Legal Methods Ii

M4v LEGAL METHODS II M4v
LEGAL METHODS II TRAINING MANUAL
2019
1
TABLE OF CONTENT
TOPIC ONE 3
1.0 STATUTORY INTERPRETATION.......................................................................................3
1.1 Primary Rules to statutory interpretation...........................................................................5
1.2 Presumptions....................................................................................................................12
1.3 Internal/intrinsic aids to statutory interpretation..............................................................14
TOPIC TWO..................................................................................................................................15
2.0 DEVELOPMENT OF LAW OF NEGLIGENCE AND ITS 14 CASES.............................15
2.1 Historical Background of Law of negligence..................................................................15
2.2 Development of the law of Negligence...........................................................................16
2.3 Development of the law of negligence at present............................................................26
2.4 Elements necessary in establishing the tort of negligence...............................................27
2.5 Application of the doctrine of the law of negligence in Tanzania...................................29
2.6 To establish the proceeding under this doctrine one could undergone the following rules;
...............................................................................................................................................30
2.7 Possible defenses in tort of negligence............................................................................31
TOPIC THREE..............................................................................................................................34
3.0 LOGIC AND LEGAL REASONING..................................................................................34
3.1 Introduction......................................................................................................................34
3.2 Syllogisms and sorities....................................................................................................34
3.3 Sority/sorities...................................................................................................................36
3.4 Inductive reasoning..........................................................................................................36
3.5 Deductive reasoning........................................................................................................37
TOPIC FOUR................................................................................................................................39
4.1 STARE DECISIS.................................................................................................................39
4.2 Introduction......................................................................................................................39
4.3 An explanation of judicial precedent in england and wales, how it is formed and how it
works......................................................................................................................................39
4.4 Kinds of precedent...........................................................................................................40
4.5 Evasion techniques..........................................................................................................42
TOPIC FIVE..................................................................................................................................44
5.0 APPLICATION OF THE COMMON LAW DOCTRINE IN ENGLAND..............44
5.1 Stare decisis in England...................................................................................................44
5.3 Application of precedent in England (the court of appeal)..............................................45
2
TOPIC SIX....................................................................................................................................47
6.0 APPLICATION OF PRECEDENTS IN EAST AFRICA....................................................47
6.1 Introduction......................................................................................................................47
6.2 Privy council....................................................................................................................47
6.3 Decisions on statutes in pari material..............................................................................48
TOPIC SEVEN..............................................................................................................................51
APPLICATION OF PRECEDENT IN TANZANIA.................................................................51
3
TOPIC ONE
1.0 STATUTORY INTERPRETATION
Statutory interpretation is the process by which courts determine the meaning of statutory
provisions for the purpose of applying them to factual situations before them. It is a process
which is essential because; – There are no universal ways of drafting statutes – There are
sometimes hidden intentions of law makers which cannot easily seen by just reading the
provision of the statute – Interpretation of the statute may sometimes be difficult whenever
words used have more than one meaning or they are ambiguous – Statutes are always open to all
manner of argument and interpretation.
4
There are a number of factors which can lead to an unclear meaning; – A broad term In the case
of London and North Eastern Railway Company v Berriman [1946] 1 All ER 255, Mr
Berriman was a railway worker who was hit and killed by a train while he was doing
maintenance work. Regulations stated that a lookout should be provided for men working on the
other railway line ‘for the purposes of relaying or repairing it’. Mr Berriman was maintaining the
line. His widow tried to claim compensation for his death because the railway company had not
provided a lookout man.
The court ruled that the relevant regulation did not cover maintenance work and so Mrs
Berriman's claim failed. The court looked at the specific words in the regulation and was not
prepared to look at any broad principle that the purpose of making a regulation that a lookout
man should be provided was to protect those working on railway lines. – Ambiguity – A drafting
error – Wording may be inadequate – New developments, e.g technological devt – Changes in
the use of language
It has to be understood that; – The role of making law is on the parliament – The role of the
Judiciary is to apply and interpret the law – Hence courts should avoid to usurp the powers
vested to the parliament by making law Nonetheless, courts are custodians of people’s rights.
Thus in the course of interpreting law they have to ensure that justice is always served.
Continue
The interpretation of statutes may be; – Strict – Liberal In course of interpreting statutes, courts
have developed guiding approaches or rules which are grouped into two; – Main
principles/Primary rules to statutory interpretation – Subsidiary/Secondary rules to statutory
interpretation
1.1 Primary Rules to statutory interpretation

These include; – Literal/Plain Meaning rule – Golden rule – The Mischief Rule/The Heydon’s
case Rule – The Purposive/teleological approach rule These are merely different approaches to
statutory interpretation and they are not binding to the courts. In course of developing arguments,
courts may adopt any or combination of the above rules.
a) Plain Meaning Rule
5
This is the rule that is founded on latin maxim ‘litera legis ita scripa est.’ The rule is based on the
assumption that the words chosen by the parliament in the Act clearly show the intention in
passing that Act. – Court should not be allowed to add, taking from or modifying letters of the
statute.
Lord Diplock states;– “…, the role of the judiciary is confined to ascertaining from the words
of that the parliament has approved as expressing its intention, what that intention was and so
giving effect to it. Where the meaning of the statutory words is plain and unambiguous it is
not for judges to invent fancied ambiguities as an excuse for failing to give effect to its plain
meaning because they themselves consider that the consequences of doing so would be
inexpedient, or even unjust or immoral…” In the case of Duport Steel v Sirs [1980]
The rule emphasizes that it is not for the court to decide whether changes should be made to the
law. Courts have to interpret the words of a statute in their ordinary and natural or grammatical
meaning. – What literalist would be looking for is the primary or most obvious meaning of the
word, not any general or secondary meaning. – It is what it means and not what it might mean.
Under Literal rule, courts have to adopt the grammatical or ordinary meaning of the words as
they appear in the statute – It is expected by citizens that laws will be applied by the courts as
they appear – Hence legislative text is presumed to be coherent and consistent and thus
preferable compared to any other external influence. Under this rule the judge considers what the
statute actually says, rather than what it might mean.
In Tanzania one of the case that applied this literal or plain meaning rule is the case of Singida
RTC v Tanzania Telecommunication Corporation [1979] LRT n.11 – In this case, the
plaintiffs dispatched a telegram at Singida Post Office, which is owned by the defendants, to
GALCO at Dar es Salaam. – The said telegram required the said GALCO at Dar es Salaam to
dispatch four thousand corrugated iron sheets to the plaintiffs. Owing to the negligence of the
defendant’s servant either at their Singida post office or at one of their post offices at Dar es
Salaam ‘four thousand’ read ‘forty thousand’. – Upon receipt of the wrongly worded telegram,
GALCO dispatched a first consignment of twelve thousand corrugated iron sheets to the
plaintiffs. – In turn the plaintiffs were forced to transport back to GALCO the excess amount of
6
corrugated iron sheets at a cost of shs 39,200/= which amount they were claiming from the
defendants. Sections 73(b) and 117 of the Act which provided that the defendant corporation
shall not incur any liability by reason, inter alia, of any delay in the transmission of any telegram
or by reason of any error in, omission from or non-delivery or misdelivery of any telegram. –
The Counsel for the plaintiffs contended that the statutory provisions were not intended to cover
all types of errors.
In solving the issue the Court had this to say; – The Cardinal canon of construction of statutes is
to give the words used in a statute their ordinary 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. The Court emphasized that the
principle of interpretation can only be departed from where the statute is vague or ambiguous.
Therefore the Court held; – 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. It
observed further that; – It is true that these statutory provisions do erode the common law rights
of an individual in that they take away his right to sue in negligence.
But 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
legislature was to place the common law rights of the individual in the second place. It has to be
noted that, in arriving to this conclusion, the Court resorted to Regulation 5(b) of the Regulations
made under the Act and found out that the Parliament meant what it stated.
The literal rule has both advantages and disadvantages. – Constitutionally it respects
parliamentary supremacy and the right of Parliament to make any law it might wish no matter
how absurd they may seem. – It also encourages precision in drafting and ensures that anyone
who can read legislative text can determine the law, which promotes certainty and reduces
litigation.
Some disadvantages, however, can also be identified. – It fails to recognize that the any language
itself may be ambiguous and that words may have different meanings in different contexts. – The
use of this rule can sometimes lead to absurdities and loopholes which can be exploited by an
7
unmeritorious litigant. – Judges have tended to over-emphasize the literal meaning of statutory
provisions without giving due weight to their meaning in a wider context.
Placing emphasis on the literal meaning of words assumes an unobtainable perfection in
draftsmanship. – Finally, it ignores the limitations of language including developments that may
take place.
b) The Golden Rule

This is the rule that is more or less similar to the literal rule. – It is the rule that prefers
interpretation of the statutory provisions by looking at the ordinary and grammatical meaning of
the words except where by doing so would lead to absurdity.
Glanville William says; – …the Courts sometimes allow themselves to construe a statute in
such a way as to produce a reasonable result, even though this involves departing from the
prima facie meaning of the words.
This rule is used by judges when in course of interpreting statutory provisions they find out that
the meaning is ambiguous and to follow such meaning will lead to absurdity. Michael Zander
says; – …the Golden rule does at least have the saving grace that it may protect the court from
egregious foolishness. The term absurd simply means wildly unreasonable, illogical or
inappropriate.
In Tanzania, the case of Joseph Warioba v Stephen Wassira and Another [1997] TLR 272
(CA) demonstrates the application of the Golden Rule. – In this case the first respondent Mr.
Stephen Masatu Wassira was elected Member of Parliament for Bunda constituency, but
subsequently his election was nullified by the High Court (Lugakingira, J) upon an election
petition filed by the appellant, Mr. Joseph Sinde Warioba.
In the course of dealing with that petition the trial judge found that the respondent had committed
an act of corrupt practice, but declined to certify the same to the Director of Elections in terms of
s 114 of the Elections Act. The appellant was aggrieved by such omission, hence this appeal. –
The main issue was whether the learned trial judge erred in law when, having correctly found the
Respondent to have committed corrupt practices, he declined to certify to the Director of
Elections that the Respondent is guilty of corrupt practices.
The trial judge declined to certify to the Director of Elections because corrupt practice was not
made the subject for certifying to the Director under s 114 of the Elections Act. – The Act
8
provided for certifying to the Director of Elections the finding of illegal practice only, not corrupt
practice. – Section 114(1) of the Elections Act stated: 114(1) Where the Court determines that a
person is guilty of any illegal practice, it shall certify the same to the Director of Elections ...'
Counsel for the respondent had contended before the High Court that in the absence of any
reference to `corrupt practice' in the provision, there could be no basis for requiring that Court to
certify any finding of corrupt practice to the Director of Elections. – To counter that argument,
counsel for the appellant submitted that the omission to require findings of corrupt practice to be
certified to the Director of Elections was simply through inadvertence.
Hence the Court of Appeal was called upon to determine whether such an omission was
deliberate or was through inadvertence. Having examined carefully the historical background
towards the amendments to the Elections Act the Court observed;
It would, therefore, be absurd,…for Parliament to empower the elections court to certify for
sanctions persons found guilty of illegal practice but to let those found guilty of corrupt practice
go scot free, especially considering the fierce war which the society has been waging against
corruption in recent years, and continue to do so in the present day. Had Parliament been
appraised of such blatant absurdity at the time of enacting the Act, it would have taken steps to
remove it; we feel justified to construe s 114 in such a way as to achieve just that which
Parliament had set out to do, and no more.
The Court added further that; – Section 114, literally construed, would be discriminatory in its
effect because, as already noted, it empowers the court to certify for sanctions persons found
guilty of illegal practice while conferring no such power on the court in respect of those found
guilty of corrupt practice which is a similar or even more serious offence. This would contravene
Article 13(2) of the Constitution of the United Republic which in effect prohibits the enactment
of any law which is either directly discriminatory or is discriminatory in its effect.
Another case which can demonstrate the application of Golden Rule Julius Ishengoma Francis
Ndyanabo v The A.G, Civil Appeal No. 64 of 2001 (CA) (Unreported)
c) The Mischief Rule

This is sometimes called the rule Heydon’s Case (1584) The Court ruled that for the sure and
true interpretation of all statutes four things must be considered; – What was the common law
before the statute was made? – What was the mischief and defect for which the common law did
9
not provide? – What remedy has Parliament appointed to cure the disease of the
Commonwealth? – The true reason of the remedy
Judges of Exchequer stated further that; – It is the role of the judges to make construction which
will suppress subtle inventions for continuing the mischief – To add force and life to the remedy
according to the true intention of the makers of the Act The Mischief Rule has significantly
influenced the interpretation of statutes that takes into consideration the historical background of
the particular Act
Continue
Michael Zander says; the mischief rule is designed to get the Court to consider why the Act
was passed and then to apply that knowledge in giving the words under consideration
whatever meaning will best accord with the social purpose of the legislation. – Simply this rule
tries to interpret statutory words by looking at the intention of the parliament through the
history of enactment of a particular Act.
In Tanzania, the case of Bi Hawa Mohamed v Ally Sefu [1983] TLR 32 (CA) demonstrates
application of this rule. The Court observed as to the meaning of this rule; – Under this rule, the
court, in looking for the true meaning of ambiguous statutory provisions, is guided by the defect
or mischief which the statute was enacted to rectify or cure.
Continue
In this case; – The appellant and respondent were wife and husband respectively until the
dissolution of their marriage by a court decree of the Primary Court of Ilala District at Kariakoo,
Dar es Salaam in 1980. – In subsequent proceedings the Primary Court held that the appellant
was not entitled to any share in the matrimonial assets as she was a mere wife and that the house
was bought by the husband's money. – On appeal to the High Court, the Primary Court's decision
was substantially upheld. – This was a second appeal to the Court of Appeal.
The issue before the Court of Appeal was; – Whether the High Court and Primary Court erred in
law in holding the view that domestic services of a housewife do not amount to contributions
made by her in the acquisition of matrimonial assets. The issue centered on whether matrimonial
home was acquired by the joint efforts of the appellant and respondent and what is the
contribution of each party to such efforts.
10
The Court hence stated; – On examination of the Law of Marriage Act, 1971, and the law as it
existed before its enactment, one cannot fail to notice that the mischief which the Law of
Marriage Act, 1971 sought to cure or rectify was what may be described as the traditional
exploitation and oppression of married women by their husbands.
The Court added further that; – It is apparent that the Act seeks to liberate married women from
such exploitation and oppression by reducing the traditional inequality between them and their
husbands in so far as their respective domestic rights and duties are concerned. Although certain
features of traditional inequality still exist under the Act, such as polygamous marriages, these do
not detract from the over-all purpose of the Act as an instrument of liberation and equality
between the sexes.
Continue
Having determined such mischief which the law intended to cure. The Court concluded that; –
Guided by this objective of the Act, we are satisfied that the "joint efforts" and "work towards the
acquiring of the assets" have to be construed as embracing the domestic "efforts" or "work" of
husband and wife. Nonetheless such conclusion did not help the appellant since her appeal was
dismissed on other grounds. – Read also the Case of Asha Soud Salim v Tanzania Housing
Bank (T.H.B) [1983] TLR 32
d) The Purposive Approach Rule

It is sometimes called the teleological approach. It is a rule that focuses on the intention of the
parliament. It is frequently used in combination with the Golden rule or Mischief rule. It is a rule
of construction that identifies the overall purpose of the legislation
Different from Mischief or Golden rule, in discerning such an intention, – Attention is not
typically limited to the context in which the text was originally enacted – Frequently reference
may be made to more recent events so as to produce an intention that relates to all cognate
provisions of the law currently in force. – The aim is to update the intention of the parliament
with the prevailing circumstances.
11
Purposive approach is a new invention in the rules of statutory interpretation and it is commonly
used in European Union. In Tanzania the case of Joseph Warioba v Stephen Wassira and
Another [1997] TLR 272 (CA) demonstrates the application of this rule. Having considered
counsels submissions in this case, the Court observed;
We think that this is a fit case where, the court should interpret s 114 as including or extending to
corrupt practice. The view that nothing should be added to a statutory provision was widely
accepted by the courts in England during the nineteenth and first half of the twentieth century.
Thus for instance, in R v Judge of the City of London Court (1) at 290 the Court of Appeal
(per Lord Esher, MR) said, inter alia, that: If the words of an Act are clear, you must follow
them, even though they lead to a manifest absurdity. The Court has nothing to do with the
question whether the legislature has committed an absurdity.'
The Court proceeded to cite English Authorities on that position saying; – Re-affirming that
view, the House of Lords (per Lord Atkinson) in the case of Vacher and Sons Ltd v London
Society of Compositors (2) at 121 said: a Court of law has nothing to do with the reasonableness
or unreasonableness of a provision of a statute, except so far as it may help it in interpreting what
the Legislature has said. If the language of a statute be plain, admitting of only one meaning, the
Legislature must be taken to have meant and intended what it has plainly expressed, and
whatever it has in clear terms enacted must be enforced though it should lead to absurd or
mischievous results.'
Those were observations which were cited from cases which were in favor of the Literal/Plain
meaning rule. In order to adopt the purposive approach the Court of Appeal observed; –
However, over the years this position has changed, and the view today is that in interpreting a
statutory provision the court may, in a fit case, read words into the provision.
The Court continued to say – Thus, for instance, in Kammins Ballrooms Co Ltd v Zenith
Investments (Torquay) Ltd (3) at 893 the House of Lords (as per Lord Diplock) adopted what
was described as the `purposive' approach, instead of the literal approach, and imputed to
Parliament `an intention not to impose a prohibition inconsistent with the objects which the
12
statute was designed to achieve, though the draftsman [had] omitted to incorporate in express
words any reference to that intention'.
The Court added further that; – That approach was re-echoed and elaborated upon by the Court
of Appeal in Northman v Barnet London Borough (4) at 1246 where Lord Denning, MR said:
`The literal method (of construction) is now completely out of date. It has been replaced by ... the
"purposive" approach. In all cases now in the interpretation of statute we adopt such a
construction as will promote the general legislative purpose underlying the provision. It is no
longer necessary for the judges to wring their hands and say: There is nothing we can do about it.
Whenever the strict interpretation of a statute gives rise to an absurd and unjust situation, the
judges can and should use their good sense to remedy it -- by reading words in, if necessary -- so
as to do what Parliament would have done had they had the situation in mind.'
The Court hence arrived to a conclusion that; – Consistent with such holding, the Court declined
to adopt the literal approach, and instead read A words into the provision of the statute which it
was construing. We find these last two cases to be very persuasive. [Emphasis is mine] Hence in
this case the Court used a combination of two approaches; Golden Rule and Purposive Approach.
– Read also the Case R v Mbushuu Alias Dominic Mnyaroje and Kalai Sangula [1994] TLR
146 (HC)
1.2 Presumptions
When determining the meaning of particular words the courts will make certain presumptions
about the law. If the statute clearly states the opposite, then a presumption will not apply and it is
said that the presumption is rebutted. – In terms of statutory interpretation, presumptions help the
court in drawing an inference towards the existence of a certain fact or point of law unless the
contrary is proven.
Examples of presumptions include; – Presumption against extra-territoriality application of the

law – Presumption against ousting court’s jurisdiction – Presumption in favour of strict
construction of penal statutes – Presumption in favour of liberty of an individual especially
13
where custodial sentence is involved – Presumption that an Act of the Parliament must be
intravires the Constitution, e.t.c
Some of the presumptions have been expressly provided in some of statutes, e.g; – Presumption
as to existence of a certain fact, s.5 of the Evidence Act, Cap 6 R.E 2002 – Presumptions as to
documents, s 88-99 of the Evidence Act, Cap 6 R.E 2002 – Presumption of death, marriage and
validity of a registered marriage, s 159-161 of the Law of Marriage Act, Cap 29 R.E 2002, e.t.c
Rules of Language/Logical aids to statutory interpretation
In some instances the courts may choose to look at other words in the statute to ascertain the
meaning of specific words. To enable them to do this they have developed a number of rules of
language to help make the meaning of words and phrases clear. There are three main rules of
language: – Ejusdem generis rule – Expressio unius est exclusio alterius rule – Noscitur a sociis
rule
(i) Ejusdem generis rule
This rule states that where there is a list of words which is followed by general words then the
general words are limited to the same kind of items as the specific words. – In the case of Powell
v Kempton (1899) AC 143, a ring at a racecourse was held not to fall within the terms ‘house,
office, room or other place’ because the list of words indicated that ‘other place’ should be
construed as an indoor place.
In the case of Julius Petro v Cosmas Raphael [1983] TLR 346 the late Mwalusanya, J was
called upon to determine the scope of the term “relative” and he stated; – As to what is 'relative'
it is not defined… At least there should be closeness of blood relationship. On the principle of
ejusdem generis rule of interpretation the word 'relative' should be restricted to near relatives not
distant relatives, so that we do not venture very far from related members of the household
contained on the second part of that phrase. Read also the case of; – DPP v Bernard Njavike
[1988] TLR 18 (CA)
(ii) Expressio unius est exclusio alterius rule
14
Expressio unius est exclusio alterius-the express mention of one thing excludes others. – That is,
where matters are expressly stated, then any other matters of the same class not so expressly
stated are excluded-see the case of The A.G and 2others v Aman Walid Kabourou [1996]
TLR 156 (CA) Where there is a list of words which is not followed by general words, then the
Act applies only to the items in the list. In the case of R v Inhabitants of Sedgley (1831) it was
held that the use of the words ‘lands, houses and coalmines’ excluded application to other types
of mine.
(iii) Noscitur a sociis

A word is known by the company it keeps. The words must be looked at in the context and
interpreted accordingly. – This involves considering other words in the same section or other
sections of the Act. – In the case of Muir v Keay (1875) LR 10 QB 594, the purpose of
licensing theatrical or musical entertainment did not fall within the words of the Act covering
houses ‘for public refreshment, resort and entertainment’, because the word ‘entertainment’ in
the Act referred to refreshment houses, receptions and accommodation of the public.
1.3 Internal/intrinsic aids to statutory interpretation

Intrinsic aids are matters within an Act itself which may help make the meaning clearer. The
court may consider; – The long title, – The short title – Preamble – Headings before a group of
sections – Schedules attached to the Act. – Marginal notes explaining different sections;
In most cases intrinsic aids are not generally regarded as giving Parliament's intention as they
will have been inserted after parliamentary debates and are only helpful comments put in by the
printer. Schedules, however, are in most cases part of the statute and the statute has to be read
together with what schedules have provided for.
Read the following cases on the use of intrinsic aids; – DPP v Bernard Njavike [1988] TLR 18
(CA) – A.G v Lohay Akonaay and Joseph Lohay [1995] TLR 80 (CA) – DPP v Daudi Pete
15
[1993] TLR 22 (CA) – Willow Investment v Mbomba Ntumba and Another [1996] TLR 377
(HC)
Extrinsic/External Aids to statutory interpretation
These are sometimes known as Travaux Preparatoires – They are matters which may help put
an Act into context. – They assist in understanding the objective behind the enactment of the Act
by exploring the true intention of the Parliament
Sources include; – Previous Acts of Parliament on the same topic, – Earlier case law, –
Dictionaries of the time, – The historical setting. – Hansard – Commissions’ reports. – Bills,
Whitepapers – Conventions, Regulations, Directives e.t.c
At Common law the use of Hansard was permitted following the decision in Pepper (Inspector
of Taxes) v Hart (1993) where the House of Lords accepted that Hansard could be used in a
limited way. – It permitted Hansard to be used where the legislation is ambiguous or obscure or
leads to an absurdity, and the material relied on comprises one or more statements by a Minister
or other promoter of the Bill and such other parliamentary material as is necessary to understand
the statements, and the effect and the statements that were relied on have to be clear.
TOPIC TWO
2.0 DEVELOPMENT OF LAW OF NEGLIGENCE AND ITS 14 CASES
2.1 Historical Background of Law of negligence

The second half of the 19th Century is generally marked as the time when the law of negligence
was entering its second era of development. This time witnessed the great expansion of legal
protection to persons who got injured in different places. The courts tried to use the so called
antiquated rules in order to break through the narrow compass within which the law of
negligence was in its embryonic stage.
The development of the law of negligence took a kind of a process which was circular in nature
There was a back and forth movement manifested in three main steps which are:
16
i. Enunciation of the rule

ii. The application of the rule to a future case
iii. Establishment of the rule. The judges limited themselves to apply the theories within the
existing laws and not otherwise.
The judges during this time were not ready to open up the courts to a floodgate of litigation.
Even in those cases where courts were seen to have opened up a new ground of liability, such a
ground was bound to face a number of qualifications. Judges were not ready to open up a
pandora box. They considered themselves to be content with pigeonholes of liability rather than
broader rules of liability.
It is said that because the development of the law of negligence was not in the straight motion to
the extent that slowly the court developed new theories apart from the strict ones and invite other
theories within their decisions as it will be supported by different cases decided by those courts.
2.2 Development of the law of Negligence

The tort of negligence developed relatively late in English legal history in the 800 years ago,
early days of common law where by the state had little concern regarding individuals and their
interactions. In the year of 1300, the monarchy began to take an interest in individual
interactions. Trespass began the law of torts. However, a party wanting to bring an action for
trespass had to follow strict forms- their trespass must fit a writ. Instead of focusing on causation,
courts began to see fault as most important for actions on the case.
Before 1932 there were no such things as a ‘tort of negligence’. Third parties who suffered as a
result of a breach of contract had no remedy, because they were not a part to the contract and
thus excluded by the doctrine of privity. The tort of negligence eventually started to develop
from various forms of action on the case.
We are going to examine cases on the development of the notions of negligence on a
case to case basis. In each case you will be required to know the parties, the citation
of the case, judges (judge), the material facts, issue(s), arguments by parties and the basis
of their argument, the actual decision of the court (holding) and the reasons for so
holding (ratio decidendi) and other rules by the Court, orders and the use of precedents.
The first discussion on whether a duty of care could extend to third parties was raised in
Langridge v Levy, where by the court refused to set a precedent by imposing a duty of care to
17
third parties, because this might result in indefinite liability (open the floodgates and everyone
could sue). However, the court awarded damages to the plaintiff on the basis of fraud, a duty
arose that the gun should be safe because of the defendant's representation that it was. That duty
extended itself to the plaintiff because the defendant knew the plaintiff would be using it.
1. LANGRIDGE V. LEVY [1837]

FACTS
the father of the plaintiff brought from the defendant a gun telling him that it was to be used by
himself and his sons. The defendant falsely represented to him that the gun was safe, good and
secure. The gun turned out to be unsafe, ill manufactured and dangerous and while being used by
the plaintiff, it exploded and injured the plaintiff.
HOLDING;
in favour of the plaintiff
Ratio decidendi
Where the plaintiff knowingly sold a gun to the father for the use of himself and his sons and had
knowingly made a false 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.
NOTE
This was the case decided on the ground or basis of implied contract warrant and knowledge of
the user where the article is not dangerous in itself.
2. WINTERBOTTOM V. WRIGHT [1842]

FACTS
A contracted with the Post Master General to provide a mail coach to convey mail bags along a
certain line of the road. At the same time, B contracted to hire horses to coach along the same
line, at the same time. B and his other co contractors hired 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 injury
sustained in the cause of driving the coach while broke down due to latent defects in the
construction of the way.
HOLDING:
18
Judgment for the defendant

: RATIO DECIDENDI
Where there is no contract or the injured party is no privy to the contract entered, there is no
action which can be taken or maintained within the eyes of the law. This is the case in which
the court decided that the injured party cannot be compensated if he/she is too remote to be
contemplated by the defendant
3. LONGMEID V. HOLLIDAY [1851]

FACTS
The defendant a retailer supplied a lamp to the plaintiff’s wife for the purpose of being used by
him and his wife. The lamp was defectively constructed but the defendant could not have not
known that as he was not the manufacturer. While using the said lamp, the lamp exploded and
severely injured the plaintiff’s wife.
HOLDING: The defendant not liable
RATIO DECIDENDI:
Where in the ordinary cause 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
The court distinguished Langridge v. Levy, this time on the ground that that was a case of fraud.
The court thus held that there is no liability to third parties when a person supplies under contract
and without fraud a thing not dangerous in itself but which became so by a latent defect
unknown to the supplier, although discoverable by the exercise of ordinary care.
4. GEORGE V. SKIVINGSTON [1869]

FACTS
The plaintiff purchased a chemical compound from the defendant as a hair wash for the use of
his wife. The defendant represented it to be fit and proper to be used for washing the hair. The
compound was so negligently and improperly made. When the plaintiff’s wife applied it she
sustained injuries.
HOLDING:
19
judgement for the plaintiff.

RATIO DECIDENDI:
As between the defendant and the wife, there was no contract. The case of Langridge V. Levy
was cited with approval where the court said that if negligence is substituted for fraud, the
analogy between Langridge V. Levy and the case at hand becomes complete The case of
Longmeid v. Holliday is distinguished on the ground that in that case, there was no negligence
on the facts
NOTE
This is a case where the seller of the article that caused injury was also a manufacturer of the
article and knew who the consumers were
5. HEAVEN V. PENDER [1883]

FACTS
The plaintiff was a workman employed by a ship painter. The ship painter entered into the
contract with the ship owner whose ship was in the defendant’s dock for the purpose of being
painted. The defendant, the dock owner supplied under a contract with the ship owner, an
ordinary stage to be slung outside the ship to facilitate in painting the ship. The ropes by which
the stage was slung had been scorched and were unfit for use. When the plaintiff began to use the
stage, the ropes broke, the stage fell and the plaintiff was injured.
HOLDING:
Judgment in favors of the plaintiff.
RATIO DECIDENDI:
Whenever one person is by circumstances placed in such a position with regard to another that
every one of ordinary care and skill in his own conduct with regard to these circumstances, he
would cause danger of injury to the person or property of the other, a duty arises to use ordinary
care and skill to avoid such a danger.
NOTE
This is a case in which judges reached the same decision but used not only different principles
but also different patters of reasoning. Important for the future development of the law of
negligence was the decision of the minority judge (Brett MR) “Whether the defendant owed a
duty of care to the plaintiff”
20
6. DERRY V. PEEK [1889]

FACTS
The defendants represented in their prospectus that their company had been given special
permission by an Act of parliament to use steam power in propelling tramways. The plaintiff
relying on this representation bought shares in the defendants’ company. The board of trade,
however, refused to consent to the use of steam power. Consequently, the defendants company
suffered heavy loss and had to be wound up. The plaintiff brought an action of deceit against the
defendant
HOLDING:
The Court of Appeal held that, 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. The Appeal was
allowed and the order of the court of appeal was reversed.
RATIO DECIDENDI
In an action of deceit, the plaintiff must prove actual fraud that is a 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
NOTE
This was/is the first case of negligent statements causing financial loss
7. LE LIEVRE & DENNES V. GOULD [1893]

FACTS
H. The owner of the land arranged with D for 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 the 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.
The plaintiff filed their plaint alleged that H in employing G to give the certificate, was acting as
the agent of the plaintiffs and that in giving the certificate the defendant acted fraudulently or
21
negligently. The defendant denied that he had been employed by D or on his behalf to give the
certificates. He also denied the charge of fraud and negligence.
In dealing with the previous authorities, the court said the ratio decidendi in D v. P was a wide
one. Lord Esher cited his own opinion in H v. P but distinguished it saying that it had to be
narrowed down in order to apply only to situations where there is physical proximity between the
parties. He was of the view that a person would only be liable if he was near the person injured
by which he meant physically near the person. The court faced by its own decision in H v. P
circumvented it by saying that the minority rule in H v. P was too wide and the majority rule had
no application in the facts of the case at hand. The defendant was held not liable.
In appeal also the appeal was dismissed and the judgement was given in favour 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 in the case of Heaven V. Pender
8. NOCTON V. LORD ASHBURTON [1914]

FACTS
The plaintiff Lord Ashburton claimed damages from Nocton, the defendant who was a lawyer on
the ground that he had suffered loss as the result of improper advice which he had been given by
Nocton and had been induced to act upon him. (he had been advised to release part of a
mortgaged security). As a result of acting upon that advice, he suffered loss ( the security
released became insufficient).
The court of first instance held that there has been no fraud and dismissed the action. The court
of appeal reversed that finding and granted relief on the ground that Nocton had been guilty of
actual fraud. The House of Lords held that the Court of Appeal had been wrong in reversing the
finding of fact of the trial judge.
Their Lordship went on, however, to hold that the plaintiff had been entitled to succeed even in
the absence of actual fraud on the basis that duty arising out of his fiduciary relationship with the
22
plaintiff and as the result of that breach the plaintiff had suffered loss. The decision of the Court
of Appeal was therefore affirmed but on different grounds
Whether such a duty has been assumed must depend on the relationship of the parties
NOTE:
This is the case of a Lawyer-client relationship: Fiduciary relationship and the law of England.
9. DONOGHUE V. STEVENSON [1932]

FACTS
A friend bought a bottle of ginger beer made of dark opaque glass and manufactured by the
defendant and gave it to his girlfriend, the plaintiff. The plaintiff drank some, then discovered
that there were some reminants of a dead snail in the bottle. As a result, the plaintiff became
seriously ill. The plaintiff sued the defendant to recover damages for negligence by the defendant
in manufacturing the beer.
Lord Atkin approved of Brett’s proposition in Heaven V. Pender but discarded the limitation of
nearness or physical proximity put on it by court of Appeal in L V. G He went on to state his
famous neighborhood principle: Acts or omission which any moral code could censure cannot in
a practical world be treated so as to give a right to every person injured by them to demand a
relief. In this way rules of law arise which limit the range of complainants and the extent of their
remedy
The rule that you are to love your neighbor becomes in law, you must not injure your neighbor
and the lawyer’s question “who is your neighbor?” received a restricted reply you must take
reasonable care to avoid acts which you can reasonably foresee would be likely to injure your
neighbor. Who then in law is my neighbor?
The answer seems to be persons who are so closely and directly affected by my act that I ought
to have them in contemplation as being so affected when I am directing my min d to the acts or
omissions which are called in question. Lord Atkin further said that the test of proximity
introduced by Lord Esther in L v. G should not be confined to physical proximity.
23
After propounding the neighborhood principle, he went on to hold that 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 form in which they left him, with no reasonable possibility of intermediate
examination and with the knowledge that the absence of reasonable care in the preparation or
putting up of the products will result in injury to the consumer’s life or property owes a duty to
the consumer to take that reasonable care. The defendant was thus held liable. The case was
decided by a majority of 3-2
IMPORTANCE OF THAT CASE

This is a case which finally establishes the concept of negligence known in the law of torts today.
This notion introduces three aspects for it to be completed. Negligence consist in the duty of
care, breach of the duty and damage. A person alleging that another person was negligent must
necessarily prove these three things if he is to succeed at all
10. FARR V. BUTTERS BROS & CO [1932]

FACTS
The defendants who were the manufacturers supplied a crane, in parts to the builders. The
deceased an employee of the builders supervised the assembly of the crane. While assembling
the crane, he discovered a latent defect in one of the parts but he started operating the crane
before rectifying the defect. He was killed when a jib fell, the death being caused by the defects.
The widow sued the manufacturer of the crane in negligence.
At the time this case was being heard in the High Court, the case of D V. S had not yet been
decided. The court said that it would have preferred to follow Brett’s decision in H v. P as to
suppliers of goods but as that was minority rule, it was bound by the majority rule in H V. P thus
the trial court held that the defendant was liable.
The defendant then appealed to the court of appeal. At that time the High Court had already
given the decision in D V. S, the Court of Appeal thus considered the rule in D V. S but found
that it could not apply in that case because whereas in D V. S the defendants were held liable
because the goods were manufactured in such a condition that there was no reasonable
possibility of intermediate inspection of the goods, in F V. B there was a reasonable possibility of
intermediate inspection
24
Relying heavily on the material facts that the defendant actually knew of the defect having
discovered it but continued to work with the crane they allowed the appeal by the defendants i.e.
held that the defendants were not liable.
Sunday, March 10, 2019 [email protected] 41
NOTE
This is a case where the principle of proximity enunciated in D V. S could not be applied because
the husband of the plaintiff had had a chance of intermediate inspection of the machines which
caused his death. Scrutton L J in this case makes it explicit that English judges in making
decisions are controlled by the facts before them.
11. GRANT V. AUSTRALIAN KNITTING MILLS [1936]

FACTS
The plaintiff contracted a skin disease from wearing a pair of woolen pants manufactured by the
defendant which were defective in that they contained excessive quantities of a chemical which,
it was found, had been negligently left in the process of manufacture. When the plaintiff wore the
pants after buying them, he contracted dermatitis (a skin disease). The plaintiff sued the
defendant in negligence and the retailers in contract.
The retailers were clearly liable in contract.
The judgment of the court was concerned with the liability of the manufacturers who had no
contract with the plaintiff. This was the decision of a judicial committee of the Privy Council
which was not bound by English decisions as it was not part of the English legal system. The
case came within the principle of Donoghue’s case, decision against the respondents, appeal
allowed with costs
12. CANDLER V. CRANE CHRISTMAS [1951]

FACTS
The plaintiff invested money in a company relying on accounts put before him accounts put
before him by accountants. The accounts were wrong and negligently prepared. The plaintiff lost
money and sued the accountants.
HOLDING
25
The court of appeal held in favour of the defendant in that they were not liable (majority of 2 to
1).
RATIO DECIDENDI;
There is no duty in negligence as for negligent misstatement.
OBITER DICTA;
Importance in this case is the dissenting judgment of Lord Denning L. J which sought to make it
clear that since the House of Lords’ decision in Donoghue V. Stevenson’s case, no distinction
existed between negligent manufacture causing physical injury and negligent statements causing
economic loss.
NOTE;
This was the case of negligent statements causing financial loss. It was the first case of negligent
statement after the decision of the House of Lords in the case of Donoghue V. Stevenson
13. CLAYTON V. WOODMAN [1962]

FACTS
The plaintiff who was the bricklayer who was employed by the first defendant a firm of builders
who had contracted with the second defendant 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 defendant. To install a lift was necessary to demolish part of the building.
On the instruction of the architect the plaintiff embarked in the installation in the process of
which he was injured and brought this action against the defendants.
The High Court held that the first Defendant and third defendants are liable. This was reversed
later by the Court of Appeal on grounds other than those of Salmond J.
NOTE
This was the case of negligent statement leading to physical injury and not economic loss. The
problem before the court was to determine which of the existing authorities on negligent
statements was to guide. Also the court had to consider whether Donoghue V. Stevenson was an
appropriate authority.
26
14. HEDLEY BYRNE & CO LTD V. HELLER & PARTNERS LTD [1963]
FACTS
The appellants were a firm of advertising agents. The respondents were merchant bankers. The
appellants case against the respondents was that having placed on behalf of a client X on credit
terms substantial orders for advertising time on the television programmes and for advertising
space in certain newspapers on terms under which the appellants became personally liable to the
TV and newspaper companies.
They inquired through their own banker as to the credit worthiness of X who were the customers
of the respondent. The appeal was dismissed and the case was decided in favour of the
respondents. When a mere inquiry is made by one banker 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 excepting the duty of common honesty
2.3 Development of the law of negligence at present.

We have seen that, as the tort of negligence emerged, the courts considered that it was a form of
action in the case which was distinct from trespass. So the courts held that there should be no
liability in negligence unless damage was caused, just as they held for all forms of action which
were not trespass. By the 19th century, the courts were recognizing that negligence was a
separate basis of liability and various courts which happened to try matters emanating from
inflicted injuries to workers. One of the attempts was made by Alderson B. in the case of Blythe
v Birmingham Water Works9, who defined negligence as: “Omission to do something which a
reasonable man would do or doing something which a prudent and a reasonable man would not
do.” The above definition was considered not to be comprehensive enough in capturing the
concept of negligence, and then an improved definition was made by Lord Atkin in Donoghue v
Stevenson. It states that “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 the people 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.”
27
2.4 Elements necessary in establishing the tort of negligence

The result from the above decision is that, today it is necessary to establish three elements in
order to establish liability in negligence. These essential elements are:
i. Duty of care
The traditional approach, espoused by Atkin in Donoghue v Stevenson, views a duty of care as
arising out of some relationship between the two parties, rather than by reference to a specific act
or damage. On this aspect a man is entitled to be negligent as he pleases towards the whole world
if he owes no duty to them then to fulfill the requirements of the question above it has to be
proved by the plaintiff that the relationship between the victim and the alleged tort feats or had a
proximate relationship and that damage caused to the victim was foreseeable. That is the
defendant must have foreseen some defects to the plaintiff at the time of the negligent conduct or
omission. Lord Porter repeated his words in the case of Bourhill v Young. “The cardinal
principle of liability is that the party complained of should owe to the party complaining a duty
to take care, and that the party complaining should be able to prove that he has suffered damage
in consequence of a breach of that duty.” Also in the recent case of Caparo v. Dickman court of
law introduced a 'threefold test' for a duty of care that harm must be (1) reasonably foreseeable
(2) there must be a relationship of proximity between the plaintiff and defendant and (3) it must
be fair, just and reasonable to impose liability. However, these act as guidelines for the courts in
establishing a duty of care; much of the principle is still at the discretion of judges.
ii. Breach of duty
The second ingredient to establish negligence requires a plaintiff to show that the defendant was
in breach of duty, here the judge or magistrate will consider defendant’s conduct fell below the
required standard which can be determined by invoking reasonable man test. The defendant will
only be liable if the reasonable man would have foreseen damage in the circumstances prevailing
at the time of the alleged breach of duty17. In the case of Dickson v Bell18 , in this case Bell
stayed in an area where robbery was rampant. Because of this situation he kept his gun loaded,
he stayed in a house which was not his, it belonged to another person, while the servant was
playing with the gun pointing it to Dickson’s son, the bullet went off and caused injury to the
young boy. When the matter went to court it was argued in defense that enough precautions were
taken by removing the priming. However the court held that it was not enough precaution of a
28
reasonable man in the circumstances. That it was a duty of the defendant to render precautions to
the gun completely safe. The court also went ahead saying that, it has to be borne in mind that
the legal standard of a reasonable man’’ is not of the defendant himself but that of a “man of
ordinary prudence” a man using ordinary care and skill. Example of a reasonable man in various
cases; In case of blind and deaf people is that a man has a distinct defect of such a nature making
him or her impossible to take certain precautions then they cannot be held answerable for not
taking such precautions.19On the case of children it is that infant have been held guilty of
contributory negligence where adults would on similar facts have been deemed to be liable for
contributory negligence20.
iii. Damage
The plaintiff does not succeed in negligence simply because duty and breach of duty have been
established. Success is achieved when it is shown that breach of duty resulted into injury
recognized by the law that means there is causal relationship between the damage suffered and
the duty breached. In negligence, a particular injury is recognized as one arising from breach of a
particular duty when it is shown that in fact a particular injury resulted and that such an injury is
not too remote. For instance, where one suffers a psychiatric damage resulting from shouts and
acclamations of people who are witnessing a pedestrian being knocked down by a car such a
person is not likely to recover in tort because of remoteness from the cause of the problem.
The foreseeability test; as pointed out that to establish negligence there must be three elements
namely, duty of care, breach of duty and damage. The damage required in this context which
must flow from the breach of the duty to take care must be proximate that is there must be a
direct link between the two like cause and effect. This is proved by ways of the foreseeability
test. This test demands that the defendant shall be liable for causing injury due to his failure to
take duty of care only when the resulted injury was one within his contemplation.
2.5 Application of the doctrine of the law of negligence in Tanzania.

Once the law of negligence was established, it was possible to interpret it to include any type of
goods. The law of negligence could be expanded to apply to many other situations. In Tanzania
was developed through various situations as follows:-
1. Doctor and Patient relationship
29
A doctor owes a duty of care to his patients as was seen in the case of Theodoclina Alphaxad v
Medical Officer in Charge of Nkinga Hospital. In this case Nkinga hospital was held liable for
causing amputation of the minor’s hand due to the negligence of the doctor on duty. the court of
Appeal of Tanzania on this case established the following factors that the doctors instructions to
the patient’s father was sufficiently to prove there was a relationships and the doctor owes a duty
of care to the minor and the father was not properly informed of the serious risk to his daughter.
2. Seller and purchaser relationship
The law imposes a duty to take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure persons so closely and affected by your act. This
was seen in the case of B.A Minga v Mwananchi Total Service Station. In this case Mwananchi
Total Service Station was a seller of fuel generally and kerosene in particular. During that time
there was scarcity of fuel, because of this seller of fuel were used to mix diesel with kerosene in
order to increase the quantity of fuel in the market. On the material day the appellant sent his
child to the fuel station to buy kerosene, the kerosene sold to the child was mixed with petrol.
When the fuel was taken home it was funneled in the small lamp. When fire was lit it exploded
burning a substantial part of the appellant’s property. EL-Kindy J. held that the nature of the duty
varies according to whether or not the act involves a thing dangerous in itself hence the liability
does not depend on whether the defendants were manufacturers or distributors or both but on
whether they had put themselves in direct relationship with the customer.
3. Purchaser (consumer) and Manufacturer of soft drink relationship
The law imposes a duty to take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure persons so closely and affected by your act.
However it has to be borne in mind that before 1963 one could make statements as negligently as
possible without sustaining any tortuous liability because by then the duty of care imposed to
human beings was one which when breached led to physical injury of the person or the property.
So due to the development on the economic, social and cultural within the society, developed
other negligence namely Negligent Misstatement was emerged, which is also leading to financial
loss or pure economic loss. In the case of Hedley Byrne v Heller &Partners Ltd Where the
house of lords inter alia stated that; “If in the ordinary course of business or professional affairs,
a person seeks information or advice from another who is not under a contractual of fiduciary
obligation to give the information or advice in the circumstance in which a reasonable man so
30
asked would know that he was being trusted or that his skill or judgment was being relied on and
the person asked chooses to give the information or advice without clearly so qualifying his
answer as to show that he does not accept a legal duty to exercise such care as the circumstances
require in making his reply and for a failure to exercise that an action for negligence will be if
damage results.” The above rule was adopted in Tanzania in the case of Francis Ngaire v
National Insurance Corporation (N.I.C). In which the Plaintiff was involved in the car
accident with Mushi’s vehicle as a result he lost his right arm. The driver was subsequently
convicted of various offences arising from the accident. Subsequently the plaintiff’s advocate
telephoned the offices of the N.I.C to process compensation. He was told by the clerk in charge
of the motor claims department of the N.I.C that the vehicle involved in the accident was at the
material time insured as against third party risks with them(N.I.C). They were requested to fulfill
the formalities in order to be compensated. They were also asked to send a copy of the police
report which was done on the same day. After complying with all what was required, the NIC
denied that the vehicle was insured with them on the material day and repudiated all liability. In
fact the vehicle was insured with the British India Insurance Company but the plaintiff’s claim
against them by then was time barred. So the plaintiff filed an action in tort against the N.I.C
claiming damages for the negligent misstatement of their employee that the vehicle was insured
with the N.I.C. Biron J, citing the case of Hedley Byrne v Heller &Partners Ltd decided the case
in favor of the plaintiffs.
2.6 To establish the proceeding under this doctrine one could undergone the following
rules;
(a) That, the plaintiff must prove that the defendant possessed of a special skill.
This means that the maker has to give advice while knowing that the receiver will rely on the
same information to do some subsequent activities as was seen in the case of Francis Ngaire v
National Insurance Corporation (N.I.C) where the defendant knew that the advice they gave was
to be followed to claim for compensation. Because the advice was given negligently the plaintiff
was unable to claim from the true insurance company (British Insurance Company) since he was
already time barred.
(b) That the plaintiff must reasonably rely on the defendant’s advice the plaintiff must
prove that he relied on the advice.
31
It must be foreseeable that the plaintiff will rely on the advice as was seen in Hedley Byrne case
that the appellant relied on banker’s advice to book time for advertisement for their clients which
led sustaining financial loss of about 17000 pounds.
(c) That the plaintiff must have some knowledge of the type of transaction for which the
advice is required.
This limb emphasizes one crucial point which consolidates the proximity rule. The claimant is
duty bound to show in clear terms that the giver of an advice knew the transaction for which
anadvice was given. In Francis Ngaire’s case, Mwaikambo knew very well the next move which
the plaintiffs were going to take. That is why the very person advised the plaintiffs to produce a
police report and other documents33. The Court in the case of Donoghue v Stevenson expanded
the legal principles established to include all manufacturers. They also stated that for an action in
negligence to be successful it must be shown that: There was a duty of care owed by the
defendant, there was a breach of the duty owed, and Damage was suffered as a result of the
breach. Each of the three aspects must be proved before a claim for negligence will be
successful. The duty to take care must be owed to the consumer (the ultimate user), the defendant
(manufacturer) must in some way fail to observe that duty, and damage must be suffered (which
may be to the person or to the person’s property). Even though there is established principles
governed the doctrine of negligence, other aspects embodied within the doctrine is that of
defenses which if the defendant will prove or establish will exonerate him or her from the
liability. In the case of Paul S. Asbert Itule v Theresia Andrea, The court stated that not every
negligent act will result in liability in negligence.
2.7 Possible defenses in tort of negligence

(a) Inevitable accident
This means that something complained of happened without the defendant having control over it
and the greatest care and skill could not have avoided the results. In the case of Msuri
Muhhiddin v Nazzor Bin Seif The plaintiff in this case sustained an injury as a result of an
accident arising from a bus driven by the second respond overturning. The plaintiff claimed
damages and alleged that the accident was due to over speeding and without keeping a proper
look out. The trial judge rejected this argument and accepted the argument of the appellant that
the accident was due to tyre burst caused by a rough solid stone under the road notwithstanding
the fact that tyres were goodand had thread still on them these circumstances were explained as
32
being beyond the plaintiff’s control. It is noted to be that pleading inevitable accident is the same
as saying that no negligence which means that the likelihood of harm was not reasonably
foreseeable or if foreseeable it was un avoided
(b) Contributory negligence
This is also the evolution embodied in the doctrine of the law of negligence on the fact that when
it arises that the plaintiff has suffered damage through the negligence of the defendant but the has
contributed to that damage by his or her own negligence37, it follows that the plaintiff’s
negligence will not have caused the damage but only contributed to its which made the damage
worse.
(c) Voluntary assumption of risk (Volenti non fit injuria)
This means that there can be no damage suffered by a person willing to take the risk. In other
words this defense states that the plaintiff consented to the tort. If a person agrees to undergo
intentional act, for instance physical battery in the course of wrestling match he or she cannot
later sue the opponent in tort. This was evidenced in the case of Khimji v Tanga Mombasa
Transport Co. Ltd., an action for negligence failed both in the trial court and on appeal because
the courts were satisfied that the deceased consented to the risk. The material facts of the case
were as follows; the deceased was a passenger in a bus which was held up by a swollen river,
which he was unwilling to do. After some persuasion he agreed to try. The bus met some
obstacles and got stuck. The driver, conductor, some other passengers managed to cross and
reached the opposite bank. The body of the deceased was found next day some four miles
downstream. It could be gleaned from the above case that for `volenti` to operate two conditions
must be fulfilled that (a) the plaintiff was aware of the risk, and took it with full knowledge (e.g.
by choosing to walk under falling masonry where there is a warning notice), (b) the plaintiff
must have been free to choose whether or not to accept the risk. If she has no alternative but to
run the risk, e.g. where there is no other way out, the defense will fail. Knowledge of the
existence of the risk is insufficient; there must be evidence of positive consent to run the risk. It
is because of this requirement that a plea of volenti by an employer sued by an employee will
rarely succeed. The employee has no choice but to run the risk, if she does not she may lose her
job. Therefore, the degree of economic compulsion prevents there being true consent.
33
TOPIC THREE
3.0 LOGIC AND LEGAL REASONING
3.1 Introduction
It is clearly given in giving decision; it is of the paramount importance to consider whether the
decision is the one advocated by the theories as noted from the beginning. Therefore any legal
decision must have the logic in them and not mere decisions. Legal reasoning must sound
properly and well equipped with logical thinking for proper evaluation.
34
LOGIC Reasoning conducted or assessed according to strict principles of validity: "experience

is a better guide to this than deductive logic". A particular system or codification of the
principles of proof and inference: The art of thinking and reasoning in strict accordance with the
limitations and incapacities of the human misunderstanding.
Generally, logic can be translated and explained as the branch of philosophy which reflects upon
the nature of thinking. It is an attempt to the issue that, “what distinguishes a good argument
from a bad one?” Logic is the most fundamental branch of philosophy but it does not deal with
all kinds of reasoning and that is why it does not fit to be the branch of psychology.
Logic is prescriptive ought and deals with the formulation of general rules for correct reasoning.
It is clearly provided that in reasoning, reasons are provided as evidence for certain conclusion
which is expected to be established. To this view, logic is a descriptive attempt to distinguish bad
reasoning from good reasoning or what is equivalent to good inferences.
Generally, logic is said to be the science of GOOD REASONS. The reasons given are always
expressed in a language. Logic is therefore further expressed as the discipline which deals with
the relation between sentences.
Logic is the branch of philosophy which attempts to determine when a given sentence or a group
of sentences permits to correctly make an inference.
3.2 Syllogisms and sorities

SYLLOGISM can be defined to mean an instance of a form of reasoning in which a conclusion
is drawn from two given or assumed propositions (premises); a common or middle.
A syllogism contains three parts a major premise, a minor premise, and a conclusion. The major
premise states a generalization, the minor premise relates a specific case and a conclusion is
deduced from the two premises.
Examples:
1. Major premise: All dogs have four legs, Minor premise: All animals have four legs.
Conclusion: All dogs are animals.
2. Major premise: All members of XYZ sorority have high grade-point averages. 
Minor premise: Harriet is a member of the XYZ Sorority.  Conclusion: Harriet has
a high grade-point average.
35
The categorical syllogism must in its major premise define the category in question that it can be
determined for certain that the specific case cited in the minor premise will fall within it. No term
can be found in the conclusion that is not found in one of the premises. The major and the minor
premises cannot both be negative statements.
Whenever the major or minor premise is a negative statement the conclusion must also be a
negative statement.
Syllogism means a logical argument using three propositions. It has a major and a minor
reasoning and then there is a conclusion.
For Example all women are born as Super Hero's (major reasoning), I am a woman (minor
reasoning), so I am a super hero (conclusion). A syllogism is a kind of logical argument in
which one proposition is referred from two others of a certain form. A categorical syllogism
consists of three parts: the major premise; the minor premise, and; the conclusion.
Type of formal logic argument in which only three sentences (called Propositions) are employed:
(1) the major premise asserts a general relationship,
(2) The minor premise asserts something about a specific case, and
(3) The conclusion follows (is deduced from) the two premises. A famous example states
Example; "All men are mortal" (the major premise). "Socrates is a man" (the minor
premise). "Therefore, Socrates is mortal" (the conclusion). Theory of syllogism was developed
by the Greek philosopher Aristotle (384-322 B.C.)
3.3 Sority/sorities
The term sority (singular) or sorities (plural) is a form of argument having several premises
and one conclusion, capable of being resolved i nto a chain of syllogisms, the conclusion of each
of which is a premise of the next.
3.4 Inductive reasoning

Inductive reasoning is the kind of reasoning from particular to general. It may be used in a
broader sense to encompass all kinds of reasoning in which the premises support, but do not
compel, the conclusion. Inductive reasoning - reasoning from detailed facts to general principles.
36
Inductive reasoning is the polar opposite of deductive reasoning and is not generally accepted in
science. While deduction begins with the general and ends with the specific, induction takes an
idea from the specific to the general. This goes against the principles of the scientific method.
The philosophical definition of inductive reasoning is much more nuanced than simple
progression from particular/individual instances to broader generalizations. Rather, the premises
of an inductive logical argument indicate some degree of support (inductive probability) for the
conclusion but do not entail it; that is, they suggest truth but do not ensure it. In this manner,
there is the possibility of moving from generalizations to individual instances. Inductive
reasoning consists of inferring general principles or rules from specific facts.
A well-known laboratory example of inductive reasoning works like a guessing game. The
participants are shown cards that contain figures differing in several ways, such as shape,
number, and color. On each trial, they are given two cards and asked to choose the one that
represents a particular concept. After they choose a card, the researcher says "right" or "wrong."
Though many dictionaries define inductive reasoning as reasoning that derives general principles
from specific observations, this usage is outdated
FOR EXAMPLE:
In case A, elements a, b, c, d and e were present and the plaintiff succeeded. In case B
elements a, b, c, d and e were present and the plaintiff succeeded. In case C the same elements
were present and the plaintiff succeeded. Therefore in all cases in which elements a, b, c, d,
and e are present, the plaintiff should succeed.
This is to say, the inductive reasoning gives the notion of two aspects, the specific one and the
general one but the logic is taken from the reasoning in specific or particular to the general.
This type of reasoning was given clearly in the case of Heaven v. Pender especially in the
reasoning by Brett MR
Inductive reasoning is concerned with reasoning from “specific instances to some general
conclusion.”An inductive argument is an argument in which it is thought that the premises
provide reasons supporting the probable truth of the conclusion. In an inductive argument, the
premises are intended only to be so strong that, if they are true, then it is unlikely that the
conclusion is false.
37
3.5 Deductive reasoning

A deductive argument is an argument in which it is thought that the premises provide a guarantee
of the truth of the conclusion. In a deductive argument, the premises are intended to provide
support for the conclusion that is so strong that, if the premises are true, it would be impossible
for the conclusion to be false. Deductive reasoning is concerned with reasoning from a “general
proposition or generally accepted truth to a specific instance. Deductive reasoning moves from
general to particular. It involves the way of syllogism
FOR EXAMPLE
Major premise: All members of XYZ sorority have high grade-point averages.  Minor
premise: Harriet is a member of the XYZ Sorority.  Conclusion: Harriet has a high grade-
point average.
Deductive reasoning is a closed system of reasoning. It operates where you have already known
rules either those laid in cases or in statutes and facts of the case are said to be subsume into the
rule out of which a conclusion is reached. There are 32 books on the top-shelf of the bookcase,
and 12 on the lower shelf of the bookcase. There are no books anywhere else in my bookcase.
Therefore, there are 44 books in the bookcase. Bergen is either in Norway or Sweden. If Bergen
is in Norway, then Bergen is in Scandinavia. If Bergen is in Sweden, the Bergen is in
Scandinavia. Therefore, Bergen is in Scandinavia
Reasoning by analogy:
Reasoning by analogy holds that since two items are assumed to be similar in a number of
aspects, they are probably similar in the additional aspect under consideration.
Example: “Since artificial turf has worked well in stadium X, it should also work well in
stadium Y.”
38
TOPIC FOUR
4.1 STARE DECISIS
4.2 Introduction
Stare decisis is the Latin maxim which can be translated as "to stand by a decision," the doctrine
that a trial court is bound by appellate court decisions (precedents) on a legal question which is
raised in the lower court. Reliance on such precedents is required of trial courts until such time as
an appellate court changes the rule, for the trial court cannot ignore the precedent (even when the
trial judge believes it is "bad law"). stare decisis, (Latin: “let the decision stand”), in Anglo-
American law, principle that a question once considered by a court and answered must elicit the
same response each time the same issue is brought before the courts. The principle is observed
39
more strictly in England than in the United States. Since no court decision can have universal
application, the courts, in practice, must often decide that previous decision does not apply to a
particular case even though the facts and issues appear to be closely similar. A strict application
of stare decisis may lead to rigidity and to legal hairsplitting, whereas too much flexibility may
result in uncertainty as to the law.
4.3 An explanation of judicial precedent in england and wales, how it is formed and how it
works.
Judicial Precedent Past judges create law for future judges to follow. Also known as Case Law.
The Doctrine of Stare Decisis. English system of precedent based on Latin maxim Stare Decisis
Et Non Quieta Movere. This means “stand by what has been decided and do not unsettle the
established”supports fairness and provides certainty in law.At the end of a case the judge makes
a speech stating the decision and gives the reason for the decision- considering arguments and
facts then explain the principles of law he is using to come to the decision.
Ratio Decidendi
reason for deciding.This is the information that is used to help judges decide in future cases.
Obiter Dicta
“Other things said”- it is not binding precedent. Judges in future cases do not have to follow it –
judge sometimes speculates on what his decision may have been if the facts of the case were
different. Legal reasoning may be put forward in future cases from this Obiter Dicta. Difficulty
in distinguishing the ratio decidendi from the obiter dicta as the speech is continuous.
4.4 Kinds of precedent

i. Original Precedent
If a point of law in a case has never been decided before then whatever the judge decides will
form a new precedent for future cases to follow. Judge finds case’s that are closest in principle to
the one he is deciding on and may decide to use similar rules. This is called REASONING by
ANALOGY. The judge is creating a new law. Hunter and others v Canary Wharf Ltd and
London Docklands Development Corporation 1995. Creating new law by analogy can be seen
here. Refers this case of tower obstructing a TV signal, to Bland v Moselely 1611, “which is a
matter only of delight and not of necessity.
40
ii. Binding Precedent

Precedent in an earlier case must be followed, even if the judge in the present case disagrees with
the legal principal. To be binding the cases have to be sufficiently similar as well as being made
by a senior court (sometimes the same level court).
iii. Declatory precedent
The judges in the case merely declared what the law has always been. Declaratory theory of law
making. According to William Blackstone judges do not create or change laws. They simply
discover and declare what the law has always been. This means that case law operates
retrospectively since the law as declared has always existed.
iv. Persuasive Precedent
Is that which not binding but the judge may decide to consider it and decide it is a correct
principal – he is persuaded to follow it. Persuasion comes from these sources:
a. Courts lower in the hierarchy- the House of Lords agreed with and followed the
same reasoning as the Court of Appeal in deciding that a man could be guilty of
raping his wife. R v R 1991.
b. Decisions of the Judicial Committee of the Privy Council- this court isn’t part of
the hierarchy, decisions not binding. Many members are also members of the
House of Lords therefore the decisions are respected and may be followed. The
Wagon Mound 1961.
c. Statements made Obiter Dicta (particularly House of Lords decisions) in R v
Howe 1987 House of Lords ruled that duress could not be a defense to murder. As
an Obiter Dicta statement they added that duress would not be available as a
defense to attempted murder. It was followed as persuasive precedent in the Court
of Appeal in R v Gotts 1992.
d. A dissenting judgment: When a case has been decided by a majority vote (21 in
the Court of Appeal) the judge who disagreed would have given his reasons. In
the event that the case goes to the House of Lords or a later case, and the judge’s
side with the dissenting argument, they then decide the case in the same way.
Dissenting judgment has persuaded them to follow it.
e. Decisions of courts in other countries. -They have to use common law system.
Applies to Commonwealth countries such as Canada, Australia and New Zealand.
f. The Operation of Precedent and the Hierarchy of the Courts every court is bound
to follow any decision made by a court above it in the hierarchy. In general,
41
appellate courts (courts which hear appeals) are bound by their own past
decisions.
The European Court of Justice Since 1973 is the highest court in our legal system. For all points
on European Law a decision made hear is binding on all other courts. Laws that are unaffected
by European Law have the House of Lords as the Supreme Court. European Court will overrule
its past decisions if it feels necessary=flexibility.
House of Lords Decisions bind all other courts in the English legal system. Not bound by own
past decisions, although it will generally follow them. Practice Statement 1966 announced
change in using precedent- although the Lords will follow it precedent. They will depart from a
previous decision when it appears right to do so. They do not reverse previous precedent
whenever they think it is wrong, instead in the general interest in the certainty of law they must
be sure that there is some very good reason before they act. Court of Appeal Next level down
from House of Lords. Two divisions: Civil and Criminal. Bound to decisions of House of Lords
and European Court of Justice. Must usually follow past decisions of their own although there
are limited exceptions to this rule. Criminal Division is more flexible when it comes to the
liberty of a subject. Decisions from one division will not bind the other division. Lord Denning
thought that the Court Of Appeal shouldn’t have to follow the House of Lords Precedent.
Its own Precedent can be overruled if the law has been “misused or misunderstood”.
Divisional Courts Queens Bench, Chancery and Family. Bound by decisions by European Court
of Justice, House of Lords and Court of Appeal. Bound by own precedent but has similar
exceptions to that of the Court of Appeal – overruling when the case involves someone’s liberty.
The High Court Do not have to follow their own decisions but usually will do so. Colchester
Estates (Cardiff) v Carlton Industries plc 1984, it was held that where there were two earlier
decisions that conflicted, then, provided the first decision had been fully considered in the latter
case, that decision should be followed. Inferior Courts Crown Court, County Court and the
Magistrates’ Court. They are bound to decisions made by all higher courts. Unlikely that they can
create precedent.
42
4.5 Evasion techniques

Are the methods used to avoid strict and rigit application of precedent and these are
Distinguishing, Overruling and Reversing
1. Distinguishing
A method in which a judge can avoid using a past decision, which he would otherwise have to
follow. The judge finds that the material facts of the case he is deciding a sufficiently different
for him to draw a distinction between the present case and the previous precedent. He is not then
bound by the previous case. Balfour v Balfour 1919 was a claim from a wife that her husband
was in breach of contract. It was decided that the claim could not succeed because there was no
intention to create legal relations.
Merrit v Merrit 1971 was successful because the court held that the facts of the case were
sufficiently different in that, although the parties were husband and wife, the agreement was
made after they had separated as well as having the agreement in writing. The cases were
distinguished from each other and so the precedent from the first case was not used.
2 Overruling
A court in a later case states that the legal rule decided in an earlier case was wrong. Overruling
occurs when a higher court overrules a decision made in an earlier case by a lower court. House
of Lords overrules decision by Court of Appeal. European Court of Justice overrules a past
decision it has made. House of Lords use the power under the Practice Statement to overrule a
past decision of its own. Pepper v Hart 1993- the House of Lords ruled that Hansard (what is
said in Parliament) might be used in the interpretation of an Act of Parliament (what certain
words meant). This overruled the earlier decision in Davis v Johnson 1979 when the House had
held that it could not consult Hansard.
3. Reversing
A court higher up in the hierarchy overturns the decision of a lower court on appeal in the same
case. E.g. the Court of Appeal may disagree with the legal ruling of the High Court and come to
a different view of the law. Reversing the decision of the High Court.
43
TOPIC FIVE
5.0 APPLICATION OF THE COMMON LAW DOCTRINE IN ENGLAND
The common law doctrine of precedent works on the basis of hierarchy of authority. The core of
the doctrine is that previous binding decisions of superior courts within the same judicial
hierarchy are accorded authority by the courts lower in hierarchy (vertical obligation) and
appellate courts are bound by own decisions (horizontal obligation.
5.1 Stare decisis in England

The doctrine of stare decisis in England takes place in two phases as follows; Before 1966 (The
Old Rule) After 1966 (The New Rule)
44
5.1.1 Before 1966 (the old rule)

The House of Lords was the superior court in England. The decisions of the House of Lords
bind all courts below it. The house of lords was bound by its own previous decisions. This has
been stated in the case of BEAMISH V. BEAMISH [1895] VOL 9 HL 274 as well as
LONDON STREET TRAMWAY CO. V. LONDON COUNTRY COUNCIL [1898] AC 375
Note:
Obiter dicta by itself are not a precedent but it can be taken as formation of the new rule.
Exceptions to the old rule

(i) Decision in ignorance of statute
Even though a court may know of a statute, yet it does not appreciate its relevance to
the matter, such a mistake is such incuriam as to vitiate the decision.
(ii) Conflicting decisions
The House of Lords is not bound by its own previous decisions that are in conflict with
one another. Such a situation can arise in two ways as follows;
a. Conflicting decision may have originated at a time when the binding force of the
precedent was not recognized.
b. The conflicting may have arisen due to inadvertence that is in forgetfulness of an
existing precedent. Whenever a relevant prior decision has not been cited before
the court, the court must have acted in ignorance or forgetfulness of it, and the new
decision if given in conflict with the old it is given per incuriam and it is not
binding on a later court.
(iii) Public Policy
A decision based on some public policy particularly commercial was not binding if
social conditions have changed.
5.1.2 After 1966 (the new rule)

The House of Lords can depart from its own previous decisions when it appears right to do so.
This has been the base Per Lord Chancellor in the PRACTICE STATEMENT was given (1966) 1
W.L.R. 1234 or [1966] VOL 3 ALL ER 77
45
5.3 Application of precedent in England (the court of appeal)

In England we may success in the old version system of the court and between the new versions
of the court system. In England the court decision were binding to that apex court to that
particular time. The court which is referred as the apex court is the House of Lords. The previous
decision or current decisions of House of Lords bind to the other courts as well as the House of
Lords itself.
5.3.1 The court of appeal of England

(a) House of lords decision is binding
Exceptions:
i. Conflicting decisions.
ii. Per Incuriam decisions. BROOME V. CASS [1971] 2 QB 354 The Court of Appeal
was not supposed to follow the previous decision of the House of Lords because it was
given per incuriam.
(b) The Court of Appeal is bound by its own previous decisions.
The Court of Appeal of England is absolutely bound by its own decisions and by those of
older courts of co-ordinate authority for example The Court of Exchequer Chamber. This
has been given in the case of YOUNG V. BRISTOL AEROPLANE CO. [1944] K.B. 718
Exceptions for not being bound by own decisions:

i. If the decision is in conflict with another, it is bound to choose between the conflicting
decisions.
ii. If the earlier decision of the court though not overruled, cannot stand with the decision of
the House of Lords.
iii. If the decision was given per incuriam, that is, in ignorance of a statute or rule having
statutory effect which would have affected the decision had it been brought to the notice
of earlier court.
iv. If the decision is disapproved by the Privy Council. WORSESTER WORKS
FINANCE CO. V. GOO [1971] VOL 1 ALL ER. The Court of Appeal is not bound to
follow its own previous decision if It was disapproved by the Privy Council.
v. The Court of Appeal is not bound by decisions of the Court of Appeal. They are courts of
co-ordinate jurisdiction so they cannot bind each other.
46
The Privy Council

The Privy Council is not bound by its decisions. The decisions of the Privy Council are only
persuasive, that is, do not bind courts in English legal system.
TOPIC SIX
6.0 APPLICATION OF PRECEDENTS IN EAST AFRICA
6.1 Introduction
The doctrine of precedent is fundamental in the process of judicial law making in East Africa.
The judicial concern with past and in particular conditions in England is the outstanding feature
of the decision making process in the superior courts in East Africa. This concern largely
attributed to the colonial context in which courts in East Africa operated. England being the
mother country of the colonized territories of East Africa provided the law which was to apply in
these colonies.
The other factor for courts in England concern with past English decisions relates to the
professional training and countries of origin of the judges of the superior courts in colonial East
Africa. These judges were mainly English so they were strongly influenced by English practice
and decisions and they felt at home with their application in East Africa.
47
6.2 Privy council

Privy Council was the apex of the judicial pyramid in East Africa and other British Colonies and
dependencies. It was established as the Judicial Committee of the Privy Council by the Judicial
Committee Act of 1833 by King William IV (the forth), as permanent committee of legal experts
to hear appeals from the British colonies and to dispose other matters as referred to them by His
Majesty from time to time. The Privy Council was therefore not a court of law but an advisory
body. There are two situations on the applicability of the Privy Council as follows;
6.2.1 Before abolition of appeals to the Privy Council (before 1966)

Before the East African states abolished appeals to the Privy Council its decisions were binding
on the courts in East Africa. The origin of the decisions didn’t matter as the law was considered
uniform in respect of:
(i) Pronouncements on the Common Law,.
(ii) Pronouncement of Mohamedan Law. This has been decided in the case of SHALO V.
MARYAM [1967] E.A. 409
6.2.2 After abolition of appeals to the Privy Council (before 1966)

(i) After the independence of East African Countries divergent views prevailed over whether
the independence of these countries fired the courts from the authority of Privy Council’s
decisions. For practical reasons the fear of reversal on appeal by Privy Council after
abolition was no longer there.
(ii) The constitutions of the newly independent East African states by maintaining the
“existing laws” it meant also that Privy Council decisions were included.
This was given in the case of RASHID MOLEDINA V. HOIMA GINNERIES [1967] E.A AT
PP 656-657
The other controversial issue is whether the East African Court of Appeal had inherent powers to
depart from its own previous decisions as did the Privy Council.
The answer to this question came from the decision of Newbold, V.P., in the case of DODHIA V.
NATIONAL & GRINDLAYS [1970] E.A 195 B as follows; “…His lordship affirmed that no
decision of the Privy Council or of any English Courts or of any foreign courts is binding on the
48
East African Court of Appeal and the East African Court of Appeal inherited the flexibility of the
Privy Council to depart from it own decisions when it appears right to do so. The orthodox
doctrine of precedent as adopted in East Africa didn’t cover decisions of the courts of England
which were not structurally connected with the judicial systems of East Africa. The main
considerations which influenced judicial attitudes in East Africa were as follows; I. The use of
decisions of English courts by judicial personnel trained in the common law tradition. II. The
adoption of the English common law and doctrine of equity as the basis of the legal systems
established by the British colonial administration.
English law was received in East Africa through the general and the special reception clauses in
the Order-in-Council. This is seen in KIRIRI COTTON CO. V. DEWANI [1958] E.A. 239 as
follows; “…His Lordship observed in this case that ‘ established decisions’ on the common
law and doctrines of equity of superior courts in England given before reception date are
binding in East Africa but after independence there were in persuasive in nature….”
6.3 Decisions on statutes in pari material

Statutes in pari material were model statutes in force in East Africa during the period of British
rule which were delivered from English legislation either directly or by way of India. It would
seem natural that in interpreting the model statutes, East African courts should look to the
interpretation given to that statute in the country of origin as well as in the other countries with
similar statute.
6.3.1 Before independence

English decisions were binding on East African Courts in the interpretation of local statute in
pari materia. This has been decided so in the case of THIMBLE V. HILL [1879] A.C. 342 that
there might be local conditions which make the English construction inappropriate, but East
African courts cited with approval the need to preserve the unity of English law throughout the
empire.
6.3.2 After independence
After independence there were two views on the status of English decision interpreting statutes
in pari materia as follows;
49
1. Those decisions are binding That English decisions on statute pari materia are binding.
This was the view of Spry. J, in the case of RASHID MOLEDINA V. HOIMA
GINNERIES [1967] E.A 645 as follows; “…His Lordship when interpreting the
Arbitration Act of Kenya which was derived from English Arbitration Act of 1889
reiterated that respect must be shown to English decisions interpreting a similar statute
because English legislature enacted the Kenyan statute with knowledge of those English
decisions…” In other words this was given when Kenya legislation was passed delivered
from England. Then court decisions which was given in England in interpretation of a
statute then will be used the same in Kenya simply because the legislation was originated
from England. Refers also the following case; TANGANYIKA GARRAGE V.
MARCEL G. MAFURUKI [1975] LRT 23 and MTATITO MWITA V. MWITA
MARIANYA [1968] HCD
2. (English decisions are not binding. English decisions on statute pari materia are not
binding. This was expresses by the East African Court of Appeal in the case of
NATIONAL GRINDLAYS BANK V. VALLABHJI [1966] E.A 186 as follows; “…
English decisions on statute pari materia were not binding and to be followed there must
be consistent of interpretations…”
Conditions to be followed:
1) The decisions are not.
2) The decisions must disclose the consistent interpretation of the provision. For instance the
issue of postal rule in England and Tanzania are differing. So any decision given on postal rule
cannot be followed by Tanzania simply because it is inconsistent with our statute. Refer also the
case of NEW GREAT INSURANCE V. CROSS [1966] E.A OR [1965] ALR COMM. 449
50
TOPIC SEVEN
APPLICATION OF PRECEDENT IN TANZANIA
The Union Constitution of 1977 as amended in 1984 made provisions for the establishment of
the Court of Appeal of Tanzania. There was another Act enacted for the establishment of the
Court of Appeal of Tanzania that is The Appellate Jurisdiction Act of 1979. The Court is
therefore the final Court for appeals originating from Tanzania Mainland and Zanzibar in all
matters except Islamic law and disputed between Mainland and Zanzibar governments over the
application and interpretation of the Union Constitution. In discussing stare decisis and its
applicability in Tanzania it is better to cite the illustrative decision of the Court of Appeal of
Tanzania in the case of JUWATA V. KIUTA CIVIL APPEAL NO. 29 OF 1987 as also reported
in the Tanzania Law Reports as JUMUIYA YA WAFANYAKAZI TANZANIA v KIWANDA
CHA UCHAPISHAJI CHA TAIFA [1988] TLR 146 In this case the Chief Justice, Nyalali,
51
overruled a previous per incuriam decision of the court in the case of ZAMBIA TANZANIA
ROAD SERVICES V J.K. PALLANGYO CIVIL APPEAL NO. 9 OF 1982 In determining
the matter courts interalia states the following; (principles laid down) Decisions of the Court of
Appeal of Tanzania are normally binding on the Courts but as a final court of appeal it is free to
depart from such a decisions when it appears right to do so. The Court of Appeal of Tanzania is
not bound to follow a decision of its own if it satisfied that the decision was given per incuriam.
Decisions of the Court of Appeal of Tanzania are binding upon any tribunal by virtue of the
common law doctrine of precedent.
52

Legal Methods Ii

Uploaded by

Copyright:

Available Formats

Legal Methods Ii

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Legal Methods Ii

Uploaded by

Copyright:

Available Formats

M4v LEGAL METHODS II M4v

LEGAL METHODS II TRAINING MANUAL

1.1 Primary Rules to statutory interpretation

b) The Golden Rule

c) The Mischief Rule

d) The Purposive Approach Rule

Examples of presumptions include; – Presumption against extra-territoriality application of the

(ii) Expressio unius est exclusio alterius rule

(iii) Noscitur a sociis

1.3 Internal/intrinsic aids to statutory interpretation

2.1 Historical Background of Law of negligence

i. Enunciation of the rule

2.2 Development of the law of Negligence

1. LANGRIDGE V. LEVY [1837]

2. WINTERBOTTOM V. WRIGHT [1842]

Judgment for the defendant

3. LONGMEID V. HOLLIDAY [1851]

4. GEORGE V. SKIVINGSTON [1869]

judgement for the plaintiff.

5. HEAVEN V. PENDER [1883]

6. DERRY V. PEEK [1889]

7. LE LIEVRE & DENNES V. GOULD [1893]

8. NOCTON V. LORD ASHBURTON [1914]

9. DONOGHUE V. STEVENSON [1932]

After propounding the neighborhood principle, he went on to hold that a manufacturer of

IMPORTANCE OF THAT CASE

10. FARR V. BUTTERS BROS & CO [1932]

11. GRANT V. AUSTRALIAN KNITTING MILLS [1936]

12. CANDLER V. CRANE CHRISTMAS [1951]

13. CLAYTON V. WOODMAN [1962]

2.3 Development of the law of negligence at present.

2.4 Elements necessary in establishing the tort of negligence

2.5 Application of the doctrine of the law of negligence in Tanzania.

2.7 Possible defenses in tort of negligence

LOGIC Reasoning conducted or assessed according to strict principles of validity: "experience

3.2 Syllogisms and sorities

3.4 Inductive reasoning

3.5 Deductive reasoning

4.4 Kinds of precedent

ii. Binding Precedent

4.5 Evasion techniques

5.1 Stare decisis in England

5.1.1 Before 1966 (the old rule)

Exceptions to the old rule

5.1.2 After 1966 (the new rule)

5.3 Application of precedent in England (the court of appeal)

5.3.1 The court of appeal of England

Exceptions for not being bound by own decisions:

The Privy Council

6.2 Privy council

6.2.1 Before abolition of appeals to the Privy Council (before 1966)

6.2.2 After abolition of appeals to the Privy Council (before 1966)

6.3 Decisions on statutes in pari material

6.3.1 Before independence

You might also like