Mukoyogo 2005/06

RLW 123: LEGAL METHOD II

I:

Introduction to Case Law Technique

Theories of Adjudication
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 a
mysterious way; that judges never create law but declare fresh applications
of the ancient rules.

In modern days the legal system has been gradually remolded (precedents
co exist with statutes).

The Nature of Legal Sources:

Legal sources are the raw materials of judicial process. The rule is that judicial
decisions have the same source of Law. The ultimate principles are the
Grundnorm or the basic rules of recognition of the legal system (Salmond, Hans
Kelsen and Hart). These are the ultimate principles: rules of Law.
According to Hart, Acts of Parliament and judicial decisions have the force of law
because judges, officials and private Citizens recognize that primary rules are to
be identified by reference to a certain Criteria- enactment by legislature makes
law; judicial pronouncements bind other courts in the hierarchy (Refer to Module
V). Rules of precedent are not rules of law but rules of practice, understanding
them requires a detailed study of the actual behaviour of the judiciary (to be
done in Topic One).
Common Law
The Common Law system is a customary system of law, consisting of a body of
practices observed and ideas received by a caste of lawyers (judges,
advocates, solicitors).
Institutions of Adjudication
The role of the judges represents an entire Institutional nexus of conduct. The role
of a judge stands in relationship to other roles, the totality which comprises the
institutions of law. An understanding of the judicial process requires cognition of
this Institutional nexus of conduct.
Every institution embodies some degree of consensus about how it is to operate.
There are a number of shared expectations, which define the role of the judge.
Judges are part of the legal order, part of a society in which human conduct is
governed by rules. Judges are instituted as one of the ways in which society
resolves conflict.
The paradigm (theoretical framework) of a rational decision is one reached
according to rules, principles or standards (Dworkin).
Adjudication according to rules means that an ad hoc decision-making process
is deprecated. It points that a judge must conform to established rules
(formalism). This does not mean that the judge has the largely mechanical job of
mere application of an existing rule to a new state of facts.

Behind the demand that adjudication according to rules is a rational process of

decision-making, lies in a belief in formal justice that is satisfied by giving like cases
like treatment.
But rules must not be taken as ends in themselves. Conceptualism (legalism) is a
vice to which lawyers all too readily succumb.
Rules are a means to an end, purposive instruments. They embody social
objectives and policy choices. Thus when a judge confronts a rule is not met by a
bloodless category but by a living organism which contains within itself value
choices.
The judge must choose and in doing so he makes law, but his choice is too
limited. To understand why adjudication according to rules is posited as an Ideal
to which judges should conform, one must understand the role that litigants and
their advisors perform in the judicial process (Ref. Module Three).
The
adjudicative process is one of constant interaction between judges, the legal
profession, litigants and the wider public. It would collapse if the volume of
business were not kept within manageable proportions.
Knowledge that judges adjudicate according to established rules enables the
volume of litigation to be contained:
it facilitates the channeling of behaviors in order to keep it within the
perimeters of authoritative norm;

it confers on the litigants advisers the ability to settle a case out of Court;
[ADR= Alternative Dispute Resolution: Reconciliation mediation and
Arbitration playing on important role]

it enables litigants and their advisers to participate meaningfully in the

adjudicative process;

According to Lon Fuller adjudication is a social process of decision which ensures

for the affected party a particular form of participation, that of presenting proofs
and arguments for a decision in his/her favour. The essence of the rule of law is
that men affected by the decision which emerge from the social process should
have some formerly guaranteed opportunity to effect those decisions.
Lawyers must experience vicariously the judges process of reasoning.
Adjudication enables them to do this.

Jusaticiability
A dispute may be justiciable when there are at least principles
acceptable to lawyers or a high degree of consensus among society as
to the proper goals to be pursued or standards against which a judge can
reason.
In National Bank of Greece v Methiss [1958] AC 509, 525 Viscount Simonds
said:
---in the end and in the absence of authority binding this House,
the question is simply; What does justice demand in such a case?-------if I have to base my opinion on any principle, I would venture
to say it was the principle of natural justice*
Law, Justice and morality

The Concept of justice

justice is about fair application of legal rules where two parties are before
the court, it is anxiomatic to judicial proceedings that each must be given
a fair hearing.
It would be wrong for one of those parties (Where two individuals or the
state and an individual) to act as a judge of his own cause. Both
principles belong to what is known as Natural Justice.

Courts have evolved their own rules of evidence to ensure that fair trial
takes place i.e. when a jury in a criminal case sits, the judge will inevitably
tell its members that it is the judges job to interpreter the law and that it is
the jurors job to decide upon facts.

Justice is concerned with content Law should be fair and reasonable in

themselves per se.

Natural justice and Judicial Review Lord Denning (as he then was) in RV
Secretary of State for Home Department expert Santillo (1981) said that;
the rules of natural justice or of fairness, were not cut and dried.
They varied infinitely. What should also be emphasized is that,
strictly speaking, natural justice is not so much a source of law as a
collection of procedural rules by which legal rules themselves may
be considered and applied. In that way, we may refer to rules
about rules. In practice, however, an important set of procedures
becomes almost a source of law itself, and in this respect it is
convenient to consider natural justice at this stage, side by side
with the true source of law.

*No man can be a judge in his own cause. The right to be heard and defend
oneself A man cannot be punished twice for the same offence.
Two principal rules of Natural Justice
nemojudex in causa sua (nobody may be a judge in his own
cause)

audi altem partem (hear the other side, each party to a dispute
must be given a fair hearing).
Justice must always be seen to be done.
Justifiability depends not only on the existence of amenable rules
and standards. A dispute is not appropriate for adjudication when
it involves a multiplicity of variable and interlocking factors,
decisions on each of which presupposes decisions on all the
others.

Law and morality case study:

In 1971 a nine year-old three wheeled Reliant Car was purchased at an
auction sale in Manzese. The car was in dangerous condition, but the
successful bidder intended to cannibalise it for spares. After the auction
a disappointed bidder offered the purchaser another Shs. 100,000/= for
the vehicle; the purchaser accepted the offer. The second purchaser
who unlike the original seller at auction, the proprietor of a s mall garage,
had no special knowledge of cars, drove the Reliant Car away and was
killed a few days later in an accident. His passenger, who now brought

the action against the garage owner, Mr. Mikono, was permanently
maimed.
The trial judge, Mr. Maneno awarded the passenger, Shs. 1,146,000, but
the Full Bench of the High Court reversed the decision. The Court of
Appeal to held, too that the seller was not legally obliged to warn the
second purchaser of cars dangerously defective state.
Were moral, ethical or religious considerations entirely separate issue?
How would you argue the case? [Hurley v Dyke (1979) RTR 265]
Note:
Religion tries to account for the reality of the world as we see it linked to a
spiritual world, that link may be sysmbolized by ritual and practices which
go far beyond the mere wearing of robes and wigs by Barristers and
judges. Compliance may be more difficult to enforce in religion. Morality
is a close relation but can be a generalized behaviour. It is a system for
right living that is frequently shared by an entire community. It sounds like
a legal system, but it is much wider in application, particularly if morality is
seen not as much as a community based system of an individual code in
short a persons conscience.
Morality and law clash most frequently in the area of sexual mores.
Crime, sin and the law can appear to become hopelessly entangled.
Society requires certain moral principles to be observed, even if public
opinion was slowly changing, the breach of those principles, in the mean
time was still an offence against society as a whole and not merely
against the injured party.
There must be a clearer separation of law and private morality, morality in
the sense that it is a matte of private judgement.
[See Paul Denhams, Law: A Modern Intruduction, 4th Edn Hodder &
Stonghtoro, 1999 pp 6-37; Dr. AvterSingh, Introduction to Jurisprudence,
Repr. Ed. 2005 pp 104-111], see also The Sexual Offences Special Provisions
Act. The Penal Code Cap 16 offences of Murder.
Stare Decisis (Stand by what was Decided Before)
To follow past decisions is a natural and indeed a necessary procedure in
everyday affairs-------precedents have to be established as guides to
future conduct, and this applies not merely to legal systems but to all rule
and non-rule creating bodies, whether clubs, government departments,
schools, business firms or churches.
The Danger is the tendency to follow past precedents may lead to
stereotyped procedures and to stultify progress. Much of the working
success of any organization may depend on its ability to apply
precedents creatively. Precedents have always been a lifeblood of legal
systems.
It is particularly prominent in the common law, but barely less so in modern
Civil law countries. The special features of the present day common law
system of precedents can be summarized as follows:
a particular emphasis on judicial decisions as the core of the legal
system;
A very subordinate role considered to juristic writings, as against
decisions 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.
Why Precedents? Three Models
The Natural Law Model

past decisions naturally generate reasons for deciding cases in the

same way as previous ones.
Equality and reliance are the reasons (Alexander)
Universal sense of justice: All men have to be properly treated in
like circumstances (Llewellyn).
Reliance not upsetting
expectations a value that courts should take into account.

The Rule Model

The precedent court has authority not only to decide a case
before it but also to promulgate a general rule binding on courts
subordinate and equal rank. The rules upon which actors justifiably
rely.
The Result Model
The result is reached in the precedent case rather than any rule
explicitly or implicitly endorsed by the precedent court is what
binds. According to Dworkin the result model reflects Law as
integrity while the rule model is Conventionalism
Note:

Our courts follow positivistic thinking about law and its sources, and
this may bear out our sense of judicial practice.

Judges and Discretion

Judges fill in the gaps left by rules by using their discretion.
According to Dworkin judicial discretion in the strong sense of the
word does not exist.
Judges do not act as deputy legislators because:
It offends the democratic idea that a community should
be governed by elected officials answerable to the
electorate.
Judges, not being elected, must not substitute their own
will as against the legistlator.
o Ndyanabos case (The judgment of Kimaro J & CA)
o Mbushuus case
o Bi Hawa Mohameds case

(a)

Simple Cases and Hard Cases

Simple Case is a case in which the facts (material facts) exactly answer to
the requirements of a rule of law. The rule of law becomes the major
premise, the facts the minor premise and the conclusion is reached by
using a Syllogism. Cases decided on the above are said to have been
decided through formalism. [The Judgment of Kyando & Ihema JJ in
Ndyanabos Case]
Hard Cases
A hard case is one where the rules of law are clear, but the result
they require is hard or harsh.
For example (a) in the Case of Hutchison (1988:23):
In 1987 a swimming meet took place at the University of
Toronto. Most of the races proceeded as planned. But, at
the end of the race, there was a challenge to the winner
of the race.
The appropriate group of officials convened.
The
deliberations were lengthy and tense.
After much
argument and posing over the rules, a decision was

announced: the Winner had been disqualified and the

second winner acclaimed as Victor.
The referee offered a brief justification of the Committees
decision- The rules were clear- The Winner is the first
Swimmer to touch the side of the pool with both hands;
and if this regrettable outcome is to be avoided in the
future, it will be necessary to change the rules: The Winning
Swimmer had only one arm. [Hard cases make bad Law.]
(b)

2.

In Regina (Quintavale) V Secretary of State of Health [2002]

2 All ER 625
Under regulations made pursuant to the Health Fertilization
and Embrology
Act, 1990 the government (Britain) licensed research using
embryos created in Vitro.
Since the passing of the Act a new method of creating
such embryos was developed, embryos, which could only
be included in the statutory definition of embryos as the
Court acknowledged, by straining the statutory language.
The prospects of leaving the creation of embryos and
research of such embryos completely unregulated was so
appealing to the court that they regarded the purposive
interpretation of statutes to be legitimate even though it
would involve a gymnastic interpretation effort.
See
Appendix I

Inputs in the Judicial Decision Making Process:

By inputs we refer to the concepts or terms used in understanding how
Case Law Technique works. Such concepts as Common Law, equity,
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-invitee
relationship, duty of care, negligence (proximity) etc.
Before we define the above concepts in relation to the Judicial DecisionMaking Process, it is important to note that the above will be used in Case
Law technique. The anatomy of a given case is as follows:
The Name of the Case and its citation i.e Heaven v Pender [1883]
IIQBD503

Coram: Name(s) of the judge(s) who decided the case

Case history (whether from Primary Court to Court of Appeal and

the like type of information)

Material Facts (relevant facts related to law-and the relationship of

the litigants- the complaint or accusation before the Court)

Issue(s) Question(s) which the court is called upon to decide

normally appearing in a statement(s) whether------------.
Questions must relate to accusations (material facts) presented by
litigants.

Holding (refer to in whose favour the court decides whether the

plaintiff or the defendant, the accused or the prosecution. It is
found at the end of the judgement------we dismiss the appeal-----.

Ratio Decidendi- reasons for the decision or reaching the above

holding-statement of law relating to facts and issues raised in the
case

Obiter dicta (dictum) -------statements of law by the way or which

have no bearing to legally stated facts issues and holding---------------if-------------then------------------

Order of the court (in relation to the claim i.e. property or person if
in custory etc).

For more details read Mukoyogo Legal Method I page 87-94; see also C.S. Binamungu &
M.C. Mukoyogo, Studying Law Skills, Mzumbe Book Project, 2005pp 107-128
Doctrine of Precedent (See also Module V)
The doctrine of precedent operates within the requirements of the doctrine of Stare
Decisis. The doctrine of Precedent is the practical application of Stare decisis.
Stare decisis requires that courts or judges are bound by their previous decisions in cases
where material facts are the same. It is a doctrine which looks for certainty, uniformity
ascertainability in the law, while allowing some flexibility. Flexibility is realized through the
doctrine of presedent which not only operates within the hierarchical manner of courts
(see Module V) but also gives ability to courts to develop new rules or discover them in
the course of making decisions in situations which may appear novel or different from
those previously considered.
For example in case (a) The court may find that facts ABC (reckless driving, defective
brakes, and a pedestrian who was drunk) relevant in apportioning the extent of liability in
a rundown case. It may find that the driver was liable to the extent of 65% and the
pedestrian (injured party) liable for 35% negligence. The amount of damages payable
by the driver (or whoever is liable to pay) will take into consideration the extent of liability
involved on his part. This might be a precedent case in future.
In Case (b) the Court may find that facts A,B and C (reckless driver, defective brakes and
slippery road) present but further find that C (pedestrian was driving on the right side of
the road and not in a drunken state of mind). The latter fact situation may lead a court
to say that the facts in case (a) are distinguishable from those in case (b) and therefore
further that case (a) is not entirely precedent or authoritative case in deciding case (b)
or if the court chose to use the authority of case (a) then it must further say that the driver
of the lorry will have to bear an entire blame in the accident as opposed to what
happened in case (a).
Distinguishing- What is distinguishing in Case Law Technique?
According to Glanville Williams Learning the Law 1982 75 77) distinguishing is the
process of cutting down the express ration decidendi of a case. It can take the form of
restrictive distinguishing or non-restrictive distinguishing. Non-restrictive distinguishing
occurs where a court accepts the express ratio decidendi of the earlier case and does
not seek to curtail it, but finds that the case before it does not fall within the ratio
decidendi because of some material differences of fact (Langridge V Levy and Winter
Bottom and Wright).

Restrictive Distinuishing cuts down the express ratio decidendi of the earlier case by
treating as material facts to the earlier decision some fact, present in the earlier case,
which the earlier Court regarded immaterial, or by introducing a qualification
(exception) into the rule stated by the earlier court.
This manner of distinguishing is said to play a very important role in legal argument.
Common Law: According to Glanville Williams, Learning the Law, 11th Edn. London,
Stevens & sons 1982 Ch.2 Common Law originally meant the law of England that was
not local, that is the law that was common to the whole of England. The phrase may
also signify the law that is not a result of Parliament [legislature] but that which was
created by the customs of the people and the decisions of the courts (judges). It can
also mean that law which is not equity (the law developed by the Courts of Chancery).
Common law may also mean statutory modifications of the common law. Lastly it may
mean that law which is not foreign, in other words, the law of England when compared
to the law of America, Canada or any other Country.
Equity: What is meant by the term equity?
According to Glaville Williams (Ibid) the term Equity in ordinary language meanS natural
justice, this is so because originally the system was inspired by ideas of natural justice and
therefore the origin of the name. Equity is law in the sense that it is part of the law of
England but not in the sense that Common Law carries.
What is the difference between facts (as they exist
Facts/Material Facts of a case:
in life) and material facts (in the legal sense)? The term facts refers to normal facts of life.
For example in a normal happening like a car or vehicle accident which may cause
injury to another person, the following may be categorized as facts: the driver of the car
or lorry may be described to have been tall, with a long beared, dressed in a blue shirt,
brown jacket and white trousers. The same driver may be described to have been
driving fast a vehicle which had defective brakes, at the time of driving it was raining
and the road was slippery. The injured person may bear the description that he was
riding on a bicycle, on the right side of the road, dressed in a White Kanzu and was also
drunk.
All what I have stated may constitute facts but for the purposes of the law of negligence
the following facts may be categorized as legally relevant or material facts: the fact that
the driver of the car or lorry was driving fast, that the car or lorry or vehicle had defective
brakes, and on the part of the injured person, the fact that he was riding on a bicycle
while in a drunken state.
It will be noted that the manner material facts are sorted out of a mass of facts to
constitute material facts has given rise so some controversy which will be dealt with later.
[Read: Dr Avtar Singh, Introduction to Jurisprudence Repr. Edn 2005 pp 88 91]
Issue(s) What is an issue or issue? The concept issue(s) refers to the point(s) in dispute and
the question or questions which the court is called upon to answer in the course of
hearing the matter and making a decision in the course of the judgement. The answer
to the question(s) by the court (judge) leads towards the determination of the rule of the
case or ration decidendi and other statements of the law by the way (obiter dicta or
dictum) which may be of use to the future courts.
Holding: What is a holding in a given case? A holding in a given case refers to the
actual decision of the court i.e. in whose favour the matter is actually decided. It may
be in favour of the defendant or the plaintiff. It is the holding which then helps the
reader of the case or future court looking at a precedent case in point, to determine the
rule(s) of the case ratio decidendi of rationes decidendi. It is always found at the end of
a judgement. It takes the expression of Rule discharged, Order accordingly, dismiss

the application with costs, the appeal allowed, the appeal must succeed, Appeal
dismissed and the like, Once one is able to find such a conclusion or holding, it should
be easy to extract the rule of the case (Ratio decidendi).
Ratio Decidendi: What is Ratio Decidendi?
According to authorities on the question:
English courts make a habit of following their previous decisions within more or less
defined limits. This is called the doctrine of precedent. That part of the case that is said
to possess authority is the ration decidendi, that is to say, the rule upon which the
decision is founded. Finding the ratio decidendi of a case is an important part of the
training of a lawyer. There is a relationship between material facts, issues, holding and
the ration decidendi. Determining the ratio decidendi of a case is not a mechanical
process but an art that one gradually acquires through study and practice [Glanville
Williams, Learning the Law, London Steven and sons 1992 ch.6]
As you might have noted in the above passage the concept of ratio decidendi refers to
that part of the case that is said to possess authority. It constitutes the reason for the
decision as well as the rule of the case.
It must be emphasized that for you to appreciate how to extract the ratio decidendi of
the case, you will have to constantly keep reading the whole case yourself and not to
depend on the notes prepared either by your teacher or fellow student or the head note
of a case (if that case has been reported in a Law Report).
Obiter Dicta: Obiter dicta or dictum is a mere saying by the way, a chance remark in
the course of the judgement or decision by the court (judge(s) which is not binding upon
future courts. Such a statement, chance remark or proposition may be respected by a
future court or judge depending on the reputation of the judge or the eminence of the
court and the circumstances under which it was announced.
Obiter dicta is a rule of law stated merely by the way, of analogy or illustration or
suggestion of a rule upon which the decision is not finally rested. It is not regarded as
binding because it may have been made without full consideration of the cases in point,
it may have been made without full consideration of all the consequences that may
follow from it.
It is a rule of law based on hypothetical facts. A judge in the course judgement may say:
I decide for the defendant, but if the facts had been properly pleaded, then should I
have decided in favour of the plaintiff.
Other examples of Obiter Dicta can be found in the following cases:
Per Brett MR. in Heaven V Pender [1883] 11QBD508
Per Lord Esher (Former Brett, MR) in Lelievre V Gould [1893] 1QB491
Kiriri Cotton V Dewani, [1960] EA 188

R.F. Mboya V Mewa Singh Mangaat [1969] HCD no 1

Lord Atkin in Donoghne V Stevenson [1932] AC562 at 580 where he attempted to
lay down a general test for determining when a notional duty of care arises in
the tort of negligence. His dictum has become known as the neighbour test
and was expressed in these words:
You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour. Who, then, in law is
Add my neighbour? The answer seems to be emphasis persons who are so
closely and directly affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind to acts or
omissions which are called in question.
This dictum, though clearly obiter, has been quoted in subsequent cases Home Offices
Dorset Yatch Co Ltd [1970] AC 1004 (HL) Lord Reid.

[see T. Ingman, The English Legal Process 8th Edn. Blackstone Publishers 2000 p 327; Dr.
Avter Sing, Introduction to Jurisprudence, Repr.Edn.2005 pp179-180] Hierarchy of Courts
(see Module V)

Julius Ishengoma V AG, Misc.

Civil Appeal No. 2 of 2001 (HC) Kimaro J (dissenting Judgement) is Obiter Dicta.
Analogy (see also Module IV) What is meant by analogy? According to Professor
Edward Levi in his book Introduction to Legal Reasoning, The University of Chicago Press,
Chicago/London 1948 means reasoning by example. The same argument appears in
Farrar, J; Introduction to Legal Method. London 1977 Appendix 3 and in Twining, W &
Miers, D: How To Do Things With Rules London 1992 (3rd Edn) [[260-63 & 304 309.]
Reasoning by analogy (sometimes reasoning by example) is typically reasoning from
particular to particular. According to Hospers: An analogy is simply a comparison, and
an argument from analogy is an argument from comparison. An argument by analogy
begins with a comparison between two things X and Y. It then proceeds to argue that
those two things are alike in certain respects A, B, C and concludes that therefore they
are also alike in another respect, D, in which they have not been observed to resemble
one another..
It will be apparent at once that an argument by analogy is never conclusive.
A classical statement made by Professor Edward Levi:
The basic pattern of legal reasoning is reasoning by example. It is
reasoning from case to case. It is a three-step process described by the
doctrine of precedent in which a proposition descriptive of the first case is
made applicable to the second caseThe finding of similarly or
difference is the key step in the legal process.
Twining & Miers 1992 pp260-261 suggest that such a description is an over simplification of
the part played by reasoning by analogy or example in legal reasoning. But they
encourage readers to read Professor Levis proposition because it is important in
interpretation especially for its explicit account of the manner in which common law
concepts and doctrines quietly adapt to new situations and changing needs in the
process of application in that the rules change as the rules are applied.
Inductive Reasoning (see also Module IV) What is meant by Inductive reasoning?
According to Twining & Mers Ibid 259-260:
Typically, inductive reasoning is reasoning from particular to general, but the term
may be used in a broader sense to encompass all kinds of reasoning in which the
premises, support but do not compel, the conclusion. The following are examples
of inductive reasoning:
In case A elements a, b, c, d and e were present and the plaintiff succeeds. In
case C elements a, b, c, d, and e were present and the plaintiff succeeds.
Conclusion: in all cases in which element a, b, c, d, and e are present the plaintiff
should succeed.
Such type of reasoning will be noted when reading the case of Heaven V Penda, [1883]
llQBD 503 especially the decision of Brett, MR.
According to Twining & Miers inductive reasoning is concerned with probabilities, and in
normative contexts it is more accurate to talk of the relative streangth or cogency of
(inconclusive) reasons (lbid: 260). It is possible to develop new rules through inductive
reasoning.
Read also Irvin C Rutter A Jurisprudence of Lawyers Operation in Vol.13 Journal of
Legal Education (1960-61) pp 301-306 (a diagrammatic representation will be given after
discussing Deductive Reasoning) [Extract in the Library- As the Librarian to access it.]

10

Deductive Reasoning (see Module IV) What is deductive Reasoning? Again according
to Twining & Miers lbid deductive reasoning moves from general to particular. It involves
the use of Syllogisms;
1.
Major Premise Whosoever being married and who shall go through a form
and ceremony of marriage recognized by law, ought to be convicted of the
offence of bigamy.
Minor Premise Allen being married, went through a form and ceremony of
marriage recognized by law.
Conclusion: Allen ought to be convicted of the offence of bigamy.
2.

In Deduction the conclusion must follow from the premises as a matter of

logical necessity; if you accept the premises you must accept the conclusion,
as it is logically compelling or conclusive.
Deduction plays an important part in interpretation of statutes.
It must be remembered that deductive reasoning is a closed system of
reasoning. It operates where you have already known rules either those laid
in case law or in statutes and the facts of the case are said to subsume into
the rule of law out of which a conclusion is reached.
Also Read: Binamungu & Mukoyogo, Studying Law Skills, Mzumbe Book

Project 2005 pp 119- 128

The Ladder of Abstraction
Wealth

Asset

Farm Assets: Deductive

Inductive
Livestock: pigs, chickens, goat etc.

COW2 Characteristic common to C1 C2 C3

Bessie-

COW1

The Cow - perception

The Cow known to science

11

Cf. Irvin C Rutter, A Jurisprudence of Lawyers Operations Vol 13 Journal of Legal

Education (1960 61) pp 301 306
Judicial Hunch or Judges Predisposition.
The terms judicial hunch or judges predisposition refer to the motivations behind a judicial
decision. The attitude of the judges, their thought traditions, judges preoccupations,
intuitions or the basis of the judges values which prevail in the community. The judicial
hunch can be determined by examining the language which is employed by a judge in
trying to justify a decision reached or to be reached.
For example Parke, B in Langridge V. Levy made the following remarks:
We should pause before we made a precedent by our decision which would be
authority for an action against the vendors, even of such instruments and articles
as are dangerous in themselves, at the suit of any person whomsoever into whose
hands they might happen to pass, and who should be injured thereby.
Bowen LJ in Lehievre V Gould categorically stated:
The question of liability for negligence cannot arise at all until it is established that
the man who has been negligent owed some duty of care to the person who
seeks to make him liable for negligence. What duty is there when there is no
relationship between the parties by contract? A man is entitled to be as
negligent as he pleases toward the whole World if he owes no duty to them.
Lord Atkin in Donoghue V Stevenson [1932] AC562 at 599
My Lords, if your Lordships accepts the view that this pleading discloses a relevant
cause of action you will be affirming the proposition that by Scots and English law
alike a manufacturer of products who sells in such a form as to show that he
intends them to reach the ultimate consumer in the form in which they left him
with no reasonable possibility of intermediate examination, and with the
knowledge that in the absence of reasonable care in the preparation or putting
up of the products will result into an injury to the consumer to take that
reasonable care.
It is a proposition which I venture to say no one in Scotland or England who is not
a lawyer would for a moment doubt. It will be of an advantage to make it clear
that the law in this matter, as in almost other, is in accordance with sound
common sense.
At present I 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, or
which the particular cases found in the books are but instances. The liability for
negligence, whether you style it as such or treat it as in other systems as species of
culpa, is no doubt based upon a general public sentiment of moral wrong
doing for which the offender must pay..the rule that you love your neighbour
becomes, in law you must not injure your neighbour: and the lawyers question,
who is my neighbour? Receives a restricted reply. You must take reasonable
care to avoid acts or omissions, which you can reasonably foresee, would be
likely to injure your neighbour.
Lord Wilberforce having referred to Lord Atkins neighbour principle in MAlister (or
Donoghue V Stevenson [1932] AC562 continued:
This is saying that foreseability must be accompanied and limited by the laws
judgement as to persons who ought, according to its standards of value or justice
to have been in contemplation. Foreseability, which involves a hypothetical
person, looking with his sight at an event which has occurred, is a formular
adopted by English law, not merely for defining, but also for limiting the person to
whom the duty may be owed, and the consequences for which an actor may be
held responsible.

12

foresee ability does not of itself, and automatically, lead to duty of care
By using the judicial hunch judges are able to foresee the results of the case before them
and the meaning to be desired from a precedent case or statute. The judges are able
to see the results in respect of the litigants and the decision must be made in
accordance with the class of cases and has to be consistent with the whole system.
Judges must be seen as sensitive indicators of social change by either registering such
changes in their decisions or by moulding an existing rule to suit a new situation. While on
the one hand a judge is moulded by the values he shares with other members of the
community, on the other hand, he acts as a custodian of those values. The judges and
the court system as a whole must endeavour to meet the expectations of the community
in general as well as in a specific manner. The judgement must reflect the sense of
justice as understood by a broad base of the community.
Judicial justification, therefore, becomes the criteria for a judges method of a decision.
Read the following cases to better understand the concepts of judicial hunch or
predisposition.
Bi Hawa Mohamed V ali Sefu, [1983] TLR [Nyalali CJ Cash then was]
Francis Ngaire V NIC [1972] HCDn 134, [1973] EA56 Biron J.
AG V Lesnoi Ndeinaialias Joseph Saleyo Laizer & Two others [1980] TLR 619.
Laiton Kigara V Musa Bariti [1975] LRT no.40
Legal Positivism: What is meant by the term Legal Positivism? Legal Positivism (as
opposed to Natural law) is the view that regards law as being that which is decreed,
irrespective of its content, in particular irrespective of its moral goodness or badness. This
position was laid down by the fathers of Positivism in Britain namely Jeremy Bentham
(1748-1832) and John Austin (1790- 1859). For the purposes of our study this stand point
will be exemplified by such statements made by the courts or judges:
We think this action may be supported without laying down a principle which
would lead to that indefinite extent of liabilitywe should pause before we
made a precedent by our decision which would be an authority from auction
from vendors, even if such instruments and articles are dangerous in themselves
at the suit of a person into whose hands they might happen to pass and who
should be injured thereby.
Per Parke B in Langridge V Levy [1837] 2w519

I am clearly of the opinion that the defendant is entitled to our judgement. We

ought not to permit a doubt to rest on this subject, for our doing so, might be the
means of letting in upon an infinity of actions.
Per Lord Abinger C.B. in Winterbottom V Wright 10 M & W 109

A false statement careless by made without a reasonable ground for believing it

to be true, may be evidence of fraud, but does not necessarily amount to fraud.
Per Stirling, J; in Derry & Others V Peek [1889] 14 App Cases 337
What the judges were stressing was the fact that in English law there were ascertainable
rules of liability like contract. Unless the complaining party was part to it or privy to it, no
liability in law could lie for damages agains the alleged wrongdoer.

Lord Esher, MR (former BrettMR) in Lelierre V Gould (1893) stated inter alia
Liability for negligence cannot arise at all until it is established that the man who
has been negligent owes some duty to the person who seeks to make him liable
for negligence. What duty is there where there is no relation between the parties
by contract? A man is entitled to be as negligent as he pleases towards the
whole world if he owes tham no duty of care.

13

Bowen, L. J. in the same case stated. We have not to consider what the law
might be, but what it is.
3.

The Ratio in Theory and Practice: Debate on How to Determine The Ratio
Decidendi of the case
To date there is no agreement on how to determine the ratio decidendi of the
case. To show the variation of opinion we shall examine the views of eminent
lawyers/jurists: Karl Llewellyn (American), Professor Goodhart (English), Prof. Julius
Stone (Australian), Prof. W Twining & David Miers and Prof. W Twining (both
Englishmen).
(a)

Karl Llewellyn in The Brumble Bush, Oceana Edn. 1951pp 45-49, 66-69 argued
that the ratio decidendi of the case is the rule the Court tells you is the rule of
the case. It is based on the ground upon which the court has reached its
decision. It can be narrow or broad.
What you must look for whet reading the case in order to extract its ratio
decidendi is to read the actual judgement in the light of the holding on the
point of law and fact or both (which was before the court). The basis of the
jdgement are the material facts, issues (the actual dispute to be resolved)
based on or limited by the form or procedure.
What are the facts? Those facts, which have a legal bearing, and those
which must be categorized (i.e. a motor car or motor vehicle) to represent a
wider abstract category of facts. No case exists in isolation. It is important for
you to acknowledge the importance of other cases.
This is important because the function of the case system is that no case can
ever have a meaning by itself. Its meaning is obtained from the background
of other cases. The aspect in which they are similar leads to what is legally
relevant and to operate alike or to operate at all upon the court. The state of
the facts, it must be noted, are rarely quite alike.
Thus the doctrine of precedent is Janus-faced.

(b)

Professor Goodhart in Determining the Ratio Decidendi of a Case in Vol. 40

Yale Law Journal [1920] 161-183 had the following to say:
The judge reaches a conclusion upon the facts as he sees them. On the
face of these facxts he bases his decision or judgement. So when you are
analyzing a case you must state the material facts as seen by the judge
and his conclusion based on them. It is by his choice of the material facts
that the judge creates law; It is essential to know what the judge has said
about his choice of facts.
He proposed the following steps in determining the principle of a care of
ratio decidendi:
First, ascertain the material facts on which the judge based his conclusion.
Second, if there is no opinion on the statement of facts, then assume that
all the facts given in the report (judgement) are material except those
which relate to place, person, kind and amount (unless they have been
stated by the judge to be material facts).
Third, A rule of law is the same for all persons, at all times, and at all places
within the jurisdiction of the Court.
Fourth, note the summary of Counsels speech in a reported case
(judgement of an un reported case) to as certain other essential facts.
He advised on how to distinguish material facts from immaterial ones:
o There is a presumption that facts of person, time, place, kind and amount
are immaterial.
o All facts, which the court specifically states to be immaterial.

14

o
o
o

All facts which the court treated as immaterial must be considered

immaterial.
All facts specifically stated or treated material.
If 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.

In a case where there is more than one opinion i.e. Heaven V Pender or Donoghue V
Stevenson, the principle of the case is limited to a sum total of all facts held to be
material by the various judges.
For example in Heaven V Pender Brett MR. treated as material facts:
The defendant supplied rope for the use of the plaintiff. The defendant must
have known if he thought about it, that the stage would be used immediately by
someone such person as the plaintiff.
But according to Cotton and Bowen LJJ the material fact of the case were that:
The defendant was the owner of the dock and must be taken to have invited the
plaintiff into his premises. The plaintiff was injured due to the dangerous state on
the premises.
Under these circumstances it becomes difficult to generalize what material facts are.
We can safely say what facts were considered material facts by the minority judge and
what the majority judges considered to be the material facts.
The conclusion reached by the judges on the basis of the material facts constitutes the
principle of the case.
(c)

Prof. Julius Stone The Ratio of the Ratio Decidendi in Vol. 22 Mod. L.R. (1959)
597 at 603 608 maintained that if the ratio of the case is based on the facts
relating to the holding, then in case of Donoghue Stevenson there are nine
facts which can be found and they give rise to many rival ratio decidendi
which correspond to the number of distinguishable facts.
This is so because each of these facts are capable of various levels of
generality all embracing the facts in question and a precedent and each
yields different results indifferent fact situations. In the case of Donoghue V
Stevenson which was a decision of the House of Lords in 1932 the court
imposed liability on the manufacturer of an opaque bottle of ginger beer
which was found to contain dead snail, for injury (shock and gason enteritis)
to the plaintiff, a Scotch (Woman) widow who drank from the bottle given to
her by one who purchased it from a retailer who in turn purchased it from the
manufacturer. From the proceeding material facts Prof. Stone extracted nine
different levels of stating material facts:
o The facts as to the agent of harm (dead snails, or any other noxious
physical foreign body or foreign element physical or not or any noxious
element).
o Facts as to the Vehicle of harm (an opaque bottle of ginger beer or any
opaque bottle of beverage or any bottle of beverage or any container of
any commodities for human consumption, or any container of any
chattels for human use) or any chattels whatsoever or anything including
land or building.
o

Facts as to the defendants identity (a manufacturer of goods nationally

distributed, through retailers, any manufacturer, any person working on
the object for reward, any person working on the object, or anybody
dealing with the object).

15

o
o

Facts as to the potential danger from a vehicle of harm, (object likely to

become dangerous by negligence or whether or not so);
Facts as to the injury of the plaintiff (personal physical injury or any injury);

Fact as the plaintiffs identity (A Scotch widow, a Scotch woman, or a

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

Fact to the plaintiffs relation to the vehicle of harm (Donee) purchaser,

from a retailer who bought it from the defendant or the purchaser from
such a retailer or a purchaser from anyone, or any one, or any person
related to such purchaser, or other person, or any person into whose
hands the object rightly comes, or any person into whose hands it comes
at all.

Fact as to the discoverability of agent of harm (the noxious element being

not discoverable by inspection of any intermediate party; or not so
discoverable by any such party who had the duty to inspect, or not
discoverable by any party who could reasonably be expected by the
court or jury to inspect.

Fact as to the time of litigation (the facts complained of were litigated in

1932 or any time before 1932 or after 1932 or any time (cf Cocacola
Kwanzas Case in Mwanza)

Note:

(d)

From each level of standing or abstraction of the facts there

emerges within each different levels of standing or abstraction of
stating the same material facts.

William Twining & David Miers in How To Do Things With Rules 3rd Edn.
Weidenfeld & Micolson London 1991pp 311 320 say that the term ratio
decidendi comes into question when legal advisers, advocates, judges and
experts interprete cases for their particular purposes. Questions which they
ask themselves include the following:
for what rule(s) is the case an authority? or for what proposition(s) of law
can this case be made to stand?
William Twining & David Miers rightly point out that within the traditional legal
theory the rule or proposition of law asserted by the interpreter is called the
ratio decidendi. But within the traditional legal theory (as already indicated)
there is no agreement (consensus) about what is entailed when the term is
used. They quote an extract from Prof Neil Mac Cormic Why Cases Have
Rationes and what These Are as follows:It is a disputed question whether there is any such a thing as a or the ratio
in a given case; it is disputed whether or not there is a ratio to be found
authoritatively within a given opinion, or whether the so-called ratio is
simply some proposition of law which a later court or courts find it
expedient to ascribe to an earlier decision as the ground of that decision
which may then be used to help to justify some later decision perhaps
even under the guise of its being that which necessitates the granting of
the given later decision.
An extreme version of this view would
presumably be that the ratio of a case is whether it is any time
authoritatively said to be authority for, and thus no one single proposition
over time.
William Twining & David Miers identify five usages of the Term ratio decidendi as
found in the Literature:

16

The rule(s) of law explicitly stated by the judges as the basis for the
decision, that is, the explicitly answer to question(s) of law in the case;

The reason(s) explicitly given by the judge for the decision, that is, the
explicit justification for the answer(s) to the question(s) of law in the case;

The reason(s) implicitly given by the judge for the decision, that is, the
implicit justification for the answer(s) given to the question(s) in the case;
and;

The rule(s) of law for which a case is made to stand or is cited as authority
by a subsequent interpreter, that is, the imputed answer(s) to question(s)
of law in that case [pp331-332]
No mention is made in relation to material facts of the case as we have
previously seen.
o

In their view finding a ratio decidendi is not a formalistic exercise but it involves
an element of choice from a range of possibilities. There follows what determines
the choice of ratio decidendi and how wide a range of possibilities should be:
o In reasoning on a point of law one is not confronted with a single isolated
precedent. There is a collection of potentially relevant precedents. Each
case must be read in the context of all other potentially relevant cases.
There is no single way of determining a ratio decidendi.
o It is false to assume that in determining the ratio decidendi we should
depend on the stand point of the judge, because it is not only a judge
who interpretes rules. Consequently, advocates and other officials do
interprete cases in the process of trying to persuade courts to reach
decisions in their favour or infavour of their clients. (see: Grant V Australia
Knitting Mills argument pursued by Counsel for the defendant; Hedley
Byrne V Heller the argument pursued by the counsel for the defendant or
in Ngaire V National Insurance Corporation the argument pursued by the
Counsel for the plaintiff).
On the other hand, one should bear in mind the nature of the
Adversary System in which each side in a cause of action will press
on an interpretation for a relevant precedent which is consistent
with the desired results. Good advocacy consists in directing
attention of the court to the most plausible interpretation.
(e)

William Twining in an article titled Demystifying Precedent in English Law says

that the term ratio decidendi is no longer of any analytical value in the
discourse about the interpretation of precedents. In his view a distinction
must be made between explicit formulation of a proposition of a judicial
opinions and propositions which are implicit in the reasoning of such opinions
and propositions of law imputed to precedents by subsequent interpreters.
He also calls for a distinction between answers to questions of law (law
propositions) and justifications for such answers. In his view neither Parliament
northe courts have attempted to lay down an authoritative definition of the
term ratio decidendi of a past case.
Both institutions have resisted formalization of the doctrine of precedents in key
aspects. This allows a certain amount of leeway in the interpretation of
precedents.
Explicit formulations of propositions of law and propositions implicit in the
reasoning of prior cases are regularly invoked by lawyers and judges in later
cases as part of their arguments. In respect of binding precedents such

17

propositions are often presented as if they are binding part of the case, but such
assertions are often upon challenge. Common Law rules are not fixed rules in a
verbal form. And there is no theoretical consensus about the correct way of
extracting authoritative propositions of law from judicial decisions.
The disagreement is based on whether there can be precision in determining the
scope of a proposition. Further, a great majority of reported precedents to day
deal with interpretation of statutes or other rules fixed in verbal form. This
operates as a constraint to subsequent interpretation because the statutory or
other texts provide a more clearly identifiable encourage for interpretation and
argumentation that do not exist in judicial opinions. The precise nature and
extent of such a constraint is much debated.
The basic point of departure between William Twining & David Miers and earlier
jurists on the debate on ratio decidendi and how to determine the same lie in
the fact that a great majority of reported cases or precedents deal with
interpretation of statutes and other rules fixed in Verbal form. This operates as a
constraint to subsequent interpretation because the statutory and other texts
provide a more clearly identifiable encourage for interpretation and
argumentation than do the text of judicial opinion.
4. (1)

The Common Law Case Technique: Development of the Law of Negligence

The decisions of the courts on economic and social questions depend on their
economic and social philosophy- Theodore Roosevelt.
o Stare decisis & Precedent
o Material Facts of a Case
o Issue(s)
o Holding (in whose favour a matter was decided)
o Ratio Decidendi (future value or authority)
o Obiter Dicta (Dicta-future value)
o Dissenting Opinion (Value)

(2)

Methods of Reasoning
Analogy (Example or from case to case)
Deduction (Syllogism)
Induction (levels of Abstraction)
Judicial Hunch
-Socialisation, political view, economic position, religions opinion etc.
Positivism (formal style)
Appeal to Higher Values than law itself (the Grand Style)
Types of judges
-Timorous souls
-Bold spirits

(3)

Fleming the Law of Torts in The 19th C

expansion of legal protection to persons injured on the country roads and
city streets, along rail roads and factories (they were third parties)
Courts tries to use the so-called antiquated rules in order to break through
a narrow compass- the law of negligence in embryonic stage- gestating.
The Pandoras Box- called for a careful handling timorous souls trying to
avoid floodgate of litigation.

Pandoras Box- an account of Greek Mythology:

A young lady married to a Greek God, lived in a house in which a room was kept
under lock and key. She was warned never to open it lest evil would be fall the
world.

18

One day, when other occupants of the house were away, she became over
curious and opened the room only to let loose all evil known to the World to day.
In view of the above mythology, timorous soul judges, tried to rationalise the then
competing demands:
the expansion of Industry
the risks and dangers to life associated to such development, but
the law had to be extended to strangers (to what extent was that done?)
Tort(s):

Civil Wrongs

Conceptual development of the law of negligence (tort(s) is examined as a process

(not as something, which just developed at once).
A process of a whole compendium of argumentation, methodologicals in a historical
context, which produced legal rules, principles and standards.

The Law of negligence has developed through such concepts as: contract,
fraud, dangerous instruments, doctor-patient relationship, fiduciary relationship,
occupier-invitee relationship (physical or legal), Duty of Care etc.
The development of the law of negligence was not straight but a circular motion

According to Professor Edward Levi:

Stage 1:
the creation of a legal concept built, as cases are compared.
Stage 2:
The concept became more or less fixed through reasoning by
example as items were classified inside and outside the concept
(A process of abstraction as presented under Deductive and
Inductive Reasoning earlier on).
Stage 3:
the breakdown of the concept when reasoning by example
moves far ahead that reference to a particular word became no
longer necessary then the development of a single concept
known as negligence (word or deed).
Negligence meaning carelessness which became a factor establishing
liability as the law became more and more sophisticated. The
process consisted in analogy, induction and deduction shifting
categorizations, rules, principles, standards and policy.
Policy Issues seen through such statements by Law Lords 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 Common Law Case Technique: Development of the Law of Negligence 1837-2001
The Period Between 1833 and 1836 only parties to the contract could sue. The dominant
notion was contract. From 1837 we notice a move away from parties to a contract to
the notion of knowledge of the user of an article which causes injury/damage:

1.Langridge V Levy [1837] 2M & W 519

The material facts:
The father of the plaintiff went to the defendant who was the seller of guns to buy
for the use of himself and his sons. While at the shop of the defendant the buyer
made a representation to the seller that the gun was for himself and his sons and
in inducing the sale the defendant warranted that the gun was safe and secure

19

while it was not. In the process of the sun (the plaintiff) using the gun so
purchased, he sustained injuries and brought an action against the seller.
The Issue was:
Whether the seller was liable?
Argument by counsel for the plaintiff:
Wherever a duty is imposed upon a person by contract or otherwise, and the
duty is violated, anyone who is injured by the violation of it may have a remedy
against the wrongdoer.
Argument by Counsel for the defendant:
There was no privity of contract and therefore the plaintiff was not entitled in the
law to recover damages. Since the father was the contracting party with the
defendant he can alone sue upon the contract for the breach of it.
Holding:
In favour of the plaintiff (rule discharged).
Rato Decidendi:
Where the defendant knowingly sold a gun to the father for the use of himself
and his sons and had knowingly made a false representation (warrant) that it is
safe and secure while it was not, and on the basis of such warrant the plaintiff
used it to his detriment the defendant is liable.
*(1)

A Case decided on the basis of implied contract, warrant and knowledge of the
user where the article which causes injury is not dangerous in itself.
(2)
In the course of delivering the judgement a number of things were considered:
The Court was not ready to lay down a broad rule of liability.
The Court considered the fact that the gun was not an instrument which is
dangerous in itself unless loaded.
If the instrument in question, which is not dangerous in itself, but requires an act to be
done that is, to be loaded, in order to make it so, had been simply delivered by the
defendant, without any contract or representation on his part, to the plaintiff, no action
would have been maintainable for any subsequent damage which the plaintiff might
have sustained by the use of it.

The Court made use of the principle in Pasley V Freeman 3TR51 that:
Mere falsehood is not enough to give a right of action, but is must be a
falsehood told with an intention that it should be acted upon by the party
injured, and that it must produce injury to him

The Court was trying to insist on the fact that an injured person must establish that
the person who in said to have caused injury was such a person as recognized by
the law not to act in the way he did.

2.Winterbotton V Wright [1842] 10M & W109

The Material Facts:
A contracted with the Post Master General to provide a mail coach to convey
mail bags along a certain line of the road; B was contracted to hire horses and
coach along the same line, at the same time B contracted with C to drive the
coach. In the process of driving the coach C got injured and brought an action
against A for damages due to the injury sustained in the course of driving the
coach which broke due to latent defects in its construction.

20

Issue:
Whether A (defendant) was liable?
Argument by Counsel for defendant:
He objected that the declaration was bad in substance. According to him the
general rule was that whenever a wrong arises out of a breach of contract, only
the party to the contract can sue-cited Tollit V Sherton 5M & W 283 and the
purpose was to limit extension of liability to even those who were no privy to the
contract.
Argument by the Counsel for the plaintiff:
Was based on the decision of Langridge V Levy. He tried to show that the
defendant had entered into contract with a public officer to supply an article,
which from its nature and usewas necessarily to be used by the plaintiff. On the
basis of this it was sufficient to bring this case within the rule established by
Langridge V Levy which proceeded on the ground of knowledge and fraud; in
that in this case the defendant made a representation that the coach was in a
proper state for use.
Holding:
Judgement for the defendant

Ratio Decidendi:
Where there is no contract or the injured party is no privy to it, no action will lie (or
may be maintained).
*A case decided on the basis that the injured party was too remote to be
contemplated by the defendant. A movement back to contract.
Lord Abinger C.B. stated inter alia:
We 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 first
impression, and it has been brought in spite of the precautions which were taken
in the judgement of this court in the case of Langridge V Levy, to obviate any
notion that such an action could be maintained.
We ought not to attempt to extend the principle of that decision, which although
it has been cited in support of this action, wholly fails as an authority in its favour;
for there the gun was bought for the use of the son, the plaintiff in that action,
who could not make the bargain himself but was really and substantially the
party contracting. Here the action is brought simply because the defendant was
a contractor with a third person and it is contended that thereupon he becomes
liable to everybody who might use the carriage.
If there had been any ground for such action, there certainly would have been
some precedent for it; but with the exception of actions against innkeepers, and
some few other persons, no cause of action of a similar nature has occurred in
practice.
The rule in Langridge V Levy cannot be applied in Witterbottom V Wright
because according to Lord Abinger, C.B. the case in point is a case of its own
kind.
Lord Alderson, B had the following to say:
I am of the same opinion. If we are to hold that the plaintiff could sue in such a
case, there is no point at which such actions would stop. The only safe rule is to
continue a right to recover to those who enter into the contract. If we go one
step beyond that there is no reason why we should not go fifty. [emphasis
supplied]

21

Rolfer, B had the following to say;

This is one of the unfortunate cases in which there certain has been damnum,
absquiae injuria; it is so, no doubt, a hardship on the plaintiff to be without a
remedy, but by that consideration we ought not to be influenced. Hardcases, it
has been frequently observed, are apt to introduce bad law [emphasis added].
All the three judges were in agreement that in the circumstances of the day the
plaintiff could not recover because he was not a party or privy to the contract.
He was a stranger in so far as the law and the defendants were concerned.
3.Frederick

Longmeid & Eliza (his Wife) V Holliday,

[1851] 6 Ex. 76
Material Facts:
The defendant (Holliday) a seller of lamps sold a lamp to the plaintiffs husband.
The defendant was not a manufacturer of those lumps. The lumps were called
Hollidays Patent Lamp. The said lamp was for the purpose of being used by
him (the buyer) and his wife. There was evidence that the lamp was defectively
manufactured. In using the lamp with naphtha (i.e. like Kerosene) the lamp
exploded and the plaintiffs wife was injured. The two plaintiffs brought an action
(Frederick has previously recovered damages in an action for the defendants
breach of implied warranty of sale). The jury found all facts for the plaintiffs
except for the allegation of fraud because; in their view the defendant did not
know that the lamp was in fact defective.
Issue
Whether the plaintiff can recover on the basis of fraud?
Argument by Counsel for the defendant:
As there was no proof of fraud, the action could not be maintained.
Argument for the Counsel of the Plaintiff:
The defendant was guilty of fraudulent representation in that it was stated that
the lamp was fit and proper for use, which he knew it was not true, and that he
knew who is going to use the lamp, who in fact was injured in the process of using
the lamp. The counsel maintained that this case was in line with the decision in
Langridge V Levy.
Holding
Defendant not liable (Rule absolute).
Ratio Decidendi:
Where in the ordinary course of doing business between one individual and
another, a machine that is not dangerous in itself but which might become so by
latent defect entirely unknown, is let or given by one person to another, the
former is not answerable to the latter for subsequent damage accruing from the
use of it.
Obiter Dicta
If the defendant had been guilty of a fraudulent representation that the lamp
was fit and proper to be used, knowing that it was not and intending it to be
usedthen that individual would have had an action for deceit on the principle
of Langridge V Levy [1837] 2M & W 159.

22

If anyone knowingly tells a falsehood, with intent to induce another to do an act

which results in his loss, then he is liable to that person in an action for deceit.

Parke, B. enumerated instances besides contract and fraud in which an action might lie
but which can be distinguished from the above case:
If an apothecary administers improper medicines to his patients, or a sageon,
unskillfully treated him, and thereby injure his health, he would be liable to the
patient even where the father or friend of the patient may have been a
contracting party with the apothecary or surgeon.

A Stage-Coach proprietor, who may have been contracted with a master to

carry his servant, if he is guilty of neglect, and the servant sustains personal
damage, he is liable to him.

If a mason contract to erect a bridge or another work of a public road, which he

constructs, but not according to the contract, and the defects of which are a
nuisance to the highway, he may be responsible for it to a third party, who is
injured by the defective construction.

If anyone delivers to another without notice an instrument in its nature dangerous,

or under particular circumstances, as a loaded gun which he himself loaded, and
another person to whom it is delivered is injured thereby or if he places it in a
situation easily accessible to a third person who sustains damage from it, is liable.
(Dixon V Bell 5M & Selw. 198)

This was a case of Misfeasance

If 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 wife
independently of contract, she cannot sue and join herself with her husband.

4.George & Wife V Skivington [1869] LR5 Ex1

Material Facts:
The plaintiff (Joseph George husband to the second plaintiff) purchased a
chemical 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 by
him represented to be fit and proper to be used for washing the hair. There
was also an express statement that the defendant knew the purpose for which
the article was bought. Due to the defendants unskillful; negligent and
improper make of the compound, caused injury complained by the plaintiff (she
lost her hair or her hair fell off).
Issue:
Whether an action at the suit of the plaintiff (wife) her husband being joined for
conformity, will lie (or was there a cause of action against the defendant?).
Argument by the Counsel for defendant:
There was no warranty, express or implied towards the purchaser, therefore no
liability.
Argument by the Counsel for the plaintiffs:
The defendant was a chemist who made the compound which he sold for a
particular purpose, and knowing the purposes for which it was bought, is liable in
an action on the case for unskillfulness and negligence in the manufacture of it
whereby the person who used it was injured.

23

Holding
Judgement for the plaintiffs.
Ratio Decidendi:
Apart from the question of warranty, express or implied there is a duty on the
defendant, the vendor, to use ordinary care in compounding his wash for the
hair. There was such a duty to wards the purchaser and it extends to the person
whose use the vendor knew the compound was purchased Langridge V Levy
was cited as an authority for this proposition. Here a similar duty a rose towards
the person who was known to the defendant to be about to use this wash;
namely the duty that the article sold should be reasonably fit for the purpose it
was bought for and compounded with reasonable care. [Kelly C.B]
Obiter Dicta
Kelly, C.B. distinguished the case of Longmeid Elisa V Holliday from this case in
that the former cases decision was not based on the negligence of the Vendor.
**
Piggott, B; was of the same opinion and he added:
. Where the thing purchased is for the use not of the purchaser himself but, to
the defendants knowledge, of his wife, does the defendants duty extend to
her? I can see no reason why it should not [The judge points to the incapacity of
women to sue on their own in those days which is a reason why a husband had to
be joined with her as co-plaintiffs)

Piggott, B advanced yet a contract situation:

Where a Chemist sells a drug to a customer without any knowledge of the
purpose for which it is to be applied, which is fit for a grown up person, and that
drug is afterwards given by the purchaser to a child and does injury, it could not
be contended that the chemist is a liable.

Cleasby, B was of the opinion that the action did lie against the defendant. He
stressed the principle of contract by saying:
No person can sue on contract but the person with whom the contract is
made; and this is undoubtedly the proposition attempted to be taken
advantage of in Langridge V Levy. Then he proceeded applying the
principle to the facts of the case and found that there was good cause
of action in the person injured similar to that which held to be good in
Langridge V Levy.
A case where the seller of the article that caused injury was also a manufacturer
of the article and knew who the consumers were (here representation was not
relevant).
(The Married Womens Property Act, 1882 [45 & 46 Vict. C 75 on Position of
Married Women]

5.Heaven V Pender [1883] QBD503

Note on Material Facts- The Material Facts 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 Brett, MR were as follows;
The plaintiff was a workman in the employ of the ship painter. The ship painter
entered into a contract with a ship-owner whose ship was in the defendants dock
to paint the outside of his ship. The defendant, the dock owner, supplied under a
contract with the ship owner, an ordinary stage to be slung in the ordinary way
outside the ship for the purposes of painting her. It must have been to the

24

defendant if he considered that matter at all that, the stage would used by such
a person as the plaintiff (as ship painter). The ropes by which the stage was slung,
were supplied, without reasonable careful attention to their condition. When the
plaintiff began to use the stage the ropes broke, the stage fell and the plaintiff
was injured.
Issue
Whether the defendant owed a duty of care to the plaintiff.
Argument by the Counsel for the defendant;
The stage was, through want of attention of the defendants servants supplied for
use by the plaintiffs but want of attention amounting to want of ordinary care is
no good cause of action, unless the person charged with such want of ordinary
care had a duty to the person complaining to use ordinary care in respect of the
matter in question.
Argument by Counsel for the plaintiffs;
The defendant did not use ordinary care and skill and because of that the
plaintiff was injured, the type of injury was not caused by the plaintiffs contributory
negligence, therefore the defendant owed a duty of care to the plaintiff.
Holding:
Juddgement in favour of he plaintiff.
Ratio Decidendi:
Whenever one person is by circumstances placed in such a position with regard
to another that every one of ordinary care and skill in his own conduct with
regard to these circumstances he would cause danger or injury to the person or
property of the other, a duty arises to use ordinary care and skill to avoid such a
danger.
Methodology
What method did Brett, M.R; employ in arriving at such a proposition? Brett, M.R;
employed a case to case approach (Induction) and in each case examined he
found a rule and combination of these rules leading to a general rule for liability
called duty care, this made him to conclude that there was a general rule called
duty of care which he then applied deductively to the fact situation in the case
he was decide. This is a process of Inductive reasoning and after a general rule
has been ascertained, then it is applied by the process of deductive reasoning.
In real terms Brett, M.R; considered the following fact situation:
Two drivers meeting have a contract with each other.
Two ships navigating at sea.
A railway company which has contracted with one person to carry another has
not only a contract with the person carried but also a duty towards that person.
The owner or occupier of house to come to his house or land has no contracts
with such persons but has a duty towards them or him.
Thus Brett, M.R. Maintained the existence of a contract
between persons does not prevent the existence of the suggested duty towards
him or them, raised by law independently of contract, but the facts with regard
to which the contract is made and to which it applies in exactly similar but a
contract of duty.
Brett, M.R. ruled out certain considerations:
We have not in this case to consider the circumstances in which an implied
contract may arise to use ordinary care and skill to avoid danger to the safety of person
or property.
We have not in this case to consider the question of fraudulent
mispresentation express or implied which is a well recognized head of law.
What is then to be resolved?
What is the proper definition of the relation between two persons other than the relation
established by contract, or fraud, which imposes on the one of them the duty towards
the other to observe, with regard to the person or property of such other, such ordinary

25

care and skill as may be necessary to prevent injury to this person or property. Does the
present case fall within such a definition?
The judge re-examined his examples as enumerated earlier and had the following to say:
When two drivers or two ships are approaching each other, such a relation arises
between them when they approaching each other in such a manner that, unless
they use ordinary care and skill to avoid it, there will be danger of injurious
collision between them. The relation is established in such circumstances
between them, not only if it is proved that they actually know and think of this
danger, but whether such proof be made or not. It is established, as it seems to
me, because anyone of ordinary care and skill under such circumstances there
would be such a danger. And anyone ought by the universally recognized rules
right and wrong, to think so much with regard to the safety of others who may be
jeopardized by his conduct
The judge went on to enumerate what would happen in the case of railway company as
follows:
In the case of Railway Company carrying a passenger with whom it has not
entered into a contract of carriage the law implies the duty, because it must be
obvious that unless ordinary care and skill be used the personal safety of a
passenger must be endangered.
He said the following in relation to an owner or occupier;
With regard to the condition in which an owner or occupier leaves his house or
property other phraseology has been used, which it is necessary to consider. If a
man opens his shop or warehouse to customers it is said that he invites them to
enter, and that this invitation raises the relation between them which imposes on
the invitor the duty of using reasonable care to keep his house or warehouse that
it may not endanger the person or property of the person invited.If you permit a
person to enter then you impose on yourself a duty not to lay a trap on him.
Having considered all these instances, which impose a duty of care and skill, Brett, M.R.
concluded as follows:
It follows, as it seems to me, that there must be a more remote and larger
proposition, which involves and covers both sets of circumstances. The logic of
inductive reasoning requires that where two major propositions lead to exactly
similar minor premises there must be a remote and larger premise, which
embraces both of the major propositions.
The proposition which seems to be in line with the decided cases on supply of goods or
machinery or the like was stated as follows;
Whenever one person supplies goods or machinery, or the like, for the purpose of
their being used by another person under such circumstances that everyone of
ordinary sense would, if he thought, recognized at once that unless he used
ordinary care and skill with regard to the condition of the thing supplied or mode
of supplying it, there will be danger or injury to the person or property of him for
whose use the thing is supplied, and who is to use it a duty arises to use ordinary
care and skill as to the condition or manner of supplying such a thing.
The approach by majority Judges Cotton & Bowen LJJ:
Their ratio decidendi was based on the notion of owner- invitee relationship. Thus
the decision of Cotton, LJ and Bowen, LJ was restricted to the category of ownerinvitee relationship (narrow):
Statement of the material facts by the majority judges:
The defendant owner of a dock for the repair of ships, provided for use in the
dock the stages necessary to enable the outside of a ship to be painted while in
the dock, and the stages which were to be used only in the dock where
appliances provided by the dock owner as appurtenant to the dock and its use.

26

After the stage was handed over to the ship owner it no longer remained under
the control of the dock owner.

Issue:
Whether the dock owner was under the obligation to take reasonable care that
the appliances were in a fit state to be used?
Holding: Infavour of the plaintiff.
Ratio decidendi:
The owner of premises is under an obligation to take reasonable care that the
things supplied by him for immediate use are in a good state of repair.
The majority judges were unable to concur with the judgement of the Master of the Rolls:
I am unwilling to concur with the Master of the Rolls in laying down unnecessarily
the larger principle which he entertains---.

6.Derry and Others V Peek, (1889) 14 App Case 337

Material facts:
By a special Act 45 & 46 Vict; C Clix the Plymouth Devonport and District Train
ways Company was authorized to make certain train ways. By S-35 the carriages
used on the train ways might be moved by animal power with the consent of the
Board of Trade, by steam or any mechanical power for fixed periods and subject
to the regulations of the Board. By S.34 of the Tramways Act, 1870 (33 & 34 Vict.C:
78) which section in the special Act all carriages used on any tramway shall be
moved by the power prescribed by special Act, and where no such power is
prescribed, by animal power only,
The appellants as directors of the Company issued a Prospectus which
encouraged people to invest in it because by the special Act of Parliament the
company had a right louse steam or mechanical motive power, instead of
horses---. As soon as the Prospectus was issued, the respondent relying upon a
paragraph in the Prospectus applied and obtained shares in the company. The
company proceeded to tramways, but the Board of Trade refused to consent to
the use of steam or mechanical power.
In the result the company was wound up and the respondents brought an action
of deceit against the appellants claiming damages for fraudulent
misrepresentation of the dependants whereby the plaintiff was induced to take
shares in the company.
[In the High Court the action was dismissed by Stirling J.] Appeal to the Court of
Appeal.
Issue:
Whether an action of fraudulent misrepresentation would lie?
Holding
The Court of Appeal held that [Cotton, LJ; Sir Hannen J, and Lopes, L.J.) the
defendants were liable to make good to the plaintiffs the loss sustained by taking
the shares.
The defendants appealed to the House of Lords
Holding:
Appeal allowed, order of the Court of Appeal reversed
Ratio Decidendi:
In an action for deceit the plaintiff must prove actual fraud, that is false
representation made knowingly, or without belief in its truth, or recklessly, without
caring whether it be true or false and intending the plaintiff to act upon it.

27

Other observations by the House of Lords:

A false statement may be evidence of fraud, but does not necessarily amount to
fraud.
Such 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.
Lord Herschell send:
In my opinion making a false statement through want of care falls far short of,
and is very different thing from fraud, and the same may be said of a false
representation honestly believed though on insufficient grounds.
The First case of negligent statements causing financial loss
In this case the court was saying that there is a distinction in law between false
representation and fraud or deceit and whoever wants to base an action on false
representation must prove actual deceit.

7.Le Lievre & Diennes V Gould, [1893] 1QB491

Material facts
H. Owner of land, arrange with D for a loan to be paid to L, a builder, on the
security of a mortgage of the land. The money was to be paid by installments at
certain stages in the progress of buildings to be erected on the land by L, and the
stages were to be certified by an Architect. H. asked the defendant, G, who was
an Architect and surveyor to issue these Certificates. In the process D transferred
the mortgage to LL after four installments had been paid on certificates furnished
by G. In due course the plaintiffs lost money on this transaction and sued for
damages.
Issue
Whether the defendant was liable?
Argument by the Plaintiffs:
H. in employing G to issue certificates and in preparing the schedule of
advances, was acting as the agent of the plaintiff D. The certificates given were
in fact to the knowledge of G and if there was no fraud on his part the defendant
did not use due care, skill and diligence to ascertain whether the facts of the
certificates were true. In so giving certificates the defendant acted with gross
negligence, and in break of the duty he owed to the plaintiffs.
Arguments by the Defendant:
The defendant denied that he had been employed by D or on his behalf to issue
certificates. He never undertook any duty towards the plaintiffs or either of them.
He was not fraudulent, the certificates were issued bona fide and in belief that
the statements contained in them were true.
Holding
Appeal Dismissed, Judgement infavour of the defendants.
Ratio Decidendi:
The question of liability for negligence cannot arise at all until it is established that
a man who has been negligent owed some duty to the person who seeks to
make him liable for negligence.
Obiter Dicta:
Decision of Heaven V Pender
Observations:
1.
The judgement of Lord Esher (Former Brett M.R.) M.R. reveals the following:

28

(i)

(ii)
(iii)

(iv)

A duty cannot arise unless there is a r elationship of the parties through

contract (what duty is there when there is no relationship between the
parties by contract?)
A man is entitled to be as negligent as he wishes (pleases) to the whole
world if he owes no duty to them.
Derry V Peek (House of Lords decision) established that in the absence of
contract, an action for negligence cannot be maintained when there is
no fraud.
Negligence, however great, does not itself constitute fraud.

2. (i)

According to Bowen LJ in Derry V Peek the House of Lords pointed out that, as
Common Law lawyers had always held, an action of deceit must be based on
fraud, and that negligence is not itself fraud, although negligence in some cases
may be of such a kind as to make it highly probable that there has been fraud.

(ii)

Negligent misrepresentation does not amount to deceit and negligent

misrepresentation can give rise to a cause of action only is a duty lies upon the
defendant not to be negligent.

(iii)

We however, have to consider not what the law might be, but what it is. (This is a
positivistic utterance by the judge).

(iv)

---a man is responsible for what he states in a certificate to any person to whom
he may have reason to suppose that the certificates may be shown. But the law
of England does not go to that extent, it does not consider that what a man
writes on paper is like a gun or other dangerous instrument and unless it is
intended to deceive, the law does not, in the absence of contract, hold him
responsible for drawing his certificates carelessly.
3.

In the opinion of A.L. Smith L.J. the decision of Heaten V Pender was founded
upon the principle, that a duty to take care did arise when a person or
property of one was in such proximity to the person or property of another
that, if due care was not taken, damage might be done by the one to the
other. Heaven V Pender does not go further than this---the case is totally
different from the present and its principle cannot be applied to it.

Note on Precedent:
Le Lievre v Gould- According to the strict rule of precedent, the English Court of
Appeal must generally follow its previous decisions i.e. it is bound by the ratios of its
own previous cases, so in this case, the court is bound by the ratio of Heaven V
Pender. We saw that strictly, the ratio of Heaven V Pender must be the rule of the
majority of the judges Cotton & Bowen LJJ. Neither Bretts formulation of the larger
proposition, nor his formulation of suppliers liability is therefore the ratio, nor part of the
ratio. But does the Court in LeLievre V Gould adhere to these strict rules? Esher
(Brett) M.R. refers to what Heaven V Pender established, meaning his own minority
rule. Smith, LJ also refers to Bretts rule as the principle of Heaven V Pender. Only
Bowen, LJ refers to the ratio of Heaven v Pender as the majority rule. i.e. the rule of
owner of premises.
Before we conclude, that the court is not adhering to the strict doctrine, we should
remember that they do not in fact prefer the minority rule in Heaven v Pender to the
majority rule. They reject both as applying to the facts before them. If they had
preferred the minority rule, they would be in breach of the strict principle, but they
rejected the minority rule as too wide, and the majority rule, as having no
application. But in so far as they accept Bretts rule as the principle of Heaven v

29

Pender, to be followed in future cases where the facts came within that principle
they do not adhere to the strict rule of precedent.
The House of Lords in Donoghue v Stevenson could have said this was wrong. But
they do not- Lord Atkin proves these statements and also refers to Bretts rule as the
doctrine of Heaven v Pender. Notice also that this is the case of a Court dealing with
one of its own previous decisions. A lower Court could not have so much freedom.
Look at how Mc Cardie J sitting in the High Court, dealt with Heaven V Pender in Farr
v Butters. He had to say the rule of that case is the majority rule, and cannot follow
Brett MRS rule in preference.

8.Nocton V Lord Ashburton [1914] AC 932

Material Facts
Lord Ashburton claimed damages from Nocton, a Solicitor on the basis that he
had suffered loss as a result of improper advise given to him by Nocton which he
acted upon. The advise had been that Lord Ashburton should release a part of a
mortgaged security. As a result of acting on that advise the security had
become insufficient and Lord Ashburton claimed that the advise had been given
by Nocton knowingly that the security would be rendered insufficient and that it
had been given in Noctons interest and not in his clients interest.
In the first instance the Court found that there had been no fraud, therefore
dismissed the action. The Court of Appeal reversed that finding and granted
relief on the basis that Nocton had been guilty of actual fraud.
The House of Lords reversed the decision of the Court of Appeal. Held the
plaintiff was to succeed on the basis of a breach of duty which arises out of
fiduciary relationship with the defendant and which the defendant suffered loss.
Holding
Court of Appeal decision affirmed on different grounds.
Ratio Decidendi
Where a person renders advise to another and the advisee falls within a fiduciary
relationship with the adviser, in case the advisee sustains loss the adviser is liable.
Viscount Haldane L.C. Statements are worthy noting:
(i)
Derry v Peek which establishes that proof of fraudulent intention is necessary to
sustain an action for deceit, whether the claim is dealt with in a Court of law or by
a Court of Equity---does not narrow the scope of the remedy in actions within the
exclusive jurisdiction of the Court of Equity.
(ii)

Although liability for negligence in words has in material respects been

developed in our law differently from liability for negligence in act, it is none-theless true that a man may come under a special duty to exercise care in giving
information or advice.

(iii)

I should be sorry to be thought to lend centenance to the idea that recent

decisions have been intended to stereotype the cases in which people can be
held to have assumed a special duty (emphasis added). Whether such a duty
has been assumed depended on the relationship of the parties---.

9.Donoghue v Stevenson, [1932] AC 562 (HL)

This was an appeal from Scotland [England and Scotland have two different legal
systems].
Material Facts

30

The appellant, a shop assistant sought to recover from the respondent, an

aerated water manufacturer, on the basis that he was negligent and out of such
negligence she was injured by the presence of a snail in a bottle of ginger beer
manufactured by the respondent and ordered for the appellant in a shop by a
friend of the appellant. As a consequence of having drunk part of the
contaminated contents of the bottle it was alleged that she contracted a serious
illness. The bottle was dark opaque glass, the condition of its contents could not
be ascertained, it was closed up with a metal cap, and on the side was a label
bearing the name of the manufacturer (the respondent).
Issue
Whether a manufacturer of an article or drink sold by him to a distributor in
circumstances which prevent the distributor or ultimate purchaser or consumer
from discovering by inspection any defect is under a legal duty to the ultimate
purchaser or consumer to take reasonable care that the article is free from any
defect likely to cause injury to health?
The arguments of the two parties are not apparent.
Holding
Appeal allowed; decision infavour of the plaintiff against the defendant.
We shall concentrate on the reasoning of the House of Lords. The case was decided by
Lord Atkin, Lord MacMillan, Lord Buckmaster, Lord Thanketon and Lord Tomlin. Lord
Buckmaster and Tomlin dissented. We examine in turn the extracts from the opinions of
Lord Atkin, Lord MacMillan and Buckmaster:
Lord Atkin made the following important Observations:
1.
For the purposes of determining this problem the law of Scotland and the
law of England are the samein order to support an action for damages
for negligence the complaint has to show that he has been injured by the
breach of duty owed to him in the circumstances by the defendant to
take reasonable care to avoid such injury.
2.
In the present case we are not concerned with the breach of duty
---we are concerned with the question as a mater of law in the
circumstances alleged by the defendant owed a duty to the purchaser
to take care---.
3.
In English law there must be, and is, some general conception of
relationships giving rise to a duty of care, of which particular cases found
in the books are but instances. The Liability for negligence, whether you
style it such or treat it as in other systems as species of culpa is no doubt
based upon a general public sentiment of a moral wrongdoing for which
an offender must pay.
4.
The rule that you are to love your neighbour becomes, in law, you must
not injure your neighbour: and the lawyers question, who is my neighbour
? (emphasis added) receives a restricted reply.
You must take reasonable care to avoid acts or omissions, which you can
reasonably foresee, would be likely to injure your neighbour. Who then, in
law, is my neighbour? The answer seems to me to be: persons who are so
closely and directly affected by my act that I ought reasonably to have
them in contemplation as being so affected when I am directing my mind
to the acts or omissions which are called in question.
According to Lord Atkin this is the principle enunciated in Heaven V Pender by Lord Esher
MR (then Brett MR) when it is limited by the notion of proximity introduced by Lord Justice
AL Smith in Le Lievre and Dennes V Gould where Lord Esher MR stated inter alia
The case establishes that under certain circumstances, one may owe a duty to
another even though there is no contract between them. If one man is near to
another, or is near to the properly of another, a duty lies upon him not to do that
which may cause a personal injury to that other or injure his property.

31

Lord Justice A.L. Smith maintained:

The decision of Heaven V Pender was founded upon the principle that a duty to
take care did arise when the person or the property of another that, if due care
was not taken, damage might be done by one to the other.
In the view of Lord Atkin these principles sufficiently state the rule of proximity. This
proximity is not confined to mere physical proximity, but is used--- to extend to such
close and direct relations that the act complained of directly affects the person alleged
to be bound to take care would know could be directly affected by his careless act---.
Lord Atkin further amplified on the point by saying:
A manufacturer who puts up an article of food in a container which he knows will be
opened by the actual consumer, without any chance of intermediate inspection by the
purchaser or reasonable inspection by the consumer and it is found that due to
negligent manufacture the contents were mixed with poison then the law of England
and Scotland says that a poisoned consumer has no remedy against a negligent
manufacturer, the results would be grave and the law would be defective.
Then he went to expound the principle that
---by Scots and English Law alike a manufacturer of products which he sells in
such a form as to show that he intends them to reach the ultimate consumer in
the same form in which they left him, with no reasonable chance of intermediate
examination and without knowledge that the absence of reasonable care in the
preparation or putting up of the products will result in injury to the consumers life
or property, owes a duty of care to the consumer to take reasonable care.
Lord MacMillans decision had the following characteristics:
(i)
The law takes no cognizance of carelessness in the abstract. It concerns
itself with carelessness where there is a duty to take care and where
failure in that duty has caused damage.
(ii)
In the daily contacts social and business alike human beings are thrown in
an infinitive variety of relationships with their fellow, and the law can refer
only to the standards of the reasonable man (emphasis supplied) in order
to determine whether any particular relationship gives rise to a duty to
take care between those who stand in that relation to each other.
(iii)
What then are the circumstances which give rise to this duty to take care?
A person who for gain engages in business of manufacturing articles of
food or drink intended for consumption by members of the public in the
form in which he issues them is under a duty to take care in the
manufacture of these articles. The duty, in my opinion, he owes to those
who he intends to consume his products.
(iv)
The Categories of negligence are never closed.
(emphasis added). The Cardinal principle of liability is that the party
complained of should owe a duty to take care and the party
complaining should be able to prove that he has suffered damage as a
result or consequence of a breach of that duty.
(Negligence consist in the duty of care, breach of duty and damage
resulting from the breach of duty to take care (emphasis supplied).
(v)
I can readily conceive that where a manufacturer has parted with his
product and it has passed into other hands it may well be exposed to
Vicissitudes which may render it defective or noxious and for which the
manufacture could not in any way be held to blame. Where between
the manufacturer and the user there is interposed a party who has the
means and opportunity of examining the manufacturers product before
he reissues it to the actual user the manufacturer ceases to be in control.
Where the article of consumption is so prepared as to be intended to
reach the consumer in the condition in which it leaves the manufacturer,
and the manufacturer takes steps to ensure that the contents can not be

32

tempered with, I regard his control as remaining effective until the article
reaches the consumer and the container is opened by him [emphasis
supplied]
The Dissenting Opinion of Lord Buckmaster dealt with the following:
(i)
The appeal should be dismissed, because existing authorities are
against 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. If
such a duty exists, it seems to me it must cover the construction of
every article and I cannot see any reason why it should not apply
to the construction of a house. If one-step why not fifty?
With the exception of George V Skirington no case directly
involving the principle has ever succeeded in the Courts---.
(This case was decided by a majority of 3-2). A Watershed Case.
Farr V Butters Bros & Company [1932] 2 K.B. 66
Note: Between the date of the judgement given by McCardia J and the
hearing of the appeal, the House of Lords had delivered a very important
judgement in MAlister (Donoghne) V Stevenson. How far was the decision in this
case to affect the present case?
Material Facts
The action of the appeal arose under the Fatal Accidents Act, 1846, by a widow
of a foreman erector of cranes who was killed by the falling of the jib of a crane,
which he had been responsible for erecting. The action was brought against the
manufacturer of the crane, who sold it in part to a firm of builders who were
themselves to assemble the parts, and who in fact did this under the supervision
of the man who was killed. It was clear that two of the Cog-wheels used in the
working of the crane did not fit accurately. All agreed that the deceased while
the crane was being assembled, ascertained that the Cog-wheels did not fit
properly, their inaccuracy was that required to be corrected, that he marked
those inaccuracies with chalk in order that it might be corrected, and that he
said, that he would report the matter to his principals. In spite of this discovery,
marking, and statement of his intention to report, he began working the crane
before the inaccuracies had been corrected. In working it in that condition he
was, while standing by the jib, killed by its fall, the falling being due to the effect
of the inaccuracies which he had discovered.
Issue:
Whether there was liability on the part of the manufacturers to the employee of
the purchaser. Was there liability in Tort?
Argument by the defendant:
Having manufactured and supplied the part of the crane to the purchaser there
was an opportunity for examination in that the purchasers were to assemble the
parts, that opportunity was used by their skilled erector who examined the wheels
and found their condition and did not rectify it. Therefore, the manufacturers
were not liable.
Argument by the plaintiffs:
The defendants had been negligent in manufacturing the cranes whose parts
killed the husband of the plaintiff and therefore they were liable to her in tort.
Ratio Decidendi:
Important Observations made by Scrutton LJ.
1.
There was an opportunity for examination:
We have repeatedly held that when a plaintiff gives evidence which is
only consistent with the accident being caused by his own negligence

33

the judge ought to withdraw the case from the jury instead of leaving it to
them to say whether the admitted facts constituted negligence.
2.
Scrutton LJ agreed with Lord Atkin that:
I venture to say that in the branch of law which deals with civil wrongs,
dependent in England, at any rate, entirely upon the application by
judges of general principles also formulated by judges, it is of particular
importance to guard against the danger of stating propositions of law in
wider terms than is necessary, least essential factors be omitted in the
wider survey and the inherent adaptability of English law be unduly
restricted.
For this reason it is very necessary, in considering reported cases in the Law
of torts, that the actual decision alone should carry authority, proper
weight, of course, being given to the dicta of the judges.
Thus he further stated his famous proposition on the way English judges operate;
English judges have bee slow in stating principles going far beyond the
facts they are considering. They find themselves in a difficulty if they state
to wide propositions and find that they do not suit the actual facts.
He then considered the decision of the House of Lords in Donoghues case and
how the Court limited the proposition;
The rule that you are to love your neighbour becomes, in law, you must
not injure your neighbour, and the lawyers question, who is my
neighbour? Receives a restricted reply. You must take reasonable care to
avoid acts or omissions which you can reasonably foresee would be likely
to injure your neighbour. Who then in law is my neighbour? The answer
seems to be persons who are so closely and directly affected by my act
that I ought reasonably to have them in contemplation as being so
affected when I am directing my mind to the acts or omissions which are
called in question,
In the case in point the judge goes with the opinion of Lord McMillan that
responsibility ceases when control ceases (no proximity):
It may be a good general rule to regard responsibility as ceasing when
control ceases, so also where as between a manufacturer and the user
there is interposed a party who has the means and opportunity of
examining the manufacturers product before he reissues it to the actual
user.
10.Grant V Australian Knitting Mills, [1936] AC 85
Material Facts The appellant contracted dermatitis of an external origin as a
result of wearing a woolen under pant which, when purchased from the
retailers, was in defective condition owing to the presence of excess
sulphates, which, it was found, had been negligently left in the process of
manufacture.
The appellants claimed damages both against retailers and
manufacturers.
Issues:
Whether the manufacturers were liable in tort and retailers in contract?
Whether the principle of Donoghue V Stevenson is applicable to this
case?
Argument advanced by the plaintiff:
The decision of the House of Lords in Donoghue V Stevenson was binding
on the Court to follow.

34

Argument by the defendant

Donoghue V Stevenson was a case of food and drink to be consumed
internally, whereas the pants were to be worn externally. While Donoghue
V Stevensons case the makers of the ginger-beer had retained control
over 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, the
garments in question were merely put in paper packets each containing
six sets which in ordinary course would be taken down by the shopkeeper
and opened, and the contents handled and disposed of separately, so
that they would be exposed to the air. It was further argued that though
there was no reason to think that the garments when sold to the appellant
were in any other condition, least of all as regards sulphur contents, than
when sold by the manufacturer to the retailers, still the mere possibility and
not the fact of their condition having changed was sufficient to distinguish
Donoghues case. There was no control because nothing was done by
the manufacturer to exclude the possibility of any tampering while the
goods were on their way to the user. Lastly, it was argued that if the
decision of Donoghues case, were extended even a hairs breath no line
could be drawn, the manufacturers liability would be extended
indefinitely.
Holding
The case was within the principle of Donoghues case, decision atgains
the respondents, appeal allowed with costs.
Ratio decidendi;
A person who for gain engages in the business of manufacturing articles
for consumption by members of the public in the form in which he issues
them is under a duty to take care in the manufacture of these articles.
Lord Wright in this case considered a number of things:
1.
Negligence is found as a matter of inference from the
existence of the defects taken in connection with all
known circumstances even if the manufacturer could by
apt evidence have rebutted that inference they have
not done so.
2.

It is clear that the decision of Donoghue v Stevenson

treats negligence, where there is a duty of care, as a
specific tort in itself and not simply as an element in some
more complex relationship or in some specialised breach
of duty, and still less as having any dependence on
contract. All that is necessary as a step to establish the
tort of actionable negligence is to define the precise
relationship from which the duty to take care is deduced.

3.

It is, however, essential in English Law that the duty should

be established; the mere fact that a man is injured by
anothers act gives in itself no cause of action; If the act
is deliberate, the party injured will have no claim in law
even though the injury is intentional, so long as the other
party is merely exercising a legal right; If the act involves
lack of due care, again no cause of actionable
negligence will arise unless the duty to be careful exists,

4.

---If the term proximity is to be applied at all, it can only

be in the sense that the want of care, and the injury are

35

in essence directly and intimately connected; though

there may be intervening transactions of sale and
purchase, and intervening handling between those two
events are themselves unaffected by what happened
between them; proximity can only properly be used or
of some interfering complication between the want of
care and the injury---.
5.

Equally also may the word control embrace, though it

is conveniently used in the opinions in Donoghues case
to emphasise the essential factor that the consumer must
use the article exactly as it left the maker, that is all
material features, and use it as it was intended to be
used. In that sense the maker may be said to control the
thing until it is used.

6.

---duty is difficulty to define, because when the act of

negligence in manufacture occurs there is no specific
person towards whom the duty could be said to exist, --the duty cannot at the time of the manufacture be other
than the potential or contingent, and only can become
vested by the fact of actual use by a particular person.

7.

In Donoghues case the thing was dangerous in fact,

though the danger was hidden, and the thing was
dangerous only because of want of care in making it---.

8.

The principle of Donoghuess case can only be applied

where the defect is hidden and unkown to the
consumer, otherwise the directness of cause and effect is
absent, the man who consumes or uses a thing which he
knows to be noxious cannot complain in respect of
whatever mischief follows, because it follows from his own
conscious Volition in choosing to incur the risk.

[Read Mukoyogo 1 on Precedent at app 180 182]

11.Candler V Crane Christmas, [1951] 2 KB 164
Material Facts
The plaintiff invested money in a company relying on accounts put before them
by accountants. The accounts were wrong and negligently prepared. The
plaintiff lost money and sued the accountants.
Issue
Whether the defendants were liable in tort of negligence?
Argument by plaintiffs Counsel
Was based on the decision of the House or Lords in Donoghues case namely
that since that decision there was no distinction between negligent manufacture
causing physical harm and negligent statements leading to financial loss.
Defendants were liable.
Arguments by the Counsel for the defendants:

36

That there was no cause of action, that is no liability in tort for negligent
misstatement. Further that there is no liability in tort for negligent statements
causing financial loss as opposed to physical harm, and further that the
accountants were liable in contract to the company and not liable to the
plaintiffs in tort.
Holding
The Court of Appeal Held in favour of the defendant in that they were not liable.
(Majority 2:1)
Ratio Decidendi
There is no duty of care in negligence as for negligent misstatements.

Obiter Dicta
Dissenting Judgement of Lord Denning L.J. (as he then was) sought to make it
clear that since the House of Lords decision in Donoghues case no distinction
existed between negligent manufacturer causing physical injury and negligent
statements causing economic loss.
[It must be noted that to date Courts in England have retained such a distinction
as we shall see later.]
Lord Denning, L.J. maintained that the case of Donoghue V Stevenson, had substantially
changed the law. It did cast doubt on the authority of older cases such as Lelievre V
Gould which negative actions in tort for negligent misstatements. The courts must
accept that there was a cause of action for negligent misstatements.
On the arguments by the defendant he said:
The argument that there was no cause of action, that is no liability in tort for
negligent maintainable because there was need for progress in the law rather
than stagnation.
The argument that there is no liability in tort for negligent acts (or statements) causing
financial loss as opposed to physical harm, he said that, the Counsel did not dispute that
there would be no liability in two hypothetical cases:
(1)
the analyst who tests food and negligently states that it is wholesome,
whereas it is harmful,
(2)
who negligently states that a lift is safe when it is not,
It might have been that the Counsel only accepted those hypothetical cases
on the ground that they are both cases of physical harm, resulting from
negligent misstatements, and that on the facts of this case, there being no
physical damage, they would not make the defendant liable.
The Counsel retreated from his earlier position that there is no liability for negligent
misstatement at all, to the position that there was only liability if such statements resulting
to physical harm, but not otherwise.
According to Lord Denning, there is no distinction between physical harm and financial
loss in relation to duty of care. It might be more difficult to prove the proximate
relationship, that is foreseability of damage, in the case of purely financial loss, but that is
a matter of proof in each case.
Dealing with the third argument of the Counsel for the defendant, namely, that the
accountants were liable in contract to the company and not liable to the plaintiff in tort.
Lord Denning rejected the 19th Century fallacy. In his view It is a well established rule

37

that is A is liable to B in contract, that in no way prevents him being liable to C in tort on
the same facts.
The tort of negligence according to Lord Denning is an entirely separate cause of action,
so it is irrelevant that another cause of action exists as regards to other persons.
Lord Dennings judgement is a Dissenting judgement, it is not part of the ratio of
Candlers case, it is not binding. The ratio of Candlers case is a statement of the
majority, expressed by Lord Asquith, that there is no duty of care in negligence as for
negligent misstatements.
[This ratio was later overruled by the House of Lords in Hedley Byrne V Heller]
Lord Asquiths treatment of the House of Lords
Decision in Donoghue V Stevenson:
He rejected Lord Atkins neighbour principle on the ground that it was not
accepted by other judges of the majority. He does not think Lord MacMillan
agreed with Atkins broad principle when he said that:
The categories of negligence are never closed.
Since he finds that the ratio of
Donoghue V Stevenson is restricted to
manufacturers liability, it did not overrule earlier Court of Appeal decisions in
LeLierre V Gould.
Lord Asquith and Lord Cohen delivered a majority judgement which was based
on the distinction between economic loss and physical injury. Lord Asquith
referred to the decision in Derry V Peek and maintained that Donoghue V
Stevenson was not intended parenthetically or subsilentio to sweep away such
substratum. Nor did Donoghue V Stevenson reverse or qualify the principle laid
down in LeLievre V Gould:
In the present state of our law different rules seem to apply to negligent
misstatements, on the one hand, and to negligent circulation or repair of
Chattels on the other, and Donoghue V Stevenson does not seen to have
abolished those differences.
Lord Asquith was ready to be called a timorous Soul as opposed to bold spirits
Note: the extension of the above dichotomy can be found in the following decisions to
day in England:
Simaan Co. V Pilkington Glass, (No2) [1988] IALLER 671 (Ch.D.)

Capro Industries PLC V Dickman, [1990] IAIIER568 at 571-608 (Ch.D.)

Davis & An. V Radcliff & others, [1990] 2AIIER536 (PC)

12.Clayton V Woodman, [1962] 2QB 533 (HC & CA decision)

Material Facts
The plaintiff, a bricklayer was employed by the first defendants, a regional
hospital board to install a lift and motor room in one of their hospitals. The
contract required 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.
On the instructions of the architect the plaintiff embarked on the installation in the
process of which he was injured and brought this action against the defendants.
Issue
Whether the defendants were liable and on the basis of which authority?
Arguments by Counsels are in a way scattered. So it is advised that they will be
presented as we analyse the judgement as a whole.

38

Holding
The High Court held defendant 1 and defendant 3 liable.
This was reversed by the Court of Appeal on ground other than those made by
Salmond J.
Judgement of Salmond J. [and the use of the term ratio]
He distinguished Derry V Peek, LeLievre V Gould and Candler V Crane Christmas
(all decisions of the Court of Appeal binding on him) on ground that there, the
damage was financial and not physical, i.e. the fact that the damage in those
cases was financial was material.
This fact was not mentioned in Derry V Peek, in that case it was impliedly treated
as material. The fact was not mentioned in LeLievre V Gould in that case there is
nothing to suggest that the judges thought the results would have been different
had the negligent misstatement resulted in physical harm.
Salmond J in fact employs the different ratio called the rule of induction.
Salmon J in his distinction admitted that Asquith L.J in Candler V Crane Chrismas
excluded all cases of negligent statements from liability. He had to accept the authority
of Candlers case as it is a Court of Appeal Case, and could not deny that some
negligent misstatements are not actionable. He admits that his distinction between
negligent misstatements that cause financial loss, not physical damage was illogical.
Other important statements of Salmond J:
It was suggested that the fall was triggered off by the action of the plaintiff
himself, but even if this be so (and) far from being satisfied that it is, it seemed to
be immaterial.
In my view, the first defendants have no defence to this action. It was their duty
as the plaintiffs employers to take reasonable care for his safety. They knew that
the 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 work
to be carried out without any such shutting or shoving. In my judgement, the first
defendants were clearly negligent in that they did not shove or shut this wall
when they knew that the chase was about to be cut in it. This negligence was
the cause of the accident [liability is based on duty of care (owner-invitee) and
strict liability (statutory).
I am quite unable to find that the second defendants in any way failed in their duty of
care to their invitees. Types of mistakes, which can be performed by professionals:
There are, of course, many mistakes that a professional man can make without
failing to exercise reasonable skill or care but not an elementary mistake of this
kind. I have no doubt at all that any ordinary architect using reasonable care
and skill would certainly have realized the extreme danger of cutting the case
without shoving or shutting the gable.
In reaching the conclusion that since neither LeLievre V Gould nor Candler V Crane
Christmas was concerned with a careless statement causing physical damage, they
cannot exclude the application of the principle enunciated in Donoghue V Stevenson to
the particular facts of the case.
Although the dicta of Asquith LJ must carry the greatest weight, I do not consider
that the decision in Candler V Crane Christmas excluded careless statements
from the ambit of Donoghue V Stevenson. It may be difficult to think of the
logical reasons why there should be, in some circumstances, a duty to take care
in making statements causing physical damage and never such a duty in making

39

statements causing financial loss. Logic and Common sense, are uncertain
guides in this branch of the Law.
(The same as Holmes The Path of the law where he categorically stated The
life of the law is not logic but experience.)
Note: Milner on Negligence in Modern Law
Butterworth 1967 p 32:
On the other hand, failure to take positive precautions against a peril which was
not (even remotely) of your own making or proceeding from property which is
under your control or was so at the relevant time is not generally regarded as
negligence. The law does not exact altruistic behaviour, it does not require you
to love your neighbour, but only that you shall not injure your neighbour.
Salmond Js example of altruistic behaviour
(1)
Bwana Juma is driving along Morogoro Road one night and is involved in a
serious collision with another vehicle. His car ends up on a wrong side of the
road, the drivers door flies open and Bwan Juma is deposited, unconscious
and bleeding on the road.
Dr. Mshenzi, driving to town, sees the accident and Bwana Juma lying on the
road, but decides that after a hard days work he is in real need of a Tusker,
and decides to ignore the accident. He drives round the unconscious man
and the wrecked car, and proceeds to the Ulevi Bar to quench his thirst.
(2)

Dr. Ndugu, driving along a few minutes later though tired after a busy day
stops his car and goes to the aid of Bwana Juma. He attends to Bwan Jumas
injuries, and seeing that he has lost a lot of blood decides to give him
transfusion. He has in his car, by lucky chance, a bottle of blood, of the
common (blood group, O positive). He has no means of testing Bwana
Jumas blood group. It is, however, obvious that if Bwana Juma does not get
blood soon, he will die. Dr. Ndugu takes chance, and administers the blood,
Bwana Juma dies a few minutes later. When he is taken to the mortuary later
it is discovered that he was wearing a medallion round his neck beneath his
clothing which said Warning, I have a rare blood group: Group A negative.
In an emergence contact Ocean Road Hospital Tel 02252361 at Once.
Bwana Juma died directly as a result of his being given the wrong blood
group. Dr. Ndugu has been charged of murder. Advise him of his liability.

13.Hedley Byrne & Co Ltd V Heller & Patners Ltd, [1963]

2 All ER 575 at 578-618
Material Facts:
The appellants were a firm of advertising agents. The respondent were merchant
bankers. The appellants case against the respondents was that having placed
on behalf of a client X on credit terms substantial orders of advertising time on the
Television programmes and for advertising space in news papers on terms under
which the appellants became personally liable to the TV and newspaper
companies, they inquired through their own baker (the respondent) as to the
credit worthness of X who were the customer of the respondents satisfactory
references. In those reply the respondents clearly stated that such information
was given on the understanding that It was for private use and without
responsibility on the part of the bank or its officials (disclaimer from liability).
The references turned out not to be justified, and it was the plaintiffs claim that
reliance on such references resulted into loss. The appellants were seeking to
recover the incurred financial loss from the respondents on the ground that the

40

replies were given negligently and in breach of the respondents duty to exercise
care in giving them.
The High Court, McNair J gave judgement in favour of the respondents on the
ground that they owed no duty of care to the appellants:
McNair J said inter alia:
I am accordingly driven to the conclusion by the authority binding upon me that
no such action lies in the absence of contract or fiduciary relationship. In my
judgement, however, these facts though clearly relevant to the question of
honesty if this had been in issue, are not sufficient to establish any special
relationship involving a duty of care even if it was open to extend the sphere of
special relationship beyond that of contract and fiduciary relationship.
The judgement of McNair J was affirmed by the Court of Appeal on the basis of authority
binding on the Court of Appeal and that there was no sufficient close relationship
between these parties to give rise to any duty.
The case was before the House of Lords and the Law Lords who heard the appeal were
Lord Reid, Lord Morris of Borth-Y-Guesh (read by Lord Hodson), Lord Hodson, Lord Devlin
(read by Lord Pearce) and Lord Pearce.
Issue:
Whether the respondents were liable?
Arguments by the appellants:
The argument was based on the decision of Donoghue V Stevenson on the
notion of proximity.
Argument by the respondents
That they owed the appellants no duty of care and in any case they had given
their replies with a disclaimer of liability.
Holding:
Appeal dismissed (case decided in favour of the respondents).
Ratio Decidendi:
When a mere inquiry is made by one baker of another, who stands in no special
relationship to him, then in the absence of special circumstances from which a
contract to be careful can be inferred,--- there is no duty except the duty of
common honesty---.
Obiter dicta:
If, in the ordinary course of business or professional affairs, a person seeks
information or advise from another, who is not under contractual or fiduciary
obligation to give information or advise, in Circumstances in which a reason able
man so asked would know that he was being trusted, or that his skill or judgement
was being relied on, and the person so asked chooses to give the information or
advise without clearly so qualifying his answer as to show that he does not
accept responsibility, then the person replying accept a legal duty to exercise
such care as the circumstances require in making his reply; and for failure to
exercise that care action for negligence will lie if damage results.
Note: In this case the Law Lords drew a distinction between liability likely to arise when
there is a contract between the parties or there is fiduciary relationship. They also

41

underscored the effect a disclaimer when a person gives advise to another with
whom he has no contract or fiduciary relationship.
The Law Lords emphasized the point that the banker-customer relationship was
such that, the banker will not at any point release information to any other person
that will prejudice his/her client.
What came out of the speeches of the Law Lords:
Lord Raid responding to the authority of Donoghue V Stevenson, acknowledged
the importance of that decision, but maintained that, that decision was not
intended to disregard existing authorities. The law must treat negligent words
differently from negligent acts.
The Law ought so far as possible to reflect the standards of the reasonable man,
and that is what Donoghue V Stevenson sets out to do. The most obvious
difference between negligent words and negligent acts lies in this:
Quite careful people often express definite opinions on social or informal
occasions, even when they see that others are likely to be influenced by them;
and they often do that without taking care which they would take if asked of
their opinion professionally, or in a business connection.
Another obvious difference is that a negligently made article will only cause one
accident, so it is not very difficult to find the necessary degree of proximity or
neighbourhood between the negligent manufacturer and the injured person, But
words can be broadcast with or without the consent or the foresight of the
speaker or writer. It would be one thing to say that the speaker owes a duty to a
limited class, but it would be going very far to say that he owes a duty to every
ultimate Consumer who acts on those words to his detriment. So it seems to me
that there is good sense behind our present law that in general an innocent but
negligent misrepresentation gives no cause of action. There must be something
more than the mere statement.
Then the judge examined authorities:
The most natural requirement would be that expressly or by implication from the
circumstances the speaker or writer has undertaken some responsibility---. It must
now be taken that Derry V Peek did not establish any universal rule that in the
absence of Contract an innocent but negligent misrepresentation can not give
rise to an action. But as it is shown in this House Nocton V Lord Ashburton, that it is
too much widly stated: To found an action for damages there must be a
contract and breach and fraud. Derry V Peek. We cannot therefore accept as
accurate the numerous statements to that effect in cases between 1889 and
1914 and we now determine the extent of the exceptions to that rule.
Cases in which besides that obligation arising from honesty the breach may give
rise to damages:
Cases where a person within whose special province it lay to know a
particular fault was given an erroneous answer to an inquiry made with
regard to it by a person desirous of ascertaining the fact for the purpose of
determining his course.

Constructive fraud

breach of special duty,

Lord Morris of Barth-Y-Guest had the following to say:
Quait apart from employment or contract there may be circumstances in which
a duty to exercise care will a rise if a service is voluntarily undertaken.
A medical doctor may unexpectedly come across an unconscious man, who is a
complete stranger to him, and who is in urgent need of skilled attention: If the

42

medical man, following the fine tradition of his profession, proceeds to treat the
unconscious man he must exercise reasonable skill and care in doing so.
In the case of a banker the judge said:
If someone who was not a customer of a bank made a formal approach to the
bank with a definite request that the bank would give him deliberate advise as to
certain financial matters of a nature with which the bank dealt the bank would
be under no obligation to accede to the request; if however they undertook,
though gratuitously, to give deliberate advise they would be under a duty to
exercise 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 may
be duties arising from a relationship without the interrention of contract in the
ordinary sense of the term, such as duties of a trustee to his Cestui que trust or of a
guardian to his ward.
On someone who possesses special skills:
My Lords I consider that it follows and that it should not be regarded as settled
that, if someone possesses a special skill undertakes, quite irrespective of
contract, to apply that skill for the assistance of another person who relies on such
skill, a duty of care arises. The fact that the service is to be given by means of, or
by the instrumentality of, words can make no difference. Furthermore, if in a
sphere in which a person is so placed that others could reasonably rely on his
judgement or skill or on his ability to make careful inquiry, a person takes it on
himself to give information or advise to, or to allow his information or advise to be
passed on to, another person who, as he knows or should know will place
reliance on it, then the duty of care will arise.
Lord Hodson had the following to say:
I shall refer to certain cases which support the view that apart from what are
usually called fiduciary relationships such as those between trustee and
Cestuique trust, solicitor and client, parent and child or guardian and ward there
are other circumstances in which the law imposes a duty to be careful, which is
not limited to a duty to be careful to avoid personal injury or injury to property but
covers a duty to avoid inflicting pecuniary loss provided always that there is
sufficiently close relationship to give rise to a duty of care.
It is impossible to catalogue the special features which must exist for a duty of
care to a rise;
If in a sphere where a person is not placed that others could reasonably
rely on his judgement or skill or his ability to make careful inquiry such
person takes it on himself to give information or advise to, or allows his
information or advise to be passed onto, another person who, as he
knows, or should know, will place reliance on it, then a duty of care will
arise.
Lord Devlin delt with on how English law has developed:
On the authority of Donoghue V Stevenson I come next to Donoghue V
Stevenson. In his celebrated speech in that case Lord Atkin did two things. He
started with what he described as a general conception and from that
conception he formulated a specific proposition of law. In between he gave a
warning against the danger of starting propositions of law in wider terms than is
necessary, least essential factors be omitted in a wider survey and the inherent
adaptability of English law be unduly restricted.
What Lord Atkin called a general conception of relations giving rise to duty of
care is now often referred to as the principle of proximity. You must take
reasonable care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbour, In the eyes of the law your neighbour is a

43

person who is so closely and directly affected by your act that you ought
reasonably to have him in contemplation as being so affected when your
directing your mind to the acts or omissions which are called in question.
What did the above proposition mean in the light of the case in point:
Now it is in my opinion a sensible application of what Lord Atkin was saying for a
judge to be invited on the facts of a particular case to say whether or not there
was proximity between the plaintiff and the defendant.
That would be a misuse of a general conception and it is not the way in which
English law develops. What Lord Atkin did was to use his general conception to
open up a category of cases giving rise to a special duty. It was already clear
that the law recognized the existence of such a duty in the category of articles
that were dangerous in themselves.
What Donoghue V Stevenson did may be described either as the widening of an
old category or as the creating of a new and similar one. The general
conception can be used to produce other categories in the same way. An
existing category grows as instances of its application multiply, until the time
comes when the cell divides.
The Value of Donoghue V Stevenson to Hadley B V Heller- The real value of
Donoghue V Stevenson to the argument in this care is that it shows how the law
can be developed to solve particular problems. Is the relationship between the
parties in this case such that it can be brought within a category giving rise to a
special duty?
Always in English law the first step in such an inquiry is to see how far the
authorities have gone, for new categories in the law do not spring in existence
overnight.
It would be surprising if the sort of problem that is created by the facts of this case
had never until recently a risen in English law. As a problem it is a by product of
the doctrine of consideration.
If the respondent had made a norminal charge for the reference, the problem
would not exist. It were possible in English law to construct a contract without
consideration, the problem would be more at once out of the first and general
phase into the particular; and the question would be, not whether on the facts of
the case there was special relationship, but whether on the facts of the case
there was a contract.
A promise given without consideration to perform a service cannot be enforced
as a contract by the promisee, but if the service is in fact performed and done
negligently, the promise can recover in an action in tort.
**
The judge drew a distinction between words and acts or omissions.
Lord Pearce had the following to say after quoting a passage by the Lord Chancellor
Viscount Haldene in Nocton V Lord Ashburton:
The law of negligence has been deliberately limited in its range by the courts
insistence that there can be no actionable negligence in Vacuo without
existence of some duty to the plaintiff. Negligence in word creates problems
different from those of negligence in act. Words are more violable than deeds.
They travel fast and far a field. They are used without being expanded and take
effect in combination with innumerable facts and other words. Yet they are
dangerous and cause vast financial damage.
[Cites Grant V Astralia Knitting Mills] then went on to say: If the mere hearing or
reading of words were held to create proximity, there might be no limit, to the
person to whom the speaker or writer could be liable. Damage by negligent acts
to persons or property on the other hand, is more visible and obvious, its limits are
more easily defined and it is with this damage that the earlier cases were more
concerned.
Then the Judge examined the development of the law of liability on the basis of words:

44

The case of Pasley V Freeman (1789) which laid down a duty of honesty in words
to the whole world at large-creating a remedy designed to protect the
economic as opposed to the physical interests of the community. The extention
was made in Derry V Peek a duty to use reasonable care in the presentation of
the document called a valuation. But the ratio decidendi of Derry V Peek is said
to have been wrongly applied in LeLievre V Gould as explained by Lord Denning
LJ in Candler V Crane Christmas and in Nocton V Lord Ashburton it was said that
the authority of Derry V Peek has been too much emphasized.

Commenting on the decision of the House of Lords in Donoghue V Stevenson Lord

Pearce said:
The range of negligence in act was greatly extended in Donoghue v Stevenson
on the wide principle of the good neighbour SIC utere tuo alienuum non
Laedas. How far economic loss alone without some physical or material to
support it, can afford a cause of negligence by act? The House of Lords in
Donoghue V Stevenson was, in fact, dealing with negligent acts causing physical
damage and the opinion cannot be read as if they were dealing with
negligence in words causing economic damage. That case can no more help in
this sphere than by affording some analogy from the broad outlook which it
imposed on the law relating to physical negligence.
As to the position of English law on Negligent acts and statements to day read:
Home office V Dorset Yatch Co Ltd [1970]
2 ALL ER 294;[1970] AC 1004 at 1026.

Anns V Merton Landon Borough, [1977] 2

ALL ER 492; [1978] AC 728

Carpro Industries PLC V Dickman, [1990] IALLE R 568 at 571-608 Ch.D.

Dans & Anoth V Radcliff & Others [1990]2 ALIER 536 (PC)

Burton v Islington Health Authority [1992]3

ALLER 833 (CA)

Goodwill v Pregnancy Service [1996]2 ALL ER 161 at 164 166 (CA)

In Tanzania:
Cocacola Kwanza Ltd v Wilson Bezibwa,
(PC) Civil Appeal No 33 of 1999 (HC) (Unreported) Kyando J (now deceased)

14.Francis Ngaire v National Insurance Corporation,

[1972] HCDn 134; [1973] E.A 56
Material Facts
The plaintiff on 15/4/68 (a driver and mechanic) while sitting in his motor vehicle,
parked on its correct side of the road, lost his arm when another vehicle owned
by Mr James Mushi and driven by his driver collided with the plaintiffs vehicle.
Subsequently the driver was charged and convicted on counts of careless
driving, failing to stop after an accident, failing to report an accident and driving
a vehicle on a public road with defective brakes. The plaintiff duly filed an action

45

in the High Court against the owner of the vehicle and his driver, not being of
sufficient means was granted leave to sue in forma pauperis (as a pauper). The
plaintiffs advocate was informed by the police officer who investigated the
case, that the vehicle in question at the material time was being insured by the
National Insurance Corporation of Tanzania Ltd.
On telephoning the corporation through the motor vehicle claims department
the plaintiffs lawyer was informed by a clerk in charge of the department, that
Mr. Mushis vehicle was in fact insured by the corporation. There followed
correspondences between the Corporation and the plaintiffs lawyer, and
subsequently the plaintiff filed a claim against the owner of the vehicle Mr. Mushi
and the driver. The owners defence was that he was not liable but the driver
admitted having been at fault and that at the time of the accident he was
performing an official duty.
The case came before the former Chief Justice Georges who gave judgement in
favour of the plaintiff and awarded him Shs 50,000/= damages.
The plaintiffs lawyer attempted to secure damages from the corporation, the
corporation repudiated liability. The plaintiff duly filed an action in tort against
the corporation in wrongly informing him that the vehicle of Mr. Mushi was insured
by the corporation, when in fact the vehicle was insured by the British India
General Insurance Company and at the time such information was revealed the
plaintiff was already time barred.
Issues

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

Whether Mr. Mwaikambo of the defendant company verbally presented to the
plaintiffs counsel that Mr. Mushis vehicle was insured on the date of the
accident?

Whether the defendants letter addressed to the plaintiffs advocate represented

that Mr. Mushi was their insured in respect of motor vehicle registration No TDN
518 was alleged in the plaint?

Whether the defendant company by their letter addressed to the plaintiffs

lawyer (Advocate) put the plaintiff on inquiry as to the Company with which the
motor vehicle registration number TDN 518 was insured at the date of the
accident as alleged in the plaint?

Whether the answer to Issues (1) and (2) were in the affirmative the defendant
company was under a duty to the plaintiff to make representations with care?

If the answer to issue No. 4 was in the affirmative, whether the defendant
company made the said representations negligently and thereby admitted a
breach of duty?

If the answer to issue No 5 was in the affirmative whether the plaintiff had suffered
loss and damage as a result of such negligence?

If the answer to issue 6 was in the affirmative what relief was the plaintiff entitled?

Arguments by Counsel for the plaintiff:

A servant or agent of the defendant did negligently drive the vehicle in question
that it collided with the car of the plaintiff causing the plaintiff personal injury and
resulting into the plaintiffs lose his right arm.

46

That the plaintiff instituted a Civil Case in the High Court against the defendants
and the results of the proceedings were infavour of the plaintiff being awarded
damages in the sum of 50,000/=
That prior to the Institution of proceedings the plaintiffs advocate did contact
one agent of the National Insurance Corporation in the claims partment. The
defendants were the sole company permitted by law to undertake the Insurance
of Vehicles in Tanzania against third party risks.
The plaintiffs advocate inquired whether the vehicle that caused an accident
was in fact insured by the corporation and the agent of the defendant did
represent to the said advocate that the said vehicle was insured at the material
date.
That acting on the said representation, the plaintiffs advocate immediately after
instituting the proceedings did notify the defendant of the institution of
proceedings by letter, no notification to any other company was made.
That later the defendant company through a letter denied that the said vehicle
was insured with them at the material time of the accident and refused to satisfy
the judgement as pleaded.
That the defendant company were under a duty to the plaintiff to make the
statements and representations with care.
Arguments by Counsel for defendants:
The defendant denied that at the time of accident, it was the sole company
permitted by law to undertake Tanzania insurance of vehicles against any third
party risks.
That the advocate of the plaintiff did not contact the agent of the defendant
company who made the allegation that the said vehicle was at the material time
insured by the defendant company;
The communication by letter to the plaintiffs advocate had denied that the
company was liable and therefore refused to satisfy the judgement.
That the defendant company was not under any duty to the plaintiff to make the
alleged or any statement or representations, that there was no breach of the
alleged duty, that the defendant was not guilty of any negligence to the plaintiff.
Holding:
Judgement for the plaintiff
Ratio Decidendi:
When one person has by his declaration, act or omission, intentionally caused or
permitted another person to believe a thing to be true and to act upon such
belief, neither he nor his representative shall be allowed, in any suit or
proceedings between himself and such person or his representative, to deny the
truth of that thing.
Important remarks by Biron, J. (as he then was)
1.
Reading the answers given by the agent of the Company to the Advocate of
the plaintiff:
Mr. Chakeras version of the telephone conversation, he actually telephoned
when the plaintiff called at his office enquiring on the progress of the case,
was that he first of all referred to his letter of March 4--- and enquired from Mr.
Mwaikambo whether the vehicle in question was insured by the Corporation.
Mr. Mwaikambo not only confirmed, that it was, but asked rhetorically who
else could have insured the Vehicle?
2.

It is abundantly clear from Mr. Mwaikambos evidence that when having

obtained the file referred to by him, which he himself said it was motor claim

47

file, Evidence, there was, I would say beyond a shadow of doubt only one
letter on the file--As this was the only letter on the file that which Mr. Mwaikambo consulted, he
must have known, or at least should have known as it so explicitly stated, that
the accident occurred on 15 April, and Mr. Chakeras query was in respect of
that accident, Mr. Mwaikambo himself admitted that there had been no
other claim brought against the vehicle.
3.

In answering Issues four and five Justice Biron made reference to the House of
Lords decisions, which at that time were of persuasive value. This came about
the fact that at independence appeals no longer lay to the Privy Council
(see Module V) from the courts in East Africa and the Court of Appeal for East
Africa in 1968 made a decision in Dodhia V National & Grindlays Bank Ltd,
[1970] EA on the rules of precedent applicable to East Africa which affected
the Courts attitude towards foreign decisions.
(a) quoted a remark by Lord MacMillan in Donoghue V Stevenson, [1932] AC
562;
The categories of negligence are never closed.
To this remark Justice Biron (as he then was) went on to say;
Although the authorities have distinguished between injury or damage
resulting from statements oral or written, and physical acts, I think, there is
a divergence of view and attitude adopted by Australian Courts, and the
American Courts are much more liberal than the English ones, I must
confess my inability to distinguish between statements and other physical
acts, after all, a statement is a physical act, whether oral or written, and to
quote the old adage, the pen is mightier than the word, to which I add,
that the tongue could be equally as mischievous as the pen (emphasis
added).
However, in England the matter has now, I think, been finally settled by
the House of Lords case of Hedley Byrne V Heller & Partners [1963] 2 ALLE
R 575. I think it is sufficient to quote the head-notes as follows:
If, in the ordinary course of business or professional affairs, a person seeks
information or advise from another, who is not under contractual or
fiduciary obligation to give the information or advice, in circumstances in
which a reasonable man so asked would know that he was being trusted
or that his skill or judgement was being relied on, and the person asked
chooses to give the information or advice without deeply so qualifying his
answer as to show that he does not accept responsibility, then the person
replying accepts a legal duty to exercise such care as the circumstances
require in making his reply; and for a failure to exercise that care action
for negligence will lie if damage results.

As you might notice this is an If proposition not binding on the judge at all. At the
same time the judge realized that English decisions or authorities were no longer
binding:
For the record I ought to add that, although English authorities are no longer
binding on this court, I can sense reason for holding that the law as laid down by
the House of Lords, is any different in this country, but in the contrary, I have not
the slightest hesitation in holding that it is the same. (emphasis added)

48

But because of the seemingly inadequacy of the case law authorities, the judge based
his judgement (decision) more firmly by employing the Doctrine of Estoppel from the Law
of Evidence Act, 1967 S.123:
---when a declaration is made by an employee in the ordinary course of his duties
or employment is liable for such a declaration.
He went on further to say:
There is a duty cast on an insurance company from whom an inquiry is made as
to whether a certain vehicle is covered by that company, to exercise the utmost
care and diligence to give the correct information, as a failure to do so would
occasion loss or damage to the inquirer.
I would go even further to say the law has established a relationship between the
public and insurance companies and laid a fiduciary relationship or obligation on
the part of Insurance Companies, to exercise all due care and diligence in giving
proper and true information.

The judge further commented that:

At the time the National Insurance corporation had a monopoly of Insurance
business in Tanzania as specifically provided for by the law. If courts did not
protect the public then the corporation was likely to conduct itself in a manner
injurious to the community at large.
Therefore I have not the slightest hesitation in holding that the Corporation was
under the duty to exercise due care and diligence in giving Mr Chakera a true
answer to his inquiry, as to whether the vehicle which caused so much damage
and injury to the plaintiff was insured with the corporation at the material time.
Be it as it may, it is possible that Mr. Mwaikambo failed to consult the policy file
and assumed that the vehicle must have been insured with the corporation,
because by Insurance (Vesting of Interests and Regulations) Act, 1967, Part Vs,13
the corporation was granted monopoly in this country for handling such
Insurance.
Notice the judges hunch. The decision was not based on precedents by a statutory
provision.
TOPIC TWO:

STATUTORY INTERPRETATION

STATUTES GENERALLY

Parliament is the sole law maker and those persons or body of persons delegated
with such powers.

Courts interprete the law (Ndyanabos case and ensuring debate between The
Speaker, Professor Shivji and the Tanganyika Law Society Bunge News Vol, 5, 16 of
2002]

Once a statute is in force it must be applied by the courts. Judges have a

judicial notice of all public Acts, a convenient device whereby knowledge of
certain matters are attributed to judges, such matters need not be proved in
evidence every time they arise in a case.

If 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 would
provide a ground for appeal.

49

Judges are required to take judicial notice of Community Acts or Treaties (The
East African Community).

If a Statutory provision is ambiguous the judge must interprete it before he can

apply it.

Statutory 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. Courts use
presumptions too.
Parliamentary and Delegated Legislation; relationship between Parliament and
the Judiciary
1

2.

Advantages of Statute Law (at the expense of judge- made law)

Parliament is supreme: a statute can abrogate any rule of law (in a
previous statute or case law).

Judges have no power to abrogate a provision (Ndyanabos Case,

the Validity of Judicial Activism- Mwalusanya J (as he then was on the
basis of un constitutionality of certain laws in Tanzania).

When Parliament abolishes a rule of law it will only do so for the future
so that previous transactions based on the old law are not affected
(Normally new laws will contain within it Transitional and
consequential Provisions).

Occasionally Parliament passes legislation which has retrospective

effects (Ibrahims Case [1963] EA 179, Uganda v Nyengeya [1963] EA
106, Municipality of Mombasa v Nyali [1963] EA; Patel v R [1968] EA 97]

The Constitutional doctrine of separation of Powers is to a greater

extent satisfied by legislation than by judge-made law or Case-Law.
Parliament makes laws but does not enforce them, whereas judgemade law is enforced by the very people who make it.

Statute law can be known in advance, case law is known at the time
that it is made.

A statute settles doubtful situations.

Parliament is more in touch with the Outside World than is the judiciary
and can quickly turn public opinion and social policy into law.

Parliament or the Legislature is free to make law on any subject it

thinks fit, Courts are constrained by the facts of the case before them.

Consolidating Statutes and Codifying Statutes

Consolidation the re-enactment in one statute some topic in law
previously contained in several different statutes, but without changing
the law. All Consolidation Act are designed to bring together in one
convenient, Lucid and economic form a number of enactments related in
subject matter-previously scattered over the same statute-book

50

A consolidating statute is presumed not to change the law but only to re-enact it
in a different place. When interpreting such a statute, you may apply cases
already decided on the meaning of the replaced Acts. In cases of ambiguity,
the Acts which have been consolidated may themselves be scrutinised.
3.

Codification- a restatement in one place the law or a particular topic,

which if necessary, may also alter the law.

4.

Preparation of Legislation
The responsibility for initiating the vast majority of modern legislation rests
on the government. Private members Bills are Unlikely to become law
because of shortage of Parliamentary time.
Legislative proposals of a particular government department may be
approved in principle in the Cabinet and then handed to the
Parliamentary draftsman to be put into legal language inform of a Bill.

Sometimes a Bill is preceded by a White Paper containing governments

proposals for legislation.
Legal language is used becauseto legislate by using precise words
seeking to cover every conceivable situation and allow no loopholes.
5.

Commencement of an Act of Parliament

A Bill consists of clauses, sub-clauses and paragraphs.
After it has been through its Parliamentary stages and has received
Presidential
Assent (or royal assent in England) it becomes an Act, consisting of
sections, subsections and paragraphs.
An Act comes into force on a date specified in the Commencement
section, if any. If there is no commencement section, there may be an
appointed day section authorising whoever may be to implement the
Act by way or means of an Order or Notice in the Government Gazette.
The Act may provide that different parts can be brought into effect on
different dates.
An appointed day section gives the Minister discretion to bring the Act
or parts of it, into effect when he feels it is appropriate to do so. He
cannot be compelled to implement the Act on any particular date. His
discretion is not completely unfettered.
Parliament must be taken to intend that legislation will come into force at
sometime and that its commencement will not entirely depend on
ministerial whim.
If there is no commencement section and no appointed day section, the
Act comes into operation on the day of assent.
Source:

Terence Ingman, The English Legal Process, 8th Edn.

Blackstone Press Ltd 2000 pp 237-242

What is a Statute?
Statute, signifies an Act of the legislature (Tomlins Law Dictionary)

51

A written law as distinguished from a customary law or law of use and

wont: a type of subordinate legislation applied generally
to be framed by University [S1, Indian Contract
Act (9 of 1972) S. 28(1), Aligarh Muslim University Act (40 of 1920)]
Statute law Statute law is frequently used interchangeably with statute;
but the term is broader in its meaning, and includes not
only statutes as already defined, but also the judicial
interpretation and application of such statutes.
Source:

P. Ramanatha Aiyar, Concise Law Dictionary Reprint Edn.

2005 Wadnwa & Company Nagpur p 802,

Statute Law, regulation, enactment, Act, Bill, Decree, Edict, Rule, Ruling,
Resolution, Promulgation, Measure, Motion, Dictum, Command, Order,
Stipulation, Commandment, Directive, Pronouncement, Ratification,
Proclamation, Dictate, Diktat, Fiat, Covenant, Demand, By-law,

[New Oxford TheSaurus of English 2nd Edn Oxf.U. Press 2004 p 907.
Statute (1) A law or decree made by a sovereign or legislative authority
(2) An enactment, containing one or more legislative provisions, made by
the legislature of country at one time, expressed in a formal document;
the document in which such an enactment is expressed.
[Vol 2 Oxford Universal Dictionary Illustrated, Mt 2, Third Edn Oxford, At the
Clarendon Press London 1976 p 2115.]
Introduction
Parliament enacts laws (statutes) in a form of documents. Statutes are
pieces of legislation made by Parliament and other persons (natural or
legal) given (delegated) authority to issue the same. Statutes can be a
source of controversy. The words contained in them in the course of
litigation may have different meanings and therefore engage lawyers
and courts in ascertaining their meaning.
Statutory Interpretation:
According to Michael Zander (1980): 34- 37 Statutory interpretation is a
particular form of a general problem the understanding of meaning or,
broadly still communication.
Even the simplest statement usually relies on an understanding of habits,
knowledge, values and purposes shared between the author and
recipient of the communication.
Interpretation is not something that happens only in cases of doubt or
difficulty, it happens whenever anyone tries to understand the language
used by another person. Interpretation occurs whenever there is
communication, the problem of interpretation occurs only when
something goes wrong.
Instances in which things go wrong in legal affairs:
When dealing with legal documents like statutes, contracts, leases,
mortgages, wills, bills of exchange. These are complex. Their subjectmatter is difficult and the language used can be a mixture of ordinary

52

and technical language (jargon), they are long winded in wording

which militates against simplicity and clarify of expression.

Legal documents speak not only to the present, but are also intended
to deal with the future. This notwithstanding, no draftsman can think
of everything.

a tendency for legal documents to give rise to difficulties, reflecting

problems which touch on different conflicting interests.

According to Peter Goodrich, William Twining and David Miers legal texts are
coercive texts. They exist in a hierarchy and corresponding to such hierarchy
there are techniques of dealing with each level. Statutory texts or legislative rules
are a supreme source of law in the Common Law tradition.
What do we mean by the term Interpretation or Construction?
According to E.A. Dredges construction means a process by which all
statutes like other writings are necessarily subject when read by anyone. It
is a process relating to the manner of ascertaining the intention of the
legislature.
The term interpretation means a process by which a judge (or any other
person) obtains a meaning from the words of a statute. It may also mean
how a dispute about words and their meaning is arrived at so that there is
consistency and certainty (ex rationale legis) in the law.
Those two processes are involved because the language of the law is a
specialised language. The categories and concepts used in a piece of
legislation when translated into an actual case is apt to bring forward a
different meaning altogether.
Regina v Ogibwang in Commonwealth Judicial Journal Vol. 1 No 7 May
1976 When is a bird not a bird?
Blue J (Canadian Supreme Court)
an appeal by the Crown by way of a case stated from a decision
of the magistrate acquitting the accused of a charge under The
Small Birds Act, R.S.O., 1960, c. 724, S.2,
The facts were not in dispute. Fred Ojibway, an Indian, was riding
his pony through Queens Park. Being impoverished, and having
been forced to pledge his saddle, he substituted a pillow in lieu of
the said saddle. On this particular day accusers misfortune was
further heightened by the circumstances of his pony breaking its
right foreleg. In accord with Indian Custom, the accused then
shot the pony to relieve it of its awkwardness.
The accused was then charged with having breached The Small
Birds Act, S.2 which states:
Anyone maiming, injuring or killing a small bird is guilty of an
offence and subject to a fine not in excess of two hundred
dollars.
The learned magistrate acquitted the accused, holding, in fact,
that he killed his horse and not a small bird.
With respect, I cannot agree:
In the light of the definition section my course is quite clear.
Section 1 defines bird as a two legged animal covered with
feathers.
There can be no doubt that this case is covered by this section.

53

Arguments by Counsel
(1)
He submitted that the evidence of the expert clearly
concluded that the animal in question was a pony and not
a bird.
The judge replied that this is not an issue. He stated, We are not
interested whether the animal in question is a bird or not in fact,
but whether it is one in law. Statutory interpretation has forced
many a horse to eat birdseed for the rest of its life.
(2)

Counsel contended that the neighing noise emitted by the

animal could not possibly be produced by a bird.
The judge replied that with respect to the sounds emitted by an
animal are relevant to its nature, for a bird is no less a bird because
it is silent.
(3)

Counsel also contended that the neighing noise emitted

by the animal could not possibly be produced by a bird,
but was actually a pony.
The judge replied, obviously this avoids the Issue. The issue is not
whether the animal was ridden, or not, but whether it was shot or
not, for to ride a pony or a bird is no offence at all. I believe
counsel now sees his mistake.

(4)

Counsels contended that the iron shoe found on the

animal decisively disqualified it from a bird.
Reply by the judge was that I must inform counsel, however, that
how an animal dresses is of no concern to the courts.
(5)

Counsel relied on the decision in Re-Chicadee where he

contended that in similar circumstances the accused was
acquitted.
The judges reply was that, However, this is a horse of a different
colour. A close reading of the case indicates that the animal in
question there was not a small bird, but, in fact, a midget of a
much larger species. Therefore, that case is in applicable to our
facts.
(6)

Counsel finally submitted that the word small in the title

Small Birds Act refers not to Birds but to Act, making it
the Small Act relating to Birds.
The judges reply with respect, counsel did not do his homework
very well, for the Large Birds Act, R.S.O 1960, C.725 is just as small. If
pressed, I need only refer to The Small Loans Act, S.O. 1960, C. 727,
which is twice as large as the Large Birds Act.
Judges reasons for the Judgement
Different things may take on the same meaning for different
purposes. For the purpose of the Small Birds Act, all two-legged,
feather covered animals are birds. This, of course, does not imply
that only two-legged animals qualify, for the legislative intent is to
make two legs merely. The minimum requirement [Emphasis
added]
The statute therefore contemplated multi-legged animals with
feathers as well.

54

(7)

Counsel submitted that having regard to the purpose of

the statute only small animals naturally covered with
feathers could have been contemplated.
Judges reply However, had this been the intention of the
legislature, I am certain that the phrase naturally covered would
have been expressly inserted just as long was inserted in the
Longshoremens Act.
Therefore, a horse with feathers on its back must be deemed for
the purposes of this Act to be a bird, and a fortiori, a pony with
feathers on its back is a small bird.
(8)
Counsel posed the following rhetorical question:
If the pillow had been removed prior to the shooting, would the
animal still be a bird?
Judges reply To this let me answer rhetonically: Is a bird any less of a
bird without its feathers? [Emphasis added]
Appeal Allowed.
Q (i)

Is this a case of Mischief or plain meaning, purpose or context in

which the words appeared?

(ii)

In a case of this kind is it possible to invoke the Eusdem generis

rule?

Theoretical and Constitutional Assumptions In Regina v Obijway we have seen

the judges endeavour to determine the meaning of the word bird in the light of
the facts in question, different from the Counsel. What considerations guided the
judge?
In this section we are going to consider the types of guides which judges,
magistrates, counsels, members of tribunals, Civil servants, officials in local
authorities, law teachers, students and others use in, interpreting various
documents [Twining & Miers Ch.10]
According to Cross. R, Statutory Interpretation 1987 2nd Edn. The essential
rule of statutory interpretation is that words should be given the ordinary
meaning in which they are used. [Justice. G.P. Singh 9th Edn 2004 pp 45
109] From the foregoing case, it is clear that it is rare in law that words will
bear their normal and ordinary meaning. This arises because drafting is
not always clear as one might expect it to be, and, owing to the lack of
human prescience, there will always be cases for which inadequate
provision is made by the statute.

(a)

(b)

Context Rule: Authors on Statutory interpretation do agree with

Rupert, Cross, that, there are three contexts in which judicial
canons can be studied namely:
a statute should be seen as part of the political process, thus its
implementation must bear in mind its objectives (purpose or policy
behind its enactment).
[Justice G.P. Singh 9th Ed 2004 pp 31 45]
The subjects of a statute or law are human or legal persons who
seek to organise their activities or lives in the light of their powers
and duties. It involves the exercise of freedom by the subject in

55

making a choice on what to do to enhance predictability of

judicial interpretation. In the light of these canons of statutory
interpretation to be learnt must be seen as mere guides not hard
and fast rules of law.
(c)

In English Law there is no doctrine of desuetude. Statutes never

cease to apply because they are obsolete. There must be repeal
(express or by implication).

Statutes and History

The way courts approach statutory interpretation vary according to the judges
perception of their constitutional role at any given period in question. The history and
constitutional role may be reflected through the Courts or judges search for the mischief
of the statute in question [Bi Hawa Mohameds case Ndyanabos case, Joseph Warioba
v Steven Wasiras case, RV Mbushu alias Dominic Mnyarojes case etc].
According to Ronald Dworkin, Laws Empire, Foutana Press, 1986 p 314statutes should
be read, not, according to what judges believe would make them best, but according
to what the legislators who actually adopted them intended [Justice G.P. Singh 9th Edn
2004 pp2-31].
It is true that in American legal practice, judges constantly refer to the various statements
of Congressmen and other Legislators make to form the legislative history of the Act,
which they must respect.
This view is not peculiar to the judges in the United States of America, to a certain extent,
British as well as other Commonwealth judges and Tanzania judges in particular do make
reference to the legislative history in order to interprete the import of words and phrases
in a given statute [Bi Hawa Mohameds Case, Warioba v Wasiras case the words
domestic services and the words Takrima and corruption.
Jurisprudential Issues to Interpretation
The key jurisprudential issues which relate to statutory interpretation are the basic
approach by the judges when interpreting statutes, the character of the canons and the
methods adopted in interpreting statutes.
In examining the basic judges approach to statutory interpretation the following
questions are relevant:
What do judges seek to interprete?
What are the relationships conceived between the text of the statute and the Intention
of Parliament?
What does interpretation involve?
How does interpretation differ from the application of statutory provisions or from its
amendment?
When dealing with canons and methods another relevant question is what is the status of
the rules and principles often invoked by judges in explaining their decisions whether
normal common law methods for judicial explanation of legal rules are statutory
interpretation?
According Benion:
[T] he Unit of inquiry in statutory interpretation is an enactment whose legal
meaning in relation to a particular factual situation falls to be determined.
This may be done by either looking at a single Act of Parliament or a single provision
within it or by combining elements from several Acts, then proceed to determine the
meaning in the light of the principles of interpretation or construction [Regina v Obijways
case].
Statutory interpretation may involve determining the meaning of a text contained in one
or more documents. Judges and writers on the subject discuss interpreting the Will of the
legislator or give effect to the Intention of Parliament. These two phrases seem to

56

suggest that there are two units of inquiry in statutory interpretation namely: the statutory
text and the Intention of Parliament. Judges must seek to harmonise the two.
There is a deception in the above proposition. Under English law the view is that the two
views (above) are closely connected, primacy must be given to the text in which the
intention of Parliament has been expressed.
Words must be understood in relation to the subject-matter of the legislation. The judge
must consider the reason and the spirit of it, or what caused the legislator to enact it
[Singida RTC V TPTC, [1979] LRTn ll]. The role of the judge is to seek the intention of the
legislative author from what is written in the text and seek to construct a text on the basis
of the subjective intention of the author [Regina v Secretary of State of Health
(Respondent) ex parte Quintavalle (on behalf of Pro-Life Alliance) (Appellant), [2003]
UKHL 13].
The Intention of the Legislator or Parliament what does it mean?
According to Cross the notion intention of the legislator or Parliament is used by
analogy. It does not mean the intention of the individual Parliamentarian. The intention
of the legislator with regard to a particular statute cannot mean all of those who were
members of Parliament when the law was being passed, nor should it be taken to mean
the majority of the members of Parliament.
Lord Watson in Salman V Salan & Co Ltd, [1897] AC 22 at 38 said:
Intention of legislature is a common but very slippery phrase, which popularly
understood, may signify anything from the intention embodied in positive
enactment to speculative opinion as to what the legislature probably would
have meant, although there has been an omission to enact it. In a court of law
or Equity what the legislator intended to be done can only be legitimately
ascertained from what it has chosen to enact, either in express words or by
reasonable and necessary implication.
The meaning the court will attach to the statutory words or phrases will frequently be that
which it believes the members of the legislator attached to them or the meaning which
they would have attached to the words had the situation before the Court been present
to their minds. The object of a statute or particular section of it may be treated as part of
its context [New Great Insurance Co Ltd v Gross & Another, [1966] EA 90.]
According to Ronald Dworkin, Laws Empire, Foutana Press 1986 p 314 the interpretor
does the following:
He treats the various enactment that make up the legislative history as political
acts that his interpretation of the statute must fit and explain, just as it must fit and
explain the text of the statute itself.
[Bi Hawa Mohameds Case].
To do so sometimes English Courts are allowed to travel outside the Act with which they
are concerned in order to ascertain the object [Bi Hawa Mohameds Case, Warioba v
Wasiras Case]
Elsewhere Ronald Dworkin, in Political Judges and the Rule of Law 1978 p. 25 says:
The question of legislative intention is not about the historical or hypothetical view
of the legislator, but rather concerns the meaning of words used in a particular
context.
[Mwinyimadi Ramadhani VR. Crim App. No. 150 of 1963 (High Court of
Tanganyika (Unreported).
The concern of the judges is to use the conventions of ordinary language and statutory
interpretation to determine the words in the context seeking for the words, which
Parliament used [New Great Insurance Co Ltd V Cross & Another]
The Intention to be attributed to the Legislator is to be determined from the objectives of
the words used, rather than the subjective intention, which were not expressed in the
text.

57

There are three principle situations in which people in general and judges in particular
speak of the intention of the legislator or parliament:
(a)
Whenever the meaning of specific words is under consideration, the idea that a
particular meaning that which would or would not have been attached to a
word or phrase by the average member of Parliament;
(b)

When the consequences of a particular constitution are under consideration, the

idea that the particular consequence might well have been in the mind of the
average member of Parliament;

(c)

Those who feel uncomfortable about the use of the expression intention of
Parliament ought not to feel more at ease to abandon the phrase.

Constitutional Reasons for The Retention of The Notion of Intention of Parliament:

The notion Intention of Parliament expresses The Subordination of the judiciary to
Parliament.
The notion identifies a perspective or orientation which judicial decision making takes
place. Ronald Dworkin Ibid p 333) says:
When judges and legislators disagree on any matter, the principle of legislative
supremacy urges that the legislators opinion must govern. The desire of the
judiciary to disavow a large creative role in the interpretation of statutes is found
in the opinion of Denning, L.J. in Magor & St. Mellons RDCV Newport Corporation,
[1950] 2 All ER 1226
at 1236 when he said:
We do not sit here to pull the language of Parliament and of Minister to pieces
and make nonsense of it. That is an easy thing to do, and it is a thing to which
lawyers are too often prone. We sit here to find out the intention of Parliament
and Ministers and to carry it out, and we do this better by filling in the gaps
[emphasis supplied] and making sense of the enactment than by opening it up
to destructive analysis.
Upon which Lord Diplock and other members of the House of Lords disagreed with Lord
Denning LJ especially the last part of the above passage where he suggested that
they do it better by filling in the gapsThe Law Lords felt that Courts were still
subordinate to Parliament Dupont Steel Ltd V Sirs, [1980] l ALL ER 529.
Intention of Parliament is justified by way each judge considers: It is a Statement of the
attitude, not an element of social fact to be researched. It is an expression of a
constitutional role adopted by the judges. Reading cases on statutory interpretation will
reveal that judges are not unanimous in their perception of what correct constitutional
role they should adopt. Whatever their approach at the end of the day there must be
legal certainty.
The Meaning of Interpretation
In defining the term Interpretation we earlier said the term means a process by which
courts determine the meaning of statutory provisions for the purpose of appling them to
facts situation before them.
Interpretation arises when there is a dispute about the meaning of words or phrases.
There are two types of interpretation: Strict and Liberal. The latter can be subdivided
into extensive and restrictive.
Strict interpretation arises where judges attribute to the legislator the will which at the
time of making the law, as supposed, the judge entertains. [Dr. Avta Singh Repr. 2005 p
161], see also Appendix l

58

Extensive interpretation applies a statutory provision to a case which does not fall within
its words when literally construed [Nisbet v Rayne & Burn [1970] 2KB 689 in Dr. Avta Singh
Rep. 2005 p 161- Restrictive interpretation fails to apply a statutory provision to a case
which does fall within its words when literally construed Mwinyimadi Ramadhani v Rs
Case; R v Omari s/o Kindamba & Anoth. [1960] EA 407 (T); Ebrahim Ahmed Mohamed
Modhaf v (l) (1956) 23 EACA 456, Singida RTCV TPTC, [1979] LRTn ll
The Canons of Interpretation
With the publication of Ronald Dworkins article in 1967 Model of Rules I it is now
fashionable to divide the contents of a legal system into Rules and principles [see Penner
(Ed.) 2002 Ch 8]. An example of rules: The minimum legal speed on a motor bike is 60
miles per hour.
According to Dworkin rules are applicable in an all and or nothing fashion. If the facts a
rule stipulates are given, then either the rule is valid, in which case it applies and must be
accepted, or it is not, in which case it contributes nothing to the decision.
Dworkins example of a principle is:
No man may profit from his own wrong
The principle is found in The Estate of Crippen [1911] P 108; Riggs v Palmer, (1889),
115 NY 506 New York Appeals Court.
Such a principle is recognised both under English and American law and has
formed the basis of the decision in a number of cases in which judges felt not
obliged to apply in a sense in which they were obliged to apply a rule after
making certain findings of facts. A principle like this one is used to rationalise a
number of specific rules or to set out a goal of law in a generalised way.
When we say that a particular principle is a principle of law, what we mean is
that the principle is one, which officials must take into account, If it is relevant, as
a consideration for including in one direction or another. Principles unlike rules
may conflict without detriment to the operation of a legal system, they may vary
in a degree of persuasiveness.
[Read also Ronald Dworkin, Taking Rights Seriously, Duckworth 1977, Chs. 2-3]
Substantive Rules VIS a-Vis Statutory Rules
Statutory interpretation can be distinguished from other substantive subjects, i.e.
Criminal Law, evidence and contract. The rules of statutory interpretation
provide a criteria of identifying legal rules, they belong to the category of
secondary rules of a legal system which according to H.L.A. Hart are rules of
recognition. Such rules have double aspects, namely, they act as legal rules
and rules of social practice. [See HLA Hart, The Concept of Law, OUP 1966 (Repr.
1988]
From the point of view of a judge the rules and principles of statutory
interpretation are legally binding statements of the approach to be adopted.
The rules and principles for identifying the rules contained in statutory enactments
also form a social practice as to how lawyers should set about their tasks. The
Judiciary (and sometimes the legislator) establishes them according to the needs
of a particular epoch and the judiciarys view of its constitutional role.
They establish the respective competence of the courts and Parliament in the
overall context of developing and changing the law. As other constitutional
contexts, the rules are not always stated with precision and they are capable of
different interpretations. The Social practice explains the vagueness and the
changing content of the rules and principles of statutory interpretation. Thus
judicial statements of statutory interpretation are not authoritative in the ordinary
sense of branches of substantive law. They express principles rather than legal
rules. [Emphasis added]

59

Common Law Methods in Statutory Interpretation;

Statutes and Case law are distinct sources of our law (including English Law). The
question is whether the ordinary common law method (earlier learnt) of
reasoning and elaborating rules are applicable to statutes in the same way, as to
common law rules and principles? The answer is that statute law and case law
are distinct but they interact. Should statute law and common law be conceived
as separate divisions of English law?
According to Lord Wilberforce in Schilch Spinners Ltd v Harding [1965] 48 MLR 1:
In my opinion where the courts have established a general principle of
Law or Equity, and the legislative steps in particular areas, it must, unless
showing contrary intention, be taken to have left the case outside that
area where they were under the influence of the general law.
Where an area is substantively one of legislative action, judges are reluctant to
admit the use of common law principles to interprete or supplement the
legislative code. This is explained by Lord Scarman in Pioneer Aggregates (UK)
Ltd v Secretary of State for Environment, [1985] AC 132 at 140 141; [1984] 2 All ER
358 at 363:
Planning control is a creature of statute. It is an imposition in the public
interest of restriction on private rights of ownership of land. It is a field of
law in which the courts should not introduce principles or rules derived
from private law unless it be expressly authorised by Parliament or
necessary in order to give effort to the purpose of the legislation. Planning
law, though a comprehensive code imposed in the public interest, is, of
course, based on land law. When the Code is silent or ambiguous, resort
to the principles of private law (especially property and contract law)
may be necessary so that the courts may resolve difficulties by
application of common law or equitable principles. But such cases will be
exceptional.
In statutory interpretation, reasoning by analogy within a statutory code is
acceptable by application of general rules permitting the use of other statutes on
the same subject to guide the interpretation [Interpreting statutes in parimateria:
John Nyamuhanga Bisare V R, [1980] TLR 6 & 132 Abdillah J Awdeh v R [1958] EA
20; Rashid Moledina [1967] EA 645 National Grindlays Bank v Vallabji [1966] EA
186
Summary:1.

Rules and principles of interpretation and reasoning from statutes

represent a position adopted by the judiciary concerning its constitutional
role vis--vis Parliament in the development of the law.

2.

Reasoning by analogy envisages the roles of the judges and legislator as

partners in the cooperative venture in reforming the law.

3.

A more restrictive approach to analogy and to interpretation reflects the

more concern for the rule of law and separation of powers.

4.

The Rule of law requires Parliament to state clearly what it intends, and the
separation of powers requires the judge not to presume that he knows
how best to complete the legislative scheme.

5.

Judges appear to be inclined away from the role of filling in the gap left
by the legislator.

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TOPIC TWO STATUTORY INTERPRETATION

Statutes: History, Enacting Process and Structure
1.

Introduction
What do we mean by the terms construction and interpretation?
Construction is a process by which all statutes, like other writings, are necessarily
subjected to when read by anyone. It relates to the manner of ascertaining the
intention of the maker of the instrument or writing, that is the legislature in the
case of the statutes. It is a term of a wide sense or scope because it explains the
legal effects and consequences of the instrument in question.
Interpretation is a process by which a judge (or any other person) obtains a
meaning from the words of a statute. It is concerned with ascertaining the sense
and meaning of the subject matter, the written text, a statute in this case. The
process of interpretation is concerned with how a dispute about words and their
meaning is arrived at so that there is consistency and certainly (ex rationale legis)
in the law.
Statutory Interpretation is a particular form of a general problem- the
understanding of meaning of WORDS and PHRASES used in a statute. The
interpreter is concerned with technical words in legal documents, for example:
statutes, contracts, and wills which speak not only to the present but also
intended to deal with the future and touch on conflicts of interests.
In the Common Law tradition, which Tanzania inherited from Britain, statutory texts
or legislative rules are a supreme source of law. The rules exist in a hierarchy [The
Constitution, Acts or decrees, rules, regulations, notices, statutory instruments] and
there are techniques of dealing with each level in the hierarchy.
As a beginner in law, you will learn the basic rules of statutory interpretation. The
main aim is to make you acquire the basic techniques you will need to
disentangle problems that relate to the interpretation of legal or other
documents.
Interpretation of statutory texts and language will be done by means of linguistic
techniques of construction, interpretation and reading.
Meaning of Words
Statutory interpretation is the process by which courts determine the meaning of
statutory provisions for the purpose of applying them to factual situations brought
before them.
Interpretation may happen whenever anyone tries to understand the language
used by another person, the problem of interpretation occurs only when
something goes wrong.
The Merchant of Venie by Shakespeare, W.
Act IV Scene 1:
When Portia, the lawyer, was dealing with the interpretation of the contract
between Antonio and Shylock a pound of flesh nothing less nothing more and
no drop of blood.

2.

Statutes as a source of Law

What is a statute? It is a piece of legislation.
Statutes are formal sources of law. By sources of law we mean certain defined
repositories of authoritative rules binding on everybody, organs and agents of the
government. Legislative-law making is a deliberate and conscious creation of
law by the legislative organ of the state- Parliament- National Assembly, set up

61

Constitutionally for that purpose. An enacted law whether just or unjust is good
law if it is passed by a competent authority. Statute law is the expression of the
will of the Sovereign or supreme authority of the state binding over all in the
realm. Statute law is enacted law as opposed to common law (case law or
judge made law or precedents) and is authoritative both in matter of substance
and form, that is words of a statute contain or constitute law.
Legislation reflects a creative act by public authority, which states authoritative
words Holmes, J. in Southern Pacific RLY V Jensen, 244 U.S 205 (221) (1971).
A Statute is therefore, an articulation of legal precepts (rules of conduct) in a
formalized legal document, which must receive Assent of the Head of State and
published in an official Government Gazette before it becomes a statute, that is,
rules enforceable by the judicial organ of the state. Legislation reflects a creative
act by public authority, which states authoritative words.

3.

Meaning and Nature of Legislation

Meaning of Legislation according to Salmond on Jurisprudance 12th Edn. 5th
Impression 1985 p 175;
a)
That source of law that consists in the declaration of legal rules by a
competent authority.
b)
Any 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 Inn enacted law.
Gray in Prof. Keeton, Elementary Principles of Jurisprudence 2nd Edn of p
84;
d)
Formal utterances of legislative organ of Society.
Bodenheimer, Jurisprudence 3rd Ed (Rev) 1978 p 326
e)

4.

Deliberate creation of legal precepts by an organ of government which is

setup for this purpose and which gives articulate expression to such legal
precepts in a formalized legal document.

Nature of Legislation
The constitution is supreme, it emanates from the supreme power in the state,
and therefore, it is incapable of being repealed, annulled or controlled by any
other legislative authority. The province of the legislature is to make or create
law, that of the judiciary (Courts) to interprete the law- Makame J, in Doris Liundis
case [1980] TLR 38 [HC*]
If is for the courts to pronounce the validity of enactments with reference to a
definite rule of law. courts have the power to review the validity of a statute by
reference to fundamental principles as laid down or fundamental rights as
guaranteed by the constitution- Julius Ishengoma Ndyanabo V AG Civil Appeal
No 64 of 2001 [ CA unreported].
Doctrine of Parliamentary supremacy or Sovereignty: Parliament should not take
away the power of Courts to strike down ordinary legislation when tested against
the Constitution.

62

Courts have no power to pronounce on the validity of a Constitutional

amendment if the prescribed procedure for amendment has been followed by
Parliament.
In principle the constitution has no retrospective effects.
Doctrine of Pith and substance of the Act
The doctrine is concerned with the issue whether classes of subjects covered
under the Act come within an item in the central list. It is applied by Courts to
determine the legislative competence of a legislature in regard to a particular
enactment when challenged with reference to the entries in the various list. For
example, the list of Union matters in the Constitution of the United Republic of
Tanzania, 1977 (as amended).
The doctrine of Colourable legislation
Objectives based on colourable legislation have relevance only in situations
when the power of the legislature is restricted to a particular topic and an
attempt is made to escape legal fetters imposed on its power, by resorting to
forms of legislation calculated to make the real subject matter.
The Doctrine of Severability
This doctrine is applied mostly in human rights cases where the Court is called
upon to strike off particular provisions of legislation that are found to breach
Constitutional provisions that guarantee human rights DPPV Daud Pete [1997] LRC
(Const.) 553
The doctrine of Eclipse can be invoked only in the case of a law valid when
made, but a shadow is cast on it by supervening Constitutional in consistency.
AG for Canada V AG for Ontario [1937] AC326

5.

Classification of Statutes
a)
Classification by Object
(i)
Declaratory Statutes: All statutes that are declaratory in nature
remove doubts existing to common law or the meaning or effect
of any statute.
Set aside what Parliament deems to have been a judicial error,
whether in the statement of the common law or in the
interpretation of statute.
Indicia---declare and enacted
Retrospective-declare meaning of existing law and does not
necessarily re open decided cases/disturb vested interests for
example The Land Tenure (Established Villages) Act, 1992 and The
Local Customary Law (Declaration) Orders 1963 GN. 279 and 436
respectively.
Rule: Where there is a conflict between the terms of a statute and common law, the
former must prevail, if it is clear that it was the intention of the legislature in passing a new
statute, to abrogate the previous common law on the subject. i.e the Land Act, 1999
changes the Common Law rules on conveyancing, trust, landlord/tenant and
mortgages,

b)

Remedial Statutes- All statutes are by their nature remedial, that is, are
passed to remedy an existing mischief, that is defects or redress some
grievance.
Other statutes are beneficial.
But the Land Tenure
(Established Villages) Act 1992 caused some grievances.

63

c)

Enabling Statutes- legalise acts or things that would otherwise be illegal.

For example Acquisition and Requisition Acts- the Land Acquisition Act,
1967, the Acquisition of Buildings Act, 1971, the Villages and Ujamaa
Villages (Administration and Registration) Act, 1975, the Economic
Offences and Organised Crime Control Act, 1983 and the Preventive
Detention Act, 1962.

d)

Classification by Method

Obligatory Statutes: are used with reference to enabling statutes

Permissive statutes

Imperative or mandatory and directory statutes.

Imperative and mandatory statutes creating duties. They also refer to provisions which
lay down conditions prior compliance with which is a condition precedent for the validity
of an act or transaction.
According to Maxwell on Interpretation, a statute is imperative or mandatory or directory
or permissive depending on the manner or form laid down for performing a transaction
as essential or not.
e)

6.

Classification by duration Statutes are classified by duration on the basis

whether they are either permanent or temporary depending on the time
set out in the body of a statute. For example statutes establishing offices.

History of Legislation
Legislation reflects a creative act by public authority, which states authoritative
words.
It was not until the 19th Century that legislation became a productive source of
law and Parliament shifted from simply deliberating matters of general interest.
Before the 19th Century known Codes of Law were those of Emperor Justinian- the
Corpus Juris Civilis of 6th C. AD
That had been codified to ensure permanence of Roman Private Law System,
and the Code Napoleon which was codified 1300 years later as Code Civile and
basis of French law.
Why 19th Century it was necessary that legislation and Parliament became
important?
Rapid socio-economic changes brought about by the Industrial
Revolution.

The rise of long distance trade;

Rennaissance inaugurated real business which involved finance in trade

under the Dutch 1480s who organized financial systems centred at
Amsterdam as a result of which Holland became a sea fearing nation.

16th Century saw the rise of Britain as sea power along with the Dutch. At
the same time there followed the diminishing relationship of unity
between nobility and princes, and the rise of relationship between the
merchants and princes, these relationships formed the pre-conditions for
the rise of a nation state. At the same time there was a rise of the idea of

64

a national church to which the ultimate authority was not the Pope but
the Prince, a phenomenon which was manifested through Reformation.
The Machiavellian raison detat, namely that, the state has its own logic
and reason as an ideological tool for the emerging nation state.
The idea of natural law developed by Thomas Acquinas was pushed to
the background in its place was the social contract.
Three major epochs of this struggle were:
1200-1650 marked by the struggle for emancipation from the hegemony
of theology, the struggle associated with the names Hugo Grotius,
Pfendorf and Vatel Victoria.
1650-1750 marked by ideas of liberalism in economics and politics, the
main exponents were John Locke, Montesquieu and Jean Jacques
Rousseau.
1750-1800 dominated by the demands of bourgeois democracy and
sovereignty of the Will of the people. England, had developed a theory
of legislation suitable for the development of the days; the principle of
Utility as a measure or calcums for legislation.
The Theory of Sovereignty accompanying the above developments
The Challenge on theology was also a challenge on the feudal order
based on manorial interest to live in peace which was independent of
divine command and as such it could not be changed by God himself.
For man to live in peace it was necessary to respect each other and
abstain from each others property. To restore the property of others
which they have taken, fulfill contracts, repay damage, inflict punishment,
states were to adhere to agreement which they have made with other
states-pacta sunt servanda. The state was seen as a free association
based on SOCIAL COANTRACT and the ruler was bound by natural law.
Sovereignty arose out of the populations surrender of its freedom
(Grotius), sovereignty that arises was limited in power (John Locke)
because he had the duty to protect life, liberty, property and pursuit of
happiness, Montesqurian advocated for the separation of powers, that is,
between the Executive, the Judiciary and the Legislature.
The above ideas were concretized by the rise of Positivism whose
emphasis was on observable data (empiricism). In the field of law and
legislation, the method was first used by Jeremy Benthan whose principle
of utility aimed at providing a moral philosophy for making changes in the
law in line with socio-economic changes brought about by the Industrial
Revolution.
The Principle of Utility
According to the Principle of utility- Pleasure and Pain were to be
judgment of all ideas, and the government had the duty of achieving four
goals, namely, substance, abundance, security and freedom. Legislation
had to be based on those four goals.
Benthams conception of a sovereign and Sovereignty.
A Sovereign was a person or body of persons whose will is the collectivity
of the community which owes him/them Obedience. Law was a
mandate addressed to people by the sovereign (general law).

65

That law could be made in two ways- by conception and pre-adoption.

Laws must have sanction attached to them.
Benthams scheme was made more concrete to suit bourgeois demands
by John Austin who distinguished two forms of jurisprudence namely,
Censorial jurisprudence (the Science of legislation) and expositorial
jurisprudence. [Concerned with interpretation of the law as it is].
On the basis of the principle of Utility which according to John Austin was
related to accumulation of property, savings, industrial production, profit,
payment of wages, more capital, consumption of goods produced and
abundance, all these amounted to pleasure.
The same principle of utility was a guide towards avoiding theft, which led
to lack of capital, savings, employment, wages and industrial production,
which ultimately led to poverty and pain. The law-making body was to
make general laws that would guard against the latter consequences in
favour of the former. Parliament having made laws of a general nature,
then it was the duty of lawyers to apply it as it is without inquiring into its
moral validity.
In 1832 England witnessed the establishment of Bourgeois rule and the
beginning of legislative action by Parliament. From 1832 to date,
Parliament has been and still is the centre of legislative activity.
(i)

England

(a)

Post-Norman Conquest:
The judicial function at this period was basically dispute settlement.
Early legislation was a means of rationalizing and developing preexisting standards of rights and justice as recognized by custom.
[In Africa, legislation as a significant source of law came as part of
the Colonial package and turned into a Colonial legacy that
aimed at the economic well being of the colonized countries].

(b)

British Parliament:
According to British Constitutional law, Parliament is the supreme
law-making power for the Empire.
The Crown: The Crown is deemed to have legislative competence
in overseas territories as an aspect of a sovereigns prerogative or
by Virtue of powers conferred or granted to it by Parliament in the
British Settlements Act, 1887 and the Foreign Jurisdiction Act, 1860
[for Protectorates, and Trust Territories]. The Crown exercised this
legislative power by way of Orders-in-Council. This power is now
vested in the Heads of States of the former British Colonies.
Local Statutes- Local Legislatures developed in the colonies with
powers and structures specifically defined by the Crown through
Orders in Councils.
The Executive authority in the colonies
received substantial guidance from the Crown, and their
enactments were commonly subject to the Colonial Office in
London, England.

66

On the whole they were formal enactments of significant body of

legislation in the colonies known as Ordinances.
Sources:
Ghai & McAuslan, Public Law and Political Change in Kenya, 1970
pp 335-339.
Seidman, R, 2EALR 47 pp 69-71 [1969]
Robert Wray, 4 JAL 66 pp 69 70 [1960]
ii.

Legislation in the Colonies

The British power to legislate in the Colonies was based on the Prerogative of the
Crown to assign the form of government in a conquered, Ceded area, or the
General Authority, which the Crown acquired by virtue of the British Settlements
Act, 1887.
Apart from the above two sources of the power to legislate in the Colonies and
jurisdiction on the same was based on the Foreign Jurisdiction Act and the
African Order in Council 1889 (Uganda) and 1890 (Tanzania). It is important to
study the colonial history of each country.
The general common features in all territories were that the Governor was
controlled from London by the office of the Secretary of State. The Governor was
an absolute ruler.
By 1926 all the three East African territories had legislative councils to which draft
legislation and annual estimates were debated. The Consent of the Governor
was necessary for them to be passed. Under this system the Governor was
advised by an Executive Council.
There were also the so-called African Tribal Authorities nominated and elected
legislative Councils at a supra-tribal level, comprised of tribal Chiefs (Native
Authorities).
iii.

The Legislative Process in Tanzania

Pre-Independence
We can distinguish two major periods in pre-Independence legislative process
in Tanzania. (Mainland) namely; (a) between 1920 and 1926 when the
Governor was the sole legislative power and executive authority in the
Country, (b) between 1926-1961 when the legislative Council was the centre
of legislative activity.
1886 (Charter of Protection)- 1918 (Versailles Treaty: German Protectorate:
Tanganyika emerged as a political entity in 1886 of the Imperial German
Governments issue of a Charter of Protection to Tanganyika and the
Agreement between the German Government and the United Kingdom over
their respective spheres of influence. The German Government formerly
declared a Protectorate over the agreed area in 1891. It was from that date
that the legislation governing the area was issued that related to land
ownership and tenure- the Imperial Decree 1895, which declared all land in
Tanganyika to be Public land vested in the Governor,
The Versailles Treaty 1918 that ended the 1914-1918 War- The First world
War- marked the appointment of Horace Byatt as Administrator of the
former German East Africa on 31st January, 1920 by the Royal Commission.
It must be noted, that, Tanganyika fell under the control of the League of

67

Nations, the latter organsation which appointed Britain to administer the

area under the Mandate of the League of Nations.
The Tanganyika Order in Council, 1920
In 1920 the Tanganyika Order in Council [Issued by the British Parliamentconstituted the office of the Governor who was to act as Commander in
Chief of the Armed Forces. It further provided for the establishment of an
Executive Council. The Tanganyika Order in Council came into force on
22 July 1920.
The United Kingdom accepted a Mandate over Tanganyika from the
League of Nations in 1922. Following from such acceptance an Order in
Council was Issued under the Foreign Jurisdiction Act, 1890 providing that
the Crown had jurisdiction and power over the territory. Hence, under
Municipal law, Tanganyika was to be regarded as a Protectorate and as
such was the Status of Tanganyika until 1922. On the acceptance of the
Mandate, in both International Law and Municipal Law, the Mandate was
the only source of jurisdiction. It provided an instrument on how such
powers were to be exercised.
According to the Covenant of the League of Nations Tanganyika was to
be administered under the Supervision of the Legue of Nations and in
accordance with the Inter nationally agreed principles.
Under Article 22 of the Covenant of the League of Nations, the principles
were:

guarantee freedoms of conscience and religion subject to maintenance

of public order and morals;

the prohibition of abuses, that is, slave trade, the arms traffic, prevention
of fortification or military or naval bases or military training of natures for
other purposes than police and defence of the territory.

In 1946 soon after the Second World War Tanganyika became a Trusteeship Territory
under the United Nations and in accordance with Ch. XII of the Charter of the United
Nations. Like the Mandate, the Trusteeship Agreement provided for the source and
definition of jurisdiction.
Article 5 (a) provided for full power to administer authoritatively in matters related to
legislative, administrative, and judicial functions over Tanganyika Territory. Such authority
was subject to the provision of the Charter of the United Nations and the Trusteeship
Agreement.
By virtue of the above principle, England as the administering authority for Tanganyika
was responsible for peace, order and good government, the defence of Tanganyika
and to ensure that Tanganyika played its part in the maintenance of international peace
and security. The Trusteeship Agreement did not confer Sovereignty on the British Crown
and there was no mention of allegiance.
1926-1961 Legislative Council [LEGICO]
The first Legislative Act on the Territory was the Proclamation of 8th September 1916
dealing with custom duties and followed by other Proclamations and Notices between
1916-1920.
The 1920 Tanganyika Order in Council conferred to the Governor the power:

68

to make Ordinances 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 Order in Council made applicable to Tanganyika- the provisions

contained in the 1st Schedule of the Foreign Jurisdiction Act, 1890- it validated all laws,
proclamations and other legislative Acts made or issued or done before the said Order or
by authority for the time being administered by the territory.
Between 1920-1926 a total of 180 Ordinances were enacted by the Governor as the sole
legislative authority.
[Legislative Council] Order in Council:
the governors sole legislative power were done away with;
provided that [from the date to be fixed by the governor] there would be
established a Legislative Council consisting of the Governor, 13 official members,
10 unofficial members, persons not holding office in the territory appointed by
the Governor;
the Governor with advice and consent of the Legislative Council was
empowered to make laws for the administration of justice, raising revenue, for
peace, order and good governance in the territory;

Legislative Council was not itself a legislature, it had to act with the Governor
whose Royal Assent was necessary before any Bill became law;

Money vote could only be initiated by express consent or direction of the

Governor; and

the Governor had no power to dissolve the Legislative Council.

In 1945 the first Africans were nominated as representatives of their races to the
Legislative Council;
1948

the Legislative Council was composed of the President, Governor, official

members, ex-official members and nominated members;

1953

the proposal made by the Committee on Constitutional Reforms were

incorporated;

1955

the Council was divided into official and unofficial members;

1956

further changes were made to the Council;

1958

persons holding public offices were disqualified from the Council;

1959

the Council was reconstituted;

1961

Parliament as known to day, but the Governor General was Head of state
on behalf of the Crown as well as Commander in Chief of the armed
Forces from 28th November, 1961.

Reference:
Morris & Read, The British Commonwealth:
Constitution- Uganda chapter 10

69

The Development of Its Laws and

Cole & Dennison, Tanganyika: The Development of Its Laws and Constitution,
Steven Sons London 1964 chs 2 & 5
Moris & Read, Indirect Rule and Search for Justice Essays in African Legal History,
Clarendon Press Oxford, 1972
The Structure of Statutory Rules and Logical Trees
The Language of the statute law is frequently more complex than that found in
ordinary speeches and writings. This is so because statutes try to cover general
and a number of specific factual situations in one sentence, or a series of
sentences.
The aim here is to look at the way in which words and phrases are related to
each other, that is, the complex structure of statutory language and ways of
simplifying it.
Because of abstraction, ambiguity prevails, though compare to case law a
statute is more precise and it is written. Courts in solving this ambiguity cannot,
therefore, be said to make law.
In the process of interpretation problems that arise relate to:

How to place the species within the genus.

Species: form, figure, fashion or shape- a form or shape given to materials.
Genus: general class or division comprising several species- the specie
take the form of the genus. [Fauna Conservation Laws etc].

Placing the facts of a particular case within a species- specific factual

situations covered by a statute i.e The small Birds Act- Ojibways case
When is a bird not a bird with or without feathers?

Choice- in a statute law choice between alternative interpretations of a

word or phrase in the statute.

Lord Denning once underscored the principal object of the draftsman as that
achieving certainty but in this pursuit lost sight of the equally important object of
clarity. In conceiving certainly the draftsman has brought absurdity. [Lord
Denning, The Discipline of Law, Butterworths London, 1979 p 9].
On species- Commissioner of Customs V Travel
[1967] HCDn 327. The judge was intended to interprete a legislation relating to
soap- whether the word soap includes also sodium salt of fatty acids whether
the specie sodium salt of fally acids falls within the genus of soap so as to be
subject to import duty.
The Court asked itself whether a partly processed chemical technically described
as soap or merely the raw material for making soap.
Consider sections 285 and 287 of the Penal Code. Cap 16 (Tanzania) with that of
Ugandan Penal Code Sections 272 and 273:
Section 285 of the Penal Code, Cap 16 Tanzania provides:

70

Any person who steals anything, and, at or immediately before or

immediately after the time of stealing it, uses or threatens to use actual
violence to any person or property in order to obtain or retain the thing
stolen or prevent or overcome resistance to its being stolen or retained, is
guilty of the felony termed robbery.
Section 287 provides as follows:
Any person who assents any person with intent to steal anything, and, at
or immediately before or immediately after the time of the assault, uses or
threatens to use actual violence to any person or property in order to
obtain the thing intended to be stolen, or to prevent or overcome
resistance to its being stolen, is guilty of a felony, and is liable to
imprisonment for fourteen years.
If the offender is armed with any dangerous or offensive weapon or
instrument, or is in company with one or more other person or persons, or
if, 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 to
imprisonment for life, with or without corporal punishment.

If we would reduce the sections into a set of sentences it will appear something
like the following:
Logical Tree
No 1. ANY PERSON WHO STEALS ANYTHING AND

X
At the time
of stealing
it

B
Uses
or threatens
house (follow B)
(12 sentences)

Actual
Violence
at any

Person or
property
(follow C)
(6
sentences)

In order
to

Obtain
or
retain or to
prevent
or
overcome

The
thing
stolen
D

Stolen or
retained

Y
or
Immediately
Before
Z
or immediately
after

Note: There are 24 complete sentences in X.

Similarly for X and Z. Therefore the section
contains 72 different rules of law.

71

The above diagram is however, a little bit cumbersome.

A much simpler one is a diagram called a Logical Tree; which may be defined as a series
of linked questions each of which helps to guide the reader to an ambiguous solution.
Cf:
Lewis and Woolfenden, algorithms and Logical Trees- A Self- Instructional Course
Logical Tree No 2.
Was the offender at the time of commission of felony armed with dangerous
or offensive weapon or instrument?

NO
Was he in the company of one or more persons?

NO
Did he wound, beat or strike person at the time or robbery?

NO
Did he wound, beat or strike any person immediately before robbery?

NO
Did he wound, beat or strike any person immediately after the robbery?

NO
Did he commit any colony on a public highway?

NO

72

Liable to 14 years minimum

10 14 years Liable to imprisonment for life
Using a logical tree, we can quickly check whether a set of facts come within one of the
possible sentences (provided that no question of interpreting the words involved).
NB:
The lay out above is tentative. This illustrates one of the dangers of using logical
trees of which we should be aware. It assumes that the subsections (a) (b) and (c) in
section 273 (2) are alternatives and not that they must be satisfied before the offender is
found liable to the death penalty. This is to say it assumes that there should be the word
or between each and not and but it could be the other way round.
Opoya V Uganda, [1967] EA 752 (U) does not solve this ambiguity. Why not?

TOPIC THREE
Statutory Interpretation. Principles and Aids to construction (canons of statutory
Interpretation)
Introduction:
There are no binding judicial decisions on the subject of statutory interpretation as
apposed to the interpretation of particular statutes. We shall learn a welter of judicial
dicta, which vary in weight, age and uniformity. Maxwell on Interpretation of statutes
12th Edition calls them the practitioners armoury (analogous to the place where the
army keeps guns and other equipment for fighting an enemy). The rules of English
statutory interpretation are:
1. The judge must give effect to the grammatical and ordinary meaning or where
appropriate technical meaning of words in the general context of the statute; he
must also determine the extent of the general words with reference to that
context.
2. If the judge considers that the application of the words in their grammatical and
ordinary sense would produce result, which is contrary to the purpose of the
statute, he may apply them in the secondary sense or meaning which they are
capable of bearing.
3. The judge may read in words, which he considers to be necessarily implied, by
words 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 being
intelligible, absurd or totally unreasonable, unworkable or totally irreconcilable
with the rest of the statute.

73

4. In applying these rules the judges may resort to aids of construction (Internal and
external) and presumptions. The aids include Internal: Internal Aids. Rules of
language, external aids and a number of presumptions.
Traditionally the main principles of statutory interpretation were three: the literal rule, the
Golden rule and the mischief rule. But since the 1970s there has emerged the purposive
approach [Lord Denning in Northman V London Borough of Barnet [1978] All ER 1243 CA
at P 1246 cited in Joseph Warioba v Stephen Wasira and Anorth; [1997] TLR 272 (CA) see
also Terence Ingman, The English Legal Process, 8th Edn 2000 pp 287 290]. In the course
of reading the cases we will discover that no rule is single- headedly used in the process
of interpreting various statutory provisions. It will be expected that when answering
question not to simply state the method or rule applied to the Mischief rule etc without
showing how you have arrived at such a conclusion .
**Remember this is a course in methodology and not in simply producing right or
wrong answers.
A. The Literal Rule [Terrence Ingman (2000) pp 253 257; Justice G.P. Singh 9th Edn 2004
pp 78 109]
According to the Literal rule of statutory interpretation courts should adhere to the
Literal legis ita scripta est. The rule prohibits judges from adding or taking from or
modifying the letter of the law. The words of a statute must be read in their ordinary,
natural and grammatical meaning.
In Pinnet v Everett, [1969] 2 ALL ER 257 at 258 259 Lord Reid in the House of Lords
stated inter alia:
In determining the meaning of any words or phrases in a statute the first question
to ask always is what the natural and ordinary meaning of that words or phrases
in its context. It is only when the meaning leads to some results, which cannot
reasonably be supposed to have been the intention of the legislature that it is
proper to look for some other possible meaning of the word or phrases [emphasis
added].
As you will note in the course of learning law and reading cases involving statutory
interpretation, different judges have advanced different views on how the literal rule
has to apply. The main trend has been the so - called Grammatical Interpretation.
To some judges this is the safer rule because they think; it is a rule of common sense.
To follow the literal rule means that even when the language of the statute is
incapable of meaning, the court cannot and should not supply one.
In Seaford Court Estate Ltd V Asher [1949] 2 KB 481 at 498 499 Lord Denning had the
following to say:
The question for decision in this case is whether we are at liberty to extend the
ordinary meaning of burden so as to include a contingent burden of the kind I
have described. Now this court has already held that this sub section is to be
liberally construed so as to give effect to the governing principles embodied in
the legislation [Winchester Court Ltd V Millers,
(1) [1944] KB. 734, and I think we should do the same. Whenever a statute comes
up for consideration it must be remembered that is not within human power to
foresee the manifold sets of facts, which may arise, and, even if it were, it is not
possible to provide for them in terms free from ambiguity. The English language it
is not an instrument of mathematical precision. Our literature would be much
poorer if it were. This is where the draftsmen of Acts Parliament have been
unfairly criticised. A judge believing himself to be fettered by the supposed rule
that he must look to the language and nothing else laments that the draftsmen
have not provided for this or that, or have been guilty of some or other ambiguity.
It would certainly save the judges the trouble if Acts of Parliament were drafted
with divine prescience and perfect clarify. In the absence or it, when a defect

74

appears a judge cannot simply fold his hands and blame the draftsman. He must
set to work on the constructive task of finding
the intention of the Parliament,
and he must do this not only from the language of the statute, but also from
consideration of social conditions which gave rise to it, and of the mischief it was
passed to remedy, and then must supplement the written word so as to give
force and life to the intention of the legislature. That was clearly laid down by
the resolution of the judges in Heydons case (1), and it is the safest guide to day.
Good practical advise on the subject was given about the same time by
Plowden in his second volume Eyston v Studd (2). Put into homely metaphor it is
this: A judge should ask himself the question: If the makers of the Act had
themselves come across this truck and texture of it, how would they have
straightened it? He must then do as they would have done. A judge must not
alter the material of which it is woven, but he can and should iron out the
creases. Approaching this case in that way, I cannot help feeling that the
legislature had not specifically in mind a contingent burden such as we have. If it
had would it not have put it on the same footing as an actual burden? I think it
would. It would have permitted an increase of rent when the terms were so
changed as to put a positive legal burden on the landlord. If the parties expressly
agreed between themselves the amount of the increase on that account the
court would give effect to their agreement.
Almost the same views appears in Magor & St. Mellons V New Port Corporation, [1950] 2
All ER 1226 at 1236:
I would repeat what I said in Seaford Court Estates Ltd V Asher (4) We do not sit
here to pull the language of Parliament and of Ministers to pieces and make non
sense of it. That is an easy thing to do; and it is a thing which lawyers are too
often prone. We sit here to find the intention of Parliament and of Ministers and
carry it out, and we do so better by filling the gaps and making sense of the
enactment than by opening up to destructive analysis.
In the two passages it is interesting to note that Lord Denning (as he then was) in
interpreting statutes, the judges do fill in the gaps in trying to identify the intention of the
legislature. He further suggested that in the process judges are likely to depart from the
so-called literal meaning of the words or phrases.
Lord Simmonds emphasises the need for judges not to travel outside the words of
Parliament or what Parliament has said. Thus there seems to be a tug of war between
those who want to adhere to the plain meaning and those who in order to determine
the plain meaning of the words or phrases in a statute do invoke the Intention of the
legislature to guide them. Through the so called intention of the legislature they are
able to discover the plain meaning: Mwinyimadi Ramadhani VR It would seen from the
above cited case and other cases purportedly decided in the basis of the plain meaning
rule, the court or judges have not simply proceeded from the presumption that the
words are plain and unambiguous without necessarily referring to what the legislator
intended. Singida RTC v Tanzania Posts and Telecomm. [1979] LRTn 11
In this case the court was called upon to interpret section 73 (b) and section 117 of The
Telecommunications Act, 1977 and Regulations 5(b) of the East African Telegraph
Regulations, Legal Notice No 1 of 1970. This was necessary because the plaintiffs had
filed a suit for damages arising out of alleged negligence on the part of the defendants.
In a written defence, the defendant pleaded as preliminary point in which they
maintained that the suit could not stand in law because the root cause of action was
pertinent and the court had to make a ruling on it.
The facts were that the plaintiffs dispatched a telegram at a Post Office at Singida,
which is owned by the defendants. The telegram require persons to whom it was sent to
dispatch to the plaintiff four thousand corrugated iron sheets. Due to the negligence of
the defendants servants either at Singida or Dar es salaam Post Office, four thousand

75

read forty thousand. On receiving a wrongly worded Telegram the person to whom it
was sent dispatched the first consignment of twelve thousand corrugated iron sheets to
the plaintiff. In turn the plaintiff was forced to transport back to the consignor the excess
amount of corrugated iron sheets at a cost of Shs 39,200/= which amount the plaintiff
was claiming from the defendant.
The question was whether the defendants were liable at all?
Counsel for defendants argued that the suit was not maintainable because the
applicable law: The Tanzania Posts and Telecommunications Act, 1977 expressly
exempted the defendant from liability. He Cited S. 73(b) and section 117 of the Act.
S.73 save in so far as it is provided to the contrary in regulations made under S.
76, the corporation shall not incur any liability.
(b) by any person of any delay in transmission of any telegram or by reason of
any error in, omission from, or non delivery or misdelivery of any telegram.
Section 117 was a saving clause S.117 (1) Until regulations are made by the
Minister under this Act all subsidiary legislation, other than subsidiary legislation
relating to pensions gratuities or other,
made under the East African Posts and Telecommunications Corporation Act
and, subsidiary legislation set out
the second schedule this Act as if that subsidiary legislation was made under
this Act.
Counsel for this plaintiff maintained that the dispute did not lie in the fact that the suit
was covered by the statutory provisions referred to by counsel to the defendant. Before
such exceptions can be brought in favour of the defendants, the nature of the error had
to be considered because in the counsels view statutory provisions were no intendeds to
cover all types of errors. According to the counsel for the plaintiff S. 73 (b) was intended
to cover such errors like those due to faulty apparatus, and not errors due to lack of
training, laziness or poor perception by the employees of the defendant.
The judge addressed his mind to S. 73 of the Act and made reference to the Second
schedule of the Act which contained a list of subsidiary legislation under The East African
Post and Telecommunications Corporations Act. Special reference was made to Legal
Notice No 1 of 1970 in which regulations 5(b) of the said regulations provided:
S 5 The Corporations shall not incur any liability
a)..
b) by any person of any delay in transmission of any telegram or by reason of any
error in, or omission from, or non delivery or misdelivery of any telegram.
This provision the court (judge) observed was similar to the wording of S. 73 (b) of
the Act and both were conched in exactly the same words.
The issue the judge raised was what meaning and effect did these provisions have on
the matter in issue in a suit before him? The judge first started the Cardinal principle of
statutory interpretation:
The cardinal canon of construction statutes is to give the words used in the
statutes their ordinary and plain meaning. Generally speaking, therefore, the
courts must be content to accept the ordinary and plain meaning of words used
in a statute as conclusive evidence of what the legislature has said and meant.
Then quoting from Salmonds book Jurisprudence 11th Edn at pp 132 133:
The essence of the law lies in its sprit, not in its letter, for the letter is significant only
as being the external manifestation of the intention that underlies it. Nevertheless,
in all ordinary cases the court must be content to accept the litera legis as the
exclusive and conclusive evidence of the sententia legis.

76

They must in general take it absolutely for granted that the legislature has said
what it has meant and meant what is has said. Ita scripta est is the first principle of
interpretation.
Judges are not at liberty to add, or take from or modify the letter of the law,
simply because they have reason to believe that the true sententia legis is not
completely or correctly expressed by it.
Having stated the principles, then the judge enumerated instances in which the above
principles of interpretation can be departed from:
Where the language used in a statute under consideration is vague or
ambiguous, or where it is plain that it is logically defective, or where its literal
interpretation would lead to such obvious absurdity or unreasonableness as to
make it plain that the legislature could not have meant what is said. In the
absence of evidence to that effect, the courts have no option but to take it for
granted that the legislature has said what it meant and meant what it has said.
In the judges opinion the statute under consideration was of a special nature [Cross,
Statutory Interpretation, 2nd Edn 1987 p 42, Pionee Aggregates (UK) Ltd V Secretary of
State for Environment [1985] AC 132 at 140 141 -The statement of Lord Scarman]
It gives powers to public undertakings. In light of this, a strict instruction must be
accepted when dealing with such statutes to the extent that its effect should not affect
the common law rights of an individual except where the intention is clear.
The judge then cited the statement of Gouldie J in James V Commission of Transport,
[1958 EA 313 at 315 (as an authority for his for his view):
Statutes conferring statutory power on public undertakings must be strictly
construed and it has been repeatedly held that they are not to be construed so
as they affect the Common law rights of the individual unless such an intention is
clear from the wording of the statute.
From the foregoing the judge considered the provisions of the Act in question and came
to the conclusion that the legislature intended to remove any doubt that it had said
what it meant. The words are so mandatory i.e. shall be liable.
Further the judge considered the words or phrases any error. The judge was not at one
with the Counsel for the plaintiff that the mind of the judge any error must mean what it
says.
In the sense in which the word any is used in that context it must mean all.
The Language used in the Act was intended to protect the Corporation in every section
of the Act.
If the legislature had intended to exclude some errors, such as those due to
carelessness, laziness, etc; of the corporations staff, as distinct from errors made
or done bonafide,
It would certainly have said so just as it has done with regard to liability for
members of the Board (S. 107 of the Act)
It was the view of the judge that this law was explicitly taking away the Common Law
rights of the individual, i.e. no liability for negligence can lie on the Corporation. But the
judge said:
...that is no reason for departing from the true meaning of the words used and the
intention to be gathered therefrom. The language used in the Act makes it quite
clear that the intention of the legislator was to place, the Common Law rights of
the individual in the second place.

77

All in all, as a positivist, the judge said that he was dealing with the law as it is not as it
ought to be:
It is true that a victim of error in a telegram, such as the plaintiffs may raise eye
bows about the fairness of these provisions. But that is a moral question. Courts
may not question the morality of statutory (provisions) law. All they are there do so
is to discover what the legislature has said and meant and find out from the
language used in a statute; which it has said what it meant, and mean what it
has said.
More Readings:
Max Radin, Statutory Interpretation, 43 Harv. LR (1930) 863 AT 870
Patterson, Jurisprudence, Brocklyn, Foutana Press 1953 p 203
Glanville Williams, Learning the Law 11th Edn London, Steven & Sons 1982
pp 102-106
Cases:
Opoya v Uganda, [1967] EA 752 (U)
National Bank of Commerce v J.M. Sinzobakwila, [1978] LRTn. 39 at 198 ff.

**
B.

Rv Omari s/o Kindamba & Oth; [1960] EA 407 (T)

The Golden Rule

The Golden Rule is that there are no golden rules.
G.B. Shaw, Mad and Superman in G. Williams, Learning the Law, 11th Edn 1982 p
97
The Golden Rule states that the grammatical and ordinary sense of the words
must be adhered to unless to do so would lead to absurdity, some repugnancy
inconsistent with the rest of the instrumentin which case the grammatical and
ordinary sense of the words may be modified so as to avoid absurdity or
inconsistency but no further.
The Golden Rule is exactly the same as the Literal Rule except that it reflects all
considerations of social policy behind the Act and therefore it has no application
to statute framed in wide and general terms. The Golden Rule expressly specifies
an Occasion when the Court has to depart from the plain meaning, namely,
where to adhere to the plain meaning would lead to absurdity or absurd results.
It allows judges to use their social and political views when interpreting statutes.
According to G. Williams Learning the Law 1952 pp 106 108 the Literal and the
golden rules are not really two rules of law in opposition of each other. They are
not fixed rules binding on the court but they are modes of approach. All will
depend on the temperament of the judge to which of the rules need be
adopted in any given case [Singida Regional Traiding Company Ltd, v
Tanganyika Post and Telecommunication Corporation [1979] LRTn 11 whether the
judge should have used the Golden Rule of Interpretation]. The Golden rule
disregards absurdity while the literal rule does not.
The Golden rule also calls on judges to consider the principle of justice when
interpreting statutes.
The use of the Golden Rule elevates the judge from the status of being a mere
applier of the law to conscious individuals who can exercise their discretion and a
sense of justice.

78

Other views about the Golden rule:

According to Terence Ingman, The English Legal Process, 8th Edn Blackstone Press
Ltd 2000 pp 257-261 The Golden rule may be used in two ways. It is mostly used in
a narrow way to modify the literal rule in order to avoid absurdity. In its narrow
application, the golden rule lays down that if the words used are ambiguous the
Court should adopt an interpretation which avoids absurd results.
In its second, broader, application the golden rule is sometimes used in
preference to the literal rule where the words used can have only one literal
meaning. This is especially so where considerations of public policy intervene to
discourage the adoption of an obnoxious interpretation. For example, a principle
of public policy which precluded a murderer from benefiting from his victims will
[Riggs v Palmer, The Estate of Crippen]. In Re Sigsworth [1935 Ch 89, the judge
had to decide whether the same principle applied so as to preclude a murderer
from claiming a benefit conferred on him by statute where the victim died
intestate. By the Administration of Estates Act, 1925 the residuary estate of a
person dying intestate was to be divided among the issue. Mrs Sigsworth died
intestate leaving only a son who, a coronors jury found, had murdered her. The
question for the Court was whether the son as Issue could succeed on the
mothers intestacy. Clanson J held that he could not.
He said that the principle of public policy which prevents a murderer from
reaping the fruits of his crime must be applied in the Construction of Act of
Parliament so as to avoid conclusions which are obnoxious to that principle. In
reality, while not mentioning any so-called rule of interpretation, Clauson J in Re
Sigsworth in effect applied the golden rule in preference to the literal rule since
the only possible literal interpretation of issue must include a son. [You can read
many more examples in the proceeding pages]
An example of cases from East Africa:
National & Grindlays Bank & Co V Kentiles Co
(1966) E.A. 17 CPC) (In Liquidation) and The official Receiver (as Liquidator)
[Kenboard & Company, owned land in the Highlands of Kenya. A
scheme was adopted whereby Kenboard would transfer the land to Kentiles &
Co; the appellant Bank would then advance Kentiles the sum of 90,000, in
exchange of which Kentiles would give the Bank a mortgage on the land. [A
mortgage is a conveyance of land from the borrower to the lender, which by its
terms remains in suspense, as it were, until there is a default; upon default in
payment of the loan, the mortgagee here the Bank- can come through an
appropriate legal process, called a foreclosure, to own the land. The lender thus
has a double assurance that the loan will be paid: the promise of the borrower,
and the security of the land.
A mortgagee by virtue of the mortgage takes the land in the event of
bankruptcy in preference to any other creditors of the debtor].
Kentiles gave the Bank the requisite mortgage, but did not obtain the consents
for a conveyance of land as required by S. 7 of the Crown Lands Ordinance, Cap
150, 1948 as amended.
The Courts below held that the absence of Consent invalidated the purported
conveyance by way of mortgage, so that the Bank lost its mortgage, and hence
its priority over the other creditors on Kentiles Insolvency.
The Bank appealed to the Privy Council.
Lord Wilberforceon the substance of the appeal, the first Issue is whether the
Bank is a legal mortgagee of the property?

79

The Companys claim [i.e. the claim of the Official Receiver as Liquidator] was
that the legal mortgagewas validbecause the Bank had failed to obtain the
consents necessary, in relation to land in the Highlands, under the Land Control
Ordinace and the Crown Lands Ordinance
Their Lordships do not consider it necessary to deal with more than one (of several
contentions by the Bank], the conclusion as to which appears to them clear and
which is sufficient to dispose of the appellants contention that the legal
mortgage was validly created, namely that which arises from the absence of
consents under the Land Control Ordinance and the Crown Land Ordinance S.7
of the Land Control Ordinance, cap 50 as amended by S.2 of the Land Control
(Amendment) Ordinance, 1949 (No 38 of 1949) provides that no person shall
without the consent of the Land Control Board mortgage or charge any land in
the Highlands and S.88 of the Crown Lands Ordinance contained similar
prohibition against mortgaging land in the Highlands without the consent of the
governor. Each of these sections provides that transactions effected without
such consent shall be void. Neither consent was in fact obtained.
The contention of the appellants was that although in accordance with the
Interpretation and General Clauses Ordinance, Cap 1. the word person, unless
there is something in the subject or context inconsistent with such Construction,
includes a Company, there was such an indication in each Ordinance.
Generally it is said that the legislation was of a racial character and that race is
characteristic of Individuals. When companies are involved control is exercised
not over the corporate body itself over its shareholders; more particularly it was
argued that in S.90 of the Crown Lands Ordinance which refers to person of a
different race to the person by whom such land was sold, person can only
mean an individual, and that consistency of interpretation required that the word
person should have the same meaning throughout the legislation.
Their Lordships recognise that these indications have some force but
consider that they are far outweighed by anomalies which would arise if
companies as such were to be exempted from the requirements of the
legislation. It is true that there are provisions, which enable control to be
exercised over changes in the shareholders of landowning companies,
but, if the appellants construction is correct, Companies would enjoy a
far greater freedom as regards dealing in land in the Highlands than do
individuals.
Rather than accept such an anomalous result their Lordships prefer to recognise
that the word person is used without consistency or accuracy in this legislation,
the drafting of which is indeed, in many respects far from precise, and that the
limitation of the word persons to individuals in one context does not impose the
same meaning in another. Their Lordships therefore conclude that consent under
each Ordinance was required and that the absence of such consent invalidate
the purported legal mortgage
[Appeal allowed on other grounds]
Notes
1) The Privy Council in this case departed from the plain meaning rule, just
as was the case in the East African Court of Appeal departed from the
plain meaning rule in AG of Uganda V Kabakas Govt, [1965] EA 593.
Can you explain why the Court will adopt the plain meaning rule in one
case, and the so-called golden rule in another?

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2) Can a Court decide to adopt the golden rule and re-write a statute,
without first determining what policy or purpose the legislation is supposed
to serve? Explain with examples from cases you have studied.
3) Glanville Williams, Learning the Law, London Stevens and Sons 1963 pp 99101:
Judges vary in the extent to which they are prepared to modify
words of an Act to arrive at a just and sensible result.
Some judges insist that statutes are just to be applied literally,
however absurd the Consequences, it will be for Parliament to put
the absurdity night.
This is called the literal rule [or plain meaning rule] of
interpretation.
Others more liberal in their approach, will modify the words to
prevent absurdity, this is sometimes called the Golden rule
Discuss the validity or otherwise of the above proposition in the
light of Ndyanabos case; the approaches by the Majority judges
in the High Court and the judgement of the minority judge in the
same Court.
4) Consider whether or not the judge in Singida RTC Ltd V Tanganyika Post
and Telecommunications Corporation, [1979] LRTn. 11 could have invoked
the Golden rule to avoid reaching the results he reached?
C.

The Mischief Rule or The Rule in Heydons Case [See Also Dr. Avtar Singh,
Introduction to Jurisprudence, Reprint Edn. 2005 pp 158-160; Terence Ingman, The
English Legal Process, Eighth Edn. Blackston Press Ltd 2000 pp 261-264]
Note:
1. A verbis legis non est recedendum from the words of the law, there should
be no departure.
2.

The ambiguity and complexity of statutory words makes the Court duty
bound to ascertain the so-called intention of the Legislature.
Intention or Mischief calls for ascertaining the rationality of the words
passed by Parliament.

3. The importance of Mischief Rule-witnessed in the 19th Century due to the

growth of Parliamentarianism and the articulation of the doctrine of
Separation of Powers.
4. The debate surrounding the difficult which is involved an ascertaining The
Mischief or Intention of the Legislature has been manifested in the Issues
whether it refers:
a) To the majority of the members of the legislature or Parliament.
b) To the majority of the members
c) The meaning attached to the words by drafters of the statute.
[See Ronald Dworkin, Laws Empire, Foutana Press 1986 Ch 9 pp 312-354; Lloyd of
Hampstead, et al, Introduction to Jurisprudence, 1979 pp 865 ff.
Historical Background:
The Mischief or Heydons case Rule was developed in 1584 by the Barons of
the Exchequer (Heydons Case 3 Co. Rep. 7a; 76 ER 637 Exchequer See also

81

Twining, W; & Miers, D: How To Do Things With Rules, 3rd Edn 1992 pp 166 169;
211-212 and Cross, R: Statutory Interpretation, 2nd Edn 1987 pp 10 19]
The Barons of the Exchequer resolved that the sure and true interpretation of
all statutes in general (penal) or beneficial, restrictive or enlarging of the
Common Law, four things have to be put into Consideration:
1. What the Common Law before making the Act was.
2. What the Mischief and defect for which the Common Law did not
provide.
3. What was the remedy the Parliament hath resolved and appointed to
cure the disease of the Commonwealth.
4. The true reasons of the remedy and then the office of all judges is
always to make such construction as shall suppress the mischief, and
advance the remedy, and to suppress subtle intentions and evasions
for continuance of the Mischief and pre-privato Commodo, and to
add force and life to the cure and remedy, according to the time
intent of the makers of the Act probono publico.

[Twining and mires 1992 PP 166 167]

The Mischief Rule goes together with the maxim Cessante ratione,
Cessantimsalex meaning Reason is the source of the law, and when reason of a
particular ceases, so does the law itself. Twining and Miers further suggest that
these rules of interpretation assume that the role of the interpreter is to further the
intention of the legislature. Where there is an element of discretion or choice of
interpretation the role of the judge may be seen as that of the junior partner in
the enterprise of law-making
The Mischief Rule provides a method which judges use in order to determine The
purpose for which a law has been enacted. To understand how it works in
practice let us look at the following cases examples drawn from the activity of the
Courts in East Africa and Tanzania:

Ali s/o Mapuliko Kailu V.R [1976] LRT. 37 at 147 Kisanga J.

This was a Criminal appeal. The appellant had been Convicted of causing
death by dangerous driving contrary to section 44A (1) of The Traffic
Ordinance, Cap. 168 and was sentenced to 2 years imprisonment.
Counsel for the appellant cited a principle, which related to the third ground
of appeal that the sentence was excessive. It was in the High Court Case
(Kenya) in Wanjema V R [1971] EA 493 in which it was pointed out by Justice
Kisanga that such a case was not an authority because it had not been
followed by Onyinke J in Republic V Mohamed Bashir, [1973] LRTn 51 where
the judge has stated that Wanyemas case was to be considered as a guide
not a rule.
The judges view was as follows:
The basic principle which should guide courts in any country is that It is
their duty to carry out the purpose of the legislature in creating an offence
and prescribing punishment.
The Courts have to consider the Mischief aimed at and the measure
adopted by the legislature for dealing with it. Where the legislative
provision which creates the offence makes it punishable with
imprisonment without an alternative of fine, the courts should impose a
prison sentence unless the circumstances disclosed by the evidence or
the facts given by the accused in his plea in mitigation of the sentence

82

warrant a different form of punishment. In Tanganyika Section 44 of The

Traffic Ordinance, Cap 168 which creates the offence of causing death
by dangerous driving makes it punishable with imprisonment without
expressly providing for the levy of a fine as an alternative.
The Mischief aimed at was the increasing rates of fatalities on the roads
caused by dangerous driving. The legislature has prescribed the measure
for dealing with this danger to the public. As was stated in the case of
Wanjema in these days of appalling fatality figures on the roads drivers
should know and know clearly that if they cause death by dangerous
driving they are in imminent danger of being sent to prison.
Then on the basis of the above proposition Justice Kisanga said the approach
was advantageous because:
It allowed the Court to implement the intention of the legislature. i.e. to
take stiff measures against the increasing fatalities on the roads caused
by dangerous driving and yet allow flexibility whereby courts may
impose
linient
or alternative
form
of sentence
where
the
circumstances of a particular case warrant it.
Therefore, I respectfully think that this approach is to be preferred.

Mwinyimadi Ramadhani V Rep. Crim. App.

No 150 of 1963 (High Court of Tanganyika) (unreported)
The appellant was convicted on his own plea to the court on charges
under section 49 (11 of The Fauna Conservation Ordinance, Cap. 303 for
unlawful possession of government trophies (elephant tasks, rhinoceros
horns etc). He was sentenced to 15 months imprisonment and a fine of
3,000/= or six months imprisonment in default. The trophies were forfeited
to the government. The appellant appealed against the said sentence.
The offence to which the appellant pleaded fell under the provisions of
section 53 the material part being sub-section (1), which provided inter
alia that:
Any person who
a) Contravenes any provisions of this Ordinanceshall, if the same be
stated herein to be an offence against this Ordinance (and no other
punishment is specified herein):
(1) If the offence is committed within any game reserve or
controlled area or in respect to any animal specified from time
to time in the first schedule, or in respect of any animal for
which fee for a supplementary game licence, as specified
from time to time in the Third Schedule thereto, exceeds
hundred shillings, be liable on conviction to a fine of twenty
thousand shillings or imprisonment for two years or to both such
fine and imprisonment; or in any other case, be liable on
conviction to a fine of ten thousand shillings or to imprisonment
for six months or to both such fine and imprisonment, or, in the
case of subsequent offence, to a fine of fifteen thousand
shillings or to imprisonment for nine months or to both such fine
and imprisonment.
The sentence imposed upon the appellant could have been validly
imposed only if the offence before the court was punishable under subpara (1) of the sub section.

83

Arguments for the Republic

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 in
the third schedule to the Ordinance which exceeded shs 100/=.
Accordingly it was within the Magistrates power to award a term of
imprisonment, which he did.
Argument by Counsel for Appellant

The offence was not committed in respect of any animal within the
meaning of sub-para (i) so that the appellant fell under the provisions of
sub-para (ii) and the result being that as first offender was not liable to
imprisonment which he did.
The offence was not committed in respect of any animal within the
meaning of sub-para (i) so that the appellant fell to be punished under
sub-para (ii) with the results that being first offender he was not liable for
imprisonment for a term exceeding six months.

To support his argument the counsel cited Salehe s/o Issa V R where the appellant
having pleaded guilty to unlawful possession of two elephant tasks contrary to section 49
(1) of The Fauna Conservation Ordinance had been sentenced to eighteen months
imprisonment. It had been argued on appeal that, the term was ultra vires the Court
because the offence was not committed in respect of any live animals. The judgement
of the Learned Chief Justice went as follows:
The Contention raised by the Counsel for the appellant was that the possession of
elephant tasks already severed (as they were) from an elephant, cannot be an
offence in respect of any animal at all, since animal must mean a living animal.
I do not think this contention prevails. The definition of animal in the Ordinance is of
no assistance on the point.
The appellants offence was under S 49 (1) namely unlawful possession of trophies,
and a trophy is defined meaning any animal dead or live, and any horn, ivory,
tasks, bone, claw, hoof, skin, hair, feather, egg or other durable portion whatsoever of
any animal whether possessed or not, provided that it is ready recognizable as
durable portion of an animal.
It is undisputed that severed elephant tasks are trophies within the above definition.
But the definition makes it equally clear, to my mind that to be unlawfully in possession
of a trophy is an offence committed for the purposes of this Ordinance, in respect of
an animal, whether or not the animal from which the trophy (if it is part of an animal
such as task) has been severed is alive or dead at the time when the accused is
found in possession of it.
The ground for decision in the present appeal turned on another point.
Suffice it to say that the remarks of the Chief Justice were Obiter, although they had to
be treated with great respect.
The Court considered the counsel for the appellants arguments and the authority cited.
It was found true that the appellants offence consisted in unlawful possession of a
number of elephant tasks and a quantity of rhinoceros horns. These were indisputably
trophies within the meaning of the Ordinance.
Prima facie the appellant had committed an offence in respect of such trophies:
Rv Omari s/o Kindamba & Oth. [1960] EA 407 (T)
The judge was of the view that as such the offence was not committed in respect of any
animal unless either:

84

a) The word animal appearing in sub-para (1) of s. 53(1) of the Ordinance is defined in
terms wide enough or is otherwise to include the trophy of such animal, or
b) The expression offencein respect of any animal appearing in that sub-paragraph
can be said to mean not only an offence in relation to any animal from which a
trophy the subject matter of a charge must at some time in the past have been
severed.
Animal according to S. 2 of the ordinance means any kind of vertebrate animal
and the eggs and found thereof, other than domestic animals and, except in SS 5 (1)
and 17 expressly provide fish.
Trophy is in the same section defined asany animal, alive or dead, any horn, ivory,
tooth, task, bone, claw, hoof, skin, hair, feather, egg or other durable portion
whatsoever of any animal whether processed or not, provided that it is readily
recognizable as durable portion of such animal.
Despite the fact that the word animal is defined wide enough to include trophies
and the word trophie wide to include animal, not every trophie is an animal.
A Clear distinction is made by the ordinance between the animal and its trophy to
such an extent that no single provision in the Ordinance in which the word animal is
used to mean anything but animal as defined in S.2 namely, the animal as distinct
from any part of it being a trophy.
A clearer distinction is made by S. 347:
(1)
Which defines Government trophies:
a)
Any game which has been killed or captured without licence and trophy
of any such animal;
b)
Any game or animal found dead and the trophy of such animal or any
part of any game animal which is found;
c)
Any animal killed or captured in contravention of any of the provisions of
this Ordinance and the trophy of any such animal;
d)
Any trophy in respect of which a breach of the provisions of this
Ordinance has been committed;
e)
Any animal or trophy which is in the possession of any person and which
may be reasonably suspected of having been stolen or unlawfully
obtained
f)
Any elephant tasks weighing less than twenty two pounds a pair, or
eleven pounds in the case of an elephant having a single task, or such
other whole territory or any particular area;
g)
Any other animal or trophy, which may be prescribed.
Having made the above observations Weston J said:
It would be strange if S. 53 of the Ordinance which is a general penal and
forfeiture section, that the word animal was used or was even intended to be
used to include trophies. The word animal standing alone in the context under
consideration cannot be construed to include trophies.
Regarding the phrases:
the words in respect of any animal have in law their plain ordinary meaning of in
relation to any animal.
Phrases or words in respect of which the offence has been committed
Law, J made the following:On a literal interpretation, the words in respect of which the offence has been
committed must in my view, refer to the subject matter of the offence, and not
to things indirectly or incidentally connected with the commission of the offence.
[For further reading see M.C. Mukoyogo, OLW 104: Legal Method: Statutory Interpretation
Part III 1996 PP 66 71]

85

Regina V The Secretary of State for Health (Respondent) exparte Quintavalle

(On behalf of Pro-Life Alliance) (Appellant) [2003] UKHL 13
Lord Bingham of Cornhill:
8.

D.

The basic task of the Court is to ascertain and give effect to the true
meaning of what Parliament has said in the enactment to be construed.
But that is not to say that attention should be confined and a literal
interpretation given to the particular provisions which give rise to difficulty.
Such an approach not only encourages immense prolixity in drafting, since
the draftsman will feel obliged to provide expressly for every contingency
which may possibly arise. It may also (under the banner of loyalty to the
will of parliament) lead so the frustration that will, because of undue
concentration on the minutiae of the enactment lead the court to neglect
the purpose, which Parliament intended to achieve when it enacted the
statute. Every statute other than a pure consolidating statute is, after all,
enacted to make some change, or address some problem, or remove
some blemish, or effect some improvement in the national life.
The courts task, within permissible bonds of interpretation, is to give effect
to Parliaments purpose. So the controversial provisions should be read in
the context of the statute as a whole, and the statute as a whole should
be read in the historical context of the situation, which led to its
enactment.

Purposive Approach:
Through judicial efforts especially by Lord Denning, The Discipline of the
Law, 1979, p 9;
The Closing Chapter, 1983, pp 94 107 and 110 14) to improve
interpretative techniques- the object of statutory interpretation is to
discover the intention of Parliament. But he argued that, the actual words
used in the statute are only the starting point and not the finishing point.
He preferred the purposive approach to literal approach. He was an
Intention seeker rather than a strict literal constructionist.
The purposive approach is the European approach to statutory
interpretation and Lord Denning recommended its extension to Acts of
the United Kingdom Parliament. Lord Denning also aired his view from the
Bench in Northman v London Borough of Barnet,
[1978] 1 All ER 1243 at 1246 CA:
The literal method is now completely out of date In all cases now
in the interpretation of statutes we adopt such a construction as
will promote the general legislative purpose underlying the
provision [quoted from the Law Commission Report No. 21] It is no
longer necessary for the judges to wring their hands and say:
There is nothing we can do about it. Whenever the strict
interpretation of a statute gives rise to an absurd and unjust
situation, judges can and should use their good sense to remedy it
by reading words in, if necessary- so as to do what Parliament
would have done had they had the situation in mind.
When the Nothmans case reached the House of Lords [1979] 1 ALL ER
142, Lord Dennings approach was criticised. In particular, his attempt,
single handedly and without legislation, to implement the Law
Commissions recommendations of 1996 was too much for Lord Russell of
Killowen, who expressly declared Lord Dennings sweeping comments.
Lord Dennings purposive approach to interpretation of domestic
legislation received little judicial support at the time.

86

But in R V Pigg [1983] 1 ALL ER 56

A unanimous House of Lords had no hesitation in preferring a purposive
approach to literal interpretation. And later the House of Lords said that a
judge may adopt a purposive approach only if he can find it in a statute
or in permitted extrinsic materials, an expression of Parliaments purpose or
policy: Shah v Barnet London Borough Council, [1983] 1 ALL ER 226 [HL].
The judge is permitted to interprete legislation in the light of his own views
on policy. The only concession allowed to judicial creativity by the above
case is that judges adopt a purposive approach to interpretation if the
purpose or policy of Parliament is discernible from the statute itself or from
the materials to which they are permitted by law to refer as an aid to the
construction of the statute.
The House of Lords moved towards a purposive approach in the
interpretation of international conventions and treaties n Fothergill
V Monarch Airlines Ltd [1980] 2 ALL ER 696 (HL) (To be discussed
later on]
See Terence Ingman, The English Legal Process 8th Edn.
Bladistone Press Ltd 2000 pp 264 - 290
The Purposive Approach of Statutory Interpretation in Tanzania:
Republic V Mbushuu alias Dominic Mnyaroje
[1994] TLR 146 (HC)
Joseph Warioba V Steven Wasira & Anoth.
[1997] TLR 272 [CA] Arguments by Counsel Prof. Jwani Mwaikusa.
Asha Soud Salim V Tanzania Housing Bank.
[1983] TLR 270 (HC) Ramadhani C.J (as he then was)
Kamnis Ballroms Co Ltd V Zemta
Investments Torquay Ltd, [1970] 2 ALL ER
871 House of Lords, Lord Diplock.
TOPIC THREE

PRESUMPTIONS

Introduction
In Cross, Statutory Interpretation, 1987 Ch.7 we learn that presumptions are used with
different meanings in different branches of law. Their use is always related to BURDEN OF
PROOF. They imply that a particular conclusion is likely to be drawn by the Court in the
absence of good reasons for a reading a different one.
You know for example in Criminal Law the presumption is that the accused person is
innocent until the prosecution has proved the case against the accused beyond any
reasonable doubt.
In corruption cases (also Criminal Cases) the accused person has to prove how he came
by what might be alleged to have been acquired corruptly. In the Law of Marriage Act,
1971 S.160 when parties have lived together for a period of two or more years under
circumstances in which the community concludes that they are man and wife there is a
reputable presumption by the law that they are man and wife.
Such a presumption will affect the type of results that a Court will arrive at in case there is
a problem in the parties relationship on matters of divorce, custody and maintenance of
spouse and children or even division of matrimonial property.
Cross maintains that presumptions are of two types and this view is shared with Glanville
Williams, Learning the Law 1982 p 108). Presumptions are either negative or restrictive

87

and they form a background of legal principles which an Act or piece of legislation
under consideration should be interpreted and that such interpretation must conform
with what Parliament intended.
For both Rupert Cross and Glanville Williams Courts will enforce the Will of Parliament
when the law is express and clear because no law is enacted in Vacuum.
Presumptions
Embody traditional notions of justice. It is expected that bodies to which the law
confers discretionary powers will exercise them reasonably and will act in
accordance with the principles of natural justice. In case this is not done Courts
can invoke presumptions to resque those under the wroth of unjust bodies or
tribunals:
Silverster Cyprian & Two others V The University of Dar es Salaam, Misc. Civil
Appeal No. 68 of 1994 (Unreported) Kyando, J.
There are presumptions about geographical operation of the law in question
In the Union between Tanzania
(presumption against extra-territoriality).
(Mainland) and Zanzibar there are laws, which apply to both territories, and such
laws as they are restricted to mainland or Zanzibar.
There are presumptions which enshrine Capitalist values (liberal societal values):
vested rights, rights to compensation on expropriation, non-interference with
contracts and non interference with personal liberty.
Judges are precluded from applying presumptions counter political intentions.
This was not without difficulties in Tanzania in the period between 1967 and 1984
when Courts were dealing with pieces of legislation intended to effect the
requirements of Ujamaa and Self Reliance policies.
The main areas of contention were legislation relating to the Minimum Sentences
Act, the Prevention of Corruption Act, The Fauna Conservation Act, the
Exchange Control Laws, Land Laws, and the Economic and Organised Crimes
Law.
No wonder when you read cases from the above areas of the law you will notice
judges resentment of being under political will or pressure [Read S.K. Huber,
Statutory Interpretation and Judicial Discretion in Mukoyogo, M.C., Legal
Method: Cases and Materials] and Appendix VIII and IX in C.S. Binamungu & M.C
Mukoyogo, Studying Law SkillsMzumbe Book Project 2005
In recent years Courts have stood up as a bulwark of the Bill of Rights and here we also
notice Courts coming up to control the legislature [Ndyanabos case Civil Appeal No 64
of 2001 [CA unreported]
According to Glanville Williams 1982 p 111:
The modern movement for the legislature recognition of human rights is in fact
a movement for the increased control of the legislature by the judiciary, because
human rights that are claimed are concluded in such broad terms, and involves
much balancing of one consideration with another, and they inevitably call for
much judicial interpretation.
Glanville Williams was making reference to the European Convention of Human Rights
which has been made part of the English Law since it was ratified by Britain and
therefore binding as a matter of International Law [See Terence Ingam, The English Legal
Process 8th Edn Blackstone Press Ltd 2000 pp 290-295]
There is a presumption that Acts of Parliament are not intended to derogate from the
requirements of International Law.
This line of argument, allows the Courts to use conventions as a means of restricting the
operation of a statute. In Tanzania such a development was ushered in by the formal

88

enactment of the Bill of Rights in to the Constitution of the United Republic of Tanzania
and the Constitution of Zanzibar in 1984(?) and since then Courts have taken a lead in
interpreting laws depriving people of their rights or liberty as being unconstitutional.
The Attoracy General V Rev. Christopher Mtikila, Civil Appeal No 3 of 1995 (CAUnreported).
Courts and Presumptions:
Presumption against unclear changes in the law:
According to Cross, this presumption dates back to the days when the greater
portion of English law was Common Law and Statute Law, was for the most part,
minor amendments to the law.
Now it is possible to assert that it is presumed that a statute alters the Common
Law as little as possible. Such a presumption does not fit in cases where one
considers matters relating to social welfare laws, which have been in the area of
the Common Law.
The presumption is adopted to remove ambiguities. In the Words of Lord Reid in
Black-Clawson International Ltd V Paplerwerke Waldhof Aschaffemburg AG,
[1975] ac 591
at 614:
There is a presumption which can be stated in the absence of any clear
indication to the Contrary Parliament can be presumed not to have
altered the Common Law further than was necessary to remedy the
Mischief of course it may and quite often does go further. But the
principle is that if the enactment is ambiguous, that meaning which
relates to the scope of the Act to be the Mischief should be taken rather
than a different or wider meaning which the contemporary situation did
not call for.
In Tanzania this does feature in Criminal Law cases where interpretation of Penal Statutes
or the Penal Code is called in question especially in 1970s
Yesaya Gwaseko V R [1970] HCDn. 160
George Walter & Two Others V R, [1977] LRTn5
John Nyamuhanga Bisare V R, [1980] TLR 6 at p 13
Special Application of Presumptions
Presumption against ousting the Jurisdiction of Courts:
Anisiminic Ltd V Foreign Compensation Comm.
[1969] 2 AC 142 or [1969] IALLER 208.
The case concerned a determination made by the Foreign compensation
commission under the Foreign Compensation Act, 1950 of compensation
payable for properly expropriated by the Egyptian Government. The Foreign
Compensation (Egypt) CDC Termination and Regulation of Claims Order, 1962
required the original owner of his property and his success or in title to have been
British nationals on October 31, 1956 and on 28 February, 1959 if they were to
qualify for Compensation. In this case the applicant company (the original
owner) was a British national on the qualifying dates, but its successor in title was
not.
The Commission held that, in these circumstances, the applicants claim must fail.
The applicant contended that the nationality of its successor in title was irrelevant
to its own claim of compensation, and it sought a declaration that the
determination of the commission was erroneous, in law and a nullity.

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Section 4(4) of the Act provided that a determination of the Commission shall
not be called into question in any court of law.
By a majority, the House of Lords held that this provision did not prevent a court
from investigating whether the Commission had acted outside its jurisdiction. The
House of Lords concluded that the Commission had wrongly interpreted the
Order and had thus committed an error of law taking it outside its jurisdiction.
Accordingly, it granted the declaration sought.
Strict Construction of Penal Statutes
The term Penal statutes is used to cover both statutes creating criminal offences and
those providing for the recovery of penalties in Civil proceedings. In either case the
position England is that, to use the words of Lord Reid in Director of Public Prosecution
v Ottwell, [1970] AC 642 at 649:
After full inquiry and consideration, one is left with real doubt the accused or
person from whom the penalty is claimed must be given the benefit of that
doubt. It is not enough that the provision under construction is ambiguous in the
sense that it is incapable of having two meanings.
The same point is found in Lord Eshers judgement in:
Tuck & Sons V Priester, [1887] 19 QBD 629 at 638:
If there is a reasonable interpretation, which will avoid the penalty in any
particular case, we must adopt that construction. If there are two reasonable
constructions we must give the more lenient one. That is the settled rule for the
construction of penal sections.
In Tanzania this is illustrated by the following cases:
Mwimjimadi Ramadhani v R in Binamungu Mukoyogo 2005 Appendix VII
George Walter & Two Others v R, [1977] LRTn 5
John Nyamuhanga Ware v R, [1980] TLR 7 at p 13.
In East Africa (Uganda) it is illustrated by
Opoya v Uganda [1967] EA 366 380
In Kenya:

Crown v Hassan (1924) 10 KLR 4

Other Cases:
Marwa Chacha V R, [1968] HCDn. 357
Ramadhani Maisoli & Two Others v R [1980] TLR 119-125 (HC)
Read: Opoya v Uganda in Mukoyogo, M.C; OLW 104: Legal Method Part Three:
Statutory Interpretation, OUT 1996 pp 96-110.

Presumption against Retrospective operation

Retrospective operation a law passed intended to cover offences committed in
an earlier period.
For example in 1984 The Parliament in Tanzania enacted a piece of legislation
which was intended to cover offences committed in December 1983.

The Act was Penal and did expressly provide that it was to operate retrospectively.
Cases involving such laws in East Africa:
Ibrahims Case [1963] EA 179
Uganda v Nyengenya. [1963] EA 106
Municipality of Mombasa v Nyali [1963] EA
Patel v R [1968] EA 97

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Benbros Motors v Patel, [1967] HCDn. 435

Christopher Mwakabura v R [1992] TLR 380 (CA)
Read: Binamungu & Mukoyogo 2005 pp 174 - 176

Individual Liberty
The strict construction of Penal statutes is closely connected or related to the
presumption in favour of individual liberty especially where custodial sentences
are involved.
As it was stated by McCullough J in RV Hallstrom exp. W (No 2) ( Cross pg 177)
There is a canon of construction that Parliament is presumed not to enact
legislation which interferes with the liberty of the subject without making it
clear that it was the intention.
Cases decided by the Courts in Tanzania relating to the above presumption:
AG v Lesnoi Ndeinai Alias Joseph Saleye Lancer & Two Others [1980] TRL 215-250
(CA)

In the matter of an Application for an Order of Habeans Corpus Ally Lilakwa v

Regional Prison Officer and Regional Police Commander,
Misc. Criminal Case No 29 of 1979 (unreported)

Happy George Washington Maeda v Regional Police Officer, Misc.

Case No 36 of 1979 (Unreported).

Criminal

INTERNAL AIDS TO CONSTRUCTION

Enacting parts of a statute: Interpretation section, saving provision.

Long title, Preamble (if any), short title,
Cross-headings, side or marginal notes and punctuations.
What are the functions of these parts in Statutory Interpretation?
There has been a long debate as to their function in statutory interpretation. Some
literature suggest that these parts of a statute have less value than the rules, canons
and presumptions.
Cross [1987: 122] admitted that in England in 1980 Lord Scarmans Interpretation of
Legislative Bills presented an argument for a formal recognition of these devices in
Statutory Interpretation and his suggestions were accepted [Cross 1987: 122 footnote 10]
The main controversy had always been, whether or not they can be treated as canons
or aids to statutory construction at all.
The reply is that, each of the parts of the document or statute has been given some
weight in that whenever the question of interpretation of a word or phrase or passage
has arisen the judge has had to give them consideration in determining the intention of
parliament.
It is cautioned that, provisos, interpretation sections and savings clauses are subject to
amendments by parliament, the other parts are determined by parliamentary clerks
assisted or directed by the Parliamentary Draftsman.
According to Twining and Miers 1992: 358-359 Frequently the scope or meaning of
a rule is qualified by other rules in the statute.
Such qualifications may extend or limit the rule, specify how a particular rule is to
be implemented, state exceptions, or attach specific meaning to a word or
phrase. Qualifications of the last sort are generally contained in the interpretation

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or definition section, white some of these parts may appear in schedules at the
end of a statute, or promulgated separately as a statutory instruments.
In addition all statutes contain a long title which indicates the object of the
enactment, while other statutes contain higher preambles expressing not only
what the Act is intended to do, but also why.
So there is unanimity on the basic structures of statutes in England. There is no substantive
difference between the above descriptions and what one finds in the enactments or
statutes (Both of the colonial and post colonial period).
In East Africa and Tanzania in particular, such parts of the statutes have played and still
play a very important role when Courts are faced with the problem of interpreting words,
phrases and passages. For example:

Preambles
a)
The Constitution of the United Republic of Tanzania 1977 (as amended)
b)
The Kagera Transport Assets (Acquisition and Regrant) Act, 1984 (No 1 of
1984)
Cases in which Preambles have been used in interpreting statutes:
In Tanzania, The Preamble to the Interim Constitution was referred to in the case of
Adamji V East African Posts and Tele Communications, [1973] LRTn.6 in which Biron J (as
he then was) expressed the view that the Preamble was not part of the Constitution of
Tanzania. He cited the Case of Powell V Kempton Park Reconstruction Co. [1889].
In Tanzania, since Independence, the Preambles have been replaced by the
Memorandum of Objects and Reasons attached to Bills.
Preambles are not a common feature of the final enactments.
Read: Newbold, V.P. in the New Great Insurance Company of India Ltd v Cross and
Another [1966] EA 90

Long and Short Titles:

The Long Title of an Act is found at the beginning and usually contains general
indications of a legislative purpose.
A short title is usually stated in a separate sub-section at the beginning of the
numbering of sections in Tanzania. It is contained in the body of the Act, it is subject
to amendment by Parliament, its purpose is to serve as a brief identifying label, it is
not as helpful as the preamble or long title.
According to Lord Justice Scrutton in Re Boaler, [1951] IKB 21 at 40-41:
I agree that the court should give less importance to the title than the enacting
part, and less to the short title than to the full title, for the short title being a label,
accuracy may be sacrificed to brevity; but I do not understand on what principle
of construction I am not to look at the Words of the Act itself and help me to
understand its scope in order to interprete the words Parliament has used, by the
circumstances in respect of which they were legislating. It is by no means
conclusive. [See also Regina v Secretary of State [2003] UK HL 13 (HL)
In order to understand what Parliament meant, we must look at the words which
Parliament used rather than depending on the short title.
There is no example in East Africa in which a short title has been consulted in interpreting
a statute I know of. But in England there is the case of Ward v Holman, [1964] 2ALL ER
729.

Headings to Groups of Sections within a Statute:

Such headings are not voted upon by Parliament, but they are included in the Bill
and form part of the text which comes before Parliament for consideration. In
East Africa headings of statutes to groups of sections have been considered

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when interpreting words, phrases and passages of statutes. They have to be used
when words in the texts are ambiguous. Cases on this position in Britain:
RV Survey Assessment Cee [1948] IKB 28
Bulmer v IRC [1966] 3 WLR 672.

Marginal Notes:
The view that they are not aids to construction:
Cross 1987: 129 Quoting Lord Reid- the conservative view: Chandler v Director of
Public Prosecutions [1964] AC 736 might be a conclusive authority for the
proposition that side-notes [frequently spoken of as marginal notes] cannot be
used as aids to construction in any circumstances.
They are mere catch words and I have never heard of it being supported in
recent times that an amendment to alter a side-note could be proposed in either
House of Parliament. Side-notes in the original Bills are inserted by the Draftsmen.
Side-notes cannot be said to be enacted in the same sense as the long title or
any part of the body of the Act.

According to Lord Upjohn LJ in Stephens v Cuckfield RDC, [1960] 2QB 373 at 383 stated;
While the marginal notes to a section cannot control the language used in the
section, it is at least permissible to approach a consideration of its general
purpose and the mischief at which it is aimed with the note in mind.
Lord Reids remarks in Director of Public Prosecutions v Sehild Kamp, [1971] AC at p 10:
But it may be more realistic to accept the Act as printed as being a product of
the whole process, and to give due weight to everything found in the printed Act.
Side-notes, therefore, may be useful as an indicator of the purpose of the provision than
a guide to its meaning.
In East Africa the usefulness of side-notes or marginal notes has been treated in an article
by Martin Huber, Use of Marginal Notes in East Africa (1969) 2 Eastern African Law
Review 107. But this question has also been judiciary considered in:
Murthas Case; [1954] EA 190
Visram v Bhatt, [1965] EA 789
Mugo v R, [1966] EA 124
Ramadhan v R [1968] HCDn. 244
Zephania v R. [1967] HCDn. 218
R V Lemke; [1968] HCDn 299
In the Estate of Shimji [1965] EA 789.
In the case of Wellington Thuku Paul Mugo & Others vR [1966] EA 124 Rudd Ag. C.J. (as
he then was) at p 128:
The due to the real intention of the legislature is to be found in the marginal notes
to section 57 of the Evidence Act, 1963 of Kenya which reads Bad Character in
Criminal Cases.
Ordinarily marginal notes will not be taken into account in derogation of the
words of the section. This stems from the old English practice whereby Bills were
engrossed without punctuation on parliament, and as neither the marginal notes
nor the punctuation appeared on the roll they formed no part of the Actmarginal notes and punctuations are not to be taken as part of the statute.
Ordinarily it should not be necessary to have it refer to the marginal notes to
ascertain the meaning of the section of the Act. Ordinarily, therefore, marginal
notes are not to be considered when construing the section of the Act.

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But in Shamji Vistman V Bhatt, [1965] EA 784 at 794 the Court said:
Before oral evidence which is clearly relevant and which does not in any way
contradict or vary the lease can be said to be admissible, the case must fall
within section 99, that is, the language of the lease must be on the fact of it
ambiguous or defective.
To some extent, of course, what is ambiguous or defective must always be a
question of degree. I consider that in determining the extent of that degree I can
have regard to the use of the word patentin the marginal note to the section.
While in Britain the Courts will not normally have regard to marginal notes for
assistance in construing the terms of a section, this is due to the historical reasons
that prior to 1850 marginal notes did not form part of the Bill as presented to
Parliament and they were only added after the legislation had been passed. It
could not, therefore, at least as regards the earlier legislation, be said that the
marginal note played any part in disclosing the intention of the legislature.
The position in Kenya is very different. Marginal notes always form part of the Bill
as presented to Parliament for enactment. Indeed, there are a number of
enactments, including the Acts amending the present Constitution of Kenya
(then) in which marginal notes have been subject of amendment by legislation.
Further, a Constitutional document (the Royal Instructions) prior to Independence
required that marginal notes should appear on each section of a Bill presented to
the legislature. Look at S. 99 as a whole, including the word patent in the
marginal note, I am satisfied that this section only precludes the admission of oral
evidence when the ambiguity or defect is manifest and evident to general
knowledge without regard being had to any other factor.
Strictly speaking, it seems courts will normally disregard marginal notes while construing
provisions but examples above show a tendency to resort to marginal notes.

Punctuation
At it might have been noted in the foregoing dissension, judges have not only said
that side-notes (marginal notes) should not be considered, but the same view has
been extended to punctuations. Notwithstanding those cases where these two have
been considered, the strong view is that since they are not part of the enactment
they should not be considered.
This view is not shared by all judges and in East Africa there is a good example that
punctuations are used in construing provisions of statutes.
According to Cross 1987: 130-131:
Lord Reid suggests that, punctuations forms part of the statute and even if the
reader has to be wary of Older Acts, in which punctuation was inserted after the
enactment by the printer, the punctuation of modern statutes must be given the
significance it has in the ordinary use of English language.
Lord Lowry in Hunlon v Law Society, [1981] AC 124:
I consider that not to take account of punctuation disregards the reality that
literate people, such as Parliament or any draftsman, punctuate what they write,
if not identically, at least in accordance with grammatical principles. Why should
not other literate people such as judges, look at the punctuation in order to
interprete the meaning of the legislation as accepted by Parliament?
Thomton, in Legislative Drafting, 3rd Edn. pp 33-34 [Cross 1987: 131 fn. 12] says:
It is a curious paradox that judges whose entire reading is punctuated, should, in
a carefully punctuated judgements, consider themselves obliged to proclaim
that the punctuation in carefully punctuated statutes is not part of the law.
The modern new as to punctuation and interpretation of statutes is that punctuations
may be used in getting proper interpretation of a statute. In East Africa the modern view
is found in New Great Insurance Company of India Ltd V Lilian Cross & An [1966] EA 90
[Opinions of New] bold VP and Sir Clement De Lestrang J.A. at pp 96 & 107]

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I accept that the rule of construction in Britain in relation to Old statutes was that
the Courts did not have regard to punctuation in interpreting a section. The
reason was that until about 1850 the punctuation of sections was inserted after
the legislation had been enacted, with the result that the punctuation had
received no legislative authority. Whether the rule of construction would apply in
Britain in relation to modern statutes is open to doubt. However, whatever may
be the position in Britain, I have no doubt whatsoever that in East Africa the
Courts should in the construction of a section, have regard to any other part of it.
The reason for this is that the section as enacted by the legislature contains the
punctuation. Indeed, there are a multitude of examples of amendments to
sections containing amendments to punctuations. In any event I cannot see how
it is possible to attach the words in the event of some specified thing being
done--- after the happening giving rise to a claim to the words no liability shall
arise for the simple reason that liability would have already arisen before the
event, therefore, those words clearly attach only to the words and liability so
shall cease. The logical construction is merely reinforced by the positioning of a
comma in the Kenya Act.

Schedules to Acts:
It has been argued that schedules to Acts and other documents form part and
parcel of the said Act or document if incorporated by reference in the same Act
or document. For example, The Security of Employment Act, section 19 creates
disciplinary offences at work and penalties can be found in the second schedule
to the Act (tabulating offences and penalties). Other important schedules to
Acts include those in the Economic and Organized Crimes Act, 1984 (Act 13 of
1984), The Criminal Procedure Act, 1985 etc.
The importance of schedules to Acts was considered by Biron J (as he then was)
in the Case of Adamji v East Africa Posts and Telecommunications, [1973] LRTn 6
at pp 16- 17: in which it was implicitly decided, that the TANU Constitution, which
was inserted into the Interim Constitution of Tanzania, 1965 as a schedule (Third
Schedule, which was not in the Constitution of the United Republic of Tanzania,
1977) as not being part of the Constitution and therefore not part of the law in
Tanzania.
Nevertheless, the TANU Constitution was in Thabit Ngaka v Regional Fisheries
Office, [1973] LRTn 24 was used to reconcile the provisions of the Government
Suits Ordinance and the Employment Ordinance.
In Lalata Msangalawe v Henry Mwania, [1979] LRTn 3 at pp 24-26 Mwesiumo J (as
he then was) stated inter alia:
Compensation for ones labour finds recognition even in the Preamble to
the Interim Constitution of the United Republic of Tanzania and in TANU
Creed.
(The TANU Creed was appended to the Interim Constitution). The relevant
portion of the Preamble stated: Whereas freedom, justice, fraternity and
concord are founded upon the recognition of the equality of all men and
of their inherent dignity, and upon the recognition of the rights of all men
to the protection of life, liberty and property --- to receive a just return for
their labours --On the basis of these principles the judge allowed an appeal in favour of compensation
for ones labour.
EXTERNAL AIDS TO CONSTRUCTION
1.

Introduction

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The general rule under Old English Law:

In interpreting statutes, reference to any matters extrinsic to the written
words of statutes as written was for bidden.
This meant that when courts were interpreting statutes were precluded from
consulting preparatory materials like parliamentary debates (Hansard Reports);
White Papers, Commission Reports, Speeches of Ministers when introducing Bills to
Parliament etc.
In the United States of America and Continental Europe, preparatory materials
(travaUx preparatoires) or legislative materials are referred to.
Escoinage Properties Ltd v Inland Revenue Commissioner, [1958] AC 549 at 566
per Lord Denning
However, it would indeed be a difficult task for courts to ascertain the mischief or
policy behind an enactment without referring to preparatory materials. It
amounts to asking the interpreter to assume a policy direction, which those who
enacted the law ever intended or meant.
A close examination of case law development indicates a trend towards
consulting background materials to the enactment or piece of legislation whose
words or phrases are difficult to construe in the course of settling disputes or
litigation.
2.

General Historical Background

Reading through cases you will learn that Courts have usually allowed Counsels
to state what they understood to be the general background of a given piece of
legislation. In most cases Counsels cite from legal textbooks by lawyers or nonlawyers, which deal with surrounding circumstances of a given piece of
legislation. Cross, Statutory Interpretation 2nd Edn 1987 pp 150-152.
In the case of Joseph Sinde Warioba v Stephen Masatu Wasera, [1997] TLR 272
(CA) the Court of Appeal allowed the Counsel for the appellant to state what he
understood to be the general background to the Election Act, 1980.

3.

Government Publication- Among government publications that may be referred

to as external aids to interpretation of statutes include:
Committee Reports i.e. The Presidential Committee Report on Land Matters- the
so-called Shivji Commission Report or The Nyalali Report on Multipartison,
departmental Committee reports i.e The Law Commission of Tanzania Reports.
Admissibility of Official Reports that precede legislation
Bill Memorandum see Escoinage Properties Ltd v IRC [1958] AC 549
White Papers
In Kalikiro of Buganda v AG [1960] which was confirmed in The AG of Uganda
v Kabakas Government [1965] EA 393 a White Paper which contained
recommendations for a Constitutional Conference was held inadmissible as
an aid to the construction of the Buganda Agreement of 1955.
In Bi Hawa Mohamed v Ali Sefu the Spry Commission Report or the Kenya
Commission Report on Marriage Matters, the Government White Paper No 1
of 1969 were used to construe the provisions of the Law of Marriage Act 1971.

4.

Parliamentary Debates- The rule as to the admissibility of Parliamentary debates

is clear. According to Michael Zender, it was not until recently that courts
generally accepted that for the purpose of interpreting statutory provisions it was
not permitted to look at parliamentary debates. This rule was developed in Britain
since 1818 and has been abolished in 1980 through a challenge by the Master of
the Rolls, Lord Denning in Davis v Johnson. [1979] AC 264 (C.A) The case dealt
with a provision on Domestic Violence and Matrimonial Proceedings Act, 1976.

96

The question was whether or not the Act provided any protection for cohabitees
as well as wives. Lord Denning MR at pp 276-277 stated inter alia:
Some may say, and indeed have said that the judges should not pay
attention to what is said in Parliament. They should grope about in the
dark for the meaning of an Act without switching on the light. I do not
accede to this view. In some cases Parliament is assured in the most
explicit terms what the effects of the statute will be. It is on that footing
that members assent to the clause being agreed to. It is on that
understanding that an amendment is not passed. In such cases I think the
court should be able to look at the proceedings.
The House of Lords did not approve of Lord Denning MRs approach. All the five
judges or Law Lords said expressly that he was wrong. According to Lord Dilhorne
[1979] AC 317 at 337:
There is one other matter to which I must refer. It is a well and long
established rule that Counsel cannot refer to Hansard as an aid to the
construction of a statute. What is said by a Minister or by a member
sponsoring a Bill is not a legitimate aid to interpretation of an Act.

The Lord Justice quoted a passage from Lord Reid in Beswick v Beswick [1968] AC
58 at 72-74 and went on to say:
If it was permissible to refer to Hansard, in every case concerning the
construction of a statute counsel might regard it necessary to search
through the Hansards of all proceedings in each House to see if in the
course of them anything relevant to the construction had been said.
If it was thought that a particular Hansard had anything relevant in it and
the attention of the Court was drawn to it, the court might also think it
desirable to look at the other Hansards. Results might be that the
attention was devoted to the interpretation of ministerial and other
statements in Parliament at the expense of consideration of the language
in which Parliament had thought to express its intention.
Lord Scarman at pp 349-350 stated:
There are two good reasons why the Courts should refuse to regard what
is said in Parliament or by Ministers as aids to the interpretation of a
statute. First, such material is an unreliable guide to the meaning of what
is enacted. It promotes confusion, not clarity. The cut and thrust of
debate and the pressures of the executive responsibility, essential features
of open and responsible government, are not always conducive to a
clear and unbiased explanation of the meaning of statutory language.
As the volume of Parliamentary and ministerial utterances can confuse by
its very size. Secondly, counsels are not permitted to refer to Hansard in
argument. So long as this rule is maintained by Parliament (it is not the
creation of the judges), it must be wrong for the judge to make any
judicial use of proceedings in Parliament for the purpose of interpreting
statutes.
But despite the above views, the opinion expressed in Dens v Johnson were
confirmed by the House of Lords in Hadmor v Hamilton, [1982] l ALL ER 1042,
5.

International Conventions and Treaties

There is a general tendency for courts to make use of International
Conventions and Treaties in interpreting domestic law (Municipal law). This is
so because conventions and treaties have great influence on domestic or
Municipal law of a country which because being a party to such conventions
or treaties. Often than not a treaty may be consulted to clarify the meaning

97

of a statute and this happened in Quazi v Quazi [1980] AC 744 AT 808 where
Lord Diploch stated:
Where Parliament passes an Act amending the domestic law of the
United Kingdom in order to enable his country to ratify an international treaty
and 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 to
construction of any provision of the Act that are ambiguous or vague to have
recourse to the terms of the treaty in order to see what the obligation in
International law that Parliament intended should be enabled to assume. The
ambiguity or obscurity is to be resolved infavour of that meaning that is
consistent with the provisions of the treaty.
In Tanzania (Mainland) the approach of using international documents in the process of
interpreting national or domestic law is very recent. It was inaugurated by the
enactment into The Constitution of the United Republic of Tanzania of a Bill of Rights in
1984 (Act 15 of 1984). Since then courts have attempted to interprete Tanzanias laws in
the light of International documents.
In Bernardo Ephraim v Holaria Pastory & Gervazi Kaizilege, (PC) Civil Appeal No 70
of 1989 (HC) (unreported), Justice Mwalusanya (as he then was) dealing with rule 20 of
the Local Customery Law (Declaration) Order, 1963 (GN 436 OF 1963) which bars females
from inheriting and disposing of clan land, made the following observations:
But the customery law in question has not changed up to this day. The women
are still suffering at the lands of selfish clan members. What is more is that since
the Bill of Rights was incorporated in our 1977 Constitution, vide Act No 15 of 1984
by Art 13(4) discrimination against women has been prohibited.
But some say that, that is a dead letter. And the Universal Declaration of Human
Rights (1948) which is part of our Constitution by virtue of Art. 9(9) (f) prohibits
discrimination based on sex as per Art. 7. Moreover, Tanzania has ratified the
Convention on the Elimination of All Forms of Discrimination Against Women. That
is not all. Tanzania has also ratified the African Charter on Human and Peoples
Rights which Art. 18(3) prohibits discrimination based on sex. The principles
enumerated in the above named documents are a standard below which any
civilized nation will be ashamed to fall.
It is clear from what I have discussed that the customary law under discussion flies
in the face of our Bill of Rights as well as the international conventions to which
we are signatories.
In the case of Director of Public Prosecutions v Danciple, Criminal Appeal No 28 of 1990
CCA-Unreported) the Chief Justice at pp 11 12 of the judgement stated Inter alia.
In our situation, both fundamental and basic rights and duties are dealt with in
one single part of the Constitution that is Part III. This location of basic rights and
duties in one single part of the Constitution of the United Republic of Tanzania is
symbolic and significant. It is a symbolism and an expression of a Constitutionally
recognized coexiskuce of rights and duties of the individual and society. This view
is supported by the principles underlying the African Charter on Human and
Peoples Rights which was adopted by the Organization of African Unity in 1981
and came into force on 21 October 1986 after the necessary ratifications.
Tanzania signed the Charter on 31 May, 1982 and ratified it on 18 February, 1984.
Since our Bill of Rights and Duties was introduced into the Constitution under the
Fifth Amendment in February 1985, that is slightly over three years after Tanzania
signed the charter, and about a year after ratification account must be taken of
the Charter in interpreting our Bill of Rights and Duties.
From the foregoing it is clear that courts will avail themselves conventions and treaties in
interpreting the import of a statute in question.

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Whether the travaux preparatorres of a treaty are also admissible in interpreting statutes
is laid in the Vienna convention on the Law of Treaties Art 32.
There is no case authority on the matter in Tanzania. The cases cited are from Britain or
Other European countries.
In Fothergill v Monarch Airlines Ltd [1981]
AC 251 or [1980] 2ALL ER 696 or [1979] 3 ALLER 445
Read Mukoyogo Part III pp 163-167.
LOGICAL AIDS TO INTERPRETATION

Cross, Statutory Interpretation, 2nd Edn 1987 pp 132- 139

EA Driedger, A New Approach to Statutory Interpretation (1951) 29 Canadian Bar
Review 838 at 841

Introduction
By following the Plain Meaning Rule there are three grammatical rules of
Construction of Statutes:
a)
Noscitur a Sociis, a thing is known by its associates
b)
Ejusdem (Eusdem) generis rule of the same genus or kind); and
c)
Expressio unius est exclussio altenius
(the mention of one thing is the exclusion of the other).
The above are neither legal principles nor legal rules. They are guides to the intention of
the speaker or writer. They refer to the way people speak or write in certain contexts.
Noscitn a Sociis Reference to neighbouring words and phrases. The rule states that:
The meaning of a doubtful word may be ascertained by reference to meaning of
words associated with it.
Cf:
Halsburys Laws of England, Vol. 36 at p 395 para 494.
A word is known by the company it keeps and a statute should be construed as a
whole. For the purposes of construction, the purpose or the context of the word
to be construed does include not only the particular section or paragraph in
which the words or phrases appear but the whole statute in which it appears.
The rule is intended to avoid inconsistencies and repugnancy. This is so because
the words of a statute are presumed to be used consistently throughout a statute
that is they bear the same meaning.
Legislature cannot contradict itself. In the case of Marwa v R, [1967] HCD no 357
the judge avoided giving a contradictory interpretation to the Minimum
Sentences Act with another Act.
Noscitur a Sociis means that a thing is known by its associates. It is easy to
confuse it with eusdem generis rule. While eusdem generis is an example of a
broader linguistic rule or practice to which reference is made by Noscitur a Sociis
(a Latin tag), words even if they are not general like any other preceded by
specific words, are liable to be affected by other words with which they are
associated. Stamp J in Bunrne v Norwich Crematorium Ltd, [1967]2 ALLER 576 at
578:
English words derive their colour from those which surround them.
Sentences are not a mere collection of words to be torn by reference to
define accurately by reference to the dictionary or decided cases, and
then put back, into sentences the meaning which you assign them as
separate words---.
Examples for the proposition that the meaning of a word may be coloured by the
context of words either used in the same sentence or within the Act as a whole
are:
In the case of Westminster City Council v Ray Allan (Manshops) Ltd, [1982] l ALL ER
771

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Section 14(1) of The Trade Description Act, 1968 was considered. That section
created a penalty for making a false statement as to the nature of any services,
accommodation or facilities provided.
A Company announced a Closing down sale at one of its shops, but continued
to trade normally and did not intend to close the shop.
The Divisional Court held that the word facilities was limited by the preceeding
words to things made available for use by customers and so did not include the
broader notion of shopping facilities.
In Bromley London Borough Council V Greater London Council, [1983] IAC at 841:
Section 1 (l) of The Transport (London) Act, 1969 required greater London Council
to develop policies and encourage measures for provision of integrated efficient
and economic transport facilities and services for greater London.
When discussing the sense to be given to the word economic Lord Scarman
said:
As a matter of English usage, the term economic---has several
meanings. They include both that for which the appellants contend and
that for which Bromley contends. It is a very useful word, Chameleon like,
taking its colour from its surroundings.

Eusdem or Ejusdem Generis rule (The Lord Tenterdens Rule)

When 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 as
those specified.
The ejusden generis rule otherwise known as Lord Tenterdens rule owes its essence to its
propounder Lord Tenterden in Kitchen v Shaw 7 L.J. M.C. 16 where hesitated as follows:
Where a statute, or other document enumerates several classes of persons or
thing, and immediately following the clause embraces Other persons or things,
the word Other such like so that the persons or things therein comprised may be
read as ejusdem geris with, and not for a quality superior to, or different from,
those specifically enumerated.
For example a statute may talk about tent, hurt, house, mansion, villa, bungalow,
building and any other structure whatsoever.
The phrase any other structure whatsoever will be confined to the words specified in
the section.
However, great care should be exercised in the use of this rule. It must not defeat the
intention of the legislature, that is, it must be applied subject to the primary or general
(Cardinal) principle of statutory interpretation that is, statutes should be construed in
accordance with the intention of the legislature.
Conditions 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 any other structure should constitute a category, class
or genius of those particularly mentioned.
As such a superior thing will not be held to be of the same category, class or genus as
those of an inferior thing. For example Dar es Salaam, Nairobi, Maputo, Kampala
and any other town-means any other town of the same status as those specifically
mentioned.
(c)
Where the general words precede the particular words, the rule will be
disciplined. The rule limits the generality to the particular especially in penal
statutes- allowing the general to stretch too far may mean that anybody can
be charged with almost any Crime (arbitrariness).
Lord Tenterdens rule as regards statutes was explained by the Court in a Kenyan
case RVWallis 5 T.R. 379 where it was stated:

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If the legislature had meant the general words to be applied without restriction it
would have used only one compendius word:
However, this statement is qualified by the following statement by Lord Esher, M.R. in
Anderson v Anderson [1855] l QB 749 thus:
Yet the other hand though it is very likely that in former days the doctrine was
applied strictly, there are cases which show that the modern tendency is to reject
restricted construction, and very frequently the word receives its wide and large
interpretation of every other sort or kind.
In the case of Canadian National Rlwys v Canada Steamship Linet Ltd [1945] AC 204
Lord Mc Millan disapplied the rule because the general words preceeded the particular
enumeration of instances. His Lordship stated at p 211:
It is not a case to which the ejusdem generis rule applies, for the general words
do not follow an enumeration of particular instances, but precede the particular
instances.
The particular provision which was being considered in this case was S.35(13) of the
Transport Act, 1930, which provides as follows:
any application under this section, the Board shall have regard to all
considerations which appear to it to be relevant followed by specific direction to
The Board to have regard on specified matters.
In AG v Abdullah & Others, [1960] EA 672- a case involving the interpretation of S.91B of
the Kenyan Penal Code, three accused persons were charged with a count of besetting
contrary to section 91B, that they unlawfully besetted the Tudor Road, Mombasa, with a
view to prevent one Donye s/0 Mchoki from doing an act-riding a bicycle- which the said
Donye was entitled to do. The Senior Magistrate of Mombasa acquitted all of them on
the account of a defective charge sheet. The AG on behalf of the Crown appealed by
way of a case stated.
Section 91B provided as follows:
Any person who watches or besets any premises, or the house or other place
where 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 any
person from doing, or compelling him to do; any act which a person has a legal
right to do or abstain from doing, is guilty of an offence and is liable to
imprisonment for a term not exceeding six months or to a fine not exceeding five
thousand shillings or to both such imprisonment or fine.
The Attorney General submitted that:
(1) was the learned trial magistrate correct in law in acquitting the accused on the
first Count
(2) was the learned magistrate correct in law in holding that the words or other
place in S 91B of the Penal Code must be construed eusdem (ejusdem) generis
that is, of the same kind with words any premises or the house in that section.
The respondent contended that:
The words any other place came within the ejusdem generis rule, that is, since
they stopped him on a highway they had not committed an offence.
The Court relied on the strong persuasive authority of Charmock v Court [1899]2Ch.D 35
a case which was decided on the meaning of section 7 of the Conspiracy and
Protection of Property Act, 1875 which under clause 4 thereof reads:
Watches or besets the house or other place where such other person resides, or
works, or carries on business, or happens to be or the approach to such house or
place!
In that case it was held that the words in the enactment covered a landing stage and
Stirling J stated thus:
The words place where he happens to be seen to me to embrace any place
where the workman is found however casually;
In AG v Abdullahs Case MacDuff concluded:

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Moreover, if we look, as we consider we must, to what we believe to have been

the intention of the legislature in enacting S91B of the Penal Code, than we think
this also provides a strong reason for not applying the ejusdem generis doctrine.
Quite clearly the intention of the legislature in S. 91B of the Penal Code was to
protect the unfettered liberty of the individual in going about his lawful occasions
without let or hindrance, and for that purpose to protect him in whatever place
he happens to be? We cannot conceive that the legislature could possibly have
intended to protect the individual from being beset in his residence or
workplace whilst leaving him open to wrongdoers to beset him on, for example, a
public highway on his way to or from his home or workplace. We cannot see any
reason to conclude that there was even any intention, especially in view of the
comprehensive nature of the words happens to be restrict the other place to
a place of the genus of a house.
The proceedings were therefore returned to the magistrate with an order to
substitute a conviction in a place of acquittal against all the respondents on the
first count.

In Hassan s/0 Mohamed v R [1968] HCDno 457 the ejusdem generis rule was applied to
restrict a statute giving power to the governor to encroach on private property rights.
The accused in this case gave a firearm to another person to deliver it for repairs. He
pleaded guilty to a charge of unlawfully transferring a firearm contrary to sections 15 and
31 of the Arms and Ammunition Ordinance, Cap. 223. Before sentence was passed, the
accused stated in mitigation that: The firearm was defective. It was being sent for
repair.
Section 15 of the Ordinance makes it an offence to:
Sell or transfer or buy or accept any arms and ammunitions either by way of gift
or for any consideration except in accordance with a permit signed by an
authorized officer.
It was held that:
(i)
For the transfer of a firearm to constitute an offence contrary to section 15,
such transfer must be ejusdem generis that is, of similar type, kind or nature
with a sale, purchase or gift.
(ii)
The accused answer to the charge, to the effect that he had handed over his
firearm with the object of having it sent for repair, cannot be regarded as an
unequivocal plea of guilty to a charge.
Conviction quashed.
In the case of Charles s/0 Mumba v R [1969] HCD n.221 the accused was
convicted of possessing property suspected to have been stolen contrary to
section 312 of the Penal Code, Cap 16 (T). The goods in question were found in
an unfinished building, but it was not known how they had come to that place.
The circumstances of the accuseds arrest were not detailed by the High Court
but he was not detained at first by a police officer.
It was held that the very technical nature of section 312, the accused must first
be detained by a police officer exercising his power under section 24 of the
Criminal Procedure Code at the time of such conveying the thing or things
suspected of having been stolen.
Possession of such goods in a building would be punishable under this section
only if it occurred during the course of the journey citing the case of Regina v
Msengi s/0 Abddallah, I TLR 107.
Obiter:
The section should be reviewed to remove its strict technicalities for its use is too
limited to be of such use and provide ample room for ostensible offenders to

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escape from the arms of the law, making the law entirely unintelligible to the
unsophisticated (people) public.
Expressio unius est exclussio alterius
The expression of one thing excludes the other. This is used hand in hand with the maxim
expressium facit cessare tacitum that is, expression of one fact ends with that fact.
Where a statute expressly refers to one thing, it excludes any other things, which
refer to the same issue:
For example the word Building when mentioned first in a statute and at a later stage
the word
Land is mentioned, it will normally refer to building, for the word Land includes
buildings as well.
The genus building has already been excluded from the class of land
therefore.
In Dimbley & Sons Ltd v National Union of Journalists [1984] l ALL ER 751
Section 17(3) of the Employment Act 1980 was considered. The section conferred
immunity from suit for actions taken during a trade dispute against a party to the
dispute.
Section 17(4) granted an immunity from suits for actions (not those including those in the
case) taken against an associated employer, defined as meaning an employing
company controlled by the employer in the dispute or by a third person also having
control of that employer.
A newspaper publisher sought an injunction to prevent the union from instructing its
members not to produce copy to be printed by TBF Printers Ltd. The union being in
dispute with TB Forman Ltd, having the same shareholders.
The House of Lords refused to hold that the action was covered by the immunity under
section 17(3), since TBF Printers was a separate legal person from the party to the
dispute.
Cases on Ejusdem Generis Rule
Gadi Kidasa vR, [1982] TLR 105 (HC)
DPP V Bernard Njavike, [1988] TLR 18 (CA)
Regina v Secretary of State for Health (Respondent) ex parte
Quintavalle (on behalf of Pro-Life Alliance) (Appellant) [2003] UKHL13 (HL)

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APPENDIX I

RLW 123:

Legal Method II

HOUSE OF LORDS

SESSION 2002-03
[2003] UKHL 13
On appeal from: [2002] EWCA Civ 29

OPINIONS
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Regina v. Secretary of State for Health (Respondent) ex parte Quintavalle (on behalf of
Pro-Life Alliance) (Appellant)

ON
THURSDAY 13 MARCH 2003

The Appellate Committee comprised:

Lord Bingham of Cornhill
Lord Steyn
Lord Hoffmann
Lord Millett

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Lord Scott of Foscote

HOUSE OF LORDS
OPININONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Regina v. Secretary of State for Health (Respondent) ex parte Quintavalle (on behalf of
Pro-Life Alliance) (Appellant)
[2003] UKHL 13

LORD BINGHAM OF CORNHILL

My Lords,
1.

The issues in this appeal are whether live human embryos created by cell
nuclear replacement (CNR) fall outside the regulatory scope of the Human
Fertilisation and Embryology Act 1990 and whether licensing the creation of
such embryos is prohibited by section 3(3)(d) of that Act. Crane J at first
instance held that such creation fell outside the scope of the Act and was not
prohibited by section 3(3)(d): [2001] 4 All ER 1013; [2001] EWHC Admin 918.
The Court of Appeal (Lord Phillips of Worth Matravers MR, Thorpe and Buxton
LJJ) agreed with the judge on the second point but reversed his ruling on the
first: [2002] QB 628; [2002] EWCA Civ 29. Both points were re-argued before
the House.

2.

This case is not concerned with embryos created in the ordinary way as a
result of sexual intercourse. Nor is it directly concerned with the creation of
live human embryos in vitro where the female egg is fertilized by the
introduction of male sperm outside the body. CNR, a very recent scientific
technique, involves neither of those things. In the Court of Appeal and in the
House the parties were content to adopt the clear and succinct explanation
given by the judge of what CNR means and involves ([2001] 4 All ER 1013,
1016):
13. In the ovary the egg is a diploid gem (or reproductive) cell. It is
described as diploid because its nucleus contains a full set of 46
chromosomes. By the process of meiotic division the nucleus divides into
two parts.
Only one of these, a pronucleus containing only 23
chromosomes (described as haploid), plays and further part in the
process. Fertilisation begins when the male germ cell, the sperm, whose
pronucleus contains 23 chromosomes, meets the haploid female germ
cell and is a continuous process taking up to 24 hours. As part of the
process the male and female pronuclei fuse to form one nucleus with a
full complement of 46 chromosomes, a process known as syngamy. The
one-cell structure that exists following syngamy is the zygote. After several

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hours the cell divides to create a two-cell zygote. At this stage it is

generally referred to as an embryo. At about 15 days after fertilization a
heaping-up of cells occurs which is described as the primitive streak. 14.
Fertilisation may of course take place in the normal way or in vitro. 15.
CNR is a process by which the nucleus, which is diploid, from one cell is
transplanted into an unfertilized egg, from which the nucleus has been
removed.
The [replacement] nucleus is derived from either an
embroyonic or a foetal or an adult cell. The cell is then treated to
encourage it to grow and divide, forming first a two-cell is then treated to
encourage it to grow and divide, forming first a two-cell structure and
then developing in a similar way to an ordinary embryo. 16. CNR is a form
of cloning. Clones are organisms that are genetically identical to each
other. When CNR is used, if the embryo develops into a live individual,
that individual is genetically identical to the nucleus transplanted into the
egg. There are other methods of cloning, for example, embryo splitting,
which may occur naturally or be encouraged. Identical twins are the
result of embryo splitting. 17. The famous Dolly the sheep was produced
by CNR in some other mammals. It has not yet been attempted in
humans.
18. CNR of the kind under consideration does notinvolve fertilization.
The Act
3.

The 1990 Act was passed to make provision in connection with human
embryos and any subsequent development of such embryos; to prohibit
certain practices in connection with embryos and gametes; to establish a
Human Fertilisation and Embryology Authority, and for other purposes. The
sections at the heart of this appeal are sections 1 and 3, which I should quote
in full:
Principal terms used
1. (1) In this Act, except where otherwise stated(a) embryo means a live human embryo where fertilization is
complete,
and
(b) references to an embryo include an egg in the process of
fertilization,
and, for this purpose, fertilization is not complete until the appearance of
a two cell zygote.
(2) This Act, so far as it governs bringing about the creation of an embryo,
applies only to bringing about the creation of an embryo outside the
human body; and in this Act(a) references to embryos the creation of which was brought
about in vitro (in their application to those where fertilization is
complete) are to those where fertilization began outside the
human body whether or not it was completed there, and
(b) references to embryos taken from a woman do not include
embryos whose creation was brought about in vitro.
(3) This Act, so far as it governs the keeping or use of an embryo, applies
only to keeping or using an embryo outside the human body.
(4) References in this Act to gametes, eggs or sperm, except where
otherwise stated, are to live human gametes, eggs or sperm but

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references below in this Act to gametes or eggs do not include eggs in

the process of fertilization.

3.(1) No person shall(a) bring about the creation of an embryo, or

(b) keep or use an embryo, except in pursuance of a licence.
(2) No person shall place in a woman(a) a live embryo other than a human embryo, or
(b) any live gametes other than human gametes.
(3) A licence cannot authorize(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 subsequent
development of an embryo.
(4) For the purposes of subsection (3)(a) above, the primitive streak is to
be taken to have appeared in an embryo not later than the end of the
period of 14 days beginning with the day when the gametes are mixed,
not counting any time during which the embryo is stored.
4.

The Act imposes three levels of control. The highest is that contained in the
Act itself. As is apparent, for example from section 3(2) and (3), the Act
prohibits certain activities absolutely, a prohibition fortified by a potential
penalty of up to ten years imprisonment (section 41(1). The next level of
control is provided by the Secretary of State, who is empowered to make
regulations for certain purposes subject (so far as relevant here) to an
affirmative resolution of both Houses of Parliament (section 45(1), (4).
Pursuant to section 3(3)(c) the Secretary of State may make regulations
prohibiting the keeping or use of an embryo in specified circumstances. The
third level of control is that exercised by the Authority. Section 3(1) prohibits
the creation, keeping or use of an embryo except in pursuance of a licence,
and the Act contains very detailed provisions governing the grant, revocation
and suspension of licences and the conditions to which they may be subject:
see, among other references, sections 11-22 of and Schedule 2 to the Act. A
power is also conferred on the Authority to give binding directions: sections
23-24.

5.

The first argument of the Alliance is squarely based on the wording of section
1(1)(a) of the Act, fortified by that of subsection (1)(b). It hinges on the words
where fertilization is complete. That makes clear, it is argued, that the live
human embryos to which the Act applies are such embryos as are the
product of fertilization, for the obvious reason that if there is no fertilization
there can be no time when fertilization is complete (and there is never an egg
in the process of fertilization). Therefore the Act does not apply to embryos
created by CNR, unsurprisingly since in 1990 the creation of live human
embryos was unknown to Parliament. The second argument of the Alliance is
put as an alternative: if embryos created by CNR are, contrary to the first
argument, embryos within the scope of the Act, then the CNR process is
specifically prohibited by section 3(3)(d) and cannot be licensed.

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The approach to interpretation

6.

By the end of the hearing it appeared that the parties were divided less on
the principles governing interpretation than on their application to the
present case. Since, however; the Court of Appeal were said to have erred in
their approach to construction, it is necessary to address this aspect, if
relatively briefly.

7.

Such is the skill of parliamentary draftsmen that most statutory enactments are
expressed in language which is clear and unambiguous and gives rise to no
serious controversy. But these are not the provisions which reach the courts,
or at any rate the appellate courts. Where parties expend substantial
resources arguing about the effect of a statutory provision it is usually
because the provision is, or is said to be, capable of bearing two or more
different meanings, or to be of doubtful application to the particular case
which has now arisen, perhaps because the statutory language is said to be
inapt to apply to it, sometimes because the situation which has arisen is one
which the draftsman could not have foreseen and for which he has
accordingly made no express provision.

8.

The basic task of the court is to ascertain and give effect to the true meaning
of what Parliament has said in the enactment to be construed. But that is not
to say that attention should be confined and a literal interpretation given to
the particular provisions which give rise to difficulty. Such an approach not
only encourages immense prolixity in drafting, since the draftsman will feel
obliged to provide expressly for every contingency which may possibly arise.
It may also (under the banner of a loyalty to the will of Parliament) lead to the
frustration of that will, because undue concentration on the minutiae of the
enactment may lead the court to neglect the purpose which Parliament
intended to achieve when it enacted the statute. Every statute other than a
pure consolidating statute is, after all, enacted to make some change, or
address some problem, or remove some blemish, or effect some
improvement in the national life. The courts task, within the permissible
bounds of interpretation, is to give effect to Parliaments purpose. So the
controversial provisions should be read in the context of the statute as a
whole, and the statute as a whole should be read in the historical context of
the situation which led to its enactment. [Emphasis supplied]

9.

There is, I think, no inconsistency between the rule that statutory language
retains the meaning it had when Parliament used it and the rule that a statute
is always speaking. If Parliament, however long ago, passed an Act
applicable to dogs, it could not properly be interpreted to apply to cats; but
it could properly be held to apply to animals, which were not regarded as
dogs when the Act was passed but are so regarded now. The meaning of
cruel and unusual punishments has not changed over the years since 1689,
but many punishments which were not then thought to fall within that
category would now be held to do so. The courts have frequently had to
grapple with the question whether a modern invention or activity falls within
old statutory language: see Bennion, Statutory Interpretation, 4th ed (2002)
Part XVIII, Section 288. A revealing example is found in Grant v southwestern
and County Properties Ltd [1975] Ch 185, where Walton J had to decide
whether a tape recording fell within the expression document in the Rules of
the Supreme Court. Pointing out (page 190) that the furnishing of information

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had been treated as one of the main functions of a document, the judge
concluded that the tape recording was a document.
10.

Limited help is in my opinion to be derived from statements made in cases

where there is said to be an omission in a statute attributable to the oversight
or inadvertence of the draftsman: see Jones v Wrotham Park Settled Estates
[1980] AC 74 at 105; Inco Europe Ltd v First Choice distribution [2000] 1 WLR
586. This is not such a case. More pertinent is the guidance given by the late
Lord Wilberforce in his dissenting opinion in Royal College of Nursing of the
United Kingdom v Department of Health and Social Security [1981] AC 800.
The case concerned the Abortion Act 1967 and the issue which divided the
House was whether nurses could lawfully take part in a termination procedure
not known when the Act was passed. At page 822 Lord Wilberforce said:
In interpreting an Act of Parliament it is proper, and indeed necessary, to
have regard to the state of affairs existing, and known by Parliament to be
existing, at the time. It is a fair presumption that Parliaments policy or
intention is directed to that state of affairs. Leaving aside cases of
omission by inadvertence, this being not such a case, when a new state
of affairs, or a fresh set of facts bearing on policy, comes into existence,
the courts have to consider whether they fall within the Parliamentary
intention. They may be held to do so, if they fall within the same genus of
facts as those to which the expressed policy has been formulated. They
may also be held to do so if there can be detected a clear purpose in the
legislation which can only be fulfilled if the extension is made. How
liberally these principles may be applied must depend upon the nature of
the enactment, and the strictness or otherwise of the words in which it has
been expressed. The courts should be less willing to extend expressed
meanings if it is clear that the Act in question was designed to be
restrictive or circumscribed in its operation rather than liberal or permissive.
They will be much less willing to do so where the subject matter is different
in kind or dimension from that for which the legislation was passed. In any
event there is one course which the courts cannot take, under the law of
this country; they cannot fill gaps; they cannot by asking the question
What would Parliament have done in this current case- not being one in
contemplation- if the facts had been before it? attempt themselves to
supply the answer if the answer is not to be found in the term of the Act
itself.
Both parties relied on this passage, which may now be treated as authoritative.
Mr Gordon QC for the Alliance submitted that the Court of Appeal had fallen into
error by asking the question, which Lord Wilberforce said, should not be asked,
and by themselves supplying the answer.
The background to the Act

11.

The birth of the first child resulting from in vitro fertilization in July 1978
prompted much ethical and scientific debate which in turn led to the
appointment in July 1982 of a Committee of Inquiry under the chairmanship
of Dame Mary Warnock DBE to
consider recent and potential developments in medicine and science
related to human fertilization and embryology; to consider what policies
and safeguards should be applied, including consideration of the social,

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ethical and legal implications of these developments; and to make

recommendations.
The Committee reported in July 1984 (Cmnd 9314). A White Paper was
published in November 1987 (Cm 259) when the Department of Health and
Social Security recognized (paragraph 6) the particular difficulties of framing
legislation on these sensitive issues against a background of fast-moving
medical and scientific development.
12.

There is no doubting the sensitivity of the issues. There were those who
considered the creation of embryos, and thus of life, in vitro to be either
sacrilegious or ethically repugnant and wished to ban such activities
altogether. There were others who considered that these new techniques, by
offering means of enabling the infertile to have children and increasing
knowledge of congenital disease, had the potential to improve the human
condition, and this view also did not lack religious and moral arguments to
support. Nor can one doubt the difficulty of legislating against a background
of fast-moving medical and scientific development. It is not often that
Parliament has to frame legislation apt to apply to developments at the
advanced cutting edge of science.

13.

The solution recommended and embodied in the 1990 Act was not to ban all
creation and subsequent use of live human embryos produced in vitro but
instead, and subject to certain express prohibitions of which some have been
noted above, to permit such creation and use subject to specified conditions,
restrictions and time limits and subject to the regimes of control briefly
described in paragraph 4 above. The merits of this solution are not a matter
for the House in its judicial capacity. It is, however, plain that while Parliament
outlawed certain grotesque possibilities (such as placing alive animal embryo
in a woman or a live human embryo in an animal), it otherwise opted for a
strict regime of control. No activity within this field was left unregulated. There
was to be no free for all.
Section 1(1)(a)

14.

It is against this background that one comes to interpret section 1(1)(a). At

first reading Mr Gordons construction has an obvious attraction: the Act is
dealing with live human embryos where fertilization is complete, and the
definition is a composite one including the last four words. But the Act is only
directed to the creation of embryos in vitro, outside the human body (section
1(2)). Can Parliament have been intending to distinguish between live
human embryos produced by fertilization of a female egg and live human
embryos produced without such fertilization? The answer must certainly be
negative, since Parliament was unaware that the latter alternative was
physically possible. This suggests that the four words were not intended to
form an integral part of the definition of embryo but were directed to the time
at which it should be treated as such. This was the view taken by the judge
(in paragraph 62 of his judgement) and by the Court of Appeal (paragraphs
29, 53, 58) and I agree with it. The somewhat marginal importance of the four
words is in my opinion indicated by the fact that section 1(1)(b) appears to
contradict them. The crucial point, strongly relied on by Mr parker QC in his
compelling argument, is that this was an Act passed for the protection of live
human embryos created outside the human body. The essential thrust of
section 1(1)(a) was directed to such embryos, not to the manner of their

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creation, which Parliament (entirely understandably on the then current state

of scientific knowledge) took for granted.
15.

Bearing in mind the constitutional imperative that the courts stick to their
interpretative role and do not assume the mantle of legislators, however, I
would not leave the matter there but would seek to apply the guidance of
Lord Wilberforce quoted above in paragraph 10:
(1) Does the creation of live human embryos by CNR fall within the same
genus of facts as those to which the expressed policy of Parliament has
been formulated? In my opinion, it plainly does. An embryo created by
CNR are very similar organisms. The difference between them as
organisms is that the CNR embryo, if allowed to develop, will grow into a
clone of the donor of the replacement nucleus which the embryo
produced by fertilization will not. But this is difference which plainly points
towards the need for regulation, not against it.

(2) Is the operation of the 1990 Act to be regarded as liberal and permissive
in its operation or restrictive and circumscribed? This is not an entirely
simple question. The Act intended to permit certain activities but to
circumscribe the freedom to pursue them, which had previously been
enjoyed. Loyalty to the evident purpose of the Act would require
regulation of activities not distinguishable in any significant respect from
those regulated by the Act, unless the wording or policy of the Act shows
that they should be prohibited.
(3) Is the embryo created by CNR different in kind or dimension from that for
which the Act was passed? Plainly not: as already pointed out, the
organisms in question are, as organisms, very similar.
While it is impermissible to ask what Parliament would have done if the
facts had been before it, there is one important question which may
permissibly be asked: it is whether Parliament, faced with the taxing task
of enacting a legislative solution to the difficult religious, moral and
scientific issues mentioned above, could rationally have intended to
leave live human embryos created by CNR outside the scope of
regulation had it known of them as a scientific possibility. There is only one
possible answer to this question and it is negative.
16.

In support of his argument on construction Mr Gordon drew attention to three

provisions of the Act which, he submitted, could not be applied to embryos
created by CNR. The first of these was the starting point for the protection
provided by the Act, specified in section 1(1) in relation to an embryo
created by fertilization but otherwise unprovided for. The second was the 14
day time limit provided in section 3(4), beginning with the day when the
gametes are mixed, inapplicable in a case where gametes are not mixed.
Third was the absence of any requirement of consent by the donor of the
replacement nucleus, in contrast with the stringent requirement of consent in
other cases as provided by section 12(c) and Schedule 3. These are relevant
points, and account must be taken of them when forming an overall
judgment on the interpretation of section 1(1)(a). But once it is accepted
that Parliament did not have embryos created by CNR specifically in mind
when passing the Act, it almost inevitably follows that discrepancies will arise if

111

the Act is applied to another member of the same genus. The real question is
whether these discrepant features are of structural significance such that
effect cannot be given to the intention of Parliament without observing them.
Neither singly nor cumulatively do these three features have that effect. The
appearance of a two cell zygote (section 1(1)), which occurs however the
embryo is created, provides a satisfactory starting point, there is a period
before that occurs, but like the Master of the Rolls (paragraph 45) I do not
think this is of practical significance. The 14 day time limit (section 3(4)) is
alternative to appearance of the primitive streak (section 3(3)(a)), and it is
open to the Secretary of State to prescribe a period shorter than 14 days
(section 3(3)(c)). The Authority may impose a requirement of consent as a
condition of any licence to create an embryo by CNR, and could be
expected to do so. Given the clarity of Parliaments purpose, I do not regard
these discrepancies as significant.
17.

The criticisms made of the Court of Appeals judgments are not; save in very
minor respects, soundly based. I agree with the decision, which that court
reached on this interpretation question and substantially with the reasons
given for it.
Section 3(3)(d)

18.

It seems to me quite clear that CNR does not involve replacing a nucleus of
a cell of an embryo because there is no embryo until the nucleus of the
recipient cell is replaced by the nucleus of the donor cell. I accordingly
conclude that section 3(3)(d), which cannot have been drafted to prohibit
CNR, does not, almost fortuitously, have that result. The target of section
3(3)(d) is in my opinion made plain by paragraph 12.14 of the Warnock
Report, which need not be quoted but which was directed to a particular
form of genetic manipulation, replacement of the nucleus of a fertilized
human egg. The White Paper (paragraph 36) referred to techniques aimed
at modifying the genetic constitution of an embryo, and proposed that
legislation should clearly prohibit all such activities, but with a power for
Parliament itself, by affirmative resolution, to make exceptions to these
prohibitions if new developments made that appropriate. Section 3(3)(d)
was, I infer, enacted to give effect to this recommendation. If, as Mr Gordon
contended, Parliament intended to ban all cloning by section 3(3)(d), it
would have been possible so to provide; but it seems clear that Parliament
did not intend to prohibit embryo-splitting, which creates clones, and to
which the Warnock Report referred in paragraph 12.11. In my opinion, the
subsection cannot be interpreted to prohibit CNR.

19.

For these reasons I would dismiss the appeal with costs.

LORD STEYN
My Lords,

20.

Section 1(1) of the Human Fertilisation and Embryology Act 1990 defines the
scope of the regulatory system created by the Act. It provides:
..except where otherwise stated(a) embryo means a live human embryo where fertilization is
complete
and

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(b)

references to an embryo include an egg in the process of

fertilization, and, for this purpose, fertilization is not complete
until the appearance of a two cell zygote.

In so legislating Parliament acted on the scientific insight of a decade ago, viz

that an embryo could only be created by fertilization. The ordinary and obvious
meaning of section 1(1) reflects that understanding. Since 1990 the development
of cell nuclear replacement has made possible the creation of an embryo
without the means of fertilization. The question arose whether embryos created
by cell nuclear replacement were covered by the 1990 Act. Overruling a first
instance decision ([2001] 4 All ER 1013), the Court of Appeal held that such
embryos are subject to the Act: R (Quintavalle) v Secretary of State for Health
[2002] QB 628. It is of some importance to consider how as a matter of
interpretative method the House should approach the central question. I turn in
the first place to three aspects of this matter.

Purposive Interpretation
21.

In reaching a conclusion that cell nuclear replacement is a process covered

by section 1(1) of the Human Fertilisation and Embryology Act 1990 the Court
of Appeal adopted a purposive approach: Para 27.
The extensive
interpretation adopted by the Court of Appeal could only be justified by a
purposive approach. It was a necessary step in the reasoning of the Court of
Appeal but not a sufficient one. The Court of Appeal found the basis for such
an approach in the fact that the Human Rights Act 1998 extended the
boundaries of purposive interpretationwhere needs must. Given that the
1998 Act is not applicable in the present case I would accept the submission
of counsel for the appellant that this approach is not appropriate. On the
other hand, the adoption of a purposive approach to construction of statutes
generally, and the 1990 Act in particular, is amply justified on wider grounds.
In Cabell v Markham (1945) 148 F 2d 737 Justice Learned Hand explained the
merits of purposive interpretation, at p 739:
Of course it is true that the words used, even in their literal sense, are the
primary, and ordinarily the most reliable, source of interpreting the
meaning of any writing: be it a statute, a contract, or anything else. But is
one of the surest indexes of a mature developed jurisprudence not to
make a fortress out of the dictionary; but to remember that statutes
always have some purpose or object to accomplish, whose sympathetic
and imaginative discovery is the surest guide to their meaning.
The pendulum has swung towards purposive methods of construction. This
change was not initiated by the teleological approach of European Community
jurisprudence, and the influence of European legal culture generally, but it has
been accelerated by European ideas: see, however, a classic early statement of
the purposive approach by Lord Blackburn in River Wear Commissioners v
Adamson (1877) 2 App Cas 743, 763. In any event, nowadays the shift towards
purposive interpretation is not in doubt. The qualification is that the degree of
liberality permitted is influenced by the context, eg social welfare legislation and
tax statutes may have to be approached somewhat differently. For these slightly
different reasons I agree with the conclusion of the Court of Appeal that section
1(1) of the 1990 Act must be construed in a purposive way.

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Historical or Updating Interpretation

22.

That leads to the question whether it is appropriate to construe the 1990 Act in
the light of the new scientific knowledge. In the case law two contradictory
approaches are to be found. It reminds one of the old saying that rules of
interpretation hunt in pairs: that for every rule there is a rule to the contrary
effect: see Burrows, Statute Law, 3rd ed (2003), p 277 and chapter 12
generally. In the older cases the view often prevailed that a statute must be
construed as if one were interpreting it on the day after it was passed: The
Longford (1889) 14 PD 34, 36. This doctrine was dignified by the Latin
expression contemporanea exposition est optima et fortissimo in lege. But
even in older cases a different approach sometimes prevailed.
It was the idea encapsulated by Lord Thring, the great Victorian draftsman
that statutes ought generally to be construed as always speaking statutes.
In the Court of Appeal, Lord Phillips of Worth Matravers MR cited the early
illustration of Attorney General v Edison Telephone Co of London (1880) 6 QBD
244. The Telegraph Act 1869 gave the Postmaster-General an exclusive right
of transmitting telegrams.
Telegrams were defined as messages transmitted by telegraph. A telegraph
was defined to include any apparatus for transmitting messages or other
communications by means of electric signals. When the Act was passed the
only such means of communication was the process of interrupting and reestablishing electric current, thereby causing a series of clicks which
conveyed information by morse code. Then the telephone was invented. It
conveyed the human voice by wire by means of a new process. It was
argued that because this process was unknown when the Act was passed it
could not apply to it. The court held that absurd consequences would
follow if the nature and extent of those powers and duties [under the Act]
were made dependent upon the means employed for the purpose of giving
the information: p 255. Another illustration is Christopher Hill Ltd v Ashington
Piggeries Ltd [1972] AC 441 when Lord Diplock observed, at p 501 E-H:
Unless the Sale of Goods Act 1893 is to be allowed to fossilize the law and
to restrict the freedom of choice of parties to contract for the sale of
goods to make agreements which take account of advances in
technology and changes in the way in which business is carried on today,
the provisions set out in the various sections and subsections of the code
ought not to be construed so narrowly as to force upon parties to
contracts for the sale of goods promises and consequences different from
what they must reasonably have intended. They should be treated rather
as illustration of the application to simple types of contract of general
principles for ascertaining the common intention of the parties as to their
mutual promises and their consequences, which ought to be applied by
analogy in cases arising out of contracts which do not appear to have
been within the immediate contemplation of the draftsman of the Act in
1893.
A third illustration is the case law which held that bodily harm in the Offences
against the Person Act 1861 may be interpreted as extending to psychiatric harm
which was unknown at the time of the passing of the legislation: R v Chan-Fook
[1994] 1 WLR 689; R v Burstow [1997] 1 Cr App R 144, R v Burstow sub nom R v
Ireland [1998] AC 147: see also McCartan Turkington Breen v Times Newspapers
Ltd [2001] 2 AC 277, per Lord Bingham, at p 292; my judgment, at pp 295-296;

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Victor Chandler International Ltd v Customs and Excise Commissioners [2000] 1

WLR 1296, pp 1303-1305, paras 27-33 per Sir Richard Scott V-C.
23.

How is it to be determined whether a statute is an always speaking statute or

one tied to the circumstances existing when it was passed? In R v Burstow,
supra, the House of Lords held, at p 158:
In cases where the problem arises it is a matter of interpretation whether
a court must search for the historical or original meaning of a statute or
whether it is free to apply the current meaning of the statute to present
day conditions. Statutes dealing with a particular grievance or problem
may sometimes require to be historically interpreted. But the drafting
technique of Lord Thring and his successors have brought about the
situation that statutes will generally be found to be of the always
speaking variety: see Royal College of Nursing of the United Kingdom v
Department of Health and Social Security [1981] AC 800 for an example of
an always speaking construction in the House of Lords.

In response to a specific question counsel for the appellant did not contend that
the 1990 Act falls in the exceptional category. Given its subject matter he was
right not to do so. The result is that the 1990 Act may be construed in the light of
contemporary scientific knowledge. This conclusion also does not solve the
problem before the House. It does, however, make it possible to consider
whether the new technique of cell nuclear replacement, despite the restrictive
literal wording of section 1(1) of the 1990 Act, is covered by the Parliamentary
intent.
Applying a statute to new technology
24.

The critical question is how the court should approach the question whether,
in the light of a new scientific development, the Parliamentary intent covers
the new state of affairs. In a dissenting judgment in Royal College of Nursing
of the United Kingdom v Department of Health and Social Security [1981] AC
800 Lord Wilberforce analysed the position with great clarity. He observed, at
p 822 B-E:
In interpreting an Act of Parliament it is proper, and indeed necessary, to
have regard to the state of affairs existing, and known by Parliament to be
existing, at the time. It is a fair presumption that Parliaments policy or
intention is directed to that state of affairs. Leaving aside cases of
omission by inadvertence, this being not such a case, when a new state
of affairs, or a fresh set of facts bearing on policy, comes into existence,
the courts have to consider whether they fall within the Parliamentary
intention. They may be held to do so, if they fall within the same genus of
facts as those to which the expressed policy has been formulated. They
may also be held to do so if there can be detected a clear purpose in the
legislation which can only be fulfilled if the extension is made. How
liberally these principles may be applied must depend upon the nature of
the enactment, and the strictness or otherwise of the words in which it has
been expressed. The courts should be less willing to extend expressed
meanings if it is clear that the Act in question was designed to be
restrictive or circumscribed in its operation rather than liberal or permissive.
They will be much less willing to do so where the subject matter is different

115

in kind or dimension from that for which the legislation was passed. In any
event there is one course which the courts cannot take, under the law of
this country; they cannot fill gaps; they cannot be asking the question
What would Parliament have done in this current case- not being one in
contemplation- if the facts had been before it? attempt themselves to
supply the answer, if the answer is not be found in the terms of the Act
itself. (Emphasis added)
In Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC27 Lord Wilberforces
analysis was approved: see in particular Lord Slynn of Hadley, at 33F; Lord Nicholls
of Birkenhead, at 45F; Lord Hutton, at 63F-64A; Lord Hob house of Wood borough,
67H-68A. The analysis of Lord Wilberforce can now be regarded as authoritatively
settling the proper limits of the type of extensive interpretation now under
consideration.
25.

In such a case involving the application of a statute to new technology it is

plainly not necessary to ask whether the express statutory language is
ambiguous. Since nobody suggests the contrary, I say no more about the
point. Reference was made authorities such as Jones v Wrotham Park Settled
Estates [1980] AC 74 and Inco Europe Ltd v First Choice Distribution [2000] 1
WLR 586, which deal with the limited circumstances in which a court may
correct a clear drafting mistake. Here there was no drafting mistake. But in
order to give effect to a plain parliamentary purpose a statute may
sometimes be held to cover a scientific development not known when the
statute was passed. Given that Parliament legislates on the assumption that
statutes may be in place for many years, and that Parliament wishes to pass
effective legislation, this is a benign principle designed to achieve the wishes
of Parliament.
The Primary Argument

26.

The Master of the Rolls dealt with the primary argument in trenchant terms.
He said (at para 38)
To the question of whether it is necessary to bring embryos created by
cell nuclear replacement within the regulatory regime created by the Act
in order to give effect to the intention of Parliament, there can only be
one answer. It is essential. There is no factor that takes embryos created
by cell nuclear replacement outside the need, recognized by Parliament,
to control the creation and use of human organisms. The consequence
of Crane Js judgment is that anyone is free to create embryos by cell
nuclear replacement and to experiment with these without limitation of
time or any other restriction. There is no bar to placing a human embryo
created in this way inside an animal. There is no bar to placing an animal
embryo created in this way inside a woman. Until the Government
intervened with the Human Reproductive Cloning Act 2001 it was legal to
use the process of cell nuclear replacement to produce and use an
embryo to create a human clone. It is clear that these results are wholly
at odds with the intention of Parliament when introducing the 1990 Act.
I agree. I would summarise my reasons as follows. The long title of the 1990 Act
makes clear, and it is in any even self-evident, that Parliament intended the
protective regulatory system in connection with human embryos to be
comprehensive. This protective purpose was plainly not intended to be tied to
the particular way in which an embryo might be created. The overriding ethical

116

case for protection was general. Not surprisingly there is not a hint of a rational
explanation why an embryo produced otherwise than by fertilization should not
have the same status as an embryo created by fertilization. It is a classic case
where the new scientific development falls within what Lord Wilberforce called
the same genus of facts and in any event there is a clear legislative purpose
which can only be fulfilled if an extensive interpretation is adopted. As Lord
Bingham has demonstrated the makeweight arguments based on the difficulty of
applying some regulatory provisions to the new development cannot possibly
alter the clear legislative purpose. In the result I would either treat the restrictive
wording of section 1(1) as merely illustrative of the legislative purpose or imply a
phrase in section 1(1) so that it defines embryo as a live human embryo where [if
it is produced by fertilization] fertilization is complete. If it is necessary to choose I
would adopt the former technique. It fits readily into section 1(1) since the words
of 1(1)(b) plainly make otiose the words where fertilization is complete in section
1(1)(a). Treating the latter as merely illustrative requires no verbal manipulation.
27.

For my part l am fully satisfied that cell nuclear replacement falls within the
scope of the carefully balanced and crafted 1990 Act.

The Alternative Argument

28.

The alternative argument was based on section 3(3)(d) which provides that a
licence cannot authorize replacing a nucleus of a cell of an embryo with a
nucleus taken from a cell of any person, embryo or subsequent development
of an embryo. The argument was that the development of cell nuclear
replacement is prohibited under section 3(3)(d). The Master of the Rolls
observed that he could see no basis for arguing that an unfertilized egg, prior
to the insertion of the nucleus by the cell nuclear replacement process, is
required to be treated under the Act as if it is an embryo: para 51. I agree.
Disposal

29.

For the reasons given by Lord Bingham of Cornhill and Lord Hoffmann, as well
as the reasons I have given, I would also dismiss the appeal.
LORD HOFFMANN
My Lords,

30.

I have had the advantage of reading in draft the speech of my noble and
learned friend Lord Bingham of Cornhill, with which I agree. I gratefully adopt
his statement of the facts and the relevant legislation.

31.

The issue in this appeal concerns the application of the 1990 Act to embryos
produced by cell nuclear replacement in unfertilized eggs. I shall call them
cloned embryos. The creation of embryos by cloning was unknown at the
time of the Act and the definition of an embryo in section 1(1), as well as
certain other provisions, assumes that it will be created by fertilization.

32.

The argument for the respondent is that the clear policy of the Act is to
regulate the creation, keeping or use of embryos. Cloned embryos are
embryos and therefore the Act should apply to them in the same way as to
fertilized embryos. This involves treating some of the words in the definition
and elsewhere in the Act as confined in their application to fertilized embryos

117

and failing of reference in relation to cloned embryos. But that can be

accommodated within the orthodox principles of construction explained by
Lord Wilberforce in Royal College of Nursing of the United Kingdom v
Department of Health and Social Security [1981] AC 800, 822 and enables the
court to give effect to the policy of the statute.
33.

Mr Gordon QC, in his admirably clear reply on behalf of the appellants, was
inclined to accept that such a construction would be legitimate and proper if
it was clear that the only relevant policy of the Act was to regulate the use of
embryos. But he said that section 3(3)(d) disclosed another relevant policy,
which was altogether to prohibit cloning. It is true that it referred only to
replacing the nucleus of a cell of an embryo and not to cloning an
unfertilized egg. But that was for the same reason as the definition of an
embryo contemplated that it would have been fertilized: because cloning
unfertilized eggs was unknown at the time of the Act.

34.

So Mr Gordon said that another approach to the construction of the Act

would be to concentrate less upon the fact that cloned embryos were
embryos and more on the fact that they were cloned. The policy shown by
section 3(3)(d) means that one cannot simply assume that cloned embryos
would have been regulated like ordinary fertilized embryos. They might have
been prohibited like the cloning of fertilized embryos already in existence.

35.

Mr Lords, I can see that this argument might have created a genuine
dilemma if Mr Gordon had been able to take the next step and put forward,
as an alternative construction, a reading of the Act which brought cloned
embryos within the prohibition in section 3(3)(d). It would then have been
necessary to decide which of these alternative constructions was supported
by the better arguments. But Mr Gordon, rightly in my opinion, felt unable to
do so. Section 3(3)(d) does not prohibit cloning in general but only cloning
when the host is an existing embryo.
This left Mr Gordon having to say that one should not construe the Act as
either regulating or prohibiting cloned embryos because one could not tell
whether Parliament, if it had been aware of them, would have done one or
the other. To make that choice was, he said, a legislative act. But, as Lord
Wilberforce pointed out in the Royal College of Nursing case, a decision
about whether a statute applies to unforeseen circumstances does not
involve speculating about what Parliament would have done. It is a decision
about what best gives effect to the policy of the statute as enacted. Even if it
were as plausible to read the Act as prohibiting cloned embryos as it was to
read it as regulating them, the one reading which would be entirely
implausible and irrational would be to leave them neither prohibited nor
regulated. The court has to choose between the other two constructions and
as Mr Gordon acknowledges that section 3(3)(d) cannot be construed as
applying to cloned embryos, it follows that they must come within the
definition of embryos in section 1(1).

36.

LORD MILLETT
My Lords,
37.

The primary question in this case is whether embryos created by the process
of cell nuclear replacement (the Act). When the Act was passed the only
known processes by which a human embryo could be created, including the
process of nuclear substitution, took a fertilized egg as the starting point, and

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accordingly involved a degree of genetic manipulation. An embryo created

by CNR, however, is not the product of fertilization and does not involve
genetic manipulation. This was a later development in embryology which
was not foreseen by the Warnock Committee whose Report led to the
passing of the Act or by Parliament when the Act was passed.
38.

The question is one of statutory construction. In construing a statute the task

of the court is to ascertain the intention of Parliament as expressed in the
words it has chosen. The Parliamentary intention is to be derived from the
terms of the Act as a whole read in its context. Once it has been ascertained,
the court must give effect to it so far as the legislative text permits.

39.

The search in every case is for what Parliament did intend, not what it would
have intended had it foreseen later developments. In the present case the
question is not whether Parliament positively intended to cover embryos
produced by a process such as CNR which does not involve the use of a
fertilized egg; it plainly did not, for it did not foresee the possibility. The
question is whether Parliament intended to legislate only for embryos created
by a process which does involve the use of a fertilized egg or whether it
intended to legislate for embryos by whatever process they are created.

40.

The scope of the Act is to be found in section 1. Subsection (1) defines the
word embryo. It is in the following terms:
1.-(1) In this Act, except where otherwise stated(a) embryo means a live human embryo where fertilization is
complete,
and
(b) reference to an embryo include an egg in the process of
fertilization.

41.

Before I turn to the proper construction of this subsection, I would make two
general observations about the statutory scheme. First, as appears from the
long title to the Act, it is an Act
to make provision in connection with human embryos and any
subsequent development of such embryos.

These are wide words in completely general terms. In themselves they are apt to
refer to human embryos however created.
42.
Secondly, the Act not only makes provision for the licensing and regulation of
the creation of embryos, but also for their subsequent use for treatment or
research (section 3(1)). In particular it prohibits activities, which Parliament
evidently regarded as peculiarly objectionable, such as the placing in a
woman of a live embryo other than a human embryo (section 3(2)(a) and the
placing of a human embryo in an animal (section 3(3)(b)).
43.

Now whatever may be the status of an organism created by CRN before its
single cell has split into two, once it has reached the two-cell stage it is an
embryo in every accepted sense of that term. In the case of a human
embryo, it is a live human organism containing within its cell or cells a full set
of 46 chromosomes with the normal potential to development and, if planted
in a woman, to become a foetus and eventually a human being. While there
may or may not be good reasons for distinguishing between the different
processes by which embryos may be created when it comes to regulating

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their creation, no one has been able to suggest a reason why Parliament
should differentiate between the different processes when it comes to
regulating their subsequent use. The placing oa a human embryo in an
animal is not the less abhorrent because the embryo was created by CNR.
44.

These considerations indicate to may mind that Parliament intended to make

comprehensive provision for the protection of human embryos however
created, and that the failure of particular provisions to capture embryos
produced by a process not involving fertilization is not because Parliament
intended to leave them unregulated but because Parliament did not foresee
the need to deal with them.

45.

With this introduction I can turn to the wording of section 1(1). The definition in
para (a) is in part circular, since it contains the very term to be defined. It
assumes that the reader knows what an embryo is. The purpose of the
opening words of the paragraph is not to define the word embryo but to
rather to limit to an embryo which is (i) live and (ii) human. These are the
essential characteristics, which an embryo must possess if it is to be given
statutory protection. The important point is that these characteristics are
concerned with what an embryo is, not how it is produced. They are clearly
necessary; the question is whether they are sufficient.

46.

The concluding words of the paragraph (where fertilization is complete)

have a different function. They do not describe the essential characteristics
of an embryo, and do not form part of the definition of the word embryo.
They merely indicate the stage of development which an embryo must reach
before it qualifies for protection. They are obviously inapplicable to embryos
created by a process, which does not involve fertilization, and accordingly
say nothing about the status of such embryos.

47.

Para (b) is likewise inapplicable to embryos created by a process which does

not involve the use of a fertilized egg. Its presence, however, makes the
retention of the concluding words of para (a) puzzling. It is difficult to discern
any reason why Parliament should take pains to exclude the application of
the Act to embryos produced by the use of a fertilized egg while fertilization is
still incomplete by para (a) only to reapply it during the same period by para
(b). It may merely be due to the fact that once a two-cell zygote emerges
the organism is undoubtedly an embryo, whereas before that stage is
reached its description as an embryo is more problematic and calls for a
deeming provision.

48.

But it is more likely to owe its provenance to the vagaries of the Parliamentary
process. Para (b) was introduced into the Bill at Report stage. Its evident
purpose was to bring the protection of the Bill forward by some 30 hours from
the completion of the process of fertilization to its beginning. It cannot have
been its purpose to reduce the scope of the Bill. In these circumstances I am
satisfied that para (b) is also directed to the stage of development which an
embryo must reach before it qualifies for the protection of the Act. Like the
concluding words of para (a) it can have no application to embryos
produced by a process, which does not involve fertilization and does not
operate to cut down the scope of the opening words of para (a). In my
opinion, this is where the essential definition of embryo is to be found, and it
is defined by what it is and not by the process by which it is created.

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49.

This construction does not require words to be written into the section. There is
no gap to be filled by implication. Nor is it a matter of updating the meaning
of the word embryo by reference to subsequent developments. It is simply a
matter of giving the opening words of para (a) their natural meaning,
recognizing the function of the concluding words, and confining their
operation to the case where they are capable of application. Once it is
accepted that the embryo is defined by reference to what it is and not by
reference to the process by which it is created, all need for updating falls
away. The result is to bring within the regulatory scope of the Act embryos
produced by a process, which was unknown, was unknown to Parliament
when the Act was passed. But such embryos are in all respects save the
method of their creation indistinguishable from other embryos. They are alive
and human, and accordingly possess all the features, which Parliament
evidently considered make it desirable to regulate their use for treatment or
research. A construction which allowed for the regulation of embryos
produced by fertilization and not of embryos produced without fertilization
would not only defeat the evident purpose of Parliament to make
comprehensive provision for the creation and use of human embryos but
would produce an incoherent and irrational regulatory code. While this could
be the inevitable result of legislation enacted at a time of rapid technological
development, a construction which leads to this result should not be adopted
where it can be avoided.

50.

A secondary question is whether CNR is prohibited by section 3(3)(d). In my

opinion it is not. The subsection is directed to nuclear substitution. It prohibits
replacing a nucleus of a cell of an embryo. CRN does not involve any such
process.

51.

Of course, Parliament did not positively intend to prohibit CNR, the possibility
of which it did not foresee. It might or might not have prohibited it if it had
done so. But such considerations are irrelevant. Even if Parliament had
intended to prohibit CNR it failed to do so. The court cannot give effect to
Parliaments intention if the legislative text does not permit it. The only
question is whether CNR falls within the statutory language. It manifestly does
not.

52.

Reliance was placed on the limited nature of the prohibition in section 3(3)(d)
to argue that logically Parliament must have intended either to leave
embryos created by processes such as CNR outside the scope of the Act
altogether, thereby compelling a different answer to the primary question, or
to prohibit their creation.

53.

The argument assumes that it would be illogical to prohibit nuclear substitution

while permitting CNR. This has not been demonstrated to my satisfaction. But
in any case the argument from logic is fallacious. Given that Parliament
intended to make comprehensive provision for the creation and use of
embryos however created and to prohibit the process of nuclear substitution,
its failure to bring CNR within the prohibition, even if illogical, is sufficiently
explained by the fact that Parliament did not foresee the need to do so.

54.

I would dismiss the appeal.

LORD SCOTT OF FOSCOTE
My Lords,

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55.

I have had the advantage of reading in advance the opinions of my noble

and l earned friends Lord Bingham of Cornhill and Lord Steyn. For the reasons
they give, with which I am in full agreement, I too would dismiss this appeal.

EUSDEM GENERIS RULE

THE ATTORNEY GENERAL v. ABDUL AND OTHERS, [1960] EA 672(K)
MacDuff, J. read the following judgement of the court:
This is an appeal by way of case stated made at the request of the honourable the
Attorney-General on behalf of the crown against the acquittal by the senior resident
magistrate, Mombasa, of the three respondents on Court 1 of the charge sheet as being
erroneous in point of law.

The respondents were charged as follows:

Court 1
Statement of offence
Besetting contrary to s.91 B of the Penal Code
Particulars of Offence
Abdulla s/o Ibrahim, Maji s/o Nyamwonga; Peyo s/o Mwavodo; on the 20th day of
October, 1959, at Tudor Road, Mombasa in the Coast Province, unlawfully beset the
Tudor Road, Mombasa, with a view to preventing one Donye s/o Mchoki from doing an
act which the said Donye s/o Mcheki was entitled to do, namely to ride a bicycle.
Section 91 B of the Penal Code provides as follows:
Any person who watches or besets any premises, or the house or other place
where any person resides or works or carries on business or happens to be, or the
approaches to such premise, house or other place, with a view to preventing any
person from doing, or compelling him to do, any act which person has a legal
right to do or abstain from doing, is guilty or an offence and is liable to
imprisonment for a term not exceeding six months or to a fine not exceeding five
thousand shillings, or to both such imprisonment or fine.
The section then contains a proviso, which has no relevance to the present case.
The learned senior resident Magistrate found the following facts to be admitted or
proved:
(1)
Donye s/o Mcheki is employed by M.M. Chandaria as a house boy in the
Old Town, Mombasa.
(2)
Donye lives in Tudor Estate, Mombasa.
(3)
Donye goes to and from his work by bicycle.
(4)
On October 20, 1959, Donye went to his employers house in the morning
but returned to his own house at about 9 a.m.
(5)
Whilst returning from his house to his place of work Donye was stopped by
three respondents in Tudor Road.

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(6)

The respondents asked Donye if he did not know that it was the 20th and
that he should not cycle. The conversation continued about Jomo
Kenyatta until Police arrived.
At the conclusion of the prosecution case a submission of the case to answer was made
but was overruled, the learned magistrate stating that he would give his reasons if
necessary in his judgement. None of the respondents gave evidence or made unsworn
statements and none of them called witnesses.
The learned magistrate delivered the following judgement:
The three accused, Abdulla Ibrahim, Maji Nyawoga and Foyo Mwavodo, are charged
on two counts. The first court alleges besetting, contrary to s.91 B of the Penal Code, and
the second likely to cause breach of the peace, contrary to s.178(4) of the Penal Code.
The facts are not really in dispute. The three accused stopped Donye s/o Mcheki (P.W.
1) who was riding his bicycle in Tudor Road, Mombasa on October, 29, 1959. They told
him that he should not be riding a bicycle that day as the day had some connection
with Kenyatta and Africans were forbidden to ride bicycles on that day.
The three accused were arrested by the police. Mr. Rustan Hira for accusedhaving earlier submitted that there was no case to answer a submission, which
was overruled, submitted that in s.91 B of the Penal Code the words or other
place came within the ejusdem generis rule.
In support of the contention he referred me to p.1483 or Strouds Judicial
Dictionary (2nd Edn), under Title, Place. I think his submission is correct although I
am not very impressed with the actual authority quoted in support of it. The
matter is more clearly dealt with in Maxwell on The Interpretation of Statutes, (7th
Edn.) at s.v of Chapter xi at p.284 onwards. It is also of interest to note that the
form of charge R.V. Hibbert, 13 Cox, p.87, gives support to the learned
advocates contention although he cited it for a different purpose.
I therefore find all the accused not guilty on the first count. I am satisfied that
there is ample evidence to convict each accused on the second count. I
accordingly find each accused guilty on the second count.
The issue on which our opinion is sought and the questions for determination are
set out by the learned magistrate in his case stated as follows:

Opinion
Little need be added to the authorities given in the judgement except to refer to
p. 2025 of Strounds Judicial Dictionary (3rd Edn.) under title:
Other at para 6 where Lord Tenterdens Rule is stated, and p. 2204 of the same
work at the Title:

Question
The question upon which the opinion of the court is desired is whether upon the
facts of the present case, I came to a correct determination and decision in
point of law and if not the Supreme Court is respectfully requested to reverse or
amend my determination or remit the case to me with the opinion of the court
thereon.
The question of law which the learned Attorney-General desire to be submitted
for the opinion of the Supreme Court are as follows:

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(i)
(ii)

Was the learned trial magistrate correct in law in acquitting the accused
on the first count.
Was the learned trial magistrate correct in law in holding that the words
or other place in s.91 B of the Penal Code must be constructed ejusdem
generis with the words any premises, or the house in that section.

We propose to consider the second of these questions first, since the answer to the first
question posed is dependant on the answer to the second question.
To support his decision the learned magistrate relied on certain authorities. The first of
these is Strouds Judicial Dictionary of which we have the 3rd Edition.
Under the title place there are numerous example cited of the words place and
other place being interpreted by the courts. We agree, however, that it is impossible
to obtain from these examples any clear guidance as to the meaning to be given to the
words or other place in an enactment not in pari materia with one of the instances
there quoted. The learned magistrate also refers to the little other at para (6) (at
p.2025 et.seq.), where he has apparently relied on the authors statement that:
(6)
Where general words follow particular ones, the rule is to construct them
as applicable to persons ejusdem generis (per Tenterden, C.J., Sandiman v.
Breach, 7B & C.99). This rule has been acted upon in all times, but nowhere more
clearly stated then by Lord Tenterden in Sandiman v. Breach (per Denman, C.J.
Kitchen v. Shaw, 7 L.J. M.C. 16): and it is therefore sometimes called Lord
Tenderdens Rule, which as regards the word other may perhaps be more fully
stated thus: Where a statute, or other document, enumerates several classes of
persons or things, and immediately following and classed with such enumeration
the clause embraces other persons or things the word other will generally be
read as other such like, so that the persons or things therein comprised may be
read as ejusdem generis which, and not a quality superior to, or different from,
those specifically enumerated. The principle of this rule as regards statutes was
explained by Kenyan, C.J., in R.V. Wallis (5 T.R. 379), wherein he said that if the
legislature had meant the general words to be applied without restriction it would
have used only one compendious word.
This general statement is qualified in the same paragraph by the following statement:
Yet, on the other hand, though it is very likely that in former days the doctrine
was applied strictly, there are cases which show that the modern tendency is to
reject a restricted construction (per Esher, H. R., Anderson V. Anderson, [1895]
1Q.B. 749), and very frequently the word received its wide and larger
interpretation of every other sort or kind.
And at para (8) the author says:
(8)
It is perhaps impossible to lay down any workable rule to determine which
of these two interpretations the word should receive in any case not already
covered by authority. Therefore, it would seem to be the most practically useful
way to range, so far as possible, the cases into their two classes of interpretation.
A.
Ejudem generis
B.
Unrestrictedly comprehensive.
He then goes on to give examples of both interpretations. In our view no assistance can
be derived from this authority.
The learned magistrate refers to the form of charge in R.V. Hibbert and others (1), 13 Cox
C.C. 82. This charge was based on the particulars of that case and had no application
to the circumstances of the present case.
The learned magistrate next relied on Maxwell on The Interpretation of Statutes (7th Edn.),
section V of Chapter XI at p. 284 et. Seq. He does not refer to any passage in particular
but it would appear from the generality he has treated this commentary as supporting
the defence contention that he has taken it as an authority for the proposition that the

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words or other place must necessarily be construed under the ejusdem generis
doctrine and to be restricted in application to the same genus as the words antecedent
thereto. We do not think that the explanation given in Maxwell is properly capable of
such an exclusive interpretation.
We think the learned magistrate may have
concentrated his attention on the following passage:
But the general word which follows particular and specific words of the same
nature as itself takes its meaning form them and is presumed to be restricted to
the same genus as those words.
The sentence following, however, reads:
Of course, the restricted meaning which primarily attaches to the general word
in such circumstances is rejected when there were adequate ground to show that
it has not been used in the limited order of ideas to which its predecessors
belong. If it can be seen from a wider inspection of the scope of the legislation
that the general words, notwithstanding that they follow particular words, are
nevertheless to be construed general, effect must be given to the intention of the
legislature as gathered from the larger survey.
It will be evident then that the question as to whether the words or other place are to
be interpreted restrictively under the ejusdem generis doctrine or can be given a
comprehensive interpretation falls to be considered in the light of the interpretation of
legislation in pari material, if any, which has been the subject of judicial interpretation
and in the light of the intention of the legislature.
We were referred to the case of Gulley and others v. Harrison (2), [1956] 2 All E.R. 254,
where the words house, room or other place were used s.1 of the Sunday Observance
Act, 1780, and Goddard, C.J. held that the meaning of the word place was not
restricted by the words house or room which preceded it and that part of a park
used for a motor cycle competition was a place within sufficient authority to enable us
to apply it in the present case since the evil aimed at was very different, it is at the least
illustrative of the application of the more comprehensive interpretation required to be
given to these words to meet the intention of the legislature.
In Charnock v. Court (3), [1899] 2 Ch.35, however, this decision was not apply. This was a
case which was decided on the 1875. The relevant parts of this section read:

Penalty for intimidation or annoyance by violence or otherwise. Every person who with
a view to compel any other person to abstain from doing or to do any act which such
other person has a legal right to do or abstain from doing, wrongfully and without legal
authority:4.
Watches or besets the house or other place where such other person
resides, or works, or carries on business, or happens to be, or the
approach to such house or place. Shall on conviction thereof be
liable.
It was held that the words in the enactment covered a landing-stage and
Stirling J., in his ratio decided l stated:
the words place where he happens to be seem to me to embrace any place
where the workman is found, however casually.
We think it is clear that the wording of s.91 B of the Penal Code was taken from the
enactment under consideration in Tarmacs case (3), and that itself this decision
constitutes strong persuasive reasoning for a like decision in the present case. Moreover,
if we look, as we consider we must, to what we believe to have been the intention of the
legislature in enacting s.91 B of the Penal Code, then we think this also provides a strong

125

reason for not employing the ejusdem generis doctrine. Quite clearly the intention of the
legislature in s.91 B of the Penal Code was to protect the unfettered liberty of the
individual in going about his lawful occasions without let or hindrance and for the
purpose to protect him in whatever place he happened to be. We cannot conceive
that the legislature could possible have intended to protect the individual from being
beset him on, for example, a public highway on his way to or form his home or
workplace. We cannot see any reason to conclude that there was ever words
happens to be, to restrict the other place to a place of the genus of a house.
The learned magistrate does not appear to have considered the meaning of the word
besetting, but in our view there was clear evidence of the complainant having been
encircled by the respondent with the intent necessary to constitute the offence and that
he was in fact beset.
The answer to the question stated for our determination therefore is:
(i)
the learned trial magistrate was not correct in law in holding that the words
or other place in s. 91 B of the Penal Code must be construed ejusdem
generis with the words any premises, or the house in that section.
(ii)
The learned trail magistrate was not therefore correct in law in acquitting the
respondents on the first count.
The proceedings are therefore returned to the magistrate with a direction that he
substitute a conviction in place of an acquittal against all the respondents on the first
count.
With regard to sentence the Crown has intimated that it is not seeking additional
punishment. In view of that intimation the leaned magistrate may feel disposed to
consider whether the provisions of s.33 of the Penal Code my meet the justice of the
case.
Proceedings returned to magistrate with a direction to substitute a conviction in place of
an acquittal against all the respondents.
NOTE: In this case, the judge argues that the ejusdem generis rule should not be applied
to the phrase or other place where any personhappens to be because the statute in
question was based on an English statute which contained a similar phrase, and an
English court had not applied the rule to that phrase in English. He implies, therefore, that
a phrase is a local statute that is similar, or identical to one in an English statute should be
interpreted in the same way as English courts have interpreted it. But courts in East Africa
do not always apply such a rule of interpretation. In R. Qumu, we have seen that the
judge refused to apply the English meaning of the word wife or husband to a Uganda
Act. In Jivraj V. Devraj [1968] E.A. 263. The Court of Appeal refused to apply the
principle of an English case interpreting a similar provision in an English Act to the Rent
Restriction Act of Kenya (see Sawyer & Hiller p. 56-58). On the other hand, in
Manmohandes Derachand V. Kalyand (1950) 17 E.A.C.A. 63, (Sawyerr p26) the court did
apply the English interpretation although it considered it led to an unfortunate result in
Aden. In view of this, are you persuaded by this reason?
If judges in East African sometimes apply an English interpretation and sometimes to do,
we cannot find the reason for the decision in a rule about the applicability of English
decisions. We will have to look outside the formal legal rules to find real reason for the
decision. It was a fact in Abdullah that an African nationalist was arrested by colonial
police and convicted by a colonial court after engaging in political activity in support of
an African nationalist leader.
Does the judge find any of these facts to be material facts? Do you think they were?

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Consider the following cases which all deal with the question When is bicycle a
carriage?
a.

Taylor v. Goodwin [1879] a Q.B.D. 228: Accused was charged under Statute
forbidding furiously driving a carriage on the highway in that he was
furiously driving a bicycle. Held, guilty. Per Mellor, J.; it may be that bicycle
were unknown at the time when the Act was passed, but the legislature
clearly desired to prohibit the use of any passenger. The question is, whether
a bicycle is a carriage within the meaning of the Act. I think the word
carriage is large enough to include a machine such as a bicycle, which
carries the person who gets upon it, and I think that such a person may be
said to drive it. He guides as well as propels it, and may be said to drive it as
an engine driver is said to drive an engine. The furious driving of a bicycle is
clearly within the mischief of the section, and it seems to me to be within the
meaning of the words, giving them a reasonable construction. Luch, J.,
concurred in Judge Mellors opinion.

b.

Williams v. Ellia, [1880] 5 Q.B.D. 175, A local turnpike act provided a toll for
every carriage of whatever description, and for whatever purpose, which
should be drawn or impelled, or set or kept in motion by stead or any other
power or agency than being drawn by any horse or horses, or other beast or
beasts or draught, any sum not exceeding 5 s. Defendants were charged
with unlawfully charging tools upon bicycles, which the defendants claimed
were comprehended under the word carriage. Held, guilty. Per Lush, J:
A bicycle is not a carriage within the meaning of the Local Turnpike Act.
Where the words employed by the legislature do not directly apply to the
particular case, we must consider the object of the Act, and therefore in
Taylor v. Goodwin it was held that the words furiously driving any sort of
carriage applied to a bicycle, for it was the object of the Act to prevent any
injury from the furious driving of any kind of vehicle. The present Act begins
with imposing a toll upon particular carriages which are described or other
such carriage and then imposes a further tool upon every carriage of
whatever description, and for whatever purposes, impelled by steam or any
other power not being that of horses.
The carriages here referred to much be carriage ejusden generis with the
carriages specified. If a bicycle were held liable to pay toll as a carriage, I do
not know where we could draw the line.

c.

Cannan v. Abingdon (Earl) [1900] 2 QB.66. By a special Act, passed in 1767,

the owner of a bridge across the Thames and his heirs and assigns were
authorized to take rolls for the passage over the bridge For every coach,
chariot, berlin, hearse, chaise, chair, calash, wagon, wash, dray, cart, car or
other carriage whatsoever with four wheels the sum of four pence, and with
less than four wheels the sum of two pence. The defendant had ridden a
bicycle over the bridge. Held liable to pay the toll. A bicycle was a carriage
with less than four wheels. Again, bicycles had not been invented at the
time of the act, but lgham J. held this irrelevant and Philimore J. said:
I am of the same opinion. I think that in this case, it was intended by
the Legislature that all vehicles should pay toll, and I think that a bicycle or
a tricycle is a vehicle or is a carriage. Any mechanical contrivance,
which carries people or weights over the ground, carrying the weights or
taking the people off their own feet, so that the foot of man and the body
and trunk of man do not support his own weight or the weight of the

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burden carried, it, I think, a carriage, and I do note think it matters that the
man who is carried gives his own propulsion to the carriage. If he got the
propulsion by the application of levers worked with his hands, as one sees
men doing in the streets, the case would be tolerably clear, and I think it
makes no difference that he gets his propulsion by pedaling with his feetan operation which is perfectly different from the operations of walking,
running, or skating, in all of which he bears his own weight at the same
time that he moves himself. I therefore come to the conclusion that a
bicycle or tricycle is a carriage,
d.

Corkey v. Carpenter [1951] 1 KB 102, the Licensing Act 1872, s.12 provided
that every person who is drunk while in charge on any highway of any
carriage, horse, cattle, or steam engine was guilty of an offence. The
accused was found to be drunk while riding a bicycle. Held, guilty. Lord
Goddord C.J. The first thing to do in construing an Act of this sort is to see
what was the purpose of the particular section. Obviously it was passed for
the protection of the public and the preservation of public order It does
not follow that in every Act of parliament a bicycle is a carriage. That may
depend on the particular words of the Act in question, and where the
question has most commonly arisen is with regard to toll bridges, because the
proprietor of the toll-bridge has to show that the vehicle from which he seeks
a toll is covered by the words of Act After saying that he was following
Taylor v. Goodwin, the judge went on, That case, there cannot be any
distinction between a section in a highway statute passed for the protection
of the public and a section in a licensing statute passed for the same
purpose
Is it possible to lay down any general rule as to when a court will hold that a
bicycle is, or is not, a carriage.

JIVRAJ v. DEVRAJ
Court of Appeal for East Africa, [1968] E.A. 263
Sir Charles Newbold, P.: The appellant (hereinafter referred to as the plaintiff) is the
owner of certain premises in Nairobi. In 1960, by a verbal contract, he let those premises
on a monthly tenancy to the respondent (hereinafter referred to as the defendant). This
tenancy was duly determined by a notice to quit effective on June 30, 1966. The Rent
Restriction Act. (Cap. 296) (hereinafter referred to as the principal Act) in force during
the period of the tenancy did not apply to the premises. The defendant did not quit, so
on November 23, 1966, the plaintiff filed a suit seeking an order for delivery of the
premises, mesne profits, the payment of certain water and sweeper charges, and
interest.
On December 20, 1966, the Rent Restriction (Amendment) Act, 1966 (No. 37 of 1966 and
hereinafter referred to as the amending Act) came into operation and it brought the
premises within the ambit of the principal Act. In January 1967 the defendant filed a
defence claiming, inter alia, that the plaintiff was not entitled to an order for possession
by reason of the provisions of the amending Act. When the suit came on for trial, by
agreement the sole issue for decision by the court was whether the suit premises are
retrospectively subject to the Rent Restriction Act, 1959, as amended by the Rent
Restriction (Amendment) Act, No. 37 of 1966. The terms of the orders, which were to
follow the answer to this issue, were also agreed. On the hearing of the appeal counsel
for the defendant/respondent generously accepted that should the appeal be
successful the agreed form of order should include a reference to the amounts claimed
in respect of water and sweeper charges, as a reference to these charges had

128

inadvertently been omitted from the agreed form of order. It was also agreed by both
counsel for the defendant/despondent and counsel for the plaintiff/appellant that the
issue agreed upon was to be regarded as posing the question whether the amending
Act applied so as to prevent the plaintiff from obtaining the order for possession which he
sought in his plaint.
The trial judge held that the amending Act operated retrospectively so as to prevent the
plaintiff from obtaining an order for possession. In coming to that conclusion he relied
largely on the principle contained in Remon v.City of London Property Co. Ltd. ([1921] 1
K.B. 49) and an unreported decision of Rudd, J., in Durg Dass v. Gurdip Singh (Kenya
High Court civil Case No. 1327 of 1966), in which the principle in the Remon case was also
relied on. The trial judge, however, appreciated that there appeared to be, as he put it,
no theoretically sound answer to the objection to the amending Act applying to
persons who had ceased to be tenants before the commencement of that Act.
Counsel for the plaintiff/appellant submitted that both under the common law and
under s. 23 of the Interpretation and General Provisions Act (Cap.2) pending legal
proceedings are not affected by any change in the law unless the amending Act shows,
either expressly or by necessary implication, an intention that the new provision should
operate retrospectively and affect those proceedings; and he submitted that s. 13 of the
amending Act showed a clear intention that those provisions should not operate
retrospectively. He also submitted that the judge, in arriving at his decision, had failed to
consider that basic principle of the law and the decision in Noronha v. Devji ([1954] A.C.
49), and had failed to appreciate that in the Remon case there were no pending legal
proceedings. Counsel for the defendant respondent submitted that rent restriction
legislation was peculiar in that the law to be applied was the law at the date of the
judgement and not that at the date of the inception of the legal proceedings, and that
this arose from the decisions that on the commencement of any such legislation an extenant in possession of premises to which the legislation applies acquires the status of a
statutory tenant and thus comes within the legislation no matter when the legal
proceedings were instituted. Counsel for the defendant/respondent also referred to a
decision of Wicks, J., in Karmali v. Mulla 9[1967] E.A. 179), which though given under
different legislation, followed the principle set out in the Remon case (supra). He also
submitted that s. 15 (4) of the principal Act, as amended by the amending Act, showed
a clear intention that the legislation should operate retrospectively.
As the plaintiff had given the defendant a valid notice to quit effective on June 30, 1966,
after that date the plaintiff was entitled under common law to bring an action for the
recovery of the premises and the ejectment of the defendant there from. When the
plaintiff filed his plaint on November 23, 1966, s. 15 (1) of the principal Act, which provides
that no order for the recovery of possession of any premises or for the ejectment of a
tenant where from shall be made unless certain conditions are fulfilled, did not apply
as the premises were not premises to which the principal Act applied nor was the
defendant a tenant. When the amending Act came into operation bringing premises of
the class of which the defendant had previously been the tenant within the ambit of the
principal Act, the question which then arose was whether the defendant, who was
wrongfully in possession of these premises, could be regarded as being a tenant within
the meaning of the words quoted above in s. 15 (1). The principle contained in the
Remon case ([1921] 1 K.B.49) was that he could be. This in effect meant that the normal
law to be applied in rent restriction cases was that at the date of judgment and not that
at the date when the legal proceedings were initiated. The Remon case was a decision
in 1921 of the English Court of Appeal, which decision was followed nearly thirty years
later by the English Court of Appeal in HUTCHINSON V. Jauncey ([1950] 1 K.B. 574). As the
rent restriction legislation of Kenya is similar in a number of respects to that of England
and has the same basic object, decisions of the English Court of Appeal are not lightly to
be disregarded. On the other hand, as the principle contained in the Remon case

129

would seem to be contrary to a basic principle of the common law and to the principle
contained in s. 23 of the Interpretation and General Provisions Act, it is necessary to
examine the judgments in the Remon case in order to ascertain the reasoning which led
to the enunciation of the principle.
Where a person has ceased to be a tenant at a date prior to the date on which an
amending Act comes into operation normally that person could not be regarded as a
tenant at the date of the amending Act. The judges in the Remon case appreciated
that it would be straining the meaning of the word tenant to include within it a person
whose tenancy had been duly determined and who had no right to be in possession of
the premises at the date when those premises came within the ambit of the legislation
but who nevertheless had wrongly continued in possession. They considered, however,
having regard to the object of the legislation, which was the protection of certain
tenants, that the intention of the legislature would be defeated unless they gave to the
word tenant a strained and unnatural meaning. I consider that the judges failed to
appreciate that the amending Act would, without any straining of the meaning of
tenant, have applied naturally to all tenants, no matter whether the tenancy originated
prior to or subsequent to the commencement of the amending Act, so long as they were
still tenants in the ordinary meaning of that word when the amending Act came into
operation. In other words the judges in order to protect a very small class of persons, that
is persons who if their tenancy had continued would have come within the protection of
the amending Act but whose tenancy had been lawfully determined prior to the
operation of the Act and who had wrongly continued in possession until the Act came
into operation, gave a strained and unnatural meaning to a word and thereby infringed
rights which had crystallized before the legislation came into effect without there being
any express or necessary implication in the legislation itself that such rights were to be
affected. It cannot be said that merely because the legislation was designed to protect
a certain section of the community, that is tenants, therefore there was a necessary
intention that the legislation should have retrospective effect, as otherwise all legislation
designed to protect either a section of the community or the community as a whole
would, ipso factor, have retrospective effect. That is clearly not the law. I consider that
the decision in the Remon case ([1921] K.B. 49) was a wrong decision and the reasoning
on which it was based was false.
There is a principle of law, however, that where a court has interpreted the law in a
certain manner, particularly an interpretation which affects property rights, and that
interpretation has been acted upon for a considerable time, then that interpretation
should not be departed from unless it is clearly wrong and gives rise to injustice. The
principle in the Remon case, has, so far as I am aware, been acted on for a considerable
time and in addition to the decision the subject of this appeal, we have been referred to
two other decisions of the Kenya High Court which have adopted the Remon principle.
Thus unless it is possible to say that on the facts of this appeal there are circumstances
which enable the Remon case to be distinguished, it would then arise for consideration
whether, even if the decision in the Remon case was wrong it would result in more
injustice to depart from the principle than to adhere to it.
Counsel for the plaintiff/appellant submitted that there was a clear distinguishing feature,
which was that in the Remon case there were no pending legal proceedings when the
amending Act came into operation. This, in my view, constitutes a clear distinction from
the Remon case. It was, I have no doubt, this distinguishing feature which enabled the
Prinvy Council in Noronha v. Devji ([1954] A.C. 49) to hold on appeal from this court that
an amending Rent Restriction Act did not affect legal proceedings though this court,
following the principle in the Remon case, had earlier held that it did, without mentioning
in its judgment any of a large number of cases, including the Remon case, to which the
Board had been referred in the course of argument. Though the Remon case can

130

clearly be distinguished on that ground it is impossible to do the same with Hutchinson v.

Jauncey ([1950] 1 K.B. 574) to which both counsel for the defendant/respondent and
counsel for the plaintiff/appellant referred, as in that case there were pending legal
proceedings. A careful examination of the reason for the decision in that case, however,
shows that while the court was following the principle of the Remon case in the meaning
of the word tenant, nevertheless, as there were pending legal proceedings when the
amending Act came into operation, the amending Act was only held to apply because
on the construction of certain sections of that Act it was held that there was a necessary
intention that the amending Act should have retrospective operation. Even, therefore, if
this court were to hold, following the Remon case, that the word tenant could include a
person who had ceased to be one before the Act came into operation, is there
anything in the amending Act which shows that it was intended to affect legal
proceedings which had been instituted before the amending Act came into operation,
as opposed to those which were instituted subsequently? In my view, s.13 (2) is that the
amending Act is not to have retrospective operation. I accept counsel for the
defendant/respondents submission that s. 15 (4) of the principal Act shows an intention
that the section should have retrospective operation, but whether the section as
amended should have retrospective operation is a matter, I think, to be determined by
the principal Act.
In my view, therefore, the trial judge was wrong in coming to the conclusion that the
amending Act prevented the plaintiff from obtaining an order for possession and he
should have answered the issue in the negative and made the agreed order. I would,
accordingly, allow the appeal with costs, with a certificate for two advocates. I would
substitute for the judgment and decree of the High Court a judgment and decree of the
High Court a judgment and decree ordering the defendant to deliver up possession of
the premises within three months from the date of this judgment and ordering an enquiry
as to mesne profits and water and sweeper charges, unless the parties agree a figure as
to such profits and charges, with interest thereon at court rates. I would also order that
the plaintiff would be entitled to the costs of the suit on the higher scale but I would not
make an order for the costs of two advocates. As the other members of the court agree
it is so ordered.
[The concurring judgments of de Lestang, V.-P., and Spry, J. A. are omitted.]
NOTES AND QUESTIONS
1. Section 23 of the Kenya Interpretation and General Provisions Act to which
reference was made by Sir Charles Newbold, P., provides in relevant part as
follows:
Where a written law repeals in whole or in part any other written law, then, unless
a contrary intention appears, the repeal shall not(a)

(b)

(c)

affect any right, privilege, obligation or liability acquired, accrued or

incurred under any written law so repealed; or

(d)
(e)

affect any investigation, legal proceeding or remedy in respect of any

such right, privilege, obligation, liability, penalty, forfeiture or
punishment as aforesaid, and any such investigation, legal
proceeding or remedy may be instituted, continued or enforced, and
any such penalty, forfeiture or punishment may be imposed, as if the
repealing written law had not been made.

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What policy arguments can you make in support of this statutory presumption of nonretroactivity?
2. In the light of the policy justification for the Rent Restriction (Amendment) Act of
1966 which greatly extended the number of dwellings covered by controls and
further in the light of the presumption stated by Sir Charles Newbold in favour of
following the Remon precedent, even though wrong, unless it could be
satisfactorily distinguished, are you persuaded that the fact that legal
proceedings had been begun in the principal case but not in Remon provides a
satisfactory distinction?
3. To what extent is the Court in the principal case merely deciding a technical
point of law as against making an important choice of policy?

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