Pronouncements on Mohamedan law. The Privy Council’s pronouncements
of Islamic law, especially of India were held to determine the Mohamedan
law of Eastern African Muslim communities as per the case of Shallo v.
Maryam [1967 EA 409.

 Interpretation of a colonial statute or other statute, its decision was binding

on the East Africa courts in the interpretation of local statutes in pari
material as per the case of AbdillahJamaAwaleh v. R [1958] EA 20.

After Abolition of Appeals to the Privy Council.

After independence from the British, most East African countries abolished
appeals to the Privy Council. Tanzania abolished appeals to the Privy Council in
1962. Kenya in 1965 and Uganda in 1966. The Court of Appeal for Eastern Africa
becomes the highest appellate court in East Africa after abolition of appeals to
the Privy Council. However, after the independence of the three East Africa
countries, there was some confusion as to the effect of the decisions of the Privy
Council on the East African courts. There were two views:

 According to Spry, J.A in the case of Rashid Moledina v. Hoima Ginneries

[1967] E.A 645, he was of the opinion that since the legislature had
expressly maintained “existing law” it also included decisions of the Privy
Council and as such, they were still binding.

 However, the matter was finally settled by Newbold, VP in the case of Dodhia v.
National and Grindlays Bank [1970] E.A 195, where he stated that no decision of
the Privy Council or any English court or any foreign court was binding on the
Eastern Africa Court of Appeal (E.A.C.A). The E.A.C.A being the final court in
East Africa could depart from its own previous decision.

ii) English Decision.

East African courts were not structurally connected to the courts in England. Therefore,
under strict doctrine of precedent, English decisions were not binding East African
Courts. However, such decisions influenced East African Courts because:

 The National Origin and training of the judicial and legal personnel in East
Africa was English.

 The reception of English Common Law and doctrines of equity formed the
basis of the legal system in East Africa.

A. General Reception.

By virtue of the reception clause in the orders in council of the three East Africa
countries, the Supreme Courts and Subordinate Courts were required to
administer justice according to principles of English law. By virtue of the
reception clause, the courts in East Africa were allowed to look to the law as
developed by the Courts of England.

Before Independence.

In Tanganyika, the Common Law, Doctrines of Equity and Statute of General Application

as applied in England on the 22nd July, 1920 were received into the territory. The issue
was whether binding doctrines were those decided after or before the Reception Clause?
In the case of Kiriri Cotton Co. Ltd v. Dawani [1958] E.A 239 , O’Connor, P was of the view
that, established decisions on the Common Law or Doctrines of Equity of Superior
Courts given before the Reception date were binding. An established decision was:

 A single decision of the English High Court of Appeal or the House of

Lords, standing unreserved at the Reception Date, unless overruled by a
decision subsequent to that date.

 A Single decision of the English High Court, not binding, unless approved
by an Appellate Court or generally accepted as correct by English Courts.

 A post reception decision disestablishing pre-reception cases.

NB: However, in practice the E.A.C.A never paid attention to the Reception Date
when applying English decisions.
After Independence.

English decisions given after independence were no longer binding on East

African Courts per Spry, J.A in the Rashid Moledina case (supra).

B. Special Reception.

A special reception is a reception of specific aspects of English law in provisions

in a number of local laws. Special reception provisions are of two types:

 Those specifying the law as it stood at a Specific Date, (subsequent or after

the date of General Reception), e.g. The Tanganyika (Law of Property and
Conveyance) Ordinance, Cap. 114 of the Laws of Tanganyika (now
repealed) which provided for the application of the law reacting to real and
personal property, mortgagor and mortgagee, Landlord and Tenant in force
in England on the 1st July, 1920.

NB: It was arguable that pre 1922 English decisions were binding and post 1922
decisions were not binding but merely persuasive.

 Those that mention no date, the classic example often quoted is the
Ugandan Contract Act, 1964 which under section 3(1) provided for the
application of English contract law as modified by doctrines of equity and
General Statutes in England on the 11 th August, 1902 and specified recent
statutes. In effect, Ugandan courts were compelled to keep abreast with
developments in the English law of contract as per the case of Jupiter
General Insurance Co. v. Kasanda Cotton Co. [1966] E.A 252.

After Independence.

No decision of any English Court or any Foreign Court was binding on the
E.A.C.A perNewbold, VP Dodhia’s Case.

Decisions on Statutes in pari materia.

Statutes in pari materia were model statutes in force in East Africa during the British
period derived either from England or through India. In the interpretation of such
statutes in East Africa, regard was to be had to the interpretation given of those
statutes in the country of origin or other countries with similar statutes.

Before the Independence.

English decisions in the interpretation of local statutes in pari materia. The first
view was that such decisions were binding on East Africa, regard was to be heard

to local conditions. Such interpretation were aimed at preserving the unity of

English law throughout the Empire.

After Independence.
There were two views in relation to English decisions interpreting statutes in pari
material.

 Binding.
The first view was that such decisions were binding as per Spry, JA in Rashid
Moledina case (supra) where the matter involved the interpretation of the
Arbitration Act of Kenya that was derived from the English Arbitration Act, 1889.
He stated that respect should be given to the English decisions on the Act as the
Kenya Act was passed with knowledge of those English decisions.

 Not Binding.

The other view was that such decisions were not binding. In the case of National
and Grindlays Bank v. Vallabhji [1966] E.A 186, the Court of Appeal in interpreting a
Kenya Act of 1930 which was in pari materia with a New Zealand Act of 1924 state
that, “it was unsafe to assume that when the Kenyan Act of 1930 was originally
made, it intended to import into Kenya the case law of New Zealand. Such
decisions from the country of origin are only important authorities and no more.

DECISIONS OF THE EASTERN AFRICA COURT OF APPEAL.

Before Abolition of Appeals to the Privy Council.

The E.A.C.A was modeled on the English Court of Appeal and followed the rules
of precedent as contained in the case of Youngv. Bristol Aeroplane case (supra).
The general rule was that the Court of Appeal was bound by its own previous
decisions except:

 Where there prior conflict decisions, the court was to choose which to follow.

 It was not bound to follow a decision of its own if it could not stand with
the decision of the Privy Council.

 It was not bound to follow a decision of its own if it was given per incuriam.

After Abolition of Appealsto the Privy Council.

In the case of Dodhia v. National and Grindlays Bank Ltd [1970] E.A 195 , Newbold, VP was
of the view that the E.A.C.A had worn the shoes of the Privy Council. Therefore, it being
the final court of appeal, it was free to depart from its previous decisions where it
appeared right to do so. After the collapse of the East African Community in 1977, an ad
hoc East African Court of Appeal was established and it operated until 1979.

THE COURT OF APPEAL OF TANZANIA.

The Court was established in 1979 by the Appellate Jurisdiction Act, 1979. In 1984, the
Constitution of the United Republic of Tanzania, 1977 was amended to make provisions
for the establishment of the Court of Appeal of Tanzania. It is the Final Court of Appeal
and it hears all appeals from Tanzania mainland and Zanzibar except:

 Islamic matters (appeals from Zanzibar on Islamic matters end in the High
Court of Zanzibar).

 Disputes between the government of Mainland Tanzania and the Revolutionary

Government of Zanzibar on the interpretation of the Union Constitution. (a
Special Constitutional Court is established under Article 126).

The Court of Appeal is not bound to follow its own previous decisions and can depart
from them when it appears right to do so, per Nyalali, CJ (as he then was) in the case of

Jumuiya ya Wafanyakazi Tanzania (JUWATA) v. Kiwanda cha Uchapishaji (KIUTA) [1988]

TLR 146 (C.A), in which the Court of Appeal overruled its own previous decision in the
case of Zambia Tanzania Road Services Ltd v. J.K Pallangyo, Civil Appeal no. 9/1982
(unreported) which was given per incuriam. In JUWATA case, it was stated that:

 All courts and tribunals below the Court of Appeal are bound by decisions
of the Court of Appeal regardless of their correctness.

 The Court of Appealshould be free in both Civil and Criminal Cases to

depart from such decisions when it appears right to do so.

 The Court of Appeal is not bound to follow a decision of its own given pre
incuriam.

CHAPTER SEVEN.

STATUTORY INTERPRETATION.

Meaning of Statutory Interpretation.

This is the process by which the courts determined the meaning of a stating
provision for the purpose of applying to the statute before it, sometimes known
as Statutory Construction. Interpretation will depend on customs and usage and
interpretation is general problem of the communication.

The term “Construction” includes two things;

 The meaning of the words is always the matter of facts.

 The legal effect of the meaning is matter of question of law.

Questions of Interpretation are divided into two broad categories:

 Questions that arise from the terms of the statutes alone. Sometimes even
before the question arise, the statute may have inherent due to
grammatical errors or some ambiguous words.
  Those questions which arise from the application of a statutes to a
particular set of facts. This will arise where there is a dispute before a court
as to how the provisions apply dispute before a court.

WHY SHOULD WE HAVE INTERPRETATION.

a) Complexity of legal documents which brings about ambiguity.

Legal document are normally drafted using a mixture of ordinary language and
technical jargons and they are normally drafted by more than one person.

b) Legal documents speak for the speak and future.

People who draft legislation known as draftsmen, they try to think all eventualities
and drafts very complex legislation. They cover all eventualities and drafting complex
documents. Later on drafts may leads to words which have confusion and become

redundancies.

c) Singular words of legal documents to reflect solution to problems and

conflict interest.

To draft a contract to protect or benefit the clients or some may amend so

everyone wants to come with their own interest or conflicting interests and
therefore drafting become confusion.

INTENTION OF THE PARLIAMENT.

This is a phrase that is often used but it is difficult to define. Courts in interpreting
statutes normally say they are giving effect to the intention of the parliament.

In as much as the phrase is used whenever courts establish the intention of the
parliament in a statute, the intention must determine in the words used in the statute
and the test to be applied is objective (not based on personal interest) and not
subjective (personal interest). As it was stated in the case of R v. Secretary for the
state for Environment Transport & Royal & Another, Exp. Spath Home Ltd [2000] 2 AC
349, the court held that intention of parliament is an objective and not subjective
of the Minister in draftsmen or majority of the Members of the parliament who
voted for the Act.

NB: Intention of parliament regarding to particular statutes cannot mean intention

of all members of which parliament when the Act is passed, likewise it cannot be
intention of the majority who vote for the statute, again not all who voted for the
Act had the intention.

Why is the notion of Intention of Parliament still retained?

a) It expresses subordinate of the judiciary to the parliament (supreme of the

parliament of making laws).

It reminds the Judge deals with statutes that operated with the statutes in the field of law
in which they are free to define public policy simply according to their own judgment, the
court simply to get instruction from parliament. As it was stated in the case of
Heydon’scase, it was held that, the duty of the court is to interpret the words that
the legislature has been used.

b) Desire of the Judiciary to discover large create role in the interpretation of

statutes.
In the case of Magor & St. Mellons v. Newport Corporation [1950] 2 All E.R 1266 , The
Court of Appeal agreed with Lord Denning was of the view that, the Judge has the
duty to find the intention of parliament and in doing so Judge could “fill the gap”
as appeal to the House of Lords, Lord Denning attempt of fill in the gap was
strongly rebuked and termed as naked usurpation/takeover of the legislative
function under the thin [Link], the words may be ambiguous but
the court are strictly limited and if the court discovered the intention of
parliament and of Ministers too, must proceed to fill in the gaps.

PRINCIPLE OF STATUTORY INTERPRETATION.

There are two types of interpretation;

 Strictly Interpretation.
  Liberal Interpretation.

a) Strictly Interpretation.

The interpreter consider what the legislature was thinking when making a particular law.
The interpreter gives the statutory provision in exactly meaning which literally appear to
be intended by the legislature without change. In the case of Augustino v. Republic [1991]
TLR no, 97, the court held that, the Judge gave the section a strictly interpretation saying
that because there is no amendment to the Minimum Sentence Act, then its provision
had to be interpretation of section 172(2)(c) of 1985 was that; the period of remand
custody shall be considered together with other mitigating factor.

b) Liberal Interpretation.

In Liberal Interpretation this attributes to the legislature done necessary reflect

was really entertain at the time the law was made and it was divided into two;

 Extensive Liberal Interpretation, a provision (section) is extended to a case

which is not covered by liberal meaning of the statute, meaning is extended
to accommodate other factual situation.

 Restrictive Liberal Interpretation, a provision is not applied to a case falling

within it

CANONS OF STATUTORY INTERPRETATION.

Inherent technical nature of statutory interpretation made it necessary for Judges

to develop various canons or rules of statutory interpretation. Among the basic
canons of statutory interpretation include literal rule, golden rule and mischief
rule, each having distinctive salient feature.

1. LITERAL RULE.

This rule is geared/mechanisms to obtain clear meaning of the language of the

statute. In the literal rule words of statute should be given their ordinary meaning.
The court should interpret the words according to the literal or plain meaning
regardless of whether the result is sensible or not. Lord Esher in R v. Judge of the
City of London Court [1982] 1 QB at 290 , said that, “If the words of an acts are clear you
must follow them even though they lead to manifest absurdity/ambiguity. The court has
nothing to do with the question whether the legislature commits absurdity .”

Do wordshave always have plain meaning?

No, and words are capable of having more than a single meaning. Meaning of words
may not be identified in isolation but rather by reference to the context in which they
are used. In the case ofWhitely v. Chappel (1868) L.R 4 QB 147, the court said that:

 The Judge may read-in words which he considers being necessary implied by
words which are already in the statute. However, he has a limited power to add or

to change or ignore statutory words.

 In applying the above rule, the Judge may resort to the aid to construction
and presumption.

a) Context rule.
A statute must be construed in its context and the statute as to be read as a
whole. Words or phases of a doubtful meaning may be better understood by
looking at the context in which they are used. In applying the context rule, the
latin maxim of “noscitor ascociis” by this phrase words are known by their
association when one has to establish the meaning of the words one has to look on
the surrounding words and phrases.

In the case of Muir v. Keay [1875], it was stated that words of a doubtful meaning
may be better understood from the nature of words and phrases from words of
surrounding and they are associated with. One has to look on how the same words
is used in the provision and the whole Act, one may also look on how words is used
in other legislation on the same subject matter.

b) Express direction on Interpretation of statutes.

These are statutes of General Application what known as Interpretation of Laws Act
defines different words in a statute, by then/previous it was called Interpretation of Laws
and General Clause Act of 1972 but now is called The Interpretation of Laws Act, 2002. In
the case of Sheikh Mohammed Nassoro Abdallah v. R.P.C of Dar es salaam and Two others
(1985) T.L.R no.1, the applicant a religious leader was arrested in this house in Mabibo
Dar es salaam in 1993. He was taken to Police Custody and his family did not know he
was. They applied for application of Habeus Corpus to be brought. In the Deportation
Ordinance provided that it was an offence to imprison any person entitled to vote at a
election, the defendant had imprisoned a person who has already dead. The issue was
whether dead men entitled to vote. The court held that dead men are not entitled to
vote and therefore not guilty.

Criticism of the Literal Rule.

 It based on false assumption that words have plain ordinary meaning apart
from their context.

 Those who apply the literal approach talk of using dictionary meaning of
words in question but dictionary provide a number of alternative meaning.

 Plain meaning approach cannot be used for general words which are
capable of bearing several meaning.

Why Literalism?

One view was that court adhere to literalism because of the basic constitution
supremacy such as legislative supremacy, separation of power and rule of law.

2. GOLDEN RULE.

According to the Golden Rule, the court is supposed to follow the literal approach
unless it produces absurdity in which case it should find some other meaning. In
the case of Grey v. Pearson [1867] Vol. 6 HLC p. 61 , Parke B. said that, in
construing a statute the grammatical in ordinary sense, the words has to be
followed. It is only when the literal approach produces absurdity or repugnancy
or inconsistency that the Golden rule will come into plain and the purpose of a
Golden rule is to avoid absurdity and inconsistency.

The Golden rule is not much better than the literal rule as it entails the Judge to
follow the literal rule unless it result into absurdity in which case a Judge has to
find another solution.

Reason for Golden Rule.

Golden rule is usually when the plain meaning defeats the legislative intent. Among the
reasons for opting this rule includes absurdity, unreasonableness and variance with the
legislative policy. This rule requires the court to go beyond the plain meaning of
words. For example in one occasion the Dean of the Faculty told students to wear
any clothes of their choice during a public talk led by the Chief Justice of Tanzania.
Literary “any clothes” would mean even underpants or night dress. However in this
context the phrase must be construed any decent clothes suited to the occasion.

3. MISCHIEF RULE.

It also known as a Rule in Heydon’s case (1584) 3 Co. Rep. 7a, and according to this
rule four questions must be considered in interpreting a statute.

 What was the Common Law before the making of the Act?

 What was the mischief and defect for which the Common Law did not provide?

 What remedy has the parliament resolved and appointed to secure the
disease of the Common Law?

 What is the true reason of the remedy?

Statute are always to make such interpretation as shall suppress the mischief and
advance the remedy.

NB: With mischief rule, a Judge will not confine himself on the label or what the
statute expressly because the legislative intent lies on the mischief and not the
actual label. However, the court may not adopt such rule when dealing with
subsidiary legislation. In respect to subsidiary legislation the court will always
interpret the wording strictly without paying attention on the underlying mischief.
Perhaps this lies on the logic that in subsidiary legislation the maker is assumed
to have had sufficient opportunity to feed all the details.

What was the spirit of the law. In interpreting the statutes in addition to the rules
use other approaches to the interpretation of statute this include Internal Aids of
Construction, External Aids of Construction, logical Aids to construction and
presumption to the interpretation.

INTERNAL AIDS TO CONSTRUCTION.

This refers to matters that are found within the statute itself. For example, long
title, short title, marginal notes, schedule, preambles, and punctuation.

 Preambles.

These are normally contained in olden statutes and normally sets out the reasons
for the statutes and statutory interpretation. It is that general principle that the
preamble is not part of the statute. However, in the case of Thabit Ngaka v.
Regional Officer (1973) LRT no. 24, in this case even though preamble do not
consider to the statute, this case played a role in constitution.

 Long title.

This seeks to set out the purpose and objectives of the Act. These are parts of
the statute and may therefore be used as a legitimacy aid to construction of
constitution. The long title will normally shade light on the objective and purpose
of the Act and in applying the Mischief rule, the courts may look at the long title
to determine the defects which the law seeks to cure and give an interpretation
which suppress the Mischief and advances remedies.

 Short title.

These are found at the beginning of the Act. For example, this Act may be cited as Penal
Code or the Law of Contract Act. A short title is part ofa statute and basically short titles
are used for identification and not prescription. They onlysave as a short identifyinglevel
but there is no reason why they should not be used has internal aids to construction.

 Heading.

Acts are normally decided into sections and sections normally have headings and
marginal notes. Headings normally appear before a group of section. Heading form
part of a statutes and they may be considered in interpreting section.

 Marginal Notes.

These are found on the sides of sections and they may also be used as the
Internal Aids to Construction even though they may be used as aids to
construction, they should not restrict the plain meaning of enacting words and
normally summarizes the effect of the section.

 Punctuation.

Before 1850 punctuations in England were not considered to be part of a statutes

because they were inserted after enactment. Now punctuation may be used as a
part of a statutes which nowadays plays an important role.

 Interpretation sections.

The words and phrases are usually into two forms:

 They usually says what the particular words or phrase meaning.

 It normally says what the particular includes. When the Acts used the word
“includes” it indicates that an extension ordinary meaning continue to be used.

 Proviso.

This is qualification of the generality of the main provision and proviso is

frequently not an aid to construction even though the terms of the provision to
which it is a proviso are usually of considerable aid to construction. A proviso
usually begin with words like provided that, notwithstanding and a proviso never
stands alone, they must be a provided section or forms part to the main section.