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LW 123: LEGAL METHOD II
Theories of Adjudication
Modern legal theory is concerned with exploration of inner workings of the
judicial system. suppliers
The Earlier attitude was to regard the judiciary as the priests of the law:
repositories of its ancient rules and traditions; that decisions were distilled in a
mysterious way; that judges never create law but declare fresh applications of
the ancient rules.
In modern days the legal system has been gradually remolded (precedents co
exist with statutes).
According to Hart, Acts of Parliament and judicial decisions have the force of law
because judges, officials and private Citizens recognize that primary rules are to
be identified by reference to a certain Criteria- enactment by legislature makes
law; judicial pronouncements bind other courts in the hierarchy (Refer to Module
V). Rules of precedent are not rules of law but rules of practice, understanding
1
them requires a detailed study of the actual behaviour of the judiciary (to be done
in Topic One).
Common Law
The Common Law system is a customary system of law, consisting of a body of
practices observed and ideas received by a caste of lawyers (judges, advocates,
solicitors).
Institutions of Adjudication
The role of the judges represents an entire Institutional nexus of conduct. The
role of a judge stands in relationship to other roles, the totality which comprises
the institutions of law. An understanding of the judicial process requires
cognition of this Institutional nexus of conduct.
Every institution embodies some degree of consensus about how it is to operate.
There are a number of shared expectations, which define the role of the judge.
Judges are part of the legal order, part of a society in which human conduct is
governed by rules. Judges are instituted as one of the ways in which society
resolves conflict.
The paradigm (theoretical framework) of a rational decision is one reached
according to rules, principles or standards (Dworkin).
Adjudication according to rules means that an ad hoc decision-making process is
deprecated. It points that a judge must conform to established rules (formalism).
This does not mean that the judge has the largely mechanical job of mere
application of an existing rule to a new state of facts.
Behind the demand that adjudication according to rules is a rational process of
decision-making, lies in a belief in formal justice that is satisfied by giving like
cases like treatment.
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bloodless category but by a living organism which contains within itself value
choices.
The judge must choose and in doing so he makes law, but his choice is too
limited. To understand why adjudication according to rules is posited as an Ideal
to which judges should conform, one must understand the role that litigants and
their advisors perform in the judicial process (Ref. Module Three). The
adjudicative process is one of constant interaction between judges, the legal
profession, litigants and the wider public. It would collapse if the volume of
business were not kept within manageable proportions.
it confers on the litigants’ advisers the ability to settle a case out of Court;
[ADR= Alternative Dispute Resolution: Reconciliation mediation and
Arbitration playing on important role]
3
Juscticiability
A dispute may be justiciable when there are at least principles acceptable
to lawyers or a high degree of consensus among society as to the proper
goals to be pursued or standards against which a judge can reason.
In National Bank of Greece v Methiss [1958] AC 509, 525 Viscount
Simonds said:
---in the end and in the absence of authority binding this House,
the question is simply; What does justice demand in such a
case?--------if I have to base my opinion on any principle, I would
venture to say it was the principle of natural justice*
Courts have evolved their own rules of evidence to ensure that fair trial
takes place i.e. when a jury in a criminal case sits, the judge will inevitably
tell its members that it is the judges job to interpreter the law and that it is
the juror’s job to decide upon facts.
4
Natural justice and Judicial Review Lord Denning (as he then was) in RV
Secretary of State for Home Department expert Santillo (1981) said that;
the rules of natural justice or of fairness, were not cut and dried.
They varied infinitely. What should also be emphasized is that,
strictly speaking, natural justice is not so much a source of law as a
collection of procedural rules by which legal rules themselves may
be considered and applied. In that way, we may refer to rules
about rules. In practice, however, an important set of procedures
becomes almost a source of law itself, and in this respect it is
convenient to consider natural justice at this stage, side by side
with the ‘true’ source of law.
*No man can be a judge in his own cause. The right to be heard and defend
oneself A man cannot be punished twice for the same offence.
audi altem partem (hear the other side, each party to a dispute must
be given a fair hearing).
5
disappointed bidder offered the purchaser another Shs. 100,000/= for the
vehicle; the purchaser accepted the offer. The second purchaser who
unlike the original seller at auction, the proprietor of a s mall garage, had
no special knowledge of cars, drove the Reliant Car away and was killed a
few days later in an accident. His passenger, who now brought the action
against the garage owner, Mr. Mikono, was permanently maimed.
The trial judge, Mr. Maneno awarded the passenger, Shs. 1,146,000, but
the Full Bench of the High Court reversed the decision. The Court of
Appeal to held, too that the seller was not legally obliged to warn the
second purchaser of cars dangerously defective state.
Were moral, ethical or religious considerations entirely separate issue?
How would you argue the case? [Hurley v Dyke (1979) RTR 265]
Note:
Religion tries to account for the reality of the world as we see it linked to a
spiritual world, that link may be sysmbolized by ritual and practices which
go far beyond the mere wearing of robes and wigs by Barristers and
judges. Compliance may be more difficult to enforce in religion.
Morality is a close relation but can be a generalized behaviour. It is a
system for right living that is frequently shared by an entire community. It
sounds like a legal system, but it is much wider in application, particularly
if morality is seen not as much as a community based system of an
individual code in short a person’s conscience.
Morality and law clash most frequently in the area of sexual mores.
Crime, sin and the law can appear to become hopelessly entangled.
Society requires certain moral principles to be observed, even if public
opinion was slowly changing, the breach of those principles, in the mean
time was still an offence against society as a whole and not merely against
the injured party.
There must be a clearer separation of law and private morality, morality in
the sense that it is a matte of private judgement.
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[See Paul Denham’s, Law: A Modern Intruduction, 4th Edn Hodder &
Stonghtoro, 1999 pp 6-37; Dr. AvterSingh, Introduction to Jurisprudence,
Repr. Ed. 2005 pp 104-111], see also The Sexual Offences Special
Provisions Act. The Penal Code Cap 16 offences of Murder.
7
Universal sense of justice: All men have to be properly treated in
like circumstances (Llewellyn). Reliance not upsetting
expectations a value that courts should take into account.
Note: Our courts follow positivistic thinking about law and its sources,
and this may bear out our sense of judicial practice.
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Simple Cases and Hard Cases
(a) Simple Case is a case in which the facts (material facts) exactly answer to
the requirements of a rule of law. The rule of law becomes the major
premise, the facts the minor premise and the conclusion is reached by
using a Syllogism. Cases decided on the above are said to have been
decided through formalism. [The Judgment of Kyando & Ihema JJ in
Ndyanabo’s Case]
Hard Cases
A ‘hard case’ is one where the rules of law are clear, but the result
they require is hard or harsh.
For example (a) in the Case of Hutchison (1988:23):
In 1987 a swimming meet took place at the University of
Toronto. Most of the races proceeded as planned. But, at
the end of the race, there was a challenge to the winner of
the race.
The appropriate group of officials convened. The
deliberations were lengthy and tense. After much argument
and posing over the rules, a decision was announced: the
Winner had been disqualified and the second winner
acclaimed as Victor.
The referee offered a brief justification of the Committee’s
decision- The rules were clear- The Winner is the first
Swimmer to touch the side of the pool with both hands; and
if this regrettable outcome is to be avoided in the future, it
will be necessary to change the rules: The Winning
Swimmer had only one arm. [Hard cases make bad Law.]
9
Act, 1990 the government (Britain) licensed research using
embryos created in Vitro.
Since the passing of the Act a new method of creating such
embryos was developed, embryos, which could only be
included in the statutory definition of embryos as the Court
acknowledged, by straining the statutory language. The
prospects of leaving the creation of embryos and research
of such embryos completely unregulated was so appealing
to the court that they regarded the purposive interpretation
of statutes to be legitimate even though it would involve a
gymnastic interpretation effort. See Appendix I
10
Material Facts (relevant facts related to law-and the relationship of
the litigants- the complaint or accusation before the Court)
Holding (refer to “in whose favour the court decides – whether the
plaintiff or the defendant, the accused or the prosecution. It is
found at the end of the judgement------“we dismiss the
appeal------“.
Order of the court (in relation to the claim i.e. property or person if
in custory etc).
For more details read Mukoyogo Legal Method I page 87-94; see also C.S. Binamungu &
M.C. Mukoyogo, Studying Law Skills, Mzumbe Book Project, 2005pp 107-128
11
Stare decisis requires that courts or judges are bound by their previous decisions in cases
where material facts are the same. It is a doctrine which looks for certainty, uniformity
ascertainability in the law, while allowing some flexibility. Flexibility is realized through
the doctrine of precedent which not only operates within the hierarchical manner of
courts (see Module V) but also gives ability to courts to develop new rules or discover
them in the course of making decisions in situations which may appear novel or different
from those previously considered.
For example in case (a) The court may find that facts ABC (reckless driving, defective
brakes, and a pedestrian who was drunk) relevant in apportioning the extent of liability in
a rundown case. It may find that the driver was liable to the extent of 65% and the
pedestrian (injured party) liable for 35% negligence. The amount of damages payable by
the driver (or whoever is liable to pay) will take into consideration the extent of liability
involved on his part. This might be a precedent case in future.
In Case (b) the Court may find that facts A,B and C (reckless driver, defective brakes and
slippery road) present but further find that C (pedestrian was driving on the right side of
the road and not in a drunken state of mind). The latter fact situation may lead a court to
say that the facts in case (a) are distinguishable from those in case (b) and therefore
further that case (a) is not entirely precedent or authoritative case in deciding case (b) or
if the court chose to use the authority of case (a) then it must further say that the driver of
the lorry will have to bear an entire blame in the accident as opposed to what happened in
case (a).
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Restrictive Distinuishing cuts down the express ratio decidendi of the earlier case by
treating as material facts to the earlier decision some fact, present in the earlier case,
which the earlier Court regarded immaterial, or by introducing a qualification (exception)
into the rule stated by the earlier court.
This manner of distinguishing is said to play a very important role in legal argument.
Common Law: According to Glanville Williams, Learning the Law, 11th Edn. London,
Stevens & sons 1982 Ch.2 Common Law originally meant the law of England that was
not local, that is the law that was common to the whole of England. The phrase may also
signify the law that is not a result of Parliament [legislature] but that which was created
by the customs of the people and the decisions of the courts (judges). It can also mean
that law which is not equity (the law developed by the Courts of Chancery). Common
law may also mean statutory modifications of the common law. Lastly it may mean that
law which is not foreign, in other words, the law of England when compared to the law of
America, Canada or any other Country.
Facts/Material Facts of a case: What is the difference between facts (as they exist
in life) and material facts (in the legal sense)? The term facts refers to normal facts of
life. For example in a normal happening like a car or vehicle accident which may cause
injury to another person, the following may be categorized as facts: the driver of the car
or lorry may be described to have been tall, with a long beared, dressed in a blue shirt,
brown jacket and white trousers. The same driver may be described to have been driving
fast a vehicle which had defective brakes, at the time of driving it was raining and the
road was slippery. The injured person may bear the description that he was riding on a
bicycle, on the right side of the road, dressed in a White Kanzu and was also drunk.
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All what I have stated may constitute facts but for the purposes of the law of negligence
the following facts may be categorized as legally relevant or material facts: the fact that
the driver of the car or lorry was driving fast, that the car or lorry or vehicle had defective
brakes, and on the part of the injured person, the fact that he was riding on a bicycle
while in a drunken state.
It will be noted that the manner material facts are sorted out of a mass of facts to
constitute material facts has given rise so some controversy which will be dealt with later.
[Read: Dr Avtar Singh, Introduction to Jurisprudence Repr. Edn 2005 pp 88 – 91]
Issue(s) What is an issue or issue? The concept issue(s) refers to the point(s) in dispute
and the question or questions which the court is called upon to answer in the course of
hearing the matter and making a decision in the course of the judgement. The answer to
the question(s) by the court (judge) leads towards the determination of the rule of the case
or ration decidendi and other statements of the law by the way (obiter dicta or dictum)
which may be of use to the future courts.
Holding: What is a holding in a given case? A holding in a given case refers to the
actual decision of the court i.e. in whose favour the matter is actually decided. It may be
in favour of the defendant or the plaintiff. It is the holding which then helps the reader of
the case or future court looking at a precedent case in point, to determine the rule(s) of
the case ratio decidendi of rationes decidendi. It is always found at the end of a
judgement. It takes the expression of “Rule discharged,” “Order accordingly”, dismiss
the application with costs”, the appeal allowed”, the appeal must succeed”, “Appeal
dismissed” and the like, Once one is able to find such a conclusion or holding, it should
be easy to extract the rule of the case (Ratio decidendi).
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decision is founded. Finding the ratio decidendi of a case is an important part of the
training of a lawyer. There is a relationship between material facts, issues, holding and
the ration decidendi. Determining the ratio decidendi of a case is not a mechanical
process but an art that one gradually acquires through study and practice [Glanville
Williams, Learning the Law, London Steven and sons 1992 ch.6]
As you might have noted in the above passage the concept of ratio decidendi refers to that
part of the case that is said to possess authority. It constitutes the reason for the decision
as well as the rule of the case.
It must be emphasized that for you to appreciate how to extract the ratio decidendi of the
case, you will have to constantly keep reading the whole case yourself and not to depend
on the notes prepared either by your teacher or fellow student or the head note of a case
(if that case has been reported in a Law Report).
Obiter Dicta: Obiter dicta or dictum is a mere saying by the way, a chance remark in the
course of the judgement or decision by the court (judge(s) which is not binding upon
future courts. Such a statement, chance remark or proposition may be respected by a
future court or judge depending on the reputation of the judge or the eminence of the
court and the circumstances under which it was announced.
Obiter dicta is a rule of law stated merely by the way, of analogy or illustration or
suggestion of a rule upon which the decision is not finally rested. It is not regarded as
binding because it may have been made without full consideration of the cases in point, it
may have been made without full consideration of all the consequences that may follow
from it.
It is a rule of law based on hypothetical facts. A judge in the course judgement may say:
“I decide for the defendant, but if the facts had been properly pleaded, then should I have
decided in favour of the plaintiff”.
Other examples of Obiter Dicta can be found in the following cases:
Per Brett MR. in Heaven V Pender [1883] 11QBD508
Per Lord Esher (Former Brett, MR) in Lelievre V Gould [1893] 1QB491
Kiriri Cotton V Dewani, [1960] EA 188
15
R.F. Mboya V Mewa Singh Mangaat [1969] HCD no 1
Lord Atkin in Donoghne V Stevenson [1932] AC562 at 580 where he attempted
to lay down a general test for determining when a notional duty of care arises in
the tort of negligence. His dictum has become known as the neighbour test’ and
was expressed in these words:
You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour. Who, then, in law is
Add my neighbour? The answer seems to be emphasis persons who are so closely
and directly affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind to acts or
omissions which are called in question.
This dictum, though clearly obiter, has been quoted in subsequent cases Home Offices
Dorset Yatch Co Ltd [1970] AC 1004 (HL) Lord Reid.
[see T. Ingman, The English Legal Process 8th Edn. Blackstone Publishers 2000 p 327;
Dr. Avter Sing, Introduction to Jurisprudence, Repr.Edn.2005 pp179-180] Hierarchy of
Courts (see Module V)
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also alike in another respect, D, in which they have not been observed to resemble one
another…..
It will be apparent at once that an argument by analogy is never conclusive.
A classical statement made by Professor Edward Levi:
The basic pattern of legal reasoning is reasoning by example. It is
reasoning from case to case. It is a three-step process described by the
doctrine of precedent in which a proposition descriptive of the first case is
made applicable to the second case…The finding of similarly or difference
is the key step in the legal process”.
Twining & Miers 1992 pp260-261 suggest that such a description is an over
simplification of the part played by reasoning by analogy or example in legal reasoning.
But they encourage readers to read Professor Levi’s proposition because it is important in
interpretation especially for its explicit account of the manner in which common law
concepts and doctrines quietly adapt to new situations and changing needs in the process
of application in that “the rules change as the rules are applied.
Inductive Reasoning (see also Module IV) What is meant by Inductive reasoning?
According to Twining & Mers Ibid 259-260:
Typically, inductive reasoning is reasoning from particular to general, but the
term may be used in a broader sense to encompass all kinds of reasoning in which
the premises, support but do not compel, the conclusion. The following are
examples of inductive reasoning:
In case A elements a, b, c, d and e were present and the plaintiff succeeds. In case
C elements a, b, c, d, and e were present and the plaintiff succeeds.
Conclusion: in all cases in which element a, b, c, d, and e are present the plaintiff
should succeed.a
Such type of reasoning will be noted when reading the case of Heaven V Penda, [1883]
llQBD 503 especially the decision of Brett, MR.
According to Twining & Miers inductive reasoning is concerned with probabilities, and
in normative contexts it is more accurate to talk of the relative streangth or cogency of
(inconclusive) reasons (lbid: 260). It is possible to develop new rules through inductive
reasoning.
17
Read also Irvin C Rutter “A Jurisprudence of Lawyers’ Operation” in Vol.13 Journal of
Legal Education (1960-61) pp 301-306 (a diagrammatic representation will be given after
discussing Deductive Reasoning) [Extract in the Library- As the Librarian to access it.]
Deductive Reasoning (see Module IV) What is deductive Reasoning? Again according
to Twining & Miers lbid deductive reasoning moves from general to particular. It
involves the use of Syllogisms;
1. Major Premise Whosoever being married and who shall go through a form
and ceremony of marriage recognized by law, ought to be convicted of the
offence of bigamy.
Minor Premise Allen being married, went through a form and ceremony of
marriage recognized by law.
Conclusion: Allen ought to be convicted of the offence of bigamy.
Also Read: Binamungu & Mukoyogo, Studying Law Skills, Mzumbe Book
Project 2005 pp 119- 128
Wealth
18
Asset
Bessie- COW1
Cf. Irvin C Rutter, “A Jurisprudence of Lawyers’ Operations” Vol –13 Journal of Legal
Education (1960 – 61) pp 301 – 306
19
We should pause before we made a precedent by our decision which would be
authority for an action against the vendors, even of such instruments and articles
as are dangerous in themselves, at the suit of any person whomsoever into whose
hands they might happen to pass, and who should be injured thereby.
20
who is my neighbour? Receives a restricted reply. You must take reasonable
care to avoid acts or omissions, which you can reasonably foresee, would be
likely to injure your neighbour.
Lord Wilberforce having referred to Lord Atkin’s neighbour principle in M’Alister (or
Donoghue V Stevenson [1932] AC562 continued:
This is saying that foreseability must be accompanied and limited by the law’s
judgement as to persons who ought, according to its standards of value or justice
to have been in contemplation. Foreseability, which involves a hypothetical
person, looking with his sight at an event which has occurred, is a formular
adopted by English law, not merely for defining, but also for limiting the person
to whom the duty may be owed, and the consequences for which an actor may be
held responsible.
…foresee ability does not of itself, and automatically, lead to duty of care…
By using the judicial hunch judges are able to foresee the results of the case before them
and the meaning to be desired from a precedent case or statute. The judges are able to
see the results in respect of the litigants and the decision must be made in accordance
with the class of cases and has to be consistent with the whole system. Judges must be
seen as sensitive indicators of social change by either registering such changes in their
decisions or by moulding an existing rule to suit a new situation. While on the one hand
a judge is moulded by the values he shares with other members of the community, on the
other hand, he acts as a custodian of those values. The judges and the court system as a
whole must endeavour to meet the expectations of the community in general as well as in
a specific manner. The judgement must reflect the sense of justice as understood by a
broad base of the community.
Judicial justification, therefore, becomes the criteria for a judges’ method of a decision.
Read the following cases to better understand the concepts of judicial hunch or
predisposition.
Bi Hawa Mohamed V ali Sefu, [1983] TLR [Nyalali CJ Cash then was]
Francis Ngaire V NIC [1972] HCDn 134, [1973] EA56 Biron J.
AG V Lesnoi Ndeinaialias Joseph Saleyo Laizer & Two others [1980] TLR 619.
21
Laiton Kigara V Musa Bariti [1975] LRT no.40
Legal Positivism: What is meant by the term Legal Positivism? Legal Positivism (as
opposed to Natural law) is the view that regards law as being that which is decreed,
irrespective of its content, in particular irrespective of its moral goodness or badness.
This position was laid down by the fathers of Positivism in Britain namely Jeremy
Bentham (1748-1832) and John Austin (1790- 1859). For the purposes of our study this
stand point will be exemplified by such statements made by the courts or judges:
We think this action may be supported without laying down a principle which
would lead to that indefinite extent of liability…………we should pause before
we made a precedent by our decision which would be an authority from auction
from vendors, even if such instruments and articles are dangerous in themselves at
the suit of a person into whose hands they might happen to pass and who should
be injured thereby.
Per Parke B in Langridge V Levy [1837] 2w519
[
I am clearly of the opinion that the defendant is entitled to our judgement. We
ought not to permit a doubt to rest on this subject, for our doing so, might be the
means of letting in upon an infinity of actions.
Per Lord Abinger C.B. in Winterbottom V Wright 10 M & W 109
Lord Esher, MR (former BrettMR) in Lelierre V Gould (1893) stated inter alia
Liability for negligence cannot arise at all until it is established that the man who
has been negligent owes some duty to the person who seeks to make him liable
for negligence. What duty is there where there is no relation between the parties
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by contract? A man is entitled to be as negligent as he pleases towards the whole
world if he owes tham no duty of care.
Bowen, L. J. in the same case stated. We have not to consider what the law might
be, but what it is.
3. The Ratio in Theory and Practice: Debate on How to Determine The Ratio
Decidendi of the case
To date there is no agreement on how to determine the ratio decidendi of the case.
To show the variation of opinion we shall examine the views of eminent
lawyers/jurists: Karl Llewellyn (American), Professor Goodhart (English), Prof.
Julius Stone (Australian), Prof. W Twining & David Miers and Prof. W Twining
(both Englishmen).
(a) Karl Llewellyn in The Brumble Bush, Oceana Edn. 1951pp 45-49, 66-69
argued that the ratio decidendi of the case is the rule the Court tells you is the
rule of the case. It is based on the ground upon which the court has reached
its decision. It can be narrow or broad.
What you must look for whet reading the case in order to extract its ratio
decidendi is to read the actual judgement in the light of the holding on the
point of law and fact or both (which was before the court). The basis of the
jdgement are the material facts, issues (the actual dispute to be resolved)
based on or limited by the form or procedure.
What are the facts? Those facts, which have a legal bearing, and those which
must be categorized (i.e. a motor car or motor vehicle) to represent a wider
abstract category of facts. No case exists in isolation. It is important for you
to acknowledge the importance of other cases.
This is important because the function of the case system is that no case can
ever have a meaning by itself. Its meaning is obtained from the background
of other cases. The aspect in which they are similar leads to what is legally
relevant and to operate alike or to operate at all upon the court. The state of
the facts, it must be noted, are rarely quite alike.
23
Thus the doctrine of precedent is Janus-faced.
24
In a case where there is more than one opinion i.e. Heaven V Pender or Donoghue V
Stevenson, the principle of the case is limited to a sum total of all facts held to be
material by the various judges.
For example in Heaven V Pender Brett MR. treated as material facts:
The defendant supplied rope for the use of the plaintiff. The defendant must have
known if he thought about it, that the stage would be used immediately by
someone such person as the plaintiff.
But according to Cotton and Bowen LJJ the material fact of the case were that:
The defendant was the owner of the dock and must be taken to have invited the
plaintiff into his premises. The plaintiff was injured due to the dangerous state on
the premises.
Under these circumstances it becomes difficult to generalize what material facts are. We
can safely say what facts were considered material facts by the minority judge and what
the majority judges considered to be the material facts.
The conclusion reached by the judges on the basis of the material facts constitutes the
principle of the case.
(c) Prof. Julius Stone “The Ratio of the Ratio Decidendi” in Vol. 22 Mod. L.R.
(1959) 597 at 603 – 608 maintained that if the ratio of the case is based on the
facts relating to the holding, then in case of Donoghue Stevenson there are
nine facts which can be found and they give rise to many rival ratio decidendi
which correspond to the number of distinguishable facts.
This is so because each of these ‘facts’ are capable of various levels of
generality all embracing “the facts” in question and a precedent and each
yields different results indifferent fact situations. In the case of Donoghue V
Stevenson which was a decision of the House of Lords in 1932 the court
imposed liability on the manufacturer of an opaque bottle of ginger beer
which was found to contain dead snail, for injury (shock and gason enteritis)
to the plaintiff, a Scotch (Woman) widow who drank from the bottle given to
her by one who purchased it from a retailer who in turn purchased it from the
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manufacturer. From the proceeding material facts Prof. Stone extracted nine
different levels of stating material facts:
o The facts as to the agent of harm (dead snails, or any other noxious
physical foreign body or foreign element physical or not or any noxious
element).
o Facts as to the Vehicle of harm (an opaque bottle of ginger beer or any
opaque bottle of beverage or any bottle of beverage or any container of
any commodities for human consumption, or any container of any chattels
for human use) or any chattels whatsoever or anything including land or
building.
26
discoverable by any such party who had the duty to inspect, or not
discoverable by any party who could reasonably be expected by the court
or jury to inspect.
(d) William Twining & David Miers in How To Do Things With Rules 3rd Edn.
Weidenfeld & Micolson London 1991pp 311 – 320 say that the term ratio
decidendi comes into question “when legal advisers, advocates, judges and
experts interprete cases for their particular purposes”. Questions which they
ask themselves include the following:
‘for what rule(s) is the case an authority? or ‘for what proposition(s) of
law can this case be made to stand?
William Twining & David Miers rightly point out that within the traditional
legal theory the rule or proposition of law asserted by the interpreter is called
the ratio decidendi. But within the traditional legal theory (as already
indicated) there is no agreement (consensus) about what is entailed when the
term is used. They quote an extract from Prof Neil Mac Cormic “Why Cases
Have Rationes and what These Are” as follows:-
It is a disputed question whether there is any such a thing as a or the ratio
in a given case; it is disputed whether or not there is a ratio to be found
authoritatively within a given opinion, or whether the so-called ratio is
simply some proposition of law which a later court or courts find it
expedient to ascribe to an earlier decision as the ground of that decision
which may then be used to help to justify some later decision perhaps even
under the guise of its being that which necessitates the granting of the
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given later decision. An extreme version of this view would presumably
be that the ratio of a case is whether it is any time authoritatively said to be
authority for, and thus no one single proposition over time.
William Twining & David Miers identify five usages of the Term ratio decidendi
as found in the Literature:
o The rule(s) of law explicitly stated by the judges as the basis for the
decision, that is, the explicitly answer to question(s) of law in the case;
o The reason(s) explicitly given by the judge for the decision, that is, the
explicit justification for the answer(s) to the question(s) of law in the case;
o The reason(s) implicitly given by the judge for the decision, that is, the
implicit justification for the answer(s) given to the question(s) in the case;
and;
o The rule(s) of law for which a case is made to stand or is cited as authority
by a subsequent interpreter, that is, the imputed answer(s) to question(s) of
law in that case [pp331-332]
No mention is made in relation to material facts of the case as we have previously
seen.
In their view finding a ratio decidendi is not a formalistic exercise but it involves
an element of choice from a range of possibilities. There follows what determines
the choice of ratio decidendi and how wide a range of possibilities should be:
o In reasoning on a point of law one is not confronted with a single isolated
precedent. There is a collection of potentially relevant precedents. Each
case must be read in the context of all other potentially relevant cases.
There is no single way of determining a ratio decidendi.
o It is false to assume that in determining the ratio decidendi we should
depend on the stand point of the judge, because it is not only a judge who
interpretes rules. Consequently, advocates and other officials do interprete
28
cases in the process of trying to persuade courts to reach decisions in their
favour or infavour of their clients. (see: Grant V Australia Knitting Mills
argument pursued by Counsel for the defendant; Hedley Byrne V Heller
the argument pursued by the counsel for the defendant or in Ngaire V
National Insurance Corporation the argument pursued by the Counsel for
the plaintiff).
On the other hand, one should bear in mind the nature of the
Adversary System in which each side in a cause of action will
press on an interpretation for a relevant precedent which is
consistent with the desired results. Good advocacy consists in
directing attention of the court to the most plausible interpretation.
29
there is no theoretical consensus about the correct way of extracting authoritative
propositions of law from judicial decisions.
The disagreement is based on whether there can be precision in determining the
scope of a proposition. Further, a great majority of reported precedents to day
deal with interpretation of statutes or other rules fixed in verbal form. This
operates as a constraint to subsequent interpretation because the statutory or other
texts provide a more clearly identifiable “encourage” for interpretation and
argumentation that do not exist in judicial opinions. The precise nature and extent
of such a constraint is much debated.
The basic point of departure between William Twining & David Miers and earlier
jurists on the debate on ratio decidendi and how to determine the same lie in the
fact that “a great majority of reported cases or precedents deal with interpretation
of statutes and other rules fixed in Verbal form. This operates as a constraint to
subsequent interpretation because the statutory and other texts provide a more
clearly identifiable encourage for interpretation and argumentation than do the
text of judicial opinion”.
4. (1) The Common Law Case Technique: Development of the Law of Negligence
The decisions of the courts on economic and social questions depend on their
economic and social philosophy- Theodore Roosevelt.
o Stare decisis & Precedent
o Material Facts of a Case
o Issue(s)
o Holding (in whose favour a matter was decided)
o Ratio Decidendi (future value or authority)
o Obiter Dicta (Dicta-future value)
o Dissenting Opinion (Value)
30
Judicial Hunch
-Socialisation, political view, economic position, religions opinion etc.
Positivism (formal style)
Appeal to Higher Values than law itself (the Grand Style)
Types of judges
-Timorous souls
-Bold spirits
In view of the above mythology, timorous soul judges, tried to rationalise the then
competing demands:
the expansion of Industry
the risks and dangers to life associated to such development, but
the law had to be extended to strangers (to what extent was that done?)
31
Conceptual development of the law of negligence (tort(s) is examined as a process (not
as something, which just developed at once).
A process of a whole compendium of argumentation, methodologicals in a historical
context, which produced legal rules, principles and standards.
The Law of negligence has developed through such concepts as: contract, fraud,
dangerous instruments, doctor-patient relationship, fiduciary relationship,
occupier-invitee relationship (physical or legal), Duty of Care etc.
The development of the law of negligence was not straight but a circular motion
32
The Common Law Case Technique: Development
of the Law of Negligence 1837-2001
The Period Between 1833 and 1836 only parties to the contract could sue. The dominant
notion was contract. From 1837 we notice a move away from parties to a contract to the
notion of knowledge of the user of an article which causes injury/damage:
Holding:
In favour of the plaintiff (rule discharged).
Rato Decidendi:
33
Where the defendant knowingly sold a gun to the father for the use of himself and
his sons and had knowingly made a false representation (warrant) that it is safe
and secure while it was not, and on the basis of such warrant the plaintiff used it
to his detriment the defendant is liable.
*(1) A Case decided on the basis of implied contract, warrant and knowledge of the
user where the article which causes injury is not dangerous in itself.
(2) In the course of delivering the judgement a number of things were considered:
The Court was not ready to lay down a broad rule of liability.
The Court considered the fact that the gun was not an instrument which is
dangerous in itself unless loaded.
“If the instrument in question, which is not dangerous in itself, but requires an act to be
done that is, to be loaded, in order to make it so, had been simply delivered by the
defendant, without any contract or representation on his part, to the plaintiff, no action
would have been maintainable for any subsequent damage which the plaintiff might have
sustained by the use of it.
The Court made use of the principle in Pasley V Freeman 3TR51 that:
Mere falsehood is not enough to give a right of action, but is must be a
falsehood told with an intention that it should be acted upon by the party
injured, and that it must produce injury to him…
The Court was trying to insist on the fact that an injured person must establish
that the person who in said to have caused injury was such a person as recognized
by the law not to act in the way he did.
34
damages due to the injury sustained in the course of driving the coach which
broke due to latent defects in its construction.
Issue:
Whether A (defendant) was liable?
Argument by Counsel for defendant:
He objected that the declaration was bad in substance. According to him the
general rule was that whenever a wrong arises out of a breach of contract, only the
party to the contract can sue-cited Tollit V Sherton 5M & W 283 and the purpose
was to limit extension of liability to even those who were no privy to the contract.
Argument by the Counsel for the plaintiff:
Was based on the decision of Langridge V Levy. He tried to show that the
defendant had entered into contract with a public officer to supply an article,
which from its nature and use…was necessarily to be used by the plaintiff. On
the basis of this it was sufficient to bring this case within the rule established by
Langridge V Levy which proceeded on the ground of knowledge and fraud; in
that in this case the defendant made a representation that the coach was in a
proper state for use.
Holding:
Judgement for the defendant
Ratio Decidendi:
Where there is no contract or the injured party is no privy to it, no action will lie
(or may be maintained).
*A case decided on the basis that the injured party was too remote to be
contemplated by the defendant. A movement back to contract.
35
in the judgement of this court in the case of Langridge V Levy, to obviate any
notion that such an action could be maintained.
We ought not to attempt to extend the principle of that decision, which although it
has been cited in support of this action, wholly fails as an authority in its favour;
for there the gun was bought for the use of the son, the plaintiff in that action,
who could not make the bargain himself but was really and substantially the party
contracting. Here the action is brought simply because the defendant was a
contractor with a third person and it is contended that thereupon he becomes
liable to everybody who might use the carriage.
If there had been any ground for such action, there certainly would have been
some precedent for it; but with the exception of actions against innkeepers, and
some few other persons, no cause of action of a similar nature has occurred in
practice.
The rule in Langridge V Levy cannot be applied in Witterbottom V Wright
because according to Lord Abinger, C.B. the case in point is a case of its own
kind.
All the three judges were in agreement that in the circumstances of the day the
plaintiff could not recover because he was not a party or privy to the contract. He
was a stranger in so far as the law and the defendants were concerned.
36
Frederick Longmeid & Eliza (his Wife) V Holliday, [1851] 6 Ex. 76
Material Facts:
The defendant (Holliday) a seller of lamps sold a lamp to the plaintiff’s husband.
The defendant was not a manufacturer of those lumps. The lumps were called
‘Holliday’s Patent Lamp’. The said lamp was for the purpose of being used by
him (the buyer) and his wife. There was evidence that the lamp was defectively
manufactured. In using the lamp with naphtha (i.e. like Kerosene) the lamp
exploded and the plaintiff’s wife was injured. The two plaintiffs brought an
action (Frederick has previously recovered damages in an action for the
defendant’s breach of implied warranty of sale). The jury found all facts for the
plaintiffs except for the allegation of fraud because; in their view the defendant
did not know that the lamp was in fact defective.
Issue
Whether the plaintiff can recover on the basis of fraud?
Ratio Decidendi:
Where in the ordinary course of doing business between one individual and
another, a machine that is not dangerous in itself but which might become so by
37
latent defect entirely unknown, is let or given by one person to another, the former
is not answerable to the latter for subsequent damage accruing from the use of it.
Obiter Dicta
If the defendant had been guilty of a fraudulent representation that the lamp was
fit and proper to be used, knowing that it was not and intending it to be used…
then that individual would have had an action for deceit on the principle of
Langridge V Levy [1837] 2M & W 159.
Parke, B. enumerated instances besides contract and fraud in which an action might lie
but which can be distinguished from the above case:
If an apothecary administers improper medicines to his patients, or a surgeon,
unskillfully treated him, and thereby injure his health, he would be liable to the
patient even where the father or friend of the patient may have been a contracting
party with the apothecary or surgeon.
A Stage-Coach proprietor, who may have been contracted with a master to carry
his servant, if he is guilty of neglect, and the servant sustains personal damage, he
is liable to him….
38
situation easily accessible to a third person who sustains damage from it, is liable.
(Dixon V Bell 5M & Selw. 198)
Issue:
Whether an action at the suit of the plaintiff (wife) her husband being joined for
conformity, will lie (or was there a cause of action against the defendant?).
39
Holding
Judgement for the plaintiffs.
Ratio Decidendi:
Apart from the question of warranty, express or implied there is a duty on the
defendant, the vendor, to use ordinary care in compounding his wash for the hair.
There was such a duty towards the purchaser and it extends to the person whose
use the vendor knew the compound was purchased Langridge V Levy was cited
as an authority for this proposition. Here a similar duty a rose towards the person
who was known to the defendant to be about to use this wash; namely the duty
that the article sold should be reasonably fit for the purpose it was bought for and
compounded with reasonable care. [Kelly C.B]
Obiter Dicta
Kelly, C.B. distinguished the case of Longmeid & Elisa V Holliday from this case
in that the former cases’ decision was not based on the negligence of the Vendor.
** Piggott, B; was of the same opinion and he added:
…. Where the thing purchased is for the use not of the purchaser himself but, to
the defendants’ knowledge, of his wife, does the defendant’s duty extend to her?
I can see no reason why it should not [The judge points to the incapacity of
women to sue on their own in those days which is a reason why a husband had to
be joined with her as co-plaintiffs)
Cleasby, B was of the opinion that the action did lie against the defendant. He
stressed the principle of contract by saying:
40
“No person can sue on contract but the person with whom the contract is
made; and this is undoubtedly the proposition attempted to be taken
advantage of in Langridge V Levy”. Then he proceeded applying the
principle to the facts of the case and found that there was… good cause of
action in the person injured similar to that which held to be good in
Langridge V Levy.
* A case where the seller of the article that caused injury was also a manufacturer of
the article and knew who the consumers were (here representation was not
relevant).
(The Married Women’s Property Act, 1882 [45 & 46 Vict. C 75 on Position of
Married Women]
41
no good cause of action, unless the person charged with such want of ordinary
care had a duty to the person complaining to use ordinary care in respect of the
matter in question.
Argument by Counsel for the plaintiffs;
The defendant did not use ordinary care and skill and because of that the plaintiff
was injured, the type of injury was not caused by the plaintiffs contributory
negligence, therefore the defendant owed a duty of care to the plaintiff.
Holding:
Judgment in favour of the plaintiff.
Ratio Decidendi:
Whenever one person is by circumstances placed in such a position with regard to
another that every one of ordinary care and skill in his own conduct with regard to
these circumstances he would cause danger or injury to the person or property of
the other, a duty arises to use ordinary care and skill to avoid such a danger.
Methodology
What method did Brett, M.R; employ in arriving at such a proposition? Brett,
M.R; employed a case to case approach (Induction) and in each case examined he
found a rule and combination of these rules leading to a general rule for liability
called duty care, this made him to conclude that there was a general rule called
duty of care which he then applied deductively to the fact situation in the case he
was decide. This is a process of Inductive reasoning and after a general rule has
been ascertained, then it is applied by the process of deductive reasoning. In real
terms Brett, M.R; considered the following fact situation:
Two drivers meeting have a contract with each other.
Two ships navigating at sea.
A railway company which has contracted with one person to carry another has not
only a contract with the person carried but also a duty towards that person.
The owner or occupier of house to come to his house or land has no contracts with
such persons but has a duty towards them or him.
Thus Brett, M.R. Maintained “the existence of a contract
42
between persons does not prevent the existence of the suggested duty towards him
or them, raised by law independently of contract, but the facts with regard to
which the contract is made and to which it applies in exactly similar but a contract
of duty”.
Brett, M.R. ruled out certain considerations:
We have not in this case to consider the circumstances in which an implied
contract may arise to use ordinary care and skill to avoid danger to the safety of person or
property. We have not in this case to consider the question of fraudulent mispresentation
express or implied which is a well recognized head of law.
What is then to be resolved?
What is the proper definition of the relation between two persons other than the relation
established by contract, or fraud, which imposes on the one of them the duty towards the
other to observe, with regard to the person or property of such other, such ordinary care
and skill as may be necessary to prevent injury to this person or property. Does the
present case fall within such a definition?
The judge re-examined his examples as enumerated earlier and had the following to say:
When two drivers or two ships are approaching each other, such a relation arises
between them when they approaching each other in such a manner that, unless
they use ordinary care and skill to avoid it, there will be danger of injurious
collision between them. The relation is established in such circumstances
between them, not only if it is proved that they actually know and think of this
danger, but whether such proof be made or not. It is established, as it seems to
me, because anyone of ordinary care and skill under such circumstances there
would be such a danger. And anyone ought by the universally recognized rules
right and wrong, to think so much with regard to the safety of others who may be
jeopardized by his conduct…
The judge went on to enumerate what would happen in the case of railway company as
follows:
In the case of Railway Company carrying a passenger with whom it has not
entered into a contract of carriage the law implies the duty, because it must be
obvious that unless ordinary care and skill be used the personal safety of a
passenger must be endangered.
43
He said the following in relation to an owner or occupier;
With regard to the condition in which an owner or occupier leaves his house or
property other phraseology has been used, which it is necessary to consider. If a
man opens his shop or warehouse to customers it is said that he invites them to
enter, and that this invitation raises the relation between them which imposes on
the invitor the duty of using reasonable care to keep his house or warehouse that it
may not endanger the person or property of the person invited….If you permit a
person to enter then you impose on yourself a duty not to lay a trap on him.
Having considered all these instances, which impose a duty of care and skill, Brett, M.R.
concluded as follows:
It follows, as it seems to me, that there must be a more remote and larger
proposition, which involves and covers both sets of circumstances. The logic of
inductive reasoning requires that where two major propositions lead to exactly
similar minor premises there must be a remote and larger premise, which
embraces both of the major propositions.
The proposition which seems to be in line with the decided cases on supply of goods or
machinery or the like was stated as follows;
Whenever one person supplies goods or machinery, or the like, for the purpose of
their being used by another person under such circumstances that everyone of
ordinary sense would, if he thought, recognized at once that unless he used
ordinary care and skill with regard to the condition of the thing supplied or mode
of supplying it, there will be danger or injury to the person or property of him for
whose use the thing is supplied, and who is to use it a duty arises to use ordinary
care and skill as to the condition or manner of supplying such a thing.
44
The defendant owner of a dock for the repair of ships, provided for use in the
dock the stages necessary to enable the outside of a ship to be painted while in the
dock, and the stages which were to be used only in the dock where appliances
provided by the dock owner as appurtenant to the dock and its use. After the
stage was handed over to the ship owner it no longer remained under the control
of the dock owner
Issue:
Whether the dock owner was under the obligation to take reasonable care that the
appliances were in a fit state to be used?
Ratio decidendi:
The owner of premises is under an obligation to take reasonable care that the
things supplied by him for immediate use are in a good state of repair.
The majority judges were unable to concur with the judgment of the Master of the Rolls:
I am unwilling to concur with the Master of the Rolls in laying down
unnecessarily the larger principle which he entertains---.
45
The appellants as directors of the Company issued a Prospectus which encouraged
people to invest in it because by the special Act of Parliament the company had a
right louse steam or mechanical motive power, instead of horses---. As soon as
the Prospectus was issued, the respondent relying upon a paragraph in the
Prospectus applied and obtained shares in the company. The company proceeded
to tramways, but the Board of Trade refused to consent to the use of steam or
mechanical power.
In the result the company was wound up and the respondents brought an action of
deceit against the appellants claiming damages for fraudulent misrepresentation of
the dependants whereby the plaintiff was induced to take shares in the company.
[In the High Court the action was dismissed by Stirling J.] Appeal to the Court of
Appeal.
Issue:
Whether an action of fraudulent misrepresentation would lie?
Holding
The Court of Appeal held that [Cotton, LJ; Sir Hannen J, and Lopes, L.J.) the
defendants were liable to make good to the plaintiffs the loss sustained by taking
the shares.
The defendants appealed to the House of Lords
Holding:
Appeal allowed, order of the Court of Appeal reversed
Ratio Decidendi:
In an action for deceit the plaintiff must prove actual fraud, that is false
representation made knowingly, or without belief in its truth, or recklessly,
without caring whether it be true or false and intending the plaintiff to act upon it.
46
Lord Herschell send:
In my opinion making a false statement through want of care falls far short of, and
is very different thing from fraud, and the same may be said of a false
representation honestly believed though on insufficient grounds.
47
The defendant denied that he had been employed by D or on his behalf to issue
certificates. He never undertook any duty towards the plaintiffs or either of them.
He was not fraudulent, the certificates were issued bona fide and in belief that the
statements contained in them were true.
Holding
Appeal Dismissed, Judgement infavour of the defendants.
Ratio Decidendi:
The question of liability for negligence cannot arise at all until it is established
that a man who has been negligent owed some duty to the person who seeks to
make him liable for negligence.
Obiter Dicta:
Decision of Heaven V Pender
Observations:
1. The judgement of Lord Esher (Former Brett M.R.) M.R. reveals the following:
(i) A duty cannot arise unless there is a relationship of the parties through
contract (what duty is there when there is no relationship between the
parties by contract?)
(ii) A man is entitled to be as negligent as he wishes (pleases) to the whole
world if he owes no duty to them.
(iii) Derry V Peek (House of Lords’ decision) established that in the absence of
contract, an action for negligence cannot be maintained when there is no
fraud.
(iv) Negligence, however great, does not itself constitute fraud.
2. (i) According to Bowen LJ in Derry V Peek the House of Lords pointed out that, as
Common Law lawyers had always held, an action of deceit must be based on
fraud, and that negligence is not itself fraud, although negligence in some cases
may be of such a kind as to make it highly probable that there has been fraud.
48
(ii) Negligent misrepresentation does not amount to deceit and negligent
misrepresentation can give rise to a cause of action only is a duty lies upon the
defendant not to be negligent.
(iii) We however, have to consider not what the law might be, but what it is. (This is a
positivistic utterance by the judge).
(iv) ---a man is responsible for what he states in a certificate to any person to whom he
may have reason to suppose that the certificates may be shown. But the law of
England does not go to that extent, it does not consider that what a man writes on
paper is like a gun or other dangerous instrument and unless it is intended to
deceive, the law does not, in the absence of contract, hold him responsible for
drawing his certificates carelessly.
3. In the opinion of A.L. Smith L.J. the decision of Heaven V Pender was
founded upon the principle, that a duty to take care did arise when a person or
property of one was in such proximity to the person or property of another
that, if due care was not taken, damage might be done by the one to the other.
Heaven V Pender does not go further than this---the case is totally different
from the present and its principle cannot be applied to it.
Note on Precedent:
Le Lievre v Gould- According to the strict rule of precedent, the English Court of
Appeal must generally follow its previous decisions i.e. it is bound by the ratios of its
own previous cases, so in this case, the court is bound by the ratio of Heaven V
Pender. We saw that strictly, the ratio of Heaven V Pender must be the rule of the
majority of the judges Cotton & Bowen LJJ. Neither Brett’s formulation of the larger
proposition, nor his formulation of suppliers liability is therefore the ratio, nor part of
the ratio. But does the Court in LeLievre V Gould adhere to these strict rules? Esher
(Brett) M.R. refers to what Heaven V Pender “established,” meaning his own
minority rule. Smith, LJ also refers to Brett’s rule as the principle of Heaven V
49
Pender. Only Bowen, LJ refers to the ratio of Heaven v Pender as the majority rule.
i.e. the rule of owner of premises.
Before we conclude, that the court is not adhering to the strict doctrine, we should
remember that they do not in fact prefer the minority rule in Heaven v Pender to the
majority rule. They reject both as applying to the facts before them. If they had
preferred the minority rule, they would be in breach of the strict principle, but they
rejected the minority rule as too wide, and the majority rule, as having no application.
But in so far as they accept Brett’s rule as the ‘principle’ of Heaven v Pender, to be
followed in future cases where the facts came within that principle they do not adhere
to the strict rule of precedent.
The House of Lords in Donoghue v Stevenson could have said this was wrong. But
they do not- Lord Atkin proves these statements and also refers to Brett’s rule as the
doctrine of Heaven v Pender. Notice also that this is the case of a Court dealing with
one of its own previous decisions. A lower Court could not have so much freedom.
Look at how Mc Cardie J sitting in the High Court, dealt with Heaven V Pender in
Farr v Butters. He had to say the rule of that case is the majority rule, and cannot
follow Brett MR’S rule in preference.
Material Facts
Lord Ashburton claimed damages from Nocton, a Solicitor on the basis that he
had suffered loss as a result of improper advise given to him by Nocton which he
acted upon. The advise had been that Lord Ashburton should release a part of a
mortgaged security. As a result of acting on that advise the security had become
insufficient and Lord Ashburton claimed that the advise had been given by
Nocton knowingly that the security would be rendered insufficient and that it had
been given in Nocton’s interest and not in his client’s interest.
50
In the first instance the Court found that there had been no fraud, therefore
dismissed the action. The Court of Appeal reversed that finding and granted relief
on the basis that Nocton had been guilty of actual fraud.
The House of Lords reversed the decision of the Court of Appeal. Held the
plaintiff was to succeed on the basis of a breach of duty which arises out of
fiduciary relationship with the defendant and which the defendant suffered loss.
Holding
Court of Appeal decision affirmed on different grounds.
Ratio Decidendi
Where a person renders advise to another and the advisee falls within a fiduciary
relationship with the adviser, in case the advisee sustains loss the adviser is liable.
Viscount Haldane L.C. Statements are worthy noting:
(i) Derry v Peek which establishes that proof of fraudulent intention is necessary to
sustain an action for deceit, whether the claim is dealt with in a Court of law or by
a Court of Equity---does not narrow the scope of the remedy in actions within the
exclusive jurisdiction of the Court of Equity.
(ii) Although liability for negligence in words has in material respects been developed
in our law differently from liability for negligence in act, it is none-the-less true
that a man may come under a special duty to exercise care in giving information
or advice.
(iii) I should be sorry to be thought to lend centenance to the idea that recent decisions
have been intended to stereotype the cases in which people can be held to have
assumed a special duty (emphasis added). Whether such a duty has been assumed
depended on the relationship of the parties---.
51
The appellant, a shop assistant sought to recover from the respondent, an aerated
water manufacturer, on the basis that he was negligent and out of such negligence
she was injured by the presence of a snail in a bottle of ginger beer manufactured
by the respondent and ordered for the appellant in a shop by a friend of the
appellant. As a consequence of having drunk part of the contaminated contents of
the bottle it was alleged that she contracted a serious illness. The bottle was dark
opaque glass, the condition of its contents could not be ascertained, it was closed
up with a metal cap, and on the side was a label bearing the name of the
manufacturer (the respondent).
Issue
Whether a manufacturer of an article or drink sold by him to a distributor in
circumstances which prevent the distributor or ultimate purchaser or consumer
from discovering by inspection any defect is under a legal duty to the ultimate
purchaser or consumer to take reasonable care that the article is free from any
defect likely to cause injury to health?
The arguments of the two parties are not apparent.
Holding
Appeal allowed; decision infavour of the appellant against the respondent.
We shall concentrate on the reasoning of the House of Lords. The case was decided by
Lord Atkin, Lord MacMillan, Lord Buckmaster, Lord Thanketon and Lord Tomlin. Lord
Buckmaster and Tomlin dissented. We examine in turn the extracts from the opinions of
Lord Atkin, Lord MacMillan and Buckmaster:
Lord Atkin made the following important Observations:
1. For the purposes of determining this problem the law of Scotland and the
law of England are the same…in order to support an action for damages
for negligence the complaint has to show that he has been injured by the
breach of duty owed to him in the circumstances by the defendant to take
reasonable care to avoid such injury.
2. In the present case we are not concerned with the breach of duty
52
---we are concerned with the question as a mater of law in the
circumstances alleged by the defendant owed a duty to the purchaser to
take care---.
3. In English law there must be, and is, some general conception of
relationships giving rise to a duty of care, of which particular cases found
in the books are but instances. The Liability for negligence, whether you
style it such or treat it as in other systems as species of “culpa” is no doubt
based upon a general public sentiment of a moral wrongdoing for which
an offender must pay.
4. The rule that you are to love your neighbour becomes, in law, you must
not injure your neighbour: and the lawyers’ question, who is my neighbour
? (emphasis added) receives a restricted reply.
You must take reasonable care to avoid acts or omissions, which you can
reasonably foresee, would be likely to injure your neighbour. Who then,
in law, is my neighbour? The answer seems to me to be: persons who are
so closely and directly affected by my act that I ought reasonably to have
them in contemplation as being so affected when I am directing my mind
to the acts or omissions which are called in question.
According to Lord Atkin this is the principle enunciated in Heaven V Pender by Lord
Esher MR (then Brett MR) when it is limited by the notion of proximity introduced by
Lord Justice AL Smith in Le Lievre and Dennes V Gould where Lord Esher MR stated
inter alia
The case establishes that under certain circumstances, one may owe a duty to
another even though there is no contract between them. If one man is near to
another, or is near to the properly of another, a duty lies upon him not to do that
which may cause a personal injury to that other or injure his property.
Lord Justice A.L. Smith maintained:
The decision of Heaven V Pender was founded upon the principle that a duty to
take care did arise when the person or the property of another that, if due care was
not taken, damage might be done by one to the other.
In the view of Lord Atkin these principles sufficiently state the rule of proximity. This
proximity is not confined “to mere physical proximity,” but is used--- to extend to such
53
close and direct relations that the act complained of directly affects the person alleged to
be bound to take care would know could be directly affected by his careless act---. Lord
Atkin further amplified on the point by saying:
A manufacturer who puts up an article of food in a container which he knows will be
opened by the actual consumer, without any chance of intermediate inspection by the
purchaser or reasonable inspection by the consumer and it is found that due to negligent
manufacture the contents were mixed with poison then the law of England and Scotland
says that a poisoned consumer has no remedy against a negligent manufacturer, the
results would be grave and the law would be defective.
54
(iv) The Categories of negligence are never closed.
(emphasis added). The Cardinal principle of liability is that the party
complained of should owe a duty to take care and the party complaining
should be able to prove that he has suffered damage as a result or
consequence of a breach of that duty.
(Negligence consist in the duty of care, breach of duty and damage
resulting from the breach of duty to take care (emphasis supplied).
(v) I can readily conceive that where a manufacturer has parted with his
product and it has passed into other hands it may well be exposed to
Vicissitudes which may render it defective or noxious and for which the
manufacture could not in any way be held to blame. Where between the
manufacturer and the user there is interposed a party who has the means
and opportunity of examining the manufacturer’s product before he
reissues it to the actual user the manufacturer ceases to be in control.
Where the article of consumption is so prepared as to be intended to reach
the consumer in the condition in which it leaves the manufacturer, and the
manufacturer takes steps to ensure that the contents can not be tempered
with, I regard his control as remaining effective until the article reaches
the consumer and the container is opened by him [emphasis supplied]
55
Farr V Butters Bros & Company [1932] 2 K.B. 66
Note: Between the date of the judgement given by McCardia J and the hearing
of the appeal, the House of Lords had delivered a very important judgement in
M’Alister (Donoghne) V Stevenson. How far was the decision in this case to
affect the present case?
Material Facts
The action of the appeal arose under the Fatal Accidents Act, 1846, by a widow of
a foreman erector of cranes who was killed by the falling of the jib of a crane,
which he had been responsible for erecting. The action was brought against the
manufacturer of the crane, who sold it in part to a firm of builders who were
themselves to assemble the parts, and who in fact did this under the supervision of
the man who was killed. It was clear that two of the Cog-wheels used in the
working of the crane did not fit accurately. All agreed that the deceased while the
crane was being assembled, ascertained that the Cog-wheels did not fit properly,
their inaccuracy was that required to be corrected, that he marked those
inaccuracies with chalk in order that it might be corrected, and that he said, that
he would report the matter to his principals. In spite of this discovery, marking,
and statement of his intention to report, he began working the crane before the
inaccuracies had been corrected. In working it in that condition he was, while
standing by the jib, killed by its fall, the falling being due to the effect of the
inaccuracies which he had discovered.
Issue:
Whether there was liability on the part of the manufacturers to the employee of
the purchaser. Was there liability in Tort?
Argument by the defendant:
Having manufactured and supplied the part of the crane to the purchaser there was
an opportunity for examination in that the purchasers were to assemble the parts,
that opportunity was used by their skilled erector who examined the wheels and
found their condition and did not rectify it. Therefore, the manufacturers were not
liable.
Argument by the plaintiffs:
56
The defendants had been negligent in manufacturing the cranes whose parts killed
the husband of the plaintiff and therefore they were liable to her in tort.
Ratio Decidendi:
Important Observations made by Scrutton LJ.
1. There was an opportunity for examination:
“We have repeatedly held that when a plaintiff gives evidence which is
only consistent with the accident being caused by his own negligence the
judge ought to withdraw the case from the jury instead of leaving it to
them to say whether the admitted facts constituted negligence.”
2. Scrutton LJ agreed with Lord Atkin that:
I venture to say that in the branch of law which deals with civil wrongs,
dependent in England, at any rate, entirely upon the application by judges
of general principles also formulated by judges, it is of particular
importance to guard against the danger of stating propositions of law in
wider terms than is necessary, least essential factors be omitted in the
wider survey and the inherent adaptability of English law be unduly
restricted.
For this reason it is very necessary, in considering reported cases in the
Law of torts, that the actual decision alone should carry authority, proper
weight, of course, being given to the dicta of the judges.
Thus he further stated his famous proposition on the way English judges operate;
“English judges have bee slow in stating principles going far beyond the
facts they are considering. They find themselves in a difficulty if they
state to wide propositions and find that they do not suit the actual facts.”
He then considered the decision of the House of Lords in Donoghue’s case and
how the Court limited the proposition;
“The rule that you are to love your neighbour becomes, in law, you must
not injure your neighbour, and the lawyers’ question, who is my
neighbour? Receives a restricted reply. You must take reasonable care to
avoid acts or omissions which you can reasonably foresee would be likely
to injure your neighbour. Who then in law is my neighbour? The answer
seems to be persons who are so closely and directly affected by my act
57
that I ought reasonably to have them in contemplation as being so affected
when I am directing my mind to the acts or omissions which are called in
question,”
In the case in point the judge goes with the opinion of Lord McMillan that
responsibility ceases when control ceases (no proximity):
It may be a good general rule to regard responsibility as ceasing when
control ceases, so also where as between a manufacturer and the user there
is interposed a party who has the means and opportunity of examining the
manufacturer’s product before he reissues it to the actual user.
58
drunk, the garments in question were merely put in paper packets each
containing six sets which in ordinary course would be taken down by the
shopkeeper and opened, and the contents handled and disposed of
separately, so that they would be exposed to the air. It was further argued
that though there was no reason to think that the garments when sold to the
appellant were in any other condition, least of all as regards sulphur
contents, than when sold by the manufacturer to the retailers, still the mere
possibility and not the fact of their condition having changed was
sufficient to distinguish Donoghues case. There was no “control” because
nothing was done by the manufacturer to exclude the possibility of any
tampering while the goods were on their way to the user. Lastly, it was
argued that if the decision of Donoghue’s case, were extended even a
hair’s breath no line could be drawn, the manufacturer’s liability would be
extended indefinitely.
Holding
The case was within the principle of Donoghues’ case, decision atgains the
respondents, appeal allowed with costs.
Ratio decidendi;
A person who for gain engages in the business of manufacturing articles
for consumption by members of the public in the form in which he issues
them is under a duty to take care in the manufacture of these articles.
59
some more complex relationship or in some specialised
breach of duty, and still less as having any dependence on
contract. All that is necessary as a step to establish the
tort of actionable negligence is to define the precise
relationship from which the duty to take care is deduced.
60
6. ---duty is difficulty to define, because when the act of
negligence in manufacture occurs there is no specific
person towards whom the duty could be said to exist, ---
the duty cannot at the time of the manufacture be other
than the potential or contingent, and only can become
vested by the fact of actual use by a particular person.
Issue
Whether the defendants were liable in tort of negligence?
61
Was based on the decision of the House or Lords in Donoghue’s case namely that
since that decision there was no distinction between negligent manufacture
causing physical harm and negligent statements leading to financial loss.
Defendants were liable.
Holding
The Court of Appeal Held in favour of the defendant in that they were not liable.
(Majority 2:1)
Ratio Decidendi
There is no duty of care in negligence as for negligent misstatements.
Obiter Dicta
Dissenting Judgement of Lord Denning L.J. (as he then was) sought to make it
clear that since the House of Lords’ decision in Donoghue’s case no distinction
existed between negligent manufacturer causing physical injury and negligent
statements causing economic loss.
[It must be noted that to date Courts in England have retained such a distinction as
we shall see later.]
Lord Denning, L.J. maintained that the case of Donoghue V Stevenson, had substantially
changed the law. It did cast doubt on the authority of older cases such as Lelievre V
Gould which negative actions in tort for negligent misstatements. The courts must accept
that there was a cause of action for negligent misstatements.
62
On the arguments by the defendant he said:
The argument that there was no cause of action, that is no liability in tort for
negligent maintainable because there was need for progress in the law rather than
stagnation.
The argument that there is no liability in tort for negligent acts (or statements) causing
financial loss as opposed to physical harm, he said that, the Counsel did not dispute that
there would be no liability in two hypothetical cases:
(1) the analyst who tests food and negligently states that it is wholesome, whereas
it is harmful,
(2) who negligently states that a lift is safe when it is not,
It might have been that the Counsel only accepted those hypothetical cases on
the ground that they are both cases of physical harm, resulting from negligent
misstatements, and that on the facts of this case, there being no physical
damage, they would not make the defendant liable.
The Counsel retreated from his earlier position that there is no liability for negligent
misstatement at all, to the position that there was only liability if such statements
resulting to physical harm, but not otherwise.
According to Lord Denning, there is no distinction between physical harm and financial
loss in relation to duty of care. It might be more difficult to prove the proximate
relationship, that is foreseability of damage, in the case of purely financial loss, but that is
a matter of proof in each case.
Dealing with the third argument of the Counsel for the defendant, namely, that the
accountants were liable in contract to the company and not liable to the plaintiff in tort.
Lord Denning rejected the 19th Century fallacy. In his view “It is a well established rule
that is A is liable to B in contract, that in no way prevents him being liable to C in tort on
the same facts.”
The tort of negligence according to Lord Denning is an entirely separate cause of action,
so it is irrelevant that another cause of action exists as regards to other persons.
63
Lord Denning’s judgement is a Dissenting judgement, it is not part of the ratio of
Candler’s case, it is not binding. The ratio of Candler’s case is a statement of the
majority, expressed by Lord Asquith, that there is no duty of care in negligence as for
negligent misstatements.
[This ratio was later overruled by the House of Lords in Hedley Byrne V Heller]
Lord Asquith and Lord Cohen delivered a majority judgement which was based
on the distinction between economic loss and physical injury. Lord Asquith
referred to the decision in Derry V Peek and maintained that Donoghue V
Stevenson was not intended parenthetically or subsilentio to sweep away such
substratum. Nor did Donoghue V Stevenson reverse or qualify the principle laid
down in LeLievre V Gould:
In the present state of our law different rules seem to apply to negligent
misstatements, on the one hand, and to negligent circulation or repair of
Chattels on the other, and Donoghue V Stevenson does not seen to have
abolished those differences.
Lord Asquith was ready to be called a “timorous Soul” as opposed to “bold
spirits”
Note: the extension of the above dichotomy can be found in the following decisions to
day in England:
64
Simaan Co. V Pilkington Glass, (No2) [1988] IALLER 671 (Ch.D.)
Capro Industries PLC V Dickman, [1990] IAIIER568 at 571-608 (Ch.D.)
Davis & An. V Radcliff & others, [1990] 2AIIER536 (PC)
Holding
The High Court held defendant 1 and defendant 3 liable.
This was reversed by the Court of Appeal on ground other than those made by
Salmond J.
65
nothing to suggest that the judges thought the results would have been different
had the negligent misstatement resulted in physical harm.
Salmond J in fact employs the different ratio called the rule of induction.
Salmon J in his distinction admitted that Asquith L.J in Candler V Crane Chrismas
excluded all cases of negligent statements from liability. He had to accept the authority
of Candler’s case as it is a Court of Appeal Case, and could not deny that some negligent
misstatements are not actionable. He admits that his distinction between negligent
misstatements that cause financial loss, not physical damage was “illogical.”
I am quite unable to find that the second defendants in any way failed in their duty of care
to their invitees. Types of mistakes, which can be performed by professionals:
There are, of course, many mistakes that a professional man can make without
failing to exercise reasonable skill or care but not an elementary mistake of this
kind. I have no doubt at all that any ordinary architect using reasonable care and
skill would certainly have realized the extreme danger of cutting the case without
shoving or shutting the gable.
66
In reaching the conclusion that since neither LeLievre V Gould nor Candler V Crane
Christmas was concerned with a careless statement causing physical damage, they cannot
exclude the application of the principle enunciated in Donoghue V Stevenson to the
particular facts of the case.
Although the dicta of Asquith LJ must carry the greatest weight, I do not consider
that the decision in Candler V Crane Christmas excluded careless statements from
the ambit of Donoghue V Stevenson. It may be difficult to think of the logical
reasons why there should be, in some circumstances, a duty to take care in making
statements causing physical damage and never such a duty in making statements
causing financial loss. Logic and Common sense, are uncertain guides in this
branch of the Law.
(The same as Holmes “The Path of the law” where he categorically stated” The
life of the law is not logic but experience”.)
‘On the other hand, failure to take positive precautions against a peril which was
not (even remotely) of your own making or proceeding from property which is
under your control or was so at the relevant time is not generally regarded as
negligence. The law does not exact altruistic behaviour, it does not require you to
love your neighbour, but only that you shall not injure your neighbour.
67
and decides to ignore the accident. He drives round the unconscious man and
the wrecked car, and proceeds to the Ulevi Bar to quench his thirst.
(2) Dr. Ndugu, driving along a few minutes later though tired after a busy day
stops his car and goes to the aid of Bwana Juma. He attends to Bwan Juma’s
injuries, and seeing that he has lost a lot of blood decides to give him
transfusion. He has in his car, by lucky chance, a bottle of blood, of the
common (blood group, O positive). He has no means of testing Bwana
Juma’s blood group. It is, however, obvious that if Bwana Juma does not get
blood soon, he will die. Dr. Ndugu takes chance, and administers the blood,
Bwana Juma dies a few minutes later. When he is taken to the mortuary later
it is discovered that he was wearing a medallion round his neck beneath his
clothing which said “Warning, I have a rare blood group: Group A negative.
In an emergence contact Ocean Road Hospital Tel 02252361 at Once”.
Bwana Juma died directly as a result of his being given the wrong blood
group. Dr. Ndugu has been charged of murder. Advise him of his liability.
(3)
Hedley Byrne & Co Ltd V Heller & Patners Ltd, [1963]2 All ER 575 at 578-618
Material Facts:
The appellants were a firm of advertising agents. The respondent were merchant
bankers. The appellants case against the respondents was that having placed on
behalf of a client X on credit terms substantial orders of advertising time on the
Television programmes and for advertising space in news papers on terms under
which the appellants became personally liable to the TV and newspaper
companies, they inquired through their own baker (the respondent) as to the credit
worthness of X who were the customer of the respondents satisfactory references.
In those reply the respondents clearly stated that such information was given on
the understanding that “It was for private use and without responsibility on the
part of the bank or its officials” (disclaimer from liability).
The references turned out not to be justified, and it was the plaintiff’s claim that
reliance on such references resulted into loss. The appellants were seeking to
68
recover the incurred financial loss from the respondents on the ground that the
replies were given negligently and in breach of the respondents duty to exercise
care in giving them.
The High Court, McNair J gave judgement in favour of the respondents on the
ground that they owed no duty of care to the appellants:
The judgement of McNair J was affirmed by the Court of Appeal on the basis of authority
binding on the Court of Appeal and that there was no sufficient close relationship
between these parties to give rise to any duty.
The case was before the House of Lords and the Law Lords who heard the appeal were
Lord Reid, Lord Morris of Borth-Y-Guesh (read by Lord Hodson), Lord Hodson, Lord
Devlin (read by Lord Pearce) and Lord Pearce.
Issue:
Whether the respondents were liable?
69
Holding:
Appeal dismissed (case decided in favour of the respondents).
Ratio Decidendi:
When a mere inquiry is made by one baker of another, who stands in no special
relationship to him, then in the absence of special circumstances from which a
contract to be careful can be inferred,--- there is no duty except the duty of
common honesty---.
Obiter dicta:
If, in the ordinary course of business or professional affairs, a person seeks
information or advise from another, who is not under contractual or fiduciary
obligation to give information or advise, in Circumstances in which a reason able
man so asked would know that he was being trusted, or that his skill or judgement
was being relied on, and the person so asked chooses to give the information or
advise without clearly so qualifying his answer as to show that he does not accept
responsibility, then the person replying accept a legal duty to exercise such care as
the circumstances require in making his reply; and for failure to exercise that care
action for negligence will lie if damage results.
Note: In this case the Law Lords drew a distinction between liability likely to arise
when there is a contract between the parties or there is fiduciary relationship.
They also underscored the effect a disclaimer when a person gives advise to
another with whom he has no contract or fiduciary relationship.
The Law Lords emphasized the point that the banker-customer relationship was
such that, the banker will not at any point release information to any other person
that will prejudice his/her client.
70
intended to disregard existing authorities. The law must treat negligent words
differently from negligent acts.
The Law ought so far as possible to reflect the standards of the reasonable man,
and that is what Donoghue V Stevenson sets out to do. The most obvious
difference between negligent words and negligent acts lies in this:
Quite careful people often express definite opinions on social or informal
occasions, even when they see that others are likely to be influenced by them; and
they often do that without taking care which they would take if asked of their
opinion professionally, or in a business connection.
Another obvious difference is that a negligently made article will only cause one
accident, so it is not very difficult to find the necessary degree of proximity or
neighbourhood between the negligent manufacturer and the injured person, But
words can be broadcast with or without the consent or the foresight of the speaker
or writer. It would be one thing to say that the speaker owes a duty to a limited
class, but it would be going very far to say that he owes a duty to every ultimate
“Consumer” who acts on those words to his detriment. So it seems to me that
there is good sense behind our present law that in general an innocent but
negligent misrepresentation gives no cause of action. There must be something
more than the mere statement.
71
Cases where a person within whose special province it lay to know a
particular fault was given an erroneous answer to an inquiry made with regard
to it by a person desirous of ascertaining the fact for the purpose of
determining his course.
“Constructive fraud”
72
duty of care arises. The fact that the service is to be given by means of, or by the
instrumentality of, words can make no difference. Furthermore, if in a sphere in
which a person is so placed that others could reasonably rely on his judgement or
skill or on his ability to make careful inquiry, a person takes it on himself to give
information or advise to, or to allow his information or advise to be passed on to,
another person who, as he knows or should know will place reliance on it, then
the duty of care will arise.
73
What Lord Atkin called” a general conception of relations giving rise to duty of
care” is now often referred to as the principle of “proximity”. You must take
reasonable care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbour, In the eyes of the law your neighbour is
a person who is so closely and directly affected by your act that you ought
reasonably to have him in contemplation as being so affected when your directing
your mind to the acts or omissions which are called in question.
What did the above proposition mean in the light of the case in point:
Now it is in my opinion a sensible application of what Lord Atkin was saying for
a judge to be invited on the facts of a particular case to say whether or not there
was “proximity” between the plaintiff and the defendant.
That would be a misuse of a general conception and it is not the way in which
English law develops. What Lord Atkin did was to use his general conception to
open up a category of cases giving rise to a special duty. It was already clear that
the law recognized the existence of such a duty in the category of articles that
were dangerous in themselves.
What Donoghue V Stevenson did may be described either as the widening of an
old category or as the creating of a new and similar one. The general conception
can be used to produce other categories in the same way. An existing category
grows as instances of its application multiply, until the time comes when the cell
divides.
The Value of Donoghue V Stevenson to Hadley B V Heller- The real value of
Donoghue V Stevenson to the argument in this care is that it shows how the law
can be developed to solve particular problems. Is the relationship between the
parties in this case such that it can be brought within a category giving rise to a
special duty?
Always in English law the first step in such an inquiry is to see how far the
authorities have gone, for new categories in the law do not spring in existence
overnight.
It would be surprising if the sort of problem that is created by the facts of this case
had never until recently a risen in English law. As a problem it is a by product of
the doctrine of consideration.
74
If the respondent had made a norminal charge for the reference, the problem
would not exist. It were possible in English law to construct a contract without
consideration, the problem would be more at once out of the first and general
phase into the particular; and the question would be, not whether on the facts of
the case there was special relationship, but whether on the facts of the case there
was a contract.
A promise given without consideration to perform a service cannot be enforced as
a contract by the promisee, but if the service is in fact performed and done
negligently, the promise can recover in an action in tort.
** The judge drew a distinction between words and acts or omissions.
Lord Pearce had the following to say after quoting a passage by the Lord Chancellor
Viscount Haldene in Nocton V Lord Ashburton:
The law of negligence has been deliberately limited in its range by the courts’
insistence that there can be no actionable negligence in Vacuo without existence
of some duty to the plaintiff. Negligence in word creates problems different from
those of negligence in act. Words are more violable than deeds. They travel fast
and far a field. They are used without being expanded and take effect in
combination with innumerable facts and other words. Yet they are dangerous and
cause vast financial damage.
[Cites Grant V Astralia Knitting Mills] then went on to say: If the mere hearing
or reading of words were held to create proximity, there might be no limit, to the
person to whom the speaker or writer could be liable. Damage by negligent acts
to persons or property on the other hand, is more visible and obvious, its limits are
more easily defined and it is with this damage that the earlier cases were more
concerned.
Then the Judge examined the development of the law of liability on the basis of words:
The case of Pasley V Freeman (1789) which laid down a duty of honesty in words
to the whole world at large-creating a remedy designed to protect the economic as
opposed to the physical interests of the community. The extention was made in
Derry V Peek a duty to use reasonable care in the presentation of the document
called a valuation. But the ratio decidendi of Derry V Peek is said to have been
75
wrongly applied in LeLievre V Gould as explained by Lord Denning LJ in
Candler V Crane Christmas and in Nocton V Lord Ashburton it was said that the
authority of Derry V Peek has been too much emphasized.
As to the position of English law on Negligent acts and statements to day read:
Home office V Dorset Yatch Co Ltd [1970]
2 ALL ER 294;[1970] AC 1004 at 1026.
Dans & Anoth V Radcliff & Others [1990]2 ALIER 536 (PC)
76
Goodwill v Pregnancy Service [1996]2 ALL ER 161 at 164 – 166 (CA)
In Tanzania:
Cocacola Kwanza Ltd v Wilson Bezibwa,
(PC) Civil Appeal No 33 of 1999 (HC) (Unreported) Kyando J (now deceased)
Material Facts
The plaintiff on 15/4/68 (a driver and mechanic) while sitting in his motor
vehicle, parked on its correct side of the road, lost his arm when another vehicle
owned by Mr James Mushi and driven by his driver collided with the plaintiff’s
vehicle. Subsequently the driver was charged and convicted on counts of careless
driving, failing to stop after an accident, failing to report an accident and driving a
vehicle on a public road with defective brakes. The plaintiff duly filed an action
in the High Court against the owner of the vehicle and his driver, not being of
sufficient means was granted leave to sue in forma pauperis (as a pauper). The
plaintiff’s advocate was informed by the police officer who investigated the case,
that the vehicle in question at the material time was being insured by the National
Insurance Corporation of Tanzania Ltd.
On telephoning the corporation through the motor vehicle claims department the
plaintiff’s lawyer was informed by a clerk in charge of the department, that Mr.
Mushi’s vehicle was in fact insured by the corporation. There followed
correspondences between the Corporation and the plaintiff’s lawyer, and
subsequently the plaintiff filed a claim against the owner of the vehicle Mr. Mushi
and the driver. The owner’s defence was that he was not liable but the driver
admitted having been at fault and that at the time of the accident he was
performing an official duty.
The case came before the former Chief Justice Georges who gave judgement in
favour of the plaintiff and awarded him Shs 50,000/= damages.
77
The plaintiff’s lawyer attempted to secure damages from the corporation, the
corporation repudiated liability. The plaintiff duly filed an action in tort against
the corporation in wrongly informing him that the vehicle of Mr. Mushi was
insured by the corporation, when in fact the vehicle was insured by the British
India General Insurance Company and at the time such information was revealed
the plaintiff was already time barred.
Issues
A number of interrelated issues were agreed upon. They were as follows:
Whether Mr. Mwaikambo of the defendant company verbally presented to the
plaintiff’s counsel that Mr. Mushi’s vehicle was insured on the date of the
accident?
Whether the defendant company by their letter addressed to the plaintiff’s lawyer
(Advocate) put the plaintiff on inquiry as to the Company with which the motor
vehicle registration number TDN 518 was insured at the date of the accident as
alleged in the plaint?
Whether the answer to Issues (1) and (2) were in the affirmative the defendant
company was under a duty to the plaintiff to make representations with care?
If the answer to issue No. 4 was in the affirmative, whether the defendant
company made the said representations negligently and thereby admitted a breach
of duty?
If the answer to issue No 5 was in the affirmative whether the plaintiff had
suffered loss and damage as a result of such negligence?
78
If the answer to issue 6 was in the affirmative what relief was the plaintiff
entitled?
79
The communication by letter to the plaintiff’s advocate had denied that the
company was liable and therefore refused to satisfy the judgement.
That the defendant company was not under any duty to the plaintiff to make the
alleged or any statement or representations, that there was no breach of the
alleged duty, that the defendant was not guilty of any negligence to the plaintiff.
Holding:
Judgement for the plaintiff
Ratio Decidendi:
When one person has by his declaration, act or omission, intentionally caused or
permitted another person to believe a thing to be true and to act upon such belief,
neither he nor his representative shall be allowed, in any suit or proceedings
between himself and such person or his representative, to deny the truth of that
thing.
80
As this was the only letter on the file that which Mr. Mwaikambo consulted,
he must have known, or at least should have known as it so explicitly stated,
that the accident occurred on 15 April, and Mr. Chakera’s query was in
respect of that accident, Mr. Mwaikambo himself admitted that there had been
no other claim brought against the vehicle.
3. In answering Issues four and five Justice Biron made reference to the House
of Lords decisions, which at that time were of persuasive value. This came
about the fact that at independence appeals no longer lay to the Privy Council
(see Module V) from the courts in East Africa and the Court of Appeal for
East Africa in 1968 made a decision in Dodhia V National & Grindlays Bank
Ltd, [1970] EA on the rules of precedent applicable to East Africa which
affected the Court’s attitude towards foreign decisions.
(a) quoted a remark by Lord MacMillan in Donoghue V Stevenson, [1932]
AC 562;
However, in England the matter has now, I think, been finally settled by
the House of Lords’ case of Hedley Byrne V Heller & Partners [1963] 2
ALLE R 575. I think it is sufficient to quote the head-notes as follows:
81
“If, in the ordinary course of business or professional affairs, a person
seeks information or advise from another, who is not under contractual or
fiduciary obligation to give the information or advice, in circumstances in
which a reasonable man so asked would know that he was being trusted or
that his skill or judgement was being relied on, and the person asked
chooses to give the information or advice without deeply so qualifying his
answer as to show that he does not accept responsibility, then the person
replying accepts a legal duty to exercise such care as the circumstances
require in making his reply; and for a failure to exercise that care action
for negligence will lie if damage results”.
As you might notice this is an “If” proposition not binding on the judge at all. At the
same time the judge realized that English decisions or authorities were no longer
binding:
For the record I ought to add that, although English authorities are no longer
binding on this court, I can sense reason for holding that the law as laid down by
the House of Lords, is any different in this country, but in the contrary, I have not
the slightest hesitation in holding that it is the same. (emphasis added)
But because of the seemingly inadequacy of the case law authorities, the judge based his
judgement (decision) more firmly by employing the Doctrine of Estoppel from the Law
of Evidence Act, 1967 S.123:
---when a declaration is made by an employee in the ordinary course of his duties
or employment is liable for such a declaration.
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I would go even further to say the law has established a relationship between the
public and insurance companies and laid a fiduciary relationship or obligation on
the part of Insurance Companies, to exercise all due care and diligence in giving
proper and true information.
Notice the judge’s hunch. The decision was not based on precedents by a statutory
provision.
STATUTES GENERALLY
Parliament is the sole law maker and those persons or body of persons delegated
with such powers.
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Courts interprete the law (Ndyanabo’s case and ensuring debate between The
Speaker, Professor Shivji and the Tanganyika Law Society Bunge News Vol, 5,
16 of 2002]
Once a statute is in force it must be applied by the courts. “Judges have a judicial
notice of all public Acts”, a convenient device whereby knowledge of certain
matters are attributed to judges, such matters need not be proved in evidence
every time they arise in a case”.
Judges are required to take judicial notice of Community Acts or Treaties (The
East African Community).
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Judges have no power to abrogate a provision (Ndyanabo’s Case, the
Validity of Judicial Activism- Mwalusanya J (as he then was on the
basis of un constitutionality of certain laws in Tanzania).
Statute law can be known in advance, case law is known at the time
that it is made.
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Consolidation – the re-enactment in one statute some topic in law
previously contained in several different statutes, but without changing the
law. “All Consolidation Act are designed to bring together in one
convenient, Lucid and economic form a number of enactments related in
subject matter-previously scattered over the same statute-book”
A consolidating statute is presumed not to change the law but only to re-enact it in
a different place. When interpreting such a statute, you may apply cases already
decided on the meaning of the replaced Acts. In cases of ambiguity, the Acts
which have been consolidated may themselves be scrutinised.
4. Preparation of Legislation
The responsibility for initiating the vast majority of modern legislation
rests on the government. Private member’s Bills are Unlikely to become
law because of shortage of Parliamentary time.
Legislative proposals of a particular government department may be
approved in principle in the Cabinet and then handed to the
Parliamentary draftsman to be put into legal language inform of a Bill.
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After it has been through its Parliamentary stages and has received
Presidential
The Act may provide that different parts can be brought into effect on
different dates.
“An appointed day section” gives the Minister discretion to bring the Act
or parts of it, into effect when he feels it is appropriate to do so. He
cannot be compelled to implement the Act on any particular date. His
discretion is not completely unfettered.
Parliament must be taken to intend that legislation will come into force at
sometime and that its commencement will not entirely depend on
ministerial whim.
If there is no commencement section and no appointed day section, the
Act comes into operation on the day of assent….
What is a Statute?
Statute, signifies an Act of the legislature (Tomlin’s Law Dictionary)
A written law as distinguished from a customary law or law of use and
wont: a type of subordinate legislation applied generally to
be framed by University [S1, Indian Contract
Act (9 of 1972) S. 28(1), Aligarh Muslim University Act (40 of 1920)]
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Statute law “Statute law” is frequently used interchangeably with statute;
but the term is broader in its meaning, and includes not
only statutes as already defined, but also the judicial
interpretation and application of such statutes.
Statute Law, regulation, enactment, Act, Bill, Decree, Edict, Rule, Ruling,
Resolution, Promulgation, Measure, Motion, Dictum, Command, Order,
Stipulation, Commandment, Directive, Pronouncement, Ratification,
Proclamation, Dictate, Diktat, Fiat, Covenant, Demand, By-law,
[New Oxford TheSaurus of English 2nd Edn Oxf.U. Press 2004 p 907.
Introduction
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Statutory Interpretation:
According to Michael Zander (1980): 34- 37 Statutory interpretation is a
particular form of a general problem – the understanding of meaning or,
broadly still communication.
Even the simplest statement usually relies on an understanding of habits,
knowledge, values and purposes shared between the author and
recipient of the communication.
Legal documents speak not only to the present, but are also intended to
deal with the future. This notwithstanding, no draftsman can think of
everything.
According to Peter Goodrich, William Twining and David Miers legal texts are
coercive texts. They exist in a hierarchy and corresponding to such hierarchy
there are techniques of dealing with each level. Statutory texts or legislative rules
are a supreme source of law in the Common Law tradition.
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What do we mean by the term Interpretation or Construction?
According to E.A. Dredges construction means a process by which all
statutes like other writings are necessarily subject when read by anyone. It
is a process relating to the manner of ascertaining the intention of the
legislature.
The term interpretation means a process by which a judge (or any other
person) obtains a meaning from the words of a statute. It may also mean
how a dispute about words and their meaning is arrived at so that there is
consistency and certainty (ex rationale legis) in the law.
Those two processes are involved because the language of the law is a
specialised language. The categories and concepts used in a piece of
legislation when translated into an actual case is apt to bring forward a
different meaning altogether.
Regina v Ogibwang in Commonwealth Judicial Journal Vol. 1 No 7 May
1976 “When is a bird not a bird?”
Blue J (Canadian Supreme Court)
an appeal by the Crown by way of a case stated from a decision of
the magistrate acquitting the accused of a charge under The Small
Birds Act, R.S.O., 1960, c. 724, S.2,
The facts were not in dispute. Fred Ojibway, an Indian, was riding
his pony through Queens Park. Being impoverished, and having
been forced to pledge his saddle, he substituted a pillow in lieu of
the said saddle. On this particular day accuser’s misfortune was
further heightened by the circumstances of his pony breaking its
right foreleg. In accord with Indian Custom, the accused then shot
the pony to relieve it of its awkwardness.
The accused was then charged with having breached The Small
Birds Act, S.2 which states:
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Anyone maiming, injuring or killing a small bird is guilty
of an offence and subject to a fine not in excess of two
hundred dollars.
The learned magistrate acquitted the accused, holding, in fact, that
he killed his horse and not a small bird.
With respect, I cannot agree:
In the light of the definition section my course is quite clear.
Section 1 defines “bird” as “a two legged animal covered with
feathers.”
There can be no doubt that this case is covered by this section.
Arguments by Counsel
(1) He submitted that the evidence of the expert clearly
concluded that the animal in question was a pony and not a
bird.
The judge replied that this is not an issue. He stated, “We are not
interested whether the animal in question is a bird or not in fact,
but whether it is one in law. Statutory interpretation has forced
many a horse to eat birdseed for the rest of its life.
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(4) Counsels contended that the iron shoe found on the animal
decisively disqualified it from a bird.
Reply by the judge was that “I must inform counsel, however, that
how an animal dresses is of no concern to the courts.”
(6) Counsel finally submitted that the word “small” in the title
Small Birds Act refers not to “Birds” but to “Act”, making
it the Small Act relating to Birds.
The judge’s reply “with respect, counsel did not do his homework
very well, for the Large Birds Act, R.S.O 1960, C.725 is just as
small. If pressed, I need only refer to The Small Loans Act, S.O.
1960, C. 727, which is twice as large as the Large Birds Act.
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(7) Counsel submitted that having regard to the purpose of the
statute only small animals “naturally covered” with feathers
could have been contemplated.
Judges reply “However, had this been the intention of the
legislature, I am certain that the phrase “naturally covered” would
have been expressly inserted just as “long” was inserted in the
Longshoremen’s Act”.
Therefore, a horse with feathers on its back must be deemed for the
purposes of this Act to be a bird, and a fortiori, a pony with
feathers on its back is a small bird.
Appeal Allowed.
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local authorities, law teachers, students and others use in, interpreting
various documents [Twining & Miers Ch.10]
(b) The subjects of a statute or law are human or legal persons who
seek to organise their activities or lives in the light of their powers
and duties. It involves the exercise of freedom by the subject in
making a choice on what to do to enhance predictability of judicial
interpretation. In the light of these canons of statutory
interpretation to be learnt must be seen as mere guides not hard and
fast rules of law.
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Statutes and History
The way courts approach statutory interpretation vary according to the judges’ perception
of their constitutional role at any given period in question. The history and constitutional
role may be reflected through the Court’s or judges search for the mischief of the statute
in question [Bi Hawa Mohamed’s case Ndyanabo’s case, Joseph Warioba v Steven
Wasira’s case, RV Mbushu alias Dominic Mnyaroje’s case etc].
According to Ronald Dworkin, Laws Empire, Foutana Press, 1986 p 314…statutes
should be read, not, according to what judges believe would make them best, but
according to what the legislators who actually adopted them intended [Justice G.P. Singh
9th Edn 2004 pp2-31].
It is true that in American legal practice, judges constantly refer to the various statements
of Congressmen and other Legislators make… to form the legislative history of the Act,
which they must respect.
This view is not peculiar to the judges in the United States of America, to a certain
extent, British as well as other Commonwealth judges and Tanzania judges in particular
do make reference to the legislative history in order to interprete the import of words and
phrases in a given statute [Bi Hawa Mohamed’s Case, Warioba v Wasira’s case the
words “domestic services” and the words Takrima and corruption”.
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When dealing with canons and methods another relevant question is what is the status of
the rules and principles often invoked by judges in explaining their decisions whether
normal common law methods for judicial explanation of legal rules are statutory
interpretation?
According Benion:
[T] he “Unit of inquiry” in statutory interpretation is “an enactment whose legal
meaning in relation to a particular factual situation falls to be determined”.
This may be done by either looking at a single Act of Parliament or a single provision
within it or by combining elements from several Acts, then proceed to determine the
meaning in the light of the principles of interpretation or construction [Regina v
Obijway’s case].
Statutory interpretation may involve determining the meaning of a text contained in one
or more documents. Judges and writers on the subject discuss interpreting the Will of the
legislator or give effect to the Intention of Parliament. These two phrases seem to
suggest that there are two units of inquiry in statutory interpretation namely: the statutory
text and the Intention of Parliament. Judges must seek to harmonise the two.
There is a deception in the above proposition. Under English law the view is that the two
views (above) are closely connected, primacy must be given to the text in which the
intention of Parliament has been expressed.
Words must be understood in relation to the subject-matter of the legislation. The judge
must consider the reason and the spirit of it, or what caused the legislator to enact it
[Singida RTC V TPTC, [1979] LRTn ll]. The role of the judge is to seek the intention of
the legislative author from what is written in the text and seek to construct a text on the
basis of the subjective intention of the author [Regina v Secretary of State of Health
(Respondent) ex parte Quintavalle (on behalf of Pro-Life Alliance) (Appellant), [2003]
UKHL 13].
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of the legislator with regard to a particular statute cannot mean all of those who were
members of Parliament when the law was being passed, nor should it be taken to mean
the majority of the members of Parliament.
Lord Watson in Salman V Salan & Co Ltd, [1897] AC 22 at 38 said:
“Intention of legislature” is a common but very slippery phrase, which popularly
understood, may signify anything from the intention embodied in positive
enactment to speculative opinion as to what the legislature probably would have
meant, although there has been an omission to enact it. In a court of law or
Equity what the legislator intended to be done can only be legitimately
ascertained from what it has chosen to enact, either in express words or by
reasonable and necessary implication.
The meaning the court will attach to the statutory words or phrases will frequently be that
which it believes the members of the legislator attached to them or the meaning which
they would have attached to the words had the situation before the Court been present to
their minds. The object of a statute or particular section of it may be treated as part of its
context [New Great Insurance Co Ltd v Gross & Another, [1966] EA 90.]
According to Ronald Dworkin, Laws Empire, Foutana Press 1986 p 314 the interpretor
does the following:
He treats the various enactment that make up the legislative history as political
acts that his interpretation of the statute must fit and explain, just as it must fit and
explain the text of the statute itself.
[Bi Hawa Mohamed’s Case].
To do so sometimes English Courts are allowed to travel outside the Act with which they
are concerned in order to ascertain the object [Bi Hawa Mohamed’s Case, Warioba v
Wasira’s Case]
Elsewhere Ronald Dworkin, in “Political Judges and the Rule of Law” 1978 p. 25 says:
The question of legislative intention is not about the historical or hypothetical
view of the legislator, but rather concerns the meaning of words used in a
particular context.
[Mwinyimadi Ramadhani VR. Crim App. No. 150 of 1963 (High Court of
Tanganyika (Unreported).
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The concern of the judges is to use the conventions of ordinary language and statutory
interpretation to determine the words in the context seeking for the words, which
Parliament used [New Great Insurance Co Ltd V Cross & Another]
The Intention to be attributed to the Legislator is to be determined from the objectives of
the words used, rather than the subjective intention, which were not expressed in the text.
There are three principle situations in which people in general and judges in particular
speak of the intention of the legislator or parliament:
(a) Whenever the meaning of specific words is under consideration, the idea that a
particular meaning that which would or would not have been attached to a word
or phrase by the average member of Parliament;
(b) When the consequences of a particular constitution are under consideration, the
idea that the particular consequence might well have been in the mind of the
average member of Parliament;
(c) Those who feel uncomfortable about the use of the expression ‘intention of
Parliament’ ought not to feel more at ease to abandon the phrase.
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lawyers are too often prone. We sit here to find out the intention of Parliament
and Ministers and to carry it out, and we do this better by filling in the gaps
[emphasis supplied] and making sense of the enactment than by opening it up to
destructive analysis.
Upon which Lord Diplock and other members of the House of Lords disagreed with Lord
Denning LJ especially the last part of the above passage where he suggested that “…they
do it better by filling in the gaps…”The Law Lords felt that Courts were still subordinate
to Parliament Dupont Steel Ltd V Sirs, [1980] l ALL ER 529.
Intention of Parliament is justified by way each judge considers: “It is a Statement of the
attitude, not an element of social fact to be researched.” It is an expression of a
constitutional role adopted by the judges. Reading cases on statutory interpretation will
reveal that judges are not unanimous in their perception of what correct constitutional
role they should adopt. Whatever their approach at the end of the day there must be legal
certainty.
Extensive interpretation applies a statutory provision to a case which does not fall within
its words when literally construed [Nisbet v Rayne & Burn [1970] 2KB 689 in Dr. Avta
Singh Rep. 2005 p 161- Restrictive interpretation fails to apply a statutory provision to a
case which does fall within its words when literally construed Mwinyimadi Ramadhani v
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R’s Case; R v Omari s/o Kindamba & Anoth. [1960] EA 407 (T); Ebrahim Ahmed
Mohamed Modhaf v (l) (1956) 23 EACA 456, Singida RTCV TPTC, [1979] LRTn ll
100
secondary rules of a legal system which according to H.L.A. Hart are ‘rules of
recognition”. Such rules have double aspects, namely, they act as legal rules and
rules of social practice. [See HLA Hart, The Concept of Law, OUP 1966 (Repr.
1988]
From the point of view of a judge the rules and principles of statutory
interpretation are legally binding statements of the approach to be adopted. The
rules and principles for identifying the rules contained in statutory enactments
also form a social practice as to how lawyers should set about their tasks. The
Judiciary (and sometimes the legislator) establishes them according to the needs
of a particular epoch and the judiciary’s view of its constitutional role.
They establish the respective competence of the courts and Parliament in the
overall context of developing and changing the law. As other constitutional
contexts, the rules are not always stated with precision and they are capable of
different interpretations. The Social practice explains the vagueness and the
changing content of the rules and principles of statutory interpretation. Thus
judicial statements of statutory interpretation are not authoritative in the ordinary
sense of branches of substantive law. They express principles rather than legal
rules. [Emphasis added]
Statutes and Case law are distinct sources of our law (including English Law).
The question is whether the ordinary common law method (earlier learnt) of
reasoning and elaborating rules are applicable to statutes in the same way, as to
common law rules and principles? The answer is that statute law and case law are
distinct but they interact. Should statute law and common law be conceived as
separate divisions of English law?
According to Lord Wilberforce in Schilch Spinners Ltd v Harding [1965] 48
MLR 1:
In my opinion where the courts have established a general principle of
Law or Equity, and the legislative steps in particular areas, it must, unless
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showing contrary intention, be taken to have left the case outside that area
where they were under the influence of the general law.
Where an area is substantively one of legislative action, judges are reluctant to
admit the use of common law principles to interprete or supplement the legislative
code. This is explained by Lord Scarman in Pioneer Aggregates (UK) Ltd v
Secretary of State for Environment, [1985] AC 132 at 140 – 141; [1984] 2 All ER
358 at 363:
Planning control is a creature of statute. It is an imposition in the public
interest of restriction on private rights of ownership of land…. It is a field
of law in which the courts should not introduce principles or rules derived
from private law unless it be expressly authorised by Parliament or
necessary in order to give effort to the purpose of the legislation. Planning
law, though a comprehensive code imposed in the public interest, is, of
course, based on land law. When the Code is silent or ambiguous, resort
to the principles of private law (especially property and contract law) may
be necessary so that the courts may resolve difficulties by application of
common law or equitable principles. But such cases will be exceptional.
In statutory interpretation, reasoning by analogy within a statutory code is
acceptable by application of general rules permitting the use of other statutes on
the same subject to guide the interpretation [Interpreting statutes in parimateria:
John Nyamuhanga Bisare V R, [1980] TLR 6 & 132 Abdillah J Awdeh v R
[1958] EA 20; Rashid Moledina [1967] EA 645 National Grindlays Bank v
Vallabji [1966] EA 186
Summary:-
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3. A more restrictive approach to analogy and to interpretation reflects the
more concern for the rule of law and separation of powers.
4. The Rule of law requires Parliament to state clearly what it intends, and
the separation of powers requires the judge not to presume that he knows
how best to complete the legislative scheme.
5. Judges appear to be inclined away from the role of filling in the gap left by
the legislator.
1. Introduction
What do we mean by the terms construction and interpretation?
Construction is a process by which all statutes, like other writings, are necessarily
subjected to when read by anyone. It relates to the manner of ascertaining the
intention of the maker of the instrument or writing, that is the legislature in the
case of the statutes. It is a term of a wide sense or scope because it explains the
legal effects and consequences of the instrument in question.
Interpretation is a process by which a judge (or any other person) obtains a
meaning from the words of a statute. It is concerned with ascertaining the sense
and meaning of the subject matter, the written text, a statute in this case. The
process of interpretation is concerned with how a dispute about words and their
meaning is arrived at so that there is consistency and certainly (ex rationale legis)
in the law.
Statutory Interpretation is a particular form of a general problem- the
understanding of meaning of WORDS and PHRASES used in a statute. The
interpreter is concerned with technical words in legal documents, for example:
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statutes, contracts, and wills which speak not only to the present but also intended
to deal with the future and touch on conflicts of interests.
In the Common Law tradition, which Tanzania inherited from Britain, statutory
texts or legislative rules are a supreme source of law. The rules exist in a
hierarchy [The Constitution, Acts or decrees, rules, regulations, notices, statutory
instruments] and there are techniques of dealing with each level in the hierarchy.
As a beginner in law, you will learn the basic rules of statutory interpretation.
The main aim is to make you acquire the basic techniques you will need to
disentangle problems that relate to the interpretation of legal or other documents.
Interpretation of statutory texts and language will be done by means of linguistic
techniques of construction, interpretation and reading.
Meaning of Words
Statutory interpretation is the process by which courts determine the meaning of
statutory provisions for the purpose of applying them to factual situations brought
before them.
Interpretation may happen whenever anyone tries to understand the language used
by another person, the problem of interpretation occurs only when something goes
wrong.
The Merchant of Venie by Shakespeare, W.
Act IV Scene 1:
When Portia, the lawyer, was dealing with the interpretation of the contract
between Antonio and Shylock “a pound of flesh” nothing less nothing more and
no drop of blood.
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law if it is passed by a competent authority. Statute law is the expression of the
will of the Sovereign or supreme authority of the state binding over all in the
realm. Statute law is enacted law as opposed to common law (case law or judge
made law or precedents) and is authoritative both in matter of substance and form,
that is words of a statute contain or constitute law.
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e) Deliberate creation of legal precepts by an organ of government which is
setup for this purpose and which gives articulate expression to such legal
precepts in a formalized legal document.
4. Nature of Legislation
The constitution is supreme, it emanates from the supreme power in the state, and
therefore, it is incapable of being repealed, annulled or controlled by any other
legislative authority. The province of the legislature is to make or create law, that
of the judiciary (Courts) to interprete the law- Makame J, in Doris Liundi’s case
[1980] TLR 38 [HC*]
If is for the courts to pronounce the validity of enactments with reference to a
definite rule of law. courts have the power to review the validity of a statute by
reference to fundamental principles as laid down or fundamental rights as
guaranteed by the constitution- Julius Ishengoma Ndyanabo V AG Civil Appeal
No 64 of 2001 [ CA unreported].
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The doctrine of Colourable legislation
Objectives based on colourable legislation have relevance only in situations when
the power of the legislature is restricted to a particular topic and an attempt is
made to escape legal fetters imposed on its power, by resorting to forms of
legislation calculated to make the real subject matter.
The doctrine of Eclipse can be invoked only in the case of a law valid when made,
but a shadow is cast on it by supervening Constitutional in consistency.
AG for Canada V AG for Ontario [1937] AC326
5. Classification of Statutes
a) Classification by Object
(i) Declaratory Statutes: All statutes that are declaratory in nature
remove doubts existing to common law or the meaning or effect of
any statute.
Set aside what Parliament deems to have been a judicial error,
whether in the statement of the common law or in the
interpretation of statute.
Indicia---“declare” and “enacted”
Retrospective-declare meaning of existing law and does not
necessarily re open decided cases/disturb vested interests for
example The Land Tenure (Established Villages) Act, 1992 and
The Local Customary Law (Declaration) Orders 1963 GN. 279 and
436 respectively.
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Rule: Where there is a conflict between the terms of a statute and common law, the
former must prevail, if it is clear that it was the intention of the legislature in passing a
new statute, to abrogate the previous common law on the subject. i.e the Land Act, 1999
changes the Common Law rules on conveyancing, trust, landlord/tenant and mortgages,
b) Remedial Statutes- All statutes are by their nature remedial, that is, are
passed to remedy an existing mischief, that is defects or redress some
grievance. Other statutes are beneficial. But the Land Tenure
(Established Villages) Act 1992 caused some grievances.
d) Classification by Method
Permissive statutes
Imperative and mandatory statutes creating duties. They also refer to provisions which
lay down conditions prior compliance with which is a condition precedent for the validity
of an act or transaction.
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e) Classification by duration – Statutes are classified by duration on the basis
whether they are either permanent or temporary depending on the time set
out in the body of a statute. For example statutes establishing offices.
6. History of Legislation
Legislation reflects a creative act by public authority, which states authoritative
words.
It was not until the 19th Century that legislation became a productive source of law
and Parliament shifted from simply deliberating matters of general interest.
Before the 19th Century known Codes of Law were those of Emperor Justinian-
the Corpus Juris Civilis of 6th C. AD
That had been codified to ensure permanence of Roman Private Law System, and
the Code Napoleon which was codified 1300 years later as Code Civile and basis
of French law.
Why 19th Century it was necessary that legislation and Parliament became
important?
Rapid socio-economic changes brought about by the Industrial
Revolution.
16th Century saw the rise of Britain as sea power along with the Dutch.
At the same time there followed the diminishing relationship of unity
between nobility and princes, and the rise of relationship between the
merchants and princes, these relationships formed the pre-conditions for
the rise of a nation state. At the same time there was a rise of the idea of
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a national church to which the ultimate authority was not the Pope but the
Prince, a phenomenon which was manifested through Reformation.
The Machiavellian raison d’etat, namely that, the state has its own logic
and reason as an ideological tool for the emerging nation state.
The idea of natural law developed by Thomas Acquinas was pushed to the
background in its place was the social contract.
Three major epochs of this struggle were:
1200-1650 marked by the struggle for emancipation from the hegemony of
theology, the struggle associated with the names Hugo Grotius, Pfendorf
and Vatel Victoria.
1650-1750 marked by ideas of liberalism in economics and politics, the
main exponents were John Locke, Montesquieu and Jean Jacques
Rousseau.
1750-1800 dominated by the demands of bourgeois democracy and
sovereignty of the Will of the people. England, had developed a theory of
legislation suitable for the development of the days; the principle of Utility
as a measure or calcums for legislation.
110
separation of powers, that is, between the Executive, the Judiciary and the
Legislature.
111
On the basis of the principle of Utility which according to John Austin
was related to accumulation of property, savings, industrial production,
profit, payment of wages, more capital, consumption of goods produced
and abundance, all these amounted to pleasure.
The same principle of utility was a guide towards avoiding theft, which
led to lack of capital, savings, employment, wages and industrial
production, which ultimately led to poverty and pain. The law-making
body was to make general laws that would guard against the latter
consequences in favour of the former. Parliament having made laws of a
general nature, then it was the duty of lawyers to apply it as it is without
inquiring into its moral validity.
In 1832 England witnessed the establishment of Bourgeois rule and the
beginning of legislative action by Parliament. From 1832 to date,
Parliament has been and still is the centre of legislative activity.
(i) England
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The Crown: The Crown is deemed to have legislative competence
in overseas territories as an aspect of a sovereigns prerogative or
by Virtue of powers conferred or granted to it by Parliament in the
British Settlements Act, 1887 and the Foreign Jurisdiction Act,
1860 [for Protectorates, and Trust Territories]. The Crown
exercised this legislative power by way of Orders-in-Council. This
power is now vested in the Heads of States of the former British
Colonies.
Sources:
Ghai & McAuslan, Public Law and Political Change in Kenya,
1970 pp 335-339.
113
Apart from the above two sources of the power to legislate in the Colonies and
jurisdiction on the same was based on the Foreign Jurisdiction Act and the
African Order in Council 1889 (Uganda) and 1890 (Tanzania). It is important to
study the colonial history of each country.
The general common features in all territories were that the Governor was
controlled from London by the office of the Secretary of State. The Governor
was an absolute ruler.
By 1926 all the three East African territories had legislative councils to which
draft legislation and annual estimates were debated. The Consent of the Governor
was necessary for them to be passed. Under this system the Governor was
advised by an Executive Council.
There were also the so-called African Tribal Authorities nominated and elected
legislative Councils at a supra-tribal level, comprised of tribal Chiefs (Native
Authorities).
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ownership and tenure- the Imperial Decree 1895, which declared all land in
Tanganyika to be Public land vested in the Governor,
The Versailles Treaty 1918 that ended the 1914-1918 War- The First
world War- marked the appointment of Horace Byatt as Administrator of
the former German East Africa on 31st January, 1920 by the Royal
Commission. It must be noted, that, Tanganyika fell under the control of
the League of Nations, the latter organsation which appointed Britain to
administer the area under the Mandate of the League of Nations.
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guarantee freedoms of conscience and religion subject to maintenance of
public order and morals;
the prohibition of abuses, that is, slave trade, the arms traffic, prevention
of fortification or military or naval bases or military training of natures for
other purposes than police and defence of the territory.
In 1946 soon after the Second World War Tanganyika became a Trusteeship Territory
under the United Nations and in accordance with Ch. XII of the Charter of the United
Nations. Like the Mandate, the Trusteeship Agreement provided for the source and
definition of jurisdiction.
Article 5 (a) provided for full power to administer authoritatively in matters related to
legislative, administrative, and judicial functions over Tanganyika Territory. Such
authority was subject to the provision of the Charter of the United Nations and the
Trusteeship Agreement.
By virtue of the above principle, England as the administering authority for Tanganyika
was responsible for peace, order and good government, the defence of Tanganyika and to
ensure that Tanganyika played its part in the maintenance of international peace and
security. The Trusteeship Agreement did not confer Sovereignty on the British Crown
and there was no mention of allegiance.
The first Legislative Act on the Territory was the Proclamation of 8 th September 1916
dealing with custom duties and followed by other Proclamations and Notices between
1916-1920.
The 1920 Tanganyika Order in Council conferred to the Governor the power:
to make Ordinances for the administration of justice
the raising of revenues, and
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generally for peace, order and good governance of all persons in the territory.
Between 1920-1926 a total of 180 Ordinances were enacted by the Governor as the sole
legislative authority.
Legislative Council was not itself a legislature, it had to act with the Governor
whose Royal Assent was necessary before any Bill became law;
In 1945 the first Africans were nominated as representatives of their races to the
Legislative Council;
117
1948 the Legislative Council was composed of the President, Governor, official
members, ex-official members and nominated members;
1955 the Council was divided into official and unofficial members;
1956 further changes were made to the Council;
1958 persons holding public offices were disqualified from the Council;
1959 the Council was reconstituted;
1961 Parliament as known to day, but the Governor General was Head of state
on behalf of the Crown as well as Commander in Chief of the armed
Forces from 28th November, 1961.
Reference:
Morris & Read, The British Commonwealth: The Development of Its Laws and
Constitution- Uganda chapter 10
Cole & Dennison, Tanganyika: The Development of Its Laws and Constitution,
Steven Sons London 1964 chs 2 & 5
Moris & Read, Indirect Rule and Search for Justice Essays in African Legal
History, Clarendon Press Oxford, 1972
118
The aim here is to look at the way in which words and phrases are related to each
other, that is, the complex structure of statutory language and ways of simplifying
it.
Lord Denning once underscored the principal object of the draftsman as that
achieving certainty but in this pursuit lost sight of the equally important object of
clarity. In conceiving certainly the draftsman has brought absurdity. [Lord
Denning, The Discipline of Law, Butterworths London, 1979 p 9].
119
The Court asked itself whether a partly processed chemical technically described
as soap or merely the raw material for making soap.
Consider sections 285 and 287 of the Penal Code. Cap 16 (Tanzania) with that of
Ugandan Penal Code Sections 272 and 273:
Any person who assents any person with intent to steal anything, and, at or
immediately before or immediately after the time of the assault, uses or
threatens to use actual violence to any person or property in order to
obtain the thing intended to be stolen, or to prevent or overcome resistance
to its being stolen, is guilty of a felony, and is liable to imprisonment for
fourteen years.
120
If we would reduce the sections into a set of sentences it will appear something
like the following:
Logical Tree
No 1. ANY PERSON WHO STEALS ANYTHING AND
In order to
X B C Obtain or retain The
Uses Person or thing
or to prevent or
At the time or threatens
house (follow B)
property (follow
C)
overcome stolen D
Actual
(12 sentences) Violence at (6 sentences)
of stealing any
it
Stolen or
retained
Y
or
Immediately Note: There are 24 complete sentences in X.
Before Similarly for X and Z. Therefore the section
Z contains 72 different rules of law.
or immediately
after
121
The above diagram is however, a little bit cumbersome.
A much simpler one is a diagram called a Logical Tree; which may be defined as a series
of linked questions each of which helps to guide the reader to an ambiguous solution.
Cf: Lewis and Woolfenden, algorithms and Logical Trees- A Self- Instructional
Course
Logical Tree No 2.
Was the offender at the time of commission of felony armed with dangerous or offensive
NO
weapon or instrument?
NO
NO
Did he wound, beat or strike person at the time or robbery?
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NO
Did he wound, beat or strike any person immediately after the robbery?
NO
10 – 14 years Liable to
Liable to 14 years minimum
imprisonment for life
Using a logical tree, we can quickly check whether a set of facts come within one of the
possible sentences (provided that no question of interpreting the words involved).
NB: The lay out above is tentative. This illustrates one of the dangers of using logical
trees of which we should be aware. It assumes that the subsections (a) (b) and (c) in
section 273 (2) are alternatives and not that they must be satisfied before the offender is
found liable to the death penalty. This is to say it assumes that there should be the word
“or” between each and not “and” – but it could be the other way round.
Opoya V Uganda, [1967] EA 752 (U) does not solve this ambiguity. Why not?
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TOPIC THREE
Introduction:
There are no binding judicial decisions on the subject of statutory interpretation as
apposed to the interpretation of particular statutes. We shall learn a welter of judicial
dicta, which vary in weight, age and uniformity. Maxwell on Interpretation of statutes
12th Edition calls them “ the practitioners’ armoury (analogous to the place where the
army keeps guns and other equipment for fighting an enemy). The rules of English
statutory interpretation are:
1. The judge must give effect to the grammatical and ordinary meaning or where
appropriate technical meaning of words in the general context of the statute; he
must also determine the extent of the general words with reference to that context.
2. If the judge considers that the application of the words in their grammatical and
ordinary sense would produce result, which is contrary to the purpose of the
statute, he may apply them in the secondary sense or meaning which they are
capable of bearing.
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4. In applying these rules the judges may resort to aids of construction (Internal and
external) and presumptions. The aids include Internal: Internal Aids. Rules of
language, external aids and a number of presumptions.
Traditionally the main principles of statutory interpretation were three: the literal rule, the
Golden rule and the mischief rule. But since the 1970s there has emerged the purposive
approach [Lord Denning in Northman V London Borough of Barnet [1978] All ER 1243
CA at P 1246 cited in Joseph Warioba v Stephen Wasira and Anorth; [1997] TLR 272
(CA) see also Terence Ingman, The English Legal Process, 8th Edn 2000 pp 287 – 290].
In the course of reading the cases we will discover that no rule is single- headedly used in
the process of interpreting various statutory provisions. It will be expected that when
answering question not to simply state the method or rule applied to the Mischief rule
etc without showing how you have arrived at such a conclusion .
**Remember this is a course in methodology and not in simply producing right or
wrong answers.
A. The Literal Rule [Terrence Ingman (2000) pp 253 – 257; Justice G.P. Singh 9 th Edn
2004 pp 78 – 109]
According to the Literal rule of statutory interpretation courts should adhere to the
Literal legis ita scripta est. The rule prohibits judges from adding or taking from or
modifying the letter of the law. The words of a statute must be read in their ordinary,
natural and grammatical meaning.
In Pinnet v Everett, [1969] 2 ALL ER 257 at 258 – 259 Lord Reid in the House of
Lords stated inter alia:
In determining the meaning of any words or phrases in a statute the first question
to ask always is what the natural and ordinary meaning of that words or phrases in
its context. It is only when the meaning leads to some results, which cannot
reasonably be supposed to have been the intention of the legislature that it is
proper to look for some other possible meaning of the word or phrases [emphasis
added].
As you will note in the course of learning law and reading cases involving statutory
interpretation, different judges have advanced different views on how the literal rule
125
has to apply. The main trend has been the so - called Grammatical Interpretation. To
some judges this is the safer rule because they think; it is a rule of common sense.
To follow the literal rule means that even when the language of the statute is
incapable of meaning, the court cannot and should not supply one.
In Seaford Court Estate Ltd V Asher [1949] 2 KB 481 at 498 – 499 Lord Denning
had the following to say:
The question for decision in this case is whether we are at liberty to extend the
ordinary meaning of “burden” so as to include a contingent burden of the kind I
have described. Now this court has already held that this sub – section is to be
liberally construed so as to give effect to the governing principles embodied in the
legislation [Winchester Court Ltd V Millers,
(1) [1944] KB. 734, and I think we should do the same. Whenever a statute
comes up for consideration it must be remembered that is not within human
power to foresee the manifold sets of facts, which may arise, and, even if it were,
it is not possible to provide for them in terms free from ambiguity. The English
language it is not an instrument of mathematical precision. Our literature would
be much poorer if it were. This is where the draftsmen of Acts Parliament have
been unfairly criticised. A judge believing himself to be fettered by the supposed
rule that he must look to the language and nothing else laments that the draftsmen
have not provided for this or that, or have been guilty of some or other ambiguity.
It would certainly save the judges the trouble if Acts of Parliament were drafted
with divine prescience and perfect clarify. In the absence or it, when a defect
appears a judge cannot simply fold his hands and blame the draftsman. He must
set to work on the constructive task of finding the intention of the Parliament,
and he must do this not only from the language of the statute, but also from
consideration of social conditions which gave rise to it, and of the mischief it was
passed to remedy, and then must supplement the written word so as to give
“force” and “life” to the intention of the legislature. That was clearly laid down by
the resolution of the judges in Heydon’s case (1), and it is the safest guide to day.
Good practical advise on the subject was given about the same time by Plowden
in his second volume Eyston v Studd (2). Put into homely metaphor it is this: A
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judge should ask himself the question: If the makers of the Act had themselves
come across this truck and texture of it, how would they have straightened it? He
must then do as they would have done. A judge must not alter the material of
which it is woven, but he can and should iron out the creases. Approaching this
case in that way, I cannot help feeling that the legislature had not specifically in
mind a contingent burden such as we have. If it had would it not have put it on
the same footing as an actual burden? I think it would. It would have permitted
an increase of rent when the terms were so changed as to put a positive legal
burden on the landlord. If the parties expressly agreed between themselves the
amount of the increase on that account the court would give effect to their
agreement.
Almost the same views appears in Magor & St. Mellons V New Port Corporation, [1950]
2 All ER 1226 at 1236:
I would repeat what I said in Seaford Court Estates Ltd V Asher (4) We do not sit
here to pull the language of Parliament and of Ministers to pieces and make non
sense of it. That is an easy thing to do; and it is a thing which lawyers are too
often prone. We sit here to find the intention of Parliament and of Ministers and
carry it out, and we do so better by filling the gaps and making sense of the
enactment than by opening up to destructive analysis.
In the two passages it is interesting to note that Lord Denning (as he then was) in
interpreting statutes, the judges do fill in the gaps in trying to identify the intention of the
legislature. He further suggested that in the process judges are likely to depart from the
so-called literal meaning of the words or phrases.
Lord Simmonds emphasises the need for judges not to travel outside the words of
Parliament or what Parliament has said. Thus there seems to be a tug of war between
those who want to adhere to the plain meaning and those who in order to determine the
plain meaning of the words or phrases in a statute do invoke “the Intention of the
legislature” to guide them. Through the so called intention of the legislature they are able
to discover the plain meaning: Mwinyimadi Ramadhani VR It would seen from the above
cited case and other cases purportedly decided in the basis of the plain meaning rule, the
127
court or judges have not simply proceeded from the presumption that the words are
plain and unambiguous without necessarily referring to what the legislator intended.
Singida RTC v Tanzania Posts and Telecomm. [1979] LRTn 11
In this case the court was called upon to interpret section 73 (b) and section 117 of The
Telecommunications Act, 1977 and Regulations 5(b) of the East African Telegraph
Regulations, Legal Notice No 1 of 1970. This was necessary because the plaintiffs had
filed a suit for damages arising out of alleged negligence on the part of the defendants. In
a written defence, the defendant pleaded as preliminary point in which they maintained
that the suit could not stand in law because the root cause of action was pertinent and the
court had to make a ruling on it.
The facts were that the plaintiffs dispatched a telegram at a Post Office at Singida, which
is owned by the defendants. The telegram require persons to whom it was sent to dispatch
to the plaintiff four thousand corrugated iron sheets. Due to the negligence of the
defendant’s servants either at Singida or Dar es salaam Post Office, “four thousand” read
“forty thousand.” On receiving a wrongly worded Telegram the person to whom it was
sent dispatched the first consignment of twelve thousand corrugated iron sheets to the
plaintiff. In turn the plaintiff was forced to transport back to the consignor the excess
amount of corrugated iron sheets at a cost of Shs 39,200/= which amount the plaintiff was
claiming from the defendant.
The question was whether the defendants were liable at all?
Counsel for defendants argued that the suit was not maintainable because the applicable
law: The Tanzania Posts and Telecommunications Act, 1977 expressly
exempted the defendant from liability. He Cited S. 73(b) and section 117 of the Act.
S.73 … save in so far as it is provided to the contrary in regulations made under
S. 76, the corporation shall not incur any liability.
128
… made under the East African Posts and Telecommunications Corporation Act
and,… subsidiary legislation set out …
the second schedule this Act … as if that subsidiary legislation was made under
this Act.
Counsel for this plaintiff maintained that the dispute did not lie in the fact that the suit
was covered by the statutory provisions referred to by counsel to the defendant. Before
such exceptions can be brought in favour of the defendants, the nature of the error had to
be considered because in the counsel’s view statutory provisions were no intendeds to
cover all types of errors. According to the counsel for the plaintiff S. 73 (b) was intended
to cover such errors like those due to faulty apparatus, and not errors due to lack of
training, laziness or poor perception by the employees of the defendant.
The judge addressed his mind to S. 73 of the Act and made reference to the Second
schedule of the Act which contained a list of subsidiary legislation under The East
African Post and Telecommunications Corporations Act. Special reference was made to
Legal Notice No 1 of 1970 in which regulations 5(b) of the said regulations provided:
S 5 The Corporations shall not incur any liability …
a)…..
b) by any person of any delay in transmission of any telegram or by reason of any
error in, or omission from, or non delivery or misdelivery of any telegram.
This provision the court (judge) observed was similar to the wording of S. 73 (b)
of the Act and both were conched in exactly the same words.
The issue the judge raised was what meaning and effect did these provisions have on the
matter in issue in a suit before him? The judge first started the Cardinal principle of
statutory interpretation:
The cardinal canon of construction statutes is to give the words used in the
statutes their ordinary and plain meaning. Generally speaking, therefore, the
courts must be content to accept the ordinary and plain meaning of words used in
a statute as conclusive evidence of what the legislature has said and meant.
Then quoting from Salmond’s book Jurisprudence 11th Edn at pp 132 – 133:
129
The essence of the law lies in its sprit, not in its letter, for the letter is significant
only as being the external manifestation of the intention that underlies it.
Nevertheless, in all ordinary cases the court must be content to accept the litera
legis as the exclusive and conclusive evidence of the sententia legis.
They must in general take it absolutely for granted that the legislature has said
what it has meant and meant what is has said. Ita scripta est is the first principle of
interpretation.
Judges are not at liberty to add, or take from or modify the letter of the law,
simply because they have reason to believe that the true sententia legis is not
completely or correctly expressed by it.
Having stated the principles, then the judge enumerated instances in which the above
principles of interpretation can be departed from:
Where the language used in a statute under consideration is vague or ambiguous,
or where it is plain that it is logically defective, or where its literal interpretation
would lead to such obvious absurdity or unreasonableness as to make it plain that
the legislature could not have meant what is said. In the absence of evidence to
that effect, the courts have no option but to take it for granted that the legislature
has said what it meant and meant what it has said.
In the judge’s opinion the statute under consideration was of a special nature [Cross,
Statutory Interpretation, 2nd Edn 1987 p 42, Pionee Aggregates (UK) Ltd V Secretary of
State for Environment [1985] AC 132 at 140 – 141 -The statement of Lord Scarman]
The judge then cited the statement of Gouldie J in James V Commission of Transport,
[1958 EA 313 at 315 (as an authority for his for his view):
130
Statutes conferring statutory power on public undertakings must be strictly
construed and it has been repeatedly held that they are not to be construed so as
they affect the Common law rights of the individual unless such an intention is
clear from the wording of the statute.
From the foregoing the judge considered the provisions of the Act in question and came
to the conclusion that the legislature intended to remove any doubt that it had said what it
meant. The words are so mandatory i.e. “shall be liable.”
Further the judge considered the words or phrases “any error.” The judge was not at one
with the Counsel for the plaintiff that the mind of the judge “any error must mean what it
says”.
In the sense in which the word “any” is used in that context it must mean “all.”
The Language used in the Act was intended to protect the Corporation in every section of
the Act.
If the legislature had intended to exclude some errors, such as those due to
carelessness, laziness, etc; of the corporation’s staff, as distinct from errors made
or done bonafide,
It would certainly have said so just as it has done with regard to liability for
members of the Board (S. 107 of the Act)
It was the view of the judge that this law was explicitly taking away the Common Law
rights of the individual, i.e. no liability for negligence can lie on the Corporation. But the
judge said:
...that is no reason for departing from the true meaning of the words used and the
intention to be gathered therefrom. The language used in the Act makes it quite
clear that the intention of the legislator was to place, the Common Law rights of
the individual in the second place.
All in all, as a positivist, the judge said that he was dealing with the law as it is not as it
ought to be:
131
It is true that a victim of error in a telegram, such as the plaintiffs may raise eye
bows about the fairness of these provisions. But that is a moral question. Courts
may not question the morality of statutory (provisions) law. All they are there do
so is to discover what the legislature has said and meant and find out from the
language used in a statute; which it has said what it meant, and mean what it has
said.
More Readings:
Max Radin, “Statutory Interpretation”, 43 Harv. LR (1930) 863 AT 870
Patterson, Jurisprudence, Brocklyn, Foutana Press 1953 p 203
Glanville Williams, Learning the Law 11th Edn London, Steven & Sons
1982 pp 102-106
Cases:
Opoya v Uganda, [1967] EA 752 (U)
G.B. Shaw, Mad and Superman in G. Williams, Learning the Law, 11th Edn 1982
p 97
The Golden Rule states that the grammatical and ordinary sense of the words
must be adhered to unless to do so would lead to absurdity, some repugnancy
inconsistent with the rest of the instrument…in which case the grammatical and
ordinary sense of the words may be modified so as to avoid absurdity or
inconsistency but no further.
132
The Golden Rule is exactly the same as the Literal Rule except that it reflects all
considerations of social policy behind the Act and therefore it has no application
to statute framed in wide and general terms. The Golden Rule expressly specifies
an Occasion when the Court has to depart from the plain meaning, namely, where
to adhere to the plain meaning would lead to absurdity or absurd results. It allows
judges to use their social and political views when interpreting statutes.
According to G. Williams Learning the Law 1952 pp 106 – 108 the Literal and
the golden rules are not really two rules of law in opposition of each other. They
are not fixed rules binding on the court but they are modes of approach. All will
depend on the temperament of the judge to which of the rules need be adopted in
any given case [Singida Regional Traiding Company Ltd, v Tanganyika Post and
Telecommunication Corporation [1979] LRT11 whether the judge should have
used the Golden Rule of Interpretation]. The Golden rule disregards absurdity
while the literal rule does not.
The Golden rule also calls on judges to consider the principle of justice when
interpreting statutes.
The use of the Golden Rule elevates the judge from the status of being a mere
applier of the law to conscious individuals who can exercise their discretion and a
sense of justice.
133
decide whether the same principle applied so as to preclude a murderer from
claiming a benefit conferred on him by statute where the victim died intestate. By
the Administration of Estates Act, 1925 the residuary estate of a person dying
intestate was to be divided among the “issue”. Mrs Sigsworth died intestate
leaving only a son who, a coronor’s jury found, had murdered her. The question
for the Court was whether the son as ‘Issue’ could succeed on the mother’s
intestacy. Clanson J held that he could not.
He said that the principle of public policy which prevents a murderer from
reaping the fruits of his crime must be applied in the Construction of Act of
Parliament so as to avoid conclusions which are obnoxious to that principle. In
reality, while not mentioning any so-called “rule” of interpretation, Clauson J in
Re Sigsworth in effect applied the golden rule in preference to the literal rule
since the only possible literal interpretation of ‘issue’ must include a son. [You
can read many more examples in the proceeding pages]
An example of cases from East Africa:
134
Kentiles gave the Bank the requisite mortgage, but did not obtain the consents for
a conveyance of land as required by S. 7 of the Crown Lands Ordinance, Cap 150,
1948 as amended.
The Courts below held that the absence of Consent invalidated the purported
conveyance by way of mortgage, so that the Bank lost its mortgage, and hence its
priority over the other creditors on Kentile’s Insolvency.
The Bank appealed to the Privy Council.
Lord Wilberforce…on the substance of the appeal, the first Issue is whether the
Bank is a legal mortgagee of the property?
The Company’s claim [i.e. the claim of the Official Receiver as Liquidator] was
that the legal mortgage…was valid…because the Bank had failed to obtain the
consents necessary, in relation to land in the Highlands, under the Land Control
Ordinace and the Crown Lands Ordinance…
Their Lordships do not consider it necessary to deal with more than one (of
several contentions by the Bank], the conclusion as to which appears to them clear
and which is sufficient to dispose of the appellant’s contention that the legal
mortgage was validly created, namely that which arises from the absence of
consents under the Land Control Ordinance and the Crown Land Ordinance S.7 of
the Land Control Ordinance, cap 50 as amended by S.2 of the Land Control
(Amendment) Ordinance, 1949 (No 38 of 1949) provides that ‘no person’ shall
without the consent of the Land Control Board mortgage or charge any land in the
Highlands and S.88 of the Crown Lands Ordinance contained similar prohibition
against mortgaging land in the Highlands without the consent of the governor.
Each of these sections provides that transactions effected without such consent
shall be void. Neither consent was in fact obtained.
The contention of the appellants was that although in accordance with the
Interpretation and General Clauses Ordinance, Cap 1. the word ‘person’, unless
there is something in the subject or context inconsistent with such Construction,
includes a Company, there was such an indication in each Ordinance.
135
Generally it is said that the legislation was of a racial character and that race is
characteristic of Individuals. When companies are involved control is exercised
not over the corporate body itself over its shareholders; more particularly it was
argued that in S.90 of the Crown Lands Ordinance which refers to person ‘of a
different race to the person by whom such land was sold’, ‘person’ can only mean
an individual, and that consistency of interpretation required that the word
‘person’ should have the same meaning throughout the legislation.
Their Lordships recognise that these indications have some force but
consider that they are far outweighed by anomalies which would arise if
companies as such were to be exempted from the requirements of the
legislation. It is true that there are provisions, which enable control to be
exercised over changes in the shareholders of landowning companies, but,
if the appellant’s construction is correct, Companies would enjoy a far
greater freedom as regards dealing in land in the Highlands than do
individuals.
Rather than accept such an anomalous result their Lordships prefer to recognise
that the word ‘person’ is used without consistency or accuracy in this legislation,
the drafting of which is indeed, in many respects far from precise, and that the
limitation of the word ‘persons’ to individuals in one context does not impose the
same meaning in another. Their Lordships therefore conclude that consent under
each Ordinance was required and that the absence of such consent invalidate the
purported legal mortgage…
Notes
1) The Privy Council in this case departed from the ‘plain meaning’ rule, just
as was the case in the East African Court of Appeal departed from the
‘plain meaning’ rule in AG of Uganda V Kabaka’s Govt, [1965] EA 593.
Can you explain why the Court will adopt the plain meaning rule in one
case, and the so-called ‘golden rule’ in another?
136
2) Can a Court decide to adopt the ‘golden rule’ and re-write a statute,
without first determining what policy or purpose the legislation is
supposed to serve? Explain with examples from cases you have studied.
3) Glanville Williams, Learning the Law, London Stevens and Sons 1963 pp
99-101:
Judges vary in the extent to which they are prepared to modify
words of an Act to arrive at a just and sensible result.
Some judges insist that statutes are just to be applied literally,
however absurd the Consequences, it will be for Parliament to put
the absurdity night.
This is called the ‘literal rule’ [or plain meaning’ rule] of
interpretation.
Others more liberal in their approach, will modify the words to
prevent absurdity, this is sometimes called the Golden rule’
Discuss the validity or otherwise of the above proposition in the
light of Ndyanabo’s case; the approaches by the Majority judges in
the High Court and the judgement of the minority judge in the
same Court.
4) Consider whether or not the judge in Singida RTC Ltd V Tanganyika Post
and Telecommunications Corporation, [1979] LRTn. 11 could have
invoked the Golden rule to avoid reaching the results he reached?
C. The Mischief Rule or The Rule in Heydon’s Case [See Also Dr. Avtar Singh,
Introduction to Jurisprudence, Reprint Edn. 2005 pp 158-160; Terence Ingman,
The English Legal Process, Eighth Edn. Blackston Press Ltd 2000 pp 261-264]
Note:
1. A verbis legis non est recedendum from the words of the law, there should
be no departure.
137
2. The ambiguity and complexity of statutory words makes the Court duty
bound to ascertain the so-called intention of the Legislature.
Intention or Mischief calls for ascertaining the rationality of the words
passed by Parliament.
[See Ronald Dworkin, Laws Empire, Foutana Press 1986 Ch 9 pp 312-354; Lloyd
of Hampstead, et al, Introduction to Jurisprudence, 1979 pp 865 ff.
Historical Background:
The Mischief or Heydon’s case Rule was developed in 1584 by the Barons of
the Exchequer (Heydon’s Case 3 Co. Rep. 7a; 76 ER 637 Exchequer See also
Twining, W; & Miers, D: How To Do Things With Rules, 3rd Edn 1992 pp
166 – 169; 211-212 and Cross, R: Statutory Interpretation, 2nd Edn 1987 pp 10
– 19]
The Barons of the Exchequer resolved that the sure and true interpretation of
all statutes in general (penal) or beneficial, restrictive or enlarging of the
Common Law, four things have to be put into Consideration:
138
1. What the Common Law before making the Act was.
2. What the Mischief and defect for which the Common Law did not
provide.
3. What was the remedy the Parliament hath resolved and appointed to
cure the disease of the Commonwealth.
4. The true reasons of the remedy and then the office of all judges is
always to make such construction as shall suppress the mischief, and
advance the remedy, and to suppress subtle intentions and evasions for
continuance of the Mischief and pre-privato Commodo, and to add
force and life to the cure and remedy, according to the time intent of
the makers of the Act probono publico.
The Mischief Rule provides a method which judges use in order to determine The
purpose for which a law has been enacted. To understand how it works in
practice let us look at the following cases examples drawn from the activity of the
Courts in East Africa and Tanzania:
139
Counsel for the appellant cited a principle, which related to the third ground of
appeal that the sentence was excessive. It was in the High Court Case
(Kenya) in Wanjema V R [1971] EA 493 in which it was pointed out by
Justice Kisanga that such a case was not an authority because it had not been
followed by Onyinke J in Republic V Mohamed Bashir, [1973] LRTn 51
where the judge has stated that Wanyema’s case was to be considered as a
guide not a rule.
The judge’s view was as follows:
The basic principle which should guide courts in any country is that It is
their duty to carry out the purpose of the legislature in creating an offence
and prescribing punishment.
The Courts have to consider the Mischief aimed at and the measure
adopted by the legislature for dealing with it. Where the legislative
provision which creates the offence makes it punishable with
imprisonment without an alternative of fine, the courts should impose a
prison sentence unless the circumstances disclosed by the evidence or the
facts given by the accused in his plea in mitigation of the sentence warrant
a different form of punishment. In Tanganyika Section 44 of The Traffic
Ordinance, Cap 168 which creates the offence of causing death by
dangerous driving makes it punishable with imprisonment without
expressly providing for the levy of a fine as an alternative.
The Mischief aimed at was the increasing rates of fatalities on the roads
caused by dangerous driving. The legislature has prescribed the measure
for dealing with this danger to the public. As was stated in the case of
Wanjema in these days of appalling fatality figures on the roads drivers
should know and know clearly that if they cause death by dangerous
driving they are in imminent danger of being sent to prison.
Then on the basis of the above proposition Justice Kisanga said the approach was
advantageous because:
It allowed the Court to implement the intention of the legislature. i.e. to
take stiff measures against the increasing fatalities on the roads caused
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by dangerous driving and yet allow flexibility whereby courts may
impose linient or alternative form of sentence where the circumstances
of a particular case warrant it.
Therefore, I respectfully think that this approach is to be preferred.
The appellant was convicted on his own plea to the court on charges under
section 49 (11 of The Fauna Conservation Ordinance, Cap. 303 for
unlawful possession of government trophies (elephant tasks, rhinoceros
horns etc). He was sentenced to 15 months imprisonment and a fine of
3,000/= or six months imprisonment in default. The trophies were
forfeited to the government. The appellant appealed against the said
sentence.
The offence to which the appellant pleaded fell under the provisions of
section 53 the material part being sub-section (1), which provided inter
alia that:
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to a fine of ten thousand shillings or to imprisonment for six
months or to both such fine and imprisonment, or, in the case
of subsequent offence, to a fine of fifteen thousand shillings or
to imprisonment for nine months or to both such fine and
imprisonment.
The sentence imposed upon the appellant could have been validly imposed
only if the offence before the court was punishable under sub-para (1) of
the sub –section.
The offence was not committed in respect of any animal within the
meaning of sub-para (i) so that the appellant fell under the provisions of
sub-para (ii) and the result being that as first offender was not liable to
imprisonment which he did.
The offence was not committed in respect of any animal within the
meaning of sub-para (i) so that the appellant fell to be punished under
sub-para (ii) with the results that being first offender he was not liable for
imprisonment for a term exceeding six months.
To support his argument the counsel cited Salehe s/o Issa V R where the appellant having
pleaded guilty to unlawful possession of two elephant tasks contrary to section 49 (1) of
The Fauna Conservation Ordinance had been sentenced to eighteen months
imprisonment. It had been argued on appeal that, the term was ultra vires the Court
142
because the offence was not committed in respect of any live animals. The judgement of
the Learned Chief Justice went as follows:
The Contention raised by the Counsel for the appellant was that the possession of
elephant tasks already severed (as they were) from an elephant, cannot be an offence
in respect of any animal at all, since “animal” must mean a living animal.
I do not think this contention prevails. The definition of “animal” in the Ordinance is
of no assistance on the point.
The appellant’s offence was under S 49 (1) namely unlawful possession of trophies,
and a “trophy” is defined meaning “any animal dead or live, and any horn, ivory,
tasks, bone, claw, hoof, skin, hair, feather, egg or other durable portion whatsoever of
any animal whether possessed or not, provided that it is ready recognizable as durable
portion of an animal.”
“It is undisputed that severed elephant tasks are trophies within the above definition.
But the definition makes it equally clear, to my mind that to be unlawfully in
possession of a trophy is an offence committed for the purposes of this Ordinance, in
respect of an animal, whether or not the animal from which the trophy (if it is part of
an animal such as task) has been severed is alive or dead at the time when the accused
is found in possession of it.”
The ground for decision in the present appeal turned on another point.
Suffice it to say that the remarks of the Chief Justice were Obiter, although they had to be
treated with great respect.
The Court considered the counsel for the appellant’s arguments and the authority cited.
It was found true that the appellant’s offence consisted in unlawful possession of a
number of elephant tasks and a quantity of rhinoceros horns. These were indisputably
trophies within the meaning of the Ordinance.
Prima facie the appellant had committed an offence in respect of such trophies:
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a) The word ‘animal’ appearing in sub-para (1) of s. 53(1) of the Ordinance is defined in
terms wide enough or is otherwise to include the trophy of such animal, or
b) The expression “offence…in respect of any animal” appearing in that sub-paragraph
can be said to mean not only an offence in relation to any animal from which a trophy
the subject matter of a charge must at some time in the past have been severed.
“Animal” according to S. 2 of the ordinance means any kind of vertebrate animal and
the eggs and found thereof, other than domestic animals and, except in SS 5 (1) and 17
expressly provide “fish”.
“Trophy” is in the same section defined as…any animal, alive or dead, any horn,
ivory, tooth, task, bone, claw, hoof, skin, hair, feather, egg or other durable portion
whatsoever of any animal whether processed or not, provided that it is readily
recognizable as durable portion of such animal”.
Despite the fact that the word “animal” is defined wide enough to include trophies and
the word trophie wide to include animal, not every trophie is an animal.
A Clear distinction is made by the ordinance between the animal and its trophy to
such an extent that no single provision in the Ordinance in which the word animal is
used to mean anything but animal as defined in S.2 namely, the animal as distinct
from any part of it being a trophy.
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e) Any animal or trophy which is in the possession of any person and which
may be reasonably suspected of having been stolen or unlawfully
obtained…
f) Any elephant tasks weighing less than twenty two pounds a pair, or eleven
pounds in the case of an elephant having a single task, or such other whole
territory or any particular area;
g) Any other animal or trophy, which may be prescribed.
Phrases or words “in respect of which the offence has been committed”
Law, J made the following:-
On a literal interpretation, the words “in respect of which the offence has been
committed” must in my view, refer to the subject matter of the offence, and not to
things indirectly or incidentally connected with the commission of the offence.
[For further reading see M.C. Mukoyogo, OLW 104: Legal Method: Statutory
Interpretation Part III 1996 PP 66 – 71]
8. The basic task of the Court is to ascertain and give effect to the true
meaning of what Parliament has said in the enactment to be construed. But
that is not to say that attention should be confined and a literal
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interpretation given to the particular provisions which give rise to
difficulty.
Such an approach not only encourages immense prolixity in drafting, since
the draftsman will feel obliged to provide expressly for every contingency
which may possibly arise. It may also (under the banner of loyalty to the
will of parliament) lead so the frustration that will, because of undue
concentration on the minutiae of the enactment lead the court to neglect the
purpose, which Parliament intended to achieve when it enacted the statute.
Every statute other than a pure consolidating statute is, after all, enacted to
make some change, or address some problem, or remove some blemish, or
effect some improvement in the national life.
The court’s task, within permissible bonds of interpretation, is to give
effect to Parliaments purpose. So the controversial provisions should be
read in the context of the statute as a whole, and the statute as a whole
should be read in the historical context of the situation, which led to its
enactment.
D. Purposive Approach:
Through judicial efforts especially by Lord Denning, The Discipline of the
Law, 1979, p 9;
The Closing Chapter, 1983, pp 94 – 107 and 110 – 14) to improve
interpretative techniques- the object of statutory interpretation is to
discover the intention of Parliament. But he argued that, the actual words
used in the statute are only the starting point and not the finishing point.
He preferred the “purposive” approach to literal approach. He was an
“Intention” seeker rather than a “strict literal constructionist’.
The purposive approach is the European approach to statutory
interpretation and Lord Denning recommended its extension to Acts of the
United Kingdom Parliament. Lord Denning also aired his view from the
Bench in Northman v London Borough of Barnet,
[1978] 1 All ER 1243 at 1246 CA:
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The literal method is now completely out of date… In all cases
now in the interpretation of statutes we adopt such a construction
as will “promote the general legislative purpose underlying the
provision” [quoted from the Law Commission Report No. 21] It is
no longer necessary for the judges to wring their hands and say:
“There is nothing we can do about it”. Whenever the strict
interpretation of a statute gives rise to an absurd and unjust
situation, judges can and should use their good sense to remedy it
by reading words in, if necessary- so as to do what Parliament
would have done had they had the situation in mind.
When the Nothman’s case reached the House of Lords [1979] 1 ALL ER
142, Lord Denning’s approach was criticised. In particular, his attempt,
single handedly and without legislation, to implement the Law
Commission’s recommendations of 1996 was too much for Lord Russell
of Killowen, who expressly declared Lord Denning’s ‘sweeping
comments’.
Lord Denning’s purposive approach to interpretation of domestic
legislation received little judicial support at the time.
But in R V Pigg [1983] 1 ALL ER 56
A unanimous House of Lords had no hesitation in preferring a purposive
approach to literal interpretation. And later the House of Lords said that a
judge may adopt a purposive approach only if he can find it in a statute or
in permitted extrinsic materials, an expression of Parliament’s purpose or
policy: Shah v Barnet London Borough Council, [1983] 1 ALL ER 226
[HL]. The judge is permitted to interprete legislation in the light of his
own views on policy. The only concession allowed to judicial creativity
by the above case is that judges adopt a purposive approach to
interpretation if the purpose or policy of Parliament is discernible from the
statute itself or from the materials to which they are permitted by law to
refer as an aid to the construction of the statute.
The House of Lords moved towards a purposive approach in the
interpretation of international conventions and treaties n Fothergill
147
V Monarch Airlines Ltd [1980] 2 ALL ER 696 (HL) (To be
discussed later on]
See Terence Ingman, The English Legal Process 8th Edn.
Bladistone Press Ltd 2000 pp 264 - 290
The Purposive Approach of Statutory Interpretation in Tanzania:
Republic V Mbushuu alias Dominic Mnyaroje
[1994] TLR 146 (HC)
Introduction
In Cross, Statutory Interpretation, 1987 Ch.7 we learn that presumptions are used with
different meanings in different branches of law. Their use is always related to BURDEN
OF PROOF. They imply that a particular conclusion is likely to be drawn by the Court in
the absence of good reasons for a reading a different one.
You know for example in Criminal Law the presumption is that the accused person is
innocent until the prosecution has proved the case against the accused beyond any
reasonable doubt.
In corruption cases (also Criminal Cases) the accused person has to prove how he came
by what might be alleged to have been acquired corruptly. In the Law of Marriage Act,
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1971 S.160 when parties have lived together for a period of two or more years under
circumstances in which the community concludes that they are man and wife there is a
reputable presumption by the law that they are man and wife.
Such a presumption will affect the type of results that a Court will arrive at in case there
is a problem in the partie’s relationship on matters of divorce, custody and maintenance
of spouse and children or even division of matrimonial property.
Cross maintains that presumptions are of two types and this view is shared with Glanville
Williams, Learning the Law 1982 p 108). Presumptions are either negative or restrictive
and they form a background of legal principles which an Act or piece of legislation under
consideration should be interpreted and that such interpretation must conform with what
Parliament intended.
For both Rupert Cross and Glanville Williams Courts will enforce the Will of Parliament
when the law is express and clear because no law is enacted in Vacuum.
Presumptions
Embody traditional notions of justice. It is expected that bodies to which the law
confers discretionary powers will exercise them reasonably and will act in
accordance with the principles of natural justice. In case this is not done Courts
can invoke presumptions to resque those under the wroth of unjust bodies or
tribunals:
Silverster Cyprian & Two others V The University of Dar es Salaam, Misc. Civil
Appeal No. 68 of 1994 (Unreported) Kyando, J.
There are presumptions about geographical operation of the law in question
(presumption against extra-territoriality). In the Union between Tanzania
(Mainland) and Zanzibar there are laws, which apply to both territories, and such
laws as they are restricted to mainland or Zanzibar.
There are presumptions which enshrine Capitalist values (liberal societal values):
vested rights, rights to compensation on expropriation, non-interference with
contracts and non interference with personal liberty.
Judges are precluded from applying presumptions counter political intentions.
This was not without difficulties in Tanzania in the period between 1967 and
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1984 when Courts were dealing with pieces of legislation intended to effect the
requirements of Ujamaa and Self Reliance policies.
The main areas of contention were legislation relating to the Minimum Sentences
Act, the Prevention of Corruption Act, The Fauna Conservation Act, the
Exchange Control Laws, Land Laws, and the Economic and Organised Crimes
Law.
No wonder when you read cases from the above areas of the law you will notice
judges’ resentment of being under political will or pressure [Read S.K. Huber,
“Statutory Interpretation and Judicial Discretion” in Mukoyogo, M.C., Legal
Method: Cases and Materials] and Appendix VIII and IX in C.S. Binamungu &
M.C Mukoyogo, Studying Law Skills…Mzumbe Book Project 2005
In recent years Courts have stood up as a bulwark of the Bill of Rights and here we also
notice Courts coming up to control the legislature [Ndyanabo’s case Civil Appeal No 64
of 2001 [CA unreported]
Glanville Williams was making reference to the European Convention of Human Rights
which has been made part of the English Law since it was ratified by Britain and
therefore binding as a matter of International Law [See Terence Ingam, The English
Legal Process 8th Edn Blackstone Press Ltd 2000 pp 290-295]
There is a presumption that Acts of Parliament are not intended to derogate from the
requirements of International Law.
This line of argument, allows the Courts to use conventions as a means of restricting the
operation of a statute. In Tanzania such a development was ushered in by the formal
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enactment of the Bill of Rights in to the Constitution of the United Republic of Tanzania
and the Constitution of Zanzibar in 1984(?) and since then Courts have taken a lead in
interpreting laws depriving people of their rights or liberty as being unconstitutional.
The Attoracy General V Rev. Christopher Mtikila, Civil Appeal No 3 of 1995 (CA-
Unreported).
151
Special Application of Presumptions
Presumption against ousting the Jurisdiction of Courts:
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“After full inquiry and consideration, one is left with real doubt” the accused or
person from whom the penalty is claimed must be given the benefit of that doubt.
It is not enough that the provision under construction is ambiguous in the sense
that it is incapable of having two meanings.
Other Cases:
Marwa Chacha V R, [1968] HCDn. 357
Read: Opoya v Uganda in Mukoyogo, M.C; OLW 104: Legal Method Part Three:
Statutory Interpretation, OUT 1996 pp 96-110.
153
Retrospective operation – a law passed intended to cover offences committed in
an earlier period.
For example in 1984 The Parliament in Tanzania enacted a piece of legislation
which was intended to cover offences committed in December 1983.
The Act was Penal and did expressly provide that it was to operate retrospectively.
Cases involving such laws in East Africa:
Ibrahim’s Case [1963] EA 179
Uganda v Nyengenya. [1963] EA 106
Municipality of Mombasa v Nyali [1963] EA
Patel v R [1968] EA 97
Benbros Motors v Patel, [1967] HCDn. 435
Christopher Mwakabura v R [1992] TLR 380 (CA)
Read: Binamungu & Mukoyogo 2005 pp 174 - 176
Individual Liberty
The strict construction of Penal statutes is closely connected or related to the
presumption in favour of individual liberty especially where custodial sentences
are involved.
As it was stated by McCullough J in RV Hallstrom exp. W (No 2) ( Cross pg 177)
There is a canon of construction that Parliament is presumed not to enact
legislation which interferes with the liberty of the subject without making
it clear that it was the intention.
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Happy George Washington Maeda v Regional Police Officer, Misc. Criminal
Case No 36 of 1979 (Unreported).
There has been a long debate as to their function in statutory interpretation. Some
literature suggest that these parts of a statute have “less value than the rules, canons and
presumptions”.
Cross [1987: 122] admitted that in England in 1980 Lord Scarman’s “Interpretation of
Legislative Bills” presented an argument for a formal recognition of these devices in
Statutory Interpretation and his suggestions were accepted [Cross 1987: 122 footnote 10]
The main controversy had always been, whether or not they can be treated as canons or
aids to statutory construction at all.
The reply is that, each of the parts of the document or statute has been given some weight
in that whenever the question of interpretation of a word or phrase or passage has arisen
the judge has had to give them consideration in determining the intention of parliament.
It is cautioned that, provisos, interpretation sections and savings clauses are subject to
amendments by parliament, the other parts are determined by parliamentary clerks
assisted or directed by the Parliamentary Draftsman.
According to Twining and Miers 1992: 358-359 Frequently the scope or meaning
of a rule is qualified by other rules in the statute.
Such qualifications may extend or limit the rule, specify how a particular rule is to
be implemented, state exceptions, or attach specific meaning to a word or phrase.
Qualifications of the last sort are generally contained in the interpretation or
155
definition section, white some of these parts may appear in schedules at the end of
a statute, or promulgated separately as a statutory instruments.
In addition all statutes contain a long title which indicates the object of the
enactment, while other statutes contain higher preambles expressing not only
what the Act is intended to do, but also why.
Preambles
a) The Constitution of the United Republic of Tanzania 1977 (as amended)
b) The Kagera Transport Assets (Acquisition and Regrant) Act, 1984 (No 1
of 1984)
Cases in which Preambles have been used in interpreting statutes:
In Tanzania, The Preamble to the Interim Constitution was referred to in the case of
Adamji V East African Posts and Tele Communications, [1973] LRTn.6 in which Biron J
(as he then was) expressed the view that the Preamble was not part of the Constitution of
Tanzania. He cited the Case of Powell V Kempton Park Reconstruction Co. [1889].
In Tanzania, since Independence, the Preambles have been replaced by the Memorandum
of Objects and Reasons attached to Bills.
Preambles are not a common feature of the final enactments.
Read: Newbold, V.P. in the New Great Insurance Company of India Ltd v Cross and
Another [1966] EA 90
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A short title is usually stated in a separate sub-section at the beginning of the
numbering of sections in Tanzania. It is contained in the body of the Act, it is subject
to amendment by Parliament, its purpose is to serve as a brief identifying label, it is
not as helpful as the preamble or long title.
According to Lord Justice Scrutton in Re Boaler, [1951] IKB 21 at 40-41:
I agree that the court should give less importance to the title than the enacting
part, and less to the short title than to the full title, for the short title being a label,
accuracy may be sacrificed to brevity; but I do not understand on what principle
of construction I am not to look at the Words of the Act itself and help me to
understand its scope in order to interprete the words Parliament has used, by the
circumstances in respect of which they were legislating. It is by no means
conclusive. [See also Regina v Secretary of State [2003] UK HL 13 (HL)
In order to understand what Parliament meant, we must look at the words which
Parliament used rather than depending on the short title.
There is no example in East Africa in which a short title has been consulted in
interpreting a statute I know of. But in England there is the case of Ward v Holman,
[1964] 2ALL ER 729.
Marginal Notes:
The view that they are not aids to construction:
Cross 1987: 129 Quoting Lord Reid- the conservative view: Chandler v Director
of Public Prosecutions [1964] AC 736 might be a conclusive authority for the
157
proposition that side-notes [frequently spoken of as ‘marginal notes’] cannot be
used as aids to construction in any circumstances.
They are mere catch words and I have never heard of it being supported in recent
times that an amendment to alter a side-note could be proposed in either House of
Parliament. Side-notes in the original Bills are inserted by the Draftsmen. Side-
notes cannot be said to be enacted in the same sense as the long title or any part of
the body of the Act.
According to Lord Upjohn LJ in Stephens v Cuckfield RDC, [1960] 2QB 373 at 383
stated;
While the marginal notes to a section cannot control the language used in the
section, it is at least permissible to approach a consideration of its general purpose
and the mischief at which it is aimed with the note in mind.
Lord Reid’s remarks in Director of Public Prosecutions v Sehild Kamp, [1971] AC at p
10:
But it may be more realistic to accept the Act as printed as being a product of the
whole process, and to give due weight to everything found in the printed Act.
Side-notes, therefore, may be useful as an indicator of the purpose of the provision than a
guide to its meaning.
In East Africa the usefulness of side-notes or marginal notes has been treated in an article
by Martin Huber, “Use of Marginal Notes in East Africa (1969) 2 Eastern African Law
Review 107. But this question has also been judiciary considered in:
Murtha’s Case; [1954] EA 190
Visram v Bhatt, [1965] EA 789
Mugo v R, [1966] EA 124
Ramadhan v R [1968] HCDn. 244
158
In the Estate of Shimji [1965] EA 789.
In the case of Wellington Thuku Paul Mugo & Others vR [1966] EA 124 Rudd Ag. C.J.
(as he then was) at p 128:
The due to the real intention of the legislature is to be found in the marginal notes
to section 57 of the Evidence Act, 1963 of Kenya which reads “Bad Character in
Criminal Cases”.
Ordinarily marginal notes will not be taken into account in derogation of the
words of the section. This stems from the old English practice whereby Bills
were engrossed without punctuation on parliament, and as neither the marginal
notes nor the punctuation appeared on the roll they formed no part of the Act-
marginal notes and punctuations are not to be taken as part of the statute.
Ordinarily it should not be necessary to have it refer to the marginal notes to
ascertain the meaning of the section of the Act. Ordinarily, therefore, marginal
notes are not to be considered when construing the section of the Act.
But in Shamji Vistman V Bhatt, [1965] EA 784 at 794 the Court said:
Before oral evidence which is clearly relevant and which does not in any way
contradict or vary the lease can be said to be admissible, the case must fall within
section 99, that is, the language of the lease must be on the fact of it ambiguous or
defective”.
To some extent, of course, what is ambiguous or defective must always be a
question of degree. I consider that in determining the extent of that degree I can
have regard to the use of the word “patent´in the marginal note to the section.
While in Britain the Courts will not normally have regard to marginal notes for
assistance in construing the terms of a section, this is due to the historical reasons
that prior to 1850 marginal notes did not form part of the Bill as presented to
Parliament and they were only added after the legislation had been passed. It
could not, therefore, at least as regards the earlier legislation, be said that the
marginal note played any part in disclosing the intention of the legislature.
The position in Kenya is very different. Marginal notes always form part of the
Bill as presented to Parliament for enactment. Indeed, there are a number of
enactments, including the Acts amending the present Constitution of Kenya (then)
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in which marginal notes have been subject of amendment by legislation. Further,
a Constitutional document (the Royal Instructions) prior to Independence required
that marginal notes should appear on each section of a Bill presented to the
legislature. Look at S. 99 as a whole, including the word “patent” in the marginal
note, I am satisfied that this section only precludes the admission of oral evidence
when the ambiguity or defect is manifest and evident to general knowledge
without regard being had to any other factor.
Strictly speaking, it seems courts will normally disregard marginal notes while construing
provisions but examples above show a tendency to resort to marginal notes.
Punctuation
At it might have been noted in the foregoing dissension, judges have not only said
that side-notes (marginal notes) should not be considered, but the same view has been
extended to punctuations. Notwithstanding those cases where these two have been
considered, the strong view is that since they are not part of the enactment they
should not be considered.
This view is not shared by all judges and in East Africa there is a good example that
punctuations are used in construing provisions of statutes.
According to Cross 1987: 130-131:
Lord Reid suggests that, punctuations forms part of the statute and even if the
reader has to be wary of Older Acts, in which punctuation was inserted after the
enactment by the printer, the punctuation of modern statutes must be given the
significance it has in the ordinary use of English language.
Lord Lowry in Hunlon v Law Society, [1981] AC 124:
I consider that not to take account of punctuation disregards the reality that
literate people, such as Parliament or any draftsman, punctuate what they write, if
not identically, at least in accordance with grammatical principles. Why should
not other literate people such as judges, look at the punctuation in order to
interprete the meaning of the legislation as accepted by Parliament?
Thomton, in Legislative Drafting, 3rd Edn. pp 33-34 [Cross 1987: 131 fn. 12] says:
160
It is a curious paradox that judges whose entire reading is punctuated, should, in a
carefully punctuated judgements, consider themselves obliged to proclaim that the
punctuation in carefully punctuated statutes is not part of the law.
The modern new as to punctuation and interpretation of statutes is that punctuations may
be used in getting proper interpretation of a statute. In East Africa the modern view is
found in New Great Insurance Company of India Ltd V Lilian Cross & An [1966] EA 90
[Opinions of New] bold VP and Sir Clement De Lestrang J.A. at pp 96 & 107]
I accept that the rule of construction in Britain in relation to Old statutes was that
the Courts did not have regard to punctuation in interpreting a section. The
reason was that until about 1850 the punctuation of sections was inserted after the
legislation had been enacted, with the result that the punctuation had received no
legislative authority. Whether the rule of construction would apply in Britain in
relation to modern statutes is open to doubt. However, whatever may be the
position in Britain, I have no doubt whatsoever that in East Africa the Courts
should in the construction of a section, have regard to any other part of it. The
reason for this is that the section as enacted by the legislature contains the
punctuation. Indeed, there are a multitude of examples of amendments to sections
containing amendments to punctuations. In any event I cannot see how it is
possible to attach the words “in the event of some specified thing being done---
after the happening giving rise to a claim” to the words “no liability shall arise”
for the simple reason that liability would have already arisen before the event,
therefore, those words clearly attach only to the words “and liability so shall
cease”. The logical construction is merely reinforced by the positioning of a
comma in the Kenya Act.
Schedules to Acts:
It has been argued that schedules to Acts and other documents form part and
parcel of the said Act or document if incorporated by reference in the same Act or
document. For example, The Security of Employment Act, section 19 creates
disciplinary offences at work and penalties can be found in the second schedule to
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the Act (tabulating offences and penalties). Other important schedules to Acts
include those in the Economic and Organized Crimes Act, 1984 (Act 13 of 1984),
The Criminal Procedure Act, 1985 etc.
The importance of schedules to Acts was considered by Biron J (as he then was)
in the Case of Adamji v East Africa Posts and Telecommunications, [1973] LRTn
6 at pp 16- 17: in which it was implicitly decided, that the TANU Constitution,
which was inserted into the Interim Constitution of Tanzania, 1965 as a schedule
(Third Schedule, which was not in the Constitution of the United Republic of
Tanzania, 1977) as not being part of the Constitution and therefore not part of the
law in Tanzania.
Nevertheless, the TANU Constitution was in Thabit Ngaka v Regional Fisheries
Office, [1973] LRTn 24 was used to reconcile the provisions of the Government
Suits Ordinance and the Employment Ordinance.
In Lalata Msangalawe v Henry Mwania, [1979] LRTn 3 at pp 24-26 Mwesiumo J
(as he then was) stated inter alia:
Compensation for one’s labour finds recognition even in the Preamble to
the Interim Constitution of the United Republic of Tanzania and in TANU
Creed.
(The TANU Creed was appended to the Interim Constitution). The
relevant portion of the Preamble stated: Whereas freedom, justice,
fraternity and concord are founded upon the recognition of the equality of
all men and of their inherent dignity, and upon the recognition of the rights
of all men to the protection of life, liberty and property --- to receive a just
return for their labours ---
On the basis of these principles the judge allowed an appeal in favour of compensation
for one’s labour.
1. Introduction
The general rule under Old English Law:
162
In interpreting statutes, reference to any matters extrinsic to the written
words of statutes as written was for bidden.
This meant that when courts were interpreting statutes were precluded from
consulting preparatory materials like parliamentary debates (Hansard Reports);
White Papers, Commission Reports, Speeches of Ministers when introducing
Bills to Parliament etc.
In the United States of America and Continental Europe, preparatory materials
(travaUx preparatoires) or legislative materials are referred to.
Escoinage Properties Ltd v Inland Revenue Commissioner, [1958] AC 549 at 566
per Lord Denning
However, it would indeed be a difficult task for courts to ascertain the mischief or
policy behind an enactment without referring to preparatory materials. It amounts
to asking the interpreter to assume a policy direction, which those who enacted
the law ever intended or meant.
A close examination of case law development indicates a trend towards
consulting background materials to the enactment or piece of legislation whose
words or phrases are difficult to construe in the course of settling disputes or
litigation.
163
Committee Reports i.e. The Presidential Committee Report on Land Matters- the
so-called Shivji Commission Report or The Nyalali Report on Multipartison,
departmental Committee reports i.e The Law Commission of Tanzania Reports.
164
understanding that an amendment is not passed. In such cases I think the
court should be able to look at the proceedings.
The House of Lords did not approve of Lord Denning MR’s approach. All the
five judges or Law Lords said expressly that he was wrong. According to Lord
Dilhorne [1979] AC 317 at 337:
There is one other matter to which I must refer. It is a well and long
established rule that Counsel cannot refer to Hansard as an aid to the
construction of a statute. What is said by a Minister or by a member
sponsoring a Bill is not a legitimate aid to interpretation of an Act.
The Lord Justice quoted a passage from Lord Reid in Beswick v Beswick [1968]
AC 58 at 72-74 and went on to say:
If it was permissible to refer to Hansard, in every case concerning the
construction of a statute counsel might regard it necessary to search
through the Hansards of all proceedings in each House to see if in the
course of them anything relevant to the construction had been said.
If it was thought that a particular Hansard had anything relevant in it and
the attention of the Court was drawn to it, the court might also think it
desirable to look at the other Hansards. Results might be that the attention
was devoted to the interpretation of ministerial and other statements in
Parliament at the expense of consideration of the language in which
Parliament had thought to express its intention.
Lord Scarman at pp 349-350 stated:
There are two good reasons why the Courts should refuse to regard what is
said in Parliament or by Ministers as aids to the interpretation of a statute.
First, such material is an unreliable guide to the meaning of what is
enacted. It promotes confusion, not clarity. The cut and thrust of debate
and the pressures of the executive responsibility, essential features of open
and responsible government, are not always conducive to a clear and
unbiased explanation of the meaning of statutory language. As the volume
165
of Parliamentary and ministerial utterances can confuse by its very size.
Secondly, counsels are not permitted to refer to Hansard in argument. So
long as this rule is maintained by Parliament (it is not the creation of the
judges), it must be wrong for the judge to make any judicial use of
proceedings in Parliament for the purpose of interpreting statutes.
But despite the above views, the opinion expressed in Dens v Johnson were
confirmed by the House of Lords in Hadmor v Hamilton, [1982] l ALL ER 1042,
166
In Bernardo Ephraim v Holaria Pastory & Gervazi Kaizilege, (PC) Civil Appeal
No 70 of 1989 (HC) (unreported), Justice Mwalusanya (as he then was) dealing with rule
20 of the Local Customary Law (Declaration) Order, 1963 (GN 436 OF 1963) which bars
females from inheriting and disposing of clan land, made the following observations:
But the customary law in question has not changed up to this day. The women
are still suffering at the lands of selfish clan members. What is more is that since
the Bill of Rights was incorporated in our 1977 Constitution, vide Act No 15 of
1984 by Art 13(4) discrimination against women has been prohibited.
But some say that, that is a dead letter. And the Universal Declaration of Human
Rights (1948) which is part of our Constitution by virtue of Art. 9(9) (f) prohibits
discrimination based on sex as per Art. 7. Moreover, Tanzania has ratified the
Convention on the Elimination of All Forms of Discrimination Against Women.
That is not all. Tanzania has also ratified the African Charter on Human and
Peoples Rights which Art. 18(3) prohibits discrimination based on sex. The
principles enumerated in the above named documents are a standard below which
any civilized nation will be ashamed to fall.
It is clear from what I have discussed that the customary law under discussion
flies in the face of our Bill of Rights as well as the international conventions to
which we are signatories.
In the case of Director of Public Prosecutions v Danciple, Criminal Appeal No 28 of
1990 CCA-Unreported) the Chief Justice at pp 11 – 12 of the judgement stated Inter alia.
In our situation, both fundamental and basic rights and duties are dealt with in one
single part of the Constitution that is Part III. This location of basic rights and
duties in one single part of the Constitution of the United Republic of Tanzania is
symbolic and significant. It is a symbolism and an expression of a
Constitutionally recognized coexiskuce of rights and duties of the individual and
society. This view is supported by the principles underlying the African Charter
on Human and Peoples Rights which was adopted by the Organization of African
Unity in 1981 and came into force on 21 October 1986 after the necessary
ratifications. Tanzania signed the Charter on 31 May, 1982 and ratified it on 18
February, 1984. Since our Bill of Rights and Duties was introduced into the
Constitution under the Fifth Amendment in February 1985, that is slightly over
167
three years after Tanzania signed the charter, and about a year after ratification
account must be taken of the Charter in interpreting our Bill of Rights and Duties.
From the foregoing it is clear that courts will avail themselves conventions and treaties in
interpreting the import of a statute in question.
Whether the travaux preparatorres of a treaty are also admissible in interpreting statutes is
laid in the Vienna convention on the Law of Treaties Art 32.
There is no case authority on the matter in Tanzania. The cases cited are from Britain or
Other European countries.
In Fothergill v Monarch Airlines Ltd [1981]
AC 251 or [1980] 2ALL ER 696 or [1979] 3 ALLER 445
Read Mukoyogo Part III pp 163-167.
Introduction
By following the Plain Meaning Rule there are three grammatical rules of
Construction of Statutes:
a) Noscitur a Sociis, “a thing is known by its associates”
b) Ejusdem (Eusdem) generis rule “of the same genus or kind); and
c) Expressio unius est exclussio altenius
(“the mention of one thing is the exclusion of the other”).
The above are neither legal principles nor legal rules. They are guides to the intention of
the speaker or writer. They refer to the way people speak or write in certain contexts.
Noscitn a Sociis – Reference to neighbouring words and phrases. The rule states that:
The meaning of a doubtful word may be ascertained by reference to meaning of
words associated with it.
168
Cf: Halsbury’s Laws of England, Vol. 36 at p 395 para 494.
A word is known by the company it keeps and a statute should be construed as a
whole. For the purposes of construction, the purpose or the context of the word to
be construed does include not only the particular section or paragraph in which
the words or phrases appear but the whole statute in which it appears. The rule is
intended to avoid inconsistencies and repugnancy. This is so because the words
of a statute are presumed to be used consistently throughout a statute that is they
bear the same meaning.
Legislature cannot contradict itself. In the case of Marwa v R, [1967] HCD no
357 the judge avoided giving a contradictory interpretation to the Minimum
Sentences Act with another Act.
Noscitur a Sociis means that a thing is known by its associates. It is easy to
confuse it with eusdem generis rule. While eusdem generis is an example of a
broader linguistic rule or practice to which reference is made by Noscitur a Sociis
(a Latin tag), words even if they are not general like “any other” preceded by
specific words, are liable to be affected by other words with which they are
associated. Stamp J in Bunrne v Norwich Crematorium Ltd, [1967]2 ALLER 576
at 578:
English words derive their colour from those which surround them.
Sentences are not a mere collection of words to be torn by reference to
define accurately by reference to the dictionary or decided cases, and then
put back, into sentences the meaning which you assign them as separate
words---.
Examples for the proposition that the meaning of a word may be coloured by the
context of words either used in the same sentence or within the Act as a whole
are:
In the case of Westminster City Council v Ray Allan (Manshops) Ltd, [1982] l
ALL ER 771
Section 14(1) of The Trade Description Act, 1968 was considered. That section
created a penalty for making a false statement as to the nature of “any services,
accommodation or facilities provided.”
169
A Company announced a “Closing down sale” at one of its shops, but continued
to trade normally and did not intend to close the shop.
The Divisional Court held that the word “facilities” was limited by the preceeding
words to things made available for use by customers and so did not include the
broader notion of shopping facilities.
In Bromley London Borough Council V Greater London Council, [1983] IAC at 841:
Section 1 (l) of The Transport (London) Act, 1969 required greater London
Council to develop policies and encourage measures for provision of “integrated
efficient and economic transport facilities and services for greater London”.
When discussing the sense to be given to the word “economic” Lord Scarman
said:
As a matter of English usage, the term “economic”---has several
meanings. They include both that for which the appellants contend and
that for which Bromley contends. It is a very useful word, Chameleon
like, taking its colour from its surroundings.
170
The phrase ‘any other structure whatsoever’ will be confined to the words specified in the
section.
However, great care should be exercised in the use of this rule. It must not defeat the
intention of the legislature, that is, it must be applied subject to the primary or general
(Cardinal) principle of statutory interpretation that is, statutes should be construed in
accordance with the intention of the legislature.
171
In the case of Canadian National Rlwys v Canada Steamship Linet Ltd [1945] AC 204
Lord Mc Millan disapplied the rule because the general words preceeded the particular
enumeration of instances. His Lordship stated at p 211:
It is not a case to which the ejusdem generis rule applies, for the general words do
not follow an enumeration of particular instances, but precede the particular
instances.
The particular provision which was being considered in this case was S.35(13) of the
Transport Act, 1930, which provides as follows:
any application under this section, the Board shall have regard to all
considerations which appear to it to be relevant followed by specific direction to
The Board to have regard on specified matters.
In AG v Abdullah & Others, [1960] EA 672- a case involving the interpretation of S.91B
of the Kenyan Penal Code, three accused persons were charged with a count of besetting
contrary to section 91B, that they unlawfully besetted the Tudor Road, Mombasa, with a
view to prevent one Donye s/0 Mchoki from doing an act-riding a bicycle- which the said
Donye was entitled to do. The Senior Magistrate of Mombasa acquitted all of them on
the account of a defective charge sheet. The AG on behalf of the Crown appealed by way
of a case stated.
172
(2) was the learned magistrate correct in law in holding that the words ‘or other
place’ in S 91B of the Penal Code must be construed eusdem (ejusdem) generis
that is, of the same kind with words ‘any premises’ or the house in that section.
The respondent contended that:
The words ‘any other place’ came within the ejusdem generis rule, that is, since
they stopped him on a highway they had not committed an offence.
The Court relied on the strong persuasive authority of Charmock v Court [1899]2Ch.D 35
a case which was decided on the meaning of section 7 of the Conspiracy and Protection
of Property Act, 1875 which under clause 4 thereof reads:
‘Watches or besets the house or other place where such other person resides, or
works, or carries on business, or happens to be or the approach to such house or
place!
In that case it was held that the words in the enactment covered a ‘landing stage’ and
Stirling J stated thus:
‘The words place where he happens to be seen to me to embrace any place where
the workman is found however casually;
In AG v Abdullah’s Case MacDuff concluded:
‘Moreover, if we look, as we consider we must, to what we believe to have been
the intention of the legislature in enacting S91B of the Penal Code, than we think
this also provides a strong reason for not applying the ejusdem generis doctrine.
Quite clearly the intention of the legislature in S. 91B of the Penal Code was to
protect the unfettered liberty of the individual in going about his lawful occasions
without let or hindrance, and for that purpose to protect him in ‘whatever place he
happens to be? We cannot conceive that the legislature could possibly have
intended to protect the individual from being ‘beset’ in his residence or workplace
whilst leaving him open to wrongdoers to beset him on, for example, a public
highway on his way to or from his home or workplace. We cannot see any reason
to conclude that there was even any intention, especially in view of the
comprehensive nature of the words ‘happens to be’ restrict the ‘other place’ to a
place of the genus of a ‘house’.
173
The proceedings were therefore returned to the magistrate with an order to
substitute a conviction in a place of acquittal against all the respondents on the
first count.
In Hassan s/0 Mohamed v R [1968] HCDno 457 the ejusdem generis rule was applied to
restrict a statute giving power to the governor to encroach on private property rights.
The accused in this case gave a firearm to another person to deliver it for repairs. He
pleaded guilty to a charge of unlawfully transferring a firearm contrary to sections 15 and
31 of the Arms and Ammunition Ordinance, Cap. 223. Before sentence was passed, the
accused stated in mitigation that: ‘ The firearm was defective. It was being sent for
repair.”
Section 15 of the Ordinance makes it an offence to:
Sell or transfer or buy or accept any arms and ammunitions either by way of gift
or for any consideration except in accordance with a permit signed by an
authorized officer.
It was held that:
(i) For the transfer of a firearm to constitute an offence contrary to section 15,
such transfer must be ejusdem generis that is, of similar type, kind or nature
with a sale, purchase or gift.
(ii) The accused answer to the charge, to the effect that he had handed over his
firearm with the object of having it sent for repair, cannot be regarded as an
unequivocal plea of guilty to a charge.
Conviction quashed.
In the case of Charles s/0 Mumba v R [1969] HCD n.221 the accused was
convicted of possessing property suspected to have been stolen contrary to section
312 of the Penal Code, Cap 16 (T). The goods in question were found in an
unfinished building, but it was not known how they had come to that place. The
circumstances of the accused’s arrest were not detailed by the High Court but ‘he
was not detained at first by a police officer.’
It was held that the very technical nature of section 312, the accused must first be
detained by a police officer exercising his power under section 24 of the Criminal
174
Procedure Code at the time of such conveying the thing or things suspected of
having been stolen.
Possession of such goods in a building would be punishable under this section
only if it occurred during the ‘course of the journey’ citing the case of Regina v
Msengi s/0 Abddallah, I TLR 107.
Obiter:
‘The section should be reviewed to remove its strict technicalities for its use is too
limited to be of such use and provide ample room for ostensible offenders to
escape from the arms of the law, making the law entirely unintelligible to the
unsophisticated (people) public.
175
A newspaper publisher sought an injunction to prevent the union from instructing its
members not to produce copy to be printed by TBF Printers Ltd. The union being in
dispute with TB Forman Ltd, having the same shareholders.
The House of Lords refused to hold that the action was covered by the immunity under
section 17(3), since TBF Printers was a separate legal person from the “party to the
dispute.”
176
APPENDIX I
177
OPINIONS
ON
Lord Steyn
Lord Hoffmann
Lord Millett
HOUSE OF LORDS
178
IN THE CAUSE
[2003] UKHL 13
My Lords,
1. The issues in this appeal are whether live human embryos created by cell
nuclear replacement (CNR) fall outside the regulatory scope of the Human
Fertilisation and Embryology Act 1990 and whether licensing the creation of
such embryos is prohibited by section 3(3)(d) of that Act. Crane J at first
instance held that such creation fell outside the scope of the Act and was not
prohibited by section 3(3)(d): [2001] 4 All ER 1013; [2001] EWHC Admin
918. The Court of Appeal (Lord Phillips of Worth Matravers MR, Thorpe and
Buxton LJJ) agreed with the judge on the second point but reversed his ruling
on the first: [2002] QB 628; [2002] EWCA Civ 29. Both points were re-
argued before the House.
2. This case is not concerned with embryos created in the ordinary way as a
result of sexual intercourse. Nor is it directly concerned with the creation of
live human embryos in vitro where the female egg is fertilized by the
introduction of male sperm outside the body. CNR, a very recent scientific
technique, involves neither of those things. In the Court of Appeal and in the
House the parties were content to adopt the clear and succinct explanation
given by the judge of what CNR means and involves ([2001] 4 All ER 1013,
1016):
179
“13. In the ovary the egg is a diploid gem (or reproductive) cell. It is
described as ‘diploid’ because its nucleus contains a full set of 46
chromosomes. By the process of meiotic division the nucleus divides into
two parts. Only one of these, a pronucleus containing only 23
chromosomes (described as ‘haploid’), plays and further part in the
process. Fertilisation begins when the male germ cell, the sperm, whose
pronucleus contains 23 chromosomes, meets the haploid female germ cell
and is a continuous process taking up to 24 hours. As part of the process
the male and female pronuclei fuse to form one nucleus with a full
complement of 46 chromosomes, a process known as syngamy. The one-
cell structure that exists following syngamy is the zygote. After several
hours the cell divides to create a two-cell zygote. At this stage it is
generally referred to as an embryo. At about 15 days after fertilization a
heaping-up of cells occurs which is described as the ‘primitive streak’. 14.
Fertilisation may of course take place in the normal way or in vitro. 15.
CNR is a process by which the nucleus, which is diploid, from one cell is
transplanted into an unfertilized egg, from which… the nucleus has been
removed. The [replacement] nucleus is derived from either an
embroyonic or a foetal or an adult cell. The cell is then treated to
encourage it to grow and divide, forming first a two-cell is then treated to
encourage it to grow and divide, forming first a two-cell structure and then
developing in a similar way to an ordinary embryo. 16. CNR is a form of
cloning. Clones are organisms that are genetically identical to each other.
When CNR is used, if the embryo develops into a live individual, that
individual is genetically identical to the nucleus transplanted into the egg.
There are other methods of cloning, for example, embryo splitting, which
may occur naturally or be encouraged. Identical twins are the result of
embryo splitting. 17. The famous Dolly the sheep was produced by CNR
in some other mammals. It has not yet been attempted in humans.
18…. CNR of the kind under consideration does not…involve
fertilization.”
180
The Act
3. The 1990 Act was passed “to make provision in connection with human
embryos and any subsequent development of such embryos; to prohibit certain
practices in connection with embryos and gametes; to establish a Human
Fertilisation and Embryology Authority”, and for other purposes. The
sections at the heart of this appeal are sections 1 and 3, which I should quote
in full:
(3) This Act, so far as it governs the keeping or use of an embryo, applies
only to keeping or using an embryo outside the human body.
181
(4) References in this Act to gametes, eggs or sperm, except where
otherwise stated, are to live human gametes, eggs or sperm but references
below in this Act to gametes or eggs do not include eggs in the process of
fertilization.
…
3.(1) No person shall-
(a) bring about the creation of an embryo, or
(b) keep or use an embryo, except in pursuance of a licence.
(4) For the purposes of subsection (3)(a) above, the primitive streak is to
be taken to have appeared in an embryo not later than the end of the period
of 14 days beginning with the day when the gametes are mixed, not
counting any time during which the embryo is stored.”
4. The Act imposes three levels of control. The highest is that contained in the
Act itself. As is apparent, for example from section 3(2) and (3), the Act
prohibits certain activities absolutely, a prohibition fortified by a potential
penalty of up to ten years’ imprisonment (section 41(1). The next level of
182
control is provided by the Secretary of State, who is empowered to make
regulations for certain purposes subject (so far as relevant here) to an
affirmative resolution of both Houses of Parliament (section 45(1), (4).
Pursuant to section 3(3)(c) the Secretary of State may make regulations
prohibiting the keeping or use of an embryo in specified circumstances. The
third level of control is that exercised by the Authority. Section 3(1) prohibits
the creation, keeping or use of an embryo except in pursuance of a licence,
and the Act contains very detailed provisions governing the grant, revocation
and suspension of licences and the conditions to which they may be subject:
see, among other references, sections 11-22 of and Schedule 2 to the Act. A
power is also conferred on the Authority to give binding directions: sections
23-24.
5. The first argument of the Alliance is squarely based on the wording of section
1(1)(a) of the Act, fortified by that of subsection (1)(b). It hinges on the
words “where fertilization is complete”. That makes clear, it is argued, that
the live human embryos to which the Act applies are such embryos as are the
product of fertilization, for the obvious reason that if there is no fertilization
there can be no time when fertilization is complete (and there is never an egg
in the process of fertilization). Therefore the Act does not apply to embryos
created by CNR, unsurprisingly since in 1990 the creation of live human
embryos was unknown to Parliament. The second argument of the Alliance is
put as an alternative: if embryos created by CNR are, contrary to the first
argument, embryos within the scope of the Act, then the CNR process is
specifically prohibited by section 3(3)(d) and cannot be licensed.
6. By the end of the hearing it appeared that the parties were divided less on the
principles governing interpretation than on their application to the present
case. Since, however; the Court of Appeal were said to have erred in their
183
approach to construction, it is necessary to address this aspect, if relatively
briefly.
7. Such is the skill of parliamentary draftsmen that most statutory enactments are
expressed in language which is clear and unambiguous and gives rise to no
serious controversy. But these are not the provisions which reach the courts,
or at any rate the appellate courts. Where parties expend substantial resources
arguing about the effect of a statutory provision it is usually because the
provision is, or is said to be, capable of bearing two or more different
meanings, or to be of doubtful application to the particular case which has
now arisen, perhaps because the statutory language is said to be inapt to apply
to it, sometimes because the situation which has arisen is one which the
draftsman could not have foreseen and for which he has accordingly made no
express provision.
8. The basic task of the court is to ascertain and give effect to the true meaning
of what Parliament has said in the enactment to be construed. But that is not
to say that attention should be confined and a literal interpretation given to the
particular provisions which give rise to difficulty. Such an approach not only
encourages immense prolixity in drafting, since the draftsman will feel
obliged to provide expressly for every contingency which may possibly arise.
It may also (under the banner of a loyalty to the will of Parliament) lead to the
frustration of that will, because undue concentration on the minutiae of the
enactment may lead the court to neglect the purpose which Parliament
intended to achieve when it enacted the statute. Every statute other than a
pure consolidating statute is, after all, enacted to make some change, or
address some problem, or remove some blemish, or effect some improvement
in the national life. The court’s task, within the permissible bounds of
interpretation, is to give effect to Parliament’s purpose. So the controversial
provisions should be read in the context of the statute as a whole, and the
statute as a whole should be read in the historical context of the situation
which led to its enactment. [Emphasis supplied]
184
9. There is, I think, no inconsistency between the rule that statutory language
retains the meaning it had when Parliament used it and the rule that a statute is
always speaking. If Parliament, however long ago, passed an Act applicable
to dogs, it could not properly be interpreted to apply to cats; but it could
properly be held to apply to animals, which were not regarded as dogs when
the Act was passed but are so regarded now. The meaning of “cruel and
unusual punishments” has not changed over the years since 1689, but many
punishments which were not then thought to fall within that category would
now be held to do so. The courts have frequently had to grapple with the
question whether a modern invention or activity falls within old statutory
language: see Bennion, Statutory Interpretation, 4th ed (2002) Part XVIII,
Section 288. A revealing example is found in Grant v southwestern and
County Properties Ltd [1975] Ch 185, where Walton J had to decide whether
a tape recording fell within the expression “document” in the Rules of the
Supreme Court. Pointing out (page 190) that the furnishing of information
had been treated as one of the main functions of a document, the judge
concluded that the tape recording was a document.
185
“In interpreting an Act of Parliament it is proper, and indeed necessary, to
have regard to the state of affairs existing, and known by Parliament to be
existing, at the time. It is a fair presumption that Parliament’s policy or
intention is directed to that state of affairs. Leaving aside cases of
omission by inadvertence, this being not such a case, when a new state of
affairs, or a fresh set of facts bearing on policy, comes into existence, the
courts have to consider whether they fall within the Parliamentary
intention. They may be held to do so, if they fall within the same genus of
facts as those to which the expressed policy has been formulated. They
may also be held to do so if there can be detected a clear purpose in the
legislation which can only be fulfilled if the extension is made. How
liberally these principles may be applied must depend upon the nature of
the enactment, and the strictness or otherwise of the words in which it has
been expressed. The courts should be less willing to extend expressed
meanings if it is clear that the Act in question was designed to be
restrictive or circumscribed in its operation rather than liberal or
permissive. They will be much less willing to do so where the subject
matter is different in kind or dimension from that for which the legislation
was passed. In any event there is one course which the courts cannot take,
under the law of this country; they cannot fill gaps; they cannot by asking
the question ‘What would Parliament have done in this current case- not
being one in contemplation- if the facts had been before it? “attempt
themselves to supply the answer if the answer is not to be found in the
term of the Act itself.”
Both parties relied on this passage, which may now be treated as authoritative.
Mr Gordon QC for the Alliance submitted that the Court of Appeal had fallen into
error by asking the question, which Lord Wilberforce said, should not be asked,
and by themselves supplying the answer.
186
11. The birth of the first child resulting from in vitro fertilization in July 1978
prompted much ethical and scientific debate which in turn led to the
appointment in July 1982 of a Committee of Inquiry under the chairmanship
of Dame Mary Warnock DBE to
The Committee reported in July 1984 (Cmnd 9314). A White Paper was
published in November 1987 (Cm 259) when the Department of Health and
Social Security recognized (paragraph 6) “the particular difficulties of framing
legislation on these sensitive issues against a background of fast-moving
medical and scientific development”.
12. There is no doubting the sensitivity of the issues. There were those who
considered the creation of embryos, and thus of life, in vitro to be either
sacrilegious or ethically repugnant and wished to ban such activities
altogether. There were others who considered that these new techniques, by
offering means of enabling the infertile to have children and increasing
knowledge of congenital disease, had the potential to improve the human
condition, and this view also did not lack religious and moral arguments to
support. Nor can one doubt the difficulty of legislating against a background
of fast-moving medical and scientific development. It is not often that
Parliament has to frame legislation apt to apply to developments at the
advanced cutting edge of science.
13. The solution recommended and embodied in the 1990 Act was not to ban all
creation and subsequent use of live human embryos produced in vitro but
instead, and subject to certain express prohibitions of which some have been
187
noted above, to permit such creation and use subject to specified conditions,
restrictions and time limits and subject to the regimes of control briefly
described in paragraph 4 above. The merits of this solution are not a matter
for the House in its judicial capacity. It is, however, plain that while
Parliament outlawed certain grotesque possibilities (such as placing alive
animal embryo in a woman or a live human embryo in an animal), it otherwise
opted for a strict regime of control. No activity within this field was left
unregulated. There was to be no free for all.
Section 1(1)(a)
14. It is against this background that one comes to interpret section 1(1)(a). At
first reading Mr Gordon’s construction has an obvious attraction: the Act is
dealing with live human embryos “where fertilization is complete”, and the
definition is a composite one including the last four words. But the Act is
only directed to the creation of embryos in vitro, outside the human body
(section 1(2)). Can Parliament have been intending to distinguish between
live human embryos produced by fertilization of a female egg and live human
embryos produced without such fertilization? The answer must certainly be
negative, since Parliament was unaware that the latter alternative was
physically possible. This suggests that the four words were not intended to
form an integral part of the definition of embryo but were directed to the time
at which it should be treated as such. This was the view taken by the judge (in
paragraph 62 of his judgement) and by the Court of Appeal (paragraphs 29,
53, 58) and I agree with it. The somewhat marginal importance of the four
words is in my opinion indicated by the fact that section 1(1)(b) appears to
contradict them. The crucial point, strongly relied on by Mr parker QC in his
compelling argument, is that this was an Act passed for the protection of live
human embryos created outside the human body. The essential thrust of
section 1(1)(a) was directed to such embryos, not to the manner of their
creation, which Parliament (entirely understandably on the then current state
of scientific knowledge) took for granted.
188
15. Bearing in mind the constitutional imperative that the courts stick to their
interpretative role and do not assume the mantle of legislators, however, I
would not leave the matter there but would seek to apply the guidance of Lord
Wilberforce quoted above in paragraph 10:
(1) Does the creation of live human embryos by CNR fall within the same
genus of facts as those to which the expressed policy of Parliament has
been formulated? In my opinion, it plainly does. An embryo created by
CNR are very similar organisms. The difference between them as
organisms is that the CNR embryo, if allowed to develop, will grow into a
clone of the donor of the replacement nucleus which the embryo produced
by fertilization will not. But this is difference which plainly points
towards the need for regulation, not against it.
(2) Is the operation of the 1990 Act to be regarded as liberal and permissive
in its operation or restrictive and circumscribed? This is not an entirely
simple question. The Act intended to permit certain activities but to
circumscribe the freedom to pursue them, which had previously been
enjoyed. Loyalty to the evident purpose of the Act would require
regulation of activities not distinguishable in any significant respect from
those regulated by the Act, unless the wording or policy of the Act shows
that they should be prohibited.
(3) Is the embryo created by CNR different in kind or dimension from that for
which the Act was passed? Plainly not: as already pointed out, the
organisms in question are, as organisms, very similar.
189
permissibly be asked: it is whether Parliament, faced with the taxing task
of enacting a legislative solution to the difficult religious, moral and
scientific issues mentioned above, could rationally have intended to leave
live human embryos created by CNR outside the scope of regulation had it
known of them as a scientific possibility. There is only one possible
answer to this question and it is negative.
190
an embryo by CNR, and could be expected to do so. Given the clarity of
Parliament’s purpose, I do not regard these discrepancies as significant.
17. The criticisms made of the Court of Appeal’s judgments are not; save in very
minor respects, soundly based. I agree with the decision, which that court
reached on this interpretation question and substantially with the reasons
given for it.
Section 3(3)(d)
18. It seems to me quite clear that CNR does not involve “replacing a nucleus of a
cell of an embryo” because there is no embryo until the nucleus of the
recipient cell is replaced by the nucleus of the donor cell. I accordingly
conclude that section 3(3)(d), which cannot have been drafted to prohibit
CNR, does not, almost fortuitously, have that result. The target of section
3(3)(d) is in my opinion made plain by paragraph 12.14 of the Warnock
Report, which need not be quoted but which was directed to a particular form
of genetic manipulation, replacement of the nucleus of a fertilized human egg.
The White Paper (paragraph 36) referred to “techniques aimed at modifying
the genetic constitution of an embryo”, and proposed that legislation “should
clearly prohibit all such activities, but with a power for Parliament itself, by
affirmative resolution, to make exceptions to these prohibitions if new
developments made that appropriate”. Section 3(3)(d) was, I infer, enacted to
give effect to this recommendation. If, as Mr Gordon contended, Parliament
intended to ban all cloning by section 3(3)(d), it would have been possible so
to provide; but it seems clear that Parliament did not intend to prohibit
embryo-splitting, which creates clones, and to which the Warnock Report
referred in paragraph 12.11. In my opinion, the subsection cannot be
interpreted to prohibit CNR.
19. For these reasons I would dismiss the appeal with costs.
191
LORD STEYN
My Lords,
20. Section 1(1) of the Human Fertilisation and Embryology Act 1990 defines the
scope of the regulatory system created by the Act. It provides:
In so legislating Parliament acted on the scientific insight of a decade ago, viz that
an embryo could only be created by fertilization. The ordinary and obvious
meaning of section 1(1) reflects that understanding. Since 1990 the development
of cell nuclear replacement has made possible the creation of an embryo without
the means of fertilization. The question arose whether embryos created by cell
nuclear replacement were covered by the 1990 Act. Overruling a first instance
decision ([2001] 4 All ER 1013), the Court of Appeal held that such embryos are
subject to the Act: R (Quintavalle) v Secretary of State for Health [2002] QB
628. It is of some importance to consider how as a matter of interpretative
method the House should approach the central question. I turn in the first place to
three aspects of this matter.
Purposive Interpretation
192
21. In reaching a conclusion that cell nuclear replacement is a process covered by
section 1(1) of the Human Fertilisation and Embryology Act 1990 the Court
of Appeal adopted a purposive approach: Para 27. The extensive
interpretation adopted by the Court of Appeal could only be justified by a
purposive approach. It was a necessary step in the reasoning of the Court of
Appeal but not a sufficient one. The Court of Appeal found the basis for such
an approach in the fact that the Human Rights Act 1998 extended “the
boundaries of purposive interpretation…where needs must”. Given that the
1998 Act is not applicable in the present case I would accept the submission
of counsel for the appellant that this approach is not appropriate. On the other
hand, the adoption of a purposive approach to construction of statutes
generally, and the 1990 Act in particular, is amply justified on wider grounds.
In Cabell v Markham (1945) 148 F 2d 737 Justice Learned Hand explained
the merits of purposive interpretation, at p 739:
“Of course it is true that the words used, even in their literal sense, are the
primary, and ordinarily the most reliable, source of interpreting the
meaning of any writing: be it a statute, a contract, or anything else. But is
one of the surest indexes of a mature developed jurisprudence not to make
a fortress out of the dictionary; but to remember that statutes always have
some purpose or object to accomplish, whose sympathetic and imaginative
discovery is the surest guide to their meaning.”
193
different reasons I agree with the conclusion of the Court of Appeal that section
1(1) of the 1990 Act must be construed in a purposive way.
22. That leads to the question whether it is appropriate to construe the 1990 Act in
the light of the new scientific knowledge. In the case law two contradictory
approaches are to be found. It reminds one of the old saying that rules of
interpretation “hunt in pairs”: that for every rule there is a rule to the contrary
effect: see Burrows, Statute Law, 3rd ed (2003), p 277 and chapter 12
generally. In the older cases the view often prevailed that a statute must be
construed as if one were interpreting it on the day after it was passed: The
Longford (1889) 14 PD 34, 36. This doctrine was dignified by the Latin
expression contemporanea exposition est optima et fortissimo in lege. But
even in older cases a different approach sometimes prevailed.
It was the idea encapsulated by Lord Thring, the great Victorian draftsman
that statutes ought generally to be construed as “always speaking statutes”. In
the Court of Appeal, Lord Phillips of Worth Matravers MR cited the early
illustration of Attorney General v Edison Telephone Co of London (1880) 6
QBD 244. The Telegraph Act 1869 gave the Postmaster-General an exclusive
right of transmitting telegrams.
Telegrams were defined as messages transmitted by telegraph. A telegraph
was defined to include “any apparatus for transmitting messages or other
communications by means of electric signals”. When the Act was passed the
only such means of communication was the process of interrupting and re-
establishing electric current, thereby causing a series of clicks which
conveyed information by morse code. Then the telephone was invented. It
conveyed the human voice by wire by means of a new process. It was argued
that because this process was unknown when the Act was passed it could not
apply to it. The court held “that absurd consequences would follow if the
nature and extent of those powers and duties [under the Act] were made
dependent upon the means employed for the purpose of giving the
194
information”: p 255. Another illustration is Christopher Hill Ltd v Ashington
Piggeries Ltd [1972] AC 441 when Lord Diplock observed, at p 501 E-H:
“Unless the Sale of Goods Act 1893 is to be allowed to fossilize the law
and to restrict the freedom of choice of parties to contract for the sale of
goods to make agreements which take account of advances in technology
and changes in the way in which business is carried on today, the
provisions set out in the various sections and subsections of the code ought
not to be construed so narrowly as to force upon parties to contracts for the
sale of goods promises and consequences different from what they must
reasonably have intended. They should be treated rather as illustration of
the application to simple types of contract of general principles for
ascertaining the common intention of the parties as to their mutual
promises and their consequences, which ought to be applied by analogy in
cases arising out of contracts which do not appear to have been within the
immediate contemplation of the draftsman of the Act in 1893.”
A third illustration is the case law which held that “bodily harm” in the Offences
against the Person Act 1861 may be interpreted as extending to psychiatric harm
which was unknown at the time of the passing of the legislation: R v Chan-Fook
[1994] 1 WLR 689; R v Burstow [1997] 1 Cr App R 144, R v Burstow sub nom R
v Ireland [1998] AC 147: see also McCartan Turkington Breen v Times
Newspapers Ltd [2001] 2 AC 277, per Lord Bingham, at p 292; my judgment, at
pp 295-296; Victor Chandler International Ltd v Customs and Excise
Commissioners [2000] 1 WLR 1296, pp 1303-1305, paras 27-33 per Sir Richard
Scott V-C.
195
“In cases where the problem arises it is a matter of interpretation whether
a court must search for the historical or original meaning of a statute or
whether it is free to apply the current meaning of the statute to present day
conditions. Statutes dealing with a particular grievance or problem may
sometimes require to be historically interpreted. But the drafting
technique of Lord Thring and his successors have brought about the
situation that statutes will generally be found to be of the ‘always
speaking’ variety: see Royal College of Nursing of the United Kingdom v
Department of Health and Social Security [1981] AC 800 for an example
of an ‘always speaking’ construction in the House of Lords.”
In response to a specific question counsel for the appellant did not contend that
the 1990 Act falls in the exceptional category. Given its subject matter he was
right not to do so. The result is that the 1990 Act may be construed in the light of
contemporary scientific knowledge. This conclusion also does not solve the
problem before the House. It does, however, make it possible to consider whether
the new technique of cell nuclear replacement, despite the restrictive literal
wording of section 1(1) of the 1990 Act, is covered by the Parliamentary intent.
24. The critical question is how the court should approach the question whether,
in the light of a new scientific development, the Parliamentary intent covers
the new state of affairs. In a dissenting judgment in Royal College of Nursing
of the United Kingdom v Department of Health and Social Security [1981] AC
800 Lord Wilberforce analysed the position with great clarity. He observed,
at p 822 B-E:
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existing, at the time. It is a fair presumption that Parliament’s policy or
intention is directed to that state of affairs. Leaving aside cases of
omission by inadvertence, this being not such a case, when a new state of
affairs, or a fresh set of facts bearing on policy, comes into existence, the
courts have to consider whether they fall within the Parliamentary
intention. They may be held to do so, if they fall within the same genus of
facts as those to which the expressed policy has been formulated. They
may also be held to do so if there can be detected a clear purpose in the
legislation which can only be fulfilled if the extension is made. How
liberally these principles may be applied must depend upon the nature of
the enactment, and the strictness or otherwise of the words in which it has
been expressed. The courts should be less willing to extend expressed
meanings if it is clear that the Act in question was designed to be
restrictive or circumscribed in its operation rather than liberal or
permissive. They will be much less willing to do so where the subject
matter is different in kind or dimension from that for which the legislation
was passed. In any event there is one course which the courts cannot take,
under the law of this country; they cannot fill gaps; they cannot be asking
the question ‘What would Parliament have done in this current case- not
being one in contemplation- if the facts had been before it? ‘attempt
themselves to supply the answer, if the answer is not be found in the terms
of the Act itself.” (Emphasis added)
197
ambiguous. Since nobody suggests the contrary, I say no more about the
point. Reference was made authorities such as Jones v Wrotham Park Settled
Estates [1980] AC 74 and Inco Europe Ltd v First Choice Distribution [2000]
1 WLR 586, which deal with the limited circumstances in which a court may
correct a clear drafting mistake. Here there was no drafting mistake. But in
order to give effect to a plain parliamentary purpose a statute may sometimes
be held to cover a scientific development not known when the statute was
passed. Given that Parliament legislates on the assumption that statutes may
be in place for many years, and that Parliament wishes to pass effective
legislation, this is a benign principle designed to achieve the wishes of
Parliament.
26. The Master of the Rolls dealt with the primary argument in trenchant terms.
He said (at para 38)
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I agree. I would summarise my reasons as follows. The long title of the 1990 Act
makes clear, and it is in any even self-evident, that Parliament intended the
protective regulatory system in connection with human embryos to be
comprehensive. This protective purpose was plainly not intended to be tied to the
particular way in which an embryo might be created. The overriding ethical case
for protection was general. Not surprisingly there is not a hint of a rational
explanation why an embryo produced otherwise than by fertilization should not
have the same status as an embryo created by fertilization. It is a classic case
where the new scientific development falls within what Lord Wilberforce called
“the same genus of facts” and in any event there is a clear legislative purpose
which can only be fulfilled if an extensive interpretation is adopted. As Lord
Bingham has demonstrated the makeweight arguments based on the difficulty of
applying some regulatory provisions to the new development cannot possibly alter
the clear legislative purpose. In the result I would either treat the restrictive
wording of section 1(1) as merely illustrative of the legislative purpose or imply a
phrase in section 1(1) so that it defines embryo as “a live human embryo where [if
it is produced by fertilization] fertilization is complete”. If it is necessary to
choose I would adopt the former technique. It fits readily into section 1(1) since
the words of 1(1)(b) plainly make otiose the words “where fertilization is
complete” in section 1(1)(a). Treating the latter as merely illustrative requires no
verbal manipulation.
27. For my part l am fully satisfied that cell nuclear replacement falls within the
scope of the carefully balanced and crafted 1990 Act.
28. The alternative argument was based on section 3(3)(d) which provides that a
licence cannot authorize “replacing a nucleus of a cell of an embryo with a
nucleus taken from a cell of any person, embryo or subsequent development
199
of an embryo”. The argument was that the development of cell nuclear
replacement is prohibited under section 3(3)(d). The Master of the Rolls
observed that he could see no basis for arguing that an unfertilized egg, prior
to the insertion of the nucleus by the cell nuclear replacement process, is
required to be treated under the Act as if it is an embryo: para 51. I agree.
Disposal
29. For the reasons given by Lord Bingham of Cornhill and Lord Hoffmann, as
well as the reasons I have given, I would also dismiss the appeal.
LORD HOFFMANN
My Lords,
30. I have had the advantage of reading in draft the speech of my noble and
learned friend Lord Bingham of Cornhill, with which I agree. I gratefully
adopt his statement of the facts and the relevant legislation.
31. The issue in this appeal concerns the application of the 1990 Act to embryos
produced by cell nuclear replacement in unfertilized eggs. I shall call them
“cloned embryos”. The creation of embryos by cloning was unknown at the
time of the Act and the definition of an embryo in section 1(1), as well as
certain other provisions, assumes that it will be created by fertilization.
32. The argument for the respondent is that the clear policy of the Act is to
regulate the creation, keeping or use of embryos. Cloned embryos are
embryos and therefore the Act should apply to them in the same way as to
fertilized embryos. This involves treating some of the words in the definition
and elsewhere in the Act as confined in their application to fertilized embryos
and failing of reference in relation to cloned embryos. But that can be
accommodated within the orthodox principles of construction explained by
200
Lord Wilberforce in Royal College of Nursing of the United Kingdom v
Department of Health and Social Security [1981] AC 800, 822 and enables
the court to give effect to the policy of the statute.
33. Mr Gordon QC, in his admirably clear reply on behalf of the appellants, was
inclined to accept that such a construction would be legitimate and proper if it
was clear that the only relevant policy of the Act was to regulate the use of
embryos. But he said that section 3(3)(d) disclosed another relevant policy,
which was altogether to prohibit cloning. It is true that it referred only to
replacing the nucleus of a cell of an embryo and not to cloning an unfertilized
egg. But that was for the same reason as the definition of an embryo
contemplated that it would have been fertilized: because cloning unfertilized
eggs was unknown at the time of the Act.
34. So Mr Gordon said that another approach to the construction of the Act would
be to concentrate less upon the fact that cloned embryos were embryos and
more on the fact that they were cloned. The policy shown by section 3(3)(d)
means that one cannot simply assume that cloned embryos would have been
regulated like ordinary fertilized embryos. They might have been prohibited
like the cloning of fertilized embryos already in existence.
35. Mr Lords, I can see that this argument might have created a genuine dilemma
if Mr Gordon had been able to take the next step and put forward, as an
alternative construction, a reading of the Act which brought cloned embryos
within the prohibition in section 3(3)(d). It would then have been necessary to
decide which of these alternative constructions was supported by the better
arguments. But Mr Gordon, rightly in my opinion, felt unable to do so.
Section 3(3)(d) does not prohibit cloning in general but only cloning when the
host is an existing embryo.
36. This left Mr Gordon having to say that one should not construe the Act as
either regulating or prohibiting cloned embryos because one could not tell
whether Parliament, if it had been aware of them, would have done one or the
201
other. To make that choice was, he said, a legislative act. But, as Lord
Wilberforce pointed out in the Royal College of Nursing case, a decision
about whether a statute applies to unforeseen circumstances does not involve
speculating about what Parliament would have done. It is a decision about
what best gives effect to the policy of the statute as enacted. Even if it were as
plausible to read the Act as prohibiting cloned embryos as it was to read it as
regulating them, the one reading which would be entirely implausible and
irrational would be to leave them neither prohibited nor regulated. The court
has to choose between the other two constructions and as Mr Gordon
acknowledges that section 3(3)(d) cannot be construed as applying to cloned
embryos, it follows that they must come within the definition of embryos in
section 1(1).
LORD MILLETT
My Lords,
37. The primary question in this case is whether embryos created by the process
of cell nuclear replacement (“the Act”). When the Act was passed the only
known processes by which a human embryo could be created, including the
process of nuclear substitution, took a fertilized egg as the starting point, and
accordingly involved a degree of genetic manipulation. An embryo created by
CNR, however, is not the product of fertilization and does not involve genetic
manipulation. This was a later development in embryology which was not
foreseen by the Warnock Committee whose Report led to the passing of the
Act or by Parliament when the Act was passed.
38. The question is one of statutory construction. In construing a statute the task
of the court is to ascertain the intention of Parliament as expressed in the
words it has chosen. The Parliamentary intention is to be derived from the
terms of the Act as a whole read in its context. Once it has been ascertained,
the court must give effect to it so far as the legislative text permits.
202
39. The search in every case is for what Parliament did intend, not what it would
have intended had it foreseen later developments. In the present case the
question is not whether Parliament positively intended to cover embryos
produced by a process such as CNR which does not involve the use of a
fertilized egg; it plainly did not, for it did not foresee the possibility. The
question is whether Parliament intended to legislate only for embryos created
by a process which does involve the use of a fertilized egg or whether it
intended to legislate for embryos by whatever process they are created.
40. The scope of the Act is to be found in section 1. Subsection (1) defines the
word “embryo”. It is in the following terms:
41. Before I turn to the proper construction of this subsection, I would make two
general observations about the statutory scheme. First, as appears from the
long title to the Act, it is an Act
These are wide words in completely general terms. In themselves they are apt to
refer to human embryos however created.
42. Secondly, the Act not only makes provision for the licensing and regulation of
the creation of embryos, but also for their subsequent use for treatment or
research (section 3(1)). In particular it prohibits activities, which Parliament
203
evidently regarded as peculiarly objectionable, such as the placing in a woman
of a live embryo other than a human embryo (section 3(2)(a) and the placing
of a human embryo in an animal (section 3(3)(b)).
43. Now whatever may be the status of an organism created by CRN before its
single cell has split into two, once it has reached the two-cell stage it is an
embryo in every accepted sense of that term. In the case of a human embryo,
it is a live human organism containing within its cell or cells a full set of 46
chromosomes with the normal potential to development and, if planted in a
woman, to become a foetus and eventually a human being. While there may
or may not be good reasons for distinguishing between the different processes
by which embryos may be created when it comes to regulating their creation,
no one has been able to suggest a reason why Parliament should differentiate
between the different processes when it comes to regulating their subsequent
use. The placing oa a human embryo in an animal is not the less abhorrent
because the embryo was created by CNR.
44. These considerations indicate to may mind that Parliament intended to make
comprehensive provision for the protection of human embryos however
created, and that the failure of particular provisions to capture embryos
produced by a process not involving fertilization is not because Parliament
intended to leave them unregulated but because Parliament did not foresee the
need to deal with them.
45. With this introduction I can turn to the wording of section 1(1). The
definition in para (a) is in part circular, since it contains the very term to be
defined. It assumes that the reader knows what an embryo is. The purpose of
the opening words of the paragraph is not to define the word “embryo” but to
rather to limit to an embryo which is (i) live and (ii) human. These are the
essential characteristics, which an embryo must possess if it is to be given
statutory protection. The important point is that these characteristics are
204
concerned with what an embryo is, not how it is produced. They are clearly
necessary; the question is whether they are sufficient.
47. Para (b) is likewise inapplicable to embryos created by a process which does
not involve the use of a fertilized egg. Its presence, however, makes the
retention of the concluding words of para (a) puzzling. It is difficult to
discern any reason why Parliament should take pains to exclude the
application of the Act to embryos produced by the use of a fertilized egg while
fertilization is still incomplete by para (a) only to reapply it during the same
period by para (b). It may merely be due to the fact that once a two-cell
zygote emerges the organism is undoubtedly an embryo, whereas before that
stage is reached its description as an embryo is more problematic and calls for
a deeming provision.
48. But it is more likely to owe its provenance to the vagaries of the Parliamentary
process. Para (b) was introduced into the Bill at Report stage. Its evident
purpose was to bring the protection of the Bill forward by some 30 hours from
the completion of the process of fertilization to its beginning. It cannot have
been its purpose to reduce the scope of the Bill. In these circumstances I am
satisfied that para (b) is also directed to the stage of development which an
embryo must reach before it qualifies for the protection of the Act. Like the
concluding words of para (a) it can have no application to embryos produced
by a process, which does not involve fertilization and does not operate to cut
down the scope of the opening words of para (a). In my opinion, this is where
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the essential definition of “embryo” is to be found, and it is defined by what it
is and not by the process by which it is created.
49. This construction does not require words to be written into the section. There
is no gap to be filled by implication. Nor is it a matter of updating the
meaning of the word embryo by reference to subsequent developments. It is
simply a matter of giving the opening words of para (a) their natural meaning,
recognizing the function of the concluding words, and confining their
operation to the case where they are capable of application. Once it is
accepted that the embryo is defined by reference to what it is and not by
reference to the process by which it is created, all need for updating falls
away. The result is to bring within the regulatory scope of the Act embryos
produced by a process, which was unknown, was unknown to Parliament
when the Act was passed. But such embryos are in all respects save the
method of their creation indistinguishable from other embryos. They are alive
and human, and accordingly possess all the features, which Parliament
evidently considered make it desirable to regulate their use for treatment or
research. A construction which allowed for the regulation of embryos
produced by fertilization and not of embryos produced without fertilization
would not only defeat the evident purpose of Parliament to make
comprehensive provision for the creation and use of human embryos but
would produce an incoherent and irrational regulatory code. While this could
be the inevitable result of legislation enacted at a time of rapid technological
development, a construction which leads to this result should not be adopted
where it can be avoided.
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51. Of course, Parliament did not positively intend to prohibit CNR, the
possibility of which it did not foresee. It might or might not have prohibited it
if it had done so. But such considerations are irrelevant. Even if Parliament
had intended to prohibit CNR it failed to do so. The court cannot give effect
to Parliament’s intention if the legislative text does not permit it. The only
question is whether CNR falls within the statutory language. It manifestly
does not.
52. Reliance was placed on the limited nature of the prohibition in section 3(3)(d)
to argue that logically Parliament must have intended either to leave embryos
created by processes such as CNR outside the scope of the Act altogether,
thereby compelling a different answer to the primary question, or to prohibit
their creation.
My Lords,
55. I have had the advantage of reading in advance the opinions of my noble and
l earned friends Lord Bingham of Cornhill and Lord Steyn. For the reasons
they give, with which I am in full agreement, I too would dismiss this appeal.
207
EUSDEM GENERIS RULE
This is an appeal by way of case stated made at the request of the honourable the
Attorney-General on behalf of the crown against the acquittal by the senior resident
magistrate, Mombasa, of the three respondents on Court 1 of the charge sheet as being
erroneous in point of law.
Court 1
Statement of offence
Besetting contrary to s.91 B of the Penal Code
Particulars of Offence
“Abdulla s/o Ibrahim, Maji s/o Nyamwonga; Peyo s/o Mwavodo; on the 20 th day of
October, 1959, at Tudor Road, Mombasa in the Coast Province, unlawfully beset the
Tudor Road, Mombasa, with a view to preventing one Donye s/o Mchoki from doing an
act which the said Donye s/o Mcheki was entitled to do, namely to ride a bicycle”.
208
right to do or abstain from doing, is guilty or an offence and is liable to
imprisonment for a term not exceeding six months or to a fine not exceeding five
thousand shillings, or to both such imprisonment or fine”.
The section then contains a proviso, which has no relevance to the present case.
The learned senior resident Magistrate found the following facts to be admitted or
proved:
“(1) Donye s/o Mcheki is employed by M.M. Chandaria as a house boy in the
Old Town, Mombasa.
(2) Donye lives in Tudor Estate, Mombasa.
(3) Donye goes to and from his work by bicycle.
(4) On October 20, 1959, Donye went to his employer’s house in the morning
but returned to his own house at about 9 a.m.
(5) Whilst returning from his house to his place of work Donye was stopped
by three respondents in Tudor Road.
(6) The respondents asked Donye if he did not know that it was the 20th and
that he should not cycle. The conversation continued about Jomo
Kenyatta until Police arrived”.
At the conclusion of the prosecution case a submission of the case to answer was made
but was overruled, the learned magistrate stating that he would give his reasons if
necessary in his judgement. None of the respondents gave evidence or made unsworn
statements and none of them called witnesses.
The learned magistrate delivered the following judgement:
“The three accused, Abdulla Ibrahim, Maji Nyawoga and Foyo Mwavodo, are charged on
two counts. The first court alleges besetting, contrary to s.91 B of the Penal Code, and
the second likely to cause breach of the peace, contrary to s.178(4) of the Penal Code.
“The facts are not really in dispute. The three accused stopped Donye s/o Mcheki (P.W.
1) who was riding his bicycle in Tudor Road, Mombasa on October, 29, 1959. They told
him that he should not be riding a bicycle that day as the day had some connection with
Kenyatta and Africans were forbidden to ride bicycles on that day.
209
“The three accused were arrested by the police. Mr. Rustan Hira for accused-
having earlier submitted that there was no case to answer a submission, which
was overruled, submitted that in s.91 B of the Penal Code the words “or other
place” came within the ejusdem generis rule.
In support of the contention he referred me to p.1483 or Stroud’s Judicial
Dictionary (2nd Edn), under Title, Place. I think his submission is correct although
I am not very impressed with the actual authority quoted in support of it. The
matter is more clearly dealt with in Maxwell on The Interpretation of Statutes,
(7th Edn.) at s.v of Chapter xi at p.284 onwards. It is also of interest to note that
the form of charge R.V. Hibbert, 13 Cox, p.87, gives support to the learned
advocate’s contention although he cited it for a different purpose.
“I therefore find all the accused not guilty on the first count. I am satisfied that
there is ample evidence to convict each accused on the second count. I
accordingly find each accused guilty on the second count.”
The issue on which our opinion is sought and the questions for determination are
set out by the learned magistrate in his case stated as follows:
“Opinion”
Little need be added to the authorities given in the judgement except to refer to p.
2025 of Stround’s Judicial Dictionary (3rd Edn.) under title:
‘Other’ at para 6 where Lord Tenterden’s Rule is stated, and p. 2204 of the same
work at the Title:
Question
“The question upon which the opinion of the court is desired is whether upon the
facts of the present case, I came to a correct determination and decision in point of
law and if not the Supreme Court is respectfully requested to reverse or amend my
determination or remit the case to me with the opinion of the court thereon.
210
(i) Was the learned trial magistrate correct in law in acquitting the accused on
the first count.
(ii) Was the learned trial magistrate correct in law in holding that the words
‘or other place’ in s.91 B of the Penal Code must be constructed ejusdem
generis with the words ‘any premises, or the house’ in that section.”
We propose to consider the second of these questions first, since the answer to the first
question posed is dependant on the answer to the second question.
To support his decision the learned magistrate relied on certain authorities. The first of
these is Stroud’s Judicial Dictionary of which we have the 3rd Edition.
Under the title “place” there are numerous example cited of the words “place” and “other
place” being interpreted by the courts. We agree, however, that it is impossible to obtain
from these examples any clear guidance as to the meaning to be given to the words “or
other place” in an enactment not in pari materia with one of the instances there quoted.
The learned magistrate also refers to the little “other” at para (6) (at p.2025 et.seq.),
where he has apparently relied on the author’s statement that:
“(6) “Where general words follow particular ones, the rule is to construct them
as applicable to persons ejusdem generis” (per Tenterden, C.J., Sandiman v.
Breach, 7B & C.99). This rule has been ‘acted upon in all times, but nowhere
more clearly stated then by Lord Tenterden in Sandiman v. Breach’ (per
Denman, C.J. Kitchen v. Shaw, 7 L.J. M.C. 16): and it is therefore sometimes
called Lord Tenderden’s Rule, which as regards the word ‘other’ may perhaps
be more fully stated thus: Where a statute, or other document, enumerates
several classes of persons or things, and immediately following and classed
with such enumeration the clause embraces ‘other’ persons or things – the
word ‘other’ will generally be read as ‘other such like’, so that the persons or
things therein comprised may be read as ejusdem generis which, and not a
quality superior to, or different from, those specifically enumerated. The
principle of this rule as regards statutes was explained by Kenyan, C.J., in
R.V. Wallis (5 T.R. 379), wherein he said that if the legislature had meant the
general words to be applied without restriction it ‘would have used only one
compendious word.”
211
This general statement is qualified in the same paragraph by the following statement:
“Yet, on the other hand, though ‘it is very likely that in former days the
doctrine was applied strictly, there are cases which show that the modern
tendency is to reject a restricted construction’ (per Esher, H. R., Anderson V.
Anderson, [1895] 1Q.B. 749), and very frequently the word received its wide
and larger interpretation of every other sort or kind.’
And at para (8) the author says:
“(8) It is perhaps impossible to lay down any workable rule to determine
which of these two interpretations the word should receive in any case not
already covered by authority. Therefore, it would seem to be the most
practically useful way to range, so far as possible, the cases into their two
classes of interpretation.
A. Ejudem generis
B. Unrestrictedly comprehensive.”
He then goes on to give examples of both interpretations. In our view no assistance can
be derived from this authority.
The learned magistrate refers to the form of charge in R.V. Hibbert and others (1), 13
Cox C.C. 82. This charge was based on the particulars of that case and had no
application to the circumstances of the present case.
The learned magistrate next relied on Maxwell on The Interpretation of Statutes (7th
Edn.), section V of Chapter XI at p. 284 et. Seq. He does not refer to any passage in
particular but it would appear from the generality he has treated this commentary as
supporting the defence contention that he has taken it as an authority for the proposition
that the words “or other place’ must necessarily be construed under the ejusdem generis
doctrine and to be restricted in application to the same genus as the words antecedent
thereto. We do not think that the explanation given in Maxwell is properly capable of
such an exclusive interpretation. We think the learned magistrate may have concentrated
his attention on the following passage:
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“But the general word which follows particular and specific words of the
same nature as itself takes it’s meaning form them and is presumed to be
restricted to the same genus as those words”.
The sentence following, however, reads:
“Of course, the restricted meaning which primarily attaches to the general
word in such circumstances is rejected when there were adequate ground to
show that it has not been used in the limited order of ideas to which its
predecessors belong. If it can be seen from a wider inspection of the scope of
the legislation that the general words, notwithstanding that they follow
particular words, are nevertheless to be construed general, effect must be
given to the intention of the legislature as gathered from the larger survey”.
It will be evident then that the question as to whether the words “or other place” are to be
interpreted restrictively under the ejusdem generis doctrine or can be given a
comprehensive interpretation falls to be considered in the light of the interpretation of
legislation in pari material, if any, which has been the subject of judicial interpretation
and in the light of the intention of the legislature.
We were referred to the case of Gulley and others v. Harrison (2), [1956] 2 All E.R.
254, where the words “house, room or other place” were used s.1 of the Sunday
Observance Act, 1780, and Goddard, C.J. held that the meaning of the word “place” was
not restricted by the words “house” or “room” which preceded it and that part of a park
used for a motor cycle competition was a “place” within sufficient authority to enable us
to apply it in the present case since the evil aimed at was very different, it is at the least
illustrative of the application of the more comprehensive interpretation required to be
given to these words to meet the intention of the legislature.
In Charnock v. Court (3), [1899] 2 Ch.35, however, this decision was not apply. This
was a case which was decided on the 1875. The relevant parts of this section read:
213
such other person has a legal right to do or abstain from doing, wrongfully and
without legal authority:-
“4. Watches or besets the house or other place where such other person
resides, or works, or carries on business, or happens to be, or the
approach to such house or place. Shall on conviction thereof be
liable….”
It was held that the words in the enactment covered a “landing-stage” and
Stirling J., in his ratio decided l stated:
“the words ‘place where he happens to be’ seem to me to embrace any place
where the workman is found, however casually.
We think it is clear that the wording of s.91 B of the Penal Code was taken from the
enactment under consideration in Tarmac’s case (3), and that itself this decision
constitutes strong persuasive reasoning for a like decision in the present case. Moreover,
if we look, as we consider we must, to what we believe to have been the intention of the
legislature in enacting s.91 B of the Penal Code, then we think this also provides a strong
reason for not employing the ejusdem generis doctrine. Quite clearly the intention of the
legislature in s.91 B of the Penal Code was to protect the unfettered liberty of the
individual in going about his lawful occasions without let or hindrance and for the
purpose to protect him in whatever “place he happened to be”. We cannot conceive that
the legislature could possible have intended to protect the individual from being “beset
him on, for example, a public highway on his way to or form his home or workplace. We
cannot see any reason to conclude that there was ever words “happens to be”, to restrict
the “other place” to a place of the genus of a “house”.
The learned magistrate does not appear to have considered the meaning of the word
“besetting”, but in our view there was clear evidence of the complainant having been
encircled by the respondent with the intent necessary to constitute the offence and that he
was in fact “beset”.
The answer to the question stated for our determination therefore is:
214
(i) the learned trial magistrate was not correct in law in holding that the words
“or other place” in s. 91 B of the Penal Code must be construed ejusdem
generis with the words “any premises, or the house” in that section.
(ii) The learned trail magistrate was not therefore correct in law in acquitting the
respondents on the first count.
The proceedings are therefore returned to the magistrate with a direction that he
substitute a conviction in place of an acquittal against all the respondents on the first
count.
With regard to sentence the Crown has intimated that it is not seeking additional
punishment. In view of that intimation the leaned magistrate may feel disposed to
consider whether the provisions of s.33 of the Penal Code my meet the justice of the case.
Proceedings returned to magistrate with a direction to substitute a conviction in
place of an acquittal against all the respondents.
NOTE: In this case, the judge argues that the ejusdem generis rule should not be
applied to the phrase “or other place where any person…happens to be” because the
statute in question was based on an English statute which contained a similar phrase, and
an English court had not applied the rule to that phrase in English. He implies, therefore,
that a phrase is a local statute that is similar, or identical to one in an English statute
should be interpreted in the same way as English courts have interpreted it. But courts in
East Africa do not always apply such a “rule of interpretation.” In R. Qumu, we have
seen that the judge refused to apply the English meaning of the word “wife or husband”
to a Uganda Act. In Jivraj V. Devraj [1968] E.A. 263. The Court of Appeal refused to
apply the principle of an English case interpreting a similar provision in an English Act to
the Rent Restriction Act of Kenya (see Sawyer & Hiller p. 56-58). On the other hand, in
Manmohandes Derachand V. Kalyand (1950) 17 E.A.C.A. 63, (Sawyerr p26) the court
did apply the English interpretation although it considered it led to an unfortunate result
in Aden. In view of this, are you persuaded by this reason?
If judges in East African sometimes apply an English interpretation and sometimes to do,
we cannot find the reason for the decision in a rule about the applicability of English
decisions. We will have to look outside the formal legal rules to find real reason for
215
the decision. It was a fact in Abdullah that an African nationalist was arrested by
colonial police and convicted by a colonial court after engaging in political activity in
support of an African nationalist leader.
Does the judge find any of these facts to be “material” facts? Do you think they were?
Consider the following cases which all deal with the question “When is bicycle a
carriage?”
a. Taylor v. Goodwin [1879] a Q.B.D. 228: Accused was charged under Statute
forbidding furiously driving a “carriage” on the highway in that he was
furiously driving a bicycle. Held, guilty. Per Mellor, J.; “it may be that
bicycle were unknown at the time when the Act was passed, but the legislature
clearly desired to prohibit the use of any passenger. The question is, whether
a bicycle is a carriage within the meaning of the Act. I think the word
‘carriage’ is large enough to include a machine such as a bicycle, which
carries the person who gets upon it, and I think that such a person may be said
to ‘drive’ it. He guides as well as propels it, and may be said to drive it as an
engine driver is said to drive an engine. The furious driving of a bicycle is
clearly within the mischief of the section, and it seems to me to be within the
meaning of the words, giving them a reasonable construction”. Luch, J.,
concurred in Judge Mellor’s opinion.
b. Williams v. Ellia, [1880] 5 Q.B.D. 175, A local turnpike act provided a toll
“for every carriage of whatever description, and for whatever purpose, which
should be drawn or impelled, or set or kept in motion by stead or any other
power or agency than being drawn by any horse or horses, or other beast or
beasts or draught, any sum not exceeding 5 s.” Defendants were charged with
unlawfully charging tools upon bicycles, which the defendants claimed were
216
comprehended under the word “carriage”. Held, guilty. Per Lush, J: “…A
bicycle is not a ‘carriage’ within the meaning of the Local Turnpike Act.
Where the words employed by the legislature do not directly apply to the
particular case, we must consider the object of the Act, and therefore in
Taylor v. Goodwin it was held that the words “furiously driving any sort of
carriage” applied to a bicycle, for it was the object of the Act to prevent any
injury from the furious driving of any kind of vehicle. The present Act begins
with imposing a toll upon particular carriages which are described or other
such carriage” and then imposes a further tool upon “every carriage of
whatever description, and for whatever purposes, impelled by steam or any
other power not being that of horses”.
The carriages here referred to much be carriage ejusden generis with the
carriages specified. If a bicycle were held liable to pay toll as a carriage, I do
not know where we could draw the line.”
217
propulsion by the application of levers worked with his hands, as one sees
men doing in the streets, the case would be tolerably clear, and I think it
makes no difference that he gets his propulsion by pedaling with his feet-
an operation which is perfectly different from the operations of walking,
running, or skating, in all of which he bears his own weight at the same
time that he moves himself. I therefore come to the conclusion that a
bicycle or tricycle is a “carriage”,…
JIVRAJ v. DEVRAJ
Court of Appeal for East Africa, [1968] E.A. 263
Sir Charles Newbold, P.: The appellant (hereinafter referred to as the plaintiff) is the
owner of certain premises in Nairobi. In 1960, by a verbal contract, he let those premises
218
on a monthly tenancy to the respondent (hereinafter referred to as the defendant). This
tenancy was duly determined by a notice to quit effective on June 30, 1966. The Rent
Restriction Act. (Cap. 296) (hereinafter referred to as the principal Act) in force during
the period of the tenancy did not apply to the premises. The defendant did not quit, so on
November 23, 1966, the plaintiff filed a suit seeking an order for delivery of the
premises, mesne profits, the payment of certain water and sweeper charges, and interest.
On December 20, 1966, the Rent Restriction (Amendment) Act, 1966 (No. 37 of 1966
and hereinafter referred to as the amending Act) came into operation and it brought the
premises within the ambit of the principal Act. In January 1967 the defendant filed a
defence claiming, inter alia, that the plaintiff was not entitled to an order for possession
by reason of the provisions of the amending Act. When the suit came on for trial, by
agreement the sole issue for decision by the court was “whether the suit premises are
retrospectively subject to the Rent Restriction Act, 1959, as amended by the Rent
Restriction (Amendment) Act, No. 37 of 1966”. The terms of the orders, which were to
follow the answer to this issue, were also agreed. On the hearing of the appeal counsel
for the defendant/respondent generously accepted that should the appeal be successful the
agreed form of order should include a reference to the amounts claimed in respect of
water and sweeper charges, as a reference to these charges had inadvertently been
omitted from the agreed form of order. It was also agreed by both counsel for the
defendant/despondent and counsel for the plaintiff/appellant that the issue agreed upon
was to be regarded as posing the question whether the amending Act applied so as to
prevent the plaintiff from obtaining the order for possession which he sought in his plaint.
The trial judge held that the amending Act operated retrospectively so as to prevent the
plaintiff from obtaining an order for possession. In coming to that conclusion he relied
largely on the principle contained in Remon v.City of London Property Co. Ltd. ([1921] 1
K.B. 49) and an unreported decision of Rudd, J., in Durg Dass v. Gurdip Singh (Kenya
High Court civil Case No. 1327 of 1966), in which the principle in the Remon case was
also relied on. The trial judge, however, appreciated that there appeared to be, as he put
it, “no theoretically sound answer” to the objection to the amending Act applying to
persons who had ceased to be tenants before the commencement of that Act.
Counsel for the plaintiff/appellant submitted that both under the common law and under
s. 23 of the Interpretation and General Provisions Act (Cap.2) pending legal proceedings
219
are not affected by any change in the law unless the amending Act shows, either
expressly or by necessary implication, an intention that the new provision should operate
retrospectively and affect those proceedings; and he submitted that s. 13 of the amending
Act showed a clear intention that those provisions should not operate retrospectively. He
also submitted that the judge, in arriving at his decision, had failed to consider that basic
principle of the law and the decision in Noronha v. Devji ([1954] A.C. 49), and had failed
to appreciate that in the Remon case there were no pending legal proceedings. Counsel
for the defendant respondent submitted that rent restriction legislation was peculiar in that
the law to be applied was the law at the date of the judgement and not that at the date of
the inception of the legal proceedings, and that this arose from the decisions that on the
commencement of any such legislation an ex-tenant in possession of premises to which
the legislation applies acquires the status of a statutory tenant and thus comes within the
legislation no matter when the legal proceedings were instituted. Counsel for the
defendant/respondent also referred to a decision of Wicks, J., in Karmali v. Mulla
9[1967] E.A. 179), which though given under different legislation, followed the principle
set out in the Remon case (supra). He also submitted that s. 15 (4) of the principal Act, as
amended by the amending Act, showed a clear intention that the legislation should
operate retrospectively.
As the plaintiff had given the defendant a valid notice to quit effective on June 30, 1966,
after that date the plaintiff was entitled under common law to bring an action for the
recovery of the premises and the ejectment of the defendant there from. When the
plaintiff filed his plaint on November 23, 1966, s. 15 (1) of the principal Act, which
provides that “no order for the recovery of possession of any premises or for the
ejectment of a tenant where from shall be made unless…” certain conditions are fulfilled,
did not apply as the premises were not premises to which the principal Act applied nor
was the defendant a tenant. When the amending Act came into operation bringing
premises of the class of which the defendant had previously been the tenant within the
ambit of the principal Act, the question which then arose was whether the defendant, who
was wrongfully in possession of these premises, could be regarded as being a tenant
within the meaning of the words quoted above in s. 15 (1). The principle contained in the
Remon case ([1921] 1 K.B.49) was that he could be. This in effect meant that the normal
law to be applied in rent restriction cases was that at the date of judgment and not that at
220
the date when the legal proceedings were initiated. The Remon case was a decision in
1921 of the English Court of Appeal, which decision was followed nearly thirty years
later by the English Court of Appeal in HUTCHINSON V. Jauncey ([1950] 1 K.B. 574).
As the rent restriction legislation of Kenya is similar in a number of respects to that of
England and has the same basic object, decisions of the English Court of Appeal are not
lightly to be disregarded. On the other hand, as the principle contained in the Remon case
would seem to be contrary to a basic principle of the common law and to the principle
contained in s. 23 of the Interpretation and General Provisions Act, it is necessary to
examine the judgments in the Remon case in order to ascertain the reasoning which led to
the enunciation of the principle.
Where a person has ceased to be a tenant at a date prior to the date on which an amending
Act comes into operation normally that person could not be regarded as a tenant at the
date of the amending Act. The judges in the Remon case appreciated that it would be
straining the meaning of the word “tenant” to include within it a person whose tenancy
had been duly determined and who had no right to be in possession of the premises at the
date when those premises came within the ambit of the legislation but who nevertheless
had wrongly continued in possession. They considered, however, having regard to the
object of the legislation, which was the protection of certain tenants, that the intention of
the legislature would be defeated unless they gave to the word “tenant” a strained and
unnatural meaning. I consider that the judges failed to appreciate that the amending Act
would, without any straining of the meaning of tenant, have applied naturally to all
tenants, no matter whether the tenancy originated prior to or subsequent to the
commencement of the amending Act, so long as they were still tenants in the ordinary
meaning of that word when the amending Act came into operation. In other words the
judges in order to protect a very small class of persons, that is persons who if their
tenancy had continued would have come within the protection of the amending Act but
whose tenancy had been lawfully determined prior to the operation of the Act and who
had wrongly continued in possession until the Act came into operation, gave a strained
and unnatural meaning to a word and thereby infringed rights which had crystallized
before the legislation came into effect without there being any express or necessary
implication in the legislation itself that such rights were to be affected. It cannot be said
that merely because the legislation was designed to protect a certain section of the
221
community, that is tenants, therefore there was a necessary intention that the legislation
should have retrospective effect, as otherwise all legislation designed to protect either a
section of the community or the community as a whole would, ipso factor, have
retrospective effect. That is clearly not the law. I consider that the decision in the Remon
case ([1921] K.B. 49) was a wrong decision and the reasoning on which it was based was
false.
There is a principle of law, however, that where a court has interpreted the law in a
certain manner, particularly an interpretation which affects property rights, and that
interpretation has been acted upon for a considerable time, then that interpretation should
not be departed from unless it is clearly wrong and gives rise to injustice. The principle
in the Remon case, has, so far as I am aware, been acted on for a considerable time and in
addition to the decision the subject of this appeal, we have been referred to two other
decisions of the Kenya High Court which have adopted the Remon principle. Thus unless
it is possible to say that on the facts of this appeal there are circumstances which enable
the Remon case to be distinguished, it would then arise for consideration whether, even if
the decision in the Remon case was wrong it would result in more injustice to depart from
the principle than to adhere to it.
Counsel for the plaintiff/appellant submitted that there was a clear distinguishing feature,
which was that in the Remon case there were no pending legal proceedings when the
amending Act came into operation. This, in my view, constitutes a clear distinction from
the Remon case. It was, I have no doubt, this distinguishing feature which enabled the
Prinvy Council in Noronha v. Devji ([1954] A.C. 49) to hold on appeal from this court
that an amending Rent Restriction Act did not affect legal proceedings though this court,
following the principle in the Remon case, had earlier held that it did, without mentioning
in its judgment any of a large number of cases, including the Remon case, to which the
Board had been referred in the course of argument. Though the Remon case can clearly
be distinguished on that ground it is impossible to do the same with Hutchinson v.
Jauncey ([1950] 1 K.B. 574) to which both counsel for the defendant/respondent and
counsel for the plaintiff/appellant referred, as in that case there were pending legal
proceedings. A careful examination of the reason for the decision in that case, however,
shows that while the court was following the principle of the Remon case in the meaning
222
of the word “tenant”, nevertheless, as there were pending legal proceedings when the
amending Act came into operation, the amending Act was only held to apply because on
the construction of certain sections of that Act it was held that there was a necessary
intention that the amending Act should have retrospective operation. Even, therefore, if
this court were to hold, following the Remon case, that the word tenant could include a
person who had ceased to be one before the Act came into operation, is there anything in
the amending Act which shows that it was intended to affect legal proceedings which had
been instituted before the amending Act came into operation, as opposed to those which
were instituted subsequently? In my view, s.13 (2) is that the amending Act is not to
have retrospective operation. I accept counsel for the defendant/respondent’s submission
that s. 15 (4) of the principal Act shows an intention that the section should have
retrospective operation, but whether the section as amended should have retrospective
operation is a matter, I think, to be determined by the principal Act.
In my view, therefore, the trial judge was wrong in coming to the conclusion that the
amending Act prevented the plaintiff from obtaining an order for possession and he
should have answered the issue in the negative and made the agreed order. I would,
accordingly, allow the appeal with costs, with a certificate for two advocates. I would
substitute for the judgment and decree of the High Court a judgment and decree of the
High Court a judgment and decree ordering the defendant to deliver up possession of the
premises within three months from the date of this judgment and ordering an enquiry as
to mesne profits and water and sweeper charges, unless the parties agree a figure as to
such profits and charges, with interest thereon at court rates. I would also order that the
plaintiff would be entitled to the costs of the suit on the higher scale but I would not make
an order for the costs of two advocates. As the other members of the court agree it is so
ordered.
223
Where a written law repeals in whole or in part any other written law, then, unless
a contrary intention appears, the repeal shall not-
(a) …
(b) …
(c) affect any right, privilege, obligation or liability acquired, accrued or
incurred under any written law so repealed; or
(d) …
(e) affect any investigation, legal proceeding or remedy in respect of any
such right, privilege, obligation, liability, penalty, forfeiture or
punishment as aforesaid, and any such investigation, legal proceeding
or remedy may be instituted, continued or enforced, and any such
penalty, forfeiture or punishment may be imposed, as if the repealing
written law had not been made.
What policy arguments can you make in support of this statutory presumption of non-
retroactivity?
2. In the light of the policy justification for the Rent Restriction (Amendment) Act
of 1966 which greatly extended the number of dwellings covered by controls and
further in the light of the presumption stated by Sir Charles Newbold in favour of
following the Remon precedent, even though wrong, unless it could be
satisfactorily distinguished, are you persuaded that the fact that legal proceedings
had been begun in the principal case but not in Remon provides a satisfactory
distinction?
3. To what extent is the Court in the principal case merely deciding a technical point
of “law” as against making an important choice of policy?
LW LEGAL METHOD
DISPUTE AND DISPUTE SETTLEMENT OR PROCESSING
224
What is a dispute?
A dispute is a special form of interaction
It involves complex objects comparable to each other
A dispute is characterized by
The subject matter, i.e. property in different forms
Parties to a dispute, i.e. AVB or RVY Civil or Criminal process
Institutions to which a dispute or disputes is or are referral i.e. clan elders, moots,
courts of law conciliatory Boards or tribunals.
Expectation of the parties i.e. divorce, division of matrimonial property,
conviction of the accused etc.
A dispute is Universal
The processes of dispute settlement are universal even though rules and procedures may
vary. Every dispute which arises has a form or way in which it must be settled;
compromise, winner take all.
Dispute settlement serves an ideological function a kind of Win a little take a little or
winner take all.
Justice takes various forms depending on the nature of society under consideration.
Justice might mean what is good, desired, right, honest or reasonable. Justice is one
of those elusive concepts it is value loaded.
225
Blood feuds/Vendetas/Revenge
Contests, mediation, Reconciliation or arbitration and compromise. (Modern ADR
springs form these origins)
Cases
Kadume’s Case
Mesugi
Soine
Makara Kadume
Kadume’s
mother
Half Brothers
226
Soine’s Reply
Kadume’s mother had deserted her husband, Soine had taken care of Kadumes
father until he died.
Brother’s inherit
Kadume already had a plot of land at his maternal uncle’s place
Soine’s plot was too small (economic necessity)
The Internal Moot finally reached the conclusion after examining all evidence and
revealed facts – divided the land unto two in which both Kadume and Soine got a share.
227
Mtsweni who lived only a quarter a mile away did the same the next night and all
the members of the compound and other compounds of his lineage joined in the
Chorus.
Mtsweni had not made up a song of his own against Torgindi, he was not a good
song maker.
He hired the best song maker in Sanger Ya to stay in his place and compose
scurrilous songs about Torgindi and all his clansmen and their wives.
Torgindi’s inventiveness was also exhausted so he too hired a song maker. The two
men held dances and song contests every might. Each brew beer and made food in
order to attract dancers to came to dance and sing songs directed at the other.
There was a specific Rule for the songs that:
If an act attributed in such a song was possible of
human performance, it should be true, or the
slandered person could call a jir (a kind of
supernatural powers).
In another song Mtsweni told how Torgindi had changed himself into a pig at night
and made it unsafe for every sow in the countryside. Torgindi could not actually do
that hence such a song could not be a basis for ajir.
The Sanger song maker had actually thought of some such worse things to suggest
that it was. Torgindi’s nature to do but Mtsweni had stopped him because what he
wanted was to win the contest and not to spoil Torgindi’s heart permanently as they
were after all neighbours.
228
The drumming contest continued every night for more than three weeks before the
Mbatarev (Village Elder) one Change took notice.
Change decided that if the contest was allowed to continue as such it will end up
in a fight for which he himself would be answerable to the District Officer.
Change sent a note to both Mtsweni and Torgindi that they and their people were
to come to his compound the following afternoon, and both would sing and
drum, and he, Change, as Mbatarev would decide the case.
Torgindi’s group dragged a large ilyu drum for two and a half miles in order to
accompany their songs and dances.
Mtswemi’s song maker and one of his sons hurried across to Udam and brought
two small wooden figurines of the sort of the Udam people use in
divination: a small black male and a large red painted female. The black
represented Torgindi who was small and black and the red his wife who was
tall, fat and light coloured.
Mbatarev walked back and forth between the two performing groups, noting
the performance and the songs.
After two hours he called for attention and said that they would hear ajir.
Torgindi began his story. The man carrying the two figurines put them up in
the air and waved them, a roar of laughter followed. Change took the
229
figurines from the offender and put them under his chair until the hearing was
over, both parties concurred in the judgment. Mbatarev announced the winner
of the song kcontest.
Torgindi won the case and Mtsweni had the better songs.
He then advised both song makers to go home immediately and not to return
to MbaDuku for a couple of months until the feelings which had been aroused
had died down.
ORDEAL
Rv Palamba s/o Fundikira 14 EACA 96 (T) 1947
A Trial by ordeal to discover who had by witchcraft caused the death of the
eleven children of the first appellant in this case.
The two appellants were jointly changed in the High Court of Tanganyika at
Kigoma and were found guilty of the murder of a woman one Wamlunda d/o
Kulyungumba, the senior wife of the first appellant.
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All four women were in good health before the administration of Mwavi
The body of Wamulanda to whom the murder charge relates was apparently burnt
after death and no post mortem examination could be made to ascertain
scientifically whether she had died as a result of taking the Mwavi or not.
Except that Mwavi was administered to each woman by mouth in powder form
on the knife: there was no evidence at all as to what would constitute a fatal dose
of Mwavi, so no proper proof that the woman died as a result of the dose of
Mwavi given to her.
Even on hearsay evidence Mwavi according to the local lore of itself is not a
fatal-poison-it requires, in order to be fatal, an additional element, namely the
guilt of the person taking it, that is, guilt of witchcraft.
Sofar as the Court was concerned, Wamulunda was not guilt of witchcraft for
it does not exist. On this basis, the first appellant exhypotheses, believed that
the administration of Mwavi to a person innocent of witchcraft would not
cause death hence this negative malice aforethought as per section 200 of the
Penal Code, for the intent to cause death on the knowledge that the act will
probably cause death were absent.
The appeal was allowed and conviction and sentence quashed.
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Land becomes a commodity bought and sold for money “land market”.
One propertied class acquires the use of land at the expense of another
class.
The purchaser of a piece of land must be sure that he has good title in the
land, that is acquisition of ownership which must be good against the
whole world.
Ownership of land ensures the owner of future income.
Ownership confers title and there must be legislation providing for the
registration of titles so that the purchaser acquires a title which is free
from third party interests.
The parties are involved in a sort of a fight or a combat and are envisaged as
adversaries who accuse each other in the presence of an unbiased or impartial
umpire thus the term adversarial.
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Each side produces its own witnesses who are first examined by a party who has
called them (examination in chief), and what they have said is tested by cross-
examination on behalf of the opposing party.
The presiding judge or magistrate normally does not initiate a line of inquiry, he
or she assumes the role of umpire, he or she sees that questions put to witnesses
are proper and the questioning is fair.
Upon conclusion of the evidence, the presiding judge or magistrate sums it up
for the assessors if any, normally in customary law or Islamic Law issues
The assessors give their verdict before the presiding judge or magistrate delivers
judgment which takes the form of winner take all.
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- the application of the law to that particular dispute
The adversarial system is a developed legal system in which the legal process
involves three distinct phases:
Identification of the disputed issue between the parties (litis contestation)
Finding the rules applicable to that issue
Discovery of relevant facts and application of the rules to these facts.
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The Inquisitorial system is characteristic of Continental Europe and states of the
World which were under the colonial rule of the French, Portuguese, Spaniards
etc.
Under this system there is no trial in the sense of concentrated events where
parties face each other with their respective witnesses.
At the preliminary stage pleadings are submitted and a hearing judge appointed.
The judge conducts the questioning of witnesses thus the term inquisitorial.
In theory the judge can ask whatever he thinks necessary to discover the truth.
In practice the judge restricts himself to lines of questions which have been
submitted to him in writing by the parties.
Rules of Evidence:
The Judge prepares a written record of the case and reports to a panel of
judges, who consider it, study the written briefs and give their judgment.
The dossier is bulky because the judge does not see or hear the witness but reads
from unwritten briefs.
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It is the judge who controls the trial and not the parties.
1. Pleadings
Pleadings include the plaint and the written statement of defence
The party claiming the plaintiff, states the facts of the case in a plaint.
These documents are exchanged between the parties in a civil case in order to
reveal the apple of discord to the court.
In Tanzania pleadings are governed by the Civil Procedure Code, 1966; the
Magistrates Courts Act, 1984 and the Law of Marriage Matrimonial Proceedings
Rules, 1971
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Particulars of the Claim and the Legal Basis
A plaint must state facts, disclose a cause of action and a player or state what
relief or remedy is being sought for.
The defendant must be furnished with information so that he or she can prepare
his or her defence.
The defence can take different forms i.e. a traverse, confession or avoidance, objection on
point of law.
Avoidance is an allegation of other facts that destroy their legal effects in the whole or in
part for example where the plaintiff alleges negligence, the defendant counter claim by
contributory negligence.
Objection on a point of law the defendant avers that the facts raised by the plaintiff do
not in law disclose any cause of action i.e. absence of facts pointing to lack of duty of
care.
Note: Matters not raised in pleadings can be refused at the trial. However, courts have
inherent powers for amendment in as long as it does not put a party at a
disadvantage.
Pleadings are by nature intended to make the parties to fight their case. It
is from the character of the Adversarial system.
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On how to prosecute – Criminal Law and Procedure
Adjudication
Why do litigants seek adjudication?
What role expectations do they and their advisers have of judges?
What types of judicial activity do potential litigants find acceptable?
Dispute theory does give character to the method adopted for redress. It is thus obvious
that a fundamental character of ADR at its genesis was flexibility and formalism. This
attracted extensive scholastic interest and discourse.
The adjudicative process is one of constant interaction between judges, the legal
profession, litigants and the wider public… this should assist in understanding the
judicial role M.D.A. Freeman, “Standards of Adjudications, judicial law – making and
prospective over ruling” in Vol.26 Current Legal Problems [1973] 166 – 207.
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approaches and could, in the process, become disorganized thereby gradually eating into
the “Chaostic” realm (disordered civil society relations).
According to Abel, informalism could be used to expand the scope of state control
through the smokescreen provided by related coercion. There was no real premium
informalism where less powerful disadvantaged disputants are concerned.
According to Pelmer and Robert informalism was inadequate means of settling disputes
due to unenforceability of decisions. Despite the above fears, arguments and counter
arguments, ADR grew into a process complementary to litigation in the United States of
America the developments were forced by the sophisticated developments of the society
as they were by the inadequacy and insufficiency of the litigation to effectively deal
with the emerging complexities. A short-circuiting of civil justice had to be found to
enable effective resolution of claims.
Dennis using the Weberian Conflict Theory as a means of overcoming the criticism
imposed on ADR wrote that through his theory ADR may achieve some of the noble
purposes in its early advocates for it could do what it was originally designed to do,
help the poor, the down-trodden, those with no access to the expensive legal system.
ADR is a process of dispute settlement outside the court in which alternative means such
as mediation, conciliation and neutral case evaluation are used in order to reconcile
parties. The concept of ADR was first introduced in the USA at Pond Conference
through a paper by Prof. Frank E.A. Sanders “Public Dissatisfaction Justice, 1976”.
Resolutions of the Conference were to found alternative means of dispute settlement. It
was adopted in Tanzania in 1993.
In 1993 the judiciary deeply studied the seriousness of case delays in the courts of law
caused by lack of personnel, working facilities, technicalities of the law, poor service of
summons and preliminary objections, expensive filing of cases and advocate fees, normal
litigation costs including transport, food and accommodation in cases where litigants stay
outside the geographical jurisdiction of courts and lack of knowledge generally. A
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seminar for all judges of the Court of Appeal and High Court was held to discuss ways of
disposing cases of a civil nature more expeditiously.
Previously there had been established institutions other than courts of law for easy access
to justice:
Under Order XXIII rule 3 of the Civil Procedure Code parties are allowed to
choose to come to an agreement after instituting their case in court, and can
thereby resolve their dispute through compromise
The Civil Procedure Code 2nd schedule and the Arbitration Ordinance, Cap 15
allows for arbitration. Arbitration means reference of a dispute or difference
between the parties for determination by a person or persons other than a court of
competent jurisdiction.
Under Order XXIV rule 1 of the Civil Procedure Code, 1966, the defendant to a
suit is allowed to recover debt or damage or to deposit in court at any stage of the
suit the sum of money he considers to be satisfactory to the full claim. Notice to
the plaintiff is through Order XXIV, rule2 of the Civil Procedure Code, 1966, and
where the plaintiff accepts such amount in full (Order XXIV, rule 3) no interest of
the deposited money is paid by the defendant and the court shall pronounce a
judgment in accordance with Order XXIV rule 4(2) of the Civil Procedure Code,
1966 but if he accepts the deposit as satisfaction in part, he may prosecute his suit
for the balance in accordance with order XXIV, rule 4(1).
The then Chief Justice using powers conferred on him by sections 81 and 82 of
the Civil Procedure Code 1966 made amendments and introduced Orders VIII A,
VIII B, and VIII, C (Government Notice No. 422 of October 1994:
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Order VIII A provides for the rules of pre-trial and scheduling
conferences. A first settlement and Scheduling conference must be held
within twenty – one days after conclusion of pleadings and has to be
attended by the parties or their advocates or their recognized agents. The
conference enables the judge or magistrate handling the case to determine
the appropriate speed track of that case and also to know whether the
dispute in question can be resolved through mediation, arbitration, or
negotiation.
Order VIIIA, Rule 2 the Chief Justice is empowered to exempt any part of
the High Court or subordinate Court from the application of any rules
under this Order for cases or particular cases within specified time. The
notice for exemption must be published in the Gazette (except in Court
where ADR mechanism operate: Dar es Salaam, Mwanza and Arusha).
Order VIII B provides for rules for final pre-trial settlement and
scheduling conference or in other words the final conference.
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ADR starts after the plaintiff had field a plaint in a Civil Court Registry. The plaintiff is
required by law to file at least two copies of the plaint, one kept in civil registry and the
other to be served upon the dependent.
According to the Fist Schedule of the Civil Procedure Code, 1966, Order IV, Rule 3 the
suit must be assigned to a specific judge or magistrate within four days after the suit has
been instituted. It is only when the case has already been assigned to a specific judge or
magistrate where ADR becomes operational because such judge or magistrate can order
the issuance of summons in accordance with Order V.
Under Order V Rule 3 the summons must be accompanied with a copy of the plaint and
copies of other documents as directed by the Chief Justice in order to inform the
defendant how ADR will be conducted. The documents in question include:
Initial order
Information sheet.
These are intended to inform the defendant to appear before the assigned judge or
magistrate for an Initial conference in order to discuss the possibility of setting the
dispute between the plaintiff and defendant through alternative means.
After the issue of summons there follows conduct a pre-trial and scheduling conference
in accordance with Order VIII A for the purpose of ascertaining the speed track and
providing the guide frame in accordance with Order VIIIA Rule 3 sub-rules 2 and 3.
According to Order VIIIA rule 3 (3) (a) of G.N. 422 of 1994: fast cases can be resolved
within a period not exceeding ten months. Speed Track 1 are cases considered to be
normal and can be concluded within twelve months.
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Speed track cases 3- special cases need to be resolved within a period not exceeding
twenty-four months.
The General rule is that when a scheduling conference order is made, no departure
amendments of that order is allowed.
Except where leave of court and the party who wants to make such a departure satisfy the
court that departure or amendments to be made are necessary in the interest of justice.
The party in favour of departure or amendment shall bear the costs unless the Court
directs otherwise or his advocate or recognized agent fails to comply with the scheduling
order or fails to enter appearance at the conference held without good cause the court is
allowed to make order against defaulting party like paying costs, enter a defaulting
judgment against him or dismiss the case.
The Court under Rule 7 of Order VIIIA is permitted told more than one session of pre-
trial conference. Pretrial Conference is intended to determine whether or not the dispute
in question can be resolved through ADR.
The Lawyer, Kenya Magazine on Legal Issues Vol.19.
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Wins trust of all parties by being impartial,
Facilitates communication,
Ability to focus the parties on the problem;
Probes each party’s case for interest, positions, strength and weaknesses;
Assists other party to understand the other party’s case and to understand their
limitations
Overcame party’s emotional blockages
Proposes new avenues to be explored.
Explores settlement proposals
As mediator he/she has no interest personal or otherwise in the case, must be able to
discuss and freely debate, bring neutrality and changes underlying dynamics of
negotiation process.
Mediation is non-binding till settlement is reduced into writing and signed by the parties
and the mediator, parties are allowed to withdraw themselves from the process at any
time or the mediator can end mediation if he/she sees that the process itself and further
efforts towards it are note worthy. This is done freely in confidential manner and
without prejudice to status of officers made during such mediation.
Mediation allows parties to feel free and give a well – structured negotiation and to be
reasonably open as to what they are seeking. This encourages a great chance to the
disputing parties to continue with their previous relationship and live in harmony.
ARBITRATION
Arbitration is reference of a dispute between not less than two parties for determination
after having both sides in judicial manner by a person or persons other than a court. It
involves an impartial third party preferably a lawyer, who meets with such parties and
listens to them on both facts and law where he/she finally renders an award.
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ARBITER & FUTUS ENGINEERING (PYT) Ltd, case No. 17354/88 (SA unreported),
the court observed in relation to arbitrations:
Types of Arbitration:
Arbitration is a private voluntary process where an arbitrator usually with specialized
subject expertise is chosen by the disputants whose decision is binding.
In Tanzania arbitration is covered under the Arbitration Ordinance, Cap. 15 and the
second schedule of the Civil Procedure Code, 1966. Both laws provide that, an arbitrator
is empowered to rule on applications filed prior to arbitration hearing and to be able to
manage the case.
Sources:
1. L.A. Ndimurwino, “Alternative Dispute Resolution Mechanism (ADR): A Tool of
Administrative of Justice in Tanzania: The High Court of Tanzania Dar es Salaam.”
A Compulsory Research Paper Submitted for the Award of the Degree of Bachelor
of Laws (LL.B) of The Open University of Tanzania, 2005.
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2. Cappelletti, M. “Alternative Dispute Resolution Process Within the Framework of
Worldwide Access t Justice” in MLR 282.
4. De Souza, “Law and Community: The Changing Nature of State Power in Late
Capitalism” in R.L. Abel (ed) The Politics of Informal Justice Vol. 1. The
American Experience Academic Press NY 1982.
5. Pamela, Roberts, Dispute Process: ADR and The Primary Forms of Decision –
Making, Butternorths, London, 1998.
6. Masan, J.N” ADR in Civil Justice Reform: Some Thoughts”– Advocate of High
Court of Kenya and An Associate with the Dispute Resolution Centre, Nairobi.
7. Brenda, B. Mediation: The Word’s Favourite ADR Process” The Lawyer Nairobi
Issue No. 19 March 2000.
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