LEGAL METHODS (104)

Nature, classification and sources of law

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

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

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

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

FUNCIONS OF LAW
Law has mainly three basic functions which are as follows
• PERMISSIVE FUNCTION
This is the function of law that actually allows or permits the subjects of it to do
or engage in a range of transactions for example entering into marriage,
entering into contracts, in cooperative companies etc.

• DIRECTIVE FUNCTION
This is the function of law where by the law allows a subject to to enter into
various transactions or relations but it directs the subjects as to what to do
should be done or complied with for the purpose of validating the transaction
or relations in question. Example the element of a valid contract, the necessary
documents for formulating a company

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

THE NATURE OF LAW

There are basically two thoughts of law
• IDEALISM
• HISTORICAL MATERIALISM/MARXI’SISM

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

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

METHODS OF SOCIAL CONTROL THROUGH LAW

• This basically refers to the various systems a legislature can
adopt to achieve social earns through law prof Robert S summers
an American tourist has identified five basic techniques used in
modern law to control social behavior

(1) The penal technique:

it involved rules prohibiting certain defiant behaviors, the maintenance of a
police force and other enforcement agencies to detect and prosecute
violations, together with a system of courts to adjudicate question of criminal
liability. It also involves the maintenance of prisons, custody centers and other
such places as a penal system N.B the existence of the penal system deters
people from committing crimes. It prescribes certain conduct and terms them
as crimes, A crime considered to be committed against the state and it is the
state itself that will prosecute you. This only deals with criminal matters

(2) Grievance remedial technique;

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

(3) The private arranging technique

It deals with a providing a frame work of rules which primarily determines the
validity of the transaction. It deals with private arrangements such as
marriages, purchase and sale, gifts, making a will, the creation of leases,
formation of a club e.t.c. the law also provides a system for the determination
of rights and duties and other liabilities although this may subsume under the
previous remedial technique N.B as the society becomes more and more
correctives there is a movement towards direct government intervention in
the private arrangement. This deals with private arrangement but it sets a
frame work or standard to be followed for those who will engage themselves in
a particular transaction. Lawyers say that when you formulate a will you die
responsibly.

(4) The constitutive technique

Here the law recognizes a group of people constituting themselves as
company with legal capacity to sue and be sued independently of the person s
forming it. In Tanzania his is governed by the company Act # 12 of 2002. This
means that it focuses on one kind of transaction which a people form a
company and once the organization is formulated there are some procedures
to be followed so as the company can be ran. Example registration of the
company, the company must be registered to the government because it
becomes a legal person meaning it can be accused the company itself you
don’t write the names of the owner but the name of the company.

(5) The administrative regulatory technique

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

(6) Fiscal technique

This is a technique that covers legislation through the government raise his
money to finance its expenditure by imposing certain taxes some of which are
direct and follow natural and legal persons and property while some are
indirect and are based on consumption of goods example income tax, VAT etc.
this means that the government uses law of purposes of raising money for its
expenditure. That is why we have tax laws which its aims is to collect tax while
some taxes are direct paid by natural persons, but indirect tax you pay taxes
without feeling that your paying taxes
(7) Conferral of social benefits technique
in this technique when the government has money they pay people back in
terms of providing social services such building hospitals and schools and as
other infrastructures. This technique used by the government to spend money
raised by application of the fiscal technique on a wide range of benefits and
services which in earlier times were left to the individual, to the local
community or in some cases to the church example is our education, roads ,
national health service and social security. N.B usually these benefits are
regulated by statutes so there is a basic legal task of interpreting the statues
to know who are the benefiters, who administers the scheme, how is the
scheme administered etc.

OTHER RULES OF CONTROLLING SOCIAL BEHAVIOR

Law is the not the only means of regulating social behavior there are other
rules which include.
(1) Rules of morality : these are statements about how people should
behave or must behave in society as a whole or in certain group within
the society saying what is good or what is bad.
(2) Customs: these are rules of social behavior based on long experience of
what is right or useful in a certain situation. There are there for justifying
by usage and tradition. By following customs people behave in this or
that way( read case Gwao bin kilimo v. Isunda bin ifuti) 1948 TLR 403
(3) Organizational rules: these are rules that are governed by certain
organizations. These rules of social, political or cultural organizations
and institutions example the constitutions of political parties contain
rules of behavior governing party members by pronouncing
fundamental principals of the party policy, regulating organization of the
party and establishing rights and duties of the parties.
Rules of politeness;
These are rules that show how a person should behave according to the
society he is in meaning that he or she should be polite towards his
elders and respect them as well example in a bus giving a seat to elders
Distinction btn law and other means of social control:

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

(2) Public law and private law

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

(3) Criminal law and Civil law

-Criminal law; this is a branch of public law that terms certain behaviors as
crimes and provides for punishment on contravention
-Civil law: this is a system of law that regulates the relationship between the
individuals and provides the rights and duties of the parties together with a
system of courts. Example in a contract a person will know all his rights.
(4) Substantive and Procedural law:
- Substantive law: is the branch of law that provides all the rights, duties and
obligation of the parties, it also provides for a system of courts whether
criminal or civil for purposes of determining rights of the parties example,
criminal law, contract law, family law etc. we could say that it deals with the
substance of something.
--Procedural law: this is a branch of law that deals with the procedures to
enforce your rights under substantive law, where to go to enforce the rights
and also what procedures that should be follow for the purpose of enforcing
that right.
- this is also a branch of law that deals with 1. The institutions that have
mandate to deal with violations of rights and duties under substantive law and
2. The procedures to follow to enforce that right. An example of this is criminal
procedures cap.20.

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

LEGAL RESEARCH AND WRITING

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

TYPES OF AUTHORITATIVE MATERIALS

There are 3 types

¶1) LEGISLATION
¶2) PRECEDENT / CASE LAW
¶3) OTHER SECONDARY SOURCES

NB; in terms of usage the materials can be categorized into 2

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

(A) LEGISLATION OR LAW ENFORCE: we call it law enforce because we

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

-These are laws enacted or made by the authorities having power

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

(B) PRECEDENT
Precedent are also used as authorities to back up an argument
the same way legislation does however for a decision to be
applied it has to be a decision of a court of records which may
either be the High court or the Court of Appeal
NB; the judgment should be relevant and direct to the issue in
question hence it should not have been REVERSED OR OVER
RULLED.
REVERSED: means if the court of appeal delivers a judgment that
differs the high courts means that the judgment of high court
ceases and automatically dies, OVER RULLED there is implied over
ruling It means that the the decision of court applied impliedly it
has been over ruled, Express over ruling meaning that the judge
says directly that the decision made in high court has ceased.

• (2) PERSUASIVE AUTHORITY; this the authority which does not have
any forced law but can only be used to persuade the court for
 example persuading the court to allow a principal in a particular
case made by the high court or supreme court of England or that of
the East African court of Appel. You may do this as well by citing
written materials written by a prominent author such as IAN
BROWN in International law or MULLER in civil procedures
NB: persuasive materials cover all the remaining sources such
as books dictionaries bible, Qur an , journals and articles etc.

ORDER OF AUTHORITIES

(1) THE CONSTITUTION

(2) STATUTES
(3) PRECEDENTS
(4) OTHER SECONDARY SOURCES
(1) THE CONSTITUTION
(2) LEGISLATION; it begins with a bill, a bill is a draft version of an act of
parliament which is laid before the parliament for approval

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

A STRUCTURE OF AN ACT OF PARLIAMENT

- It must have a court of arm

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

CITATION OF LAWS: there are various ways on how we can cite some
cases. (A) CITATIONS OF LAW IN TANZANIA: there are three ways of citing the
statutes

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

SEARCHING A STATUTE

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

(C) CITATION OF LAWS IN ENGLAND

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

LAW REPORTS
These are reports of more important cases that have significant legal
importance and which have been decided by the superior courts in the judicial
Hierarchy. For the case of Tanzania are the decisions of the High court and
Court of Appeal.

CRITERIA OR HINTS FOR CITING A CASE IN A LAW REPORT

• It should be a decision that introduces a new principal example BiHawa
Mohammed V. Seif Ally
• If a case modifies an existing principal
• If a case comes to solve a conflict between judgment or decisions that
were existing etc.

(A) LAW REPORT FROM ENGLAND

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

HITORY OF LAW REPORTS IN ENGLAND

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

I=this history may be divided into two periods

(1) Pre 1865
(2) Post 1865

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

(B) LAW REPORTS FROM EAST AFRICA

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

-In Tanganyika we had the Tanganyika law reports that began in 1921

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

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

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

BRIEFING A CASE / CASE NOTES

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

• In reading a case or judgments you have to read the entire

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

CONTENT OF THE CASE NOTES

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

LEGAL WRITING

Language is the professional tool that enables a lawyer to communicate well

with his audience so language is an important aspect to be considered and to
be given much weight so it is important to learn on how you can effectively
communicate with your audience also language will enable you to put forward
your argument with articulation.

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

IMPORTANT CLUES IN WRITING

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

- Accurate and precision: write something that is exact and free

form errors, being very careful.
 - Persuasive: try to convince your reader on what you are writing.
CITATION OF AUTHORITIES:

MANNER OF CITING AUTHORITY

(1) Legislation: there is section subsection , roman and paragraph. 42(2)
(e)
(2) Constitution: there is Article, sub article, roman and paragraph
(3) Subsidiary Legislation: Rule or regulation, example Regulation, sub
regulation, roman number and paragraph.
Rule- Sub rule, roman number and paragraph

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

(1) Author’s name

(2) Year of publication
(3) Title of the book
(4) Edition if any
(5) Place of publication
(6) The publisher
Example Fintch, J. D, (1974) , Introduction to legal theory, (2nd edition) , sweet and
Maxwell.

IMPORTANT HINTS IN CITING

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

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

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

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

ACTUAL REFERENCING
 FORMS AND PRECEDENTS
(1) PLAINT
(2) WRITTEN STATEMENT OF DEFENSE (WSD)
(3) AFFIDAVITS
(4) CHARGE SHEET
(5) DEED POLL

(1) PLAINT: this is a legal document which is used to institute a civil

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

(2) WRITTEN STATEMENT OF DEFENSE: this is a legal document drawn by the

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

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

(4) CHARGE SHEET : this is a legal document that is formally used to

institute criminal proceedings, they are governed by the criminal
procedure Act Cap 20 revised edition 2002.

Content of a charge sheet

- Title of the court (name of court)

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

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

DISPUTE SETTLEMENT METHODS AND PROCEDURES

It is common for disputes to arise in any society because disputes are by

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

WHAT IS A DISPUTE SETTLEMENT:

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

WHAT IS DISPUTE SETTLEMENT PROCEDURE: this refers to all procedures which

are used to resolve a dispute, it involves:
¶ -Establishing whether a dispute has occurred or not
¶ -if a dispute has occurred, what are the interests
¶ -what is the applicable law
¶ -what institutions are there to settle such dispute

DISPUTE SETTLEMENT METHODS:

there are two methods of dispute settlement

(1) the traditional or communal dispute settlement methods

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

(1) TRADITIONAL METHODS OF DISPUTE SETTLEMENT

These are methods which were used by pre capitalistic societies to settle their
disputes, these societies depended much on land that is why many dispute
relate to land.
 BASIC PRINCIPALS INVOLVED
(a) Land is valued for its use, that is , land has use value and it is the major
means of production and so, land disputes therefore, mainly involved
the question as to who has the right to use that land. One may claim that
he has a better title to use that land because either:
-he has been in possession of that land
-he has inherited it or he has cleared it from the bush.

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

CHARACTERISTICS OF TRADITIONAL SOCIETIES

- low level of production
- no classes
- no surplus production
- low level of science and technology
- major means of productions were based on land

LEGAL CONTEXT OF THE TRADITIONAL SOCIETY

- They depended on customs established by long experience,

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

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

there were many methods used to settle disputes such as

But the first three were common

- mediation and conciliation

- drumming the scandal
- trial by Ordeal
- Retaliation

(a) Mediation and conciliation:

This is a method of dispute settlement where by a mediator who was an
old person comes between the disputants and help them to solve their
disputes amicably, at the end of the dispute the parties in dispute
became friends. In case KADUME V SOINE.

(b) Drumming the scandal:

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

MTSWENI ACCUSATONS: he accused one of Torgindi’s wife of stealing

yams, there was local consensus, so this was probably true, also that
Torgind changed himself into a pig at night and eat sow.

TORGINDI’S ACCUASTION: Mtwseni was a skunk which is a black and white

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

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

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

ADVANTEGES OF THESE METHODS:

(1) Reconcile parties meaning people become friends (disputes were

solved)
(2) You did not have to pay for anything (cheaper compared to modern
methods)
(3) The wrong doers are known
(4) Brings peace and solidarity in the society
(5) The disputes were solved in a short time
(6) It made all members to participate
(7) Principals were known to everyone in the society
(8) Satisfaction of people.
 DIS ADVANTAGES

(1) Some methods were Against justice (trial by ordeal)

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

MODERN METHODS OF DISPUTE SETTLEMENT

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

BASIC PRINCIPAL OF THOUGHT

(1) land becomes a commodity bought and sole for money

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

LEGAL CONTEXT OF A MODERN SOCIETY:

- Existence of formal institutes like courts and tribunals etc.

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

METHODS DEALS TO SOLVE DISPUTES

They can be divided into to two major groups

(1) ADVERSORIAL SYSTEM:

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

MAIN CHARACTERISTIC OF ADVERSORIAL

- Judgment takes the form of

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

STAGES OF DISPUTE STELLEMENT

(1) Identification of the disputed issues between the parties

(2) Finding the rules applicable in the dispute
(3) Discovering of the relevant facts and application of the rules to the facts.
ADVANTAGES OF ADVVERSORIAL SYSTEM
 -it is possible to keep records of the proceedings and use them later
- it produces greater precession about the issues thus saving time for
the court as parties must be very well prepared when they come to court.
-the parties control their case.

DIS ADVANTAGES OF ADVERSORIAL SYSTEM

- The technicality can cumbersome nature of procedural rules

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

INQUISITORIAL SYSTEM:

This is a characteristic of continental Europe and states of the

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

RULE OF EVIDENCE:

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

ADVANTAGES OF INQUISITORIAL SYSTEM

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

DISADVANTAGE

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

ADR: alternative dispute resolution: this refers to the methods of solving

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

HISTORY OF ADR IN TZ:

this highly developed in 1976 in America meaning it came to existence and it

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

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

i) COURT ANNEX / COMPLUSORY: where by the court is also involved in

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

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

ADR PROCESSES:
The major processes are
(1) MEDIATION
(2) ARBITRATION
(3) NEGOTIATIONS

(1) MEDIATION: this means reconciliation. This is a process where by there is

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

- It is cheaper then litigation because mediators are magistrates and

judges who are employed by the government and so you do not have to
pay them (In as far as court annex is) .

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

- It takes a short time.

- The resolution is made by the parties themselves

- Dispute is resolved amicably

DIS ADVANTAGE OF MEDIATION

- There can be the use of delaying techniques

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

(for out of court)

- Not applicable in certain cases example constitutional cases and

criminal cases.

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

ADVANTAGES OF ARBITRATION PROCESS

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

DIS ADVANTAGES OF ARBITRATION

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

NEGOTIATION: there is no third party meaning that the two parties discuss and
make a decision
COMMON LAW CASE LAW TECHNIQUE/ CASE TECHNIQUE: (obiter dicta) courts
opinion but not decisions.

3 CONCEPTS THAT WILL ALWYS APPEAR IN CASE LAW TECHNIQUE:

- RATIO DECIDENDI
- OBITER DICTA
- MATERIAL FACTS

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

- (R.D )where by a person negligently parks his car on a public road and
a a result of that negligence the car hits another person OR where by
when a moving object is wrongly parked and as a result it hits a person
that person should be responsible for his actions OR carelessness of
any driver should be liable for his actions. R.D are made by judges and
their decisions.

There are 2 R.D a narrow and wider one. MR has a wife which is B the
neighbor approached the wife and told her that I have received a call
from ur husband he has been involved in a a car accident and both of his
legs have been paralyzed so he is taking to the hospital so I wanted to
inform you then the lady suffered from a shock and admitted to the
hospital and realized that

decision: C was liable to pay b compensation because of wrong

statements he made.

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

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

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

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

Example of extracting an R.D:

Page 11 Rickinson V . Danton 1897

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

N.R.D: where the defendant has willfully or intentionally told the plaintiff
a lie that is likely to and frightened her and consequent physical or
mental harm that person is liable to compensate the victim.

W.R.D: it is a tort to do any act with intent to affect someone in a body or

in mind.
 USE OF NEGLIGENCE CASES:

why do we use them?

(a) They help us to extract material facts
(b) They help us to extract R.Ds
(c) They help us to know how an R.D can be used in future
(d) They help us to know whether judges make law or not.

DEVELOPMENT OF THE LAW OF NEGLIGENCE

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

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

BEFORE NEGLIGENCE WAS RECOGNIZED THERE WERE ONLY 3 PEAGEN HOLES

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

- Breach of contract:

- Occupiers liability

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

(1) Analogy reasoning: is the reasoning by comparison or by examples.

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

CASES :
- Langridge vs levy
- Wilkinson vs downton
- Derry vs peek
- George and wife vs skivington
- Heaven vs pender
- Candler vs crane
 2 SEMESTER
nd

LOGIC: this is a Greek word.

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

REASONING: it’s a faculty of a mind by which will distinguish the truth from false
statements, good from evil and which enables the processors to reduce truth
from facts. You can know that a person is lying because of the nature of the
reasoning.

ARGUMENTS: it is a set of influences or propositions. In this common words are

premises or statements and conclusion these are common vocabs. Example
-men love football. ( this is logical because the conclusion has arrived from the
premises there is a flow of statements). THIS MEANS THAT ITS VALID BUT NOT
TRUE.
-john is a man.
-john loves football.
you should never attack the major premises and as well as not attacking the
conclusion because in the conclusion the major premises is also in it.
Meaning that you should always attack the minor premises as a lawyer.

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

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

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

WHY LEGAL REASONING:

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

(1) Helps lawyers or advocates to predict the outcome of cases. (because

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

TYPES OF LOGIC:

(A) FORMAL LOGIC/ SYLLOGISM:

This is a kind of arguments that consists of three parts that is two
premises and a conclusion. Example

-girls love isidingo

-Maria is a girl
-Maria loves Isidingo

Syllogism is also referred to as a closed system of thinking.

NB. In legal syllogism the legal provision forms

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

Example section 294(HOUSE BREAKING) of the penal code

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

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

ADVANTAGES OF SYLLOGISM:

(1) Saves time

(2) Easy to arrive to a conclusion
(3) It makes a judgment predictable
(4) Decisions are made easily

• Lawyers should always rely on the statements and the arguments

given and tell the court as if you were present at that particular
scene.
(The thing speaks for itself)

(B) SERIAL ARGUMENTS/ SORRTIES: this is abit similar to syllogism but the
difference here is that this has several premises or arguments.
• This is a mechanism of thinking where by the conclusion is
reached out of many premises.
It is an argument consisting of series of premises arranged so
that the predicate of each premise forms the subject of the next
premise. The conclusion unites the subject of the 1st premise with
the predicate of the last premise. Example

(a) A person who takes the property of another person shall be

guilty of theft.
(b) To be guilty of theft the person should take the property of
another person without any recognized defense in law.
(c) Bonified claim of right is one of the recognized defenses in law
(d) Juma has taken the property of another person
(e) Juma did that honestly and reasonably believing that he had
the right to do so.
(f) Therefore, juma is not guilty of theft.
NB: sorrties are useful in reducing judgments as they enable a reader to know
why was the case decided the way it was. It also assists the reader to know the
premises used by the judges in arriving to the conclusion. Also I giving the R.D
of that case.

LEGAL REASONING:

METHODS OF REASONING:

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

This may come to the test (INDUCTIVE REASONING READ THE CASE ABOVE)

(2) DEDUCTIVE REASONING: is the process of reasoning from the general to

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

MAJOR WEAKNESS OF DEDUCTIVE REASONING OR DISADVANTAGE:

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

(3) REASONING BY ANALOGY: the process of reasoning by analogy involves

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

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

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

JUDICIAL HUNCH OR INTUITION:

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

NB; judicial hunch is done in the following instances

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

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

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

• this is a case involving an action by an employee of a railroad

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

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

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

in the cause of his employment, while riding on a wagon of the employer,

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

he began his discussion of the applicable law by stating that “ it is

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

- Realist styles: these judges do not even know Precedent because they
base on the decision which is made in the court and that they say that
law is unpredictable. Basing on that any case should be decided on its
own merits. Meaning that in the process of making decision they have no
time to think of precedent that are binding. Realist define law not as a
body of rules but a system that is based on facts not rules. According to
the realist style what judges say and what the lawyers argue in court it is
the law. Hence law is not the same always and not predictable at all, law
can be X today provide for X today but maybe Y and provide for Z
tomorrow until a court has provided a ruling on the facts before it no law
on that subject is in existence. This is because in the cause of
pronouncing judgments the judges make law and not the parliament
even precedents are not law because judges can over rule them.
Realists say that every case should be judged on its own facts
Where the hierarchy of the court is regular because the precedents are
binding depending on the hierarchy of courts the principal will only be used if
the material facts of the cases are similar example Donoghue V Stevenson and
Grant V. Australian Knitting mills also the principal of the previous case must
have been decided by a higher court In the judicial hierarchy however that
principal will only be applicable if it has not been abrogated by a court which
has powers to over rule or it has not been super seeded by a provision of the
law

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

IMPORTANCE OF THE PRINCIPAL OF STARE DECISIS

(1) It promotes consistent in the decision making process

(2) It promotes predictability
(3) It promotes uniformity in decision making

DISADVANTAGS OF THE PRINCIPAL OF STAIR DECISIS

(1) It makes the judges to be lazy

(2) It kills researching skills
(3) Kills reasoning of the court
(4) It may lead to injustice to decision making

BINDING NATURE OF PRECEDENTS

Precedents may be persuasive or authoritative

(1) AUTHORITATIVE PRECEDENTS: these are binding decisions they can be

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

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

CIRCUMSTANCES
(i) if it is contrary to the law
(ii) if it is contrary to reason so it is wrong either because of either

- fault interpretation of the previous case.

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

(2) PERSUASIVE PRECEDNTS: are those decisions made by courts of other

jurisdictions. They are only persuasive in other jurisdictions and not
binding, however this is a general rule.

TECHNIQUES USED IN HANDLING RATIOS OR PRECEDENTS/ EVASIVE

TECHNIQUE

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

(1) OVER RULING: it occurs where a superior court in Hierarchy is satisfied

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

Express over ruling: this is when the court express that this decision is a
bad law.
Implied over ruling: this is when a court decides to change the principal
of another court by making its own principal which will over rule the
other.
 (2) DIS REGARDING: it simply means not following a precedent. It is done by
court of concurrent jurisdiction. It may occur for example where there
are 2 conflicting decisions, and if this occurs then the latter is preferred
to the prior decision. This happens where the 2 courts are of the same
court (oordinate)

(3) DISTINGUISHING: it occurs where a judge or advocate compares the

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

NB: distinguishing an earlier case is simply a way of saying that a

previous case or decision is irrelevant to the latter case.

TYPES OF DISTINGUISHING:

(A) RESTRICTIVE DISTINGUISHING: it cuts down the expressed ratio

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

(B) NON RESTRICTIVE DISTINGUISHGING: it occurs where a court accepts

the expressed R.D of the earlier case and does not seek to curtail it ,
but finds that the case before it does not fall within these R.D because
of some material difference of facts. You do not attempt to challenge
the previous R.D at all.

(A) STARE DECISIS IN ENGLAND

STRUCTURE OF THE ENGLISH COURT SYSTEM:

 CHART

SUPREME COURTS/ HOUSE OF LORDS( house of lords was

abolished and established the supreme court 2010)

Criminal courts civil courts

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

THE OLD RULE

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

EXCEPTIONS:

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

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

(3) Where public policy changes. A decision basing on some public policy
particularly commercial was not binding if social conditions change
there is a maxim which says “Cessinte rational Cessat Ipsa Lex” which
means where the rational for the law ceases hence the law also ceases.
There is a case of Nordenfelt V. Maxim Nordenfelt.
(4)

NEW RULE:

THE PRACTICE STATEMENT OF 1966( exam question)

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

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

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

THINGS TO CONSIDER

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

THE COURT OF APPEAL

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

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

EXCEPTIONS:

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

(b) OWN DECISIONS BINDING

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

EXCEPTIONS:

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

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

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

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

THE PREVY COUNCIL

This was established as a judicial committee by the judicial committee

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

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

(1) THE DECISIONS OF THE PRIVY COUNCIL:

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

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

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

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

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

(a) it was faced with its own prior conflicting decisions

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

DIVERGENT VIEWS ON THE BINDINGNESS OF THE PRIVIY COUNCIL’S

DECIONS AFTER INDEPENDENCE

there were 2 views after independence

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

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

STATUS OF ENGLISH DECISIONS IN EAST AFRICA AFTER INDEPENDENCE

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

General reception dates (22 July 1920)

Special (1st January 1922)\

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

(A) GENERAL RECEPTION (22 July 1920)

(i) ENGLISH DECISIONS BEFORE INDEPENDENCE

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

-Oconor J held that “……… and in my opinion, established decisions

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

NB: decisions of English courts that is supreme court (house of

Lords , Court of Appeal and High Court) after the general reception
 date were not binding on East African Courts, they were merely
persuasive

(ii) ENGLISH DECISIONS AFTER INDEPENDENCE:

The rule is that English decisions after independence were not

bidinging on East African Courts, they were merely persuasive in
the case of Dothia V. National & Grindlays [1970] EA 195

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

(B) SPECIAL RECEPTION DATES:

This was a reception of specific aspects of English laws through

provisions in a number of local statutes, they were of 2 types

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

(b) Those mentioned with no date

(i) English decisions on English laws under special reception before

independence.

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

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

(ii) English decision on English law under special reception after

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

ENGLISH DECISIONS INTERPRETING STATUTES IN PARI MATERIA

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

(a) Before Independence: English decisions interpreting statutes in pari

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

(b) After Independence:

There were 2 views
 (i) The decisions are binding on East African Courts( Rashid
Moledina
(ii) English decisions on statutes in pari material were not binding
on East African Courts in the case of Kiriri Cotton Co Ltd V.
Dewan [ 1958] E.A 239 and Riziki Binti Abdullah V. ..

CONDITIONS FOR IT TO BE APPLIED IN

(i) The decision should not be wrong

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

STARE DECISIS IN EAST AFRICA

(1) AFTER INDEPENDENCE: after abolishment of appeals to the privy council

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

PRECEDENTS IN TANZANIA

The Court of Appeal of Tanzania was formed in 1979 by the Appellate

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

OWN DECISIONS: the CAT is bound by its own previous decisions except that it
can depart from its won decision whenever it appears right to do so. in the
case of JUHATA V KYIUTA … Nyallai CJ said that the court of appeal should be free
in both civil and criminal cases to depart from such previous decisions when it
appears right to it to do so. it can also over rule its own decision in the case of
Zambia Tanzania Road Services Ltd V. J.K Pallangyo
HIGH COURT: this is bound by the decisions of the Court of Appeal , however
sometimes some High Court judges refuse to be bound by the decisions of the
Court of Appeal example Biron J in the case of Yesaya Gweseko V. R [1970] HCD
in 160 refused to follow and departed from the decisions of the Court of Appeal
in the case of Mbaruku V. R because the decision based on the Britain
precedent which was merely persuasive.
 STATUTORY INTERPRETATION
In law various words mean different things depending on the context, in most
cases where the words of the statutes are not clear, the court would find the
means either within the law itself or somewhere else outside the law.

WHAT IS STATUTORY INTERPRETATION: this is the process by which courts

determine the meaning of a statutory provision for purposes of applying it to
the situation before them.

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

AN OVERVIEW: interpretation of law is the primary function of a court, courts are

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

RULES/ CANONS OF STATUTORY INTERPRETATION:

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

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

(1) LITERAL RULE/ PLAIN MEANING RULE/ STRICT APPROACH TO STATUTORY

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

ADVANTAGES OF THE PLAIN MEANING RULE

- It is the only guarantee of ascertaining (correct) the meaning of a

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

DISADVANTAGES/CRITICS OF THE PLAIN MEANING RULE

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

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

IMPORTANT. In the case of R V ALLEN important page 21. In England there

was a law that was prohibiting a married person to get married to
another wife if your wife is still alive. The court said that the word
“Marry” in this particular law means undergoing through particular
ceremony

(RE) this means an application RE SIGWETH V……. . in England there was a

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

ADVANTAGES

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

DISADVANTAGES

- It makes it difficult to predict what was considered by a judge to be an

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

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

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

ADVANTAGES OF MISCHIEF RULE:

- It is a great improvement of golden and literal rule in the sense that it

encourages the court to have regard the context of the doubt
- It is only sensible to permit the courts to go beyond the narrow confines
so that it may consider the social circumstances of the provision that is
not clear.

DISADANVANTAGES OF THE MISCHIEF RULE:

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

-PURPOSIVE APPROACH TO STATUTORY INTERPRETATION: ( MODIFICATION OF

THE MIS CHIEF RULE)

apart from the traditional 3 rules of interpretation the courts has in

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

HELD:

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

Presumptions; ideas that are taken to be true.

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

(a) PRESUMPTION AGAINST RETROSPECTIVE OPERATION OF THE LAW: when a

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

(b) PRESUMPTION OF STRCIT INTERPRETATION OF PENAL STATUTES: penal

statutes should be strictly interpreted in favor of the accused person ,
penalty will only be imposed where the law says punishment should be
imposed.
There is age long presumption that criminal or penal statute are to be
construed strictly in favor of the accused person in the case of
Dickenson V. Fletcher (1873) LR 9 CP 1 Brett J said “ those who contend
that a penalty may be inflected must show that the words of the Act
distinctly enact that it shall be incurred under the present
circumstances. They must fail if the words are merely equally capable of
construction that would, and that one that would not inflict the penalty.
In the case of R. V Mabula Mihambo [1984] TLR, where the court held that
among others where the construction of a delegated legislation results
in ambiguities or absurdities or give rise to oppressive doubtful results,
the benefit of doubts should always be given to the accused
 (c) PRESUMPTION IN RESPECT OF TAXATION STATUTES: when the court
interprets taxation statutes they should give strict interpretation on
those statutes and a person should pay tax where the words are clear
that a person should pay tax.
Taxation statute should be strictly interpreted in favor of the tax fair.
This occurs in the situation where a tax statute Is capable of 2
alternative meaning then the court will prefer the meaning more
favorable to the subject, but if clearly worded revenue statutes must be
applied even though they operate against the subject in a manner that
may appear to have been unintended by the parliament in the case of
Jaferali Alibhai V. R [1961] EA 610 the court said “where words of the tax
statutes are to be construed, they must be given a clear interpretation
and they must not be virgule or else tax should not be imposed”.

(d) PRESUMPTION ON INDIVIDUL LIBERTY

in construing a statute construe it in favor of the individual of liberty
especially where custodial sentences are involved.
Where the law says when an accused person is convicted of an offence the
court may either impose fines or custodial sentences or both in the case of
R V. Hallstrom ex p. W [ 1986] .. Mac Cullough said “ there is … a canon of
construction that parliament is presumed not to enact legislation which
interferes with liberty of the subject without making it clear that this was
the intention in the case of A.G V. Lesinoi Ndeinai [1980]

(e) PRESUMPTION AGAINST PROVISION OUSTING JURISDICTION O FTHE COURT

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

(f )PRESUMPTIONS AS TO PROPERTY RIGHTS

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