mkoyogo legal method 2

7/23/2019 Mkoyogo Legal Method 2

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Mukoyogo 2005/06

RLW 123: LEGAL METHOD II

I: Introduction to Case Law Techniue

Theories o! Ad"udication

• Modern legal theory is concerned with exploration of inner workings of the judicial system.

• The Earlier attitude was to regard the judiciary as the priests of the law:repositories of its ancient rules and traditions; that decisions were distilled in amysterious way; that judges never create law but declare fresh applicationsof the ancient rules.

• n modern days the legal system has been gradually remolded !precedentsco exist with statutes".

The #ature o! Le$a% &ources:#egal sources are the raw materials of judicial process. The rule is that judicialdecisions have the same source of #aw. The ultimate principles are the$rundnorm or the basic rules of recognition of the legal system !%almond& 'ans(elsen and 'art". These are the ultimate principles: rules of #aw.

)ccording to 'art& )cts of *arliament and judicial decisions have the force of lawbecause judges& officials and private +iti,ens recogni,e that primary rules are tobe identified by reference to a certain +riteria- enactment by legislature makeslaw; judicial pronouncements bind other courts in the hierarchy !efer to Module

/". ules of precedent are not rules of law but rules of practice& understandingthem re0uires a detailed study of the actual behaviour of the judiciary !to bedone in Topic 1ne".

Co''on Law

The +ommon #aw system is a customary system of law& consisting of a body ofpractices observed and ideas received by a caste of lawyers !judges&advocates& solicitors".

Institutions o! Ad"udication

The role of the judges represents an entire nstitutional nexus of conduct. The roleof a judge stands in relationship to other roles& the totality which comprises theinstitutions of law. )n understanding of the judicial process re0uires cognition ofthis nstitutional nexus of conduct.Every institution embodies some degree of consensus about how it is to operate.

There are a number of shared expectations& which define the role of the judge.2udges are part of the legal order& part of a society in which human conduct isgoverned by rules. 2udges are instituted as one of the ways in which society

resolves conflict.The paradigm !theoretical framework" of a rational decision is one reachedaccording to rules& principles or standards !3workin".)djudication according to rules means that an ad hoc decision-making processis deprecated. t points that a judge must conform to established rules!formalism". This does not mean that the judge has the largely mechanical job ofmere application of an existing rule to a new state of facts.



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4ehind the demand that adjudication according to rules is a rational process ofdecision-making& lies in a belief in formal justice that is satisfied by giving like caseslike treatment.

4ut rules must not be taken as ends in themselves. +onceptualism !legalism" is a

vice to which lawyers all too readily succumb.ules are a means to an end& purposive instruments. They embody socialobjectives and policy choices. Thus when a judge confronts a rule is not met by abloodless category but by a living organism which contains within itself valuechoices.

The judge must choose and in doing so he makes law& but his choice is toolimited. To understand why adjudication according to rules is posited as an dealto which judges should conform& one must understand the role that litigants andtheir advisors perform in the judicial process !ef. Module Three". Theadjudicative process is one of constant interaction between judges& the legalprofession& litigants and the wider public. t would collapse if the volume ofbusiness were not kept within manageable proportions.

(nowledge that judges adjudicate according to established rules enables thevolume of litigation to be contained:

• it facilitates the channeling of behaviors in order to keep it within theperimeters of authoritative norm;

• it confers on the litigants5 advisers the ability to settle a case out of +ourt;6)37 )lternative 3ispute esolution: econciliation mediation and)rbitration playing on important role8

• it enables litigants and their advisers to participate meaningfully in theadjudicative process;

)ccording to #on 9uller adjudication is a social process of decision which ensuresfor the affected party a particular form of participation& that of presenting proofsand arguments for a decision in hisher favour. The essence of the rule of law isthat men affected by the decision which emerge from the social process shouldhave some formerly guaranteed opportunity to effect those decisions.#awyers must experience vicariously the judges process of reasoning.)djudication enables them to do this.

(usaticia)i%it*

) dispute may be justiciable when there are at least principlesacceptable to lawyers or a high degree of consensus among society asto the proper goals to be pursued or standards against which a judge canreason.n <ational 4ank of $reece v Methiss 6=>?@8 )+ ?A>& ?B? /iscount %imondssaid:

---in the end and in the absence of authority binding this 'ouse&the 0uestion is simply; Chat does justice demand in such a caseD--------if have to base my opinion on any principle& would ventureto say it was the principle of natural justice

#aw& 2ustice and morality



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The Conce+t o! "ustice

• justice is about fair application of legal rules where two parties are beforethe court& it is anxiomatic to judicial proceedings that each must be givena fair hearing.t would be wrong for one of those parties !Chere two individuals or the

state and an individual" to act as a judge of his own cause. 4othprinciples belong to what is known as <atural 2ustice.

• +ourts have evolved their own rules of evidence to ensure that fair trialtakes place i.e. when a jury in a criminal case sits& the judge will inevitablytell its members that it is the judges job to interpreter the law and that it isthe juror5s job to decide upon facts.

• 2ustice is concerned with content F #aw should be fair and reasonable inthemselves per se.

• <atural justice and 2udicial eview #ord 3enning !as he then was" in /%ecretary of %tate for 'ome 3epartment expert %antillo !=>@=" said that;

the rules of natural justice or of fairness& were not cut and dried.They varied infinitely. Chat should also be emphasi,ed is that&strictly speaking& natural justice is not so much a source of law as acollection of procedural rules by which legal rules themselves maybe considered and applied. n that way& we may refer to rulesabout rules. n practice& however& an important set of proceduresbecomes almost a source of law itself& and in this respect it isconvenient to consider natural justice at this stage& side by sidewith the Gtrue5 source of law.

<o man can be a judge in his own cause. The right to be heard and defendoneself ) man cannot be punished twice for the same offence.

Two principal rules of <atural 2ustice• nemojudex in causa sua !nobody may be a judge in his own

cause"

• audi altem partem !hear the other side& each party to a disputemust be given a fair hearing".

2ustice must always be seen to be done.

2ustifiability depends not only on the existence of amenable rulesand standards. ) dispute is not appropriate for adjudication whenit involves a multiplicity of variable and interlocking factors&decisions on each of which presupposes decisions on all theothers.

#aw and morality case study:n =>H= a nine year-old three wheeled eliant +ar was purchased at anauction sale in Man,ese. The car was in dangerous condition& but thesuccessful bidder intended to cannibalise it for spares. )fter the auctiona disappointed bidder offered the purchaser another %hs. =AA&AAA7 forthe vehicle; the purchaser accepted the offer. The second purchaserwho unlike the original seller at auction& the proprietor of a s mall garage&had no special knowledge of cars& drove the eliant +ar away and waskilled a few days later in an accident. 'is passenger& who now brought



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the action against the garage owner& Mr. Mikono& was permanentlymaimed.The trial judge& Mr. Maneno awarded the passenger& %hs. =&=IJ&AAA& butthe 9ull 4ench of the 'igh +ourt reversed the decision. The +ourt of)ppeal to held& too that the seller was not legally obliged to warn the

second purchaser of cars dangerously defective state.Cere moral& ethical or religious considerations entirely separate issueD'ow would you argue the caseD 6'urley v 3yke !=>H>" T BJ?8

#ote:

eligion tries to account for the reality of the world as we see it linked to aspiritual world& that link may be sysmboli,ed by ritual and practices whichgo far beyond the mere wearing of robes and wigs by 4arristers and judges. +ompliance may be more difficult to enforce in religion. Moralityis a close relation but can be a generali,ed behaviour. t is a system forright living that is fre0uently shared by an entire community. t sounds likea legal system& but it is much wider in application& particularly if morality isseen not as much as a community based system of an individual code in

short a person5s conscience.Morality and law clash most fre0uently in the area of sexual mores.+rime& sin and the law can appear to become hopelessly entangled.%ociety re0uires certain moral principles to be observed& even if publicopinion was slowly changing& the breach of those principles& in the meantime was still an offence against society as a whole and not merelyagainst the injured party.There must be a clearer separation of law and private morality& morality inthe sense that it is a matte of private judgement.6%ee *aul 3enham5s& #aw: ) Modern ntruduction& Ith Edn 'odder K%tonghtoro& =>>> pp J-LH; 3r. )vter%ingh& ntroduction to 2urisprudence&epr. Ed. BAA? pp =AI-===8& see also The %exual 1ffences %pecial *rovisions

)ct. The *enal +ode +ap =J offences of Murder.

%tare 3ecisis !%tand by what was 3ecided 4efore"To follow past decisions is a natural and indeed a necessary procedure ineveryday affairs-------precedents have to be established as guides tofuture conduct& and this applies not merely to legal systems but to all ruleand non-rule creating bodies& whether clubs& government departments&schools& business firms or churches.The 3anger is the tendency to follow past precedents may lead tostereotyped procedures and to stultify progress. Much of the workingsuccess of any organi,ation may depend on its ability to applyprecedents creatively. *recedents have always been a lifeblood of legalsystems.t is particularly prominent in the common law& but barely less so in modern+ivil law countries. The special features of the present day common lawsystem of precedents can be summari,ed as follows:

• a particular emphasis on judicial decisions as the core of the legalsystem;

• ) very subordinate role considered to juristic writings& as againstdecisions of courts& in the exposition the laws;

• the treatment of certain judicial decisions as binding on other judges; and

• the form of judicial judgements and the mode of reporting these.Chy *recedentsD Three Models

The <atural #aw Model



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• past decisions naturally generate reasons for deciding cases in thesame way as previous ones.

• E0uality and reliance are the reasons !)lexander"• niversal sense of justice: )ll men have to be properly treated in

like circumstances !#lewellyn". eliance not upsetting

expectations a value that courts should take into account.

The ule ModelThe precedent court has authority not only to decide a casebefore it but also to promulgate a general rule binding on courtssubordinate and e0ual rank. The rules upon which actors justifiablyrely.

The esult ModelThe result is reached in the precedent case rather than any rule

explicitly or implicitly endorsed by the precedent court is whatbinds. )ccording to 3workin the result model reflects #aw asintegrityN while the rule model is +onventionalismN

#ote: 1ur courts follow positivistic thinking about law and its sources& andthis may bear out our sense of judicial practice.

2udges and 3iscretion2udges fill in the gaps left by rules by using their discretion.)ccording to 3workin judicial discretion in the strong sense of theword does not exist.2udges do not act as deputy legislators because:

• t offends the democratic idea that a community shouldbe governed by elected officials answerable to theelectorate.

•

2udges& not being elected& must not substitute their ownwill as against the legistlator.

o <dyanabos case !The judgment of (imaro 2 K +)"o Mbushuu5s caseo 4i 'awa Mohamed5s case

%imple +ases and 'ard +ases!a" %imple +ase is a case in which the facts !material facts" exactly answer to

the re0uirements of a rule of law. The rule of law becomes the majorpremise& the facts the minor premise and the conclusion is reached byusing a %yllogism. +ases decided on the above are said to have beendecided through formalism. 6The 2udgment of (yando K hema 22 in<dyanabo5s +ase8

Hard Cases

) Ghard case5 is one where the rules of law are clear& but the resultthey re0uire is hard or harsh.9or example !a" in the +ase of 'utchison !=>@@:BL":

n =>@H a swimming meet took place at the niversity ofToronto. Most of the races proceeded as planned. 4ut& atthe end of the race& there was a challenge to the winnerof the race.The appropriate group of officials convened. Thedeliberations were lengthy and tense. )fter muchargument and posing over the rules& a decision was



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announced: the Cinner had been dis0ualified and thesecond winner acclaimed as /ictor.The referee offered a brief justification of the +ommittee5sdecision- The rules were clear- The Cinner is the first%wimmer to touch the side of the pool with both hands;

and if this regrettable outcome is to be avoided in thefuture& it will be necessary to change the rules: The Cinning%wimmer had only one arm. 6'ard cases make bad #aw.8

!b" n egina !Ouintavale" / %ecretary of %tate of 'ealth 6BAAB8B )ll E JB?nder regulations made pursuant to the 'ealth 9ertili,ationand Embrology)ct& =>>A the government !4ritain" licensed research usingembryos created in /itro.%ince the passing of the )ct a new method of creatingsuch embryos was developed& embryos& which could onlybe included in the statutory definition of embryos as the

+ourt acknowledged& by straining the statutory language.The prospects of leaving the creation of embryos andresearch of such embryos completely unregulated was soappealing to the court that they regarded the purposiveinterpretation of statutes to be legitimate even though itwould involve a gymnastic interpretation effort. %ee)ppendix

2, In+uts in the (udicia% Decision Ma-in$ .rocess: 4y inputs we refer to the concepts or terms used in understanding how+ase #aw Techni0ue works. %uch concepts as +ommon #aw& e0uity&facts& material facts& issues& holding& ratio delidendi& obiter dicta or dictum&

stare decisis distinguishing of cases& precedents& hierarchy of courts&analogy& induction& deduction& judicial hunch& positivism& bold spirits&timorous souls& contract& fraud& fiduciary relationship& owner-inviteerelationship& duty of care& negligence !proximity" etc.

4efore we define the above concepts in relation to the 2udicial 3ecision-Making *rocess& it is important to note that the above will be used in +ase#aw techni0ue. The anatomy of a given case is as follows:

• The <ame of the +ase and its citation i.e 'eaven v *ender 6=@@L8O43?AL

• +oram: <ame!s" of the judge!s" who decided the case

•

+ase history !whether from *rimary +ourt to +ourt of )ppeal andthe like type of information"

• Material 9acts !relevant facts related to law-and the relationship ofthe litigants- the complaint or accusation before the +ourt"

• ssue!s" Ouestion!s" which the court is called upon to decidenormally appearing in a statement!s" whether------------.Ouestions must relate to accusations !material facts" presented bylitigants.



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• 'olding !refer to in whose favour the court decides F whether theplaintiff or the defendant& the accused or the prosecution. t isfound at the end of the judgement------we dismiss the appeal------.

•

atio 3ecidendi- reasons for the decision or reaching the aboveholding-statement of law relating to facts and issues raised in thecase

• 1biter dicta !dictum" -------statements of law by the way or whichhave no bearing to legally stated facts issues and holding----------------if-------------then------------------

• 1rder of the court !in relation to the claim i.e. property or person ifin custory etc".

9or more details read Mukoyogo #egal Method page @H->I; see also +.%. 4inamungu KM.+. Mukoyogo& %tudying #aw %kills& M,umbe 4ook *roject& BAA?pp =AH-=B@

3octrine of *recedent !%ee also Module /"The doctrine of precedent operates within the re0uirements of the doctrine of %tare3ecisis. The doctrine of *recedent is the practical application of %tare decisis.

%tare decisis re0uires that courts or judges are bound by their previous decisions in caseswhere material facts are the same. t is a doctrine which looks for certainty& uniformityascertainability in the law& while allowing some flexibility. 9lexibility is reali,ed through thedoctrine of presedent which not only operates within the hierarchical manner of courts!see Module /" but also gives ability to courts to develop new rules or discover them inthe course of making decisions in situations which may appear novel or different fromthose previously considered.

9or example in case !a" The court may find that facts )4+ !reckless driving& defectivebrakes& and a pedestrian who was drunk" relevant in apportioning the extent of liability ina rundown case. t may find that the driver was liable to the extent of J?P and thepedestrian !injured party" liable for L?P negligence. The amount of damages payableby the driver !or whoever is liable to pay" will take into consideration the extent of liabilityinvolved on his part. This might be a precedent case in future.

n +ase !b" the +ourt may find that facts )&4 and + !reckless driver& defective brakes andslippery road" present but further find that + !pedestrian was driving on the right side ofthe road and not in a drunken state of mind". The latter fact situation may lead a courtto say that the facts in case !a" are distinguishable from those in case !b" and thereforefurther that case !a" is not entirely precedent or authoritative case in deciding case !b"or if the court chose to use the authority of case !a" then it must further say that the driverof the lorry will have to bear an entire blame in the accident as opposed to whathappened in case !a".

3istinguishing- Chat is distinguishing in +ase #aw Techni0ueD)ccording to $lanville Cilliams #earning the #aw =>@B H? F HH" distinguishing is theprocess of cutting down the express ration decidendi of a case. t can take the form ofrestrictive distinguishingN or non-restrictive distinguishingN. <on-restrictive distinguishingoccurs where a court accepts the express ratio decidendi of the earlier case and doesnot seek to curtail it& but finds that the case before it does not fall within the ratiodecidendi because of some material differences of fact !#angridge / #evy and Cinter4ottom and Cright".



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estrictive 3istinuishing cuts down the express ratio decidendi of the earlier case bytreating as material facts to the earlier decision some fact& present in the earlier case&which the earlier +ourt regarded immaterial& or by introducing a 0ualification!exception" into the rule stated by the earlier court.

This manner of distinguishing is said to play a very important role in legal argument.

+ommon #aw: )ccording to $lanville Cilliams& #earning the #aw& ==th Edn. #ondon&%tevens K sons =>@B +h.B +ommon #aw originally meant the law of England that wasnot local& that is the law that was common to the whole of England. The phrase mayalso signify the law that is not a result of *arliament 6legislature8 but that which wascreated by the customs of the people and the decisions of the courts !judges". t canalso mean that law which is not e0uity !the law developed by the +ourts of +hancery".+ommon law may also mean statutory modifications of the common law. #astly it maymean that law which is not foreign& in other words& the law of England when comparedto the law of )merica& +anada or any other +ountry.

E0uity: Chat is meant by the term e0uityD

)ccording to $laville Cilliams !bid" the term E0uity in ordinary language mean% natural justice& this is so because originally the system was inspired by ideas of natural justice andtherefore the origin of the name. E0uity is law in the sense that it is part of the law ofEngland but not in the sense that +ommon #aw carries.9actsMaterial 9acts of a case: Chat is the difference between facts !as they existin life" and material facts !in the legal sense"D The term facts refers to normal facts of life.9or example in a normal happening like a car or vehicle accident which may causeinjury to another person& the following may be categori,ed as facts: the driver of the caror lorry may be described to have been tall& with a long beared& dressed in a blue shirt&brown jacket and white trousers. The same driver may be described to have beendriving fast a vehicle which had defective brakes& at the time of driving it was rainingand the road was slippery. The injured person may bear the description that he was

riding on a bicycle& on the right side of the road& dressed in a Chite (an,u and was alsodrunk.

)ll what have stated may constitute facts but for the purposes of the law of negligencethe following facts may be categori,ed as legally relevant or material facts: the fact thatthe driver of the car or lorry was driving fast& that the car or lorry or vehicle had defectivebrakes& and on the part of the injured person& the fact that he was riding on a bicyclewhile in a drunken state.t will be noted that the manner material facts are sorted out of a mass of facts toconstitute material facts has given rise so some controversy which will be dealt with later.6ead: 3r )vtar %ingh& ntroduction to 2urisprudence epr. Edn BAA? pp @@ F >=8

ssue!s" Chat is an issue or issueD The concept issue!s" refers to the point!s" in dispute andthe 0uestion or 0uestions which the court is called upon to answer in the course ofhearing the matter and making a decision in the course of the judgement. The answerto the 0uestion!s" by the court !judge" leads towards the determination of the rule of thecase or ration decidendi and other statements of the law by the way !obiter dicta ordictum" which may be of use to the future courts.

'olding: Chat is a holding in a given caseD ) holding in a given case refers to theactual decision of the court i.e. in whose favour the matter is actually decided. t maybe in favour of the defendant or the plaintiff. t is the holding which then helps thereader of the case or future court looking at a precedent case in point& to determine therule!s" of the case ratio decidendi of rationes decidendi. t is always found at the end ofa judgement. t takes the expression of ule discharged&N 1rder accordinglyN& dismiss



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the application with costsN& the appeal allowedN& the appeal must succeedN& )ppealdismissedN and the like& 1nce one is able to find such a conclusion or holding& it shouldbe easy to extract the rule of the case !atio decidendi".

atio 3ecidendi: Chat is atio 3ecidendiD

)ccording to authorities on the 0uestion:English courts make a habit of following their previous decisions within more or lessdefined limits. This is called the doctrine of precedent. That part of the case that is saidto possess authority is the ration decidendi& that is to say& the rule upon which thedecision is founded. 9inding the ratio decidendi of a case is an important part of thetraining of a lawyer. There is a relationship between material facts& issues& holding andthe ration decidendi. 3etermining the ratio decidendi of a case is not a mechanicalprocess but an art that one gradually ac0uires through study and practice 6$lanvilleCilliams& #earning the #aw& #ondon %teven and sons =>>B ch.J8

)s you might have noted in the above passage the concept of ratio decidendi refers tothat part of the case that is said to possess authority. t constitutes the reason for thedecision as well as the rule of the case.

t must be emphasi,ed that for you to appreciate how to extract the ratio decidendi ofthe case& you will have to constantly keep reading the whole case yourself and not todepend on the notes prepared either by your teacher or fellow student or the head noteof a case !if that case has been reported in a #aw eport".

1biter 3icta: 1biter dicta or dictum is a mere saying by the way& a chance remark inthe course of the judgement or decision by the court !judge!s" which is not binding uponfuture courts. %uch a statement& chance remark or proposition may be respected by afuture court or judge depending on the reputation of the judge or the eminence of thecourt and the circumstances under which it was announced.

1biter dicta is a rule of law stated merely by the way& of analogy or illustration or

suggestion of a rule upon which the decision is not finally rested. t is not regarded asbinding because it may have been made without full consideration of the cases in point&it may have been made without full consideration of all the conse0uences that mayfollow from it.t is a rule of law based on hypothetical facts. ) judge in the course judgement may say: decide for the defendant& but if the facts had been properly pleaded& then should have decided in favour of the plaintiffN.1ther examples of 1biter 3icta can be found in the following cases:

• *er 4rett M. in 'eaven / *ender 6=@@L8 ==O43?A@• *er #ord Esher !9ormer 4rett& M" in #elievre / $ould 6=@>L8 =O4I>=• (iriri +otton / 3ewani& 6=>JA8 E) =@@• .9. Mboya / Mewa %ingh Mangaat 6=>J>8 '+3 no =• #ord )tkin in 3onoghne / %tevenson 6=>LB8 )+?JB at ?@A where he attempted to

lay down a general test for determining when a notional duty of care arises inthe tort of negligence. 'is dictum has become known as the neighbour test5and was expressed in these words:

Qou must take reasonable care to avoid acts or omissions which you canreasonably foresee would be likely to injure your neighbour. Cho& then& in law is)dd my neighbourD The answer seems to be emphasis persons who are soclosely and directly affected by my act that ought reasonably to have them incontemplation as being so affected when am directing my mind to acts oromissions which are called in 0uestion.

This dictum& though clearly obiter& has been 0uoted in subse0uent cases 'ome 1ffices3orset Qatch +o #td 6=>HA8 )+ =AAI !'#" #ord eid.



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6see T. ngman& The English #egal *rocess @th Edn. 4lackstone *ublishers BAAA p LBH; 3r.)vter %ing& ntroduction to 2urisprudence& epr.Edn.BAA? pp=H>-=@A8 'ierarchy of +ourts!see Module /"

• 2ulius shengoma / )$& Misc.

+ivil )ppeal <o. B of BAA= !'+" (imaro 2 !dissenting 2udgement" is 1biter 3icta.)nalogy !see also Module /" Chat is meant by analogyD )ccording to *rofessorEdward #evi in his book ntroduction to #egal easoning& The niversity of +hicago *ress&+hicago#ondon =>I@ means reasoning by example. The same argument appears in9arrar& 2; ntroduction to #egal Method. #ondon =>HH )ppendix L and in Twining& C KMiers& 3: 'ow To 3o Things Cith ules #ondon =>>B !L rd Edn" 66BJA-JL K LAI F LA>.8easoning by analogy !sometimes reasoning by example" is typically reasoning fromparticular to particular. )ccording to 'ospers: )n analogy is simply a comparison& andan argument from analogy is an argument from comparison. )n argument by analogybegins with a comparison between two things R and Q. t then proceeds to argue thatthose two things are alike in certain respects )& 4& + and concludes that therefore theyare also alike in another respect& 3& in which they have not been observed to resembleone anotherS..

t will be apparent at once that an argument by analogy is never conclusive.) classical statement made by *rofessor Edward #evi:

The basic pattern of legal reasoning is reasoning by example. t isreasoning from case to case. t is a three-step process described by thedoctrine of precedent in which a proposition descriptive of the first case ismade applicable to the second caseSThe finding of similarly ordifference is the key step in the legal processN.

Twining K Miers =>>B ppBJA-BJ= suggest that such a description is an over simplification ofthe part played by reasoning by analogy or example in legal reasoning. 4ut theyencourage readers to read *rofessor #evi5s proposition because it is important ininterpretation especially for its explicit account of the manner in which common lawconcepts and doctrines 0uietly adapt to new situations and changing needs in the

process of application in that the rules change as the rules are applied.

nductive easoning !see also Module /" Chat is meant by nductive reasoningD)ccording to Twining K Mers bid B?>-BJA:

Typically& inductive reasoning is reasoning from particular to general& but the termmay be used in a broader sense to encompass all kinds of reasoning in which thepremises& support but do not compel& the conclusion. The following are examplesof inductive reasoning:n case ) elements a& b& c& d and e were present and the plaintiff succeeds. ncase + elements a& b& c& d& and e were present and the plaintiff succeeds.+onclusion: in all cases in which element a& b& c& d& and e are present the plaintiffshould succeed.

%uch type of reasoning will be noted when reading the case of 'eaven / *enda& 6=@@L8llO43 ?AL especially the decision of 4rett& M.)ccording to Twining K Miers inductive reasoning is concerned with probabilities& and innormative contexts it is more accurate to talk of the relative streangth or cogency of!inconclusive" reasons !lbid: BJA". t is possible to develop new rules through inductivereasoning.

ead also rvin + utter ) 2urisprudence of #awyers5 1perationN in /ol.=L 2ournal of#egal Education !=>JA-J=" pp LA=-LAJ !a diagrammatic representation will be given afterdiscussing 3eductive easoning" 6Extract in the #ibrary- )s the #ibrarian to access it.8



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3eductive easoning !see Module /" Chat is deductive easoningD )gain accordingto Twining K Miers lbid deductive reasoning moves from general to particular. t involvesthe use of %yllogisms;

=. Major *remise Chosoever being married and who shall go through a formand ceremony of marriage recogni,ed by law& ought to be convicted of the

offence of bigamy.Minor *remise )llen being married& went through a form and ceremony ofmarriage recogni,ed by law.+onclusion: )llen ought to be convicted of the offence of bigamy.

B. n 3eduction the conclusion must follow from the premises as a matter oflogical necessity; if you accept the premises you must accept the conclusion&as it is logically compelling or conclusive.3eduction plays an important part in interpretation of statutes.t must be remembered that deductive reasoning is a closed system ofreasoning. t operates where you have already known rules either those laidin case law or in statutes and the facts of the case are said to subsume intothe rule of law out of which a conclusion is reached.

)lso ead: 4inamungu K Mukoyogo& %tudying #aw %kills& M,umbe 4ook

*roject BAA? pp ==>- =B@

The #adder of )bstraction

Cealth

)sset

9arm )ssets: 3eductivenductive

#ivestock: pigs& chickens& goat etc.

+1CB +haracteristic common to += +B +L

4essie- +1C=

The +ow - perception

The +ow known to science



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+f. rvin + utter& ) 2urisprudence of #awyers5 1perationsN /ol F=L 2ournal of #egalEducation !=>JA F J=" pp LA= F LAJ

2udicial 'unch or 2udges *redisposition.The terms judicial hunch or judges predisposition refer to the motivations behind a judicial

decision. The attitude of the judges& their thought traditions& judge5s preoccupations&intuitions or the basis of the judges5 values which prevail in the community. The judicialhunch can be determined by examining the language which is employed by a judge intrying to justify a decision reached or to be reached.9or example *arke& 4 in #angridge /. #evy made the following remarks:

Ce should pause before we made a precedent by our decision which would beauthority for an action against the vendors& even of such instruments and articlesas are dangerous in themselves& at the suit of any person whomsoever into whosehands they might happen to pass& and who should be injured thereby.

4owen #2 in #ehievre / $ould categorically stated:The 0uestion of liability for negligence cannot arise at all until it is established thatthe man who has been negligent owed some duty of care to the person who

seeks to make him liable for negligence. Chat duty is there when there is norelationship between the parties by contractD ) man is entitled to be asnegligent as he pleases toward the whole Corld if he owes no duty to them.

#ord )tkin in 3onoghue / %tevenson 6=>LB8 )+?JB at ?>>My #ords& if your #ordships accepts the view that this pleading discloses a relevantcause of action you will be affirming the proposition that by %cots and English lawalike a manufacturer of products who sells in such a form as to show that heintends them to reach the ultimate consumer in the form in which they left himwith no reasonable possibility of intermediate examination& and with theknowledge that in the absence of reasonable care in the preparation or puttingup of the products will result into an injury to the consumer to take that

reasonable care.t is a proposition which venture to say no one in %cotland or England who is nota lawyer would for a moment doubt. t will be of an advantage to make it clearthat the law in this matter& as in almost other& is in accordance with soundcommon sense.)t present content myself with pointing out that in English law there must be&and is& some general conception of relations giving rise to a duty of care& orwhich the particular cases found in the books are but instances. The liability fornegligence& whether you style it as such or treat it as in other systems as species ofculpaN& is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must payS..the rule that you love your neighbourbecomes& in law you must not injure your neighbour: and the lawyers5 0uestion&who is my neighbourD eceives a restricted reply. Qou must take reasonablecare to avoid acts or omissions& which you can reasonably foresee& would belikely to injure your neighbour.

#ord Cilberforce having referred to #ord )tkin5s neighbour principle in M5)lister !or3onoghue / %tevenson 6=>LB8 )+?JB continued:

This is saying that foreseability must be accompanied and limited by the law5s judgement as to persons who ought& according to its standards of value or justiceto have been in contemplation. 9oreseability& which involves a hypotheticalperson& looking with his sight at an event which has occurred& is a formularadopted by English law& not merely for defining& but also for limiting the person towhom the duty may be owed& and the conse0uences for which an actor may beheld responsible.



13

Sforesee ability does not of itself& and automatically& lead to duty of careS4y using the judicial hunch judges are able to foresee the results of the case before themand the meaning to be desired from a precedent case or statute. The judges are ableto see the results in respect of the litigants and the decision must be made inaccordance with the class of cases and has to be consistent with the whole system.

2udges must be seen as sensitive indicators of social change by either registering suchchanges in their decisions or by moulding an existing rule to suit a new situation. Chile onthe one hand a judge is moulded by the values he shares with other members of thecommunity& on the other hand& he acts as a custodian of those values. The judges andthe court system as a whole must endeavour to meet the expectations of the communityin general as well as in a specific manner. The judgement must reflect the sense of justice as understood by a broad base of the community.2udicial justification& therefore& becomes the criteria for a judges5 method of a decision.

ead the following cases to better understand the concepts of judicial hunch orpredisposition.

• 4i 'awa Mohamed / ali %efu& 6=>@L8 T# 6<yalali +2 +ash then was8• 9rancis <gaire / <+ 6=>HB8 '+3n =LI& 6=>HL8 E)?J 4iron 2.•

)$ / #esnoi <deinaialias 2oseph %aleyo #ai,er K Two others 6=>@A8 T# J=>.• #aiton (igara / Musa 4ariti 6=>H?8 #T no.IA

#egal *ositivism: Chat is meant by the term #egal *ositivismD #egal *ositivism !asopposed to <atural law" is the view that regards law as being that which is decreed&irrespective of its content& in particular irrespective of its moral goodness or badness. Thisposition was laid down by the fathers of *ositivism in 4ritain namely 2eremy 4entham!=HI@-=@LB" and 2ohn )ustin !=H>A- =@?>". 9or the purposes of our study this stand pointwill be exemplified by such statements made by the courts or judges:

• Ce think this action may be supported without laying down a principle whichwould lead to that indefinite extent of liabilitySSSSwe should pause before wemade a precedent by our decision which would be an authority from auction

from vendors& even if such instruments and articles are dangerous in themselvesat the suit of a person into whose hands they might happen to pass and whoshould be injured thereby.*er *arke 4 in #angridge / #evy 6=@LH8 Bw?=>

• am clearly of the opinion that the defendant is entitled to our judgement. Ceought not to permit a doubt to rest on this subject& for our doing so& might be themeans of letting in upon an infinity of actions.*er #ord )binger +.4. in Cinterbottom / Cright =A M K C =A>

• ) false statement careless by made without a reasonable ground for believing itto be true& may be evidence of fraud& but does not necessarily amount to fraud.*er %tirling& 2; in 3erry K 1thers / *eek 6=@@>8 =I )pp +ases LLH

Chat the judges were stressing was the fact that in English law there were ascertainablerules of liability like contract. nless the complaining party was part to it or privy to it& noliability in law could lie for damages agains the alleged wrongdoer.

• #ord Esher& M !former 4rettM" in #elierre / $ould !=@>L" stated inter alia#iability for negligence cannot arise at all until it is established that the man whohas been negligent owes some duty to the person who seeks to make him liablefor negligence. Chat duty is there where there is no relation between the partiesby contractD ) man is entitled to be as negligent as he pleases towards thewhole world if he owes tham no duty of care.



14

4owen& #. 2. in the same case stated. Ce have not to consider what the lawmight be& but what it is.

L. The atio in Theory and *ractice: 3ebate on 'ow to 3etermine The atio3ecidendi of the case

To date there is no agreement on how to determine the ratio decidendi of thecase. To show the variation of opinion we shall examine the views of eminentlawyersjurists: (arl #lewellyn !)merican"& *rofessor $oodhart !English"& *rof. 2ulius%tone !)ustralian"& *rof. C Twining K 3avid Miers and *rof. C Twining !bothEnglishmen".

!a" (arl #lewellyn in The 4rumble 4ush& 1ceana Edn. =>?=pp I?-I>& JJ-J> arguedthat the ratio decidendi of the case is the rule the +ourt tells you is the rule ofthe case. t is based on the ground upon which the court has reached itsdecision. t can be narrow or broad.Chat you must look for whet reading the case in order to extract its ratiodecidendi is to read the actual judgement in the light of the holding on thepoint of law and fact or both !which was before the court". The basis of the

jdgement are the material facts& issues !the actual dispute to be resolved"based on or limited by the form or procedure.Chat are the factsD Those facts& which have a legal bearing& and thosewhich must be categori,ed !i.e. a motor car or motor vehicle" to represent awider abstract category of facts. <o case exists in isolation. t is important foryou to acknowledge the importance of other cases.This is important because the function of the case system is that no case canever have a meaning by itself. ts meaning is obtained from the backgroundof other cases. The aspect in which they are similar leads to what is legallyrelevant and to operate alike or to operate at all upon the court. The state ofthe facts& it must be noted& are rarely 0uite alike.Thus the doctrine of precedent is 2anus-faced.

!b" *rofessor $oodhart in 3etermining the atio 3ecidendi of a +aseN in /ol. IAQale #aw 2ournal 6=>BA8 =J=-=@L had the following to say:

The judge reaches a conclusion upon the facts as he sees them. 1n theface of these facxts he bases his decision or judgement. %o when you areanaly,ing a case you must state the material facts as seen by the judgeand his conclusion based on them. t is by his choice of the material factsthat the judge creates law; t is essential to know what the judge has saidabout his choice of facts.'e proposed the following steps in determining the principle of a care ofratio decidendi:9irst& ascertain the material facts on which the judge based his conclusion.%econd& if there is no opinion on the statement of facts& then assume thatall the facts given in the report !judgement" are material except thosewhich relate to place& person& kind and amount !unless they have beenstated by the judge to be material facts".Third& ) rule of law is the same for all persons& at all times& and at all placeswithin the jurisdiction of the +ourt.9ourth& note the summary of +ounsels5 speech in a reported case!judgement of an un reported case" to as certain other essential facts.'e advised on how to distinguish material facts from immaterial ones:

o There is a presumption that facts of person& time& place& kind and amountare immaterial.

o )ll facts& which the court specifically states to be immaterial.



15

o )ll facts which the court treated as immaterial must be considered

immaterial.o )ll facts specifically stated or treated material.o f no distinction is made between material and immaterial facts& then all

the facts set out in his opinion must be treated as material facts except

those which on the face value are immaterial.

n a case where there is more than one opinion i.e. 'eaven / *ender or 3onoghue /%tevenson& the principle of the case is limited to a sum total of all facts held to bematerial by the various judges.9or example in 'eaven / *ender 4rett M. treated as material facts:

The defendant supplied rope for the use of the plaintiff. The defendant musthave known if he thought about it& that the stage would be used immediately bysomeone such person as the plaintiff.

4ut according to +otton and 4owen #22 the material fact of the case were that:The defendant was the owner of the dock and must be taken to have invited theplaintiff into his premises. The plaintiff was injured due to the dangerous state on

the premises.nder these circumstances it becomes difficult to generali,e what material facts are.Ce can safely say what facts were considered material facts by the minority judge andwhat the majority judges considered to be the material facts.The conclusion reached by the judges on the basis of the material facts constitutes theprinciple of the case.

!c" *rof. 2ulius %tone The atio of the atio 3ecidendiN in /ol. BB Mod. #.. !=>?>"?>H at JAL F JA@ maintained that if the ratio of the case is based on the factsrelating to the holding& then in case of 3onoghue %tevenson there are ninefacts which can be found and they give rise to many rival ratio decidendiwhich correspond to the number of distinguishable facts.

This is so because each of these Gfacts5 are capable of various levels ofgenerality all embracing the factsN in 0uestion and a precedent and eachyields different results indifferent fact situations. n the case of 3onoghue /%tevenson which was a decision of the 'ouse of #ords in =>LB the courtimposed liability on the manufacturer of an opa0ue bottle of ginger beerwhich was found to contain dead snail& for injury !shock and gason enteritis"to the plaintiff& a %cotch !Coman" widow who drank from the bottle given toher by one who purchased it from a retailer who in turn purchased it from themanufacturer. 9rom the proceeding material facts *rof. %tone extracted ninedifferent levels of stating material facts:o The facts as to the agent of harm !dead snails& or any other noxious

physical foreign body or foreign element physical or not or any noxiouselement".

o

9acts as to the /ehicle of harm !an opa0ue bottle of ginger beer or anyopa0ue bottle of beverage or any bottle of beverage or any container ofany commodities for human consumption& or any container of anychattels for human use" or any chattels whatsoever or anything includingland or building.

o 9acts as to the defendant5s identity !a manufacturer of goods nationallydistributed& through retailers& any manufacturer& any person working onthe object for reward& any person working on the object& or anybodydealing with the object".



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o 9acts as to the potential danger from a vehicle of harm& !object likely to

become dangerous by negligence or whether or not so";o 9acts as to the injury of the plaintiff !personal physical injury or any injury";

o 9act as the plaintiff5s identity !) %cotch widow& a %cotch woman& or a

woman or any adult or any human being or any legal person".

o 9act to the plaintiff5s relation to the vehicle of harm !3onee" purchaser&from a retailer who bought it from the defendant or the purchaser fromsuch a retailer or a purchaser from anyone& or any one& or any personrelated to such purchaser& or other person& or any person into whosehands the object rightly comes& or any person into whose hands it comesat all.

o 9act as to the discoverability of agent of harm !the noxious element beingnot discoverable by inspection of any intermediate party; or not sodiscoverable by any such party who had the duty to inspect& or notdiscoverable by any party who could reasonably be expected by the

court or jury to inspect.

o 9act as to the time of litigation !the facts complained of were litigated in=>LB or any time before =>LB or after =>LB or any time !cf +ocacola(wan,a5s +ase in Mwan,a"

#ote: 9rom each level of standing or abstraction of the facts thereemerges within each different levels of standing or abstraction ofstating the same material facts.

!d" Cilliam Twining K 3avid Miers in 'ow To 3o Things Cith ules Lrd Edn.Ceidenfeld K Micolson #ondon =>>=pp L== F LBA say that the term ratio

decidendi comes into 0uestion when legal advisers& advocates& judges andexperts interprete cases for their particular purposesN. Ouestions which theyask themselves include the following:

Gfor what rule!s" is the case an authorityD or Gfor what proposition!s" of lawcan this case be made to standD

Cilliam Twining K 3avid Miers rightly point out that within the traditional legaltheory the rule or proposition of law asserted by the interpreter is called theratio decidendi. 4ut within the traditional legal theory !as already indicated"there is no agreement !consensus" about what is entailed when the term isused. They 0uote an extract from *rof <eil Mac +ormic Chy +ases 'aveationes and what These )reN as follows:-

t is a disputed 0uestion whether there is any such a thing as a or the ratioin a given case; it is disputed whether or not there is a ratio to be foundauthoritatively within a given opinion& or whether the so-called ratio issimply some proposition of law which a later court or courts find itexpedient to ascribe to an earlier decision as the ground of that decisionwhich may then be used to help to justify some later decision perhapseven under the guise of its being that which necessitates the granting ofthe given later decision. )n extreme version of this view wouldpresumably be that the ratio of a case is whether it is any timeauthoritatively said to be authority for& and thus no one single propositionover time.

Cilliam Twining K 3avid Miers identify five usages of the Term ratio decidendi asfound in the #iterature:



17

o The rule!s" of law explicitly stated by the judges as the basis for the

decision& that is& the explicitly answer to 0uestion!s" of law in the case;

o The reason!s" explicitly given by the judge for the decision& that is& theexplicit justification for the answer!s" to the 0uestion!s" of law in the case;

o The reason!s" implicitly given by the judge for the decision& that is& theimplicit justification for the answer!s" given to the 0uestion!s" in the case;and;

o The rule!s" of law for which a case is made to stand or is cited as authorityby a subse0uent interpreter& that is& the imputed answer!s" to 0uestion!s"of law in that case 6ppLL=-LLB8

<o mention is made in relation to material facts of the case as we havepreviously seen.

n their view finding a ratio decidendi is not a formalistic exercise but it involvesan element of choice from a range of possibilities. There follows what determines

the choice of ratio decidendi and how wide a range of possibilities should be:o n reasoning on a point of law one is not confronted with a single isolated

precedent. There is a collection of potentially relevant precedents. Eachcase must be read in the context of all other potentially relevant cases.There is no single way of determining a ratio decidendi.

o t is false to assume that in determining the ratio decidendi we shoulddepend on the stand point of the judge& because it is not only a judgewho interpretes rules. +onse0uently& advocates and other officials dointerprete cases in the process of trying to persuade courts to reachdecisions in their favour or infavour of their clients. !see: $rant / )ustralia(nitting Mills argument pursued by +ounsel for the defendant; 'edley4yrne / 'eller the argument pursued by the counsel for the defendant or

in <gaire / <ational nsurance +orporation the argument pursued by the+ounsel for the plaintiff".

1n the other hand& one should bear in mind the nature of the)dversary %ystem in which each side in a cause of action will presson an interpretation for a relevant precedent which is consistentwith the desired results. $ood advocacy consists in directingattention of the court to the most plausible interpretation.

!e" Cilliam Twining in an article titled 3emystifying *recedent in English #awN saysthat the term ratio decidendi is no longer of any analytical value in thediscourse about the interpretation of precedents. n his view a distinctionmust be made between explicit formulation of a proposition of a judicialopinions and propositions which are implicit in the reasoning of such opinionsand propositions of law imputed to precedents by subse0uent interpreters.'e also calls for a distinction between answers to 0uestions of law !lawpropositions" and justifications for such answers. n his view neither *arliamentnorthe courts have attempted to lay down an authoritative definition of theterm ratio decidendi of a past case.

4oth institutions have resisted formali,ation of the doctrine of precedents in keyaspects. This allows a certain amount of leeway in the interpretation ofprecedents.

Explicit formulations of propositions of law and propositions implicit in thereasoning of prior cases are regularly invoked by lawyers and judges in latercases as part of their arguments. n respect of binding precedents such



18

propositions are often presented as if they are binding part of the case& but suchassertions are often upon challenge. +ommon #aw rules are not fixed rules in averbal form. )nd there is no theoretical consensus about the correct way ofextracting authoritative propositions of law from judicial decisions.The disagreement is based on whether there can be precision in determining the

scope of a proposition. 9urther& a great majority of reported precedents to daydeal with interpretation of statutes or other rules fixed in verbal form. Thisoperates as a constraint to subse0uent interpretation because the statutory orother texts provide a more clearly identifiable encourageN for interpretation andargumentation that do not exist in judicial opinions. The precise nature andextent of such a constraint is much debated.The basic point of departure between Cilliam Twining K 3avid Miers and earlier jurists on the debate on ratio decidendi and how to determine the same lie inthe fact that a great majority of reported cases or precedents deal withinterpretation of statutes and other rules fixed in /erbal form. This operates as aconstraint to subse0uent interpretation because the statutory and other textsprovide a more clearly identifiable encourage for interpretation andargumentation than do the text of judicial opinionN.

I. !=" The +ommon #aw +ase Techni0ue: 3evelopment of the #aw of <egligence

The decisions of the courts on economic and social 0uestions depend on theireconomic and social philosophy- Theodore oosevelt.

o %tare decisis K *recedento Material 9acts of a +aseo ssue!s"o 'olding !in whose favour a matter was decided"o atio 3ecidendi !future value or authority"o 1biter 3icta !3icta-future value"o 3issenting 1pinion !/alue"

!B"

Methods of easoning• )nalogy !Example or from case to case"• 3eduction !%yllogism"• nduction !levels of )bstraction"• 2udicial 'unch

-%ocialisation& political view& economic position& religions opinion etc.• *ositivism !formal style"• )ppeal to 'igher /alues than law itself !the $rand %tyle"• Types of judges

-Timorous souls-4old spirits

!L" 9leming F the #aw of Torts in The =>th +•

expansion of legal protection to persons injured on the country roads andcity streets& along rail roads and factories !they were third parties"

• +ourts tries to use the so-called anti0uated rules in order to break througha narrow compass- the law of negligence in embryonic stage- gestating.

• The *andoras5 4ox- called for a careful handling F timorous souls trying toavoid floodgate of litigation.

*andora5s 4ox- an account of $reek Mythology:) young lady married to a $reek $od& lived in a house in which a room was keptunder lock and key. %he was warned never to open it lest evil would be fall theworld.



19

1ne day& when other occupants of the house were away& she became overcurious and opened the room only to let loose all evil known to the Corld to day.

n view of the above mythology& timorous soul judges& tried to rationalise the thencompeting demands:

•

the expansion of ndustry• the risks and dangers to life associated to such development& but• the law had to be extended to strangers !to what extent was that doneD"

Tort!s": +ivil Crongs

+onceptual development of the law of negligence !tort!s" is examined as a process!not as something& which just developed at once".) process of a whole compendium of argumentation& methodologicals in a historicalcontext& which produced legal rules& principles and standards.

• The #aw of negligence has developed through such concepts as: contract&fraud& dangerous instruments& doctor-patient relationship& fiduciary relationship&

occupier-invitee relationship !physical or legal"& 3uty of +are etc.• The development of the law of negligence was not straight but a circular motion

)ccording to *rofessor Edward #evi:%tage =: the creation of a legal concept built& as cases are compared.%tage B: The concept became more or less fixed through reasoning by

example as items were classified inside and outside the concept!) process of abstraction F as presented under 3eductive andnductive easoning earlier on".

%tage L: the breakdown of the concept when reasoning by examplemoves far ahead that reference to a particular word became nolonger necessary then the development of a single concept

known as negligence !word or deed".<egligence F meaning F carelessness F which became a factor establishing

liability as the law became more and more sophisticated. Theprocess consisted in analogy& induction and deduction F shiftingcategori,ations& rules& principles& standards and policy.

*olicy ssues seen through such statements by #aw #ords or judges like:• proper pigeon-holes• there is no duty• the damage is too remote• to open a floodgate of litigation• a man can be as negligent as lie pleases to the whole world if he owes

them no duty of care.

The +ommon #aw +ase Techni0ue: 3evelopment of the #aw of <egligence =@LH-BAA=The *eriod 4etween =@LL and =@LJ only parties to the contract could sue. The dominantnotion was contract. 9rom =@LH we notice a move away from parties to a contract tothe notion of knowledge of the user of an article which causes injurydamage:

1,Lan$rid$e / Le0* 134 2M 5 W 617The material facts:

The father of the plaintiff went to the defendant who was the seller of guns to buyfor the use of himself and his sons. Chile at the shop of the defendant the buyermade a representation to the seller that the gun was for himself and his sons andin inducing the sale the defendant warranted that the gun was safe and secure



20

while it was not. n the process of the sun !the plaintiff" using the gun sopurchased& he sustained injuries and brought an action against the seller.

The ssue was:Chether the seller was liableD

)rgument by counsel for the plaintiff:Cherever a duty is imposed upon a person by contract or otherwise& and theduty is violated& anyone who is injured by the violation of it may have a remedyagainst the wrongdoer.

)rgument by +ounsel for the defendant:There was no privity of contract and therefore the plaintiff was not entitled in thelaw to recover damages. %ince the father was the contracting party with thedefendant he can alone sue upon the contract for the breach of it.

'olding:n favour of the plaintiff !rule discharged".

ato 3ecidendi:Chere the defendant knowingly sold a gun to the father for the use of himselfand his sons and had knowingly made a false representation !warrant" that it issafe and secure while it was not& and on the basis of such warrant the plaintiffused it to his detriment the defendant is liable.

!=" ) +ase decided on the basis of implied contract& warrant and knowledge of theuser where the article which causes injury is not dangerous in itself.

!B" n the course of delivering the judgement a number of things were considered:• The +ourt was not ready to lay down a broad rule of liability.• The +ourt considered the fact that the gun was not an instrument which is

dangerous in itself unless loaded.

f the instrument in 0uestion& which is not dangerous in itself& but re0uires an act to bedone that is& to be loaded& in order to make it so& had been simply delivered by thedefendant& without any contract or representation on his part& to the plaintiff& no actionwould have been maintainable for any subse0uent damage which the plaintiff mighthave sustained by the use of it.

• The +ourt made use of the principle in *asley / 9reeman LT?= that:Mere falsehood is not enough to give a right of action& but is must be afalsehood told with an intention that it should be acted upon by the partyinjured& and that it must produce injury to himS

• The +ourt was trying to insist on the fact that an injured person must establish thatthe person who in said to have caused injury was such a person as recogni,ed bythe law not to act in the way he did.

2,Winter)otton / Wri$ht 1824 19M 5 W197The Material 9acts:

) contracted with the *ost Master $eneral to provide a mail coach to conveymail bags along a certain line of the road; 4 was contracted to hire horses andcoach along the same line& at the same time 4 contracted with + to drive thecoach. n the process of driving the coach + got injured and brought an actionagainst ) for damages due to the injury sustained in the course of driving thecoach which broke due to latent defects in its construction.



21

ssue:

Chether ) !defendant" was liableD)rgument by +ounsel for defendant:

'e objected that the declaration was bad in substance. )ccording to him the

general rule was that whenever a wrong arises out of a breach of contract& onlythe party to the contract can sue-cited Tollit / %herton ?M K C B@L and thepurpose was to limit extension of liability to even those who were no privy to thecontract.

)rgument by the +ounsel for the plaintiff:Cas based on the decision of #angridge / #evy. 'e tried to show that thedefendant had entered into contract with a public officer to supply an article&which from its nature and useSwas necessarily to be used by the plaintiff. 1n thebasis of this it was sufficient to bring this case within the rule established by#angridge / #evy which proceeded on the ground of knowledge and fraud; inthat in this case the defendant made a representation that the coach was in aproper state for use.

'olding:

2udgement for the defendant

atio 3ecidendi:Chere there is no contract or the injured party is no privy to it& no action will lie !ormay be maintained".

) case decided on the basis that the injured party was too remote to becontemplated by the defendant. ) movement back to contract.

#ord )binger +.4. stated inter alia:Ce ought not to permit a doubt to rest upon this subject& for our doing so might

be the means of letting in upon us an infinity of actions. This is an action of firstimpression& and it has been brought in spite of the precautions which were takenin the judgement of this court in the case of #angridge / #evy& to obviate anynotion that such an action could be maintained.Ce ought not to attempt to extend the principle of that decision& which althoughit has been cited in support of this action& wholly fails as an authority in its favour;for there the gun was bought for the use of the son& the plaintiff in that action&who could not make the bargain himself but was really and substantially theparty contracting. 'ere the action is brought simply because the defendant wasa contractor with a third person and it is contended that thereupon he becomesliable to everybody who might use the carriage.f there had been any ground for such action& there certainly would have beensome precedent for it; but with the exception of actions against innkeepers& andsome few other persons& no cause of action of a similar nature has occurred inpractice.The rule in #angridge / #evy cannot be applied in Citterbottom / Crightbecause according to #ord )binger& +.4. the case in point is a case of its ownkind.

#ord )lderson& 4 had the following to say: am of the same opinion. f we are to hold that the plaintiff could sue in such acase& there is no point at which such actions would stop. The only safe rule is tocontinue a right to recover to those who enter into the contract. f we go onestep beyond that there is no reason why we should not go fifty. 6emphasissupplied8



22

olfer& 4 had the following to say;

This is one of the unfortunate cases in which there certain has been damnum&abs0uiae injuria; it is so& no doubt& a hardship on the plaintiff to be without aremedy& but by that consideration we ought not to be influenced. 'ardcases& it

has been fre0uently observed& are apt to introduce bad law 6emphasis added8.

)ll the three judges were in agreement that in the circumstances of the day theplaintiff could not recover because he was not a party or privy to the contract.'e was a stranger in so far as the law and the defendants were concerned.

3,rederic- Lon$'eid 5 E%i;a <his Wi!e= / Ho%%ida*>

1614 ? E@, ?Material 9acts:

The defendant !'olliday" a seller of lamps sold a lamp to the plaintiff5s husband.The defendant was not a manufacturer of those lumps. The lumps were calledG'olliday5s *atent #amp5. The said lamp was for the purpose of being used by

him !the buyer" and his wife. There was evidence that the lamp was defectivelymanufactured. n using the lamp with naphtha !i.e. like (erosene" the lampexploded and the plaintiff5s wife was injured. The two plaintiffs brought an action!9rederick has previously recovered damages in an action for the defendant5sbreach of implied warranty of sale". The jury found all facts for the plaintiffsexcept for the allegation of fraud because; in their view the defendant did notknow that the lamp was in fact defective.

ssueChether the plaintiff can recover on the basis of fraudD

)rgument by +ounsel for the defendant:)s there was no proof of fraud& the action could not be maintained.

)rgument for the +ounsel of the *laintiff:

The defendant was guilty of fraudulent representation in that it was stated thatthe lamp was fit and proper for use& which he knew it was not true& and that heknew who is going to use the lamp& who in fact was injured in the process of usingthe lamp. The counsel maintained that this case was in line with the decision in#angridge / #evy.

'olding3efendant not liable !ule absolute".

atio 3ecidendi:Chere in the ordinary course of doing business between one individual and

another& a machine that is not dangerous in itself but which might become so bylatent defect entirely unknown& is let or given by one person to another& theformer is not answerable to the latter for subse0uent damage accruing from theuse of it.

1biter 3icta• f the defendant had been guilty of a fraudulent representation that the lamp

was fit and proper to be used& knowing that it was not and intending it to beusedSthen that individual would have had an action for deceit on the principleof #angridge / #evy 6=@LH8 BM K C =?>.



23

• f anyone knowingly tells a falsehood& with intent to induce another to do an actwhich results in his loss& then he is liable to that person in an action for deceit.

*arke& 4. enumerated instances besides contract and fraud in which an action might liebut which can be distinguished from the above case:

•

f an apothecary administers improper medicines to his patients& or a sageon&unskillfully treated him& and thereby injure his health& he would be liable to thepatient even where the father or friend of the patient may have been acontracting party with the apothecary or surgeon.

• ) %tage-+oach proprietor& who may have been contracted with a master tocarry his servant& if he is guilty of neglect& and the servant sustains personaldamage& he is liable to himS.

• f a mason contract to erect a bridge or another work of a public road& which heconstructs& but not according to the contract& and the defects of which are anuisance to the highway& he may be responsible for it to a third party& who isinjured by the defective constructionS.

• f anyone delivers to another without notice an instrument in its nature dangerous&or under particular circumstances& as a loaded gun which he himself loaded& andanother person to whom it is delivered is injured thereby or if he places it in asituation easily accessible to a third person who sustains damage from it& is liable.!3ixon / 4ell ?M K %elw. =>@"

This was a case of Misfeasance• f there had been in this case a breach of contract with the plaintiffs& the

husband might have sued for it; but there being no misfeasance towards the wifeindependently of contract& she cannot sue and join herself with her husband.

8,Geor$e 5 Wi!e / &-i0in$ton 1?74 LR6 E@1Material 9acts:

The plaintiff !2oseph $eorge husband to the second plaintiff" purchased achemical compound of the defendant as hair wash for the use of his wife.The hair wash was made up of ingredients known only to the defendant and byhim represented to be fit and proper to be used for washing the hair.N Therewas also an express statement that the defendant knew the purpose for whichthe article was bought. 3ue to the defendant5s unskillful; negligent and

improperN make of the compound& caused injury complained by the plaintiff !shelost her hair or her hair fell off".

ssue:

Chether an action at the suit of the plaintiff !wife" her husband being joined forconformity& will lie !or was there a cause of action against the defendantD".

)rgument by the +ounsel for defendant:There was no warranty& express or implied towards the purchaser& therefore noliability.

)rgument by the +ounsel for the plaintiffs:The defendant was a chemist who made the compound which he sold for aparticular purpose& and knowing the purposes for which it was bought& is liable inan action on the case for unskillfulness and negligence in the manufacture of itwhereby the person who used it was injured.



24

'olding

2udgement for the plaintiffs.

atio 3ecidendi:

)part from the 0uestion of warranty& express or implied there is a duty on thedefendant& the vendor& to use ordinary care in compounding his wash for thehair. There was such a duty to wards the purchaser and it extends to the personwhose use the vendor knew the compound was purchased #angridge / #evywas cited as an authority for this proposition. 'ere a similar duty a rose towardsthe person who was known to the defendant to be about to use this wash;namely the duty that the article sold should be reasonably fit for the purpose itwas bought for and compounded with reasonable care. 6(elly +.48

1biter 3icta(elly& +.4. distinguished the case of #ongmeid Elisa / 'olliday from this case inthat the former cases5 decision was not based on the negligence of the /endor.

*iggott& 4; was of the same opinion and he added:

S. Chere the thing purchased is for the use not of the purchaser himself but& tothe defendants5 knowledge& of his wife& does the defendant5s duty extend toherD can see no reason why it should not 6The judge points to the incapacity ofwomen to sue on their own in those days which is a reason why a husband had tobe joined with her as co-plaintiffs"

• *iggott& 4 advanced yet a contract situation:Chere a +hemist sells a drug to a customer without any knowledge of thepurpose for which it is to be applied& which is fit for a grown up person& and thatdrug is afterwards given by the purchaser to a child and does injury& it could notbe contended that the chemist is a liable.

•

+leasby& 4 was of the opinion that the action did lie against the defendant. 'estressed the principle of contract by saying:

<o person can sue on contract but the person with whom the contract ismade; and this is undoubtedly the proposition attempted to be takenadvantage of in #angridge / #evyN. Then he proceeded applying theprinciple to the facts of the case and found that there wasS good causeof action in the person injured similar to that which held to be good in#angridge / #evy.

) case where the seller of the article that caused injury was also a manufacturerof the article and knew who the consumers were !here representation was notrelevant".!The Married Comen5s *roperty )ct& =@@B 6I? K IJ /ict. + H? on *osition ofMarried Comen8

6,Hea0en / .ender 134 BD693<ote on Material 9acts- The Material 9acts in this case will be seen through the

eyes of the judges !Majority and Minority" who decided this case.Material facts according to the minority judge 4rett& M were as follows;

The plaintiff was a workman in the employ of the ship painter. The ship painterentered into a contract with a ship-owner whose ship was in the defendants dockto paint the outside of his ship. The defendant& the dock owner& supplied under acontract with the ship owner& an ordinary stage to be slung in the ordinary wayoutside the ship for the purposes of painting her. t must have been to the



25

defendant if he considered that matter at all that& the stage would used by sucha person as the plaintiff !as ship painter". The ropes by which the stage was slung&were supplied& without reasonable careful attention to their condition. Chen theplaintiff began to use the stage the ropes broke& the stage fell and the plaintiffwas injured.

ssue Chether the defendant owed a duty of care to the plaintiff.)rgument by the +ounsel for the defendant;

The stage was& through want of attention of the defendant5s servants supplied foruse by the plaintiffs but want of attention amounting to want of ordinary care isno good cause of action& unless the person charged with such want of ordinarycare had a duty to the person complaining to use ordinary care in respect of thematter in 0uestion.

)rgument by +ounsel for the plaintiffs;The defendant did not use ordinary care and skill and because of that theplaintiff was injured& the type of injury was not caused by the plaintiffs contributorynegligence& therefore the defendant owed a duty of care to the plaintiff.

'olding:

2uddgement in favour of he plaintiff.atio 3ecidendi:

Chenever one person is by circumstances placed in such a position with regardto another that every one of ordinary care and skill in his own conduct withregard to these circumstances he would cause danger or injury to the person orproperty of the other& a duty arises to use ordinary care and skill to avoid such adanger.

MethodologyChat method did 4rett& M.; employ in arriving at such a propositionD 4rett& M.;employed a case to case approach !nduction" and in each case examined hefound a rule and combination of these rules leading to a general rule for liability

called duty care& this made him to conclude that there was a general rule calledduty of care which he then applied deductively to the fact situation in the casehe was decide. This is a process of nductive reasoning and after a general rulehas been ascertained& then it is applied by the process of deductive reasoning.n real terms 4rett& M.; considered the following fact situation:

• Two drivers meeting have a contract with each other.• Two ships navigating at sea.• ) railway company which has contracted with one person to carry another has

not only a contract with the person carried but also a duty towards that person.• The owner or occupier of house to come to his house or land has no contracts

with such persons but has a duty towards them or him.Thus 4rett& M.. Maintained the existence of a contract

between persons does not prevent the existence of the suggested duty towardshim or them& raised by law independently of contract& but the facts with regardto which the contract is made and to which it applies in exactly similar but acontract of dutyN.

4rett& M.. ruled out certain considerations:Ce have not in this case to consider the circumstances in which an implied

contract may arise to use ordinary care and skill to avoid danger to the safety of personor property. Ce have not in this case to consider the 0uestion of fraudulentmispresentation express or implied which is a well recogni,ed head of law.Chat is then to be resolvedDChat is the proper definition of the relation between two persons other than the relationestablished by contract& or fraud& which imposes on the one of them the duty towardsthe other to observe& with regard to the person or property of such other& such ordinary



26

care and skill as may be necessary to prevent injury to this person or property. 3oes thepresent case fall within such a definitionDThe judge re-examined his examples as enumerated earlier and had the following to say:

Chen two drivers or two ships are approaching each other& such a relation arisesbetween them when they approaching each other in such a manner that& unless

they use ordinary care and skill to avoid it& there will be danger of injuriouscollision between them. The relation is established in such circumstancesbetween them& not only if it is proved that they actually know and think of thisdanger& but whether such proof be made or not. t is established& as it seems tome& because anyone of ordinary care and skill under such circumstances therewould be such a danger. )nd anyone ought by the universally recogni,ed rulesright and wrong& to think so much with regard to the safety of others who may be jeopardi,ed by his conductS

The judge went on to enumerate what would happen in the case of railway company asfollows:

n the case of ailway +ompany carrying a passenger with whom it has notentered into a contract of carriage the law implies the duty& because it must beobvious that unless ordinary care and skill be used the personal safety of a

passenger must be endangered.'e said the following in relation to an owner or occupier;

Cith regard to the condition in which an owner or occupier leaves his house orproperty other phraseology has been used& which it is necessary to consider. f aman opens his shop or warehouse to customers it is said that he invites them toenter& and that this invitation raises the relation between them which imposes onthe invitor the duty of using reasonable care to keep his house or warehouse thatit may not endanger the person or property of the person invitedS.f you permit aperson to enter then you impose on yourself a duty not to lay a trap on him.

'aving considered all these instances& which impose a duty of care and skill& 4rett& M..concluded as follows:

t follows& as it seems to me& that there must be a more remote and larger

proposition& which involves and covers both sets of circumstances. The logic ofinductive reasoning re0uires that where two major propositions lead to exactlysimilar minor premises there must be a remote and larger premise& whichembraces both of the major propositions.

The proposition which seems to be in line with the decided cases on supply of goods ormachinery or the like was stated as follows;

Chenever one person supplies goods or machinery& or the like& for the purpose oftheir being used by another person under such circumstances that everyone ofordinary sense would& if he thought& recogni,ed at once that unless he usedordinary care and skill with regard to the condition of the thing supplied or modeof supplying it& there will be danger or injury to the person or property of him forwhose use the thing is supplied& and who is to use it a duty arises to use ordinarycare and skill as to the condition or manner of supplying such a thing.

The approach by majority 2udges +otton K 4owen #22:Their ratio decidendi was based on the notion of owner- invitee relationship. Thusthe decision of +otton& #2 and 4owen& #2 was restricted to the category of owner-invitee relationship !narrow":

%tatement of the material facts by the majority judges:The defendant owner of a dock for the repair of ships& provided for use in thedock the stages necessary to enable the outside of a ship to be painted while inthe dock& and the stages which were to be used only in the dock whereappliances provided by the dock owner as appurtenant to the dock and its use.



27

)fter the stage was handed over to the ship owner it no longer remained underthe control of the dock owner.

ssue:Chether the dock owner was under the obligation to take reasonable care thatthe appliances were in a fit state to be usedD

'olding: nfavour of the plaintiff.atio decidendi:

The owner of premises is under an obligation to take reasonable care that thethings supplied by him for immediate use are in a good state of repair.

The majority judges were unable to concur with the judgement of the Master of the olls: am unwilling to concur with the Master of the olls in laying down unnecessarilythe larger principle which he entertains---.

?,Derr* and Others / .ee-> <17= 18 A++ Case 33Material facts:4y a special )ct I? K IJ /ict; + +lix the *lymouth 3evonport and 3istrict Trainways +ompany was authori,ed to make certain train ways. 4y %-L? the carriagesused on the train ways might be moved by animal power with the consent of the4oard of Trade& by steam or any mechanical power for fixed periods and subjectto the regulations of the 4oard. 4y %.LI of the Tramways )ct& =@HA !LL K LI /ict.+:H@" which section in the special )ctN all carriages used on any tramway shall bemoved by the power prescribed by special )ct& and where no such power isprescribed& by animal power onlyN&The appellants as directors of the +ompany issued a *rospectus whichencouraged people to invest in it because by the special )ct of *arliament thecompany had a right louse steam or mechanical motive power& instead of

horses---. )s soon as the *rospectus was issued& the respondent relying upon aparagraph in the *rospectus applied and obtained shares in the company. Thecompany proceeded to tramways& but the 4oard of Trade refused to consent tothe use of steam or mechanical power.n the result the company was wound up and the respondents brought an actionof deceit against the appellants claiming damages for fraudulentmisrepresentation of the dependants whereby the plaintiff was induced to takeshares in the company.6n the 'igh +ourt the action was dismissed by %tirling 2.8 )ppeal to the +ourt of)ppeal.

ssue:Chether an action of fraudulent misrepresentation would lieD

'oldingThe +ourt of )ppeal held that 6+otton& #2; %ir 'annen 2& and #opes& #.2." thedefendants were liable to make good to the plaintiffs the loss sustained by takingthe shares.

The defendants appealed to the 'ouse of #ords'olding:

)ppeal allowed& order of the +ourt of )ppeal reversedatio 3ecidendi:

n an action for deceit the plaintiff must prove actual fraud& that is falserepresentation made knowingly& or without belief in its truth& or recklessly& withoutcaring whether it be true or false and intending the plaintiff to act upon it.



28

1ther observations by the 'ouse of #ords:

) false statement may be evidence of fraud& but does not necessarily amount tofraud.%uch a statement& if made in the honest belief that it is true& is not fraudulent and

does not render the person making it liable to an action of deceit.#ord 'erschell send:n my opinion making a false statement through want of care falls far short of&and is very different thing from fraud& and the same may be said of a falserepresentation honestly believed though on insufficient grounds.

The 9irst case of negligent statements causing financial lossn this case the court was saying that there is a distinction in law between falserepresentation and fraud or deceit and whoever wants to base an action on falserepresentation must prove actual deceit.

,Le Lie0re 5 Diennes / Gou%d> 1734 1B871

Material facts'. 1wner of land& arrange with 3 for a loan to be paid to #& a builder& on thesecurity of a mortgage of the land. The money was to be paid by installments atcertain stages in the progress of buildings to be erected on the land by #& and thestages were to be certified by an )rchitect. '. asked the defendant& $& who wasan )rchitect and surveyor to issue these +ertificates. n the process 3 transferredthe mortgage to ## after four installments had been paid on certificates furnishedby $. n due course the plaintiffs lost money on this transaction and sued fordamages.

ssueChether the defendant was liableD

)rgument by the *laintiffs:

'. in employing $ to issue certificates and in preparing the schedule ofadvances& was acting as the agent of the plaintiff 3. The certificates given werein fact to the knowledge of $ and if there was no fraud on his part the defendantdid not use due care& skill and diligence to ascertain whether the facts of thecertificates were true. n so giving certificates the defendant acted with grossnegligence& and in break of the duty he owed to the plaintiffs.

)rguments by the 3efendant:The defendant denied that he had been employed by 3 or on his behalf to issuecertificates. 'e never undertook any duty towards the plaintiffs or either of them.'e was not fraudulent& the certificates were issued bona fide and in belief thatthe statements contained in them were true.

'olding

)ppeal 3ismissed& 2udgement infavour of the defendants.

atio 3ecidendi:The 0uestion of liability for negligence cannot arise at all until it is established thata man who has been negligent owed some duty to the person who seeks to

make him liable for negligence.1biter 3icta:

3ecision of 'eaven / *ender1bservations:=. The judgement of #ord Esher !9ormer 4rett M.." M.. reveals the following:



29

!i" ) duty cannot arise unless there is a r elationship of the parties throughcontract !what duty is there when there is no relationship between theparties by contractD"

!ii" ) man is entitled to be as negligent as he wishes !pleases" to the wholeworld if he owes no duty to them.

!iii" 3erry / *eek !'ouse of #ords5 decision" established that in the absence ofcontract& an action for negligence cannot be maintained when there isno fraud.

!iv" <egligence& however great& does not itself constitute fraud.

B. !i" )ccording to 4owen #2 in 3erry / *eek the 'ouse of #ords pointed out that& as+ommon #aw lawyers had always held& an action of deceit must be based onfraud& and that negligence is not itself fraud& although negligence in some casesmay be of such a kind as to make it highly probable that there has been fraud.

!ii" <egligent misrepresentation does not amount to deceit and negligentmisrepresentation can give rise to a cause of action only is a duty lies upon thedefendant not to be negligent.

!iii" Ce however& have to consider not what the law might be& but what it is. !This is apositivistic utterance by the judge".

!iv" ---a man is responsible for what he states in a certificate to any person to whomhe may have reason to suppose that the certificates may be shown. 4ut the lawof England does not go to that extent& it does not consider that what a manwrites on paper is like a gun or other dangerous instrument and unless it isintended to deceive& the law does not& in the absence of contract& hold himresponsible for drawing his certificates carelessly.

L. n the opinion of ).#. %mith #.2. the decision of 'eaten / *ender was founded

upon the principle& that a duty to take care did arise when a person orproperty of one was in such proximity to the person or property of anotherthat& if due care was not taken& damage might be done by the one to theother. 'eaven / *ender does not go further than this---the case is totallydifferent from the present and its principle cannot be applied to it.

<ote on *recedent:#e #ievre v $ould- )ccording to the strict rule of precedent& the English +ourt of)ppeal must generally follow its previous decisions i.e. it is bound by the ratios of itsown previous cases& so in this case& the court is bound by the ratio of 'eaven /*ender. Ce saw that strictly& the ratio of 'eaven / *ender must be the rule of themajority of the judges +otton K 4owen #22. <either 4rett5s formulation of the largerproposition& nor his formulation of suppliers liability is therefore the ratio& nor part of theratio. 4ut does the +ourt in #e#ievre / $ould adhere to these strict rulesD Esher!4rett" M.. refers to what 'eaven / *ender established&N meaning his own minorityrule. %mith& #2 also refers to 4rett5s rule as the principle of 'eaven / *ender. 1nly4owen& #2 refers to the ratio of 'eaven v *ender as the majority rule. i.e. the rule ofowner of premises.

4efore we conclude& that the court is not adhering to the strict doctrine& we shouldremember that they do not in fact prefer the minority rule in 'eaven v *ender to themajority rule. They reject both as applying to the facts before them. f they hadpreferred the minority rule& they would be in breach of the strict principle& but theyrejected the minority rule as too wide& and the majority rule& as having noapplication. 4ut in so far as they accept 4rett5s rule as the Gprinciple5 of 'eaven v



30

*ender& to be followed in future cases where the facts came within that principlethey do not adhere to the strict rule of precedent.The 'ouse of #ords in 3onoghue v %tevenson could have said this was wrong. 4utthey do not- #ord )tkin proves these statements and also refers to 4rett5s rule as thedoctrine of 'eaven v *ender. <otice also that this is the case of a +ourt dealing with

one of its own previous decisions. ) lower +ourt could not have so much freedom.#ook at how Mc +ardie 2 sitting in the 'igh +ourt& dealt with 'eaven / *ender in 9arrv 4utters. 'e had to say the rule of that case is the majority rule& and cannot follow4rett M5% rule in preference.

,#octon / Lord Ash)urton 17184 AC 732

Material 9acts#ord )shburton claimed damages from <octon& a %olicitor on the basis that hehad suffered loss as a result of improper advise given to him by <octon which heacted upon. The advise had been that #ord )shburton should release a part of amortgaged security. )s a result of acting on that advise the security hadbecome insufficient and #ord )shburton claimed that the advise had been givenby <octon knowingly that the security would be rendered insufficient and that ithad been given in <octon5s interest and not in his client5s interest.

n the first instance the +ourt found that there had been no fraud& thereforedismissed the action. The +ourt of )ppeal reversed that finding and grantedrelief on the basis that <octon had been guilty of actual fraud.The 'ouse of #ords reversed the decision of the +ourt of )ppeal. 'eld theplaintiff was to succeed on the basis of a breach of duty which arises out offiduciary relationship with the defendant and which the defendant suffered loss.

'olding+ourt of )ppeal decision affirmed on different grounds.

atio 3ecidendiChere a person renders advise to another and the advisee falls within a fiduciaryrelationship with the adviser& in case the advisee sustains loss the adviser is liable.

/iscount 'aldane #.+. %tatements are worthy noting:!i" 3erry v *eek which establishes that proof of fraudulent intention is necessary to

sustain an action for deceit& whether the claim is dealt with in a +ourt of law or bya +ourt of E0uity---does not narrow the scope of the remedy in actions within theexclusive jurisdiction of the +ourt of E0uity.

!ii" )lthough liability for negligence in words has in material respects beendeveloped in our law differently from liability for negligence in act& it is none-the-less true that a man may come under a special duty to exercise care in giving

information or advice.

!iii" should be sorry to be thought to lend centenance to the idea that recentdecisions have been intended to stereotype the cases in which people can beheld to have assumed a special duty !emphasis added". Chether such a dutyhas been assumed depended on the relationship of the parties---.

7,Dono$hue 0 &te0enson> 17324 AC 6?2 <HL"

This was an appeal from %cotland 6England and %cotland have two different legalsystems8.Material 9acts



31

The appellant& a shop assistant sought to recover from the respondent& anaerated water manufacturer& on the basis that he was negligent and out of suchnegligence she was injured by the presence of a snail in a bottle of ginger beermanufactured by the respondent and ordered for the appellant in a shop by afriend of the appellant. )s a conse0uence of having drunk part of the

contaminated contents of the bottle it was alleged that she contracted a seriousillness. The bottle was dark opa0ue glass& the condition of its contents could notbe ascertained& it was closed up with a metal cap& and on the side was a labelbearing the name of the manufacturer !the respondent".

ssueChether a manufacturer of an article or drink sold by him to a distributor incircumstances which prevent the distributor or ultimate purchaser or consumerfrom discovering by inspection any defect is under a legal duty to the ultimatepurchaser or consumer to take reasonable care that the article is free from anydefect likely to cause injury to healthD

The arguments of the two parties are not apparent.

'olding

)ppeal allowed; decision infavour of the plaintiff against the defendant.Ce shall concentrate on the reasoning of the 'ouse of #ords. The case was decided by#ord )tkin& #ord MacMillan& #ord 4uckmaster& #ord Thanketon and #ord Tomlin. #ord4uckmaster and Tomlin dissented. Ce examine in turn the extracts from the opinions of#ord )tkin& #ord MacMillan and 4uckmaster:#ord )tkin made the following important 1bservations:

=. 9or the purposes of determining this problem the law of %cotland and thelaw of England are the sameSin order to support an action for damagesfor negligence the complaint has to show that he has been injured by thebreach of duty owed to him in the circumstances by the defendant totake reasonable care to avoid such injury.

B. n the present case we are not concerned with the breach of duty

---we are concerned with the 0uestion as a mater of law in thecircumstances alleged by the defendant owed a duty to the purchaserto take care---.

L. n English law there must be& and is& some general conception ofrelationships giving rise to a duty of care& of which particular cases foundin the books are but instances. The #iability for negligence& whether youstyle it such or treat it as in other systems as species of culpaN is no doubtbased upon a general public sentiment of a moral wrongdoing for whichan offender must pay.

I. The rule that you are to love your neighbour becomes& in law& you mustnot injure your neighbour: and the lawyers5 0uestion& who is my neighbourD !emphasis added" receives a restricted reply.Qou must take reasonable care to avoid acts or omissions& which you canreasonably foresee& would be likely to injure your neighbour. Cho then& inlaw& is my neighbourD The answer seems to me to be: persons who are soclosely and directly affected by my act that ought reasonably to havethem in contemplation as being so affected when am directing my mindto the acts or omissions which are called in 0uestion.

)ccording to #ord )tkin this is the principle enunciated in 'eaven / *ender by #ord EsherM !then 4rett M" when it is limited by the notion of proximity introduced by #ord 2ustice)# %mith in #e #ievre and 3ennes / $ould where #ord Esher M stated inter alia

The case establishes that under certain circumstances& one may owe a duty toanother even though there is no contract between them. f one man is near toanother& or is near to the properly of another& a duty lies upon him not to do thatwhich may cause a personal injury to that other or injure his property.



32

#ord 2ustice ).#. %mith maintained:The decision of 'eaven / *ender was founded upon the principle that a duty totake care did arise when the person or the property of another that& if due carewas not taken& damage might be done by one to the other.

n the view of #ord )tkin these principles sufficiently state the rule of proximity. This

proximity is not confined to mere physical proximity&N but is used--- to extend to suchclose and direct relations that the act complained of directly affects the person allegedto be bound to take care would know could be directly affected by his careless act---.#ord )tkin further amplified on the point by saying:) manufacturer who puts up an article of food in a container which he knows will beopened by the actual consumer& without any chance of intermediate inspection by thepurchaser or reasonable inspection by the consumer and it is found that due tonegligent manufacture the contents were mixed with poison then the law of Englandand %cotland says that a poisoned consumer has no remedy against a negligentmanufacturer& the results would be grave and the law would be defective.

Then he went to expound the principle that---by %cots and English #aw alike a manufacturer of products which he sells in

such a form as to show that he intends them to reach the ultimate consumer inthe same form in which they left him& with no reasonable chance of intermediateexamination and without knowledge that the absence of reasonable care in thepreparation or putting up of the products will result in injury to the consumer5s lifeor property& owes a duty of care to the consumer to take reasonable care.

#ord MacMillan5s decision had the following characteristics:!i" The law takes no cogni,ance of carelessness in the abstract. t concerns

itself with carelessness where there is a duty to take care and wherefailure in that duty has caused damage.

!ii" n the daily contacts social and business alike human beings are thrown inan infinitive variety of relationships with their fellow& and the law can referonly to the standards of the reasonable man !emphasis supplied" in order

to determine whether any particular relationship gives rise to a duty totake care between those who stand in that relation to each other.

!iii" Chat then are the circumstances which give rise to this duty to take careD) person who for gain engages in business of manufacturing articles offood or drink intended for consumption by members of the public in theform in which he issues them is under a duty to take care in themanufacture of these articles. The duty& in my opinion& he owes to thosewho he intends to consume his products.N

!iv" The +ategories of negligence are never closed.!emphasis added". The +ardinal principle of liability is that the partycomplained of should owe a duty to take care and the partycomplaining should be able to prove that he has suffered damage as aresult or conse0uence of a breach of that duty.!<egligence consist in the duty of care& breach of duty and damageresulting from the breach of duty to take care !emphasis supplied".

!v" can readily conceive that where a manufacturer has parted with hisproduct and it has passed into other hands it may well be exposed to/icissitudes which may render it defective or noxious and for which themanufacture could not in any way be held to blame. Chere betweenthe manufacturer and the user there is interposed a party who has themeans and opportunity of examining the manufacturer5s product beforehe reissues it to the actual user the manufacturer ceases to be in control.Chere the article of consumption is so prepared as to be intended toreach the consumer in the condition in which it leaves the manufacturer&and the manufacturer takes steps to ensure that the contents can not be



33

tempered with& regard his control as remaining effective until the articlereaches the consumer and the container is opened by him 6emphasissupplied8

The 3issenting 1pinion of #ord 4uckmaster dealt with the following:

!i" The appeal should be dismissed& because existing authorities areagainst the appellants contention.!ii" There can be no special duty attaching to the manufacturer of

food apart from that implied by contract or imposed by statute. fsuch a duty exists& it seems to me it must cover the construction ofevery article and cannot see any reason why it should not applyto the construction of a house. f one-step why not fiftyDCith the exception of $eorge / %kirington no case directlyinvolving the principle has ever succeeded in the +ourts---.

!This case was decided by a majority of L-B". ) Catershed +ase.

9arr / 4utters 4ros K +ompany 6=>LB8 B (.4. JJ<ote: 4etween the date of the judgement given by Mc+ardia 2 and the

hearing of the appeal& the 'ouse of #ords had delivered a very important judgement in M5)lister !3onoghne" / %tevenson. 'ow far was the decision in thiscase to affect the present caseDMaterial 9actsThe action of the appeal arose under the 9atal )ccidents )ct& =@IJ& by a widowof a foreman erector of cranes who was killed by the falling of the jib of a crane&which he had been responsible for erecting. The action was brought against themanufacturer of the crane& who sold it in part to a firm of builders who werethemselves to assemble the parts& and who in fact did this under the supervisionof the man who was killed. t was clear that two of the +og-wheels used in theworking of the crane did not fit accurately. )ll agreed that the deceased whilethe crane was being assembled& ascertained that the +og-wheels did not fit

properly& their inaccuracy was that re0uired to be corrected& that he markedthose inaccuracies with chalk in order that it might be corrected& and that hesaid& that he would report the matter to his principals. n spite of this discovery&marking& and statement of his intention to report& he began working the cranebefore the inaccuracies had been corrected. n working it in that condition hewas& while standing by the jib& killed by its fall& the falling being due to the effectof the inaccuracies which he had discovered.

ssue:Chether there was liability on the part of the manufacturers to the employee ofthe purchaser. Cas there liability in TortD

)rgument by the defendant:'aving manufactured and supplied the part of the crane to the purchaser therewas an opportunity for examination in that the purchasers were to assemble theparts& that opportunity was used by their skilled erector who examined the wheelsand found their condition and did not rectify it. Therefore& the manufacturerswere not liable.

)rgument by the plaintiffs:The defendants had been negligent in manufacturing the cranes whose partskilled the husband of the plaintiff and therefore they were liable to her in tort.

atio 3ecidendi:mportant 1bservations made by %crutton #2.=. There was an opportunity for examination:

Ce have repeatedly held that when a plaintiff gives evidence which isonly consistent with the accident being caused by his own negligence



34

the judge ought to withdraw the case from the jury instead of leaving it tothem to say whether the admitted facts constituted negligence.N

B. %crutton #2 agreed with #ord )tkin that: venture to say that in the branch of law which deals with civil wrongs&dependent in England& at any rate& entirely upon the application by

judges of general principles also formulated by judges& it is of particularimportance to guard against the danger of stating propositions of law inwider terms than is necessary& least essential factors be omitted in thewider survey and the inherent adaptability of English law be undulyrestricted.9or this reason it is very necessary& in considering reported cases in the #awof torts& that the actual decision alone should carry authority& properweight& of course& being given to the dicta of the judges.

Thus he further stated his famous proposition on the way English judges operate;English judges have bee slow in stating principles going far beyond thefacts they are considering. They find themselves in a difficulty if they stateto wide propositions and find that they do not suit the actual facts.N

'e then considered the decision of the 'ouse of #ords in 3onoghue5s case and

how the +ourt limited the proposition;The rule that you are to love your neighbour becomes& in law& you mustnot injure your neighbour& and the lawyers5 0uestion& who is myneighbourD eceives a restricted reply. Qou must take reasonable care toavoid acts or omissions which you can reasonably foresee would be likelyto injure your neighbour. Cho then in law is my neighbourD The answerseems to be persons who are so closely and directly affected by my actthat ought reasonably to have them in contemplation as being soaffected when am directing my mind to the acts or omissions which arecalled in 0uestion&N

n the case in point the judge goes with the opinion of #ord McMillan thatresponsibility ceases when control ceases !no proximity":

t may be a good general rule to regard responsibility as ceasing whencontrol ceases& so also where as between a manufacturer and the userthere is interposed a party who has the means and opportunity ofexamining the manufacturer5s product before he reissues it to the actualuser.

19,Grant / Austra%ian nittin$ Mi%%s> 173?4 AC 6Material 9acts The appellant contracted dermatitis of an external origin as a

result of wearing a woolen under pant which& when purchased from theretailers& was in defective condition owing to the presence of excesssulphates& which& it was found& had been negligently left in the process ofmanufacture.

The appellants claimed damages both against retailers andmanufacturers.ssues:

Chether the manufacturers were liable in tort and retailers in contractDChether the principle of 3onoghue / %tevenson is applicable to thiscaseD

)rgument advanced by the plaintiff:The decision of the 'ouse of #ords in 3onoghue / %tevenson was bindingon the +ourt to follow.



35

)rgument by the defendant3onoghue / %tevenson was a case of food and drink to be consumedinternally& whereas the pants were to be worn externally. Chile 3onoghue/ %tevenson5s case the makers of the ginger-beer had retained controlNover it in the sense that they had placed it in stoppered sealed bottles& so

that it would not be tampered with until it was opened to be drunk& thegarments in 0uestion were merely put in paper packets each containingsix sets which in ordinary course would be taken down by the shopkeeperand opened& and the contents handled and disposed of separately& sothat they would be exposed to the air. t was further argued that thoughthere was no reason to think that the garments when sold to the appellantwere in any other condition& least of all as regards sulphur contents& thanwhen sold by the manufacturer to the retailers& still the mere possibility andnot the fact of their condition having changed was sufficient to distinguish3onoghues case. There was no controlN because nothing was done bythe manufacturer to exclude the possibility of any tampering while thegoods were on their way to the user. #astly& it was argued that if thedecision of 3onoghue5s case& were extended even a hair5s breath no line

could be drawn& the manufacturer5s liability would be extendedindefinitely.

'oldingThe case was within the principle of 3onoghues5 case& decision atgainsthe respondents& appeal allowed with costs.

atio decidendi;) person who for gain engages in the business of manufacturing articlesfor consumption by members of the public in the form in which he issuesthem is under a duty to take care in the manufacture of these articles.

#ord Cright in this case considered a number of things:=. <egligence is found as a matter of inference from the

existence of the defects taken in connection with allknown circumstances even if the manufacturer could byapt evidence have rebutted that inference they havenot done so.

B. t is clear that the decision of 3onoghue v %tevensontreats negligence& where there is a duty of care& as aspecific tort in itself and not simply as an element in somemore complex relationship or in some specialised breachof duty& and still less as having any dependence oncontract. )ll that is necessary as a step to establish thetort of actionable negligence is to define the preciserelationship from which the duty to take care is deduced.

L. t is& however& essential in English #aw that the duty shouldbe established; the mere fact that a man is injured byanother5s act gives in itself no cause of action; f the actis deliberate& the party injured will have no claim in laweven though the injury is intentional& so long as the otherparty is merely exercising a legal right; f the act involveslack of due care& again no cause of actionablenegligence will arise unless the duty to be careful exists&

I. ---f the term Gproximity5 is to be applied at all& it can onlybe in the sense that the want of care& and the injury are



36

in essence directly and intimately connected; thoughthere may be intervening transactions of sale andpurchase& and intervening handling between those twoevents are themselves unaffected by what happenedbetween them; proximityN can only properly be used or

of some interfering complication between the want ofcare and the injury---.

?. E0ually also may the word controlN embrace& though itis conveniently used in the opinions in 3onoghues5 caseto emphasise the essential factor that the consumer mustuse the article exactly as it left the maker& that is allmaterial features& and use it as it was intended to beused. n that sense the maker may be said to control thething until it is used.

J. ---duty is difficulty to define& because when the act ofnegligence in manufacture occurs there is no specific

person towards whom the duty could be said to exist& ---the duty cannot at the time of the manufacture be otherthan the potential or contingent& and only can becomevested by the fact of actual use by a particular person.

H. n 3onoghue5s case the thing was dangerous in fact&though the danger was hidden& and the thing wasdangerous only because of want of care in making it---.

@. The principle of 3onoghues5s case can only be appliedwhere the defect is hidden and unkown to theconsumer& otherwise the directness of cause and effect is

absent& the man who consumes or uses a thing which heknows to be noxious cannot complain in respect ofwhatever mischief follows& because it follows from his ownconscious /olition in choosing to incur the risk.

6ead Mukoyogo = on *recedent at app =@A F =@B8

11,Cand%er / Crane Christ'as> 17614 2 B 1?8Material 9acts

The plaintiff invested money in a company relying on accounts put before themby accountants. The accounts were wrong and negligently prepared. Theplaintiff lost money and sued the accountants.

ssueChether the defendants were liable in tort of negligenceD

)rgument by plaintiff5s +ounselCas based on the decision of the 'ouse or #ords in 3onoghue5s case namelythat since that decision there was no distinction between negligent manufacturecausing physical harm and negligent statements leading to financial loss.3efendants were liable.

)rguments by the +ounsel for the defendants:



37

That there was no cause of action& that is no liability in tort for negligentmisstatement. 9urther that there is no liability in tort for negligent statementscausing financial loss as opposed to physical harm& and further that theaccountants were liable in contract to the company and not liable to theplaintiffs in tort.

'oldingThe +ourt of )ppeal 'eld in favour of the defendant in that they were not liable.!Majority B:="

atio 3ecidendiThere is no duty of care in negligence as for negligent misstatements.

1biter 3icta3issenting 2udgement of #ord 3enning #.2. !as he then was" sought to make itclear that since the 'ouse of #ords5 decision in 3onoghue5s case no distinctionexisted between negligent manufacturer causing physical injury and negligent

statements causing economic loss.6t must be noted that to date +ourts in England have retained such a distinctionas we shall see later.8

#ord 3enning& #.2. maintained that the case of 3onoghue / %tevenson& had substantiallychanged the law. t did cast doubt on the authority of older cases such as #elievre /$ould which negative actions in tort for negligent misstatements. The courts mustaccept that there was a cause of action for negligent misstatements.

1n the arguments by the defendant he said:The argument that there was no cause of action& that is no liability in tort fornegligent maintainable because there was need for progress in the law rather

than stagnation.

The argument that there is no liability in tort for negligent acts !or statements" causingfinancial loss as opposed to physical harm& he said that& the +ounsel did not dispute thatthere would be no liability in two hypothetical cases:

!=" the analyst who tests food and negligently states that it is wholesome&whereas it is harmful&

!B" who negligently states that a lift is safe when it is not&t might have been that the +ounsel only accepted those hypothetical caseson the ground that they are both cases of physical harm& resulting fromnegligent misstatements& and that on the facts of this case& there being nophysical damage& they would not make the defendant liable.

The +ounsel retreated from his earlier position that there is no liability for negligentmisstatement at all& to the position that there was only liability if such statements resultingto physical harm& but not otherwise.

)ccording to #ord 3enning& there is no distinction between physical harm and financialloss in relation to duty of care. t might be more difficult to prove the proximaterelationship& that is foreseability of damage& in the case of purely financial loss& but that isa matter of proof in each case.

3ealing with the third argument of the +ounsel for the defendant& namely& that theaccountants were liable in contract to the company and not liable to the plaintiff in tort.#ord 3enning rejected the =>th +entury fallacy. n his view t is a well established rule



38

that is ) is liable to 4 in contract& that in no way prevents him being liable to + in tort onthe same facts.NThe tort of negligence according to #ord 3enning is an entirely separate cause of action&so it is irrelevant that another cause of action exists as regards to other persons.

#ord 3enning5s judgement is a 3issenting judgement& it is not part of the ratio of+andler5s case& it is not binding. The ratio of +andler5s case is a statement of themajority& expressed by #ord )s0uith& that there is no duty of care in negligence as fornegligent misstatements.6This ratio was later overruled by the 'ouse of #ords in 'edley 4yrne / 'eller8

#ord )s0uith5s treatment of the 'ouse of #ords53ecision in 3onoghue / %tevenson:

'e rejected #ord )tkin5s neighbour principle on the ground that it was notaccepted by other judges of the majority. 'e does not think #ord MacMillanagreed with )tkin5s broad principle when he said that:

The categories of negligence are never closed.N

%ince he finds that the ratio of 3onoghue / %tevenson is restricted tomanufacturer5s liability& it did not overrule earlier +ourt of )ppeal decisions in#e#ierre / $ould.

#ord )s0uith and #ord +ohen delivered a majority judgement which was basedon the distinction between economic loss and physical injury. #ord )s0uithreferred to the decision in 3erry / *eek and maintained that 3onoghue /%tevenson was not intended parenthetically or subsilentio to sweep away suchsubstratum. <or did 3onoghue / %tevenson reverse or 0ualify the principle laiddown in #e#ievre / $ould:

n the present state of our law different rules seem to apply to negligentmisstatements& on the one hand& and to negligent circulation or repair of

+hattels on the other& and 3onoghue / %tevenson does not seen to haveabolished those differences.

#ord )s0uith was ready to be called a timorous %oulN as opposed to bold spiritsN<ote: the extension of the above dichotomy can be found in the following decisions to

day in England:• %imaan +o. / *ilkington $lass& !<oB" 6=>@@8 )##E JH= !+h.3."

• +apro ndustries *#+ / 3ickman& 6=>>A8 )E?J@ at ?H=-JA@ !+h.3."

• 3avis K )n. / adcliff K others& 6=>>A8 B)E?LJ !*+"

12,C%a*ton / Wood'an> 17?24 2B 633 <HC 5 CA decision=Material 9acts

The plaintiff& a bricklayer was employed by the first defendants& a regionalhospital board to install a lift and motor room in one of their hospitals. Thecontract re0uired that the work should be done with directions of an architect&third defendants. To install a lift it was necessary to demolish part of the building.1n the instructions of the architect the plaintiff embarked on the installation in theprocess of which he was injured and brought this action against the defendants.

ssueChether the defendants were liable and on the basis of which authorityD

)rguments by +ounsels are in a way scattered. %o it is advised that they will bepresented as we analyse the judgement as a whole.



39

'oldingThe 'igh +ourt held defendant = and defendant L liable.This was reversed by the +ourt of )ppeal on ground other than those made by%almond 2.

2udgement of %almond 2. 6and the use of the term ratio8'e distinguished 3erry / *eek& #e#ievre / $ould and +andler / +rane +hristmas!all decisions of the +ourt of )ppeal binding on him" on ground that there& thedamage was financial and not physical& i.e. the fact that the damage in thosecases was financial was material.This fact was not mentioned in 3erry / *eek& in that case it was impliedly treatedas material. The fact was not mentioned in #e#ievre / $ould in that case there isnothing to suggest that the judges thought the results would have been differenthad the negligent misstatement resulted in physical harm.

%almond 2 in fact employs the different ratio called the rule of induction.

%almon 2 in his distinction admitted that )s0uith #.2 in +andler / +rane +hrismasexcluded all cases of negligent statements from liability. 'e had to accept the authority

of +andler5s case as it is a +ourt of )ppeal +ase& and could not deny that somenegligent misstatements are not actionable. 'e admits that his distinction betweennegligent misstatements that cause financial loss& not physical damage was illogical.N

1ther important statements of %almond 2:t was suggested that the fall was triggered off by the action of the plaintiffhimself& but even if this be so !and" far from being satisfied that it is& it seemed tobe immaterial.n my view& the first defendants have no defence to this action. t was their dutyas the plaintiff5s employers to take reasonable care for his safety. They knew thatthe work had reached a stage when the chase was about to be out in the gable.They should have appreciated that this would be a highly dangerous operation

unless the gable were supported by cutting or shoving& but they allowed the workto be carried out without any such shutting or shoving. n my judgement& the firstdefendants were clearly negligent in that they did not shove or shut this wallwhen they knew that the chase was about to be cut in it. This negligence wasthe cause of the accident 6liability is based on duty of care !owner-invitee" andstrict liability !statutory".

am 0uite unable to find that the second defendants in any way failed in their duty ofcare to their invitees. Types of mistakes& which can be performed by professionals:

There are& of course& many mistakes that a professional man can make withoutfailing to exercise reasonable skill or care but not an elementary mistake of thiskind. have no doubt at all that any ordinary architect using reasonable careand skill would certainly have reali,ed the extreme danger of cutting the casewithout shoving or shutting the gable.

n reaching the conclusion that since neither #e#ievre / $ould nor +andler / +rane+hristmas was concerned with a careless statement causing physical damage& theycannot exclude the application of the principle enunciated in 3onoghue / %tevenson tothe particular facts of the case.

)lthough the dicta of )s0uith #2 must carry the greatest weight& do not considerthat the decision in +andler / +rane +hristmas excluded careless statementsfrom the ambit of 3onoghue / %tevenson. t may be difficult to think of thelogical reasons why there should be& in some circumstances& a duty to take carein making statements causing physical damage and never such a duty in making



40

statements causing financial loss. #ogic and +ommon sense& are uncertainguides in this branch of the #aw.!The same as 'olmes The *ath of the lawN where he categorically statedN Thelife of the law is not logic but experienceN."

<ote: Milner on <egligence in Modern #aw4utterworth =>JH p LB:

G1n the other hand& failure to take positive precautions against a peril which wasnot !even remotely" of your own making or proceeding from property which isunder your control or was so at the relevant time is not generally regarded asnegligence. The law does not exact altruistic behaviour& it does not re0uire youto love your neighbour& but only that you shall not injure your neighbour.

%almond 25s example of altruistic behaviourN!=" 4wana 2uma is driving along Morogoro oad one night and is involved in a

serious collision with another vehicle. 'is car ends up on a wrong side of theroad& the driver5s door flies open and 4wan 2uma is deposited& unconscious

and bleeding on the road.3r. Mshen,i& driving to town& sees the accident and 4wana 2uma lying on theroad& but decides that after a hard day5s work he is in real need of a Tusker&and decides to ignore the accident. 'e drives round the unconscious manand the wrecked car& and proceeds to the levi 4ar to 0uench his thirst.

!B" 3r. <dugu& driving along a few minutes later though tired after a busy daystops his car and goes to the aid of 4wana 2uma. 'e attends to 4wan 2uma5sinjuries& and seeing that he has lost a lot of blood decides to give himtransfusion. 'e has in his car& by lucky chance& a bottle of blood& of thecommon !blood group& 1 positive". 'e has no means of testing 4wana2uma5s blood group. t is& however& obvious that if 4wana 2uma does not get

blood soon& he will die. 3r. <dugu takes chance& and administers the blood&4wana 2uma dies a few minutes later. Chen he is taken to the mortuary laterit is discovered that he was wearing a medallion round his neck beneath hisclothing which said Carning& have a rare blood group: $roup ) negative.n an emergence contact 1cean oad 'ospital Tel ABB?BLJ= at 1nceN.4wana 2uma died directly as a result of his being given the wrong bloodgroup. 3r. <dugu has been charged of murder. )dvise him of his liability.

13,Hed%e* B*rne 5 Co Ltd / He%%er 5 .atners Ltd> 17?34

2 A%% ER 66 at 6?1

Material 9acts:The appellants were a firm of advertising agents. The respondent were merchant

bankers. The appellants case against the respondents was that having placedon behalf of a client R on credit terms substantial orders of advertising time on theTelevision programmes and for advertising space in news papers on terms underwhich the appellants became personally liable to the T/ and newspapercompanies& they in0uired through their own baker !the respondent" as to the

credit worthness of R who were the customer of the respondents satisfactoryreferences. n those reply the respondents clearly stated that such informationwas given on the understanding that t was for private use and withoutresponsibility on the part of the bank or its officialsN !disclaimer from liability".The references turned out not to be justified& and it was the plaintiff5s claim thatreliance on such references resulted into loss. The appellants were seeking torecover the incurred financial loss from the respondents on the ground that the



41

replies were given negligently and in breach of the respondents duty to exercisecare in giving them.The 'igh +ourt& Mc<air 2 gave judgement in favour of the respondents on theground that they owed no duty of care to the appellants:

Mc<air 2 said inter alia: am accordingly driven to the conclusion by the authority binding upon me thatno such action lies in the absence of contract or fiduciary relationship. n my judgement& however& these facts though clearly relevant to the 0uestion ofhonesty if this had been in issue& are not sufficient to establish any specialrelationship involving a duty of care even if it was open to extend the sphere ofspecial relationship beyond that of contract and fiduciary relationship.

The judgement of Mc<air 2 was affirmed by the +ourt of )ppeal on the basis of authoritybinding on the +ourt of )ppeal and that there was no sufficient close relationshipbetween these parties to give rise to any duty.

The case was before the 'ouse of #ords and the #aw #ords who heard the appeal were

#ord eid& #ord Morris of 4orth-Q-$uesh !read by #ord 'odson"& #ord 'odson& #ord 3evlin!read by #ord *earce" and #ord *earce.

ssue:Chether the respondents were liableD

)rguments by the appellants:The argument was based on the decision of 3onoghue / %tevenson on thenotion of proximity.

)rgument by the respondentsThat they owed the appellants no duty of care and in any case they had given

their replies with a disclaimer of liability.

'olding:)ppeal dismissed !case decided in favour of the respondents".

atio 3ecidendi:Chen a mere in0uiry is made by one baker of another& who stands in no specialrelationship to him& then in the absence of special circumstances from which acontract to be careful can be inferred&--- there is no duty except the duty ofcommon honesty---.

1biter dicta:f& in the ordinary course of business or professional affairs& a person seeksinformation or advise from another& who is not under contractual or fiduciaryobligation to give information or advise& in +ircumstances in which a reason ableman so asked would know that he was being trusted& or that his skill or judgementwas being relied on& and the person so asked chooses to give the information oradvise without clearly so 0ualifying his answer as to show that he does notaccept responsibility& then the person replying accept a legal duty to exercisesuch care as the circumstances re0uire in making his reply; and for failure toexercise that care action for negligence will lie if damage results.

<ote: n this case the #aw #ords drew a distinction between liability likely to arise whenthere is a contract between the parties or there is fiduciary relationship. They also



42

underscored the effect a disclaimer when a person gives advise to another withwhom he has no contract or fiduciary relationship.The #aw #ords emphasi,ed the point that the banker-customer relationship wassuch that& the banker will not at any point release information to any other personthat will prejudice hisher client.

Chat came out of the speeches of the #aw #ords:#ord aid responding to the authority of 3onoghue / %tevenson& acknowledgedthe importance of that decision& but maintained that& that decision was notintended to disregard existing authorities. The law must treat negligent wordsdifferently from negligent acts.The #aw ought so far as possible to reflect the standards of the reasonable man&and that is what 3onoghue / %tevenson sets out to do. The most obviousdifference between negligent words and negligent acts lies in this:Ouite careful people often express definite opinions on social or informaloccasions& even when they see that others are likely to be influenced by them;and they often do that without taking care which they would take if asked oftheir opinion professionally& or in a business connection.

)nother obvious difference is that a negligently made article will only cause oneaccident& so it is not very difficult to find the necessary degree of proximity orneighbourhood between the negligent manufacturer and the injured person& 4utwords can be broadcast with or without the consent or the foresight of thespeaker or writer. t would be one thing to say that the speaker owes a duty to alimited class& but it would be going very far to say that he owes a duty to everyultimate +onsumerN who acts on those words to his detriment. %o it seems to methat there is good sense behind our present law that in general an innocent butnegligent misrepresentation gives no cause of action. There must be somethingmore than the mere statement.

Then the judge examined authorities:

The most natural re0uirement would be that expressly or by implication from thecircumstances the speaker or writer has undertaken some responsibility---. t mustnow be taken that 3erry / *eek did not establish any universal rule that in theabsence of +ontract an innocent but negligent misrepresentation can not giverise to an action. 4ut as it is shown in this 'ouse <octon / #ord )shburton& that it istoo much widly stated: To found an action for damages there must be acontract and breach and fraud.N 3erry / *eek. Ce cannot therefore accept asaccurate the numerous statements to that effect in cases between =@@> and=>=I and we now determine the extent of the exceptions to that rule.

+ases in which besides that obligation arising from honesty the breach may giverise to damages:

• +ases where a person within whose special province it lay to know aparticular fault was given an erroneous answer to an in0uiry made withregard to it by a person desirous of ascertaining the fact for the purpose ofdetermining his course.

• +onstructive fraudN

• breach of special duty&#ord Morris of 4arth-Q-$uest had the following to say:

Ouait apart from employment or contract there may be circumstances in whicha duty to exercise care will a rise if a service is voluntarily undertaken.) medical doctor may unexpectedly come across an unconscious man& who is acomplete stranger to him& and who is in urgent need of skilled attention: f the



43

medical man& following the fine tradition of his profession& proceeds to treat theunconscious man he must exercise reasonable skill and care in doing so.

n the case of a banker the judge said:f someone who was not a customer of a bank made a formal approach to thebank with a definite re0uest that the bank would give him deliberate advise as to

certain financial matters of a nature with which the bank dealt the bank wouldbe under no obligation to accede to the re0uest; if however they undertook&though gratuitously& to give deliberate advise they would be under a duty toexercise reasonable care in doing it.

There can be no negligence unless there is a duty but that duty may arise in many ways:They may be duties owed to the world at large: alterum non lacdere. There maybe duties arising from a relationship without the interrention of contract in theordinary sense of the term& such as duties of a trustee to his +estui 0ue trust or of aguardian to his ward.

1n someone who possesses special skills:My #ords consider that it follows and that it should not be regarded as settledthat& if someone possesses a special skill undertakes& 0uite irrespective of

contract& to apply that skill for the assistance of another person who relies on suchskill& a duty of care arises. The fact that the service is to be given by means of& orby the instrumentality of& words can make no difference. 9urthermore& if in asphere in which a person is so placed that others could reasonably rely on his judgement or skill or on his ability to make careful in0uiry& a person takes it onhimself to give information or advise to& or to allow his information or advise to bepassed on to& another person who& as he knows or should know will placereliance on it& then the duty of care will arise.

#ord 'odson had the following to say: shall refer to certain cases which support the view that apart from what areusually called fiduciary relationships such as those between trustee and

+estui0ue trust& solicitor and client& parent and child or guardian and ward thereare other circumstances in which the law imposes a duty to be careful& which isnot limited to a duty to be careful to avoid personal injury or injury to property butcovers a duty to avoid inflicting pecuniary loss provided always that there issufficiently close relationship to give rise to a duty of care.t is impossible to catalogue the special features which must exist for a duty ofcare to a rise;

f in a sphere where a person is not placed that others could reasonablyrely on his judgement or skill or his ability to make careful in0uiry suchperson takes it on himself to give information or advise to& or allows hisinformation or advise to be passed onto& another person who& as heknows& or should know& will place reliance on it& then a duty of care willarise.

#ord 3evlin delt with on how English law has developed:1n the authority of 3onoghue / %tevenson come next to 3onoghue /%tevenson. n his celebrated speech in that case #ord )tkin did two things. 'estarted with what he described as a general conception and from thatconception he formulated a specific proposition of law. n between he gave awarning against the danger of starting propositions of law in wider terms than isnecessary& least essential factors be omitted in a wider survey and the inherentadaptability of English law be unduly restricted.NChat #ord )tkin calledN a general conception of relations giving rise to duty ofcareN is now often referred to as the principle of proximityN. Qou must takereasonable care to avoid acts or omissions which you can reasonably foreseewould be likely to injure your neighbour& n the eyes of the law your neighbour is a



44

person who is so closely and directly affected by your act that you oughtreasonably to have him in contemplation as being so affected when yourdirecting your mind to the acts or omissions which are called in 0uestion.

Chat did the above proposition mean in the light of the case in point:<ow it is in my opinion a sensible application of what #ord )tkin was saying for a

judge to be invited on the facts of a particular case to say whether or not therewas proximityN between the plaintiff and the defendant.That would be a misuse of a general conception and it is not the way in whichEnglish law develops. Chat #ord )tkin did was to use his general conception toopen up a category of cases giving rise to a special duty. t was already clearthat the law recogni,ed the existence of such a duty in the category of articlesthat were dangerous in themselves.Chat 3onoghue / %tevenson did may be described either as the widening of anold category or as the creating of a new and similar one. The generalconception can be used to produce other categories in the same way. )nexisting category grows as instances of its application multiply& until the timecomes when the cell divides.The /alue of 3onoghue / %tevenson to 'adley 4 / 'eller- The real value of

3onoghue / %tevenson to the argument in this care is that it shows how the lawcan be developed to solve particular problems. s the relationship between theparties in this case such that it can be brought within a category giving rise to aspecial dutyD)lways in English law the first step in such an in0uiry is to see how far theauthorities have gone& for new categories in the law do not spring in existenceovernight.t would be surprising if the sort of problem that is created by the facts of this casehad never until recently a risen in English law. )s a problem it is a by product ofthe doctrine of consideration.f the respondent had made a norminal charge for the reference& the problemwould not exist. t were possible in English law to construct a contract without

consideration& the problem would be more at once out of the first and generalphase into the particular; and the 0uestion would be& not whether on the facts ofthe case there was special relationship& but whether on the facts of the casethere was a contract.) promise given without consideration to perform a service cannot be enforcedas a contract by the promisee& but if the service is in fact performed and donenegligently& the promise can recover in an action in tort.

The judge drew a distinction between words and acts or omissions.#ord *earce had the following to say after 0uoting a passage by the #ord +hancellor/iscount 'aldene in <octon / #ord )shburton:

The law of negligence has been deliberately limited in its range by the courts5insistence that there can be no actionable negligence in /acuo withoutexistence of some duty to the plaintiff. <egligence in word creates problemsdifferent from those of negligence in act. Cords are more violable than deeds.They travel fast and far a field. They are used without being expanded and takeeffect in combination with innumerable facts and other words. Qet they aredangerous and cause vast financial damage.6+ites $rant / )stralia (nitting Mills8 then went on to say: f the mere hearing orreading of words were held to create proximity& there might be no limit& to theperson to whom the speaker or writer could be liable. 3amage by negligent actsto persons or property on the other hand& is more visible and obvious& its limits aremore easily defined and it is with this damage that the earlier cases were moreconcerned.

Then the 2udge examined the development of the law of liability on the basis of words:



45

The case of *asley / 9reeman !=H@>" which laid down a duty of honesty in wordsto the whole world at large-creating a remedy designed to protect theeconomic as opposed to the physical interests of the community. The extentionwas made in 3erry / *eek a duty to use reasonable care in the presentation ofthe document called a valuation. 4ut the ratio decidendi of 3erry / *eek is said

to have been wrongly applied in #e#ievre / $ould as explained by #ord 3enning#2 in +andler / +rane +hristmas and in <octon / #ord )shburton it was said thatthe authority of 3erry / *eek has been too much emphasi,ed.

+ommenting on the decision of the 'ouse of #ords in 3onoghue / %tevenson #ord*earce said:

The range of negligence in act was greatly extended in 3onoghue v %tevensonon the wide principle of the good neighbour F %+ utere tuo alienuum non#aedas. 'ow far economic loss alone without some physical or material tosupport it& can afford a cause of negligence by actD The 'ouse of #ords in

3onoghue / %tevenson was& in fact& dealing with negligent acts causing physicaldamage and the opinion cannot be read as if they were dealing withnegligence in words causing economic damage. That case can no more help inthis sphere than by affording some analogy from the broad outlook which itimposed on the law relating to physical negligence.

)s to the position of English law on <egligent acts and statements to day read:• 'ome office / 3orset Qatch +o #td 6=>HA8

B )## E B>I;6=>HA8 )+ =AAI at =ABJ.

• )nns / Merton #andon 4orough& 6=>HH8 B)## E I>B; 6=>H@8 )+ HB@

• +arpro ndustries *#+ / 3ickman& 6=>>A8 )##E ?J@ at ?H=-JA@ +h.3.

• 3ans K )noth / adcliff K 1thers 6=>>A8B )#E ?LJ !*+"

• 4urton v slington 'ealth )uthority 6=>>B8L)##E @LL !+)"

• $oodwill v *regnancy %ervice 6=>>J8B )## E =J= at =JI F =JJ !+)"

• n Tan,ania:+ocacola (wan,a #td v Cilson 4e,ibwa&!*+" +ivil )ppeal <o LL of =>>> !'+" !nreported" (yando 2 !now deceased"

18,rancis #$aire 0 #ationa% Insurance Cor+oration>

1724 HCDn 138 1734 E,A 6?

Material 9actsThe plaintiff on =?IJ@ !a driver and mechanic" while sitting in his motor vehicle&parked on its correct side of the road& lost his arm when another vehicle ownedby Mr 2ames Mushi and driven by his driver collided with the plaintiff5s vehicle.%ubse0uently the driver was charged and convicted on counts of carelessdriving& failing to stop after an accident& failing to report an accident and drivinga vehicle on a public road with defective brakes. The plaintiff duly filed an action



46

in the 'igh +ourt against the owner of the vehicle and his driver& not being ofsufficient means was granted leave to sue in forma pauperis !as a pauper". Theplaintiff5s advocate was informed by the police officer who investigated thecase& that the vehicle in 0uestion at the material time was being insured by the<ational nsurance +orporation of Tan,ania #td.

1n telephoning the corporation through the motor vehicle claims departmentthe plaintiff5s lawyer was informed by a clerk in charge of the department& thatMr. Mushi5s vehicle was in fact insured by the corporation. There followedcorrespondences between the +orporation and the plaintiff5s lawyer& andsubse0uently the plaintiff filed a claim against the owner of the vehicle Mr. Mushiand the driver. The owner5s defence was that he was not liable but the driveradmitted having been at fault and that at the time of the accident he wasperforming an official duty.The case came before the former +hief 2ustice $eorges who gave judgement infavour of the plaintiff and awarded him %hs ?A&AAA7 damages.The plaintiff5s lawyer attempted to secure damages from the corporation& thecorporation repudiated liability. The plaintiff duly filed an action in tort againstthe corporation in wrongly informing him that the vehicle of Mr. Mushi was insured

by the corporation& when in fact the vehicle was insured by the 4ritish ndia$eneral nsurance +ompany and at the time such information was revealed theplaintiff was already time barred.

ssues) number of interrelated issues were agreed upon. They were as follows:

• Chether Mr. Mwaikambo of the defendant company verbally presented to theplaintiff5s counsel that Mr. Mushi5s vehicle was insured on the date of theaccidentD

• Chether the defendant5s letter addressed to the plaintiff5s advocate representedthat Mr. Mushi was their insured in respect of motor vehicle registration <o T3<

?=@ was alleged in the plaintD

• Chether the defendant company by their letter addressed to the plaintiff5slawyer !)dvocate" put the plaintiff on in0uiry as to the +ompany with which themotor vehicle registration number T3< ?=@ was insured at the date of theaccident as alleged in the plaintD

• Chether the answer to ssues !=" and !B" were in the affirmative the defendantcompany was under a duty to the plaintiff to make representations with careD

• f the answer to issue <o. I was in the affirmative& whether the defendantcompany made the said representations negligently and thereby admitted abreach of dutyD

• f the answer to issue <o ? was in the affirmative whether the plaintiff had sufferedloss and damage as a result of such negligenceD

• f the answer to issue J was in the affirmative what relief was the plaintiff entitledD

)rguments by +ounsel for the plaintiff:) servant or agent of the defendant did negligently drive the vehicle in 0uestionthat it collided with the car of the plaintiff causing the plaintiff personal injury andresulting into the plaintiff5s lose his right arm.



47

That the plaintiff instituted a +ivil +ase in the 'igh +ourt against the defendantsand the results of the proceedings were infavour of the plaintiff being awardeddamages in the sum of ?A&AAA7That prior to the nstitution of proceedings the plaintiff5s advocate did contactone agent of the <ational nsurance +orporation in the claims partment. The

defendants were the sole company permitted by law to undertake the nsuranceof /ehicles in Tan,ania against third party risks.The plaintiff5s advocate in0uired whether the vehicle that caused an accidentwas in fact insured by the corporation and the agent of the defendant didrepresent to the said advocate that the said vehicle was insured at the materialdate.That acting on the said representation& the plaintiff5s advocate immediately afterinstituting the proceedings did notify the defendant of the institution ofproceedings by letter& no notification to any other company was made.That later the defendant company through a letter denied that the said vehiclewas insured with them at the material time of the accident and refused to satisfythe judgement as pleaded.That the defendant company were under a duty to the plaintiff to make the

statements and representations with care.)rguments by +ounsel for defendants:

The defendant denied that at the time of accident& it was the sole companypermitted by law to undertake Tan,ania insurance of vehicles against any thirdparty risks.That the advocate of the plaintiff did not contact the agent of the defendantcompany who made the allegation that the said vehicle was at the material timeinsured by the defendant company;The communication by letter to the plaintiff5s advocate had denied that thecompany was liable and therefore refused to satisfy the judgement.That the defendant company was not under any duty to the plaintiff to make thealleged or any statement or representations& that there was no breach of the

alleged duty& that the defendant was not guilty of any negligence to the plaintiff.

'olding:2udgement for the plaintiff

atio 3ecidendi:Chen one person has by his declaration& act or omission& intentionally caused orpermitted another person to believe a thing to be true and to act upon suchbelief& neither he nor his representative shall be allowed& in any suit orproceedings between himself and such person or his representative& to deny thetruth of that thing.

mportant remarks by 4iron& 2. !as he then was"=.

eading the answers given by the agent of the +ompany to the )dvocate ofthe plaintiff:Mr. +hakera5s version of the telephone conversation& he actually telephonedwhen the plaintiff called at his office en0uiring on the progress of the case&was that he first of all referred to his letter of March I--- and en0uired from Mr.Mwaikambo whether the vehicle in 0uestion was insured by the +orporation.Mr. Mwaikambo not only confirmed& that it was& but asked rhetorically whoelse could have insured the /ehicleDN

B. t is abundantly clear from Mr. Mwaikambo5s evidence that when havingobtained the file referred to by him& which he himself said it was motor claim



48

file& Evidence& there was& would say beyond a shadow of doubt only oneletter on the file---)s this was the only letter on the file that which Mr. Mwaikambo consulted& hemust have known& or at least should have known as it so explicitly stated& thatthe accident occurred on =? )pril& and Mr. +hakera5s 0uery was in respect of

that accident& Mr. Mwaikambo himself admitted that there had been noother claim brought against the vehicle.

L. n answering ssues four and five 2ustice 4iron made reference to the 'ouse of#ords decisions& which at that time were of persuasive value. This came aboutthe fact that at independence appeals no longer lay to the *rivy +ouncil!see Module /" from the courts in East )frica and the +ourt of )ppeal for East)frica in =>J@ made a decision in 3odhia / <ational K $rindlays 4ank #td&6=>HA8 E) on the rules of precedent applicable to East )frica which affectedthe +ourt5s attitude towards foreign decisions.!a" 0uoted a remark by #ord MacMillan in 3onoghue / %tevenson& 6=>LB8 )+

?JB;

The categories of negligence are never closed.To this remark 2ustice 4iron !as he then was" went on to say;

)lthough the authorities have distinguished between injury or damageresulting from statements oral or written& and physical acts& think& there isa divergence of view and attitude adopted by )ustralian +ourts& and the)merican +ourts are much more liberal than the English ones& mustconfess my inability to distinguish between statements and other physicalacts& after all& a statement is a physical act& whether oral or written& and to0uote the old adage& the pen is mightier than the word& to which add&that the tongue could be e0ually as mischievous as the pen !emphasisadded".

'owever& in England the matter has now& think& been finally settled bythe 'ouse of #ords5 case of 'edley 4yrne / 'eller K *artners 6=>JL8 B )##E ?H?. think it is sufficient to 0uote the head-notes as follows:f& in the ordinary course of business or professional affairs& a person seeksinformation or advise from another& who is not under contractual orfiduciary obligation to give the information or advice& in circumstances inwhich a reasonable man so asked would know that he was being trustedor that his skill or judgement was being relied on& and the person askedchooses to give the information or advice without deeply so 0ualifying hisanswer as to show that he does not accept responsibility& then the personreplying accepts a legal duty to exercise such care as the circumstancesre0uire in making his reply; and for a failure to exercise that care actionfor negligence will lie if damage resultsN.

)s you might notice this is an fN proposition not binding on the judge at all. )t thesame time the judge reali,ed that English decisions or authorities were no longerbinding:

9or the record ought to add that& although English authorities are no longerbinding on this court& can sense reason for holding that the law as laid down bythe 'ouse of #ords& is any different in this country& but in the contrary& have notthe slightest hesitation in holding that it is the same. !emphasis added"



49

4ut because of the seemingly inade0uacy of the case law authorities& the judge basedhis judgement !decision" more firmly by employing the 3octrine of Estoppel from the #awof Evidence )ct& =>JH %.=BL:

---when a declaration is made by an employee in the ordinary course of his dutiesor employment is liable for such a declaration.

'e went on further to say:There is a duty cast on an insurance company from whom an in0uiry is made asto whether a certain vehicle is covered by that company& to exercise the utmostcare and diligence to give the correct information& as a failure to do so wouldoccasion loss or damage to the in0uirer. would go even further to say the law has established a relationship between thepublic and insurance companies and laid a fiduciary relationship or obligation onthe part of nsurance +ompanies& to exercise all due care and diligence in givingproper and true information.

The judge further commented that:

)t the time the <ational nsurance corporation had a monopoly of nsurancebusiness in Tan,ania as specifically provided for by the law. f courts did notprotect the public then the corporation was likely to conduct itself in a mannerinjurious to the community at large.Therefore have not the slightest hesitation in holding that the +orporation wasunder the duty to exercise due care and diligence in giving Mr +hakera a trueanswer to his in0uiry& as to whether the vehicle which caused so much damageand injury to the plaintiff was insured with the corporation at the material time.4e it as it may& it is possible that Mr. Mwaikambo failed to consult the policy fileand assumed that the vehicle must have been insured with the corporation&because by nsurance !/esting of nterests and egulations" )ct& =>JH& *art /s&=Lthe corporation was granted monopoly in this country for handling such

nsurance.N

<otice the judge5s hunch. The decision was not based on precedents by a statutoryprovision.

TO.IC TWO: &TATFTOR I#TER.RETATIO#

&TATFTE& GE#ERALL

• *arliament is the sole law maker and those persons or body of persons delegatedwith such powers.

• +ourts interprete the law !<dyanabo5s case and ensuring debate between The%peaker& *rofessor %hivji and the Tanganyika #aw %ociety 4unge <ews /ol& ?& =J ofBAAB8

• 1nce a statute is in force it must be applied by the courts. 2udges have a judicial notice of all public )ctsN& a convenient device whereby knowledge ofcertain matters are attributed to judges& such matters need not be proved inevidence every time they arise in a caseN.

• f a judge makes a decision without reference to a statute !relevant to a matter"either because he is ignorant of it or it was not cited to him by a counsel& it wouldprovide a ground for appeal.



50

• 2udges are re0uired to take judicial notice of +ommunity )cts or Treaties !TheEast )frican +ommunity".

• f a %tatutory provision is ambiguous the judge must interprete it before he canapply it.

• %tatutory interpretation is a precise art involving the application of certain rules.They are not rules of law because there is no compulsion to apply them.There is no consistency of application when they are applied. +ourts usepresumptions too.

*arliamentary and 3elegated #egislation; relationship between *arliament andthe 2udiciary

= )dvantages of %tatute #aw !at the expense of judge- made law"• *arliament is supreme: a statute can abrogate any rule of law !in a

previous statute or case law".

•

2udges have no power to abrogate a provision !<dyanabo5s +ase&the /alidity of 2udicial )ctivism- Mwalusanya 2 !as he then was on thebasis of un constitutionality of certain laws in Tan,ania".

• Chen *arliament abolishes a rule of law it will only do so for the futureso that previous transactions based on the old law are not affected!<ormally new laws will contain within it Transitional andconse0uential *rovisionsN".

• 1ccasionally *arliament passes legislation which has retrospectiveeffects !brahim5s +ase 6=>JL8 E) =H>& ganda v <yengeya 6=>JL8 E)=AJ& Municipality of Mombasa v <yali 6=>JL8 E); *atel v 6=>J@8 E) >H8

• The +onstitutional doctrine of separation of *owers is to a greaterextent satisfied by legislation than by judge-made law or +ase-#aw.*arliament makes laws but does not enforce them& whereas judge-made law is enforced by the very people who make it.

• %tatute law can be known in advance& case law is known at the timethat it is made.

• ) statute settles doubtful situations.

• *arliament is more in touch with the 1utside Corld than is the judiciaryand can 0uickly turn public opinion and social policy into law.

• *arliament or the #egislature is free to make law on any subject itthinks fit& +ourts are constrained by the facts of the case before them.

B. +onsolidating %tatutes and +odifying %tatutes

+onsolidation F the re-enactment in one statute some topic in lawpreviously contained in several different statutes& but without changingthe law. )ll +onsolidation )ct are designed to bring together in oneconvenient& #ucid and economic form a number of enactments related insubject matter-previously scattered over the same statute-bookN



51

) consolidating statute is presumed not to change the law but only to re-enact itin a different place. Chen interpreting such a statute& you may apply casesalready decided on the meaning of the replaced )cts. n cases of ambiguity&the )cts which have been consolidated may themselves be scrutinised.

L. +odification- a restatement in one place the law or a particular topic&which if necessary& may also alter the law.

I. *reparation of #egislation

The responsibility for initiating the vast majority of modern legislation restson the government. *rivate member5s 4ills are nlikely to become lawbecause of shortage of *arliamentary time.#egislative proposals of a particular government department may beapproved in principle in the +abinet and then handed to the*arliamentary draftsman to be put into legal language inform of a 4ill.

%ometimes a 4ill is preceded by a Chite *aper containing government5sproposals for legislation.#egal language is used becauseSto legislate by using precise wordsseeking to cover every conceivable situation and allow no loopholes.

?. +ommencement of an )ct of *arliament) 4ill consists of clauses& sub-clauses and paragraphs.

)fter it has been through its *arliamentary stages and has received*residential

)ssent !or royal assent in England" it becomes an )ct& consisting ofsections& subsections and paragraphs.

)n )ct comes into force on a date specified in the +ommencementsection&N if any. f there is no commencement section& there may be anappointed day sectionN authorising whoever may be to implement the)ct by way or means of an 1rder or <otice in the $overnment $a,ette.

The )ct may provide that different parts can be brought into effect ondifferent dates.

)n appointed day sectionN gives the Minister discretion to bring the )ctor parts of it& into effect when he feels it is appropriate to do so. 'ecannot be compelled to implement the )ct on any particular date. 'isdiscretion is not completely unfettered.

*arliament must be taken to intend that legislation will come into force atsometime and that its commencement will not entirely depend onministerial whim.f there is no commencement section and no appointed day section& the)ct comes into operation on the day of assentS.

%ource: Terence ngman& The English #egal *rocess& @th Edn.4lackstone *ress #td BAAA pp BLH-BIB

Chat is a %tatuteD%tatute& signifies an )ct of the legislature !Tomlin5s #aw 3ictionary"



52

) written law as distinguished from a customary law or law of use andwont: a type of subordinate legislation applied generallyto be framed by niversity 6%=& ndian +ontract

)ct !> of =>HB" %. B@!="& )ligarh Muslim niversity )ct !IA of =>BA"8

%tatute law %tatute lawN is fre0uently used interchangeably with statute;but the term is broader in its meaning& and includes notonly statutes as already defined& but also the judicialinterpretation and application of such statutes.

%ource: *. amanatha )iyar& +oncise #aw 3ictionary eprint Edn.BAA? Cadnwa K +ompany <agpur p @AB&

%tatute #aw& regulation& enactment& )ct& 4ill& 3ecree& Edict& ule& uling&esolution& *romulgation& Measure& Motion& 3ictum& +ommand& 1rder&%tipulation& +ommandment& 3irective& *ronouncement& atification&*roclamation& 3ictate& 3iktat& 9iat& +ovenant& 3emand& 4y-law&

6<ew 1xford The%aurus of English Bnd Edn 1xf.. *ress BAAI p >AH.

%tatute !=" ) law or decree made by a sovereign or legislative authority!B" )n enactment& containing one or more legislative provisions& made bythe legislature of country at one time& expressed in a formal document;the document in which such an enactment is expressed.

6/ol B 1xford niversal 3ictionary llustrated& Mt B& Third Edn 1xford& )t the+larendon *ress #ondon =>HJ p B==?.8

ntroduction

*arliament enacts laws !statutes" in a form of documents. %tatutes arepieces of legislation made by *arliament and other persons !natural orlegal" given !delegated" authority to issue the same. %tatutes can be asource of controversy. The words contained in them in the course oflitigation may have different meanings and therefore engage lawyersand courts in ascertaining their meaning.

%tatutory nterpretation:)ccording to Michael ander !=>@A": LI- LH %tatutory interpretation is aparticular form of a general problem F the understanding of meaning or&broadly still communication.Even the simplest statement usually relies on an understanding of habits&knowledge& values and purposes shared between the author andrecipient of the communication.

nterpretation is not something that happens only in cases of doubt ordifficulty& it happens whenever anyone tries to understand the languageused by another person. nterpretation occurs whenever there iscommunication& the problem of interpretation occurs only whensomething goes wrong.

nstances in which things go wrong in legal affairs:• Chen dealing with legal documents like statutes& contracts& leases&

mortgages& wills& bills of exchange. These are complex. Their subject-matter is difficult and the language used can be a mixture of ordinary



53

and technical language !jargon"& they are long winded in wordingwhich militates against simplicity and clarify of expression.

• #egal documents speak not only to the present& but are also intendedto deal with the future. This notwithstanding& no draftsman can think

of everything.

• a tendency for legal documents to give rise to difficulties& reflectingproblems which touch on different conflicting interests.

)ccording to *eter $oodrich& Cilliam Twining and 3avid Miers legal texts arecoercive texts. They exist in a hierarchy and corresponding to such hierarchythere are techni0ues of dealing with each level. %tatutory texts or legislative rulesare a supreme source of law in the +ommon #aw tradition.

Chat do we mean by the term nterpretation or +onstructionD)ccording to E.). 3redges construction means a process by which allstatutes like other writings are necessarily subject when read by anyone. t

is a process relating to the manner of ascertaining the intention of thelegislature.

The term interpretation means a process by which a judge !or any otherperson" obtains a meaning from the words of a statute. t may also meanhow a dispute about words and their meaning is arrived at so that there isconsistency and certainty !ex rationale legis" in the law.

Those two processes are involved because the language of the law is aspecialised language. The categories and concepts used in a piece oflegislation when translated into an actual case is apt to bring forward adifferent meaning altogether.

egina v 1gibwang in +ommonwealth 2udicial 2ournal /ol. = <o H May=>HJ Chen is a bird not a birdDN4lue 2 !+anadian %upreme +ourt"

an appeal by the +rown by way of a case stated from a decisionof the magistrate ac0uitting the accused of a charge under The%mall 4irds )ct& .%.1.& =>JA& c. HBI& %.B&The facts were not in dispute. 9red 1jibway& an ndian& was ridinghis pony through Oueens *ark. 4eing impoverished& and havingbeen forced to pledge his saddle& he substituted a pillow in lieu ofthe said saddle. 1n this particular day accuser5s misfortune wasfurther heightened by the circumstances of his pony breaking itsright foreleg. n accord with ndian +ustom& the accused thenshot the pony to relieve it of its awkwardness.The accused was then charged with having breached The %mall4irds )ct& %.B which states:

)nyone maiming& injuring or killing a small bird is guilty of anoffence and subject to a fine not in excess of two hundreddollars.

The learned magistrate ac0uitted the accused& holding& in fact&that he killed his horse and not a small bird.

Cith respect& cannot agree:n the light of the definition section my course is 0uite clear.%ection = defines birdN as a two legged animal covered withfeathers.NThere can be no doubt that this case is covered by this section.



54

)rguments by +ounsel!=" 'e submitted that the evidence of the expert clearly

concluded that the animal in 0uestion was a pony and nota bird.

The judge replied that this is not an issue. 'e stated& Ce are not

interested whether the animal in 0uestion is a bird or not in fact&but whether it is one in law. %tatutory interpretation has forcedmany a horse to eat birdseed for the rest of its life.

!B" +ounsel contended that the neighing noise emitted by theanimal could not possibly be produced by a bird.

The judge replied that with respect to the sounds emitted by ananimal are relevant to its nature& for a bird is no less a bird becauseit is silent.

!L" +ounsel also contended that the neighing noise emittedby the animal could not possibly be produced by a bird&but was actually a pony.

The judge replied& obviously this avoids the ssue. The issue is notwhether the animal was ridden& or not& but whether it was shot ornot& for to ride a pony or a bird is no offence at all. believecounsel now sees his mistake.

!I" +ounsels contended that the iron shoe found on theanimal decisively dis0ualified it from a bird.

eply by the judge was that must inform counsel& however& thathow an animal dresses is of no concern to the courts.N

!?" +ounsel relied on the decision in e-+hicadee where he

contended that in similar circumstances the accused wasac0uitted.

The judge5s reply was that& 'owever& this is a horse of a differentcolour. ) close reading of the case indicates that the animal in0uestion there was not a small bird& but& in fact& a midget of amuch larger species. Therefore& that case is in applicable to ourfacts.N

!J" +ounsel finally submitted that the word smallN in the title%mall 4irds )ct refers not to 4irdsN but to )ctN& making itthe %mall )ct relating to 4irds.

The judge5s reply with respect& counsel did not do his homeworkvery well& for the #arge 4irds )ct& .%.1 =>JA& +.HB? is just as small. fpressed& need only refer to The %mall #oans )ct& %.1. =>JA& +. HBH&which is twice as large as the #arge 4irds )ct.

2udge5s reasons for the 2udgement3ifferent things may take on the same meaning for differentpurposes. 9or the purpose of the %mall 4irds )ct& all two-legged&feather covered animals are birds. This& of course& does not implythat only two-legged animals 0ualify& for the legislative intent is tomake two legs merely. The minimum re0uirement 6Emphasisadded8The statute therefore contemplated multi-legged animals withfeathers as well.



55

!H" +ounsel submitted that having regard to the purpose of

the statute only small animals naturally coveredN withfeathers could have been contemplated.

2udges reply 'owever& had this been the intention of the

legislature& am certain that the phrase naturally coveredN wouldhave been expressly inserted just as longN was inserted in the#ongshoremen5s )ctN.Therefore& a horse with feathers on its back must be deemed forthe purposes of this )ct to be a bird& and a fortiori& a pony withfeathers on its back is a small bird.

!@" +ounsel posed the following rhetorical 0uestion:f the pillow had been removed prior to the shooting& would theanimal still be a birdD

2udge5s replyN To this let me answer rhetonically: s a bird any less of abird without its feathersDN 6Emphasis added8

)ppeal )llowed.

O !i" s this a case of Mischief or plain meaning& purpose or context inwhich the words appearedD

!ii" n a case of this kind is it possible to invoke the Eusdem generisruleD

Theoretical and +onstitutional )ssumptions n egina v 1bijway we have seenthe judge5s endeavour to determine the meaning of the word bird in the light ofthe facts in 0uestion& different from the +ounsel. Chat considerations guided the judgeD

n this section we are going to consider the types of guides which judges&magistrates& counsels& members of tribunals& +ivil servants& officials in localauthorities& law teachers& students and others use in& interpreting variousdocuments 6Twining K Miers +h.=A8

)ccording to +ross. & %tatutory nterpretation =>@H Bnd Edn. The essentialrule of statutory interpretation is that words should be given the ordinarymeaning in which they are used. 62ustice. $.*. %ingh >th Edn BAAI pp I? F=A>8 9rom the foregoing case& it is clear that it is rare in law that words willbear their normal and ordinary meaning. This arises because drafting isnot always clear as one might expect it to be& and& owing to the lack ofhuman prescience& there will always be cases for which inade0uateprovision is made by the statute.

+ontext ule: )uthors on %tatutory interpretation do agree withupert& +ross& that& there are three contexts in which judicialcanons can be studied namely:

!a" a statute should be seen as part of the political process& thus itsimplementation must bear in mind its objectives !purpose or policybehind its enactment".

62ustice $.*. %ingh >th Ed BAAI pp L= F I?8

!b" The subjects of a statute or law are human or legal persons whoseek to organise their activities or lives in the light of their powersand duties. t involves the exercise of freedom by the subject in



56

making a choice on what to do to enhance predictability of judicial interpretation. n the light of these canons of statutoryinterpretation to be learnt must be seen as mere guides not hardand fast rules of law.

!c"

n English #aw there is no doctrine of desuetude. %tatutes nevercease to apply because they are obsolete. There must be repeal!express or by implication".

%tatutes and 'istoryThe way courts approach statutory interpretation vary according to the judges5perception of their constitutional role at any given period in 0uestion. The history andconstitutional role may be reflected through the +ourt5s or judges search for the mischiefof the statute in 0uestion 64i 'awa Mohamed5s case <dyanabo5s case& 2oseph Cariobav %teven Casira5s case& / Mbushu alias 3ominic Mnyaroje5s case etc8.)ccording to onald 3workin& #aws Empire& 9outana *ress& =>@J p L=ISstatutes shouldbe read& not& according to what judges believe would make them best& but accordingto what the legislators who actually adopted them intended 62ustice $.*. %ingh >th Edn

BAAI ppB-L=8.t is true that in )merican legal practice& judges constantly refer to the various statementsof +ongressmen and other #egislators makeS to form the legislative history of the )ct&which they must respect.This view is not peculiar to the judges in the nited %tates of )merica& to a certain extent&4ritish as well as other +ommonwealth judges and Tan,ania judges in particular do makereference to the legislative history in order to interprete the import of words and phrasesin a given statute 64i 'awa Mohamed5s +ase& Carioba v Casira5s case the wordsdomestic servicesN and the words Takrima and corruptionN.

2urisprudential ssues to nterpretationThe key jurisprudential issues which relate to statutory interpretation are the basic

approach by the judges when interpreting statutes& the character of the canons and themethods adopted in interpreting statutes.n examining the basic judges5 approach to statutory interpretation the following0uestions are relevant:Chat do judges seek to interpreteDChat are the relationships conceived between the text of the statute and the ntentionof *arliamentDChat does interpretation involveD'ow does interpretation differ from the application of statutory provisions or from itsamendmentDChen dealing with canons and methods another relevant 0uestion is what is the status ofthe rules and principles often invoked by judges in explaining their decisions whethernormal common law methods for judicial explanation of legal rules are statutoryinterpretationD

)ccording 4enion:6T8 he nit of in0uiryN in statutory interpretation is an enactment whose legalmeaning in relation to a particular factual situation falls to be determinedN.

This may be done by either looking at a single )ct of *arliament or a single provisionwithin it or by combining elements from several )cts& then proceed to determine themeaning in the light of the principles of interpretation or construction 6egina v 1bijway5scase8.%tatutory interpretation may involve determining the meaning of a text contained in oneor more documents. 2udges and writers on the subject discuss interpreting the Cill of thelegislator or give effect to the ntention of *arliament. These two phrases seem to



57

suggest that there are two units of in0uiry in statutory interpretation namely: the statutorytext and the ntention of *arliament. 2udges must seek to harmonise the two.There is a deception in the above proposition. nder English law the view is that the twoviews !above" are closely connected& primacy must be given to the text in which theintention of *arliament has been expressed.

Cords must be understood in relation to the subject-matter of the legislation. The judgemust consider the reason and the spirit of it& or what caused the legislator to enact it6%ingida T+ / T*T+& 6=>H>8 #Tn ll8. The role of the judge is to seek the intention of thelegislative author from what is written in the text and seek to construct a text on the basisof the subjective intention of the author 6egina v %ecretary of %tate of 'ealth!espondent" ex parte Ouintavalle !on behalf of *ro-#ife )lliance" !)ppellant"& 6BAAL8('# =L8.

The ntention of the #egislator or *arliament what does it meanD

)ccording to +ross the notion intention of the legislator or *arliamentN is used byanalogy. t does not mean the intention of the individual *arliamentarian. The intentionof the legislator with regard to a particular statute cannot mean all of those who were

members of *arliament when the law was being passed& nor should it be taken to meanthe majority of the members of *arliament.#ord Catson in %alman / %alan K +o #td& 6=@>H8 )+ BB at L@ said:

ntention of legislatureN is a common but very slippery phrase& which popularlyunderstood& may signify anything from the intention embodied in positiveenactment to speculative opinion as to what the legislature probably wouldhave meant& although there has been an omission to enact it. n a court of lawor E0uity what the legislator intended to be done can only be legitimatelyascertained from what it has chosen to enact& either in express words or byreasonable and necessary implication.

The meaning the court will attach to the statutory words or phrases will fre0uently be thatwhich it believes the members of the legislator attached to them or the meaning which

they would have attached to the words had the situation before the +ourt been presentto their minds. The object of a statute or particular section of it may be treated as part ofits context 6<ew $reat nsurance +o #td v $ross K )nother& 6=>JJ8 E) >A.8 )ccording to onald 3workin& #aws Empire& 9outana *ress =>@J p L=I the interpretordoes the following:

'e treats the various enactment that make up the legislative history as politicalacts that his interpretation of the statute must fit and explain& just as it must fit andexplain the text of the statute itself.

64i 'awa Mohamed5s +ase8.To do so sometimes English +ourts are allowed to travel outside the )ct with which theyare concerned in order to ascertain the object 64i 'awa Mohamed5s +ase& Carioba vCasira5s +ase8

Elsewhere onald 3workin& in *olitical 2udges and the ule of #awN =>H@ p. B? says:The 0uestion of legislative intention is not about the historical or hypothetical viewof the legislator& but rather concerns the meaning of words used in a particularcontext.6Mwinyimadi amadhani /. +rim )pp. <o. =?A of =>JL !'igh +ourt ofTanganyika !nreported".

The concern of the judges is to use the conventions of ordinary language and statutoryinterpretation to determine the words in the context seeking for the words& which*arliament used 6<ew $reat nsurance +o #td / +ross K )nother8The ntention to be attributed to the #egislator is to be determined from the objectives ofthe words used& rather than the subjective intention& which were not expressed in thetext.



58

There are three principle situations in which people in general and judges in particularspeak of the intention of the legislator or parliament:!a" Chenever the meaning of specific words is under consideration& the idea that a

particular meaning that which would or would not have been attached to aword or phrase by the average member of *arliament;

!b" Chen the conse0uences of a particular constitution are under consideration& theidea that the particular conse0uence might well have been in the mind of theaverage member of *arliament;

!c" Those who feel uncomfortable about the use of the expression Gintention of*arliament5 ought not to feel more at ease to abandon the phrase.

+onstitutional easons for The etention of The <otion of ntention of *arliament:

The notion Gntention of *arliament5 expresses The %ubordination of the judiciary to*arliament.The notion identifies a perspective or orientation which judicial decision making takes

place. onald 3workin bid p LLL" says:Chen judges and legislators disagree on any matter& the principle of legislativesupremacy urges that the legislator5s opinion must governN. The desire of the judiciary to disavow a large creative role in the interpretation of statutes is foundin the opinion of 3enning& #.2. in Magor K %t. Mellons 3+/ <ewport +orporation&6=>?A8 B )ll E =BBJ

at =BLJ when he said:Ce do not sit here to pull the language of *arliament and of Minister to piecesand make nonsense of it. That is an easy thing to do& and it is a thing to whichlawyers are too often prone. Ce sit here to find out the intention of *arliamentand Ministers and to carry it out& and we do this better by filling in the gaps6emphasis supplied8 and making sense of the enactment than by opening it up

to destructive analysis.pon which #ord 3iplock and other members of the 'ouse of #ords disagreed with #ord3enning #2 especially the last part of the above passage where he suggested thatSthey do it better by filling in the gapsSNThe #aw #ords felt that +ourts were stillsubordinate to *arliament 3upont %teel #td / %irs& 6=>@A8 l )## E ?B>.

ntention of *arliament is justified by way each judge considers: t is a %tatement of theattitude& not an element of social fact to be researched.N t is an expression of aconstitutional role adopted by the judges. eading cases on statutory interpretation willreveal that judges are not unanimous in their perception of what correct constitutionalrole they should adopt. Chatever their approach at the end of the day there must belegal certainty.

The Meaning of nterpretationn defining the term nterpretation we earlier said the term means a process by whichcourts determine the meaning of statutory provisions for the purpose of appling them tofacts situation before them.nterpretation arises when there is a dispute about the meaning of words or phrases.There are two types of interpretation: %trict and #iberal. The latter can be subdividedinto extensive and restrictive.%trict interpretation arises where judges attribute to the legislator the will which at thetime of making the law& as supposed& the judge entertains. 63r. )vta %ingh epr. BAA? p=J=8& see also )ppendix l



59

Extensive interpretation applies a statutory provision to a case which does not fall withinits words when literally construed 6<isbet v ayne K 4urn 6=>HA8 B(4 J@> in 3r. )vta %inghep. BAA? p =J=- estrictive interpretation fails to apply a statutory provision to a casewhich does fall within its words when literally construed Mwinyimadi amadhani v 5s+ase; v 1mari so (indamba K )noth. 6=>JA8 E) IAH !T"; Ebrahim )hmed Mohamed

Modhaf v !l" !=>?J" BL E)+) I?J& %ingida T+/ T*T+& 6=>H>8 #Tn ll

The +anons of nterpretationCith the publication of onald 3workin5s article in =>JH Model of ules N it is nowfashionable to divide the contents of a legal system into ules and principles 6see *enner!Ed." BAAB +h @8. )n example of rules: The minimum legal speed on a motor bike is JAmiles per hour.N)ccording to 3workin rules are applicable in an all and or nothing fashion. f the facts arule stipulates are given& then either the rule is valid& in which case it applies and must beaccepted& or it is not& in which case it contributes nothing to the decision.3workin5s example of a principle is:

<o man may profit from his own wrongNThe principle is found in The Estate of +rippen 6=>==8 * =A@; iggs v *almer& !=@@>"&

==? <Q ?AJ <ew Qork )ppeals +ourt.%uch a principle is recognised both under English and )merican law and hasformed the basis of the decision in a number of cases in which judges felt notobliged to apply in a sense in which they were obliged to apply a rule aftermaking certain findings of facts. ) principle like this one is used to rationalise anumber of specific rules or to set out a goal of law in a generalised way.Chen we say that a particular principle is a principle of law& what we mean isthat the principle is one& which officials must take into account& f it is relevant& asa consideration for including in one direction or another. *rinciples unlike rulesmay conflict without detriment to the operation of a legal system& they may varyin a degree of persuasiveness.

6ead also onald 3workin& Taking ights %eriously& 3uckworth =>HH& +hs. B-L8

%ubstantive ules /% F a-/is %tatutory ules

%tatutory interpretation can be distinguished from other substantive subjects& i.e.+riminal #aw& evidence and contract. The rules of statutory interpretationprovide a criteria of identifying legal rules& they belong to the category ofsecondary rules of a legal system which according to '.#.). 'art are Grules ofrecognitionN. %uch rules have double aspects& namely& they act as legal rulesand rules of social practice. 6%ee '#) 'art& The +oncept of #aw& 1* =>JJ !epr.=>@@8

9rom the point of view of a judge the rules and principles of statutoryinterpretation are legally binding statements of the approach to be adopted.The rules and principles for identifying the rules contained in statutory enactmentsalso form a social practice as to how lawyers should set about their tasks. The2udiciary !and sometimes the legislator" establishes them according to the needsof a particular epoch and the judiciary5s view of its constitutional role.They establish the respective competence of the courts and *arliament in theoverall context of developing and changing the law. )s other constitutionalcontexts& the rules are not always stated with precision and they are capable ofdifferent interpretations. The %ocial practice explains the vagueness and thechanging content of the rules and principles of statutory interpretation. Thus judicial statements of statutory interpretation are not authoritative in the ordinarysense of branches of substantive law. They express principles rather than legalrules. 6Emphasis added8



60

+ommon #aw Methods in %tatutory nterpretation;

%tatutes and +ase law are distinct sources of our law !including English #aw". The0uestion is whether the ordinary common law method !earlier learnt" of

reasoning and elaborating rules are applicable to statutes in the same way& as tocommon law rules and principlesD The answer is that statute law and case laware distinct but they interact. %hould statute law and common law be conceivedas separate divisions of English lawD)ccording to #ord Cilberforce in %chilch %pinners #td v 'arding 6=>J?8 I@ M# =:

n my opinion where the courts have established a general principle of#aw or E0uity& and the legislative steps in particular areas& it must& unlessshowing contrary intention& be taken to have left the case outside thatarea where they were under the influence of the general law.

Chere an area is substantively one of legislative action& judges are reluctant toadmit the use of common law principles to interprete or supplement thelegislative code. This is explained by #ord %carman in *ioneer )ggregates !("#td v %ecretary of %tate for Environment& 6=>@?8 )+ =LB at =IA F =I=; 6=>@I8 B )ll E

L?@ at LJL:*lanning control is a creature of statute. t is an imposition in the publicinterest of restriction on private rights of ownership of landS. t is a field oflaw in which the courts should not introduce principles or rules derivedfrom private law unless it be expressly authorised by *arliament ornecessary in order to give effort to the purpose of the legislation. *lanninglaw& though a comprehensive code imposed in the public interest& is& ofcourse& based on land law. Chen the +ode is silent or ambiguous& resortto the principles of private law !especially property and contract law"may be necessary so that the courts may resolve difficulties byapplication of common law or e0uitable principles. 4ut such cases will beexceptional.

n statutory interpretation& reasoning by analogy within a statutory code isacceptable by application of general rules permitting the use of other statutes onthe same subject to guide the interpretation 6nterpreting statutes in parimateria:2ohn <yamuhanga 4isare / & 6=>@A8 T# J K =LB )bdillah 2 )wdeh v 6=>?@8 E)BA; ashid Moledina 6=>JH8 E) JI? <ational $rindlays 4ank v /allabji 6=>JJ8 E)=@J

%ummary:-

=. ules and principles of interpretation and reasoning from statutesrepresent a position adopted by the judiciary concerning its constitutionalrole vis-U-vis *arliament in the development of the law.

B.

easoning by analogy envisages the roles of the judges and legislator aspartners in the cooperative venture in reforming the law.

L. ) more restrictive approach to analogy and to interpretation reflects themore concern for the rule of law and separation of powers.

I. The ule of law re0uires *arliament to state clearly what it intends& and theseparation of powers re0uires the judge not to presume that he knowshow best to complete the legislative scheme.

?. 2udges appear to be inclined away from the role of filling in the gap leftby the legislator.



61

TO.IC TWO &TATFTOR I#TER.RETATIO#

&tatutes: Histor*> Enactin$ .rocess and &tructure

=. Introduction Chat do we mean by the terms construction and interpretationD

+onstruction is a process by which all statutes& like other writings& are necessarilysubjected to when read by anyone. t relates to the manner of ascertaining theintention of the maker of the instrument or writing& that is the legislature in thecase of the statutes. t is a term of a wide sense or scope because it explains thelegal effects and conse0uences of the instrument in 0uestion.nterpretation is a process by which a judge !or any other person" obtains ameaning from the words of a statute. t is concerned with ascertaining the senseand meaning of the subject matter& the written text& a statute in this case. Theprocess of interpretation is concerned with how a dispute about words and their

meaning is arrived at so that there is consistency and certainly !ex rationale legis"in the law.%tatutory nterpretation is a particular form of a general problem- theunderstanding of meaning of C13% and *')%E% used in a statute. Theinterpreter is concerned with technical words in legal documents& for example:statutes& contracts& and wills which speak not only to the present but alsointended to deal with the future and touch on conflicts of interests.n the +ommon #aw tradition& which Tan,ania inherited from 4ritain& statutory textsor legislative rules are a supreme source of law. The rules exist in a hierarchy 6The+onstitution& )cts or decrees& rules& regulations& notices& statutory instruments8 andthere are techni0ues of dealing with each level in the hierarchy.)s a beginner in law& you will learn the basic rules of statutory interpretation. Themain aim is to make you ac0uire the basic techni0ues you will need to

disentangle problems that relate to the interpretation of legal or otherdocuments.nterpretation of statutory texts and language will be done by means of linguistictechni0ues of construction& interpretation and reading.Meaning of Cords%tatutory interpretation is the process by which courts determine the meaning ofstatutory provisions for the purpose of applying them to factual situations broughtbefore them.nterpretation may happen whenever anyone tries to understand the languageused by another person& the problem of interpretation occurs only whensomething goes wrong.The Merchant of /enie by %hakespeare& C.

)ct / %cene =:Chen *ortia& the lawyer& was dealing with the interpretation of the contract

between )ntonio and %hylock a pound of fleshN nothing less nothing more andno drop of blood.

B. %tatutes as a source of #aw

Chat is a statuteD t is a piece of legislation.%tatutes are formal sources of law. 4y sources of law we mean certain definedrepositories of authoritative rules binding on everybody& organs and agents of thegovernment. #egislative-law making is a deliberate and conscious creation oflaw by the legislative organ of the state- *arliament- <ational )ssembly& set up



62

+onstitutionally for that purpose. )n enacted law whether just or unjust is goodlaw if it is passed by a competent authority. %tatute law is the expression of thewill of the %overeign or supreme authority of the state binding over all in therealm. %tatute law is enacted law as opposed to common law !case law or judge made law or precedents" and is authoritative both in matter of substance

and form& that is words of a statute contain or constitute law.

#egislation reflects a creative act by public authority& which states authoritativewords 'olmes& 2. in %outhern *acific #Q / 2ensen& BII .% BA? !BB=" !=>H=".) %tatute is therefore& an articulation of legal precepts !rules of conduct" in aformali,ed legal document& which must receive )ssent of the 'ead of %tate andpublished in an official $overnment $a,ette before it becomes a statute& that is&rules enforceable by the judicial organ of the state. #egislation reflects a creativeact by public authority& which states authoritative words.

L. Meaning and <ature of #egislation

Meaning of #egislation F according to %almond on 2urisprudance =Bth Edn. ?th mpression =>@? p =H?;a" That source of law that consists in the declaration of legal rules by a

competent authority.b" )ny act done with the effect of adding or altering the law is an act of

legislative authority.c" Every expression of the will of the legislative authority whether direct to the

making of rules of law or not-enacted nn enacted law.$ray in *rof. (eeton& Elementary *rinciples of 2urisprudence Bnd Edn of p@I;

d"

9ormal utterances of legislative organ of %ociety.4odenheimer& 2urisprudence Lrd Ed !ev" =>H@ p LBJ

e" 3eliberate creation of legal precepts by an organ of government which issetup for this purpose and which gives articulate expression to such legalprecepts in a formali,ed legal document.

I. <ature of #egislationThe constitution is supreme& it emanates from the supreme power in the state&and therefore& it is incapable of being repealed& annulled or controlled by anyother legislative authority. The province of the legislature is to make or createlaw& that of the judiciary !+ourts" to interprete the law- Makame 2& in 3oris #iundi5s

case 6=>@A8 T# L@ 6'+8f is for the courts to pronounce the validity of enactments with reference to adefinite rule of law. courts have the power to review the validity of a statute byreference to fundamental principles as laid down or fundamental rights asguaranteed by the constitution- 2ulius shengoma <dyanabo / )$ +ivil )ppeal<o JI of BAA= 6 +) unreported8.

3octrine of *arliamentary supremacy or %overeignty: *arliament should not takeaway the power of +ourts to strike down ordinary legislation when tested against

the +onstitution.



63

+ourts have no power to pronounce on the validity of a +onstitutionalamendment if the prescribed procedure for amendment has been followed by*arliament.n principle the constitution has no retrospective effects.

3octrine of *ith and substance of the )ctThe doctrine is concerned with the issue whether classes of subjects coveredunder the )ct come within an item in the central list. t is applied by +ourts todetermine the legislative competenceN of a legislature in regard to a particularenactment when challenged with reference to the entries in the various list. 9orexample& the list of nion mattersN in the +onstitution of the nited epublic ofTan,ania& =>HH !as amended".

The doctrine of +olourable legislation1bjectives based on colourable legislation have relevance only in situationswhen the power of the legislature is restricted to a particular topic and anattempt is made to escape legal fetters imposed on its power& by resorting toforms of legislation calculated to make the real subject matter.

The 3octrine of %everabilityThis doctrine is applied mostly in human rights cases where the +ourt is calledupon to strike off particular provisions of legislation that are found to breach+onstitutional provisions that guarantee human rights 3**/ 3aud *ete 6=>>H8 #+!+onst." ??L

The doctrine of Eclipse can be invoked only in the case of a law valid whenmade& but a shadow is cast on it by supervening +onstitutional in consistency.)$ for +anada / )$ for 1ntario 6=>LH8 )+LBJ

?. +lassification of %tatutesa" +lassification by 1bject

!i" 3eclaratory %tatutes: )ll statutes that are declaratory in nature• remove doubts existing to common law or the meaning or effect

of any statute.• %et aside what *arliament deems to have been a judicial error&

whether in the statement of the common law or in theinterpretation of statute.

• ndicia---declareN and enactedN• etrospective-declare meaning of existing law and does not

necessarily re open decided casesdisturb vested interests forexample The #and Tenure !Established /illages" )ct& =>>B and The#ocal +ustomary #aw !3eclaration" 1rders =>JL $<. BH> and ILJrespectively.

ule: Chere there is a conflict between the terms of a statute and common law& theformer must prevail& if it is clear that it was the intention of the legislature in passing a newstatute& to abrogate the previous common law on the subject. i.e the #and )ct& =>>>changes the +ommon #aw rules on conveyancing& trust& landlordtenant andmortgages&

b" emedial %tatutes- )ll statutes are by their nature remedial& that is& arepassed to remedy an existing mischief& that is defects or redress somegrievance. 1ther statutes are beneficial. 4ut the #and Tenure!Established /illages" )ct =>>B caused some grievances.



64

c" Enabling %tatutes- legalise acts or things that would otherwise be illegal.9or example )c0uisition and e0uisition )cts- the #and )c0uisition )ct&=>JH& the )c0uisition of 4uildings )ct& =>H=& the /illages and jamaa/illages !)dministration and egistration" )ct& =>H?& the Economic1ffences and 1rganised +rime +ontrol )ct& =>@L and the *reventive

3etention )ct& =>JB.

d" +lassification by Method

• 1bligatory %tatutes: are used with reference to enabling statutes

• *ermissive statutes

• mperative or mandatory and directory statutes.

mperative and mandatory statutes creating duties. They also refer to provisions whichlay down conditions prior compliance with which is a condition precedent for the validityof an act or transaction.

)ccording to Maxwell on nterpretation& a statute is imperative or mandatory or directoryor permissive depending on the manner or form laid down for performing a transactionas essential or not.

e" +lassification by duration F %tatutes are classified by duration on the basiswhether they are either permanent or temporary depending on the timeset out in the body of a statute. 9or example statutes establishing offices.

J. 'istory of #egislation

#egislation reflects a creative act by public authority& which states authoritativewords.t was not until the =>th +entury that legislation became a productive source oflaw and *arliament shifted from simply deliberating matters of general interest.4efore the =>th +entury known +odes of #aw were those of Emperor 2ustinian- the+orpus 2uris +ivilis of Jth +. )3That had been codified to ensure permanence of oman *rivate #aw %ystem&

and the +ode <apoleon which was codified =LAA years later as +ode +ivile andbasis of 9rench law.Chy =>th +entury it was necessary that legislation and *arliament becameimportantD

• apid socio-economic changes brought about by the ndustrialevolution.

• The rise of long distance trade;

• ennaissance inaugurated real business which involved finance in tradeunder the 3utch =I@A5s who organi,ed financial systems centred at)msterdam as a result of which 'olland became a sea fearing nation.

• =Jth +entury saw the rise of 4ritain as sea power along with the 3utch. )tthe same time there followed the diminishing relationship of unitybetween nobility and princes& and the rise of relationship between themerchants and princes& these relationships formed the pre-conditions forthe rise of a nation state. )t the same time there was a rise of the idea of



65

a national church to which the ultimate authority was not the *ope butthe *rince& a phenomenon which was manifested through eformation.

The Machiavellian raison d5etat& namely that& the state has its own logicand reason as an ideological tool for the emerging nation state.The idea of natural law developed by Thomas )c0uinas was pushed to

the background in its place was the social contract.Three major epochs of this struggle were:=BAA-=J?A marked by the struggle for emancipation from the hegemonyof theology& the struggle associated with the names 'ugo $rotius&*fendorf and /atel /ictoria.=J?A-=H?A marked by ideas of liberalism in economics and politics& themain exponents were 2ohn #ocke& Montes0uieu and 2ean 2ac0uesousseau.=H?A-=@AA dominated by the demands of bourgeois democracy andsovereignty of the Cill of the people. England& had developed a theoryof legislation suitable for the development of the days; the principle oftility as a measure or calcums for legislation.

The Theory of %overeignty accompanying the above developmentsThe +hallenge on theology was also a challenge on the feudal orderbased on manorial interest to live in peace which was independent ofdivine command and as such it could not be changed by $od himself.9or man to live in peace it was necessary to respect each other andabstain from each other5s property. To restore the property of otherswhich they have taken& fulfill contracts& repay damage& inflict punishment&states were to adhere to agreement which they have made with otherstates-pacta sunt servanda. The state was seen as a free associationbased on %1+)# +1)<T)+T and the ruler was bound by natural law.%overeignty arose out of the population5s surrender of its freedom!$rotius"& sovereignty that arises was limited in power !2ohn #ocke"

because he had the duty to protect life& liberty& property and pursuit ofhappiness& Montes0urian advocated for the separation of powers& that is&between the Executive& the 2udiciary and the #egislature.

The above ideas were concreti,ed by the rise of *ositivism whoseemphasis was on observable data !empiricism". n the field of law andlegislation& the method was first used by 2eremy 4enthan whose principleof utility aimed at providing a moral philosophy for making changes in thelaw in line with socio-economic changes brought about by the ndustrialevolution.

The *rinciple of tility

)ccording to the *rinciple of utility- *leasure and *ain were to be judgment of all ideas& and the government had the duty of achieving fourgoals& namely& substance& abundance& security and freedom. #egislationhad to be based on those four goals.

4entham5s conception of a sovereign and %overeignty.

) %overeign was a person or body of persons whose will is the collectivityof the community which owes himthem 1bedience. #aw was amandate addressed to people by the sovereign !general law".



66

That law could be made in two ways- by conception and pre-adoption.#aws must have sanction attached to them.

4entham5s scheme was made more concrete to suit bourgeois demandsby 2ohn )ustin who distinguished two forms of jurisprudence namely&

+ensorial jurisprudence !the %cience of legislation" and expositorial jurisprudence. 6+oncerned with interpretation of the law as it is8.

1n the basis of the principle of tility which according to 2ohn )ustin wasrelated to accumulation of property& savings& industrial production& profit&payment of wages& more capital& consumption of goods produced andabundance& all these amounted to pleasure.

The same principle of utility was a guide towards avoiding theft& which ledto lack of capital& savings& employment& wages and industrial production&which ultimately led to poverty and pain. The law-making body was tomake general laws that would guard against the latter conse0uences infavour of the former. *arliament having made laws of a general nature&

then it was the duty of lawyers to apply it as it is without in0uiring into itsmoral validity.n =@LB England witnessed the establishment of 4ourgeois rule and thebeginning of legislative action by *arliament. 9rom =@LB to date&*arliament has been and still is the centre of legislative activity.

!i" England

!a" *ost-<orman +on0uest:

The judicial function at this period was basically dispute settlement.Early legislation was a means of rationali,ing and developing pre-

existing standards of rights and justice as recogni,ed by custom.6n )frica& legislation as a significant source of law came as part ofthe +olonial package and turned into a +olonial legacy thataimed at the economic well being of the coloni,ed countries8.

!b" 4ritish *arliament:

)ccording to 4ritish +onstitutional law& *arliament is the supremelaw-making power for the Empire.

The +rown: The +rown is deemed to have legislative competencein overseas territories as an aspect of a sovereigns prerogative orby /irtue of powers conferred or granted to it by *arliament in the4ritish %ettlements )ct& =@@H and the 9oreign 2urisdiction )ct& =@JA6for *rotectorates& and Trust Territories8. The +rown exercised thislegislative power by way of 1rders-in-+ouncil. This power is nowvested in the 'eads of %tates of the former 4ritish +olonies.

#ocal %tatutes- #ocal #egislatures developed in the colonies withpowers and structures specifically defined by the +rown through1rders in +ouncils. The Executive authority in the coloniesreceived substantial guidance from the +rown& and theirenactments were commonly subject to the +olonial 1ffice in#ondon& England.



67

1n the whole they were formal enactments of significant body oflegislation in the colonies known as 1rdinances.

%ources:$hai K Mc)uslan& *ublic #aw and *olitical +hange in (enya& =>HA

pp LL?-LL>.

%eidman& & BE)# IH pp J>-H= 6=>J>8

obert Cray& I 2)# JJ pp J> F HA 6=>JA8

ii. #egislation in the +oloniesThe 4ritish power to legislate in the +olonies was based on the *rerogative of the+rown to assign the form of government in a con0uered& +eded area& or the$eneral )uthority& which the +rown ac0uired by virtue of the 4ritish %ettlements)ct& =@@H.)part from the above two sources of the power to legislate in the +olonies and jurisdiction on the same was based on the 9oreign 2urisdiction )ct and the)frican 1rder in +ouncil =@@> !ganda" and =@>A !Tan,ania". t is important to

study the colonial history of each country.The general common features in all territories were that the $overnor wascontrolled from #ondon by the office of the %ecretary of %tate. The $overnor wasan absolute ruler.4y =>BJ all the three East )frican territories had legislative councils to which draftlegislation and annual estimates were debated. The +onsent of the $overnorwas necessary for them to be passed. nder this system the $overnor wasadvised by an Executive +ouncil.There were also the so-called )frican Tribal )uthorities nominated and electedlegislative +ouncils at a supra-tribal level& comprised of tribal +hiefs !<ative)uthorities".

iii.

The #egislative *rocess in Tan,ania*re-ndependence

Ce can distinguish two major periods in pre-ndependence legislative processin Tan,ania. !Mainland" namely; <a= between =>BA and =>BJ when the$overnor was the sole legislative power and executive authority in the+ountry& <)= between =>BJ-=>J= when the legislative +ouncil was the centreof legislative activity.

=@@J !+harter of *rotection"- =>=@ !/ersailles Treaty: $erman *rotectorate:

Tanganyika emerged as a political entity in =@@J of the mperial $erman$overnment5s issue of a +harter of *rotectionN to Tanganyika and the)greement between the $erman $overnment and the nited (ingdom overtheir respective spheres of influence. The $erman $overnment formerlydeclared a *rotectorate over the agreed area in =@>=. t was from that datethat the legislation governing the area was issued that related to landownership and tenure- the mperial 3ecree =@>?& which declared all land inTanganyika to be *ublic land vested in the $overnor&

The /ersailles Treaty =>=@ that ended the =>=I-=>=@ Car- The 9irst worldCar- marked the appointment of 'orace 4yatt as )dministrator of theformer $erman East )frica on L=st 2anuary& =>BA by the oyal +ommission.t must be noted& that& Tanganyika fell under the control of the #eague of



68

<ations& the latter organsation which appointed 4ritain to administer thearea under the Mandate of the #eague of <ations.

The Tanganyika 1rder in +ouncil& =>BAn =>BA the Tanganyika 1rder in +ouncil 6ssued by the 4ritish *arliament-

constituted the office of the $overnor who was to act as +ommander in+hief of the )rmed 9orces. t further provided for the establishment of anExecutive +ouncil. The Tanganyika 1rder in +ouncil came into force onBB 2uly =>BA.

The nited (ingdom accepted a Mandate over Tanganyika from the#eague of <ations in =>BB. 9ollowing from such acceptance an 1rder in+ouncil was ssued under the 9oreign 2urisdiction )ct& =@>A providing thatthe +rown had jurisdiction and power over the territory. 'ence& underMunicipal law& Tanganyika was to be regarded as a *rotectorate and assuch was the %tatus of Tanganyika until =>BB. 1n the acceptance of theMandate& in both nternational #aw and Municipal #aw& the Mandate wasthe only source of jurisdiction. t provided an instrument on how such

powers were to be exercised.)ccording to the +ovenant of the #eague of <ations Tanganyika was tobe administered under the %upervision of the #egue of <ations and inaccordance with the nter nationally agreed principles.nder )rticle BB of the +ovenant of the #eague of <ations& the principleswere:

• guarantee freedoms of conscience and religion subject to maintenanceof public order and morals;

• the prohibition of abuses& that is& slave trade& the arms traffic& preventionof fortification or military or naval bases or military training of natures for

other purposes than police and defence of the territory.

n =>IJ soon after the %econd Corld Car Tanganyika became a Trusteeship Territoryunder the nited <ations and in accordance with +h. R of the +harter of the nited<ations. #ike the Mandate& the Trusteeship )greement provided for the source anddefinition of jurisdiction.

)rticle ? !a" provided for full power to administer authoritatively in matters related tolegislative& administrative& and judicial functions over Tanganyika Territory. %uch authoritywas subject to the provision of the +harter of the nited <ations and the Trusteeship)greement.

4y virtue of the above principle& England as the administering authority for Tanganyikawas responsible for peace& order and good government& the defence of Tanganyikaand to ensure that Tanganyika played its part in the maintenance of international peaceand security. The Trusteeship )greement did not confer %overeignty on the 4ritish +rownand there was no mention of allegiance.

=>BJ-=>J= #egislative +ouncil 6#E$+18

The first #egislative )ct on the Territory was the *roclamation of @th %eptember =>=Jdealing with custom duties and followed by other *roclamations and <otices between=>=J-=>BA.

The =>BA Tanganyika 1rder in +ouncil conferred to the $overnor the power:



69

• to make 1rdinances for the administration of justice

• the raising of revenues& and

• generally for peace& order and good governance of all persons in the territory.

The Tanganyika 1rder in +ouncil made applicable to Tanganyika- the provisionscontained in the =st %chedule of the 9oreign 2urisdiction )ct& =@>A- it validated all laws&proclamations and other legislative )cts made or issued or done before the said 1rder orby authority for the time being administered by the territory.N

4etween =>BA-=>BJ a total of =@A 1rdinances were enacted by the $overnor as the solelegislative authority.

6#egislative +ouncil8 1rder in +ouncil:• the governor5s sole legislative power were done away with;• provided that 6from the date to be fixed by the governor8 there would be

established a #egislative +ouncil consisting of the $overnor& =L official members&=A unofficial members& persons not holding office in the territoryN appointed by

the $overnor;• the $overnor with advice and consent of the #egislative +ouncil was

empowered to make laws for the administration of justice& raising revenue& forpeace& order and good governance in the territory;

• #egislative +ouncil was not itself a legislature& it had to act with the $overnorwhose oyal )ssent was necessary before any 4ill became law;

• Money vote could only be initiated by express consent or direction of the$overnor; and

• the $overnor had no power to dissolve the #egislative +ouncil.

n =>I? the first )fricans were nominated as representatives of their races to the#egislative +ouncil;

=>I@ the #egislative +ouncil was composed of the *resident& $overnor& officialmembers& ex-official members and nominated members;

=>?L the proposal made by the +ommittee on +onstitutional eforms wereincorporated;

=>?? the +ouncil was divided into official and unofficial members;

=>?J further changes were made to the +ouncil;

=>?@ persons holding public offices were dis0ualified from the +ouncil;

=>?> the +ouncil was reconstituted;

=>J= *arliament as known to day& but the $overnor $eneral was 'ead of stateon behalf of the +rown as well as +ommander in +hief of the armed9orces from B@th <ovember& =>J=.

eference:

Morris K ead& The 4ritish +ommonwealth: The 3evelopment of ts #aws and+onstitution- ganda chapter =A



70

+ole K 3ennison& Tanganyika: The 3evelopment of ts #aws and +onstitution&%teven %ons #ondon =>JI chs B K ?

Moris K ead& ndirect ule and %earch for 2ustice Essays in )frican #egal 'istory&+larendon *ress 1xford& =>HB

The %tructure of %tatutory ules and #ogical TreesThe #anguage of the statute law is fre0uently more complex than that found inordinary speeches and writings. This is so because statutes try to cover generaland a number of specific factual situations in one sentence& or a series ofsentences.

The aim here is to look at the way in which words and phrases are related toeach other& that is& the complex structure of statutory language and ways ofsimplifying it.

4ecause of abstraction& ambiguity prevails& though compare to case law astatute is more precise and it is written. +ourts in solving this ambiguity cannot&

therefore& be said to make law.

n the process of interpretation problems that arise relate to:

• 'ow to place the species within the genus.

%pecies: form& figure& fashion or shape- a form or shape given to materials.$enus: general class or division comprising several species- the specietake the form of the genus. 69auna +onservation #aws etc8.

• *lacing the facts of a particular case within a species- specific factualsituations covered by a statute i.e The small 4irds )ct- 1jibway5s case F

Chen is a bird not a bird with or without feathersD

• +hoice- in a statute law choice between alternative interpretations of aword or phrase in the statute.

#ord 3enning once underscored the principal object of the draftsman as thatachieving certainty but in this pursuit lost sight of the e0ually important object ofclarity. n conceiving certainly the draftsman has brought absurdity. 6#ord3enning& The 3iscipline of #aw& 4utterworths #ondon& =>H> p >8.

1n species- +ommissioner of +ustoms / Travel

6=>JH8 '+3n LBH. The judge was intended to interprete a legislation relating tosoap- whether the word soap includes also sodium salt of fatty acids F whetherthe specie sodium salt of fally acids falls within the genus of soap so as to besubject to import duty.

The +ourt asked itself whether a partly processed chemical technically describedas soap or merely the raw material for making soap.

+onsider sections B@? and B@H of the *enal +ode. +ap =J !Tan,ania" with that ofgandan *enal +ode %ections BHB and BHL:

%ection B@? of the *enal +ode& +ap =J Tan,ania provides:



71

)ny person who steals anything& and& at or immediately before orimmediately after the time of stealing it& uses or threatens to use actualviolence to any person or property in order to obtain or retain the thingstolen or prevent or overcome resistance to its being stolen or retained& isguilty of the felony termed robberyN.

%ection B@H provides as follows:

)ny person who assents any person with intent to steal anything& and& ator immediately before or immediately after the time of the assault& uses orthreatens to use actual violence to any person or property in order toobtain the thing intended to be stolen& or to prevent or overcomeresistance to its being stolen& is guilty of a felony& and is liable toimprisonment for fourteen years.

f the offender is armed with any dangerous or offensive weapon orinstrument& or is in company with one or more other person or persons& orif& at or immediately after the time of the assault& he wounds& beats& strikes

or uses any other personal violence to any person& he is liable toimprisonment for life& with or without corporal punishment.

f we would reduce the sections into a set of sentences it will appear somethinglike the following:

#ogical Tree<o =. )<Q *E%1< C'1 %TE)#% )<QT'<$ )<3

B)t the timeof stealingit

or

mmediately #ote: There are BI complete sentences in .4efore %imilarly for and . Therefore the section contains HB different rules of law.

or immediatelyafter

sesor threatens

house !follow 4"

!=B sentences"

)ctual/iolence

at any

*erson orproperty

!follow +"!J

sentences"

1btain or

retain or to prevent or

overcome

n orderto

Thething

stolen3

%tolen or

retained



72

The above diagram is however& a little bit cumbersome.) much simpler one is a diagram called a #ogical Tree; which may be defined as a seriesof linked 0uestions each of which helps to guide the reader to an ambiguous solution.+f: #ewis and Coolfenden& algorithms and #ogical Trees- ) %elf- nstructional +ourse#ogical Tree <o B.

<1

<1

<1

<1

<1

<1

Cas the offender at the time of commission of felony armed with dangerous

or offensive weapon or instrumentD

Cas he in the com an of one or more ersonsD

3id he wound& beat or strike person at the time or robberyD

3id he wound& beat or strike any person immediately before robberyD

3id he wound& beat or strike any person immediately after the robberyD

3id he commit any colony on a public highwayD



73

=A F =I years #iable to imprisonment for life

sing a logical tree& we can 0uickly check whether a set of facts come within one of thepossible sentences !provided that no 0uestion of interpreting the words involved".

<4: The lay out above is tentative. This illustrates one of the dangers of using logicaltrees of which we should be aware. t assumes that the subsections !a" !b" and !c" insection BHL !B" are alternatives and not that they must be satisfied before the offender isfound liable to the death penalty. This is to say it assumes that there should be the wordorN between each and not andN F but it could be the other way round.

1poya / ganda& 6=>JH8 E) H?B !" does not solve this ambiguity. Chy notD

TO.IC THREE

%tatutory nterpretation. *rinciples and )ids to construction !canons of statutorynterpretation"

Introduction:

There are no binding judicial decisions on the subject of statutory interpretation asapposed to the interpretation of particular statutes. Ce shall learn a welter of judicialdicta& which vary in weight& age and uniformity. Maxwell on nterpretation of statutes=Bth Edition calls them the practitioners5 armoury !analogous to the place where thearmy keeps guns and other e0uipment for fighting an enemy". The rules of Englishstatutory interpretation are:

=. The judge must give effect to the grammatical and ordinary meaning or whereappropriate technical meaning of words in the general context of the statute; hemust also determine the extent of the general words with reference to thatcontext.

B. f the judge considers that the application of the words in their grammatical and

ordinary sense would produce result& which is contrary to the purpose of thestatute& he may apply them in the secondary sense or meaning which they arecapable of bearing.

L. The judge may read in words& which he considers to be necessarily implied& bywords which are already in the statute and he has a limited power to add to&alter or ignore statutory words in order to prevent a provision from beingintelligible& absurd or totally unreasonable& unworkable or totally irreconcilablewith the rest of the statute.

#iable to =I years minimum



74

I. n applying these rules the judges may resort to aids of construction !nternal andexternal" and presumptions. The aids include nternal: nternal )ids. ules oflanguage& external aids and a number of presumptions.

Traditionally the main principles of statutory interpretation were three: the literal rule& the

$olden rule and the mischief rule. 4ut since the =>HAs there has emerged the purposiveapproach 6#ord 3enning in <orthman / #ondon 4orough of 4arnet 6=>H@8 )ll E =BIL +)at * =BIJ cited in 2oseph Carioba v %tephen Casira and )north; 6=>>H8 T# BHB !+)" seealso Terence ngman& The English #egal *rocess& @th Edn BAAA pp B@H F B>A8. n the courseof reading the cases we will discover that no rule is single- headedly used in the processof interpreting various statutory provisions. t will be expected that when answering0uestion not to simply state the method or rule applied to the Mischief rule etc withoutshowing how you have arrived at such a conclusion .emember this is a course in methodology and not in simply producing right or

wrong answers.

). The #iteral ule 6Terrence ngman !BAAA" pp B?L F B?H; 2ustice $.*. %ingh >th Edn BAAIpp H@ F =A>8

)ccording to the #iteral rule of statutory interpretation courts should adhere to the#iteral legis ita scripta est. The rule prohibits judges from adding or taking from ormodifying the letter of the law. The words of a statute must be read in their ordinary&natural and grammatical meaning.n *innet v Everett& 6=>J>8 B )## E B?H at B?@ F B?> #ord eid in the 'ouse of #ordsstated inter alia:

n determining the meaning of any words or phrases in a statute the first 0uestionto ask always is what the natural and ordinary meaning of that words or phrasesin its context. t is only when the meaning leads to some results& which cannotreasonably be supposed to have been the intention of the legislature that it isproper to look for some other possible meaning of the word or phrases 6emphasisadded8.

)s you will note in the course of learning law and reading cases involving statutoryinterpretation& different judges have advanced different views on how the literal rulehas to apply. The main trend has been the so - called $rammatical nterpretation.To some judges this is the safer rule because they think; it is a rule of common sense.

To follow the literal rule means that even when the language of the statute isincapable of meaning& the court cannot and should not supply one.

n %eaford +ourt Estate #td / )sher 6=>I>8 B (4 I@= at I>@ F I>> #ord 3enning had thefollowing to say:

The 0uestion for decision in this case is whether we are at liberty to extend theordinary meaning of burdenN so as to include a contingent burden of the kind have described. <ow this court has already held that this sub F section is to beliberally construed so as to give effect to the governing principles embodied inthe legislation 6Cinchester +ourt #td / Millers&!=" 6=>II8 (4. HLI& and think we should do the same. Chenever a statute comesup for consideration it must be remembered that is not within human power toforesee the manifold sets of facts& which may arise& and& even if it were& it is notpossible to provide for them in terms free from ambiguity. The English language itis not an instrument of mathematical precision. 1ur literature would be muchpoorer if it were. This is where the draftsmen of )cts *arliament have beenunfairly criticised. ) judge believing himself to be fettered by the supposed rulethat he must look to the language and nothing else laments that the draftsmenhave not provided for this or that& or have been guilty of some or other ambiguity.t would certainly save the judges the trouble if )cts of *arliament were draftedwith divine prescience and perfect clarify. n the absence or it& when a defect



75

appears a judge cannot simply fold his hands and blame the draftsman. 'e mustset to work on the constructive task of finding the intention of the *arliament&and he must do this not only from the language of the statute& but also fromconsideration of social conditions which gave rise to it& and of the mischief it waspassed to remedy& and then must supplement the written word so as to give

forceN and lifeN to the intention of the legislature. That was clearly laid down bythe resolution of the judges in 'eydon5s case !="& and it is the safest guide to day.$ood practical advise on the subject was given about the same time by*lowden in his second volume Eyston v %tudd !B". *ut into homely metaphor it isthis: ) judge should ask himself the 0uestion: f the makers of the )ct hadthemselves come across this truck and texture of it& how would they havestraightened itD 'e must then do as they would have done. ) judge must notalter the material of which it is woven& but he can and should iron out thecreases. )pproaching this case in that way& cannot help feeling that thelegislature had not specifically in mind a contingent burden such as we have. f ithad would it not have put it on the same footing as an actual burdenD think itwould. t would have permitted an increase of rent when the terms were sochanged as to put a positive legal burden on the landlord. f the parties expressly

agreed between themselves the amount of the increase on that account thecourt would give effect to their agreement.

)lmost the same views appears in Magor K %t. Mellons / <ew *ort +orporation& 6=>?A8 B)ll E =BBJ at =BLJ:

would repeat what said in %eaford +ourt Estates #td / )sher !I" Ce do not sithere to pull the language of *arliament and of Ministers to pieces and make nonsense of it. That is an easy thing to do; and it is a thing which lawyers are toooften prone. Ce sit here to find the intention of *arliament and of Ministers andcarry it out& and we do so better by filling the gaps and making sense of theenactment than by opening up to destructive analysis.

n the two passages it is interesting to note that #ord 3enning !as he then was" in

interpreting statutes& the judges do fill in the gaps in trying to identify the intention of thelegislature. 'e further suggested that in the process judges are likely to depart from theso-called literal meaning of the words or phrases.

#ord %immonds emphasises the need for judges not to travel outside the words of*arliament or what *arliament has said. Thus there seems to be a tug of war betweenthose who want to adhere to the plain meaning and those who in order to determinethe plain meaning of the words or phrases in a statute do invoke the ntention of thelegislatureN to guide them. Through the so called intention of the legislature they areable to discover the plain meaning: Mwinyimadi amadhani / t would seen from theabove cited case and other cases purportedly decided in the basis of the plain meaningrule& the court or judges have not simply proceeded from the presumption that thewords are plain and unambiguous without necessarily referring to what the legislatorintended. %ingida T+ v Tan,ania *osts and Telecomm. 6=>H>8 #Tn ==n this case the court was called upon to interpret section HL !b" and section ==H of TheTelecommunications )ct& =>HH and egulations ?!b" of the East )frican Telegraphegulations& #egal <otice <o = of =>HA. This was necessary because the plaintiffs hadfiled a suit for damages arising out of alleged negligence on the part of the defendants.n a written defence& the defendant pleaded as preliminary point in which theymaintained that the suit could not stand in law because the root cause of action waspertinent and the court had to make a ruling on it.The facts were that the plaintiffs dispatched a telegram at a *ost 1ffice at %ingida&which is owned by the defendants. The telegram re0uire persons to whom it was sent todispatch to the plaintiff four thousand corrugated iron sheets. 3ue to the negligence ofthe defendant5s servants either at %ingida or 3ar es salaam *ost 1ffice& four thousandN



76

read forty thousand.N 1n receiving a wrongly worded Telegram the person to whom itwas sent dispatched the first consignment of twelve thousand corrugated iron sheets tothe plaintiff. n turn the plaintiff was forced to transport back to the consignor the excessamount of corrugated iron sheets at a cost of %hs L>&BAA7 which amount the plaintiffwas claiming from the defendant.

The 0uestion was whether the defendants were liable at allD+ounsel for defendants argued that the suit was not maintainable because theapplicable law: The Tan,ania *osts and Telecommunications )ct& =>HH expresslyexempted the defendant from liability. 'e +ited %. HL!b" and section ==H of the )ct.

%.HL S save in so far as it is provided to the contrary in regulations made under %.HJ& the corporation shall not incur any liability.

!b" S by any person of any delay in transmission of any telegram or by reason ofany error in& omission from& or non delivery or misdelivery of any telegram.%ection ==H was a saving clause %.==H !=" ntil regulations are made by theMinister under this )ct all subsidiary legislation& other than subsidiary legislationrelating to pensions gratuities or other&S made under the East )frican *osts and Telecommunications +orporation )ct

and&S subsidiary legislation set out Sthe second schedule this )ct S as if that subsidiary legislation was made underthis )ct.

+ounsel for this plaintiff maintained that the dispute did not lie in the fact that the suitwas covered by the statutory provisions referred to by counsel to the defendant. 4eforesuch exceptions can be brought in favour of the defendants& the nature of the error hadto be considered because in the counsel5s view statutory provisions were no intendeds tocover all types of errors. )ccording to the counsel for the plaintiff %. HL !b" was intendedto cover such errors like those due to faulty apparatus& and not errors due to lack oftraining& la,iness or poor perception by the employees of the defendant.The judge addressed his mind to %. HL of the )ct and made reference to the %econdschedule of the )ct which contained a list of subsidiary legislation under The East )frican

*ost and Telecommunications +orporations )ct. %pecial reference was made to #egal<otice <o = of =>HA in which regulations ?!b" of the said regulations provided:

% ? The +orporations shall not incur any liability Sa"S..b" by any person of any delay in transmission of any telegram or by reason of anyerror in& or omission from& or non delivery or misdelivery of any telegram.

This provision the court !judge" observed was similar to the wording of %. HL !b" ofthe )ct and both were conched in exactly the same words.

The issue the judge raised was what meaning and effect did these provisions have onthe matter in issue in a suit before himD The judge first started the +ardinal principle ofstatutory interpretation:

The cardinal canon of construction statutes is to give the words used in thestatutes their ordinary and plain meaning. $enerally speaking& therefore& thecourts must be content to accept the ordinary and plain meaning of words usedin a statute as conclusive evidence of what the legislature has said and meant.

Then 0uoting from %almond5s book 2urisprudence ==th Edn at pp =LB F =LL:

The essence of the law lies in its sprit& not in its letter& for the letter is significant onlyas being the external manifestation of the intention that underlies it. <evertheless&in all ordinary cases the court must be content to accept the litera legis as theexclusive and conclusive evidence of the sententia legis.



77

They must in general take it absolutely for granted that the legislature has saidwhat it has meant and meant what is has said. ta scripta est is the first principle ofinterpretation.2udges are not at liberty to add& or take from or modify the letter of the law&simply because they have reason to believe that the true sententia legis is not

completely or correctly expressed by it.

'aving stated the principles& then the judge enumerated instances in which the aboveprinciples of interpretation can be departed from:

Chere the language used in a statute under consideration is vague orambiguous& or where it is plain that it is logically defective& or where its literalinterpretation would lead to such obvious absurdity or unreasonableness as tomake it plain that the legislature could not have meant what is said. n theabsence of evidence to that effect& the courts have no option but to take it forgranted that the legislature has said what it meant and meant what it has said.

n the judge5s opinion the statute under consideration was of a special nature 6+ross&%tatutory nterpretation& Bnd Edn =>@H p IB& *ionee )ggregates !(" #td / %ecretary of

%tate for Environment 6=>@?8 )+ =LB at =IA F =I= -The statement of #ord %carman8

t gives powers to public undertakings. n light of this& a strict instruction must beaccepted when dealing with such statutes to the extent that its effect should not affectthe common law rights of an individual except where the intention is clear.

The judge then cited the statement of $ouldie 2 in 2ames / +ommission of Transport&6=>?@ E) L=L at L=? !as an authority for his for his view":

%tatutes conferring statutory power on public undertakings must be strictlyconstrued and it has been repeatedly held that they are not to be construed soas they affect the +ommon law rights of the individual unless such an intention isclear from the wording of the statute.

9rom the foregoing the judge considered the provisions of the )ct in 0uestion and cameto the conclusion that the legislature intended to remove any doubt that it had saidwhat it meant. The words are so mandatory i.e. shall be liable.N9urther the judge considered the words or phrases any error.N The judge was not at onewith the +ounsel for the plaintiff that the mind of the judge any error must mean what itsaysN.

n the sense in which the word anyN is used in that context it must mean all.N

The #anguage used in the )ct was intended to protect the +orporation in every sectionof the )ct.

f the legislature had intended to exclude some errors& such as those due tocarelessness& la,iness& etc; of the corporation5s staff& as distinct from errors madeor done bonafide&t would certainly have said so just as it has done with regard to liability formembers of the 4oard !%. =AH of the )ct"

t was the view of the judge that this law was explicitly taking away the +ommon #awrights of the individual& i.e. no liability for negligence can lie on the +orporation. 4ut the judge said:

...that is no reason for departing from the true meaning of the words used and theintention to be gathered therefrom. The language used in the )ct makes it 0uiteclear that the intention of the legislator was to place& the +ommon #aw rights ofthe individual in the second place.



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)ll in all& as a positivist& the judge said that he was dealing with the law as it is not as itought to be:

t is true that a victim of error in a telegram& such as the plaintiffs may raise eyebows about the fairness of these provisions. 4ut that is a moral 0uestion. +ourts

may not 0uestion the morality of statutory !provisions" law. )ll they are there do sois to discover what the legislature has said and meant and find out from thelanguage used in a statute; which it has said what it meant& and mean what ithas said.

More eadings:• Max adin& %tatutory nterpretationN& IL 'arv. # !=>LA" @JL )T @HA• *atterson& 2urisprudence& 4rocklyn& 9outana *ress =>?L p BAL• $lanville Cilliams& #earning the #aw ==th Edn #ondon& %teven K %ons =>@B

pp =AB-=AJ

+ases:1poya v ganda& 6=>JH8 E) H?B !"

<ational 4ank of +ommerce v 2.M. %in,obakwila& 6=>H@8 #Tn. L> at =>@ ff.

v 1mari so (indamba K 1th; 6=>JA8 E) IAH !T"

4. The $olden ule

The $olden ule is that there are no golden rules.N

$.4. %haw& Mad and %uperman in $. Cilliams& #earning the #aw& == th Edn =>@B p>H

The $olden ule states that the grammatical and ordinary sense of the wordsmust be adhered to unless to do so would lead to absurdity& some repugnancyinconsistent with the rest of the instrumentSin which case the grammatical andordinary sense of the words may be modified so as to avoid absurdity or

inconsistency but no further.The $olden ule is exactly the same as the #iteral ule except that it reflects allconsiderations of social policy behind the )ct and therefore it has no applicationto statute framed in wide and general terms. The $olden ule expressly specifiesan 1ccasion when the +ourt has to depart from the plain meaning& namely&where to adhere to the plain meaning would lead to absurdity or absurd results.t allows judges to use their social and political views when interpreting statutes.)ccording to $. Cilliams #earning the #aw =>?B pp =AJ F =A@ the #iteral and thegolden rules are not really two rules of law in opposition of each other. They are

not fixed rules binding on the court but they are modes of approach. )ll willdepend on the temperament of the judge to which of the rules need be

adopted in any given case 6%ingida egional Traiding +ompany #td& vTanganyika *ost and Telecommunication +orporation 6=>H>8 #Tn == whether the judge should have used the $olden ule of nterpretation8. The $olden ruledisregards absurdity while the literal rule does not.The $olden rule also calls on judges to consider the principle of justice wheninterpreting statutes.The use of the $olden ule elevates the judge from the status of being a mereapplier of the law to conscious individuals who can exercise their discretion and asense of justice.



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1ther views about the $olden rule:)ccording to Terence ngman& The English #egal *rocess& @ th Edn 4lackstone *ress#td BAAA pp B?H-BJ= The $olden rule may be used in two ways. t is mostly used ina narrow way to modify the literal rule in order to avoid absurdity. n its narrowapplication& the golden rule lays down that if the words used are ambiguous the

+ourt should adopt an interpretation which avoids absurd results.n its second& broader& application the golden rule is sometimes used inpreference to the literal rule where the words used can have only one literalmeaning. This is especially so where considerations of public policy intervene todiscourage the adoption of an obnoxious interpretation. 9or example& a principleof public policy which precluded a murderer from benefiting from his victim5s will6iggs v *almer& The Estate of +rippen8. n e %igsworth 6=>L? +h @>& the judgehad to decide whether the same principle applied so as to preclude a murdererfrom claiming a benefit conferred on him by statute where the victim diedintestate. 4y the )dministration of Estates )ct& =>B? the residuary estate of aperson dying intestate was to be divided among the issueN. Mrs %igsworth diedintestate leaving only a son who& a coronor5s jury found& had murdered her. The0uestion for the +ourt was whether the son as Gssue5 could succeed on the

mother5s intestacy. +lanson 2 held that he could not.'e said that the principle of public policy which prevents a murderer fromreaping the fruits of his crime must be applied in the +onstruction of )ct of*arliament so as to avoid conclusions which are obnoxious to that principle. nreality& while not mentioning any so-called ruleN of interpretation& +lauson 2 in e%igsworth in effect applied the golden rule in preference to the literal rule sincethe only possible literal interpretation of Gissue5 must include a son. 6Qou can readmany more examples in the proceeding pages8)n example of cases from East )frica:

<ational K $rindlays 4ank K +o / (entiles +o!=>JJ" E.). =H +*+" !n #i0uidation" and The official eceiver !as #i0uidator"

6(enboard K +ompany& owned land in the 'ighlands of (enya. )scheme was adopted whereby (enboard would transfer the land to (entiles K+o; the appellant 4ank would then advance (entiles the sum of V >A&AAA& inexchange of which (entiles would give the 4ank a mortgage on the land. 6)mortgage is a conveyance of land from the borrower to the lender& which by itsterms remains in suspense& as it were& until there is a default; upon default inpayment of the loan& the mortgagee F here the 4ank- can come through anappropriate legal process& called a foreclosure& to own the land. The lender thushas a double assurance that the loan will be paid: the promise of the borrower&and the security of the land.) mortgagee by virtue of the mortgage takes the land in the event ofbankruptcy in preference to any other creditors of the debtor8.

(entiles gave the 4ank the re0uisite mortgage& but did not obtain the consentsfor a conveyance of land as re0uired by %. H of the +rown #ands 1rdinance& +ap=?A& =>I@ as amended.The +ourts below held that the absence of +onsent invalidated the purportedconveyance by way of mortgage& so that the 4ank lost its mortgage& and henceits priority over the other creditors on (entile5s nsolvency.The 4ank appealed to the *rivy +ouncil.

#ord CilberforceSon the substance of the appeal& the first ssue is whether the4ank is a legal mortgagee of the propertyD



80

The +ompany5s claim 6i.e. the claim of the 1fficial eceiver as #i0uidator8 wasthat the legal mortgageSwas validSbecause the 4ank had failed to obtain theconsents necessary& in relation to land in the 'ighlands& under the #and +ontrol1rdinace and the +rown #ands 1rdinanceS

Their #ordships do not consider it necessary to deal with more than one !of severalcontentions by the 4ank8& the conclusion as to which appears to them clear andwhich is sufficient to dispose of the appellant5s contention that the legalmortgage was validly created& namely that which arises from the absence ofconsents under the #and +ontrol 1rdinance and the +rown #and 1rdinance %.Hof the #and +ontrol 1rdinance& cap ?A as amended by %.B of the #and +ontrol!)mendment" 1rdinance& =>I> !<o L@ of =>I>" provides that Gno person5 shallwithout the consent of the #and +ontrol 4oard mortgage or charge any land inthe 'ighlands and %.@@ of the +rown #ands 1rdinance contained similarprohibition against mortgaging land in the 'ighlands without the consent of thegovernor. Each of these sections provides that transactions effected withoutsuch consent shall be void. <either consent was in fact obtained.The contention of the appellants was that although in accordance with the

nterpretation and $eneral +lauses 1rdinance& +ap =. the word Gperson5& unlessthere is something in the subject or context inconsistent with such +onstruction&includes a +ompany& there was such an indication in each 1rdinance.$enerally it is said that the legislation was of a racial character and that race ischaracteristic of ndividuals. Chen companies are involved control is exercisednot over the corporate body itself over its shareholders; more particularly it wasargued that in %.>A of the +rown #ands 1rdinance which refers to person Gof adifferent race to the person by whom such land was sold5& Gperson5 can onlymean an individual& and that consistency of interpretation re0uired that the wordGperson5 should have the same meaning throughout the legislation.

Their #ordships recognise that these indications have some force but

consider that they are far outweighed by anomalies which would arise ifcompanies as such were to be exempted from the re0uirements of thelegislation. t is true that there are provisions& which enable control to beexercised over changes in the shareholders of landowning companies&but& if the appellant5s construction is correct& +ompanies would enjoy afar greater freedom as regards dealing in land in the 'ighlands than doindividuals.

ather than accept such an anomalous result their #ordships prefer to recognisethat the word Gperson5 is used without consistency or accuracy in this legislation&the drafting of which is indeed& in many respects far from precise& and that thelimitation of the word Gpersons5 to individuals in one context does not impose thesame meaning in another. Their #ordships therefore conclude that consent undereach 1rdinance was re0uired and that the absence of such consent invalidatethe purported legal mortgageS

6)ppeal allowed on other grounds8

<otes=" The *rivy +ouncil in this case departed from the Gplain meaning5 rule& just

as was the case in the East )frican +ourt of )ppeal departed from theGplain meaning5 rule in )$ of ganda / (abaka5s $ovt& 6=>J?8 E) ?>L.+an you explain why the +ourt will adopt the plain meaning rule in onecase& and the so-called Ggolden rule5 in anotherD



81

B" +an a +ourt decide to adopt the Ggolden rule5 and re-write a statute&without first determining what policy or purpose the legislation is supposedto serveD Explain with examples from cases you have studied.

L" $lanville Cilliams& #earning the #aw& #ondon %tevens and %ons =>JL pp >>-

=A=: 2udges vary in the extent to which they are prepared to modifywords of an )ct to arrive at a just and sensible result.%ome judges insist that statutes are just to be applied literally&however absurd the +onse0uences& it will be for *arliament to putthe absurdity night.This is called the Gliteral rule5 6or plain meaning5 rule8 ofinterpretation.1thers more liberal in their approach& will modify the words toprevent absurdity& this is sometimes called the $olden rule53iscuss the validity or otherwise of the above proposition in thelight of <dyanabo5s case; the approaches by the Majority judgesin the 'igh +ourt and the judgement of the minority judge in the

same +ourt.

I" +onsider whether or not the judge in %ingida T+ #td / Tanganyika *ostand Telecommunications +orporation& 6=>H>8 #Tn. == could have invokedthe $olden rule to avoid reaching the results he reachedD

+. The Mischief ule or The ule in 'eydon5s +ase 6%ee )lso 3r. )vtar %ingh&ntroduction to 2urisprudence& eprint Edn. BAA? pp =?@-=JA; Terence ngman& TheEnglish #egal *rocess& Eighth Edn. 4lackston *ress #td BAAA pp BJ=-BJI8

<ote:=. ) verbis legis non est recedendum from the words of the law& there should

be no departure.

B. The ambiguity and complexity of statutory words makes the +ourt dutybound to ascertain the so-called intention of the #egislature.ntention or Mischief calls for ascertaining the rationality of the wordspassed by *arliament.

L. The importance of Mischief ule-witnessed in the =>th +entury due to thegrowth of *arliamentarianism and the articulation of the doctrine of%eparation of *owers.

I. The debate surrounding the difficult which is involved an ascertaining TheMischief or ntention of the #egislature has been manifested in the ssueswhether it refers:

a" To the majority of the members of the legislature or *arliament.b" To the majority of the membersc" The meaning attached to the words by drafters of the statute.

6%ee onald 3workin& #aws Empire& 9outana *ress =>@J +h > pp L=B-L?I; #loyd of'ampstead& et al& ntroduction to 2urisprudence& =>H> pp @J? ff.

'istorical 4ackground:The Mischief or 'eydon5s case ule was developed in =?@I by the 4arons ofthe Exche0uer !'eydon5s +ase L +o. ep. Ha; HJ E JLH Exche0uer %ee also



82

Twining& C; K Miers& 3: 'ow To 3o Things Cith ules& Lrd Edn =>>B pp =JJ F =J>;B==-B=B and +ross& : %tatutory nterpretation& Bnd Edn =>@H pp =A F =>8

The 4arons of the Exche0uer resolved that the sure and true interpretation ofall statutes in general !penal" or beneficial& restrictive or enlarging of the

+ommon #aw& four things have to be put into +onsideration:

=. Chat the +ommon #aw before making the )ct was.B. Chat the Mischief and defect for which the +ommon #aw did not

provide.L. Chat was the remedy the *arliament hath resolved and appointed to

cure the disease of the +ommonwealth.I. The true reasons of the remedy and then the office of all judges is

always to make such construction as shall suppress the mischief& andadvance the remedy& and to suppress subtle intentions and evasionsfor continuance of the Mischief and pre-privato +ommodo& and toadd force and life to the cure and remedy& according to the timeintent of the makers of the )ct probono publico.

6Twining and mires =>>B ** =JJ F =JH8The Mischief ule goes together with the maxim +essante ratione&+essantimsalexN meaning eason is the source of the law& and when reason of aparticular ceases& so does the law itself.N Twining and Miers further suggest thatthese rules of interpretation assume that the role of the interpreter is to further theintention of the legislature. Chere there is an element of discretion or choice ofinterpretation the role of the judge may be seen as that of the junior partner inthe enterprise of law-makingS

The Mischief ule provides a method which judges use in order to determine The

purpose for which a law has been enacted. To understand how it works inpractice let us look at the following cases examples drawn from the activity of the+ourts in East )frica and Tan,ania:

• )li so Mapuliko (ailu /. 6=>HJ8 #T. LH at =IH (isanga 2.This was a +riminal appeal. The appellant had been +onvicted of causingdeath by dangerous driving contrary to section II) !=" of The Traffic1rdinance& +ap. =J@ and was sentenced to B years imprisonment.+ounsel for the appellant cited a principle& which related to the third groundof appeal that the sentence was excessive. t was in the 'igh +ourt +ase!(enya" in Canjema / 6=>H=8 E) I>L in which it was pointed out by 2ustice(isanga that such a case was not an authority because it had not beenfollowed by 1nyinke 2 in epublic / Mohamed 4ashir& 6=>HL8 #Tn ?= wherethe judge has stated that Canyema5s case was to be considered as a guidenot a rule.The judge5s view was as follows:

The basic principle which should guide courts in any country is that t istheir duty to carry out the purpose of the legislature in creating an offenceand prescribing punishment.The +ourts have to consider the Mischief aimed at and the measureadopted by the legislature for dealing with it. Chere the legislativeprovision which creates the offence makes it punishable withimprisonment without an alternative of fine& the courts should impose aprison sentence unless the circumstances disclosed by the evidence orthe facts given by the accused in his plea in mitigation of the sentence



83

warrant a different form of punishment. n Tanganyika %ection II of TheTraffic 1rdinance& +ap =J@ which creates the offence of causing deathby dangerous driving makes it punishable with imprisonment withoutexpressly providing for the levy of a fine as an alternative.The Mischief aimed at was the increasing rates of fatalities on the roads

caused by dangerous driving. The legislature has prescribed the measurefor dealing with this danger to the public. )s was stated in the case ofCanjema in these days of appalling fatality figures on the roads driversshould know and know clearly that if they cause death by dangerousdriving they are in imminent danger of being sent to prison.

Then on the basis of the above proposition 2ustice (isanga said the approachwas advantageous because:

t allowed the +ourt to implement the intention of the legislature. i.e. totake stiff measures against the increasing fatalities on the roads causedby dangerous driving and yet allow flexibility whereby courts mayimpose linient or alternative form of sentence where thecircumstances of a particular case warrant it.

Therefore& respectfully think that this approach is to be preferred.

• Mwinyimadi amadhani / ep. +rim. )pp.<o =?A of =>JL !'igh +ourt of Tanganyika" !unreported"

The appellant was convicted on his own plea to the court on chargesunder section I> !== of The 9auna +onservation 1rdinance& +ap. LAL forunlawful possession of government trophies !elephant tasks& rhinoceroshorns etc". 'e was sentenced to =? months imprisonment and a fine ofL&AAA7 or six months imprisonment in default. The trophies were forfeitedto the government. The appellant appealed against the said sentence.

The offence to which the appellant pleaded fell under the provisions ofsection ?L the material part being sub-section !="& which provided interalia that:

)ny person whoa" +ontravenes any provisions of this 1rdinanceSshall& if the same be

stated herein to be an offence against this 1rdinance !and no otherpunishment is specified herein":

!=" f the offence is committed within any game reserve orcontrolled area or in respect to any animal specified from timeto time in the first schedule& or in respect of any animal forwhich fee for a supplementary game licence& as specifiedfrom time to time in the Third %chedule thereto& exceedshundred shillings& be liable on conviction to a fine of twentythousand shillings or imprisonment for two years or to both suchfine and imprisonment; or in any other case& be liable onconviction to a fine of ten thousand shillings or to imprisonmentfor six months or to both such fine and imprisonment& or& in thecase of subse0uent offence& to a fine of fifteen thousandshillings or to imprisonment for nine months or to both such fineand imprisonment.

The sentence imposed upon the appellant could have been validlyimposed only if the offence before the court was punishable under sub-para !=" of the sub Fsection.



84

)rguments for the epublic• The offence was not committed within a game reserve or controlled area.• The offence was committed in respect of animals& namely& elephants and

rhinoceros for which fees for supplementary game licence was specified inthe third schedule to the 1rdinance which exceeded shs =AA7.

•

)ccordingly it was within the Magistrate5s power to award a term ofimprisonment& which he did.

)rgument by +ounsel for )ppellant

• The offence was not committed in respect of any animal within themeaning of sub-para !i" so that the appellant fell under the provisions ofsub-para !ii" and the result being that as first offender was not liable toimprisonment which he did.

• The offence was not committed in respect of any animal within themeaning of sub-para !i" so that the appellant fell to be punished undersub-para !ii" with the results that being first offender he was not liable forimprisonment for a term exceeding six months.

To support his argument the counsel cited %alehe so ssa / where the appellanthaving pleaded guilty to unlawful possession of two elephant tasks contrary to section I>!=" of The 9auna +onservation 1rdinance had been sentenced to eighteen monthsimprisonment. t had been argued on appeal that& the term was ultra vires the +ourtbecause the offence was not committed in respect of any live animals. The judgementof the #earned +hief 2ustice went as follows:

The +ontention raised by the +ounsel for the appellant was that the possession ofelephant tasks already severed !as they were" from an elephant& cannot be anoffence in respect of any animal at all& since animalN must mean a living animal. do not think this contention prevails. The definition of animalN in the 1rdinance is ofno assistance on the point.

The appellant5s offence was under % I> !=" namely unlawful possession of trophies&and a trophyN is defined meaning any animal dead or live& and any horn& ivory&tasks& bone& claw& hoof& skin& hair& feather& egg or other durable portion whatsoever ofany animal whether possessed or not& provided that it is ready recogni,able asdurable portion of an animal.Nt is undisputed that severed elephant tasks are trophies within the above definition.4ut the definition makes it e0ually clear& to my mind that to be unlawfully in possessionof a trophy is an offence committed for the purposes of this 1rdinance& in respect ofan animal& whether or not the animal from which the trophy !if it is part of an animalsuch as task" has been severed is alive or dead at the time when the accused isfound in possession of it.N

The ground for decision in the present appeal turned on another point.%uffice it to say that the remarks of the +hief 2ustice were 1biter& although they had tobe treated with great respect.The +ourt considered the counsel for the appellant5s arguments and the authority cited.

t was found true that the appellant5s offence consisted in unlawful possession of anumber of elephant tasks and a 0uantity of rhinoceros horns. These were indisputablytrophies within the meaning of the 1rdinance.

*rima facie the appellant had committed an offence in respect of such trophies:

v 1mari so (indamba K 1th. 6=>JA8 E) IAH !T"The judge was of the view that as such the offence was not committed in respect of anyanimal unless either:



85

a" The word Ganimal5 appearing in sub-para !=" of s. ?L!=" of the 1rdinance is defined interms wide enough or is otherwise to include the trophy of such animal& or

b" The expression offenceSin respect of any animalN appearing in that sub-paragraphcan be said to mean not only an offence in relation to any animal from which atrophy the subject matter of a charge must at some time in the past have been

severed.)nimalN according to %. B of the ordinance means any kind of vertebrate animaland the eggs and found thereof& other than domestic animals and& except in %% ? !="and =H expressly provide fishN.TrophyN is in the same section defined asSany animal& alive or dead& any horn& ivory&tooth& task& bone& claw& hoof& skin& hair& feather& egg or other durable portionwhatsoever of any animal whether processed or not& provided that it is readilyrecogni,able as durable portion of such animalN.

3espite the fact that the word animalN is defined wide enough to include trophiesand the word trophie wide to include animal& not every trophie is an animal.) +lear distinction is made by the ordinance between the animal and its trophy tosuch an extent that no single provision in the 1rdinance in which the word animal is

used to mean anything but animal as defined in %.B namely& the animal as distinctfrom any part of it being a trophy.

) clearer distinction is made by %. LIH:!=" Chich defines $overnment trophies:

a" )ny game which has been killed or captured without licence and trophyof any such animal;

b" )ny game or animal found dead and the trophy of such animal or anypart of any game animal which is found;

c" )ny animal killed or captured in contravention of any of the provisions ofthis 1rdinance and the trophy of any such animal;

d" )ny trophy in respect of which a breach of the provisions of this

1rdinance has been committed;e" )ny animal or trophy which is in the possession of any person and which

may be reasonably suspected of having been stolen or unlawfullyobtainedS

f" )ny elephant tasks weighing less than twenty two pounds a pair& oreleven pounds in the case of an elephant having a single task& or suchother whole territory or any particular area;

g" )ny other animal or trophy& which may be prescribed.

'aving made the above observations Ceston 2 said:t would be strange if %. ?L of the 1rdinance which is a general penal andforfeiture section& that the word animal was used or was even intended to beused to include trophies. The word animal standing alone in the context underconsideration cannot be construed to include trophies.

egarding the phrases:the words in respect of any animal have in law their plain ordinary meaning of inrelation to any animal.N

*hrases or words in respect of which the offence has been committedN#aw& 2 made the following:-

1n a literal interpretation& the words in respect of which the offence has beencommittedN must in my view& refer to the subject matter of the offence& and notto things indirectly or incidentally connected with the commission of the offence.

69or further reading see M.+. Mukoyogo& 1#C =AI: #egal Method: %tatutory nterpretation*art =>>J ** JJ F H=8



86

egina / The %ecretary of %tate for 'ealth !espondent" exparte Ouintavalle!1n behalf of *ro-#ife )lliance" !)ppellant" 6BAAL8 ('# =L#ord 4ingham of +ornhill:

@.

The basic task of the +ourt is to ascertain and give effect to the truemeaning of what *arliament has said in the enactment to be construed.4ut that is not to say that attention should be confined and a literalinterpretation given to the particular provisions which give rise to difficulty.%uch an approach not only encourages immense prolixity in drafting& sincethe draftsman will feel obliged to provide expressly for every contingencywhich may possibly arise. t may also !under the banner of loyalty to thewill of parliament" lead so the frustration that will& because of undueconcentration on the minutiae of the enactment lead the court to neglectthe purpose& which *arliament intended to achieve when it enacted thestatute. Every statute other than a pure consolidating statute is& after all&enacted to make some change& or address some problem& or removesome blemish& or effect some improvement in the national life.

The court5s task& within permissible bonds of interpretation& is to give effectto *arliaments purpose. %o the controversial provisions should be read inthe context of the statute as a whole& and the statute as a whole shouldbe read in the historical context of the situation& which led to itsenactment.

3. *urposive )pproach:Through judicial efforts especially by #ord 3enning& The 3iscipline of the#aw& =>H>& p >;The +losing +hapter& =>@L& pp >I F =AH and ==A F =I" to improveinterpretative techni0ues- the object of statutory interpretation is todiscover the intention of *arliament. 4ut he argued that& the actual words

used in the statute are only the starting point and not the finishing point.'e preferred the purposiveN approach to literal approach. 'e was anntentionN seeker rather than a strict literal constructionist5.The purposive approach is the European approach to statutoryinterpretation and #ord 3enning recommended its extension to )cts ofthe nited (ingdom *arliament. #ord 3enning also aired his view from the4ench in <orthman v #ondon 4orough of 4arnet&6=>H@8 = )ll E =BIL at =BIJ +):

The literal method is now completely out of dateS n all cases nowin the interpretation of statutes we adopt such a construction aswill promote the general legislative purpose underlying theprovisionN 60uoted from the #aw +ommission eport <o. B=8 t is nolonger necessary for the judges to wring their hands and say:There is nothing we can do about itN. Chenever the strictinterpretation of a statute gives rise to an absurd and unjustsituation& judges can and should use their good sense to remedy itby reading words in& if necessary- so as to do what *arliamentwould have done had they had the situation in mind.

Chen the <othman5s case reached the 'ouse of #ords 6=>H>8 = )## E=IB& #ord 3enning5s approach was criticised. n particular& his attempt&single handedly and without legislation& to implement the #aw+ommission5s recommendations of =>>J was too much for #ord ussell of(illowen& who expressly declared #ord 3enning5s Gsweeping comments5.#ord 3enning5s purposive approach to interpretation of domesticlegislation received little judicial support at the time.



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4ut in / *igg 6=>@L8 = )## E ?J) unanimous 'ouse of #ords had no hesitation in preferring a purposiveapproach to literal interpretation. )nd later the 'ouse of #ords said that a judge may adopt a purposive approach only if he can find it in a statuteor in permitted extrinsic materials& an expression of *arliament5s purpose or

policy: %hah v 4arnet #ondon 4orough +ouncil& 6=>@L8 = )## E BBJ 6'#8.The judge is permitted to interprete legislation in the light of his own viewson policy. The only concession allowed to judicial creativity by the abovecase is that judges adopt a purposive approach to interpretation if thepurpose or policy of *arliament is discernible from the statute itself or fromthe materials to which they are permitted by law to refer as an aid to theconstruction of the statute.

The 'ouse of #ords moved towards a purposive approach in theinterpretation of international conventions and treaties n 9othergill/ Monarch )irlines #td 6=>@A8 B )## E J>J !'#" !To be discussedlater on8

%ee Terence ngman& The English #egal *rocess @th Edn.4ladistone *ress #td BAAA pp BJI - B>A

The *urposive )pproach of %tatutory nterpretation in Tan,ania:epublic / Mbushuu alias 3ominic Mnyaroje6=>>I8 T# =IJ !'+"

2oseph Carioba / %teven Casira K )noth.6=>>H8 T# BHB 6+)8 )rguments by +ounsel F *rof. 2wani Mwaikusa.

)sha %oud %alim / Tan,ania 'ousing 4ank.6=>@L8 T# BHA !'+" amadhani +.2 !as he then was"

(amnis 4allroms +o #td / emta

nvestments Tor0uay #td& 6=>HA8 B )## E@H= 'ouse of #ords& #ord 3iplock.

TO.IC THREE .RE&FM.TIO#&

Introduction

n +ross& %tatutory nterpretation& =>@H +h.H we learn that presumptions are used withdifferent meanings in different branches of law. Their use is always related to 43E< 19*119. They imply that a particular conclusion is likely to be drawn by the +ourt in theabsence of good reasons for a reading a different one.Qou know for example in +riminal #aw the presumption is that the accused person isinnocent until the prosecution has proved the case against the accused beyond anyreasonable doubt.n corruption cases !also +riminal +ases" the accused person has to prove how he cameby what might be alleged to have been ac0uired corruptly. n the #aw of Marriage )ct&=>H= %.=JA when parties have lived together for a period of two or more years undercircumstances in which the community concludes that they are man and wife there is areputable presumption by the law that they are man and wife.%uch a presumption will affect the type of results that a +ourt will arrive at in case there isa problem in the partie5s relationship on matters of divorce& custody and maintenance ofspouse and children or even division of matrimonial property.+ross maintains that presumptions are of two types and this view is shared with $lanvilleCilliams& #earning the #aw =>@B p =A@". *resumptions are either negative or restrictive



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and they form a background of legal principles which an )ct or piece of legislationunder consideration should be interpreted and that such interpretation must conformwith what *arliament intended.9or both upert +ross and $lanville Cilliams +ourts will enforce the Cill of *arliamentwhen the law is express and clear because no law is enacted in /acuum.

*resumptionsEmbody traditional notions of justice. t is expected that bodies to which the lawconfers discretionary powers will exercise them reasonably and will act inaccordance with the principles of natural justice. n case this is not done +ourtscan invoke presumptions to res0ue those under the wroth of unjust bodies ortribunals:%ilverster +yprian K Two others / The niversity of 3ar es %alaam& Misc. +ivil)ppeal <o. J@ of =>>I !nreported" (yando& 2.There are presumptions about geographical operation of the law in 0uestion!presumption against extra-territoriality". n the nion between Tan,ania!Mainland" and an,ibar there are laws& which apply to both territories& and suchlaws as they are restricted to mainland or an,ibar.

There are presumptions which enshrine +apitalist values !liberal societal values":vested rights& rights to compensation on expropriation& non-interference withcontracts and non interference with personal liberty.2udges are precluded from applying presumptions counter political intentions.This was not without difficulties in Tan,ania in the period between =>JH and =>@Iwhen +ourts were dealing with pieces of legislation intended to effect there0uirements of jamaa and %elf eliance policies.The main areas of contention were legislation relating to the Minimum %entences)ct& the *revention of +orruption )ct& The 9auna +onservation )ct& theExchange +ontrol #aws& #and #aws& and the Economic and 1rganised +rimes#aw.<o wonder when you read cases from the above areas of the law you will notice

judges5 resentment of being under political will or pressure 6ead %.(. 'uber&%tatutory nterpretation and 2udicial 3iscretionN in Mukoyogo& M.+.& #egalMethod: +ases and Materials8 and )ppendix / and R in +.%. 4inamungu K M.+Mukoyogo& %tudying #aw %killsSM,umbe 4ook *roject BAA?

n recent years +ourts have stood up as a bulwark of the 4ill of ights and here we alsonotice +ourts coming up to control the legislature 6<dyanabo5s case +ivil )ppeal <o JIof BAA= 6+) unreported8

)ccording to $lanville Cilliams =>@B p ===:The modern movement for the legislature recognition of human rightsN is in facta movement for the increased control of the legislature by the judiciary& becausehuman rights that are claimed are concluded in such broad terms& and involvesmuch balancing of one consideration with another& and they inevitably call formuch judicial interpretation.N

$lanville Cilliams was making reference to the European +onvention of 'uman ightswhich has been made part of the English #aw since it was ratified by 4ritain andtherefore binding as a matter of nternational #aw 6%ee Terence ngam& The English #egal*rocess @th Edn 4lackstone *ress #td BAAA pp B>A-B>?8There is a presumption that )cts of *arliament are not intended to derogate from there0uirements of nternational #aw.

This line of argument& allows the +ourts to use conventions as a means of restricting theoperation of a statute. n Tan,ania such a development was ushered in by the formal



89

enactment of the 4ill of ights in to the +onstitution of the nited epublic of Tan,aniaand the +onstitution of an,ibar in =>@I!D" and since then +ourts have taken a lead ininterpreting laws depriving people of their rights or liberty as being unconstitutional.The )ttoracy $eneral / ev. +hristopher Mtikila& +ivil )ppeal <o L of =>>? !+)-nreported".

+ourts and *resumptions:

*resumption against unclear changes in the law:)ccording to +ross& this presumption dates back to the days when the greaterportion of English law was +ommon #aw and %tatute #aw& was for the most part&minor amendments to the law.<ow it is possible to assert that it is presumed that a statute alters the +ommon#aw as little as possible.N %uch a presumption does not fit in cases where oneconsiders matters relating to social welfare laws& which have been in the area ofthe +ommon #aw.

The presumption is adopted to remove ambiguities. n the Cords of #ord eid in

4lack-+lawson nternational #td / *aplerwerke Caldhof )schaffemburg )$&6=>H?8 ac ?>=

at J=I:There is a presumption which can be stated in the absence of any clearindication to the +ontrary *arliament can be presumed not to havealtered the +ommon #aw further than was necessary to remedy theMischiefN of course it may and 0uite often does go further. 4ut theprinciple is that if the enactment is ambiguous& that meaning whichrelates to the scope of the )ct to be the Mischief should be taken ratherthan a different or wider meaning which the contemporary situation didnot call for.

n Tan,ania this does feature in +riminal #aw cases where interpretation of *enal %tatutesor the *enal +ode is called in 0uestion especially in =>HAs

• Qesaya $waseko / 6=>HA8 '+3n. =JA• $eorge Calter K Two 1thers / & 6=>HH8 #Tn?• 2ohn <yamuhanga 4isare / & 6=>@A8 T# J at p =L

%pecial )pplication of *resumptions• *resumption against ousting the 2urisdiction of +ourts:

)nisiminic #td / 9oreign +ompensation +omm.6=>J>8 B )+ =IB or 6=>J>8 )##E [email protected] case concerned a determination made by the 9oreign compensationcommission under the 9oreign +ompensation )ct& =>?A of compensationpayable for properly expropriated by the Egyptian $overnment. The 9oreign+ompensation !Egypt" +3+ Termination and egulation of +laims 1rder& =>JBre0uired the original owner of his property and his success or in title to have been4ritish nationals on 1ctober L=& =>?J and on B@ 9ebruary& =>?> if they were to0ualify for +ompensation. n this case the applicant company !the originalowner" was a 4ritish national on the 0ualifying dates& but its successor in title wasnot.The +ommission held that& in these circumstances& the applicant5s claim must fail.The applicant contended that the nationality of its successor in title was irrelevantto its own claim of compensation& and it sought a declaration that thedetermination of the commission was erroneous& in law and a nullity.



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%ection I!I" of the )ct provided that a determination of the +ommission shallnot be called into 0uestion in any court of law.N4y a majority& the 'ouse of #ords held that this provision did not prevent a courtfrom investigating whether the +ommission had acted outside its jurisdiction. The'ouse of #ords concluded that the +ommission had wrongly interpreted the

1rder and had thus committed an error of law taking it outside its jurisdiction.)ccordingly& it granted the declaration sought.

• %trict +onstruction of *enal %tatutesThe term *enal statutes is used to cover both statutes creating criminal offences andthose providing for the recovery of penalties in +ivil proceedings. n either case theposition England is that& to use the words of #ord eid in 3irector of *ublic *rosecutionv 1ttwell& 6=>HA8 )+ JIB at JI>:

)fter full in0uiry and consideration& one is left with real doubtN the accused orperson from whom the penalty is claimed must be given the benefit of thatdoubt. t is not enough that the provision under construction is ambiguous in thesense that it is incapable of having two meanings.

The same point is found in #ord Esher5s judgement in:Tuck K %ons / *riester& 6=@@H8 => O43 JB> at JL@:f there is a reasonable interpretation& which will avoid the penalty in anyparticular case& we must adopt that construction. f there are two reasonableconstructions we must give the more lenient one. That is the settled rule for theconstruction of penal sections.

n Tan,ania this is illustrated by the following cases:• Mwimjimadi amadhani v in 4inamungu Mukoyogo BAA? )ppendix /• $eorge Calter K Two 1thers v & 6=>HH8 #Tn ?• 2ohn <yamuhanga Care v & 6=>@A8 T# H at p =L.

n East )frica !ganda" it is illustrated by• 1poya v ganda 6=>JH8 E) LJJ F L@A

n (enya: +rown v 'assan !=>BI" =A (# I

1ther +ases:Marwa +hacha / & 6=>J@8 '+3n. L?H

amadhani Maisoli K Two 1thers v 6=>@A8 T# ==>-=B? !'+"

ead: 1poya v ganda in Mukoyogo& M.+; 1#C =AI: #egal Method *art Three:%tatutory nterpretation& 1T =>>J pp >J-==A.

•

*resumption against etrospective operationetrospective operation F a law passed intended to cover offences committed inan earlier period.9or example in =>@I The *arliament in Tan,ania enacted a piece of legislationwhich was intended to cover offences committed in 3ecember =>@L.

The )ct was *enal and did expressly provide that it was to operate retrospectively.+ases involving such laws in East )frica:

brahim5s +ase 6=>JL8 E) =H>ganda v <yengenya. 6=>JL8 E) =AJMunicipality of Mombasa v <yali 6=>JL8 E)*atel v 6=>J@8 E) >H



91

4enbros Motors v *atel& 6=>JH8 '+3n. IL?+hristopher Mwakabura v 6=>>B8 T# L@A !+)"ead: 4inamungu K Mukoyogo BAA? pp =HI - =HJ

• ndividual #iberty

The strict construction of *enal statutes is closely connected or related to thepresumption in favour of individual liberty especially where custodial sentencesare involved.)s it was stated by Mc+ullough 2 in / 'allstrom exp. C !<o B" ! +ross pg =HH"

There is a canon of construction that *arliament is presumed not to enactlegislation which interferes with the liberty of the subject without making itclear that it was the intention.

+ases decided by the +ourts in Tan,ania relating to the above presumption:• )$ v #esnoi <deinai )lias 2oseph %aleye #ancer K Two 1thers 6=>@A8 T# B=?-B?A

!+)"

• n the matter of an )pplication for an 1rder of 'abeans +orpusN )lly #ilakwa v

egional *rison 1fficer and egional *olice +ommander&Misc. +riminal +ase <o B> of =>H> !unreported"

• 'appy $eorge Cashington Maeda v egional *olice 1fficer& Misc. +riminal+ase <o LJ of =>H> !nreported".

I#TER#AL AID& TO CO#&TRFCTIO#

• Enacting parts of a statute: nterpretation section& saving provision.

• #ong title& *reamble !if any"& short title&

• +ross-headings& side or marginal notes and punctuations.

Chat are the functions of these parts in %tatutory nterpretationD

There has been a long debate as to their function in statutory interpretation. %omeliterature suggest that these parts of a statute have less value than the rules& canonsand presumptionsN.+ross 6=>@H: =BB8 admitted that in England in =>@A #ord %carman5s nterpretation of

#egislative 4illsN presented an argument for a formal recognition of these devices in%tatutory nterpretation and his suggestions were accepted 6+ross =>@H: =BB footnote =A8

The main controversy had always been& whether or not they can be treated as canonsor aids to statutory construction at all.The reply is that& each of the parts of the document or statute has been given someweight in that whenever the 0uestion of interpretation of a word or phrase or passage

has arisen the judge has had to give them consideration in determining the intention ofparliament.t is cautioned that& provisos& interpretation sections and savings clauses are subject toamendments by parliament& the other parts are determined by parliamentary clerksassisted or directed by the *arliamentary 3raftsman.

)ccording to Twining and Miers =>>B: L?@-L?> 9re0uently the scope or meaning ofa rule is 0ualified by other rules in the statute.%uch 0ualifications may extend or limit the rule& specify how a particular rule is tobe implemented& state exceptions& or attach specific meaning to a word orphrase. Oualifications of the last sort are generally contained in the interpretation



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or definition section& white some of these parts may appear in schedules at theend of a statute& or promulgated separately as a statutory instruments.n addition all statutes contain a long title which indicates the object of theenactment& while other statutes contain higher preambles expressing not onlywhat the )ct is intended to do& but also why.

%o there is unanimity on the basic structures of statutes in England. There is no substantivedifference between the above descriptions and what one finds in the enactments orstatutes !4oth of the colonial and post colonial period".n East )frica and Tan,ania in particular& such parts of the statutes have played and stillplay a very important role when +ourts are faced with the problem of interpreting words&phrases and passages. 9or example:

• *reamblesa" The +onstitution of the nited epublic of Tan,ania =>HH !as amended"b" The (agera Transport )ssets !)c0uisition and egrant" )ct& =>@I !<o = of

=>@I"+ases in which *reambles have been used in interpreting statutes:

n Tan,ania& The *reamble to the nterim +onstitution was referred to in the case of)damji / East )frican *osts and Tele +ommunications& 6=>HL8 #Tn.J in which 4iron 2 !ashe then was" expressed the view that the *reamble was not part of the +onstitution ofTan,ania. 'e cited the +ase of *owell / (empton *ark econstruction +o. 6=@@>8.

n Tan,ania& since ndependence& the *reambles have been replaced by theMemorandum of 1bjects and easons attached to 4ills.*reambles are not a common feature of the final enactments.ead: <ewbold& /.*. in the <ew $reat nsurance +ompany of ndia #td v +ross and)nother 6=>JJ8 E) >A

• #ong and %hort Titles:

The #ong Title of an )ct is found at the beginning and usually contains generalindications of a legislative purpose.) short title is usually stated in a separate sub-section at the beginning of thenumbering of sections in Tan,ania. t is contained in the body of the )ct& it is subjectto amendment by *arliament& its purpose is to serve as a brief identifying label& it isnot as helpful as the preamble or long title.)ccording to #ord 2ustice %crutton in e 4oaler& 6=>?=8 (4 B= at IA-I=:

agree that the court should give less importance to the title than the enactingpart& and less to the short title than to the full title& for the short title being a label&accuracy may be sacrificed to brevity; but do not understand on what principleof construction am not to look at the Cords of the )ct itself and help me tounderstand its scope in order to interprete the words *arliament has used& by thecircumstances in respect of which they were legislating. t is by no meansconclusive. 6%ee also egina v %ecretary of %tate 6BAAL8 ( '# =L !'#"

n order to understand what *arliament meant& we must look at the words which*arliament used rather than depending on the short title.There is no example in East )frica in which a short title has been consulted in interpretinga statute know of. 4ut in England there is the case of Card v 'olman& 6=>JI8 B)## EHB>.

• 'eadings to $roups of %ections within a %tatute:%uch headings are not voted upon by *arliament& but they are included in the 4illand form part of the text which comes before *arliament for consideration. nEast )frica headings of statutes to groups of sections have been considered



93

when interpreting words& phrases and passages of statutes. They have to be usedwhen words in the texts are ambiguous. +ases on this position in 4ritain:/ %urvey )ssessment +5ee 6=>I@8 (4 B@

4ulmer v + 6=>JJ8 L C# JHB.

• Marginal <otes:The view that they are not aids to construction:+ross =>@H: =B> Ouoting #ord eid- the conservative view: +handler v 3irector of*ublic *rosecutions 6=>JI8 )+ HLJ might be a conclusive authority for theproposition that side-notes 6fre0uently spoken of as Gmarginal notes58 cannot beused as aids to construction in any circumstances.They are mere catch words and have never heard of it being supported inrecent times that an amendment to alter a side-note could be proposed in either'ouse of *arliament. %ide-notes in the original 4ills are inserted by the 3raftsmen.%ide-notes cannot be said to be enacted in the same sense as the long title orany part of the body of the )ct.

)ccording to #ord pjohn #2 in %tephens v +uckfield 3+& 6=>JA8 BO4 LHL at L@L stated;Chile the marginal notes to a section cannot control the language used in thesection& it is at least permissible to approach a consideration of its generalpurpose and the mischief at which it is aimed with the note in mind.

#ord eid5s remarks in 3irector of *ublic *rosecutions v %ehild (amp& 6=>H=8 )+ at p =A:4ut it may be more realistic to accept the )ct as printed as being a product ofthe whole process& and to give due weight to everything found in the printed )ct.

%ide-notes& therefore& may be useful as an indicator of the purpose of the provision thana guide to its meaning.n East )frica the usefulness of side-notes or marginal notes has been treated in an articleby Martin 'uber& se of Marginal <otes in East )frica !=>J>" B Eastern )frican #aw

eview =AH. 4ut this 0uestion has also been judiciary considered in:Murtha5s +ase; 6=>?I8 E) =>A/isram v 4hatt& 6=>J?8 E) H@>Mugo v & 6=>JJ8 E) =BIamadhan v 6=>J@8 '+3n. BII

ephania v . 6=>JH8 '+3n. B=@

/ #emke; 6=>J@8 '+3n B>>

n the Estate of %himji 6=>J?8 E) H@>.

n the case of Cellington Thuku *aul Mugo K 1thers v 6=>JJ8 E) =BI udd )g. +.2. !ashe then was" at p =B@:

The due to the real intention of the legislature is to be found in the marginal notesto section ?H of the Evidence )ct& =>JL of (enya which reads 4ad +haracter in+riminal +asesN.1rdinarily marginal notes will not be taken into account in derogation of thewords of the section. This stems from the old English practice whereby 4ills wereengrossed without punctuation on parliament& and as neither the marginal notesnor the punctuation appeared on the roll they formed no part of the )ct-marginal notes and punctuations are not to be taken as part of the statute.1rdinarily it should not be necessary to have it refer to the marginal notes toascertain the meaning of the section of the )ct. 1rdinarily& therefore& marginalnotes are not to be considered when construing the section of the )ct.



94

4ut in %hamji /istman / 4hatt& 6=>J?8 E) H@I at H>I the +ourt said:4efore oral evidence which is clearly relevant and which does not in any waycontradict or vary the lease can be said to be admissible& the case must fallwithin section >>& that is& the language of the lease must be on the fact of itambiguous or defectiveN.

To some extent& of course& what is ambiguous or defective must always be a0uestion of degree. consider that in determining the extent of that degree canhave regard to the use of the word patentWin the marginal note to the section.Chile in 4ritain the +ourts will not normally have regard to marginal notes forassistance in construing the terms of a section& this is due to the historical reasonsthat prior to =@?A marginal notes did not form part of the 4ill as presented to*arliament and they were only added after the legislation had been passed. tcould not& therefore& at least as regards the earlier legislation& be said that themarginal note played any part in disclosing the intention of the legislature.The position in (enya is very different. Marginal notes always form part of the 4illas presented to *arliament for enactment. ndeed& there are a number ofenactments& including the )cts amending the present +onstitution of (enya!then" in which marginal notes have been subject of amendment by legislation.

9urther& a +onstitutional document !the oyal nstructions" prior to ndependencere0uired that marginal notes should appear on each section of a 4ill presented tothe legislature. #ook at %. >> as a whole& including the word patentN in themarginal note& am satisfied that this section only precludes the admission of oralevidence when the ambiguity or defect is manifest and evident to generalknowledge without regard being had to any other factor.

%trictly speaking& it seems courts will normally disregard marginal notes while construingprovisions but examples above show a tendency to resort to marginal notes.

• *unctuation)t it might have been noted in the foregoing dissension& judges have not only saidthat side-notes !marginal notes" should not be considered& but the same view has

been extended to punctuations. <otwithstanding those cases where these two havebeen considered& the strong view is that since they are not part of the enactmentthey should not be considered.This view is not shared by all judges and in East )frica there is a good example thatpunctuations are used in construing provisions of statutes.)ccording to +ross =>@H: =LA-=L=:

#ord eid suggests that& punctuations forms part of the statute and even if thereader has to be wary of 1lder )cts& in which punctuation was inserted after theenactment by the printer& the punctuation of modern statutes must be given thesignificance it has in the ordinary use of English language.

#ord #owry in 'unlon v #aw %ociety& 6=>@=8 )+ =BI: consider that not to take account of punctuation disregards the reality thatliterate people& such as *arliament or any draftsman& punctuate what they write&if not identically& at least in accordance with grammatical principles. Chy shouldnot other literate people such as judges& look at the punctuation in order tointerprete the meaning of the legislation as accepted by *arliamentD

Thomton& in #egislative 3rafting& Lrd Edn. pp LL-LI 6+ross =>@H: =L= fn. =B8 says:t is a curious paradox that judges whose entire reading is punctuated& should& ina carefully punctuated judgements& consider themselves obliged to proclaimthat the punctuation in carefully punctuated statutes is not part of the law.

The modern new as to punctuation and interpretation of statutes is that punctuationsmay be used in getting proper interpretation of a statute. n East )frica the modern viewis found in <ew $reat nsurance +ompany of ndia #td / #ilian +ross K )n 6=>JJ8 E) >A61pinions of <ew8 bold /* and %ir +lement 3e #estrang 2.). at pp >J K =AH8



95

accept that the rule of construction in 4ritain in relation to 1ld statutes was thatthe +ourts did not have regard to punctuation in interpreting a section. Thereason was that until about =@?A the punctuation of sections was inserted afterthe legislation had been enacted& with the result that the punctuation hadreceived no legislative authority. Chether the rule of construction would apply in

4ritain in relation to modern statutes is open to doubt. 'owever& whatever maybe the position in 4ritain& have no doubt whatsoever that in East )frica the+ourts should in the construction of a section& have regard to any other part of it.The reason for this is that the section as enacted by the legislature contains thepunctuation. ndeed& there are a multitude of examples of amendments tosections containing amendments to punctuations. n any event cannot see howit is possible to attach the words in the event of some specified thing beingdone--- after the happening giving rise to a claimN to the words no liability shallariseN for the simple reason that liability would have already arisen before theevent& therefore& those words clearly attach only to the words and liability soshall ceaseN. The logical construction is merely reinforced by the positioning of acomma in the (enya )ct.

• %chedules to )cts:t has been argued that schedules to )cts and other documents form part andparcel of the said )ct or document if incorporated by reference in the same )ctor document. 9or example& The %ecurity of Employment )ct& section => createsdisciplinary offences at work and penalties can be found in the second scheduleto the )ct !tabulating offences and penalties". 1ther important schedules to)cts include those in the Economic and 1rgani,ed +rimes )ct& =>@I !)ct =L of=>@I"& The +riminal *rocedure )ct& =>@? etc.The importance of schedules to )cts was considered by 4iron 2 !as he then was"in the +ase of )damji v East )frica *osts and Telecommunications& 6=>HL8 #Tn J

at pp =J- =H: in which it was implicitly decided& that the T)< +onstitution& whichwas inserted into the nterim +onstitution of Tan,ania& =>J? as a schedule !Third%chedule& which was not in the +onstitution of the nited epublic of Tan,ania&=>HH" as not being part of the +onstitution and therefore not part of the law inTan,ania.<evertheless& the T)< +onstitution was in Thabit <gaka v egional 9isheries1ffice& 6=>HL8 #Tn BI was used to reconcile the provisions of the $overnment%uits 1rdinance and the Employment 1rdinance.n #alata Msangalawe v 'enry Mwania& 6=>H>8 #Tn L at pp BI-BJ Mwesiumo 2 !ashe then was" stated inter alia:

+ompensation for one5s labour finds recognition even in the *reamble tothe nterim +onstitution of the nited epublic of Tan,ania and in T)<+reed.!The T)< +reed was appended to the nterim +onstitution". The relevantportion of the *reamble stated: Chereas freedom& justice& fraternity andconcord are founded upon the recognition of the e0uality of all men andof their inherent dignity& and upon the recognition of the rights of all mento the protection of life& liberty and property --- to receive a just return fortheir labours ---

1n the basis of these principles the judge allowed an appeal in favour of compensationfor one5s labour.

ETER#AL AID& TO CO#&TRFCTIO#

=. ntroduction



96

The general rule under 1ld English #aw:n interpreting statutes& reference to any matters extrinsic to the writtenwords of statutes as written was for bidden.

This meant that when courts were interpreting statutes were precluded fromconsulting preparatory materials like parliamentary debates !'ansard eports";

Chite *apers& +ommission eports& %peeches of Ministers when introducing 4ills to*arliament etc.n the nited %tates of )merica and +ontinental Europe& preparatory materials!travax preparatoires" or legislative materials are referred to.

Escoinage *roperties #td v nland evenue +ommissioner& 6=>?@8 )+ ?I> at ?JJper #ord 3enning'owever& it would indeed be a difficult task for courts to ascertain the mischief orpolicy behind an enactment without referring to preparatory materials. tamounts to asking the interpreter to assume a policy direction& which those whoenacted the law ever intended or meant.) close examination of case law development indicates a trend towardsconsulting background materials to the enactment or piece of legislation whosewords or phrases are difficult to construe in the course of settling disputes orlitigation.

B. $eneral 'istorical 4ackgroundeading through cases you will learn that +ourts have usually allowed +ounselsto state what they understood to be the general background of a given piece oflegislation. n most cases +ounsels cite from legal textbooks by lawyers or non-lawyers& which deal with surrounding circumstances of a given piece oflegislation. +ross& %tatutory nterpretation Bnd Edn =>@H pp =?A-=?B.n the case of 2oseph %inde Carioba v %tephen Masatu Casera& 6=>>H8 T# BHB!+)" the +ourt of )ppeal allowed the +ounsel for the appellant to state what heunderstood to be the general background to the Election )ct& =>@A.

L. $overnment *ublication- )mong government publications that may be referredto as external aids to interpretation of statutes include:+ommittee eports i.e. The *residential +ommittee eport on #and Matters- theso-called %hivji +ommission eport or The <yalali eport on Multipartison&departmental +ommittee reports i.e The #aw +ommission of Tan,ania eports.

)dmissibility of 1fficial eports that precede legislation• 4ill Memorandum F see Escoinage *roperties #td v + 6=>?@8 )+ ?I>

• Chite *apersn (alikiro of 4uganda v )$ 6=>JA8 which was confirmed in The )$ of gandav (abaka5s $overnment 6=>J?8 E) L>L a Chite *aper which containedrecommendations for a +onstitutional +onference was held inadmissible as

an aid to the construction of the 4uganda )greement of =>??.n 4i 'awa Mohamed v )li %efu the %pry +ommission eport or the (enya+ommission eport on Marriage Matters& the $overnment Chite *aper <o =of =>J> were used to construe the provisions of the #aw of Marriage )ct =>H=.

I. *arliamentary 3ebates- The rule as to the admissibility of *arliamentary debatesis clear. )ccording to Michael ender& it was not until recently that courtsgenerally accepted that for the purpose of interpreting statutory provisions it wasnot permitted to look at parliamentary debates. This rule was developed in 4ritainsince =@=@ and has been abolished in =>@A through a challenge by the Master ofthe olls& #ord 3enning in 3avis v 2ohnson. 6=>H>8 )+ BJI !+.)" The case dealtwith a provision on 3omestic /iolence and Matrimonial *roceedings )ct& =>HJ.



97

The 0uestion was whether or not the )ct provided any protection for cohabiteesas well as wives. #ord 3enning M at pp BHJ-BHH stated inter alia:

%ome may say& and indeed have said that the judges should not payattention to what is said in *arliament. They should grope about in thedark for the meaning of an )ct without switching on the light. do not

accede to this view. n some cases *arliament is assured in the mostexplicit terms what the effects of the statute will be. t is on that footingthat members assent to the clause being agreed to. t is on thatunderstanding that an amendment is not passed. n such cases think thecourt should be able to look at the proceedings.

The 'ouse of #ords did not approve of #ord 3enning M5s approach. )ll the five judges or #aw #ords said expressly that he was wrong. )ccording to #ord 3ilhorne6=>H>8 )+ L=H at LLH:

There is one other matter to which must refer. t is a well and longestablished rule that +ounsel cannot refer to 'ansard as an aid to theconstruction of a statute. Chat is said by a Minister or by a membersponsoring a 4ill is not a legitimate aid to interpretation of an )ct.

The #ord 2ustice 0uoted a passage from #ord eid in 4eswick v 4eswick 6=>J@8 )+?@ at HB-HI and went on to say:

f it was permissible to refer to 'ansard& in every case concerning theconstruction of a statute counsel might regard it necessary to searchthrough the 'ansards of all proceedings in each 'ouse to see if in thecourse of them anything relevant to the construction had been said.f it was thought that a particular 'ansard had anything relevant in it andthe attention of the +ourt was drawn to it& the court might also think itdesirable to look at the other 'ansards. esults might be that theattention was devoted to the interpretation of ministerial and other

statements in *arliament at the expense of consideration of the languagein which *arliament had thought to express its intention.

#ord %carman at pp LI>-L?A stated:There are two good reasons why the +ourts should refuse to regard whatis said in *arliament or by Ministers as aids to the interpretation of astatute. 9irst& such material is an unreliable guide to the meaning of whatis enacted. t promotes confusion& not clarity. The cut and thrust ofdebate and the pressures of the executive responsibility& essential featuresof open and responsible government& are not always conducive to aclear and unbiased explanation of the meaning of statutory language.)s the volume of *arliamentary and ministerial utterances can confuse byits very si,e. %econdly& counsels are not permitted to refer to 'ansard inargument. %o long as this rule is maintained by *arliament !it is not thecreation of the judges"& it must be wrong for the judge to make any judicial use of proceedings in *arliament for the purpose of interpretingstatutes.

4ut despite the above views& the opinion expressed in 3ens v 2ohnson wereconfirmed by the 'ouse of #ords in 'admor v 'amilton& 6=>@B8 l )## E =AIB&

?. nternational +onventions and TreatiesThere is a general tendency for courts to make use of nternational+onventions and Treaties in interpreting domestic law !Municipal law". This isso because conventions and treaties have great influence on domestic orMunicipal law of a country which because being a party to such conventionsor treaties. 1ften than not a treaty may be consulted to clarify the meaning



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of a statute and this happened in Oua,i v Oua,i 6=>@A8 )+ HII )T @A@ where#ord 3iploch stated:

Chere *arliament passes an )ct amending the domestic law of thenited (ingdom in order to enable his country to ratify an international treatyand thereby assume towards other state that are parties to the treaty an

obligation in international law to observe its terms& it is a legitimate aid toconstruction of any provision of the )ct that are ambiguous or vague to haverecourse to the terms of the treaty in order to see what the obligation innternational law that *arliament intended should be enabled to assume. Theambiguity or obscurity is to be resolved infavour of that meaning that isconsistent with the provisions of the treaty.

n Tan,ania !Mainland" the approach of using international documents in the process ofinterpreting national or domestic law is very recent. t was inaugurated by theenactment into The +onstitution of the nited epublic of Tan,ania of a 4ill of ights in=>@I !)ct =? of =>@I". %ince then courts have attempted to interprete Tan,ania5s laws inthe light of nternational documents.

n 4ernardo Ephraim v 'olaria *astory K $erva,i (ai,ilege& !*+" +ivil )ppeal <o HA

of =>@> !'+" !unreported"& 2ustice Mwalusanya !as he then was" dealing with rule BA ofthe #ocal +ustomery #aw !3eclaration" 1rder& =>JL !$< ILJ 19 =>JL" which bars femalesfrom inheriting and disposing of clan land& made the following observations:

4ut the customery law in 0uestion has not changed up to this day. The womenare still suffering at the lands of selfish clan members. Chat is more is that sincethe 4ill of ights was incorporated in our =>HH +onstitution& vide )ct <o =? of =>@Iby )rt =L!I" discrimination against women has been prohibited.4ut some say that& that is a dead letter. )nd the niversal 3eclaration of 'umanights !=>I@" which is part of our +onstitution by virtue of )rt. >!>" !f" prohibitsdiscrimination based on sex as per )rt. H. Moreover& Tan,ania has ratified the+onvention on the Elimination of )ll 9orms of 3iscrimination )gainst Comen. Thatis not all. Tan,ania has also ratified the )frican +harter on 'uman and *eoples

ights which )rt. =@!L" prohibits discrimination based on sex. The principlesenumerated in the above named documents are a standard below which anycivili,ed nation will be ashamed to fall.t is clear from what have discussed that the customary law under discussion fliesin the face of our 4ill of ights as well as the international conventions to whichwe are signatories.

n the case of 3irector of *ublic *rosecutions v 3anciple& +riminal )ppeal <o B@ of =>>A++)-nreported" the +hief 2ustice at pp == F =B of the judgement stated nter alia.

n our situation& both fundamental and basic rights and duties are dealt with inone single part of the +onstitution that is *art . This location of basic rights andduties in one single part of the +onstitution of the nited epublic of Tan,ania issymbolic and significant. t is a symbolism and an expression of a +onstitutionallyrecogni,ed coexiskuce of rights and duties of the individual and society. This viewis supported by the principles underlying the )frican +harter on 'uman and*eoples ights which was adopted by the 1rgani,ation of )frican nity in =>@=and came into force on B= 1ctober =>@J after the necessary ratifications.Tan,ania signed the +harter on L= May& =>@B and ratified it on =@ 9ebruary& =>@I.%ince our 4ill of ights and 3uties was introduced into the +onstitution under the9ifth )mendment in 9ebruary =>@?& that is slightly over three years after Tan,aniasigned the charter& and about a year after ratification account must be taken ofthe +harter in interpreting our 4ill of ights and 3uties.

9rom the foregoing it is clear that courts will avail themselves conventions and treaties ininterpreting the import of a statute in 0uestion.



99

Chether the travaux preparatorres of a treaty are also admissible in interpreting statutesis laid in the /ienna convention on the #aw of Treaties )rt LB.There is no case authority on the matter in Tan,ania. The cases cited are from 4ritain or1ther European countries.n 9othergill v Monarch )irlines #td 6=>@=8

)+ B?= or 6=>@A8 B)## E J>J or 6=>H>8 L )##E II?ead Mukoyogo *art pp =JL-=JH.

LOGICAL AID& TO I#TER.RETATIO#

• +ross& %tatutory nterpretation& Bnd Edn =>@H pp =LB- =L>• E) 3riedger& ) <ew )pproach to %tatutory nterpretationN !=>?=" B> +anadian 4ar

eview @L@ at @I=

ntroduction4y following the *lain Meaning ule there are three grammatical rules of

+onstruction of %tatutes:a" <oscitur a %ociis& a thing is known by its associatesN

b"

Ejusdem !Eusdem" generis rule of the same genus or kind"; andc" Expressio unius est exclussio altenius

!the mention of one thing is the exclusion of the otherN".The above are neither legal principles nor legal rules. They are guides to the intention ofthe speaker or writer. They refer to the way people speak or write in certain contexts.

<oscitn a %ociis F eference to neighbouring words and phrases. The rule states that:The meaning of a doubtful word may be ascertained by reference to meaning ofwords associated with it.

+f: 'alsbury5s #aws of England& /ol. LJ at p L>? para I>I.) word is known by the company it keeps and a statute should be construed as awhole. 9or the purposes of construction& the purpose or the context of the word

to be construed does include not only the particular section or paragraph inwhich the words or phrases appear but the whole statute in which it appears.The rule is intended to avoid inconsistencies and repugnancy. This is so becausethe words of a statute are presumed to be used consistently throughout a statutethat is they bear the same meaning.#egislature cannot contradict itself. n the case of Marwa v & 6=>JH8 '+3 no L?Hthe judge avoided giving a contradictory interpretation to the Minimum%entences )ct with another )ct.<oscitur a %ociis means that a thing is known by its associates. t is easy toconfuse it with eusdem generis rule. Chile eusdem generis is an example of abroader linguistic rule or practice to which reference is made by <oscitur a %ociis!a #atin tag"& words even if they are not general like any otherN preceded byspecific words& are liable to be affected by other words with which they areassociated. %tamp 2 in 4unrne v <orwich +rematorium #td& 6=>JH8B )##E ?HJ at?H@:

English words derive their colour from those which surround them.%entences are not a mere collection of words to be torn by reference todefine accurately by reference to the dictionary or decided cases& andthen put back& into sentences the meaning which you assign them asseparate words---.

Examples for the proposition that the meaning of a word may be coloured by thecontext of words either used in the same sentence or within the )ct as a wholeare:n the case of Cestminster +ity +ouncil v ay )llan !Manshops" #td& 6=>@B8 l )## EHH=



100

%ection =I!=" of The Trade 3escription )ct& =>J@ was considered. That sectioncreated a penalty for making a false statement as to the nature of any services&accommodation or facilities provided.N) +ompany announced a +losing down saleN at one of its shops& but continuedto trade normally and did not intend to close the shop.

The 3ivisional +ourt held that the word facilitiesN was limited by the preceedingwords to things made available for use by customers and so did not include thebroader notion of shopping facilities.

n 4romley #ondon 4orough +ouncil / $reater #ondon +ouncil& 6=>@L8 )+ at @I=:%ection = !l" of The Transport !#ondon" )ct& =>J> re0uired greater #ondon +ouncilto develop policies and encourage measures for provision of integrated efficientand economic transport facilities and services for greater #ondonN.Chen discussing the sense to be given to the word economicN #ord %carmansaid:

)s a matter of English usage& the term economicN---has severalmeanings. They include both that for which the appellants contend andthat for which 4romley contends. t is a very useful word& +hameleon like&taking its colour from its surroundings.

Eusdem or Ejusdem $eneris rule !The #ord Tenterdens ule"Chen in a statute there are general words following particular or specific words&the general words are assumed to be confined into things of the same kind asthose specified.

The ejusden generis rule otherwise known as #ord Tenterden5s rule owes its essence to itspropounder #ord Tenterden in (itchen v %haw H #.2. M.+. =J where hesitated as follows:

Chere a statute& or other document enumerates several classes of persons orthing& and immediately following the clause embraces G1ther5 persons or things&the word G1ther such like5 so that the persons or things therein comprised may beread as ejusdem geris with& and not for a 0uality superior to& or different from&

those specifically enumerated.9or example a statute may talk about tent& hurt& house& mansion& villa& bungalow&building and any other structure whatsoever.NThe phrase Gany other structure whatsoever5 will be confined to the words specified inthe section.'owever& great care should be exercised in the use of this rule. t must not defeat theintention of the legislature& that is& it must be applied subject to the primary or general!+ardinal" principle of statutory interpretation that is& statutes should be construed inaccordance with the intention of the legislature.

+onditions for the application of the rule:!a" The specific words must constitute a category& class or genus.!b" The words& which are to be assumed must be really the same category& class

or genus for example Gany other structure5 should constitute a category& classor genius of those particularly mentioned.

)s such a superior thing will not be held to be of the same category& class or genus asthose of an inferior thing. 9or example 3ar es %alaam& <airobi& Maputo& (ampalaand any other town-means any other town of the same status as those specificallymentioned.!c" Chere the general words precede the particular words& the rule will be

disciplined. The rule limits the generality to the particular especially in penalstatutes- allowing the general to stretch too far may mean that anybody canbe charged with almost any +rime !arbitrariness".

#ord Tenterden5s rule as regards statutes was explained by the +ourt in a (enyancase /Callis ? T.. LH> where it was stated:



101

f the legislature had meant the general words to be applied without restriction itwould have used only one compendius word:

'owever& this statement is 0ualified by the following statement by #ord Esher& M.. in)nderson v )nderson 6=@??8 l O4 HI> thus:

Qet the other hand though it is very likely that in former days the doctrine was

applied strictly& there are cases which show that the modern tendency is to rejectrestricted construction& and very fre0uently the word receives its wide and largeinterpretation of every other sort or kind.

n the case of +anadian <ational lwys v +anada %teamship #inet #td 6=>I?8 )+ BAI#ord Mc Millan disapplied the rule because the general words preceeded the particularenumeration of instances. 'is #ordship stated at p B==:

t is not a case to which the ejusdem generis rule applies& for the general wordsdo not follow an enumeration of particular instances& but precede the particularinstances.

The particular provision which was being considered in this case was %.L?!=L" of theTransport )ct& =>LA& which provides as follows:

any application under this section& the 4oard shall have regard to allconsiderations which appear to it to be relevant followed by specific direction to

The 4oard to have regard on specified matters.n )$ v )bdullah K 1thers& 6=>JA8 E) JHB- a case involving the interpretation of %.>=4 ofthe (enyan *enal +ode& three accused persons were charged with a count of besettingcontrary to section >=4& that they unlawfully besetted the Tudor oad& Mombasa& with aview to prevent one 3onye sA Mchoki from doing an act-riding a bicycle- which the said3onye was entitled to do. The %enior Magistrate of Mombasa ac0uitted all of them onthe account of a defective charge sheet. The )$ on behalf of the +rown appealed byway of a case stated.

%ection >=4 provided as follows:)ny person who watches or besets any premises& or the house or other placewhere any person resides or works or carries on business or happens to be& or the

approaches to such premises& house or other place with view to preventing anyperson from doing& or compelling him to do; any act which a person has a legalright to do or abstain from doing& is guilty of an offence and is liable toimprisonment for a term not exceeding six months or to a fine not exceeding fivethousand shillings or to both such imprisonment or fine.

The )ttorney $eneral submitted that:!=" was the learned trial magistrate correct in law in ac0uitting the accused on the

first +ount!B" was the learned magistrate correct in law in holding that the words Gor other

place5 in % >=4 of the *enal +ode must be construed eusdem !ejusdem" generisthat is& of the same kind with words Gany premises5 or the house in that section.

The respondent contended that:The words Gany other place5 came within the ejusdem generis rule& that is& sincethey stopped him on a highway they had not committed an offence.

The +ourt relied on the strong persuasive authority of +harmock v +ourt 6=@>>8B+h.3 L?a case which was decided on the meaning of section H of the +onspiracy and*rotection of *roperty )ct& =@H? which under clause I thereof reads:

GCatches or besets the house or other place where such other person resides& orworks& or carries on business& or happens to be or the approach to such house orplaceX

n that case it was held that the words in the enactment covered a Glanding stage5 and%tirling 2 stated thus:

GThe words place where he happens to be seen to me to embrace any placewhere the workman is found however casually;

n )$ v )bdullah5s +ase Mac3uff concluded:



102

GMoreover& if we look& as we consider we must& to what we believe to have beenthe intention of the legislature in enacting %>=4 of the *enal +ode& than we thinkthis also provides a strong reason for not applying the ejusdem generis doctrine.Ouite clearly the intention of the legislature in %. >=4 of the *enal +ode was toprotect the unfettered liberty of the individual in going about his lawful occasions

without let or hindrance& and for that purpose to protect him in Gwhatever placehe happens to beD Ce cannot conceive that the legislature could possibly haveintended to protect the individual from being Gbeset5 in his residence orworkplace whilst leaving him open to wrongdoers to beset him on& for example& apublic highway on his way to or from his home or workplace. Ce cannot see anyreason to conclude that there was even any intention& especially in view of thecomprehensive nature of the words Ghappens to be5 restrict the Gother place5 toa place of the genus of a Ghouse5.

The proceedings were therefore returned to the magistrate with an order tosubstitute a conviction in a place of ac0uittal against all the respondents on thefirst count.

n 'assan sA Mohamed v 6=>J@8 '+3no I?H the ejusdem generis rule was applied torestrict a statute giving power to the governor to encroach on private property rights.The accused in this case gave a firearm to another person to deliver it for repairs. 'epleaded guilty to a charge of unlawfully transferring a firearm contrary to sections =? andL= of the )rms and )mmunition 1rdinance& +ap. BBL. 4efore sentence was passed& theaccused stated in mitigation that: G The firearm was defective. t was being sent forrepair.N%ection =? of the 1rdinance makes it an offence to:

%ell or transfer or buy or accept any arms and ammunitions either by way of giftor for any consideration except in accordance with a permit signed by anauthori,ed officer.

t was held that:!i" 9or the transfer of a firearm to constitute an offence contrary to section =?&

such transfer must be ejusdem generis that is& of similar type& kind or naturewith a sale& purchase or gift.

!ii" The accused answer to the charge& to the effect that he had handed over hisfirearm with the object of having it sent for repair& cannot be regarded as anune0uivocal plea of guilty to a charge.

+onviction 0uashed.n the case of +harles sA Mumba v 6=>J>8 '+3 n.BB= the accused wasconvicted of possessing property suspected to have been stolen contrary tosection L=B of the *enal +ode& +ap =J !T". The goods in 0uestion were found inan unfinished building& but it was not known how they had come to that place.The circumstances of the accused5s arrest were not detailed by the 'igh +ourtbut Ghe was not detained at first by a police officer.5t was held that the very technical nature of section L=B& the accused must firstbe detained by a police officer exercising his power under section BI of the+riminal *rocedure +ode at the time of such conveying the thing or thingssuspected of having been stolen.*ossession of such goods in a building would be punishable under this sectiononly if it occurred during the Gcourse of the journey5 citing the case of egina vMsengi sA )bddallah& T# =AH.

1biter:

GThe section should be reviewed to remove its strict technicalities for its use is toolimited to be of such use and provide ample room for ostensible offenders to



103

escape from the arms of the law& making the law entirely unintelligible to theunsophisticated !people" public.

Expressio unius est exclussio alteriusThe expression of one thing excludes the other. This is used hand in hand with the maxim

Gexpressium facit cessare tacitum5 that is& expression of one fact ends with that fact.Chere a statute expressly refers to one thing& it excludes any other things& whichrefer to the same issue:

9or example the word G4uilding5 when mentioned first in a statute and at a later stagethe word

G#and5 is mentioned& it will normally refer to building& for the word G#and5 includesGbuildings5 as well.The genus Gbuilding5 has already been excluded from the class of Gland5therefore.

n 3imbley K %ons #td v <ational nion of 2ournalists 6=>@I8 l )## E H?=%ection =H!L" of the Employment )ct =>@A was considered. The section conferredimmunity from suit for actions taken during a trade dispute against a party to thedispute.N

%ection =H!I" granted an immunity from suits for actions !not those including those in thecase" taken against an associated employerN& defined as meaning an employingcompany controlled by the employer in the dispute or by a third person also havingcontrol of that employer.) newspaper publisher sought an injunction to prevent the union from instructing itsmembers not to produce copy to be printed by T49 *rinters #td. The union being indispute with T4 9orman #td& having the same shareholders.The 'ouse of #ords refused to hold that the action was covered by the immunity undersection =H!L"& since T49 *rinters was a separate legal person from the party to thedispute.N

+ases on Ejusdem $eneris ule

$adi (idasa v& 6=>@B8 T# =A? !'+"

3** / 4ernard <javike& 6=>@@8 T# =@ !+)"

egina v %ecretary of %tate for 'ealth !espondent" ex parte

Ouintavalle !on behalf of *ro-#ife )lliance" !)ppellant" 6BAAL8 ('#=L !'#"



104

A..E#DI I

RLW 123: Le$a% Method II

HOF&E O LORD& &E&&IO# 299293

29934 FHL 13

On a++ea% !ro': 29924 EWCA Ci0 27

O.I#IO#&

19 T'E #13% 19 )**E)#

91 23$ME<T < T'E +)%E

Re$ina 0, &ecretar* o! &tate !or Hea%th <Res+ondent= e@ +arte uinta0a%%e <on )eha%! o!

.roLi!e A%%iance= <A++e%%ant=

O#

THFR&DA 13 MARCH 2993

The )ppellate +ommittee comprised:

#ord 4ingham of +ornhill

#ord %teyn

#ord 'offmann

#ord Millett



105

#ord %cott of 9oscote

HOF&E O LORD&

O.I#I#O#& O THE LORD& O A..EAL OR (FDGME#T

I# THE CAF&E

Re$ina 0, &ecretar* o! &tate !or Hea%th <Res+ondent= e@ +arte uinta0a%%e <on )eha%! o!

.roLi!e A%%iance= <A++e%%ant=

29934 FHL 13

LORD BI#GHAM O COR#HILL

My #ords&

=. The issues in this appeal are whether live human embryos created by cellnuclear replacement !+<" fall outside the regulatory scope of the 'uman9ertilisation and Embryology )ct =>>A and whether licensing the creation ofsuch embryos is prohibited by section L!L"!d" of that )ct. +rane 2 at firstinstance held that such creation fell outside the scope of the )ct and was notprohibited by section L!L"!d": 6BAA=8 I )ll E =A=L; 6BAA=8 EC'+ )dmin >[email protected] +ourt of )ppeal !#ord *hillips of Corth Matravers M& Thorpe and 4uxton

#22" agreed with the judge on the second point but reversed his ruling on thefirst: 6BAAB8 O4 JB@; 6BAAB8 EC+) +iv B>. 4oth points were re-argued beforethe 'ouse.

B. This case is not concerned with embryos created in the ordinary way as aresult of sexual intercourse. <or is it directly concerned with the creation oflive human embryos in vitro where the female egg is fertili,ed by theintroduction of male sperm outside the body. +<& a very recent scientifictechni0ue& involves neither of those things. n the +ourt of )ppeal and in the'ouse the parties were content to adopt the clear and succinct explanationgiven by the judge of what +< means and involves !6BAA=8 I )ll E =A=L&=A=J":

=L. n the ovary the egg is a diploid gem !or reproductive" cell. t isdescribed as Gdiploid5 because its nucleus contains a full set of IJchromosomes. 4y the process of meiotic division the nucleus divides intotwo parts. 1nly one of these& a pronucleus containing only BLchromosomes !described as Ghaploid5"& plays and further part in theprocess. 9ertilisation begins when the male germ cell& the sperm& whosepronucleus contains BL chromosomes& meets the haploid female germcell and is a continuous process taking up to BI hours. )s part of the

process the male and female pronuclei fuse to form one nucleus with afull complement of IJ chromosomes& a process known as syngamy. Theone-cell structure that exists following syngamy is the ,ygote. )fter several



106

hours the cell divides to create a two-cell ,ygote. )t this stage it isgenerally referred to as an embryo. )t about =? days after fertili,ation aheaping-up of cells occurs which is described as the Gprimitive streak5. =I.9ertilisation may of course take place in the normal way or in vitro. =?.+< is a process by which the nucleus& which is diploid& from one cell is

transplanted into an unfertili,ed egg& from whichS the nucleus has beenremoved. The 6replacement8 nucleus is derived from either anembroyonic or a foetal or an adult cell. The cell is then treated toencourage it to grow and divide& forming first a two-cell is then treated toencourage it to grow and divide& forming first a two-cell structure andthen developing in a similar way to an ordinary embryo. =J. +< is a formof cloning. +lones are organisms that are genetically identical to eachother. Chen +< is used& if the embryo develops into a live individual&that individual is genetically identical to the nucleus transplanted into theegg. There are other methods of cloning& for example& embryo splitting&which may occur naturally or be encouraged. dentical twins are theresult of embryo splitting. =H. The famous 3olly the sheep was producedby +< in some other mammals. t has not yet been attempted in

humans.=@S. +< of the kind under consideration does notSinvolve fertili,ation.N

The Act

L. The =>>A )ct was passed to make provision in connection with humanembryos and any subse0uent development of such embryos; to prohibitcertain practices in connection with embryos and gametes; to establish a'uman 9ertilisation and Embryology )uthorityN& and for other purposes. Thesections at the heart of this appeal are sections = and L& which should 0uotein full:

Principal terms used

=. !=" n this )ct& except where otherwise stated-!a" embryo means a live human embryo where fertili,ation is

complete&and

!b" references to an embryo include an egg in the process offertili,ation&

and& for this purpose& fertili,ation is not complete until the appearance ofa two cell ,ygote.

!B" This )ct& so far as it governs bringing about the creation of an embryo&applies only to bringing about the creation of an embryo outside thehuman body; and in this )ct-

!a" references to embryos the creation of which was broughtabout in vitro !in their application to those where fertili,ation iscomplete" are to those where fertili,ation began outside thehuman body whether or not it was completed there& and

!b" references to embryos taken from a woman do not includeembryos whose creation was brought about in vitro.

!L" This )ct& so far as it governs the keeping or use of an embryo& appliesonly to keeping or using an embryo outside the human body.

!I" eferences in this )ct to gametes& eggs or sperm& except whereotherwise stated& are to live human gametes& eggs or sperm but



107

references below in this )ct to gametes or eggs do not include eggs inthe process of fertili,ation.SL.!=" <o person shall-

!a" bring about the creation of an embryo& or

!b"

keep or use an embryo& except in pursuance of a licence.

!B" <o person shall place in a woman-!a" a live embryo other than a human embryo& or!b" any live gametes other than human gametes.

!L" ) licence cannot authori,e-!a" keeping or using an embryo after the appearance of the

primitive streak&!b" placing an embryo in any animal&!c" keeping or using an embryo in any circumstances in which

regulations prohibit its keeping or use& or!d" replacing a nucleus of a cell of an embryo with a nucleus

taken from a cell of any person& embryo or subse0uentdevelopment of an embryo.

!I" 9or the purposes of subsection !L"!a" above& the primitive streak is tobe taken to have appeared in an embryo not later than the end of theperiod of =I days beginning with the day when the gametes are mixed&not counting any time during which the embryo is stored.N

I. The )ct imposes three levels of control. The highest is that contained in the)ct itself. )s is apparent& for example from section L!B" and !L"& the )ctprohibits certain activities absolutely& a prohibition fortified by a potentialpenalty of up to ten years5 imprisonment !section I=!=". The next level of

control is provided by the %ecretary of %tate& who is empowered to makeregulations for certain purposes subject !so far as relevant here" to anaffirmative resolution of both 'ouses of *arliament !section I?!="& !I".*ursuant to section L!L"!c" the %ecretary of %tate may make regulationsprohibiting the keeping or use of an embryo in specified circumstances. Thethird level of control is that exercised by the )uthority. %ection L!=" prohibitsthe creation& keeping or use of an embryo except in pursuance of a licence&and the )ct contains very detailed provisions governing the grant& revocationand suspension of licences and the conditions to which they may be subject:see& among other references& sections ==-BB of and %chedule B to the )ct. )power is also conferred on the )uthority to give binding directions: sectionsBL-BI.

?.

The first argument of the )lliance is s0uarely based on the wording of section=!="!a" of the )ct& fortified by that of subsection !="!b". t hinges on the wordswhere fertili,ation is completeN. That makes clear& it is argued& that the livehuman embryos to which the )ct applies are such embryos as are theproduct of fertili,ation& for the obvious reason that if there is no fertili,ationthere can be no time when fertili,ation is complete !and there is never an eggin the process of fertili,ation". Therefore the )ct does not apply to embryoscreated by +<& unsurprisingly since in =>>A the creation of live humanembryos was unknown to *arliament. The second argument of the )lliance isput as an alternative: if embryos created by +< are& contrary to the firstargument& embryos within the scope of the )ct& then the +< process isspecifically prohibited by section L!L"!d" and cannot be licensed.



108

The approach to interpretation

J. 4y the end of the hearing it appeared that the parties were divided less onthe principles governing interpretation than on their application to the

present case. %ince& however; the +ourt of )ppeal were said to have erred intheir approach to construction& it is necessary to address this aspect& ifrelatively briefly.

H. %uch is the skill of parliamentary draftsmen that most statutory enactments areexpressed in language which is clear and unambiguous and gives rise to noserious controversy. 4ut these are not the provisions which reach the courts&or at any rate the appellate courts. Chere parties expend substantialresources arguing about the effect of a statutory provision it is usuallybecause the provision is& or is said to be& capable of bearing two or moredifferent meanings& or to be of doubtful application to the particular casewhich has now arisen& perhaps because the statutory language is said to beinapt to apply to it& sometimes because the situation which has arisen is one

which the draftsman could not have foreseen and for which he hasaccordingly made no express provision.

@. The basic task of the court is to ascertain and give effect to the true meaningof what *arliament has said in the enactment to be construed. 4ut that is notto say that attention should be confined and a literal interpretation given tothe particular provisions which give rise to difficulty. %uch an approach notonly encourages immense prolixity in drafting& since the draftsman will feelobliged to provide expressly for every contingency which may possibly arise.t may also !under the banner of a loyalty to the will of *arliament" lead to thefrustration of that will& because undue concentration on the minutiae of theenactment may lead the court to neglect the purpose which *arliament

intended to achieve when it enacted the statute. Every statute other than apure consolidating statute is& after all& enacted to make some change& oraddress some problem& or remove some blemish& or effect someimprovement in the national life. The court5s task& within the permissiblebounds of interpretation& is to give effect to *arliament5s purpose. %o thecontroversial provisions should be read in the context of the statute as awhole& and the statute as a whole should be read in the historical context ofthe situation which led to its enactment. 6Emphasis supplied8

>. There is& think& no inconsistency between the rule that statutory languageretains the meaning it had when *arliament used it and the rule that a statuteis always speaking. f *arliament& however long ago& passed an )ctapplicable to dogs& it could not properly be interpreted to apply to cats; butit could properly be held to apply to animals& which were not regarded asdogs when the )ct was passed but are so regarded now. The meaning ofcruel and unusual punishmentsN has not changed over the years since =J@>&but many punishments which were not then thought to fall within thatcategory would now be held to do so. The courts have fre0uently had tograpple with the 0uestion whether a modern invention or activity falls withinold statutory language: see 4ennion& Statutory Interpretation, Ith ed !BAAB"*art R/& %ection B@@. ) revealing example is found in Grant v sout!estern

and "ounty Properties #td 6=>H?8 +h =@?& where Calton 2 had to decidewhether a tape recording fell within the expression documentN in the ules ofthe %upreme +ourt. *ointing out !page =>A" that the furnishing of information



109

had been treated as one of the main functions of a document& the judgeconcluded that the tape recording was a document.

=A. #imited help is in my opinion to be derived from statements made in caseswhere there is said to be an omission in a statute attributable to the oversight

or inadvertence of the draftsman: see $ones v %rotam Park Settled &states6=>@A8 )+ HI at =A?; Inco &urope #td v 'irst "oice distri(ution 6BAAA8 = C#?@J. This is not such a case. More pertinent is the guidance given by the late#ord Cilberforce in his dissenting opinion in )oyal "ollege o* +ursing o* te

nited -ingdom v epartment o* ealt and Social Security 6=>@=8 )+ @AA.The case concerned the )bortion )ct =>JH and the issue which divided the'ouse was whether nurses could lawfully take part in a termination procedurenot known when the )ct was passed. )t page @BB #ord Cilberforce said:

n interpreting an )ct of *arliament it is proper& and indeed necessary& tohave regard to the state of affairs existing& and known by *arliament to beexisting& at the time. t is a fair presumption that *arliament5s policy orintention is directed to that state of affairs. #eaving aside cases of

omission by inadvertence& this being not such a case& when a new stateof affairs& or a fresh set of facts bearing on policy& comes into existence&the courts have to consider whether they fall within the *arliamentaryintention. They may be held to do so& if they fall within the same genus offacts as those to which the expressed policy has been formulated. Theymay also be held to do so if there can be detected a clear purpose in thelegislation which can only be fulfilled if the extension is made. 'owliberally these principles may be applied must depend upon the nature ofthe enactment& and the strictness or otherwise of the words in which it hasbeen expressed. The courts should be less willing to extend expressedmeanings if it is clear that the )ct in 0uestion was designed to berestrictive or circumscribed in its operation rather than liberal or permissive.

They will be much less willing to do so where the subject matter is differentin kind or dimension from that for which the legislation was passed. n anyevent there is one course which the courts cannot take& under the law ofthis country; they cannot fill gaps; they cannot by asking the 0uestionGChat would *arliament have done in this current case- not being one incontemplation- if the facts had been before itD attempt themselves tosupply the answer if the answer is not to be found in the term of the )ctitself.N

4oth parties relied on this passage& which may now be treated as authoritative.Mr $ordon O+ for the )lliance submitted that the +ourt of )ppeal had fallen intoerror by asking the 0uestion& which #ord Cilberforce said& should not be asked&and by themselves supplying the answer.

The background to the Act

==. The birth of the first child resulting from in vitro fertili,ation in 2uly =>H@prompted much ethical and scientific debate which in turn led to theappointment in 2uly =>@B of a +ommittee of n0uiry under the chairmanshipof 3ame Mary Carnock 34E to

consider recent and potential developments in medicine and sciencerelated to human fertili,ation and embryology; to consider what policiesand safeguards should be applied& including consideration of the social&



110

ethical and legal implications of these developments; and to makerecommendations.N

The +ommittee reported in 2uly =>@I !+mnd >L=I". ) Chite *aper waspublished in <ovember =>@H !+m B?>" when the 3epartment of 'ealth and

%ocial %ecurity recogni,ed !paragraph J" the particular difficulties of framinglegislation on these sensitive issues against a background of fast-movingmedical and scientific developmentN.

=B. There is no doubting the sensitivity of the issues. There were those whoconsidered the creation of embryos& and thus of life& in vitro to be eithersacrilegious or ethically repugnant and wished to ban such activitiesaltogether. There were others who considered that these new techni0ues& byoffering means of enabling the infertile to have children and increasingknowledge of congenital disease& had the potential to improve the humancondition& and this view also did not lack religious and moral arguments tosupport. <or can one doubt the difficulty of legislating against a backgroundof fast-moving medical and scientific development. t is not often that

*arliament has to frame legislation apt to apply to developments at theadvanced cutting edge of science.

=L. The solution recommended and embodied in the =>>A )ct was not to ban allcreation and subse0uent use of live human embryos produced in vitro butinstead& and subject to certain express prohibitions of which some have beennoted above& to permit such creation and use subject to specified conditions&restrictions and time limits and subject to the regimes of control brieflydescribed in paragraph I above. The merits of this solution are not a matterfor the 'ouse in its judicial capacity. t is& however& plain that while *arliamentoutlawed certain grotes0ue possibilities !such as placing alive animal embryoin a woman or a live human embryo in an animal"& it otherwise opted for a

strict regime of control. <o activity within this field was left unregulated. Therewas to be no free for all.

Section 11a

=I. t is against this background that one comes to interpret section =!="!a". )tfirst reading Mr $ordon5s construction has an obvious attraction: the )ct isdealing with live human embryos where fertili,ation is completeN& and thedefinition is a composite one including the last four words. 4ut the )ct is onlydirected to the creation of embryos in vitro, outside the human body !section=!B"". +an *arliament have been intending to distinguish between livehuman embryos produced by fertili,ation of a female egg and live humanembryos produced without such fertili,ationD The answer must certainly benegative& since *arliament was unaware that the latter alternative wasphysically possible. This suggests that the four words were not intended toform an integral part of the definition of embryo but were directed to the timeat which it should be treated as such. This was the view taken by the judge!in paragraph JB of his judgement" and by the +ourt of )ppeal !paragraphsB>& ?L& ?@" and agree with it. The somewhat marginal importance of the fourwords is in my opinion indicated by the fact that section =!="!b" appears tocontradict them. The crucial point& strongly relied on by Mr parker O+ in hiscompelling argument& is that this was an )ct passed for the protection of livehuman embryos created outside the human body. The essential thrust ofsection =!="!a" was directed to such embryos& not to the manner of their



111

creation& which *arliament !entirely understandably on the then current stateof scientific knowledge" took for granted.

=?. 4earing in mind the constitutional imperative that the courts stick to theirinterpretative role and do not assume the mantle of legislators& however&

would not leave the matter there but would seek to apply the guidance of#ord Cilberforce 0uoted above in paragraph =A:

!=" 3oes the creation of live human embryos by +< fall within the samegenus of facts as those to which the expressed policy of *arliament hasbeen formulatedD n my opinion& it plainly does. )n embryo created by+< are very similar organisms. The difference between them asorganisms is that the +< embryo& if allowed to develop& will grow into aclone of the donor of the replacement nucleus which the embryoproduced by fertili,ation will not. 4ut this is difference which plainly pointstowards the need for regulation& not against it.

!B" s the operation of the =>>A )ct to be regarded as liberal and permissivein its operation or restrictive and circumscribedD This is not an entirelysimple 0uestion. The )ct intended to permit certain activities but tocircumscribe the freedom to pursue them& which had previously beenenjoyed. #oyalty to the evident purpose of the )ct would re0uireregulation of activities not distinguishable in any significant respect fromthose regulated by the )ct& unless the wording or policy of the )ct showsthat they should be prohibited.

13 s the embryo created by +< different in kind or dimension from that forwhich the )ct was passedD *lainly not: as already pointed out& the

organisms in 0uestion are& as organisms& very similar.

Chile it is impermissible to ask what *arliament would have done if thefacts had been before it& there is one important 0uestion which maypermissibly be asked: it is whether *arliament& faced with the taxing taskof enacting a legislative solution to the difficult religious& moral andscientific issues mentioned above& could rationally have intended toleave live human embryos created by +< outside the scope ofregulation had it known of them as a scientific possibility. There is only onepossible answer to this 0uestion and it is negative.

=J. n support of his argument on construction Mr $ordon drew attention to threeprovisions of the )ct which& he submitted& could not be applied to embryoscreated by +<. The first of these was the starting point for the protectionprovided by the )ct& specified in section =!=" in relation to an embryocreated by fertili,ation but otherwise unprovided for. The second was the =Iday time limit provided in section L!I"& beginning with the day when thegametes are mixedN& inapplicable in a case where gametes are not mixed.Third was the absence of any re0uirement of consent by the donor of thereplacement nucleus& in contrast with the stringent re0uirement of consent inother cases as provided by section =B!c" and %chedule L. These are relevantpoints& and account must be taken of them when forming an overall judgment on the interpretation of section =!="!a". 4ut once it is acceptedthat *arliament did not have embryos created by +< specifically in mindwhen passing the )ct& it almost inevitably follows that discrepancies will arise if



112

the )ct is applied to another member of the same genus. The real 0uestion iswhether these discrepant features are of structural significance such thateffect cannot be given to the intention of *arliament without observing them.<either singly nor cumulatively do these three features have that effect. Theappearance of a two cell ,ygote !section =!=""& which occurs however the

embryo is created& provides a satisfactory starting point& there is a periodbefore that occurs& but like the Master of the olls !paragraph I?" do notthink this is of practical significance. The =I day time limit !section L!I"" isalternative to appearance of the primitive streak !section L!L"!a""& and it isopen to the %ecretary of %tate to prescribe a period shorter than =I days!section L!L"!c"". The )uthority may impose a re0uirement of consent as acondition of any licence to create an embryo by +<& and could beexpected to do so. $iven the clarity of *arliament5s purpose& do not regardthese discrepancies as significant.

=H. The criticisms made of the +ourt of )ppeal5s judgments are not; save in veryminor respects& soundly based. agree with the decision& which that courtreached on this interpretation 0uestion and substantially with the reasons

given for it.

Section 3(3)(d)

=@. t seems to me 0uite clear that +< does not involve replacing a nucleus ofa cell of an embryoN because there is no embryo until the nucleus of therecipient cell is replaced by the nucleus of the donor cell. accordinglyconclude that section L!L"!d"& which cannot have been drafted to prohibit+<& does not& almost fortuitously& have that result. The target of sectionL!L"!d" is in my opinion made plain by paragraph =B.=I of the Carnockeport& which need not be 0uoted but which was directed to a particularform of genetic manipulation& replacement of the nucleus of a fertili,ed

human egg. The Chite *aper !paragraph LJ" referred to techni0ues aimedat modifying the genetic constitution of an embryoN& and proposed thatlegislation should clearly prohibit all such activities& but with a power for*arliament itself& by affirmative resolution& to make exceptions to theseprohibitions if new developments made that appropriateN. %ection L!L"!d"was& infer& enacted to give effect to this recommendation. f& as Mr $ordoncontended& *arliament intended to ban all cloning by section L!L"!d"& itwould have been possible so to provide; but it seems clear that *arliamentdid not intend to prohibit embryo-splitting& which creates clones& and towhich the Carnock eport referred in paragraph =B.==. n my opinion& thesubsection cannot be interpreted to prohibit +<.

=>. 9or these reasons would dismiss the appeal with costs.

LORD &TE#

My #ords&

BA. %ection =!=" of the 'uman 9ertilisation and Embryology )ct =>>A defines thescope of the regulatory system created by the )ct. t provides:

SSS..except where otherwise stated-!a" embryo means a live human embryo where fertili,ation is

completeand



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!b" references to an embryo include an egg in the process of

fertili,ation& and& for this purpose& fertili,ation is not completeuntil the appearance of a two cell ,ygote.N

n so legislating *arliament acted on the scientific insight of a decade ago& vi,that an embryo could only be created by fertili,ation. The ordinary and obviousmeaning of section =!=" reflects that understanding. %ince =>>A the developmentof cell nuclear replacement has made possible the creation of an embryowithout the means of fertili,ation. The 0uestion arose whether embryos createdby cell nuclear replacement were covered by the =>>A )ct. 1verruling a firstinstance decision !6BAA=8 I )ll E =A=L"& the +ourt of )ppeal held that suchembryos are subject to the )ct: ) 14uintavalle v Secretary o* State *or ealt

6BAAB8 O4 JB@. t is of some importance to consider how as a matter ofinterpretative method the 'ouse should approach the central 0uestion. turn inthe first place to three aspects of this matter.

Purposive Interpretation

B=. n reaching a conclusion that cell nuclear replacement is a process coveredby section =!=" of the 'uman 9ertilisation and Embryology )ct =>>A the +ourtof )ppeal adopted a purposive approach: *ara BH. The extensiveinterpretation adopted by the +ourt of )ppeal could only be justified by apurposive approach. t was a necessary step in the reasoning of the +ourt of)ppeal but not a sufficient one. The +ourt of )ppeal found the basis for suchan approach in the fact that the 'uman ights )ct =>>@ extended theboundaries of purposive interpretationSwhere needs mustN. $iven that the=>>@ )ct is not applicable in the present case would accept the submission

of counsel for the appellant that this approach is not appropriate. 1n theother hand& the adoption of a purposive approach to construction of statutesgenerally& and the =>>A )ct in particular& is amply justified on wider grounds.n "a(ell v Markam !=>I?" =I@ 9 Bd HLH 2ustice #earned 'and explained themerits of purposive interpretation& at p HL>:

1f course it is true that the words used& even in their literal sense& are theprimary& and ordinarily the most reliable& source of interpreting themeaning of any writing: be it a statute& a contract& or anything else. 4ut isone of the surest indexes of a mature developed jurisprudence not tomake a fortress out of the dictionary; but to remember that statutesalways have some purpose or object to accomplish& whose sympatheticand imaginative discovery is the surest guide to their meaning.N

The pendulum has swung towards purposive methods of construction. Thischange was not initiated by the teleological approach of European +ommunity jurisprudence& and the influence of European legal culture generally& but it hasbeen accelerated by European ideas: see& however& a classic early statement ofthe purposive approach by #ord 4lackburn in )iver %ear "ommissioners v

damson !=@HH" B )pp +as HIL& HJL. n any event& nowadays the shift towardspurposive interpretation is not in doubt. The 0ualification is that the degree ofliberality permitted is influenced by the context& eg social welfare legislation andtax statutes may have to be approached somewhat differently. 9or these slightlydifferent reasons agree with the conclusion of the +ourt of )ppeal that section=!=" of the =>>A )ct must be construed in a purposive way.



114

Historical or Updating Interpretation

BB. That leads to the 0uestion whether it is appropriate to construe the =>>A )ct inthe light of the new scientific knowledge. n the case law two contradictory

approaches are to be found. t reminds one of the old saying that rules ofinterpretation hunt in pairsN: that for every rule there is a rule to the contraryeffect: see urro!s, Statute #a!, Lrd ed !BAAL"& p BHH and chapter =Bgenerally. n the older cases the view often prevailed that a statute must beconstrued as if one were interpreting it on the day after it was passed: 7e

#ong*ord !=@@>" =I *3 LI& LJ. This doctrine was dignified by the #atinexpression contemporanea e8position est optima et *ortissimo in lege. 4uteven in older cases a different approach sometimes prevailed.t was the idea encapsulated by #ord Thring& the great /ictorian draftsmanthat statutes ought generally to be construed as always speaking statutesN.n the +ourt of )ppeal& #ord *hillips of Corth Matravers M cited the earlyillustration of ttorney General v &dison 7elepone "o o* #ondon !=@@A" J O43BII. The Telegraph )ct =@J> gave the *ostmaster-$eneral an exclusive right

of transmitting telegrams.Telegrams were defined as messages transmitted by telegraph. ) telegraphwas defined to include any apparatus for transmitting messages or othercommunications by means of electric signalsN. Chen the )ct was passed theonly such means of communication was the process of interrupting and re-establishing electric current& thereby causing a series of clicks whichconveyed information by morse code. Then the telephone was invented. tconveyed the human voice by wire by means of a new process. t wasargued that because this process was unknown when the )ct was passed itcould not apply to it. The court held that absurd conse0uences wouldfollow if the nature and extent of those powers and duties 6under the )ct8were made dependent upon the means employed for the purpose of giving

the informationN: p B??. )nother illustration is "ristoper ill #td v singtonPiggeries #td 6=>HB8 )+ II= when #ord 3iplock observed& at p ?A= E-':

nless the %ale of $oods )ct =@>L is to be allowed to fossili,e the law andto restrict the freedom of choice of parties to contract for the sale ofgoods to make agreements which take account of advances intechnology and changes in the way in which business is carried on today&the provisions set out in the various sections and subsections of the codeought not to be construed so narrowly as to force upon parties tocontracts for the sale of goods promises and conse0uences different fromwhat they must reasonably have intended. They should be treated ratheras illustration of the application to simple types of contract of generalprinciples for ascertaining the common intention of the parties as to theirmutual promises and their conse0uences& which ought to be applied byanalogy in cases arising out of contracts which do not appear to havebeen within the immediate contemplation of the draftsman of the )ct in=@>L.N

) third illustration is the case law which held that bodily harmN in the 1ffencesagainst the *erson )ct =@J= may be interpreted as extending to psychiatric harmwhich was unknown at the time of the passing of the legislation: ) v "an9'ook 6=>>I8 = C# J@>; ) v ursto! 6=>>H8 = +r )pp =II& ) v ursto! sub nom ) v Ireland 6=>>@8 )+ =IH: see also Mc"artan 7urkington reen v 7imes +e!spapers

#td 6BAA=8 B )+ BHH& per #ord 4ingham& at p B>B; my judgment& at pp B>?-B>J;



115

:ictor "andler International #td v "ustoms and &8cise "ommissioners 6BAAA8 =C# =B>J& pp =LAL-=LA?& paras BH-LL per %ir ichard %cott /-+.

BL. 'ow is it to be determined whether a statute is an always speaking statute orone tied to the circumstances existing when it was passedD n ) v ursto!,

supra& the 'ouse of #ords held& at p =?@:

n cases where the problem arises it is a matter of interpretation whethera court must search for the historical or original meaning of a statute orwhether it is free to apply the current meaning of the statute to presentday conditions. %tatutes dealing with a particular grievance or problemmay sometimes re0uire to be historically interpreted. 4ut the draftingtechni0ue of #ord Thring and his successors have brought about thesituation that statutes will generally be found to be of the Galwaysspeaking5 variety: see )oyal "ollege o* +ursing o* te nited -ingdom v

epartment o* ealt and Social Security 6=>@=8 )+ @AA for an example ofan Galways speaking5 construction in the 'ouse of #ords.N

n response to a specific 0uestion counsel for the appellant did not contend thatthe =>>A )ct falls in the exceptional category. $iven its subject matter he wasright not to do so. The result is that the =>>A )ct may be construed in the light ofcontemporary scientific knowledge. This conclusion also does not solve theproblem before the 'ouse. t does& however& make it possible to considerwhether the new techni0ue of cell nuclear replacement& despite the restrictiveliteral wording of section =!=" of the =>>A )ct& is covered by the *arliamentaryintent.

Applying a statute to new technology

BI. The critical 0uestion is how the court should approach the 0uestion whether&in the light of a new scientific development& the *arliamentary intent coversthe new state of affairs. n a dissenting judgment in )oyal "ollege o* +ursing

o* te nited -ingdom v epartment o* ealt and Social Security 6=>@=8 )+@AA #ord Cilberforce analysed the position with great clarity. 'e observed& atp @BB 4-E:

n interpreting an )ct of *arliament it is proper& and indeed necessary& tohave regard to the state of affairs existing& and known by *arliament to beexisting& at the time. t is a fair presumption that *arliament5s policy orintention is directed to that state of affairs. #eaving aside cases ofomission by inadvertence& this being not such a case& when a new stateof affairs& or a fresh set of facts bearing on policy& comes into existence&the courts have to consider whether they fall within the *arliamentaryintention. They may be held to do so& if they fall within the same genus offacts as those to which the expressed policy has been formulated. Theymay also be held to do so if there can be detected a clear purpose in thelegislation which can only be fulfilled if the extension is made. 'owliberally these principles may be applied must depend upon the nature ofthe enactment& and the strictness or otherwise of the words in which it hasbeen expressed. The courts should be less willing to extend expressedmeanings if it is clear that the )ct in 0uestion was designed to berestrictive or circumscribed in its operation rather than liberal or permissive.They will be much less willing to do so where the subject matter is different



116

in kind or dimension from that for which the legislation was passed. n anyevent there is one course which the courts cannot take& under the law ofthis country; they cannot fill gaps; they cannot be asking the 0uestionGChat would *arliament have done in this current case- not being one incontemplation- if the facts had been before itD Gattempt themselves to

supply the answer& if the answer is not be found in the terms of the )ctitself.N !Emphasis added"

n 'it;patrick v Sterling ousing ssociation #td 6BAA=8 = )+BH #ord Cilberforce5sanalysis was approved: see in particular #ord %lynn of 'adley& at LL9; #ord <ichollsof 4irkenhead& at I?9; #ord 'utton& at JL9-JI); #ord 'ob house of Cood borough&JH'-J@). The analysis of #ord Cilberforce can now be regarded as authoritativelysettling the proper limits of the type of extensive interpretation now underconsideration.

B?. n such a case involving the application of a statute to new technology it isplainly not necessary to ask whether the express statutory language isambiguous. %ince nobody suggests the contrary& say no more about the

point. eference was made authorities such as $ones v %rotam Park Settled&states 6=>@A8 )+ HI and Inco &urope #td v 'irst "oice istri(ution 6BAAA8 =C# ?@J& which deal with the limited circumstances in which a court maycorrect a clear drafting mistake. 'ere there was no drafting mistake. 4ut inorder to give effect to a plain parliamentary purpose a statute maysometimes be held to cover a scientific development not known when thestatute was passed. $iven that *arliament legislates on the assumption thatstatutes may be in place for many years& and that *arliament wishes to passeffective legislation& this is a benign principle designed to achieve the wishesof *arliament.

The Priary Arguent

BJ. The Master of the olls dealt with the primary argument in trenchant terms.'e said !at para L@"

To the 0uestion of whether it is necessary to bring embryos created bycell nuclear replacement within the regulatory regime created by the )ctin order to give effect to the intention of *arliament& there can only beone answer. t is essential. There is no factor that takes embryos createdby cell nuclear replacement outside the need& recogni,ed by *arliament&to control the creation and use of human organisms. The conse0uenceof +rane 25s judgment is that anyone is free to create embryos by cellnuclear replacement and to experiment with these without limitation oftime or any other restriction. There is no bar to placing a human embryocreated in this way inside an animal. There is no bar to placing an animalembryo created in this way inside a woman. ntil the $overnmentintervened with the 'uman eproductive +loning )ct BAA= it was legal touse the process of cell nuclear replacement to produce and use anembryo to create a human clone. t is clear that these results are whollyat odds with the intention of *arliament when introducing the =>>A )ct.N

agree. would summarise my reasons as follows. The long title of the =>>A )ctmakes clear& and it is in any even self-evident& that *arliament intended theprotective regulatory system in connection with human embryos to becomprehensive. This protective purpose was plainly not intended to be tied tothe particular way in which an embryo might be created. The overriding ethical



117

case for protection was general. <ot surprisingly there is not a hint of a rationalexplanation why an embryo produced otherwise than by fertili,ation should nothave the same status as an embryo created by fertili,ation. t is a classic casewhere the new scientific development falls within what #ord Cilberforce calledthe same genus of factsN and in any event there is a clear legislative purpose

which can only be fulfilled if an extensive interpretation is adopted. )s #ord4ingham has demonstrated the makeweight arguments based on the difficulty ofapplying some regulatory provisions to the new development cannot possiblyalter the clear legislative purpose. n the result would either treat the restrictivewording of section =!=" as merely illustrative of the legislative purpose or imply aphrase in section =!=" so that it defines embryo as a live human embryo where 6ifit is produced by fertili,ation8 fertili,ation is completeN. f it is necessary to choose would adopt the former techni0ue. t fits readily into section =!=" since the wordsof =!="!b" plainly make otiose the words where fertili,ation is completeN in section=!="!a". Treating the latter as merely illustrative re0uires no verbal manipulation.

BH. 9or my part l am fully satisfied that cell nuclear replacement falls within thescope of the carefully balanced and crafted =>>A )ct.

The Alternative Arguent

B@. The alternative argument was based on section L!L"!d" which provides that alicence cannot authori,e replacing a nucleus of a cell of an embryo with anucleus taken from a cell of any person& embryo or subse0uent developmentof an embryoN. The argument was that the development of cell nuclearreplacement is prohibited under section L!L"!d". The Master of the ollsobserved that he could see no basis for arguing that an unfertili,ed egg& priorto the insertion of the nucleus by the cell nuclear replacement process& isre0uired to be treated under the )ct as if it is an embryo: para ?=. agree.

isposal

B>. 9or the reasons given by #ord 4ingham of +ornhill and #ord 'offmann& as wellas the reasons have given& would also dismiss the appeal.

LORD HOMA##

My #ords&

LA. have had the advantage of reading in draft the speech of my noble andlearned friend #ord 4ingham of +ornhill& with which agree. gratefully adopthis statement of the facts and the relevant legislation.

L=. The issue in this appeal concerns the application of the =>>A )ct to embryosproduced by cell nuclear replacement in unfertili,ed eggs. shall call themcloned embryosN. The creation of embryos by cloning was unknown at thetime of the )ct and the definition of an embryo in section =!="& as well ascertain other provisions& assumes that it will be created by fertili,ation.

LB. The argument for the respondent is that the clear policy of the )ct is toregulate the creation& keeping or use of embryos. +loned embryos areembryos and therefore the )ct should apply to them in the same way as tofertili,ed embryos. This involves treating some of the words in the definitionand elsewhere in the )ct as confined in their application to fertili,ed embryos



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and failing of reference in relation to cloned embryos. 4ut that can beaccommodated within the orthodox principles of construction explained by#ord Cilberforce in )oyal "ollege o* +ursing o* te nited -ingdom v

epartment o* ealt and Social Security 6=>@=8 )+ @AA& @BB and enables thecourt to give effect to the policy of the statute.

LL. Mr $ordon O+& in his admirably clear reply on behalf of the appellants& wasinclined to accept that such a construction would be legitimate and proper ifit was clear that the only relevant policy of the )ct was to regulate the use ofembryos. 4ut he said that section L!L"!d" disclosed another relevant policy&which was altogether to prohibit cloning. t is true that it referred only toreplacing the nucleus of a cell of an embryo and not to cloning anunfertili,ed egg. 4ut that was for the same reason as the definition of anembryo contemplated that it would have been fertili,ed: because cloningunfertili,ed eggs was unknown at the time of the )ct.

LI. %o Mr $ordon said that another approach to the construction of the )ctwould be to concentrate less upon the fact that cloned embryos were

embryos and more on the fact that they were cloned. The policy shown bysection L!L"!d" means that one cannot simply assume that cloned embryoswould have been regulated like ordinary fertili,ed embryos. They might havebeen prohibited like the cloning of fertili,ed embryos already in existence.

L?. Mr #ords& can see that this argument might have created a genuinedilemma if Mr $ordon had been able to take the next step and put forward&as an alternative construction& a reading of the )ct which brought clonedembryos within the prohibition in section L!L"!d". t would then have beennecessary to decide which of these alternative constructions was supportedby the better arguments. 4ut Mr $ordon& rightly in my opinion& felt unable todo so. %ection L!L"!d" does not prohibit cloning in general but only cloning

when the host is an existing embryo.LJ. This left Mr $ordon having to say that one should not construe the )ct as

either regulating or prohibiting cloned embryos because one could not tellwhether *arliament& if it had been aware of them& would have done one orthe other. To make that choice was& he said& a legislative act. 4ut& as #ordCilberforce pointed out in the )oyal "ollege o* +ursing case& a decisionabout whether a statute applies to unforeseen circumstances does notinvolve speculating about what *arliament would have done. t is a decisionabout what best gives effect to the policy of the statute as enacted. Even if itwere as plausible to read the )ct as prohibiting cloned embryos as it was toread it as regulating them& the one reading which would be entirelyimplausible and irrational would be to leave them neither prohibited norregulated. The court has to choose between the other two constructions andas Mr $ordon acknowledges that section L!L"!d" cannot be construed asapplying to cloned embryos& it follows that they must come within thedefinition of embryos in section =!=".

LORD MILLETT

My #ords&

LH. The primary 0uestion in this case is whether embryos created by the processof cell nuclear replacement !the )ctN". Chen the )ct was passed the onlyknown processes by which a human embryo could be created& including theprocess of nuclear substitution& took a fertili,ed egg as the starting point& and



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accordingly involved a degree of genetic manipulation. )n embryo createdby +<& however& is not the product of fertili,ation and does not involvegenetic manipulation. This was a later development in embryology whichwas not foreseen by the Carnock +ommittee whose eport led to thepassing of the )ct or by *arliament when the )ct was passed.

L@. The 0uestion is one of statutory construction. n construing a statute the taskof the court is to ascertain the intention of *arliament as expressed in thewords it has chosen. The *arliamentary intention is to be derived from theterms of the )ct as a whole read in its context. 1nce it has been ascertained&the court must give effect to it so far as the legislative text permits.

L>. The search in every case is for what *arliament did intend& not what it wouldhave intended had it foreseen later developments. n the present case the0uestion is not whether *arliament positively intended to cover embryosproduced by a process such as +< which does not involve the use of afertili,ed egg; it plainly did not& for it did not foresee the possibility. The0uestion is whether *arliament intended to legislate only for embryos created

by a process which does involve the use of a fertili,ed egg or whether itintended to legislate for embryos by whatever process they are created.

IA. The scope of the )ct is to be found in section =. %ubsection !=" defines theword embryoN. t is in the following terms:

=.-!=" n this )ct& except where otherwise stated-!a" embryo means a live human embryo where fertili,ation is

complete&and

!b" reference to an embryo include an egg in the process offertili,ationS.N

I=. 4efore turn to the proper construction of this subsection& would make twogeneral observations about the statutory scheme. 9irst& as appears from thelong title to the )ct& it is an )ct

to make provision in connection with human embryos and anysubse0uent development of such embryos.N

These are wide words in completely general terms. n themselves they are apt torefer to human embryos however created.

IB. %econdly& the )ct not only makes provision for the licensing and regulation ofthe creation of embryos& but also for their subse0uent use for treatment orresearch !section L!="". n particular it prohibits activities& which *arliamentevidently regarded as peculiarly objectionable& such as the placing in awoman of a live embryo other than a human embryo !section L!B"!a" and theplacing of a human embryo in an animal !section L!L"!b"".

IL. <ow whatever may be the status of an organism created by +< before itssingle cell has split into two& once it has reached the two-cell stage it is anembryo in every accepted sense of that term. n the case of a humanembryo& it is a live human organism containing within its cell or cells a full setof IJ chromosomes with the normal potential to development and& if plantedin a woman& to become a foetus and eventually a human being. Chile theremay or may not be good reasons for distinguishing between the differentprocesses by which embryos may be created when it comes to regulating



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their creation& no one has been able to suggest a reason why *arliamentshould differentiate between the different processes when it comes toregulating their subse0uent use. The placing oa a human embryo in ananimal is not the less abhorrent because the embryo was created by +<.

II.

These considerations indicate to may mind that *arliament intended to makecomprehensive provision for the protection of human embryos howevercreated& and that the failure of particular provisions to capture embryosproduced by a process not involving fertili,ation is not because *arliamentintended to leave them unregulated but because *arliament did not foreseethe need to deal with them.

I?. Cith this introduction can turn to the wording of section =!=". The definition inpara !a" is in part circular& since it contains the very term to be defined. tassumes that the reader knows what an embryo is. The purpose of theopening words of the paragraph is not to define the word embryoN but torather to limit to an embryo which is !i" live and !ii" human. These are theessential characteristics& which an embryo must possess if it is to be given

statutory protection. The important point is that these characteristics areconcerned with what an embryo is& not how it is produced. They are clearlynecessary; the 0uestion is whether they are sufficient.

IJ. The concluding words of the paragraph !where fertili,ation is completeN"have a different function. They do not describe the essential characteristicsof an embryo& and do not form part of the definition of the word embryoN.They merely indicate the stage of development which an embryo must reachbefore it 0ualifies for protection. They are obviously inapplicable to embryoscreated by a process& which does not involve fertili,ation& and accordinglysay nothing about the status of such embryos.

IH.

*ara !b" is likewise inapplicable to embryos created by a process which doesnot involve the use of a fertili,ed egg. ts presence& however& makes theretention of the concluding words of para !a" pu,,ling. t is difficult to discernany reason why *arliament should take pains to exclude the application ofthe )ct to embryos produced by the use of a fertili,ed egg while fertili,ation isstill incomplete by para !a" only to reapply it during the same period by para!b". t may merely be due to the fact that once a two-cell ,ygote emergesthe organism is undoubtedly an embryo& whereas before that stage isreached its description as an embryo is more problematic and calls for adeeming provision.

I@. 4ut it is more likely to owe its provenance to the vagaries of the *arliamentaryprocess. *ara !b" was introduced into the 4ill at eport stage. ts evidentpurpose was to bring the protection of the 4ill forward by some LA hours fromthe completion of the process of fertili,ation to its beginning. t cannot havebeen its purpose to reduce the scope of the 4ill. n these circumstances amsatisfied that para !b" is also directed to the stage of development which anembryo must reach before it 0ualifies for the protection of the )ct. #ike theconcluding words of para !a" it can have no application to embryosproduced by a process& which does not involve fertili,ation and does notoperate to cut down the scope of the opening words of para !a". n myopinion& this is where the essential definition of embryoN is to be found& and itis defined by what it is and not by the process by which it is created.



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I>. This construction does not re0uire words to be written into the section. There isno gap to be filled by implication. <or is it a matter of updating the meaningof the word embryo by reference to subse0uent developments. t is simply amatter of giving the opening words of para !a" their natural meaning&recogni,ing the function of the concluding words& and confining their

operation to the case where they are capable of application. 1nce it isaccepted that the embryo is defined by reference to what it is and not byreference to the process by which it is created& all need for updating fallsaway. The result is to bring within the regulatory scope of the )ct embryosproduced by a process& which was unknown& was unknown to *arliamentwhen the )ct was passed. 4ut such embryos are in all respects save themethod of their creation indistinguishable from other embryos. They are aliveand human& and accordingly possess all the features& which *arliamentevidently considered make it desirable to regulate their use for treatment orresearch. ) construction which allowed for the regulation of embryosproduced by fertili,ation and not of embryos produced without fertili,ationwould not only defeat the evident purpose of *arliament to makecomprehensive provision for the creation and use of human embryos but

would produce an incoherent and irrational regulatory code. Chile this couldbe the inevitable result of legislation enacted at a time of rapid technologicaldevelopment& a construction which leads to this result should not be adoptedwhere it can be avoided.

?A. ) secondary 0uestion is whether +< is prohibited by section L!L"!d". n myopinion it is not. The subsection is directed to nuclear substitution. t prohibitsreplacing a nucleus of a cell of an embryoN. +< does not involve any suchprocess.

?=. 1f course& *arliament did not positively intend to prohibit +<& the possibilityof which it did not foresee. t might or might not have prohibited it if it had

done so. 4ut such considerations are irrelevant. Even if *arliament hadintended to prohibit +< it failed to do so. The court cannot give effect to*arliament5s intention if the legislative text does not permit it. The only0uestion is whether +< falls within the statutory language. t manifestly doesnot.

?B. eliance was placed on the limited nature of the prohibition in section L!L"!d"to argue that logically *arliament must have intended either to leaveembryos created by processes such as +< outside the scope of the )ctaltogether& thereby compelling a different answer to the primary 0uestion& orto prohibit their creation.

?L. The argument assumes that it would be illogical to prohibit nuclear substitutionwhile permitting +<. This has not been demonstrated to my satisfaction. 4utin any case the argument from logic is fallacious. $iven that *arliamentintended to make comprehensive provision for the creation and use ofembryos however created and to prohibit the process of nuclear substitution&its failure to bring +< within the prohibition& even if illogical& is sufficientlyexplained by the fact that *arliament did not foresee the need to do so.

?I. would dismiss the appeal.

LORD &COTT O O&COTE

My #ords&



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??. have had the advantage of reading in advance the opinions of my noble

and l earned friends #ord 4ingham of +ornhill and #ord %teyn. 9or the reasonsthey give& with which am in full agreement& too would dismiss this appeal.

EF&DEM GE#ERI& RFLE

THE ATTOR#E J GE#ERAL 0, ABDFL A#D OTHER&> 17?94 EA ?2<=

Mac3uff& 2. read the following judgement of the court:

This is an appeal by way of case stated made at the re0uest of the honourable the)ttorney-$eneral on behalf of the crown against the ac0uittal by the senior residentmagistrate& Mombasa& of the three respondents on +ourt = of the charge sheet as beingerroneous in point of law.

The respondents were charged as follows:

+ourt =&tate'ent o! o!!ence

Besettin$ contrar* to s,71 B o! the .ena% Code

.articu%ars o! O!!ence

)bdulla so brahim& Maji so <yamwonga; *eyo so Mwavodo; on the BA th day of1ctober& =>?>& at Tudor oad& Mombasa in the +oast *rovince& unlawfully beset theTudor oad& Mombasa& with a view to preventing one 3onye so Mchoki from doing an

act which the said 3onye so Mcheki was entitled to do& namely to ride a bicycleN.

%ection >= 4 of the *enal +ode provides as follows:)ny person who watches or besets any premises& or the house or other placewhere any person resides or works or carries on business or happens to be& or theapproaches to such premise& house or other place& with a view to preventing anyperson from doing& or compelling him to do& any act which person has a legalright to do or abstain from doing& is guilty or an offence and is liable toimprisonment for a term not exceeding six months or to a fine not exceeding fivethousand shillings& or to both such imprisonment or fineN.

The section then contains a proviso& which has no relevance to the present case.

The learned senior resident Magistrate found the following facts to be admitted orproved:

!=" 3onye so Mcheki is employed by M.M. +handaria as a house boy in the1ld Town& Mombasa.

!B" 3onye lives in Tudor Estate& Mombasa.!L" 3onye goes to and from his work by bicycle.!I" 1n 1ctober BA& =>?>& 3onye went to his employer5s house in the morning

but returned to his own house at about > a.m.!?" Chilst returning from his house to his place of work 3onye was stopped by

three respondents in Tudor oad.



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!J" The respondents asked 3onye if he did not know that it was the BAth andthat he should not cycle. The conversation continued about 2omo(enyatta until *olice arrivedN.

)t the conclusion of the prosecution case a submission of the case to answer was madebut was overruled& the learned magistrate stating that he would give his reasons if

necessary in his judgement. <one of the respondents gave evidence or made unswornstatements and none of them called witnesses.The learned magistrate delivered the following judgement:

The three accused& )bdulla brahim& Maji <yawoga and 9oyo Mwavodo& are chargedon two counts. The first court alleges besetting& contrary to s.>= 4 of the *enal +ode& andthe second likely to cause breach of the peace& contrary to s.=H@!I" of the *enal +ode.

The facts are not really in dispute. The three accused stopped 3onye so Mcheki !*.C.=" who was riding his bicycle in Tudor oad& Mombasa on 1ctober& B>& =>?>. They toldhim that he should not be riding a bicycle that day as the day had some connectionwith (enyatta and )fricans were forbidden to ride bicycles on that day.

The three accused were arrested by the police. Mr. ustan 'ira for accused-having earlier submitted that there was no case to answer a submission& whichwas overruled& submitted that in s.>= 4 of the *enal +ode the words or otherplaceN came within the e"usde' $eneris rule.n support of the contention he referred me to p.=I@L or %troud5s 2udicial3ictionary !Bnd Edn"& under Title& *lace. think his submission is correct although am not very impressed with the actual authority 0uoted in support of it. Thematter is more clearly dealt with in Maxwell on The Inter+retation o! &tatutes> !Hth Edn." at s.v of +hapter xi at p.B@I onwards. t is also of interest to note that theform of charge R,/, Hi))ert> =L +ox& p.@H& gives support to the learnedadvocate5s contention although he cited it for a different purpose. therefore find all the accused not guilty on the first count. am satisfied thatthere is ample evidence to convict each accused on the second count. accordingly find each accused guilty on the second count.N

The issue on which our opinion is sought and the 0uestions for determination areset out by the learned magistrate in his case stated as follows:

KO+inion #ittle need be added to the authorities given in the judgement except to refer top. BAB? of %tround5s (udicia% Dictionar* !Lrd Edn." under title:G1ther5 at para J where Lord Tenterdens Ru%e is stated& and p. BBAI of the same

work at the Title:

uestion

The 0uestion upon which the opinion of the court is desired is whether upon the

facts of the present case& came to a correct determination and decision inpoint of law and if not the %upreme +ourt is respectfully re0uested to reverse oramend my determination or remit the case to me with the opinion of the courtthereon.

The 0uestion of law which the learned )ttorney-$eneral desire to be submittedfor the opinion of the %upreme +ourt are as follows:



124

!i" Cas the learned trial magistrate correct in law in ac0uitting the accusedon the first count.

!ii" Cas the learned trial magistrate correct in law in holding that the wordsGor other place5 in s.>= 4 of the *enal +ode must be constructed e"usde'

$eneris with the words Gany premises& or the house5 in that section.N

Ce propose to consider the second of these 0uestions first& since the answer to the first0uestion posed is dependant on the answer to the second 0uestion.To support his decision the learned magistrate relied on certain authorities. The first ofthese is %troud5s (udicia% Dictionar* of which we have the Lrd Edition.nder the title placeN there are numerous example cited of the words placeN andother placeN being interpreted by the courts. Ce agree& however& that it is impossibleto obtain from these examples any clear guidance as to the meaning to be given to thewords or other placeN in an enactment not in +ari 'ateria with one of the instancesthere 0uoted. The learned magistrate also refers to the little otherN at para !J" !atp.BAB? et.se0."& where he has apparently relied on the author5s statement that:

!J" Chere general words follow particular ones& the rule is to construct themas applicable to persons e"usde' $eneris !per Tenterden> C,(,> &andi'an 0,

Breach> B 5 C,77". This rule has been Gacted upon in all times& but nowhere moreclearly stated then by #ord Tenterden in &andi'an 0, Breach !per 3enman& +.2.itchen 0, &haw& H #.2. M.+. =J": and it is therefore sometimes called Lord

Tenderdens Ru%e> which as regards the word Gother5 may perhaps be more fullystated thus: Where a statute> or other docu'ent> enu'erates se0era% c%asses o!

+ersons or thin$s> and i''ediate%* !o%%owin$ and c%assed with such enu'eration

the c%ause e')races Nother +ersons or thin$s J the word Nother wi%% $enera%%* )e

read as Nother such %i-e> so that the +ersons or thin$s therein co'+rised 'a* )e

read as e"usde' $eneris which> and not a ua%it* su+erior to> or di!!erent !ro'>

those s+eci!ica%%* enu'erated, The +rinci+%e o! this ru%e as re$ards statutes was

e@+%ained )* en*an> C,(,> in R,/, Wa%%is <6 T,R, 37=> wherein he said that i! the

%e$is%ature had 'eant the $enera% words to )e a++%ied without restriction it Nwou%d

ha0e used on%* one co'+endious word, This general statement is 0ualified in the same paragraph by the following statement:

Ket> on the other hand> thou$h Nit is 0er* %i-e%* that in !or'er da*s the doctrine

was a++%ied strict%*> there are cases which show that the 'odern tendenc* is to

re"ect a restricted construction <+er Esher> H, R,> Anderson /, Anderson> 1764

1,B, 87=> and 0er* !reuent%* the word recei0ed its wide and %ar$er

inter+retation o! e0er* other sort or -ind,

)nd at para !@" the author says:!@" It is +erha+s i'+ossi)%e to %a* down an* wor-a)%e ru%e to deter'ine which

o! these two inter+retations the word shou%d recei0e in an* case not a%read*

co0ered )* authorit*, There!ore> it wou%d see' to )e the 'ost +ractica%%* use!u%

wa* to ran$e> so !ar as +ossi)%e> the cases into their two c%asses o! inter+retation,

A, E"ude' $eneris

B,

Fnrestricted%* co'+rehensi0e,

'e then goes on to give examples of both interpretations. n our view no assistance canbe derived from this authority.

The learned magistrate refers to the form of charge in R,/, Hi))ert and others !="& =L +ox+.+. @B. This charge was based on the particulars of that case and had no applicationto the circumstances of the present case.

The learned magistrate next relied on Maxwell on The Inter+retation o! &tatutes !Hth Edn."&section / of +hapter R at p. B@I et. %e0. 'e does not refer to any passage in particularbut it would appear from the generality he has treated this commentary as supportingthe defence contention that he has taken it as an authority for the proposition that the



125

words or other place5 must necessarily be construed under the e"usde' $eneris doctrine and to be restricted in application to the same $enus as the words antecedentthereto. Ce do not think that the explanation given in Maxwell is properly capable ofsuch an exclusive interpretation. Ce think the learned magistrate may haveconcentrated his attention on the following passage:

KBut the $enera% word which !o%%ows +articu%ar and s+eci!ic words o! the sa'e

nature as itse%! ta-es its 'eanin$ !or' the' and is +resu'ed to )e restricted to

the sa'e $enus as those words,

The sentence following& however& reads:KO! course> the restricted 'eanin$ which +ri'ari%* attaches to the $enera% word

in such circu'stances is re"ected when there were adeuate $round to show that

it has not )een used in the %i'ited order o! ideas to which its +redecessors

)e%on$, I! it can )e seen !ro' a wider ins+ection o! the sco+e o! the %e$is%ation

that the $enera% words> notwithstandin$ that the* !o%%ow +articu%ar words> are

ne0erthe%ess to )e construed $enera%> e!!ect 'ust )e $i0en to the intention o! the

%e$is%ature as $athered !ro' the %ar$er sur0e*,

t will be evident then that the 0uestion as to whether the words or other placeN are tobe interpreted restrictively under the e"usde' $eneris doctrine or can be given acomprehensive interpretation falls to be considered in the light of the interpretation oflegislation in +ari 'ateria%> if any& which has been the subject of judicial interpretationand in the light of the intention of the legislature.

Ce were referred to the case of Gu%%e* and others 0, Harrison !B"& 6=>?J8 B )ll E.. B?I&where the words house& room or other placeN were used s.= of the %unday 1bservance)ct& =H@A& and $oddard& +.2. held that the meaning of the word placeN was notrestricted by the words houseN or roomN which preceded it and that part of a parkused for a motor cycle competition was a placeN within sufficient authority to enable usto apply it in the present case since the evil aimed at was very different& it is at the leastillustrative of the application of the more comprehensive interpretation re0uired to be

given to these words to meet the intention of the legislature.

n Charnoc- 0, Court !L"& 6=@>>8 B +h.L?& however& this decision was not apply. This was acase which was decided on the =@H?. The relevant parts of this section read:

.ena%t* !or inti'idation or anno*ance )* 0io%ence or otherwise, E0er* +erson who with

a 0iew to co'+e% an* other +erson to a)stain !ro' doin$ or to do an* act which such

other +erson has a %e$a% ri$ht to do or a)stain !ro' doin$> wron$!u%%* and without %e$a%

authorit*:

I. Watches or )esets the house or other +%ace where such other +erson

resides> or wor-s> or carries on )usiness> or ha++ens to )e> or the

a++roach to such house or +%ace, &ha%% on con0iction thereo! )e

%ia)%e,t was held that the words in the enactment covered a landing-stageN and%tirling 2.& in his ratio decided l stated:

Kthe words N+%ace where he ha++ens to )e see' to 'e to e')race an* +%ace

where the wor-'an is !ound> howe0er casua%%*,

Ce think it is clear that the wording of s.>= 4 of the *enal +ode was taken from theenactment under consideration in Tar'acs case !L"& and that itself this decisionconstitutes strong persuasive reasoning for a like decision in the present case. Moreover&if we look& as we consider we must& to what we believe to have been the intention of thelegislature in enacting s.>= 4 of the *enal +ode& then we think this also provides a strong



126

reason for not employing the ejusdem generis doctrine, Ouite clearly the intention of thelegislature in s.>= 4 of the *enal +ode was to protect the unfettered liberty of theindividual in going about his lawful occasions without let or hindrance and for thepurpose to protect him in whatever place he happened to beN. Ce cannot conceivethat the legislature could possible have intended to protect the individual from being

beset him on& for example& a public highway on his way to or form his home orworkplace. Ce cannot see any reason to conclude that there was ever wordshappens to beN& to restrict the other placeN to a place of the genus of a houseN.The learned magistrate does not appear to have considered the meaning of the wordbesettingN& but in our view there was clear evidence of the complainant having beenencircled by the respondent with the intent necessary to constitute the offence and thathe was in fact besetN.The answer to the 0uestion stated for our determination therefore is:

!i" the learned trial magistrate was not correct in law in holding that the wordsor other placeN in s. >= 4 of the *enal +ode must be construed e"usde'

$eneris with the words any premises& or the houseN in that section.!ii" The learned trail magistrate was not therefore correct in law in ac0uitting the

respondents on the first count.

The proceedings are therefore returned to the magistrate with a direction that hesubstitute a conviction in place of an ac0uittal against all the respondents on the firstcount.

Cith regard to sentence the +rown has intimated that it is not seeking additionalpunishment. n view of that intimation the leaned magistrate may feel disposed toconsider whether the provisions of s.LL of the *enal +ode my meet the justice of thecase..roceedin$s returned to 'a$istrate with a direction to su)stitute a con0iction in +%ace o!

an acuitta% a$ainst a%% the res+ondents,

#OTE: n this case& the judge argues that the e"usde' $eneris rule should not be applied

to the phrase or other place where any personShappens to beN because the statute in0uestion was based on an English statute which contained a similar phrase& and anEnglish court had not applied the rule to that phrase in English. 'e implies& therefore& thata phrase is a local statute that is similar& or identical to one in an English statute should beinterpreted in the same way as English courts have interpreted it. 4ut courts in East )fricado not always apply such a rule of interpretation.N n R, u'u> we have seen that the judge refused to apply the English meaning of the word wife or husbandN to a ganda)ct. n (i0ra" /, De0ra" 6=>J@8 E.). BJL. The +ourt of )ppeal refused to apply theprinciple of an English case interpreting a similar provision in an English )ct to the entestriction )ct of (enya !see %awyer K 'iller p. ?J-?@". 1n the other hand& inMan'ohandes Derachand /, a%*and !=>?A" =H E.).+.). JL& !%awyerr pBJ" the court didapply the English interpretation although it considered it led to an unfortunate result in)den. n view of this& are you persuaded by this reasonDf judges in East )frican sometimes apply an English interpretation and sometimes to do&we cannot find the reason for the decision in a rule about the applicability of Englishdecisions. Ce will have to look outside the !or'a% %e$a% ru%es to find rea% reason for thedecision. t was a fact in )bdullah that an )frican nationalist was arrested by colonialpolice and convicted by a colonial court after engaging in political activity in support ofan )frican nationalist leader.3oes the judge find any of these facts to be materialN factsD 3o you think they wereD



127

+onsider the following cases which all deal with the 0uestion Chen is bicycle acarriageDN

a. Ta*%or 0, Goodwin 6=@H>8 a O.4.3. BB@: )ccused was charged under %tatuteforbidding furiously driving a carriageN on the highway in that he was

furiously driving a bicycle. He%d> guilty. *er Mellor& 2.; it may be that bicyclewere unknown at the time when the )ct was passed& but the legislatureclearly desired to prohibit the use of any passenger. The 0uestion is& whethera bicycle is a carriage within the meaning of the )ct. think the wordGcarriage5 is large enough to include a machine such as a bicycle& whichcarries the person who gets upon it& and think that such a person may besaid to Gdrive5 it. 'e guides as well as propels it& and may be said to drive it asan engine driver is said to drive an engine. The furious driving of a bicycle is

clearly within the mischief of the section& and it seems to me to be within themeaning of the words& giving them a reasonable constructionN. #uch& 2.&concurred in 2udge Mellor5s opinion.

b.

Wi%%ia's 0, E%%ia> 6=@@A8 ? O.4.3. =H?& ) local turnpike act provided a toll forevery carriage of whatever description& and for whatever purpose& whichshould be drawn or impelled& or set or kept in motion by stead or any otherpower or agency than being drawn by any horse or horses& or other beast orbeasts or draught& any sum not exceeding ? s.N 3efendants were chargedwith unlawfully charging tools upon bicycles& which the defendants claimedwere comprehended under the word carriageN. He%d> guilty. .er #ush& 2:S) bicycle is not a Gcarriage5 within the meaning of the #ocal Turnpike )ct.Chere the words employed by the legislature do not directly apply to theparticular case& we must consider the object of the )ct& and therefore inTa*%or 0, Goodwin it was held that the words furiously driving any sort ofcarriageN applied to a bicycle& for it was the object of the )ct to prevent any

injury from the furious driving of any kind of vehicle. The present )ct beginswith imposing a toll upon particular carriages which are described or othersuch carriageN and then imposes a further tool upon every carriage ofwhatever description& and for whatever purposes& impelled by steam or anyother power not being that of horsesN.The carriages here referred to much be carriage ejusden generis with thecarriages specified. f a bicycle were held liable to pay toll as a carriage& donot know where we could draw the line.N

c. Cannan 0, A)in$don !Earl" 6=>AA8 B O4.JJ. 4y a special )ct& passed in =HJH&the owner of a bridge across the Thames and his heirs and assigns wereauthori,ed to take rolls for the passage over the bridge 9or every coach&

chariot& berlin& hearse& chaise& chair& calash& wagon& wash& dray& cart& car orother carriage whatsoever with four wheels the sum of four pence& and withless than four wheels the sum of two pence.N The defendant had ridden abicycle over the bridge. He%d liable to pay the toll. ) bicycle was a carriagewith less than four wheelsN. )gain& bicycles had not been invented at thetime of the act& but lgham 2. held this irrelevant and *hilimore 2. said:

am of the same opinion. think that in this caseS& it was intended bythe #egislature that all vehicles should pay toll& and think that a bicycle ora tricycle is a vehicle or is a carriage. )ny mechanical contrivance&which carries people or weights over the ground& carrying the weights ortaking the people off their own feet& so that the foot of man and the bodyand trunk of man do not support his own weight or the weight of the



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burden carried& it& think& a carriage& and do note think it matters that theman who is carried gives his own propulsion to the carriage. f he got thepropulsion by the application of levers worked with his hands& as one seesmen doing in the streets& the case would be tolerably clear& and think itmakes no difference that he gets his propulsion by pedaling with his feet-

an operation which is perfectly different from the operations of walking&running& or skating& in all of which he bears his own weight at the sametime that he moves himself. therefore come to the conclusion that abicycle or tricycle is a carriageN&S

d. Cor-e* 0, Car+enter 6=>?=8 = (4 =AB& the #icensing )ct =@HB& s.=B providedthat every person who is drunk while in charge on any highway S of anycarriage& horse& cattle& or steam engineN was guilty of an offence. Theaccused was found to be drunk while riding a bicycle. 'eld& guilty. #ord$oddord +.2.N The first thing to do in construing an )ct of this sort is to seewhat was the purpose of the particular section. 1bviously it was passed forthe protection of the public and the preservation of public orderNS t doesnot follow that in every )ct of parliament a bicycle is a carriage. That may

depend on the particular words of the )ct in 0uestion& and where the0uestion has most commonly arisen is with regard to toll bridges& because theproprietor of the toll-bridge has to show that the vehicle from which he seeksa toll is covered by the words of )ctSN )fter saying that he was followingTa*%or 0, Goodwin> the judge went on& That case& there cannot be anydistinction between a section in a highway statute passed for the protectionof the public and a section in a licensing statute passed for the samepurposeSNs it possible to lay down any general rule as to when a court will hold that abicycle is& or is not& a carriage.

(I/RA( 0, DE/RA(+ourt of )ppeal for East )frica& 6=>J@8 E.). BJL

Sir "arles +e!(old, P.< The appellant !hereinafter referred to as the plaintiff" is theowner of certain premises in <airobi. n =>JA& by a verbal contract& he let those premiseson a monthly tenancy to the respondent !hereinafter referred to as the defendant". Thistenancy was duly determined by a notice to 0uit effective on 2une LA& =>JJ. The entestriction )ct. !+ap. B>J" !hereinafter referred to as the principal )ct" in force duringthe period of the tenancy did not apply to the premises. The defendant did not 0uit& soon <ovember BL& =>JJ& the plaintiff filed a suit seeking an order for delivery of thepremises& mesne profits& the payment of certain water and sweeper charges& andinterest.

1n 3ecember BA& =>JJ& the ent estriction !)mendment" )ct& =>JJ !<o. LH of =>JJ andhereinafter referred to as the amending )ct" came into operation and it brought thepremises within the ambit of the principal )ct. n 2anuary =>JH the defendant filed adefence claiming& inter alia, that the plaintiff was not entitled to an order for possessionby reason of the provisions of the amending )ct. Chen the suit came on for trial& by

agreement the sole issue for decision by the court was whether the suit premises areretrospectively subject to the ent estriction )ct& =>?>& as amended by the entestriction !)mendment" )ct& <o. LH of =>JJN. The terms of the orders& which were tofollow the answer to this issue& were also agreed. 1n the hearing of the appeal counselfor the defendantrespondent generously accepted that should the appeal besuccessful the agreed form of order should include a reference to the amounts claimedin respect of water and sweeper charges& as a reference to these charges had



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inadvertently been omitted from the agreed form of order. t was also agreed by bothcounsel for the defendantdespondent and counsel for the plaintiffappellant that theissue agreed upon was to be regarded as posing the 0uestion whether the amending)ct applied so as to prevent the plaintiff from obtaining the order for possession which hesought in his plaint.

The trial judge held that the amending )ct operated retrospectively so as to prevent theplaintiff from obtaining an order for possession. n coming to that conclusion he reliedlargely on the principle contained in )emon v."ity o* #ondon Property "o. #td. !6=>B=8 =(.4. I>" and an unreported decision of udd& 2.& in urg ass v. Gurdip Sing !(enya'igh +ourt civil +ase <o. =LBH of =>JJ"& in which the principle in the )emon case was alsorelied on. The trial judge& however& appreciated that there appeared to be& as he put it&no theoretically sound answerN to the objection to the amending )ct applying topersons who had ceased to be tenants before the commencement of that )ct.

+ounsel for the plaintiffappellant submitted that both under the common law andunder s. BL of the nterpretation and $eneral *rovisions )ct !+ap.B" pending legalproceedings are not affected by any change in the law unless the amending )ct shows&either expressly or by necessary implication& an intention that the new provision should

operate retrospectively and affect those proceedings; and he submitted that s. =L of theamending )ct showed a clear intention that those provisions should not operateretrospectively. 'e also submitted that the judge& in arriving at his decision& had failed toconsider that basic principle of the law and the decision in +orona v. ev=i !6=>?I8 ).+.I>"& and had failed to appreciate that in the )emon case there were no pending legalproceedings. +ounsel for the defendant respondent submitted that rent restrictionlegislation was peculiar in that the law to be applied was the law at the date of the judgement and not that at the date of the inception of the legal proceedings& and thatthis arose from the decisions that on the commencement of any such legislation an ex-tenant in possession of premises to which the legislation applies ac0uires the status of astatutory tenant and thus comes within the legislation no matter when the legalproceedings were instituted. +ounsel for the defendantrespondent also referred to a

decision of Cicks& 2.& in -armali v. Mulla >6=>JH8 E.). =H>"& which though given underdifferent legislation& followed the principle set out in the )emon case ! supra. 'e alsosubmitted that s. =? !I" of the principal )ct& as amended by the amending )ct& showeda clear intention that the legislation should operate retrospectively.

)s the plaintiff had given the defendant a valid notice to 0uit effective on 2une LA& =>JJ&after that date the plaintiff was entitled under common law to bring an action for therecovery of the premises and the ejectment of the defendant there from. Chen theplaintiff filed his plaint on <ovember BL& =>JJ& s. =? !=" of the principal )ct& which providesthat no order for the recovery of possession of any premises or for the ejectment of atenant where from shall be made unlessSN certain conditions are fulfilled& did not applyas the premises were not premises to which the principal )ct applied nor was thedefendant a tenant. Chen the amending )ct came into operation bringing premises of

the class of which the defendant had previously been the tenant within the ambit of theprincipal )ct& the 0uestion which then arose was whether the defendant& who waswrongfully in possession of these premises& could be regarded as being a tenant withinthe meaning of the words 0uoted above in s. =? !=". The principle contained in the)emon case !6=>B=8 = (.4.I>" was that he could be. This in effect meant that the normallaw to be applied in rent restriction cases was that at the date of judgment and not thatat the date when the legal proceedings were initiated. The )emon case was a decisionin =>B= of the English +ourt of )ppeal& which decision was followed nearly thirty yearslater by the English +ourt of )ppeal in 7"I+S>+ :. $auncey !6=>?A8 = (.4. ?HI". )s therent restriction legislation of (enya is similar in a number of respects to that of Englandand has the same basic object& decisions of the English +ourt of )ppeal are not lightly tobe disregarded. 1n the other hand& as the principle contained in the )emon case



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would seem to be contrary to a basic principle of the common law and to the principlecontained in s. BL of the nterpretation and $eneral *rovisions )ct& it is necessary toexamine the judgments in the )emon case in order to ascertain the reasoning which ledto the enunciation of the principle.

Chere a person has ceased to be a tenant at a date prior to the date on which anamending )ct comes into operation normally that person could not be regarded as atenant at the date of the amending )ct. The judges in the )emon case appreciatedthat it would be straining the meaning of the word tenantN to include within it a personwhose tenancy had been duly determined and who had no right to be in possession ofthe premises at the date when those premises came within the ambit of the legislationbut who nevertheless had wrongly continued in possession. They considered& however&having regard to the object of the legislation& which was the protection of certaintenants& that the intention of the legislature would be defeated unless they gave to theword tenantN a strained and unnatural meaning. consider that the judges failed toappreciate that the amending )ct would& without any straining of the meaning oftenant& have applied naturally to all tenants& no matter whether the tenancy originatedprior to or subse0uent to the commencement of the amending )ct& so long as they were

still tenants in the ordinary meaning of that word when the amending )ct came intooperation. n other words the judges in order to protect a very small class of persons& thatis persons who if their tenancy had continued would have come within the protection ofthe amending )ct but whose tenancy had been lawfully determined prior to theoperation of the )ct and who had wrongly continued in possession until the )ct cameinto operation& gave a strained and unnatural meaning to a word and thereby infringedrights which had crystalli,ed before the legislation came into effect without there beingany express or necessary implication in the legislation itself that such rights were to beaffected. t cannot be said that merely because the legislation was designed to protecta certain section of the community& that is tenants& therefore there was a necessaryintention that the legislation should have retrospective effect& as otherwise all legislationdesigned to protect either a section of the community or the community as a whole

would& ipso *actor, have retrospective effect. That is clearly not the law. consider thatthe decision in the )emon case !6=>B=8 (.4. I>" was a wrong decision and the reasoningon which it was based was false.

There is a principle of law& however& that where a court has interpreted the law in acertain manner& particularly an interpretation which affects property rights& and thatinterpretation has been acted upon for a considerable time& then that interpretationshould not be departed from unless it is clearly wrong and gives rise to injustice. Theprinciple in the )emon case& has& so far as am aware& been acted on for a considerabletime and in addition to the decision the subject of this appeal& we have been referred totwo other decisions of the (enya 'igh +ourt which have adopted the )emon principle.Thus unless it is possible to say that on the facts of this appeal there are circumstanceswhich enable the )emon case to be distinguished& it would then arise for consideration

whether& even if the decision in the )emon case was wrong it would result in moreinjustice to depart from the principle than to adhere to it.

+ounsel for the plaintiffappellant submitted that there was a clear distinguishing feature&which was that in the )emon case there were no pending legal proceedings when theamending )ct came into operation. This& in my view& constitutes a clear distinction fromthe )emon case. t was& have no doubt& this distinguishing feature which enabled the*rinvy +ouncil in +orona v. ev=i !6=>?I8 ).+. I>" to hold on appeal from this court thatan amending ent estriction )ct did not affect legal proceedings though this court&following the principle in the )emon case& had earlier held that it did& without mentioningin its judgment any of a large number of cases& including the )emon case& to which the4oard had been referred in the course of argument. Though the )emon case can



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clearly be distinguished on that ground it is impossible to do the same with utcinson v.

$auncey !6=>?A8 = (.4. ?HI" to which both counsel for the defendantrespondent andcounsel for the plaintiffappellant referred& as in that case there were pending legalproceedings. ) careful examination of the reason for the decision in that case& however&shows that while the court was following the principle of the )emon case in the meaning

of the word tenantN& nevertheless& as there were pending legal proceedings when theamending )ct came into operation& the amending )ct was only held to apply becauseon the construction of certain sections of that )ct it was held that there was a necessaryintention that the amending )ct should have retrospective operation. Even& therefore& ifthis court were to hold& following the )emon case& that the word tenant could include aperson who had ceased to be one before the )ct came into operation& is thereanything in the amending )ct which shows that it was intended to affect legalproceedings which had been instituted before the amending )ct came into operation&as opposed to those which were instituted subse0uentlyD n my view& s.=L !B" is that theamending )ct is not to have retrospective operation. accept counsel for thedefendantrespondent5s submission that s. =? !I" of the principal )ct shows an intentionthat the section should have retrospective operation& but whether the section asamended should have retrospective operation is a matter& think& to be determined by

the principal )ct.

n my view& therefore& the trial judge was wrong in coming to the conclusion that theamending )ct prevented the plaintiff from obtaining an order for possession and heshould have answered the issue in the negative and made the agreed order. would&accordingly& allow the appeal with costs& with a certificate for two advocates. wouldsubstitute for the judgment and decree of the 'igh +ourt a judgment and decree of the'igh +ourt a judgment and decree ordering the defendant to deliver up possession ofthe premises within three months from the date of this judgment and ordering an en0uiryas to mesne profits and water and sweeper charges& unless the parties agree a figure asto such profits and charges& with interest thereon at court rates. would also order thatthe plaintiff would be entitled to the costs of the suit on the higher scale but would not

make an order for the costs of two advocates. )s the other members of the court agreeit is so ordered.

6The concurring judgments of de #estang& /.-*.& and %pry& 2. ). are omitted.8

#OTE& A#D FE&TIO#&

=. %ection BL of the (enya nterpretation and $eneral *rovisions )ct to whichreference was made by %ir +harles <ewbold& *.& provides in relevant part asfollows:

Chere a written law repeals in whole or in part any other written law& then& unlessa contrary intention appears& the repeal shall not-

!a" S

!b" S

!c" affect any right& privilege& obligation or liability ac0uired& accrued orincurred under any written law so repealed; or

!d" S

!e" affect any investigation& legal proceeding or remedy in respect of anysuch right& privilege& obligation& liability& penalty& forfeiture orpunishment as aforesaid& and any such investigation& legalproceeding or remedy may be instituted& continued or enforced& andany such penalty& forfeiture or punishment may be imposed& as if therepealing written law had not been made.



Chat policy arguments can you make in support of this statutory presumption of non-retroactivityD

B. n the light of the policy justification for the ent estriction !)mendment" )ct of

=>JJ which greatly extended the number of dwellings covered by controls andfurther in the light of the presumption stated by %ir +harles <ewbold in favour offollowing the )emon precedent& even though wrong& unless it could besatisfactorily distinguished& are you persuaded that the fact that legalproceedings had been begun in the principal case but not in )emon provides asatisfactory distinctionD

L. To what extent is the +ourt in the principal case merely deciding a technicalpoint of lawN as against making an important choice of policyD

mkoyogo legal method 2

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