LEGAL METHODS IN TANZANIA (Part 2) by MWAKISIKI MWAKISIKI EDWARDS

Moshi Co-operative University
From the SelectedWorks of MWAKISIKI MWAKISIKI
Summer August 9, 2017
LEGAL_METHODS_IN_TANZANIA
MWAKISIKI MWAKISIKI, Moshi Co-operative University
This work is licensed under a Creative Commons CC_BY-SA International License.
Available at: https://works.bepress.com/mwakisiki-mwakisiki/2/

Courtesy of MWAKISIKI, MWAKISIKI, EDWARDS
MOSHI CO-OPERATIVE UNIVERSITY
LEGAL METHODS II
AN EXTRACT OF MKOYOGO MANUAL &
OTHER SOURCES ON LEGAL METHODS
BY MWAKISIKI, MWAKISIKI, E
9/4/2017
This work is an extension of legal methods one and basically this handout seek to introduce a
legal methods students to various topics such as development of law of negligence, statutory
interpretation and construction, presumptions in statutory construction, external and internal aid
of statutory interpretation, rules and canons of statutory interpretation and so forth.
1
Compiled notes on legal Methods Two-Moshi Co-operative University-LLB (2016-17)
TOPIC ONE
DEVELOPMENT OF LAW OF NEGLIGENCE
MEANING OF NEGLIGENCE
Negligence may be defined as an act or omission which constitutes a breach of a duty of care owed
by another person by the person who acts or fails to act and which causes that other person to
suffer harm.
HISTORICAL DEVELOPMENT OF LAW OF NEGLIGENCE
INTRODUCTION
During the 19th Century, manufactures had no liability for the goods they made. The liability of
manufactures for the losses suffered by the consumers took several decades to be established hence
negligence is a modern tort which has been created by courts very recently although the efforts of
giving it shape started as early as the 1850s during the Industrial Revolution in England.
This is the time when inflicted on injuries to workers in factories, industries, railways and other
places where machines and industrial products were in use. Negligence focuses on the conduct of
the defendant which is labeled negligent unlike other torts which mainly focus on the interests of
the plaintiff, which are protected by the law1.
This topic will examine the essential evolution embodied within the law of negligence during
medieval period to present by looking the meaning and essential ingredients developed from the
doctrine through various case laws and the application of the doctrine of negligence and negligent
misstatement in Tanzania and the defenses embodied within the doctrine.
DEVELOPMENT OF THE LAW OF NEGLIGENCE MEDIEVAL PERIOD
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
interactions2. 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 writ3. Instead of focusing on causation, courts began
to see fault as most important for actions on the case4.
1
Binamungu M.C., (2002). Law of Torts in Tanzania at pg 42
2
Schwartz,(1981). Tort Law and the Economy in Nineteenth-Century America at pg 79
3
http://openscholarship.wustl.edu/law_lawreview[ Accessed on 23 March 2017]
4
Prichard M, (1976). The Emergence Of The Tort Of Negligence at pg 15-16
2
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 Levy5, where by the court refused to set a precedent by imposing a duty of care to 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] 2M & W 519
The material facts
The father of the plaintiff went to the defendant who was the seller of guns to buy a gun for
himself and his sons. While at the shop of the defendant he made a representation to the
seller that the gun was for himself and his sons and in inducing the sale the defendant warranted
that the gun was safe and secure while it was not. In the process of the son using the gun so
purchased, sustained injuries and brought an action against the seller.
Issue: Whether the seller was liable?
Argument by counsel for the Plaintiff: Wherever a duty is imposed upon a person by
contract or otherwise, and that duty is violated, anyone who is injured by the violation
of it may have a remedy against the wrong doer.
5
[1837] 2M & W 519, 150, ER 863jjjj
3
Argument by counsel for the defendant: There was no privity of contract and
therefore the plaintiff was not entitled in law to recover damages. Since the father was
the contracting party with the defendant he can alone sue upon that contract for the
breach of it.
Holding: In favor of the plaintiff (Rule discharged).
Ratio decidendi : Where the defendant knowingly sold a gun to the father for the
use of himself and his sons and had knowingly made a false 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.
In course of delivering judgments these were things considered: (i) The Court was not ready to
lay down a broad rule of liability. (ii) The court considered the fact that the gun was not
an instrument which is dangerous in itself unless loaded : If the instrument in question, which
is not dangerous in itself, but requires an act to be done that is, to be loaded, in order to
make it so, had been simply delivered by the defendant, without any contract or representation
on his part, to the plaintiff, no action would have been maintainable for any subsequent
damage which the plaintiff might have sustained by the use of it.
The Court made use of the principle in Parsley v. Freeman 3 TR 51, that mere falsehood is
not enough to give a right of action, but it must be a falsehood told with an intention that
it should be acted upon by the party injured, and that it must produce injury to him ...:what
the court was trying to insist on is that an injured person must establish that the person
who is said to have caused injury was such a person as recognized by the law not to act
the way he did.
The debate continued in Winterbottom v Wright,6 which was equally reluctant to extend a duty
of care towards third parties on this case there was no contract existed between the injured party
and the party which is actually at fault (instead, there were a series of fragmented contracts), and
therefore the plaintiff is excluded from suing and allowing him to sue would open the floodgates.
2. WINTERBOTTOM v WRIGHT [1840] 10 M & W 109

Material facts
6
[1840] 10 M & W 109
4
A contracted with the Postmaster General to provide a mail coach to convey mail bags
along a certain line of the road; and Bother also contracted to hire horses to coach along
the same line, at the same time B and his contraction 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 which broke down due to latent defects
in its construction.
Issue: Whether A (defendant) was liable?

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

Ratio decidendi: Where there is no contract or the injured party is no privy to it no
action will lie (or be maintained).
Important: Applied the rule in Langridge v Levy in Winterbottom v. Wright cannot be because as
Lord Abinger C.B seems to suggest Winterbottom and Wright is a case of its own kind.
3. FREDERICK LONGMEID & ELIZA (HIS WIFE) V HOLLIDAY [1851] 6 EX. 76

Material Facts
The defendant (Holliday) a seller of lamps sold a lamp to the plaintiffs husband. The defendant
was not a manufacturer of those lumps. The lumps were called Hollidays Patent Lamp. The
said lamp was for the purpose of being used by him (the buyer) and his wife. There was evidence
5
that the lamp was defectively manufactured. In using the lamp with naphtha (i.e. like Kerosene)
the lamp exploded and the plaintiffs wife was injured. The two plaintiffs brought an action
(Frederick has previously recovered damages in an action for the defendants breach of implied
warranty of sale). The jury found all facts for the plaintiffs except for the allegation of fraud
because; in their view the defendant did not know that the lamp was in fact defective.
Issue: Whether the plaintiff can recover on the basis of fraud?
Argument by Counsel for the defendant: As there was no proof of fraud, the action could
not be maintained.
Argument for the Counsel of the Plaintiff: The defendant was guilty of fraudulent
representation in that it was stated that the lamp was fit and proper for use, which he knew
it was not true, and that he knew who is going to use the lamp, who in fact was injured in
the process of using the lamp. The counsel maintained that this case was in line with the
decision in Langridge V Levy.
Holding: Defendant not liable (Rule absolute).
Ratio Decidendi: Where in the ordinary course of doing business between one individual
and another, a machine that is not dangerous in itself but which might become so by latent
defect entirely unknown, is let or given by one person to another, the former is not
answerable to the latter for subsequent damage accruing from the use of it.
Obiter Dicta
If the defendant had been guilty of a fraudulent representation that the lamp was fit and
proper to be used, knowing that it was not and intending it to be usedthen that individual
would have had an action for deceit on the principle of Langridge V Levy [1837] 2M & W
159.
If anyone knowingly tells a falsehood, with intent to induce another to do an act which
results in his loss, then he is liable to that person in an action for deceit.
4. GEORGE & WIFE V SKIVINGTON [1869] LR5 EX1
Material Facts
The plaintiff (Joseph George husband to the second plaintiff) purchased a chemical compound of
the defendant as hair wash for the use of his wife. The hair wash was made up of ingredients known
only to the defendant and by him represented to be fit and proper to be used for washing the hair.
There was also an express statement that the defendant knew the purpose for which the article was
6
bought. Due to the defendants unskillful; negligent and improper make of the compound,
caused injury complained by the plaintiff (she lost her hair or her hair fell off).
Issue: Whether an action at the suit of the plaintiff (wife) her husband being joined for
conformity, will lie (or was there a cause of action against the defendant?).
Argument by the Counsel for defendant: there was no warranty, express or implied
towards the purchaser, therefore any liability.
Argument by the Counsel for the plaintiffs: The defendant was a chemist who made the
compound which he sold for a particular purpose, and knowing the purposes, for which it
was bought, is liable in an action on the case for unskillfulness and negligence in the
manufacture of it whereby the person who used it was injured.
Holding: Judgment for the plaintiffs.
Ratio Decidendi: Apart from the question of warranty, express or implied there is a duty
on the defendant, the vendor, to use ordinary care in compounding his wash for the hair.
There was such a duty to wards the purchaser and it extends to the person whose use the
vendor knew the compound was purchased Langridge v Levy was cited as an authority for
this proposition. Here a similar duty a rose towards the person who was known to the
defendant to be about to use this wash; namely the duty that the article sold should be
reasonably fit for the purpose it was bought for and compounded with reasonable care.
[Kelly C.B]
Obiter Dicta: Kelly, C.B. distinguished the case of Longmeid Elisa v Holliday from this
case in that the former cases decision was not based on the negligence of the Vendor.
Piggott, B; was of the same opinion and he added:. Where the thing purchased is for the
use not of the purchaser himself but, to the defendants knowledge, of his wife, does the
defendants duty extend to her? I can see no reason why it should not [The judge points to the
incapacity of women to sue on their own in those days which are a reason why a husband had to
be joined with her as co-plaintiffs).
A major breakthrough occurred in Heaven v Pender7, where the court finally

recognized that a duty of care can be owed to third parties. In a scenario where
7
[1883] 11 QBD 503
7
ordinary care or skill is required to prevent injury to the plaintiff, a duty of care
exists even in the absence of a contract.
5. HEAVEN V PENDER [1883] QBD 503
Material Facts
Note on Material Facts- the Material Facts in this case will be seen through the eyes of the judges
(Majority and Minority) who decided this case. Material facts according to the minority
judge Brett, MR were as follows;
The plaintiff was a workman in the employ of the ship painter. The ship painter entered into a
contract with a ship-owner whose ship was in the defendants dock to paint the outside of
his ship. The defendant, the dock owner, supplied under a contract with the ship owner, an
ordinary stage to be slung in the ordinary way outside the ship for the purposes of painting
her. It must have been to the defendant if he considered that matter at all that, the stage
would used by such a person as the plaintiff (as ship painter).
The ropes, by which the stage was slung, were supplied, without reasonable careful attention to
their condition. When the plaintiff began to use the stage the ropes broke, the stage fell and the
plaintiff was injured.
Issue: Whether the defendant owed a duty of care to the plaintiff.
Argument by the Counsel for the defendant; The stage was, through want of attention of
the defendants servants supplied for use by the plaintiffs but want of attention amounting
to want of ordinary care is no good cause of action, unless the person charged with such
want of ordinary care had a duty to the person complaining to use ordinary care in respect
of the matter in question.
Argument by Counsel for the plaintiffs; The defendant did not use ordinary care and
skill and because of that the plaintiff was injured, the type of injury was not caused by the
plaintiffs contributory negligence, therefore the defendant owed a duty of care to the
plaintiff.
Holding: Judgment in favor of the plaintiff.
Ratio Decidendi: Whenever one person is by circumstances placed in such a position with
regard to another that every one of ordinary care and skill in his own conduct with regard
to these circumstances he would cause danger or injury to the person or property of the
other, a duty arises to use ordinary care and skill to avoid such a danger. The owner of
8
premises is under an obligation to take reasonable care that the things supplied by him for
immediate use are in a good state of repair.
6. DERRY AND OTHERS V PEEK, (1889) 14 APP CASE 337
Material facts:
By a special Act 45 & 46 Vict; C Clix the Plymouth Devonport and District Train Ways Company
was authorized to make certain train ways. By S-35 the carriages used on the train ways might be
moved by animal power with the consent of the Board of Trade, by steam or any mechanical power
for fixed periods and subject to the regulations of the Board. By S.34 of the Tramways Act, 1870
(33 & 34 Vict.C: 78) which section in the special Act all carriages used on any tramway shall be
moved by the power prescribed by special Act, and where no such power is prescribed, by animal
power only.
The appellants as directors of the Company issued a Prospectus which encouraged people to invest
in it because by the special Act of Parliament the company had a right louse steam or mechanical
motive power, instead of horses. As soon as the Prospectus was issued, the respondent relying
upon a paragraph in the Prospectus applied and obtained shares in the company. The company
proceeded to tramways, but the Board of Trade refused to consent to the use of steam or mechanical
power.
In the result the company was wound up and the respondents brought an action of deceit against
the appellants claiming damages for fraudulent misrepresentation of the dependants whereby the
plaintiff was induced to take shares in the company. [In the High Court the action was dismissed
by Stirling J.] Appeal to the Court of Appeal.
Issue: Whether an action of fraudulent misrepresentation would lie?
Holding: The Court of Appeal held that [Cotton, LJ; Sir Hannen J, and Lopes, L.J.) the
defendants were liable to make good to the plaintiffs the loss sustained by taking the shares.
The defendants appealed to the House of Lords Holding: Appeal allowed, order of the Court of
Appeal reversed.
Ratio Decidendi: In an action for deceit the plaintiff must prove actual fraud, that is false
representation made knowingly, or without belief in its truth, or recklessly, without caring whether
it be true or false and intending the plaintiff to act upon it.
7. LE LIEVRE & DIENNES V GOULD, [1893] 1QB491
Material facts
9
H. Owner of land, arrange with D for a loan to be paid to L, a builder, on the security of a mortgage
of the land. The money was to be paid by installments at certain stages in the progress of buildings
to be erected on the land by L, and the stages were to be certified by an Architect. H. asked the
defendant, G, who was an Architect and surveyor to issue these Certificates. In the process D
transferred the mortgage to LL after four installments had been paid on certificates furnished by
G. In due course the plaintiffs lost money on this transaction and sued for damages.
Issue: Whether the defendant was liable?
Argument by the Plaintiffs: H. in employing G to issue certificates and in preparing the
schedule of advances was acting as the agent of the plaintiff D. The certificates given were
in fact to the knowledge of G and if there was no fraud on his part the defendant did not
use due care, skill and diligence to ascertain whether the facts of the certificates were true.
In so giving certificates the defendant acted with gross negligence, and in break of the duty
he owed to the plaintiffs.
Arguments by the Defendant: The defendant denied that he had been employed by D or
on his behalf to issue certificates. He never undertook any duty towards the plaintiffs or
either of them. He was not fraudulent, the certificates were issued bona fide and in belief
that the statements contained in them were true.
Holding: Appeal Dismissed, Judgment in favor 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.
8. NOCTON V LORD ASHBURTON [1914] AC 932
Material Facts
Lord Ashburton claimed damages from Nocton, a Solicitor on the basis that he had suffered loss
as a result of improper advise given to him by Nocton which he acted upon. The advice had been
that Lord Ashburton should release a part of a mortgaged security. As a result of acting on that
advice the security had become insufficient and Lord Ashburton claimed that the advice had been
given by Nocton knowingly that the security would be rendered insufficient and that it had been
given in Noctons interest and not in his clients interest.
10
In the first instance the Court found that there had been no fraud, therefore dismissed the action.
The Court of Appeal reversed that finding and granted relief on the basis that Nocton had been
guilty of actual fraud. The House of Lords reversed the decision of the Court of Appeal. Held the
plaintiff was to succeed on the basis of a breach of duty which arises out of fiduciary relationship
with the defendant and which the defendant suffered loss.
Holding: Court of Appeal decision affirmed on different grounds.
Ratio Decidendi: Where a person renders advice to another and the advisee falls within a
fiduciary relationship with the adviser, in case the advisee sustains loss the adviser is liable.
9. DONOGHUE V STEVENSON, [1932] AC 562 (HL)
This was an appeal from Scotland [England and Scotland have two different legal systems.
Material Facts
The appellant, a shop assistant sought to recover from the respondent, an aerated water
manufacturer, on the basis that he was negligent and out of such negligence she was injured by the
presence of a snail in a bottle of ginger beer manufactured by the respondent and ordered for the
appellant in a shop by a friend of the appellant. As a consequence of having drunk part of the
contaminated contents of the bottle it was alleged that she contracted a serious illness. The bottle
was dark opaque glass, the condition of its contents could not be ascertained, it was closed up with
a metal cap, and on the side was a label bearing the name of the manufacturer (the respondent).
Issue: Whether a manufacturer of an article or drink sold by him to a distributor in
circumstances which prevent the distributor or ultimate purchaser or consumer from
discovering by inspection any defect is under a legal duty to the ultimate purchaser or
consumer to take reasonable care that the article is free from any defect likely to cause
injury to health?
Holding: Appeal allowed; decision in favour of the plaintiff against the defendant.
We shall concentrate on the reasoning of the House of Lords. The case was decided
by Lord Atkin, Lord MacMillan, Lord Buckmaster, Lord Thanketon and Lord
Tomlin. Lord Buckmaster and Tomlin dissented. We examine in turn the extracts
from the opinions of Lord Atkin, Lord MacMillan and Buckmaster:
Lord Atkin made the following important Observations:
1. For the purposes of determining this problem the law of Scotland and the law of
England are the samein order to support an action for damages for negligence the
11
complaint has to show that he has been injured by the breach of duty owed to him
in the circumstances by the defendant to take reasonable care to avoid such injury.
2. In the present case we are not concerned with the breach of duty we are concerned
with the question as a matter of law in the circumstances alleged by the defendant
owed a duty to the purchaser to take care.
3. In English law there must be, and is, some general conception of relationships
giving rise to a duty of care, of which particular cases found in the books are but
instances. The Liability for negligence, whether you style it such or treat it as in
other systems as species of culpa is no doubt based upon a general public
sentiment of a moral wrongdoing for which an offender must pay.
4. The rule that you are to love your neighbor becomes, in law, you must not injure
your neighbor: and the lawyers question, who is my neighbour ? (emphasis added)
receives a restricted reply. You must take reasonable care to avoid acts or
omissions, which you can reasonably foresee, would be likely to injure your
neighbour. Who then, in law, is my neighbour? The answer seems to me to be:
persons who are so closely and directly affected by my act that I ought reasonably
to have them in contemplation as being so affected when I am directing my mind
to the acts or omissions which are called in question.
10. GRANT V AUSTRALIAN KNITTING MILLS, [1936] AC 85
Material Facts
The appellant contracted dermatitis of an external origin as a result of wearing a woolen under
pant which, when purchased from the retailers, was in defective condition owing to the presence
of excess sulphates, which, it was found, had been negligently left in the process of manufacture.
The appellants claimed damages both against retailers and manufacturers.
Issues: Whether the manufacturers were liable in tort and retailers in contract?
Whether the principle of Donoghue V Stevenson is applicable to this case?
Argument advanced by the plaintiff: The decision of the House of Lords in
Donoghue V Stevenson was binding on the Court to follow.
Argument by the defendant: Donoghue V Stevenson was a case of food and drink
to be consumed internally, whereas the pants were to be worn externally. While
Donoghue V Stevensons case the makers of the ginger-beer had retained control
12
over it in the sense that they had placed it in stoppered sealed bottles, so that it
would not be tampered with until it was opened to be drunk, the garments in
question were merely put in paper packets each containing six sets which in
ordinary course would be taken down by the shopkeeper and opened, and the
contents handled and disposed of separately, so that they would be exposed to the
air. It was further argued that though there was no reason to think that the garments
when sold to the appellant were in any other condition, least of all as regards sulphur
contents, than when sold by the manufacturer to the retailers, still the mere
possibility and not the fact of their condition having changed was sufficient to
distinguish Donoghues case. There was no control because nothing was done by
the manufacturer to exclude the possibility of any tampering while the goods were
on their way to the user. Lastly, it was argued that if the decision of Donoghues
case, were extended even a hairs breadth no line could be drawn, the
manufacturers liability would be extended indefinitely.
Holding: The case was within the principle of Donoghues case, decision atgains
the respondents, appeal allowed with costs.
Ratio decidendi; A person who for gain engages in the business of manufacturing
articles for consumption by members of the public in the form in which he issues
them is under a duty to take care in the manufacture of these articles.
Lord Wright in this case considered a number of things:
1. Negligence is found as a matter of inference from the existence of
the defects taken in connection with all known circumstances even
if the manufacturer could by apt evidence have rebutted that
inference they have not done so.
2. It is clear that the decision of Donoghue v Stevenson treats
negligence, where there is a duty of care, as a specific tort in itself
and not simply as an element in some more complex relationship
or in some specialised breach of duty, and still less as having any
dependence on contract. All that is necessary as a step to establish
the tort of actionable negligence is to define the precise
relationship from which the duty to take care is deduced.
13
3. It is, however, essential in English Law that the duty should be

established; the mere fact that a man is injured by anothers act
gives in itself no cause of action; If the act is deliberate, the party
injured will have no claim in law even though the injury is
intentional, so long as the other party is merely exercising a legal
right; If the act involves lack of due care, again no cause of
actionable negligence will arise unless the duty to be careful
exists,
4. If the term proximity is to be applied at all, it can only be in the
sense that they want of care, and the injury are in essence directly
and intimately connected; though there may be intervening
transactions of sale and purchase, and intervening handling
between those two events are themselves unaffected by what
happened between them; proximity can only properly be used
or of some interfering complication between the want of care and
the injury.
5. Equally also may the word control embrace, though it is
conveniently used in the opinions in Donoghuescase to
emphasize the essential factor that the consumer must use the
article exactly as it left the maker, that is all material features, and
use it as it was intended to be used. In that sense the maker may
be said to control the thing until it is used.
6. Duty is difficult to define, because when the act of negligence in
manufacture occurs there is no specific person towards whom the
duty could be said to exist, the duty cannot at the time of the
manufacture be other than the potential or contingent, and only
can become vested by the fact of actual use by a particular person.
7. In Donoghues case the thing was dangerous in fact, though the
danger was hidden, and the thing was dangerous only because of
want of care in making it.
14
8. The principle of Donoghuess case can only be applied where the

defect is hidden and unknown to the consumer, otherwise the
directness of cause and effect is absent, the man who consumes or
uses a thing which he knows to be noxious cannot complain in
respect of whatever mischief follows, because it follows from his
own conscious Volition in choosing to incur the risk.
READ ALSO: Candler V Crane Christmas, [1951] 2 KB 164, Clayton V Woodman, [1962]
2QB 533 (HC & CA decision), Hedley Byrne & Co Ltd V Heller & Patners Ltd, [1963]
2 All ER 575 at 578-618.
This few cases show the efforts done by the court in the development of the law of torts from
medieval period where by the state had little concern regarding individuals and their interactions.
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.8 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 Stevenson10.
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
8
Ogle v Barnes (1799) 101 ER 1338 As a result of careless navigation, one ship damaged another ship. The owner of
the damaged ship brought an action in the Court of Kings Bench. The Court held that the owners of the other ship
were liable because their careless navigation had caused the damage, and the damage was consequential upon their
action, rather than an immediate result of their actions.
9
[1856] 11 Ex 784
10
[1932] AC 562 The law placed on the manufacturer a direct duty of care to the consumer, not just the purchaser,
but the ultimate consumer, the person for whom the goods are intended. Third parties now had the right to sue if it
was breached.
15
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.
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:
Duty of care
The traditional approach, espoused by Atkin in Donoghue v Stevenson11, 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 tortfeasor had a proximate
relationship and that damage caused to the victim was foreseeable12. That is the defendant must
have foreseen some defects to the plaintiff at the time of the negligent conduct or omission.13 Lord
Porter repeated his words in the case of Bourhill v Young14. 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. Dickman15 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 judges16.
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 defendants conduct fell bellow the
required standard which can be determined by invoking reasonable man test. The defendant will
11
[1932] AC 562
12
Lord Esher MR in Le Lievre v Gould[1891] 1QB 491 at 497
13
Binamungu loc.cit at pg 43-44
14
[1943] AC 92, 113 the law takes no cognizance of carelessness in the abstract. It concerns itself with carelessness
only where there is a duty to take care and where failure in that duty has caused damage. In such circumstances
carelessness assumes the legal quality of negligence and entails the consequences in law of negligence.
15
[1990] HL 587
16
http://www.austlii.edu.au/au/cases/cth/HCA/1999/36.html
16
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 Dicksons 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 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.
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 breached21.
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 problem22.
17
Braizer M, (1951) Street on Torts 18 th Ed at pg 204-205
18
[1816] 5 M& S 198
19
Binamungu C.M( 2002) Law of Torts in Tanzania at pg 48
20
Cassidy v Ministry of Health [1951] 2KB 343
21
Binamungu, Ibid at pg 50
22
Binamungu, op.cit at pg 49-50
17
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 contemplation23.
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:-
(a) Doctor and Patient relationship
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 Hospital24. In this case Nkinga hospital was held liable for
causing amputation of the minors 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 patients 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.
(b) 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 Station25. 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
23
Heaven v Pender (1883) 11QBD 503. Where the court of Appeal was asked to consider if the defendant (Pender)
owed a duty of care to a person who was to use the platform. The court ruled that a duty of care was owed to the
person who was to use the platform, especially as it was during his employment. Court went further saying as obiter
dictum: It is undoubted, however, that there may bethe obligation of such a duty from one person to another although
there is no contract between them with regard to such duty.
24
[1992] TLR 235
25
[1972] HCD NO. 241
18
fuel was taken home it was funneled in the small lamp. When fire was lit it exploded burning a
substantial part of the appellants 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 customer26.
(c) Purchaser (consumer) and Manufacturer of soft drink relationship27
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 act28. 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 property29.
So due to the development on the economical, 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 Ltd30 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 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)31. In which the Plaintiff was involved in the car accident with Mushis
vehicle as a result he lost his right arm. The driver was subsequently convicted of various offences
26
Jackson Mussetti v Blue Star Services Station[1997] TLR 114
27
Cocacola Kwanza Ltd v Bilson Mbezilwa civ appeal no 33 of 1999
28
Ibid
29
Binamungu C.M( 2002) Law of Torts in Tanzania at pg 54
30
(1964) AC 464
31
(1972) HCD 134
19
arising from the accident. Subsequently the plaintiffs 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 plaintiffs 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 favour of the plaintiffs.
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 defendants advice
The plaintiff must prove that he relied on the advice. It must be foreseeable that the plaintiff will
rely on the advice as was seen in Hedley Byrne case that the appellant relied on bankers 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 an
20
advice was given32. In Francis Ngaires 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 persons 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.34, The court stated that not every negligent
act will result in liability in negligence.
POSSIBLE DEFENCES IN TORT OF NEGLIGENCE
On this juncture I am on the view that when the defendant will raise the following defenses as
hereunder explained will exonerate him or her from liability.
(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 Seif35. 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 good
32
Binamungu C.M ( 2002) Law of Torts in Tanzania at pg 56-57
33
In Tanzania today, the law governing the stock exchange imposes a duty to the directors of listed companies to give
correct information in the prospectus to be relied on by investors. This is provided under Section 34 of the Capital
Market and Securities (Amendments) Act no 10 of 2010. And also Section 38 of the Companies Act provides that it is
the duty of the directors not to make negligent misstatements.
34
[1980] TLR 98 (HC)
35
[1960] E.A 201
21
and had thread still on them these circumstances were explained as being beyond the plaintiffs
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 avoided36.
(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 plaintiffs 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)38.
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.39, 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
36
Binamungu C.M loc. cit at pg 50-52
37
This was seen in the case of Davies v Swam Motor Co. Ltd[ 1946] 2KB 291 This was an accident in which a collector
stood on the steps of the house while trying to jump into the vehicle they were using to collect refuse. He failed to step
on it and got injured seriously. The court regarded the plaintiff to have contributed to his peril by 90%
38
Means that the claimant voluntarily agrees to undertake the legal risk of harm at his own
expense.
39
(1962) E.A 419
22
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 consent40.
TOPIC TWO
STATUTORY INTERPRETATION AND CONSTRUCTION
Introduction
The legislature is the highest competent authority making laws, to legislate is to make laws.
The legislature lays down laws for the proper guidance of people and the courts. In strict
sense the legislation means the laying down of rules by the sovereign authority or by
authority subordinate to it.
The legislature lays down the rules for future reference and for the development of
everyone it includes will of legislature the doctrine to legitimate expectation shall not be
applied to legislature. The courts while interpreting makes many mistakes which violate
the rule which says to go with the true intention of legislature and to understand the
language completely.
Once Statutes is in force it must be applied by the court and thus if a judge makes a decision
without reference to a statute (relevant to a matter) either because he is ignorant of it or it
was not cited to him by a counsel, it would provide a ground for appeal.
What do we mean by the terms construction and interpretation?
Construction is a process by which all statutes, like other writings, are necessarily
subjected to when read by It relates to the manner of ascertaining the intention of the maker
of the instrument or writing, that is the legislature in the case of the statutes. It is a term of
a wide sense or scope because it explains the legal effects and consequences of the
instrument in question.
Interpretation is a process by which a judge (or any other person) obtains a meaning from
the words of a statute. It is concerned with ascertaining the sense and meaning of the
subject matter, the written text, a statute in this case. The process of interpretation is
40
Froome v Butcher [1976] the plaintiff was involved in a car accident, but at the time of accident did not wear a seat
belt. His damages were reduced by 25% .Special treatment of certain categories of individuals, like rescuers and those
people put in agony of moments to act.
23
concerned with how a dispute about words and their meaning is arrived at so that there is
consistency and certainly (ex rationale legis) in the law.
Statutory Interpretation is a particular form of a general problem the understanding of
meaning of WORDS and PHRASES used in a statute. The interpreter is concerned with
technical words in legal documents, for example: statutes, contracts, and wills which speak
not only to the present but also intended to deal with the future and touch on conflicts of
interests.
In the Common Law tradition, which Tanzania inherited from Britain, statutory texts or
legislative rules are a supreme source of law. The rules exist in a hierarchy [The
Constitution, Acts or decrees, rules, regulations, notices, statutory instruments] and there
are techniques of dealing with each level in the hierarchy.
Statutory Construction the art or process of discovering and expounding the
meaning and intention of the authors of the law with respect to its application to a
given case, where that intention is rendered doubtful, among others, by reason of
the fact that the given case is not explicitly provided for in the law.
Statutory interpretation can be defined as a process by which the true intention of the
framer of documents is ascertained and the true meaning of words is taken out. Salmond
has clearly pointed out that the process by which the courts seek to assertion the true
meaning of legislature through medium of authorities. The judicial art of interpretation is
embedded in creativity and realism.
There are two types of interpretation: Strict and Liberal. The latter can be subdivided into
extensive and restrictive.
Strict interpretation arises where judges attribute to the legislator the will which at the
time of making the law, as supposed, the judge entertains.
Extensive interpretation applies a statutory provision to a case which does not fall within
its words when literally construed [Nisbet v Rayne & Burn [1970] 2KB 689 in Dr. Avta
Singh Rep. 2005 p 161
Restrictive interpretation fails to apply a statutory provision to a case which does fall
within its words when literally construed Mwinyimadi Ramadhani v Rs Case; R v Omari
s/o Kindamba & Anoth. [1960] EA 407 (T); Ebrahim Ahmed Mohamed Modhaf v (l)
(1956) 23 EACA 456, Singida RTCV TPTC, [1979] LRTn ll
24
CONSTRUCTION AND INTERPRETATION, DISTINGUISHED

Construction is the drawing of conclusions with respect to subjects that are
beyond the direct expression of the text, while interpretation is the process
of discovering the true meaning of the language used. Interpretation is limited
to exploring the written text.
Construction on the other hand is the drawing of conclusions, respecting
subjects that lie beyond the direct expressions of the text.
The object and purpose of interpretation
The object and purpose of interpretation is to assertion the true meaning of legislature and
to bring out the intention of maker. It is presumed that while making a particular statute
the maker is very much conscious about the laws and has taken all the necessary steps to
bring out the true intent and therefore there is no need to amend or to misinterpret the
meaning. It should not be done until and unless there is ambiguity in words. If there are
different meanings of a particular word then the most preferred or suitable meaning shall
be taken.
Necessity of interpretation
The interpretation of statute is very necessary as to bring out the true intention of maker of
a particular statute. There should be a consistency in what the maker has thought while
making the particular provision and what the person thinks out of it while interpreting the
particular statute. The courts have also not been given much power as to the interpretation
of statute.
Some aspects which are required while making interpretation are;-
1. The words implied in statute are simple and bring out a single meaning shall be taken as it
is and shall not be interpreted at all this is known as the doctrine of literal interpretation.
2. The rule of harmonious construction shall be applied to bring out a clear and precise
meaning.
3. The meaning given out by the word shall be simple and plain so that it can be applied in
strict sense but if it leads to absurdity or unreasonableness than the golden rule shall be
referred and the absurdity shall be removed.
4. If the words intended to give out clear and precise meaning fails to do so than the historical
background of the particular statute shall be referred to bring out the true meaning.
25
5. If the particular word gives out two or more meaning the most suitable meaning shall be
preferred.
The process of interpretation
The process of interpretation is very important as it tells us about how to find out
the true intention of the maker and enables us to come to a suitable conclusion free
form absurdity. The process of interpretation ha two elements namely;-
Grammatical interpretation & Logical interpretation.
Grammatical interpretation provides for the literal construction, the words should
be used as they are there shall be no change in the words, this provides a strict
interpretation and has a narrow scope. It is properly known as litra legis which
means to so by the words itself and to understand what has been expressed. The
very purpose of interpretation is to provide a clear legislative intent and to prevent
unreasonableness, ambiguity and absurdity and when the words used are
themselves very clear then there is no need of further interpretation of it. The words
used in statute when give out two meaning of a particular word then the meaning
which is most suitable and precise shall be taken.
Discovery of the true legislative intent is the main goal but the process of
interpretation should be strictly followed and shall not be done away with. The
grammatical interpretation may provide for strict interpretation but may also
sometimes provide hardships in developmental process.
While interpretation the following questions shall always be asked by the
interpreter to himself as to (i) why this particular law has been made? (ii) What is
the purpose? (iii) Has the purpose been achieved?
In constituting the statute the, all the grammatical and ordinary senses of words
shall be adhered to bring out the true meaning and to prevent future complications.
When there are certain words which are not clear and may result in
unreasonableness such words shall be very carefully interpreted.
Many times there are certain difficulties which are faced in the process of
grammatical interpretation such as Inconsistency & Ambiguity. The inconsistency
may arise when a particular law or statute is inconsistent with one and other, as a
result of which the statute is either nullified or done away with. The ambiguity may
26
arise as a result of a particular word having two or more meaning therefore the most
suitable word has to be chosen among the two of them.
The art of interpretation depend on the text and the context. These both are the bases
of interpretation in Indian jurisdiction. One may well say if the text is the texture,
context is what gives the color. Neither can be ignored. Both are important. That
interpretation is best which makes the textual interpretation match the contextual.
A statute is best interpreted when we know why it was enacted. With this
knowledge, the statute must be read, first as a whole and then section by section,
clause by clause, phrase by phrase and word by word. If a statute is looked at, in
the context of its enactment, with the glasses of the statute- maker, provided by
such context, its scheme, the sections, clauses, phrases and words may take color
and appear different than when the statute is looked at without the glasses provided
by the context. With these glasses we must look at the Act as a whole and discover
what each section, each clause, each phrase and each word is meant and designed
to say as to fit into the scheme of the entire Act. No part of a statute and no word
of a statute can be interpreted in isolation. Statutes have to be interpreted so that
every word has a place and everything is in its place.
Moreover, it has been stated that the court must ascertain the intention of the
Legislature by directing its attention not merely to the clause to be construed but to
the entire statute; it must compare the clause with the other parts of the law, and the
setting in which the clause to be interpreted occurs.
Logical interpretation means Sententia Legis to bring out the true meaning of law.
The Sententia legis gives liberty to the courts to go beyond the lateral meaning of
the words. Whenever there is a problem as to the meaning of a particular word
expressed in the statute then the courts can apply the logical interpretation as bring
out the true meaning of the words expressed in the statute. The logical interpretation
is based on the belief that the words used may have different meaning than the
maker has thought to be, there may be a chance of miscommunication then the
courts are at the liberty to peep in to the true nature of words so expressed.
Basic principles of interpretation
27
Rules Of Ex Visceribus Actus the statute shall be read as a whole. Every part
of the statute shall be constructed in four corners, the statute shall be read as a whole
because half read is half done.
Rule Of Caus Omissus provides that any omission in the statute cannot be done
by way of formal construction. If there is any omission by legislature it cannot be
ratified by the courts, it is the primary duty of legislature to make laws and if there
is any kind of deadlock it shall be removed by legislature itself.
Rule Of Ut Res Magis Valeat Qauam Pereatimplies that the language of the
statute shall be so constructed as to reduce the vagueness and not to let the law to
be a dead letter. The spirit behind the principle is the statute shall be judged
according to the constitutional validity and not just according to the will of state.
The interpretation shall not render the statute un workable and if the interpretation
renders the statute unworkable than the interpretation shall be done away with. The
Courts while pronouncing upon the constitutionality must prefer an interpretation
which keeps the statute within the competence of the Legislature. The importance
of the rule of ut res magis valeat quam pereaf has an effective application in this
regard. The importance of this rule lay in the fact that courts must lean against an
interpretation which reduces a statute to a nullity.
The statute is a formal expression of will of legislature, which indicates the true
intention behind making a law. The courts are supposed to make laws according to
mandate of legislature and apply the letter of law. It is presumed that the legislature
has used clear, appropriate, short and non ambiguous words to express their true
intention.
Statute law is frequently used interchangeably with statute; but the term is broader
in its meaning, and includes not only statutes as already defined, but also the
judicial interpretation and application of such statutes.
Advantages of Statute Law (at the expense of judge- made law)
o Parliament is supreme: a statute can abrogate any rule of law (in a previous
statute or case law).
28
o Judges have no power to abrogate a provision (Ndyanabos Case, the

Validity of Judicial Activism- Mwalusanya J (as he then was on the basis
of un constitutionality of certain laws in Tanzania).
o When Parliament abolishes a rule of law it will only do so for the future so
that previous transactions based on the old law are not affected (Normally
new laws will contain within it Transitional and consequential
Provisions).
o Occasionally Parliament passes legislation which has retrospective effects
(Ibrahims Case [1963] EA 179, Uganda v Nyengeya [1963] EA 106,
Municipality of Mombasa v Nyali [1963] EA; Patel v R [1968] EA 97]
o The Constitutional doctrine of separation of Powers is to a greater extent
satisfied by legislation than by judge-made law or Case-Law. Parliament
makes laws but does not enforce them, whereas judge-made law is enforced
by the very people who make it.
o Statute law can be known in advance, case law is known at the time that it
is made.
o A statute settles doubtful situations.
o Parliament is more in touch with the Outside World than is the judiciary and
can quickly turn public opinion and social policy into law.
o Parliament or the Legislature is free to make law on any subject it thinks fit,
Courts are constrained by the facts of the case before them.
Classification of Statutes
a) Classification by Object
(i) Declaratory Statutes: All statutes that are declaratory in nature
remove doubts existing to common law or the meaning or effect of any
statute.
Set aside what Parliament deems to have been a judicial error, whether in
the statement of the common law or in the interpretation of statute.
Indicia---declare and enacted
Retrospective-declare meaning of existing law and does not necessarily re
open decided cases/disturb vested interests for example The Land Tenure
29
(Established Villages) Act, 1992 and The Local Customary Law

(Declaration) Orders 1963 GN. 279 and 436 respectively.
Rule: Where there is a conflict between the terms of a statute and common law, the former
must prevail, if it is clear that it was the intention of the legislature in passing a new statute,
to abrogate the previous common law on the subject. i.e the Land Act, 1999 changes the
Common Law rules on conveyancing, trust, landlord/tenant and mortgages.
b) Remedial Statutes: All statutes are by their nature remedial, that is, are passed to
remedy an existing mischief, that is defects or redress some grievance. Other
statutes are beneficial. But the Land Tenure (Established Villages) Act 1992 caused
some grievances. In other words Remedial Statute providing means or method
whereby causes of action may be effectuated, wrongs redressed and relief
obtained.
c) Enabling Statutes- This legalize acts or things that would otherwise be illegal. For
example Acquisition and Requisition Acts- the Land Acquisition Act, 1967, the
Acquisition of Buildings Act, 1971, the Villages and Ujamaa Villages
(Administration and Registration) Act, 1975, the Economic Offences and
Organised Crime Control Act, 1983 and the Preventive Detention Act, 1962.
d) Classification by Method
Obligatory Statutes: are used with reference to enabling statutes
Permissive statutes
Imperative or mandatory and directory statutes.
Imperative and mandatory statutes creating duties. They also refer to provisions which lay
down conditions prior compliance with which is a condition precedent for the validity of
an act or transaction. According to Maxwell on Interpretation, a statute is imperative or
mandatory or directory or permissive depending on the manner or form laid down for
performing a transaction as essential or not.
30
e) Classification by duration Statutes are classified by duration on the basis

whether they are either permanent or temporary depending on the time set out in
the body of a statute. For example statutes establishing offices.
OTHER KINDS OF STATUTES
1. General Statute affects the community at large. That which affects all people of
the state or all of a particular class.
2. Special Statute designed for a particular purpose, or limited in range or confined
to a prescribed field of action on operation.
3. Local Statute-looks, relates or operates over a particular locality instead of over the
whole territory of the state.
4. Curative Statute a form of retrospective legislation which reaches back into the
past to operate upon past events, acts or transactions in order to correct errors and
irregularities and to render valid and effective many attempted acts which would
otherwise be ineffective for the purpose intended.
5. Penal Statute defines criminal offenses specify corresponding fines and
punishments.
6. Prospective Law applicable only to cases which shall arise after its enactment.
7. Retrospective Statute-looks backward or contemplates the past; one which is made
to affect acts or facts occurring, or rights occurring, before it came into force.
8. Affirmative Statute directs the doing of an act, or declares what shall be done
in contrast to a negative statute which is one that prohibits the things from being
done, or declares what shall not be done.
9. Mandatory Statutes generic term describing statutes which require and not merely
permit a course of action.
Structure of a statute
(i) Court of Arms (ii) Act No and Year (Act No. 11 of 1981)
(iii)Assent/Signature/Designation i.e. " 1 ASSENT J.K. Nyerere President
7th September, 1981". (iv) Long Title: "An Act to apply a sum of sixteen thousand
six hundred thirty-one million, seven hundred and one thousand, four hundred
shillings of the consolidated Fund to the Service of the year ending on the thirtieth
day of June, 1982, to appropriate the supply granted for that year, to authorize the
31
reallocation of certain appropriations and to provide for matters connected with

those purposes. (v) Date of Commencement (............) (usually appear at the right
side of the enactment). In case the date does not appear check for the appropriate
provisions authorizing the Minister or any official responsible to bring the Act into
operation. This will normally be published through the Government Gazette by way
of a Notice). (vi) Enacting Formula "Enacted by the Parliament of the United
Republic of Tanzania". vii) Short Title and Citation "This Act may be cited as
...". (viii) Interpretation Provision "The expressions used in this act shall each have
the meaning ascribed to it in the Exchequer and Audit Ordinance". Or "In this Act,
unless the context otherwise requires - (Then there follows the words and phrases
used in the enactment and how they may be understood). (ix) Marginal Notes
(appear at the right side of the enactment) (x) The enactment is then divided into
parts, with sections and subsections etc. At times there appended to enactments
schedules. Schedules form part and parcel of the enactments in which they appear.
(xi) Statement showing that the enactment was passed by the National Assembly
and the appropriate date. (xii) Signature of the clerk of the National Assembly.
Consolidating Statutes and Codifying Statutes
Consolidatedthe re-enactment in one statute some topic in law previously
contained in several different statutes, but without changing the All Consolidation
Act are designed to bring together in one convenient, Lucid and economic form a
number of enactments related in subject matter-previously scattered over the same
statute-book
A consolidating statute is presumed not to change the law but only to re-enact it in
a different place. When interpreting such a statute, you may apply cases already
decided on the meaning of the replaced Acts. In cases of ambiguity, the Acts which
have been consolidated may themselves be scrutinized.
Codification- a restatement in one place the law or a particular topic, which if
necessary, may also alter the law.
Preparation of Legislation
32
The responsibility for initiating the vast majority of modern legislation rests on the
government. Private members Bills are Unlikely to become law because of
shortage of Parliamentary time.
Legislative proposals of a particular government department may be approved in
principle in the Cabinet and then handed to the Parliamentary draftsman to be put
into legal language inform of a Bill.
Sometimes a Bill is preceded by a White Paper containing governments proposal
for legislation. Legal language is used becauseto legislate by using precise words
seeking to cover every conceivable situation and allow no loopholes.
Commencement of an Act of Parliament
A Bill consists of clauses, sub-clauses and paragraphs. After it has been through its
Parliamentary stages and has received Presidential Assent (or royal assent in
England) it becomes an Act, consisting of sections, subsections and paragraphs.
An Act comes into force on a date specified in the Commencement section, if
any. If there is no commencement section, there may be an appointed day section
authorising whoever may be to implement the Act by way or means of an Order or
Notice in the Government Gazette.
The Act may provide that different parts can be brought into effect on different
dates. Any appointed day section gives the Minister discretion to bring the Act
or parts of it, into effect when he feels it is appropriate to do so. He cannot be
compelled to implement the Act on any particular date. His discretion is not
completely unfettered.
Parliament must be taken to intend that legislation will come into force at sometime
and that its commencement will not entirely depend on ministerial whim. If there
is no commencement section and no appointed day section, the Act comes into
operation on the day of assent.
History of Legislation
Legislations reflects a creative act by public authority, which states authoritative
words. It was not until the 19th Century that legislation became a productive source
of law and Parliament shifted from simply deliberating matters of general interest.
Before the 19th Century known Codes of Law were those of Emperor Justinian- the
33
Corpus Juris Civilis of 6th C. That had been codified to ensure permanence of
Roman Private Law System, and the Code Napoleon which was codified 1300 years
later as Code Civile and basis of French law.
Legislation in the Colonies
The British power to legislate in the Colonies was based on the Prerogative of the
Crown to assign the form of government in a conquered, Ceded area, or the General
Authority, which the Crown acquired by virtue of the British Settlements Act, 1887.
Apart from the above two sources of the power to legislate in the Colonies and
jurisdiction on the same was based on the Foreign Jurisdiction Act and the African
Order in Council 1889 (Uganda) and 1890 (Tanzania). It is important to study the
colonial history of each country.
The general common features in all territories were that the Governor was
controlled from London by the office of the Secretary of State. The Governor was
an absolute ruler.
By 1926 all the three East African territories had legislative councils to which draft
legislation and annual estimates were debated. The Consent of the Governor was
necessary for them to be passed. Under this system the Governor was advised by
an Executive Council.
There were also the so-called African Tribal Authorities nominated and elected
legislative Councils at a supra-tribal level, comprised of tribal Chiefs (Native
Authorities).
SOME CASES ON STATUTORY INTERPRETATION
1. Bartazar Kahungya v. R. (1982) TLR 135..bonafidabonafida accompanied baggage
meaning of s.5 Import Control Ord. cap. 292
2. DPP v. Akberali Mohamedali Rajpar (1982) TLR 213..meaning of 'complainant'
- Does not include prosecutor - s. 202 (1) criminal Procedure code cap 20.
3. Musa Seif & Anor v. R (1982) TLR 228Penal statute must be construed
strictly.
4. East African Posts & Telecoms Corporation v. M/s Terrazo Paviors . (1973)
LRT n. 18Words should be taken to be used in their ordinary everyday sense
34
unless there is something shown to the contrary-meaning of expression "extended to

22/7/72".
5. Ambindwile Kibona v. R (1963) EA 199...meaning of "shall be liable."
6. Mwinyimadi Ramadhani v. R . (1963) EA 199Interpretation of words "offence
in respect of any animal "in Fauna conservation Ordinance-Fauna Conservation Ord.
cap 302 ss. 2,42(1).
7. National & Grindlay's Bank v. Kentiles & Co. & the Official receiver (1966)
EA 17 (K)whether `person' includes company land control Ord (cap. 150)
8. A-C v. Abdulla (1960) EA B72 (K)...Legislation in pari materia - intention of the
legislative - penal code - construction of words "or other place" conspiracy &
protection of Property Act, 1875 s.7.
9. R. v. Modes (1969) EA 275whether abduction of a "woman of any age" within
Renal Code S. 133 applied to an girl of 10 to 12 years.
10. Ramadhani v. R (1969) EA 269marginal notes - whether marginal notes may
be used to assist interpretation of a statute - Penal Code s. 269.
11. Pollock House Ltd v. Nairobi whole salers Ltd . .Interpretation manner of.
12. Saeed v. R . (1974) EA 85Exchange control administration circular & notices
may not be used as aids to interpretation.
TOPIC THREE
RULES OF STATUTORY INTERPRETATION
INTRODUCTION
There are no binding judicial decisions on the subject of statutory interpretation as opposed
to the interpretation of particular statutes. The rules of English Statutory Interpretation are:-
The judge must give effect to the grammatical and ordinary or, where appropriate,
the technical meaning of words in the general context of the statute; he must also
determine the extent of general words with reference to that context.
If the judge considers that the application of the Words in their grammatical and
ordinary sense would produce a result which is contrary to the purpose of the statute,
he may apply them in the secondary sense or meaning which they are capable of
bearing.
35
The judge may read in words which he considers to be necessarily implied by

words which are already in the statute and he has a limited power to add to, alter
or ignore statutory words in order to prevent a provision from being intelligible,
absurd or totally unreasonable, unworkable or totally irreconcilable with the rest of
the statute.
In applying the above rules the judge may resort to the aids to construction and
presumptions. The aids include: .Internal Aids, rules of language .External Aids and
a number of presumptions.
Thus the main principle for Interpreting statutes are three: that is Literal Rule,
the Golden Rule, and the Mischief Rule.
THE LITERAL RULE
Basically this is based on the idea that the words in statute must be read in their ordinary, plain,
natural, original and grammatical meaning. Its the rule that compels the courts to adhere to the
principle Litera legis ita Scripta est.
Therefore it can be rightly said that the rule prohibits judges from adding or taking from or
modifying the letter of the law. The words of a statute must be read in their ordinary,
natural and grammatical meaning.
The above position was sufficiently explained in the case of Pinnet v. Everett41, where Lord
Reid in the House of Lords stated inter alia : In determining the meaning of any word or
phrase in a statute the first question to ask always is what is the natural or ordinary
meaning of that word or phrase in its context in the statute. It is only when the meaning
leads to some result which cannot reasonably be supposed to have been the intention of the
legislature that it is proper to look for some other possible meaning of the word or phrases.
Further Lord Esher said in R v the Judge of the City of London Court42 that if the words a
statutes were clear, they must be followed even if the result is not sensible, and even if it is absurd
and unjust.
41
[1969] 2 All ER 257 at 258-259
42
[19892] 1 QB 273
36
CRITICISM ATTACHED WITH LITERAL RULE OF STATUTORY

INTERPRETATION
The underlying dilemma concerning this rule is that there is a strong possibility that the ruling of
the courts may reach an absurd decision, considering the fact that its not always possible to word
an act so that it covers every situation parliament intended to, when attempting to settle a case.
This flaw of the literal rule was exemplified by the Whitely v Chappell43, case in which the
defendant was charged under a section which made it an offence to impersonate any person
entitled to vote. However due to the fact that the impersonated voter was deceased enabled the
defendant to be omitted from the crime and therefore found not guilty since a dead person is not,
in the literal meaning of the words entitled to vote this was ludicrous.
A further case in which marks the inadequacy of the rule, specifically demonstrating how it leads
to harsh decisions, is the North Eastern Rail co v Berriman44 case. A railway worker whilst
doing maintenance was killed oiling points across a railway line. His widow sought to claim
compensation considering there was no lookout man at the time of her husbands death however
under the literal meaning of the words in the Fatal Accidents Act a lookout man wasnt necessary
for maintenance so therefore her claim was brutally denied. Additional issues regarding the
literal rules include the following: Words have multiple definitions meaning that therere
difficulties with interpreting the words in specific acts making them unclear.
Generally, There are certain defects of the literal rule of interpretation. The
defects may be of two types; Logical defect which constitutes of ambiguity,
inconsistency and incompleteness and the second type is absurdity or irrationality.
AMBIGUITY
Ambiguity occurs where a term or an expression used in a statute has not one but various
meanings, and it is not clear which one particular meaning it represents at which particular context
or place. So here the court will have to go beyond the statute and yet stick to the same literal words
of the statute to ascertain its meaning. Also the ambiguity sometimes is syntactic which means
43
[1868] LR 4 QB 147
44
[1946] AC 278
37
the vagueness arises from words like or, and, all and other such words. For example if a
punishment for a certain crime is fine or imprisonment or both, the court can imprison the
accused or impose a fine or impose a fine as well as imprison him.
INJUSTICE
The words cannot be understood properly without the context in which it is used. The strict
adherence to this principle may cause injustice and sometimes it might give results which are quite
contrary to general intention of the statute or common sense.
INCOMPLETENESS
It means that there is some lacuna or omission in the statute which prevents it from giving a
complete idea, or it is logically incomplete. In such cases it is the duty of the court to make up the
defect by adding or altering something, but the court is not allowed to do more than that. It is
permissible only in cases where the statutes are inapplicable in their present form, which is
incomplete. For the change, either alteration or addition the court looks into the matters which
will probably help it in ascertaining the intention of the legislature. It is not necessary that judges
would always find some or the other means to help them in cases of defective texts. There will be
some cases where they might find nothing of this kind. They may ascertain the intention of the
legislature which presumably, would have had the defect come to notice.
ABSURDITY
Sometimes the court might ascertain a certain meaning to the statute which was never the
intention of the legislature. This is also one of the problems of literal rule.
RESTRICTIONS ON COURTS
The traditional rule of literal interpretation forbids the court to attach any meaning other than the
ordinary one. It closes the doors for any type of judicial innovation.
NOT SUITABLE FOR CHANGING TIMES
With a change in policies and legislation, the statutes cannot still be interpreted in accordance
with the ordinary meaning of the words made long ago. Since the rule is to stick to the exact words
of the statute few lawmen say that it is like imposing a rule even when you know that it is not
right. If the court applies literal rule and feels that the interpretation is morally wrong then they
38
cannot avoid giving the interpretation. Some criticize this rule by saying that the rule emphasis on
the erroneous assumption that words have a fixed meaning. In fact, words are imprecise, leading
justices to impose their own prejudices to determine the meaning of a statute. According to the
Blacks law dictionary, This type of construction treats statutory and contractual words with
highly restrictive readings.
ADVANTAGE OF THE LITERAL RULE
Following exact words can also lead to unfair unjust decisions. However there still remain some
advantages in relation to the literal rule. The first is that the rule follows the words parliament has
used. Parliament is out law making body and its therefore right that judges should apply the law
exactly as it is written. An additional advantage is that it prevents unelected judges from making
law. Finally the literal rule is arguably advantageous considering it makes the law more certain, as
the law will be interpreted exactly as its written thus making it easier for people to know what the
law is and how judges apply it.
Since the literal rule states that the words used in statute must be given their plain, ordinary
or literal meaning. The literal rule encourages precision in drafting and likely to produce
result closest to the meaning intended by Parliament. It Therefore avoids the danger of
statutes being effectively re-written by judges.
GOLDEN RULE
The golden rule is that there are no golden rules45. The plain meaning of the words must
be adhered to unless to do so would lead to absurdity, some repugnancy inconsistent with
the rest of the instrument in which case the grammatical and ordinary sense of the words
may be modified so as to avoid absurdity or inconsistency but not further.
The Golden Rule is exactly the same as the Literal Rule Except that it reflects all
considerations of social policy behind the Act and therefore it has no application to status
framed in wide and general terms.
45
G.B. Shaw, Mad and Superman in G. Williams, Learning the Law 11th Edn 1982 p. 97.
39
The Golden rule expressly specifies an occasion when the court has to depart from the
plain meaning, namely, where to adhere to the plain meaning would lead to absurd results.
It allows judges to use their social and political views when interpreting statutes.
Glanville William [1982 p 106 - 108] suggests that the Literal and the Golden rules are
not really two rules of law in opposition of each other. They are not fixed rules binding
on the court but they are modes of approach. All will depend on the temperament of the
judge as to which of the rule need be adopted in any given case.
The Golden rule also calls on judges to consider the principles of justice when interpreting
statutes. The use of the Golden rule elevates the judges from the statutes. The use of the
Golden rule elevates the judges from the status of being mere appliers of the law to
conscious individuals who can exercise their discretion and a sense of judgement. Applying
the golden rule shows that judges are always subject to the legislature will.
An example of Broad approach of golden rule can be seen in the case of Adler v George
(1964) the defendant was charged under the Official Secrets Act 1920 with obstructing a
member of armed forces in the vicinity of a prohibited place. The defendant argued that he was
actually in the prohibited place, not in the vicinity of it, that is, near to it. Had the court applied this
literal interpretation of the phrase the defendant would not have been guilty. The court therefore
interpreted the phrase in the vicinity of to include in a prohibited place to avoid absurd result.
APPLICATION OF GOLDEN RULE
Secondly courts have the option to apply the Golden rule (a modification of the literal rule). Under
the golden statute the courts start by looking at the literal meaning but are then most importantly
allowed to avoid an interpretation of which would lead to an absurd result. Its based on two rules,
which dictate how it should be used, the first is very narrow. Under this application of the golden
rule, the court must only choose between the only possible meanings of a word or phrase. If there
is only one meaning than that must be taken.
The second and wider application of the Golden rule is where the words have only one clear
meaning, but that meaning would lead to a repugnant situation (producing a result, which would
not be allowed). In such a Case the court will use the golden rule to modify the words of the statute
in order to avoid this problem.
40
ADVANTAGES OF GOLDEN RULE

Theyre plentiful advantages to the Golden approach the first was where the wider application of
the rule was used in the case of R V Re Sigsworth (1935). This case involved a son murdering his
mother 9who was without a will) to grant him the right to inherit her state as he was according to
the Admission Act 1925 her next of Kin meaning he would inherit it as her issue. There was no
ambiguity in the words of the act, however the court was not prepared to let a murderer benefit
from the crime he committed so courts were therefore enabled applying the golden rule prevented
the repugnant situation of her son inheriting her property this additionally respected the words of
parliament but simultaneously provided an escape route in this limited situation whereas the literal
rule wouldnt of had the ability to do.
The second advantage is that it allows the judge to choose the most sensible meaning where there
is more than one meaning to the words of an act. On the contrary therere also primary
disadvantages to the Golden Rule, first of all it has incredibly limited uses, being applied rarely in
cases. Also finally a significant problem is that its not always possible to predict when courts will
use the Golden rule-its a feeble parachute it is an escape route but cannot do very much.
DISADVANTAGES OF GOLDEN RULE
The controversial aspect of the rule is the unresolved questionwhether it could only apply
where words were ambiguous or whether it could only apply where meaning were clear
but absurd. There are other problems with absurd such as does it mean inconsistent with
other provisions in the same act or absurd for other reason.
MISCHIEF RULE
The mischief rule is one of three rules of statutory interpretation traditionally applied by English
courts. The other two are the plain meaning rule (also known as the literal rule) and the
golden rule.
The main aim of the rule is to determine the "mischief and defect" that the statute in question has
set out to remedy, and what ruling would effectively implement this remedy. In applying the
Mischief Rule the court is essentially asking what part of the law did the law not cover, but was
meant to be rectified by the parliament in passing the bill. The rule was first laid out in a 16th-
century ruling of the Exchequer Court.
41
Meaning and use
Is a rule of construction that judges can apply in statutory interpretation in order to discover
Parliament's intention. In applying the rule, the court is essentially asking the question: what was
the "mischief" that the previous law did not cover, which Parliament was seeking to remedy when
it passed the law now being reviewed by the court?
The Mischief Rule is of narrower application than the golden rule or the plain meaning rule, in that
it can only be used to interpret a statute and, strictly speaking, only when the statute was passed to
remedy a defect in the common law.
The legislative intent is determined by examining secondary sources, such as committee reports,
treatises, law review articles and corresponding statutes.
The application of this rule gives the judge more discretion than the literal and the golden rule as
it allows him to effectively decide on Parliament's intent. It can be argued that this undermines
Parliament's supremacy and is undemocratic as it takes law-making decisions away from the
legislature.
The way in which the mischief rule can produce more sensible outcomes than those that would
result if the literal rule were applied is illustrated by the ruling in Smith v Hughes [1960] 2 All
E.R. 859. Under the Street Offences Act [1959], it was a crime for prostitutes to "loiter or solicit
in the street for the purposes of prostitution". The defendants were calling to men in the street from
balconies and tapping on windows. They claimed they were not guilty as they were not in the
"street." The judge applied the mischief rule to come to the conclusion that they were guilty as the
intention of the Act was to cover the mischief of harassment from prostitutes.
Historical Background
The Mischief or Heydons case Rule was developed in 1584 by the Barons of the Exchequer
(Heydons Case 3 Co. Rep. 7a; 76 ER 637 Exchequer See also Twining, W; & Miers, D: How To
Do Things With Rules, 3rd Edn 1992 pp 166 169; 211-212 and Cross, R: Statutory Interpretation,
2nd Edn 1987 pp 10 19]
The Barons of the Exchequer resolved that the sure and true interpretation of all statutes in general
(penal) or beneficial, restrictive or enlarging of the Common Law, four things have to be put into
Consideration:
42
1. What the Common Law before making the Act was.

2. What the Mischief and defect for which the Common Law did not provide.
3. What was the remedy the Parliament hath resolved and appointed to cure the
disease of the Commonwealth.
4. The true reasons of the remedy and then the office of all judges is always to
make such construction as shall suppress the mischief, and advance the remedy,
and to suppress subtle intentions and evasions for continuance of the Mischief
and pre-privato Commodo, and to add force and life to the cure and remedy,
according to the time intent of the makers of the Act probono publico.
The Mischief rule goes together with the maxim "cessante ratione, cessat imsalex" meaning
`Reason is the source of the law, and when the reason of any particular law ceases, so
does the law itself. Twining and Miers further suggest that these are rules of interpretation,
which assume that the role of the interpreter is to further the intention of the legislator.
Where there is an element of discretion or choice in interpretation the role of the judge
may be seen as that of the junior partner in the enterprise of law-making. The mischief
rule provides a method which judges use in order to determine the purpose for which a
law has been enacted. To understand how it works in practice let us look at the following
cases examples drawn from the activity of the Courts in East Africa and Tanzania:
ADVANTAGES OF MISCHIEF RULE
There multiple advantages the mischief rule has to offer. The first Ill address is the fact that the
rule promotes the purpose of the law as it allows judges to look back at the gap in the law, which
the act was designed to cover. The emphasis is on making sure that the gap on the law is filled.
This is more likely to produce a just result.
A case that demonstrates is the Smith v Hughes46 case in which the street offences act 1959 stated
it shall be an offence for a common prostitute to loiter or solicit in a street or public place for the
purpose of prostitution The lady brought to trial questioned specifically the word street declaring
she was soliciting men on a balcony and therefore testified as not guilty however under the literal
rule the Judges were able to interpret a balcony as being part of a street thus making the women
46
[1960] 2 All ER 859
43
guilty. This shows how gaps defendants attempt to get through can be filled by the mischief
interpretation.
Generally mischief rule has the following advantages:-
1. In a common law jurisdiction, the existence of precedent and the knock-on effects of
construing a statute prevent misuse of the rule;
2. It seen as a far more satisfactory way of interpreting acts as opposed to the Golden or
Literal rules;
3. It usually avoids unjust or absurd results in sentencing;
4. It is consistent with parliament sovereignty.
DISADVANTAGES OF MISCHIEF RULE
1. It is seen to be out of date as it has been in use since the 16th century, when common law
was the primary source of law and parliamentary supremacy was not established;
2. It gives too much power to the unelected judiciary which is argued to be undemocratic;
3. In the 16th century, the judiciary would often draft acts on behalf of the king and were
therefore well qualified in what mischief the act was meant to remedy. This is not often
the case in modern legal systems;
4. The rule can make the law uncertain.
However therere also some disadvantages the first is that there is a risk of
judicial law making, Judges are trying to fill the gaps in the law with their own
views on how the law should remedy the gap the case of the royal college of
nursing demonstrated that judges do not always agree on the mischief rule.
Another disadvantage is that this may lead to uncertainty in the law.
Generally, When comparing the three rules there are differences and similarities. The Literal Rule
is the basis of all cases. By providing no scope for the judges input, it upholds the separation of
powers and respects parliamentary supremacy. However, its inflexibility can also create injustices.
The Golden Rule tries to compliment the Literal Rule by allowing judges to change the meaning
of statutes in order to give justice. However, this infringes the separation of powers.
44
The Mischief Rule gives the most discretion to judges and is suited to specific, often ambiguous
cases. The rule allows statutes to be refined and developed. However, the increased role of the
judge means that his views and prejudices can influence the final decision.
DO JUDGES MAKES LAW???
Law refers to aggregate of legislation, judicial precedents, and accepted legal principles.
It is a body of authoritative grounds of judicial and administrative action which includes
sets of rules or principles dealing with a specific area of legal system. Laws are either,
principal or subsidiary legislatives, the former being the enactments of parliament and
the latter being the laws made by authority of the legislature . Judges are public official
appointed or elected to hear and decide legal matters in courts of laws . For the case of
Tanzania there are High court judges who are appointed by the President of the United
Republic in consultation with the Judicial Services Commission while those of the Court
of Appeal of Tanzania are appointed by the president of the United Republic in
consultation with the Chief justice .
The major role of judges is to interpret the law and administration of justice in the state.
Despite the fore mentioned role of judges, practically judges are an important force in
making and the development of laws which can be evidenced in their formulation of
precedents, overruling and adhering to statutes, interpretation of statutes, application of
law according to circumstances, invention of the bill of rights, and filling the gaps in the
legislature.
The first instance depicting judges role in making and developing the law can be drawn
from the development of the law of negligence from the early 18th Century to the 1950s
is an outstanding example on how judges make and develop the law. In the case of
Winter bottom v. Wright , for examples, judges based on the fact that there was no
misrepresentation and dismissed the claims to the plaintiff. In Langridge v. Levy judges
affirmed that a person not a party in a contract couldnt sue, In Longmeid v.
Holliday judges based on a defect so latent to be in the knowledge of the defendant,
while in George & Wife v. Skivington judges based on the defendant know how in the
compounds and that the defendant professed it was safe and fit thus was in for it. Judges
45
went on and in the Heaven v. Pender judges based on the defendants owe of duty of
care to the plaintiff.
In another instance in Dery & others v. Peek House of the Lords judges developed the
law of negligence further that there must be proof of actual fraud for the defendant to be
liable while in the case of Le Lievre & Dennes v. Gould judges paid emphasis on
physical proximity to determine the liability even if not party to a contract. Later in
Nocton v. Lord Ashburton House of Lords developed that even if in the absence of
actual fraud but the defendant had breached a duty arising out of the fiduciary
relationship while in Donoghue V Stevenson the house of the Lords neglected the
physical proximity propounded in Le Lievres case and developed the law holding the
defendant liable on the ground that the goods was manufactured and packed in a manner
that wasnt possible for the consumer to examine. Finally in Grant v. Australia
Knitting Miles the judges led the law that even if it was impossible to be examined by
the consumer still the manufacturer wasnt liable because there was a possibility of the
article not to reach the final consumer in the state it left the manufacturer.
Through interpretation of statutes judges develop the law. The case of Tanganyika
Garage Ltd.v. March C. Mafuruki is an example on the way judges were determined
to consider the construction of the phrase; assemble engine and dealt much as to whether
such phrase includes the phrase; overhauling engine, and finally came to a conclusion
which lead to the solution matters in dispute. A similar example can also be drawn from
the case of R. v. Omari s/o Kindamba and Others where the judges dealt with the
interpretation of the meaning of the term animal under the Fauna Conservation
Ordinance arguing as to whether such term was meant to include trophies. Despite the
gap found in the meaning of the two terms still judges managed to find the solution by
basing on what was the intention of the legislature on such a particular legislation.
Judges also make and develop the law in case of legislative insufficiency a situation
where the statute doesnt mention a particular matter directly. The case of Bi.Hawa
Mohamed v.Ali Seif is an example in which the judges had to travel outside the statute
46
in interpreting it and by so doing the judges managed to develop the law [Section114 of
the Tanzania Law of Marriage Act of 1971] ascertained the object so as to enable the
appellant acquire property out of the marital property which was gained by the couple
before divorce. Judges went as far as looking to the history of such legislature so as to
understand its meaning. Nyalali C.J, stated inta alia that despite the fact that the law
S.114 doesnt provide that a wifes marital duties should parse make her a partner in the
husbands economic enterprise or gain but it was important to construe that wifes status
and marital duties too contribute to the enterprise of the family
Also where there is complexity and statutory defect in the matter, judges develop the
law by trying to base on the intention of the legislature. The case of St. Mellons RDc v.
Newport Corporation is an example where as Lord Denning affirmed that what judges
do is to try find out the intention of the parliament and carry out, and we do this better
by filling in the gaps and making sense of the enactment then by opening it up . In
Seaford Court Estates Ltd. v. Asher Lord Denning went on holding the view that when
a defect arise a judge cannot fold his hand and blame the draftsmen. In the case judges
looked at the intention of the parliament on formulating the statute, the social condition
which gave rise to the legislation and the mischief it was aimed to cure. According to
Lord Denning, a good judge supplements the written word so as to give force and life to
the intention of the legislature and by so doing develops the law.
Judges have also been able to develop the law by setting aside what was written in the
statute so as to not affect individual rights of the people. The case of Singida RTC v.
Tanzania Posts and Telecommunications is an example in which the law
provisions totally exempted the defendant from liability rising from his negligence. The
judges in this case construed and hence developed the law in the factor that despite the
legislature the parliament didnt intend to take away the rights of individuals like the
plaintiff in the case. It is important in this case that judges do chose to use a certain way
47
of interpreting statutes so as to arrive at an appropriate conclusion and by so doing they

either make or develop the law through those methods of construction of statutes.
Another example that reveals that judges are important forces in making and developing
the law is the case of Juwata & 94 Others v. Kiuta & Another in which judges
developed the law by affirming that the Tribunal was bound by the per incurrium
decision in Zambia Tanzania road Services Ltd.v. J.K.Pallangyo . It is at this stage
that courts develop the law by relying on precedents which are court judge made laws.
By formulation of decisions which come to bind other decisions in the further future
decisions.
Formulation of case law (precedents) reveals too the judges role as law makers and
developers. Judges do make certain judgements which then become binding in the future
decisions. For example the judges role in the case of Joseph Sinde Warioba v.Stephen
Masatu Wassira and Another Lugakingira J, (as he then was) gave a decision which
was then came to be binding in other decisions, which we find that such a decision by
Lugakingira J, was for example used by Masanche J,(as he then was) in the case of
Prince Bagenda v.Wilson Masilingi and Another, rOn the same grounds as to the
ones in the Wariobas case Masanche J admitted the petition and declared the
Parliamentary elections held in Muleba south in November 1995 null and void. By so
doing judges had made the law (the decision in the Wariobas case) and developed the
law when came to use the precedent in the latter case of Prince Bagenda as pointed
above.
Judges invent the Bill of Rights where the parliament and the people are silent to do so.
Judges are keen to take statutes for further elaboration to continued review in analogous
and differences not only in the lawful concepts and percentage and facts but in the beam
of the implication arising from such analogues and differences responding to what is
considered acceptably coming in terms of justice ethics and expediency in the society.
In the case of Rev. Mtikila v. Attorney-General for example, it is patently clear that
Mtikilas case for example, in verifying various constitutional issues which enlighten
fundamental human rights. Justice Michael Kirby insists that Parliament has shown
48
itself spinelesspeople are now turning to the courts to extract from the Constitution
the fundamental rights which Parliament has been ineffective to protect.
However, some findings show that the effects of judge made law to the assertions of
many legislators and even some jurists, the actions of higher court judges do not and
cannot "make" law or even "change" law. Their opinions on how laws relate to other and
higher laws, how they are interpreted and reinforced, etc., control only those responsible
for enforcing the laws.
It is further argued that the information provided by the judges can only be used by the
legislators to create or change laws, to make them better, clearer, and more compliant
with the existing body of law, including the Constitution. Legislators control even the
highest laws of all - Constitutions themselves, which can only be amended based on
legislative action.
They further argue that judges empowered with law making hand endangers the
separation of powers and that the supremacy of the parliament becomes infringed if
judges are law makers. "Lawmaking" is the exclusive province of the legislative
branch. Interpreting the law is the task of the judiciary. When judges exceed their
authority and usurp the role of the legislature, "judicial activism" occurs. Their law
making capacity is restricted to a narrow role within interpretation.
It is with this view important to be born in mind that by the role of judges in
developing and making the law it is not meant to interfere with the supreme duty of
the legislature. The clear separation of powers must t be adhered to and the law making
right remain the sole duty of the parliament.
In conclusion, it is important to note that it is not a duty of a judge to just look at

previous decisions or environment but also judges do make and develop law on new
insights and perspectives on old and new problems thrown by these changes. Without
judges contributory role in making and developing the law things would have been
so complex and citizens would be deprived of their fundamental human rights.
49
TOPIC FOUR
AIDS OF STATUTORY INTERPRETATION
By interpretation or construction is meant, says Salmond, the process by which the courts
seek to ascertain the meaning of the legislature through the medium of authoritative forms
in which it is expressed( See., Salmond, Salmond on Jurisprudence, p.152 (Sweet and
Maxwell,11th edition).
A statute is an edict of the Legislature and the conventional way of interpreting and
construing a statute is to seek the intention of its maker. A statute is to be construed
according to the intent of them that make it and the duty of judicature is to act upon
the true intention of the legislature- the mens or sentential legis.
There are two types of aids to interpretation-The internal (Intrinsic) and the external
aids (Extrinsic).
INTERNAL AIDS TO CONSTRUCTION
The term intrinsic means internal or within. Intrinsic aids, therefore, are those aids within
the statute. Intrinsic aids are resorted to only if there is ambiguity. In resorting to intrinsic
aids, one must go back to the parts of the statute: the title, the preamble, context or body,
chapter and section headings, punctuation, and interpretation.
Basically internal aid constitute the followings:-
Enacting parts of a statute: Interpretation section, saving provision.
Long title, Preamble (if any), short title,
Cross-headings, side or marginal notes and punctuations.
What are the functions of these parts in Statutory Interpretation?
There has been a long debate as to their function in statutory interpretation. Some literature suggest
that these parts of a statute have less value than the rules, canons and presumptions.
The main controversy had always been, whether or not they can be treated as canons or aids to
statutory construction at all. The reply is that, each of the parts of the document or statute has been
given some weight in that whenever the question of interpretation of a word or phrase or passage
has arisen the judge has had to give them consideration in determining the intention of parliament.
It is cautioned that, provisos, interpretation sections and savings clauses are subject to amendments
by parliament, the other parts are determined by parliamentary clerks assisted or directed by the
Parliamentary Draftsman.
50
Preambles
The preamble of a statute like the long title is a part of the Act and is an admissible aid
to construction. Although not an enacting part, the preamble is expected to express the
scope, object and purpose of the Act more comprehensively than the long title.
In Tanzania, The Preamble to the Interim Constitution was referred to in the case of Adamji V
East African Posts and Tele Communications47, in which Biron J (as he then was) expressed
the view that the Preamble was not part of the Constitution of Tanzania. He cited the Case of
Powell V Kempton Park Reconstruction Co. [1889].
In Tanzania, since Independence, the Preambles have been replaced by the Memorandum of
Objects and Reasons attached to Bills. Preambles are not a common feature of the final enactments.
Read: Newbold, V.P. in the New Great Insurance Company of India Ltd v Cross and Another
[1966] EA 90
Long and Short Titles
The Long Title of an Act is found at the beginning and usually contains general indications
of a legislative purposes. it is now settled that Long Title of an Act is a part of the Act
and is admissible as an aid to its construction. The title although part of the Act is in
itself not an enacting provision and though useful in case of ambiguity of the enacting
provision, is ineffective to control their clear meaning.
A short title is usually stated in a separate sub-section at the beginning of the numbering of
sections in Tanzania. It is contained in the body of the Act, it is subject to amendment by
Parliament, its purpose is to serve as a brief identifying label, it is not as helpful as the preamble
or long title. According to Lord Justice Scrutton in Re Boaler, [1951] IKB 21 at 40-41:
I agree that the court should give less importance to the title than the enacting part, and less to the
short title than to the full title, for the short title being a label, accuracy may be sacrificed to brevity;
but I do not understand on what principle of construction I am not to look at the Words of the Act
itself and help me to understand its scope in order to interprete the words Parliament has used, by
the circumstances in respect of which they were legislating. It is by no means conclusive. [See
also Regina v Secretary of State [2003] UK HL 13 (HL)
47
[1973] LRT n. 6
51
In order to understand what Parliament meant, we must look at the words which Parliament used
rather than depending on the short title.
There is no example in East Africa in which a short title has been consulted in interpreting a statute
I know of. But in England there is the case of Ward v Holman, [1964] 2ALL ER 729.
Headings to Groups of Sections within a Statute:
Such headings are not voted upon by Parliament, but they are included in the Bill and form
part of the text which comes before Parliament for consideration. In East Africa headings
of statutes to groups of sections have been considered when interpreting words, phrases
and passages of statutes. They have to be used when words in the texts are ambiguous.
Cases on this position in Britain: Survey Assessment Cee [1948] IKB 28 and Bulmer v
IRC [1966] 3 WLR 672.
Marginal Notes:
The view that they are not aids to construction. In Chandler v Director of Public
Prosecutions48 might be a conclusive authority for the proposition that side-notes
[frequently spoken of as marginal notes] cannot be used as aids to construction in any
circumstances. They are mere catch words and I have never heard of it being supported in
recent times that an amendment to alter a side-note could be proposed in either House of
Parliament. Side-notes in the original Bills are inserted by the Draftsmen. Side-notes
cannot be said to be enacted in the same sense as the long title or any part of the body of
the Act.
In East Africa the usefulness of side-notes or marginal notes has been treated in an article by Martin
Huber, Use of Marginal Notes in East Africa (1969) 2 Eastern African Law Review 107. But this
question has also been judiciary considered in: Zephania v R49 , Where Accused was convicted
of cattle theft (P.C. ss. 268, 265 ) upon evidence that he stole a goat carcass which his
dogs had previously killed. Held: (1) Marginal notes to a statute cannot control the content
of the sections to which they refer. However, they may be borne in mind in construing
the sections.
Strictly speaking, it seems courts will normally disregard marginal notes while construing
provisions but examples above show a tendency to resort to marginal notes.
48
[1964] AC 736
49
[1967] HCD n. 218,
52
Punctuation
As it might have been noted in the foregoing dissension, judges have not only said that side-notes
(marginal notes) should not be considered, but the same view has been extended to punctuations.
Notwithstanding those cases where these two have been considered, the strong view is that since
they are not part of the enactment they should not be considered.
This view is not shared by all judges and in East Africa there is a good example that punctuations
are used in construing provisions of statutes.
According to Cross 1987: 130-131:
Lord Reid suggests that, punctuations forms part of the statute and even if the reader has to be
wary of Older Acts, in which punctuation was inserted after the enactment by the printer, the
punctuation of modern statutes must be given the significance it has in the ordinary use of English
language.
Lord Lowry in Hunlon v Law Society50, I consider that not to take account of punctuation
disregards the reality that literate people, such as Parliament or any draftsman, punctuate what they
write, if not identically, at least in accordance with grammatical principles. Why should not other
literate people such as judges, look at the punctuation in order to interprete the meaning of the
legislation as accepted by Parliament?
Schedules to Acts:
It has been argued that schedules to Acts and other documents form part and parcel of the said Act
or document if incorporated by reference in the same Act or document. For example, The Security
of Employment Act, section 19 creates disciplinary offences at work and penalties can be found
in the second schedule to the Act (tabulating offences and penalties). Other important schedules
to Acts include those in the Economic and Organized Crimes Act, 1984 (Act 13 of 1984), The
Criminal Procedure Act, 1985 etc.
The importance of schedules to Acts was considered by Biron J (as he then was) in the Case of
Adamji v East Africa Posts and Telecommunications51, in which it was implicitly decided, that
the TANU Constitution, which was inserted into the Interim Constitution of Tanzania, 1965 as a
schedule (Third Schedule, which was not in the Constitution of the United Republic of Tanzania,
1977) as not being part of the Constitution and therefore not part of the law in Tanzania.
50
[1981] AC 124:
51
[1973] LRT n 6 at pp 16- 17
53
Nevertheless, the TANU Constitution was in Thabit Ngaka v Regional Fisheries Office52, was
used to reconcile the provisions of the Government Suits Ordinance and the Employment
Ordinance.
EXTRINSIC AIDS IN CONSTRUCTION AND INTERPRETATION EXTRINSIC
AIDS
These are existing aids from outside sources, meaning outside of the four corners of the
statute. If there is any doubt as to the meaning of the statute, the interpreter must first find
that out within the statute. Extrinsic aids therefore are resorted to after exhausting all the
available intrinsic aids and still there remain some ambiguity in the statute.
Extrinsic aids resorted to by the courts are history of the enactment of the statute; opinions
and rulings of officials of the government called upon to execute or implement administrative
laws; contemporaneous construction by executive officers; actual proceedings of the
legislative body; individual statements by members of congress; and the author of the law.
Other sources of extrinsic aids can be the reports and recommendations of legislative
committees; public policy; judicial construction; and construction by the bar.
General Historical Background
Reading through cases you will learn that courts have usually allowed counsels to state
what they understood to be the general historical background of a given piece of legislation
where relevant. In most cases counsels cite form legal textbooks by lawyers or non-lawyers
which deal with surrounding circumstances of a given piece of legislation.
Government Publications
Among government publications are the Reports of a committee-a Royal Committee,
departmental Committee, Law Commissions which may proceed or lead to the enactment of a
statue in question. As to any other documents the Courts are precluded form looking "at any such
document either for the purposes of understanding the Mischief or of construing the words in
question". Courts are not permitted to use explanatory memorandum which is attached to a Bill
before Parliament. It was so stated in Escoinage Properties Ltd. v. IRC [1958] Ac 549. A White
Paper which contained recommendations of a Constitutional Conference was held in Katikiro of
Buganda v. Attorney general [1961]1WLR*inadmissible as an aid to the Construction of the
Buganda Agreement of 1955.
52
[1973] LRT n 24
54
On Official Reports and their use in the Interpretation or Construction of Statutes, the position is
that the court should consider the Report of a Royal Commission which led to the enactment of a
legislation in question. This was stated by Lord Halsbury in the House of Lords in Eastman
Photographic Materials Co. Ltd. v. Camptroller General of Patents, [1898] Ac 571 at 575. In
Tanzania commission reports and White Paper have been considered in trying to understand
the import of the provisions of the Law of Marriage Act, 1971 in the case of Bi Hawa
Mohamed v. Ali Sefu.
Parliamentary Debates
The rule as to the admissibility of Parliamentary debates is clear. According to Michael
Zender, it was not until recently that courts generally accepted that for the purpose of
interpreting statutory provisions it was not permitted to look at Parliamentary debates. This
rule was developed in Britain since 1818 and has been abolished in 1980 through a
challenge of the Master of the Rolls, Lord Denning in Davis v. Johnson [1979] AC 264
(C.A.).
Lord Scarman (at pp 349-50) stated: There are two good reasons why the courts should
refuse to regard to what is said in Parliament or by Ministers as aids to the interpretation of
a statute. First, such material is an unreliable guide to the meaning of what is enacted. It
promotes confusion, not clarity. The cut and thrust of debate and the pressures responsibility
of executive essential features of open and responsible government, are not always conducive
to a clear and unbiased explanation of the meaning of statutory language. Secondly, by
utterances its counsels very are and can size not permitted to refer to Hansard in argument. So
long as this rule is maintained by Parliament (it is not the creation of the judges), it must
be wrong for the judge to make any judicial use of proceedings in Parliament for the
purpose of interpreting statutes.
International Convention and Treaties
There is a general tendency for the Courts to make use of International Conventions and
treaties in interpreting domestic law. This is so because conventions and treaties have a great
influence on domestic or municipal law of a country which becomes a party to such
conventions or treaties. Often than not a treaty may be consulted to clarify the meaning
of a statute.
55
In Tanzania the approach of using international documents in the process of interpreting

national or domestic law is very recent. It was inaugurated by the enactment into the
Constitution of a Bill of Rights in 1984 (Act 15 of 1984). Since then courts have attempted
to interpret Tanzania's laws in the light of International documents.
In Bernardo Ephrahim v. Holaria Pastory and Gervazi Kaizilege , (PC) Civil Appeal
No. 70 of 1989 (HC. unreported), Justice Mwalusanya dealing with rule 20 of the Local
customary Law (Declaration) Order 1963 (GN 436 of 1963) which bars females from
inheriting and disposing of clan land, made the following of observations: But the customary
law in question has not been changed up to this day. The women are still suffering at the
hands of selfish clan members. What is more is that since the Bill of Rights was incorporated
in our 1977 Constitution, vide Act No. 15 1984 by Art. 13(4) discrimination against women
has been prohibited. But some people say that, that is a dead letter. And the Universal
Declaration of Human Rights (1948) which is part of our constitution by virtue of Art.
9(9)(f) prohibits discrimination based on sex as per Art. 7. Moreover, Tanzania has ratified
the Convention on the elimination of all Forms of Discrimination Against Women. That is
not all. Tanzania has also ratified the African Charter on Human and Peoples Rights which
Art. 18(3) prohibits discrimination on account of sex. And finally ratified the Tanzania has
International Covenant on Civil and Political Rights which in Art. 26 prohibits discrimination
based on sex. The principles enumerated in the above named documents are a standard below
which any civilized nation will be ashamed to fall. It is clear from what I have discussed
that the customary law under discussion flies in the face of our Bill of Rights as well as
the international conventions.
Reference to Other Statutes
Statutes must be read as a whole in order to understand the words in their context. Problem
arises when a statute is not complete in itself i.e. the words used in the statute are not
explained clearly. Extension of this rule of context permits reference to other statutes in
pari materia i.e. statutes dealing with the same subject matter or forming part of the same
system.
56
TOPIC FIVE
LOGICAL AIDS TO INTERPRETATION (CANONS OF STATUTORY

INTERPRETATION)
Introduction
Canons give common sense guidance to courts in interpreting the meaning of statutes. Most
canons emerge from the common law process through the choices of judges. Proponents of the use
of canons argue that the canons constrain judges and limit the ability of the courts to legislate from
the bench. Critics argue that a judge always has a choice between competing canons that lead to
different results, so judicial discretion is only hidden through the use of canons, not reduced.
Textual Canons
Textual canons are rules of thumb for understanding the words of the text. Some of the canons are
still known by their traditional Latin names.
By following the Plain Meaning Rule there are three grammatical rules of Construction of
Statutes:
a) Noscitur a Sociis, a thing is known by its associates

b) Ejusdem (Eusdem) generis rule of the same genus or kind); and
c) Expressio unius est exclussio altenius
(the mention of one thing is the exclusion of the other)
The above are neither legal principles nor legal rules. They are guides to the intention of the
speaker or writer. They refer to the way people speak or write in certain contexts.
Noscitur a Sociis
Noscitn a Sociis Reference to neighbouring words and phrases. The rule states that: The
meaning of a doubtful word may be ascertained by reference to meaning of words
associated with it.
A word is known by the company it keeps and a statute should be construed as a whole.
For the purposes of construction, the purpose or the context of the word to be construed
does include not only the particular section or paragraph in which the words or phrases
appear but the whole statute in which it appears. The rule is intended to avoid
inconsistencies and repugnancy. This is so because the words of a statute are presumed to
be used consistently throughout a statute that is they bear the same meaning.
57
Legislature cannot contradict itself. In the case of Marwa v R, [1967] HCD no 357 the
judge avoided giving a contradictory interpretation to the Minimum Sentences Act with
another Act.
Noscitn a Sociis means that a thing is known by its associates. It is easy to confuse it with
eusdem generis rule. While eusdem generis is an example of a broader linguistic rule or
practice to which reference is made by Noscitur a Sociis (a Latin tag), words even if they
are not general like any other preceded by specific words, are liable to be affected by
other words with which they are associated.
Eusdem or Ejusdem Generis rule ("of the same kinds, class, or nature") (The Lord
Tenterdens Rule)
where in a statute there are general words following particular or specific words, the
general words are assumed to be confined into things of the same kind as those specified.
The ejusden generis rule otherwise known as Lord Tenterdens rule owes its essence to its
propounder Lord Tenterden in Kitchen v Shaw 7 L.J. M.C. 16 where hesitated as follows:
Where a statute, or other document enumerates several classes of persons or thing, and
immediately following the clause embraces Other persons or things, the word Other such
like so that the persons or things therein comprised may be read as ejusdem geris with,
and not for a quality superior to, or different from, those specifically enumerated.
For example a statute may talk about tent, hurt, house, mansion, villa, bungalow, building
and any other structure whatsoever. The phrase any other structure whatsoever will be
confined to the words specified in the section.
In other words When list of two or more specific descriptors is followed by more general
descriptors, the otherwise wide meaning of the general descriptors must be restricted to the
same class, if any, of the specific words that precede them. For example, where "cars, motor
bikes, motor powered vehicles" are mentioned, the word "vehicles" would be interpreted
in a limited sense (therefore vehicles cannot be interpreted as including airplanes).
However, great care should be exercised in the use of this rule. It must not defeat the
intention of the legislature, that is, it must be applied subject to the primary or general
(Cardinal) principle of statutory interpretation that is, statutes should be construed in
accordance with the intention of the legislature.
Conditions for the application of the rule
58
(a) The specific words must constitute a category, class or genus.

(b) The words, which are to be assumed must be really the same category, class or genus
for example any other structure should constitute a category, class or genius of those
particularly mentioned.
As such a superior thing will not be held to be of the same category, class or genus as those of
an inferior thing. For example Dar es Salaam, Nairobi, Maputo, Kampala and any other town-
means any other town of the same status as those specifically mentioned.
(c) Where the general words precede the particular words, the rule will be disciplined. The
rule limits the generality to the particular especially in penal statutes- allowing the
general to stretch too far may mean that anybody can be charged with almost any Crime
(arbitrariness).
In Hassan s/0 Mohamed v R53 the ejusdem generis rule was applied to restrict a statute
giving power to the governor to encroach on private property rights.
The accused in this case gave a firearm to another person to deliver it for repairs. He
pleaded guilty to a charge of unlawfully transferring a firearm contrary to sections 15 and
31 of the Arms and Ammunition Ordinance, Cap. 223. Before sentence was passed, the
accused stated in mitigation that: The firearm was defective. It was being sent for repair.
Section 15 of the Ordinance makes it an offence to: sell or transfer or buy or accept any
arms and ammunitions either by way of gift or for any consideration except in accordance
with a permit signed by an authorized officer.
It was held that:

(i) For the transfer of a firearm to constitute an offence contrary to section 15, such transfer
must be ejusdem generis that is, of similar type, kind or nature with a sale, purchase or
gift.
(ii) The accused answer to the charge, to the effect that he had handed over his firearm with
the object of having it sent for repair, cannot be regarded as an unequivocal plea of
guilty to a charge.
Conviction quashed.
53
[1968] HCD no 457
59
In the case of Charles s/0 Mumba v R54, the accused was convicted of possessing property
suspected to have been stolen contrary to section 312 of the Penal Code, Cap 16 (T). The
goods in question were found in an unfinished building, but it was not known how they
had come to that place. The circumstances of the accuseds arrest were not detailed by the
High Court but he was not detained at first by a police officer.
It was held that the very technical nature of section 312, the accused must first be detained
by a police officer exercising his power under section 24 of the Criminal Procedure Code
at the time of such conveying the thing or things suspected of having been stolen.
Possession of such goods in a building would be punishable under this section only if it
occurred during the course of the journey citing the case of Regina v Msengi s/0
Abddallah, I TLR 107.
Obiter: The section should be reviewed to remove its strict technicalities for its use is too
limited to be of such use and provide ample room for ostensible offenders to escape from
the arms of the law, making the law entirely unintelligible to the unsophisticated (people)
public.
Expressio unius est exclussio alterius("the express mention of one thing excludes all
others")
The expression of one thing excludes the other. This is used hand in hand with the maxim
expressium facit cessare tacitum that is, expression of one fact ends with that fact.
Where a statute expressly refers to one thing, it excludes any other things, which refer to
the same issue:
For example the word Building when mentioned first in a statute and at a later stage the
word land is mentioned, it will normally refer to building, for the word Land includes
buildings as well. The genus building has already been excluded from the class of land
therefore.
In Dimbley & Sons Ltd v National Union of Journalists [1984] l ALL ER 75, section 17(3)
of the Employment Act 1980 was considered. The section conferred immunity from suit
for actions taken during a trade dispute against a party to the dispute.
54
[1969] HCD n. 221
60
Section 17(4) granted an immunity from suits for actions (not those including those in the
case) taken against an associated employer, defined as meaning an employing company
controlled by the employer in the dispute or by a third person also having control of that
employer.
A newspaper publisher sought an injunction to prevent the union from instructing its
members not to produce copy to be printed by TBF Printers Ltd. The union being in dispute
with TB Forman Ltd, having the same shareholders.
The House of Lords refused to hold that the action was covered by the immunity under
section 17(3), since TBF Printers was a separate legal person from the party to the
dispute.
Expressio unius est exclusio alterius
Items not on the list are impliedly assumed not to be covered by the statute or a contract
term. However, sometimes a list in a statute is illustrative, not exclusionary. This is usually
indicated by a word such as "includes" or "such as."
In pari materia ("upon the same matter or subject")
When a statute is ambiguous, its meaning may be determined in light of other statutes on
the same subject matter.
Reddendo singula singulis or "referring each to each"
"When a will says "I devise and bequeath all my real and personal property to A", the
principle of reddendo singula singulis would apply as if it read "I devise all my real
property, and bequeath all my personal property, to A", since the word devise is appropriate
only to real property and the term bequeath is appropriate only to personal property."
Substantive Canons
Substantive canons instruct the court to favor interpretations that promote certain values or policy
results, and it includes the followings:-
"Charming Betsy" Canon
National statute must be construed so as not to conflict with international law. It has also been
observed that an act of Congress ought never to be construed to violate the law of nations if any
other possible construction remains..."
61
Interpretation in Light of Fundamental Values
Statute does not violate fundamental societal values. However, legislation that is intended to be
consistent with fundamental rights can be overridden by clear and unambiguous language.
Rule of Lenity
In construing an ambiguous criminal statute, the court should resolve the ambiguity in favor of the
defendant.
Deference Canons
Deference canons instruct the court to defer to the interpretation of another institution, such as an
administrative agency. These canons reflect an understanding that the judiciary is not the only
branch of government entrusted with constitutional responsibility, and it includes the followings:-
Deference to Administrative Interpretations
If a statute administered by an agency is ambiguous with respect to the specific issue, the courts
will defer to the agency's reasonable interpretation of the statute.
Avoidance Canon (Canon of Constitutional Avoidance)
If a statute is susceptible to more than one reasonable construction, courts should choose an
interpretation that avoids raising constitutional problems.
Absurdity
The legislature did not intend an absurd or manifestly unjust result.

Criticism
Critics of the use of canons argue that canons impute some sort of "omniscience" to the legislature,
suggesting that it is aware of the canons when constructing the laws. In addition, it is argued that
the canons give a credence to judges who want to construct the law a certain way, imparting a false
sense of justification to their otherwise arbitrary process. In a classic article, Karl Llewellyn argued
that every canon had a "counter-canon" that would lead to the opposite interpretation of the statute.
62
TOPIC SIX
PRESUMPTION IN AID OF STATUTORY CONSTRUCTION AND
INTERPRETATION
PRESUMPTIONS
In construing a doubtful or ambiguous statute, the Courts will presume that it was the
intention of the legislature to enact a valid, sensible and just law, and one which should
change the prior law no further than may be necessary to effectuate the specific purpose of
the act in question.
For example know in Criminal law the presumption is that the accused person is innocent
until the prosecutor has proved its case against the accused. In corruption cases the accused
person has to proved its case against the accused (Article 13 (6) (b)). In corruption cases the
accused person has to prove how he came by what might be alleged to have been acquired
corruptly.
In the Law of Marriage under section 160 of the Law of Marriage Act 1971 when parties
have lived together for a period of two or more years under circumstances in which the
community conclude they are man and wife there is a rebuttable presumption by the law
that they are man and wife. Such a presumption will affect the type of results that a court
will arrive at in case there is a problem in the parties' relationship on matters of divorce,
custody and maintenance.
Cross maintains that presumptions are of two types. He shares the same view with Granville
Williams, Leaning the Law 1982 p 108. They are either negative or restrictive and they
form a background of legal principles which an Act or piece of legislation under consideration
should be interpreted and that such interpretation must conform with what Parliament intended.
For both Cross and Granvile Williams Courts will enforce the Will of Parliament when the
law is express and clear because no law is enacted in a vacuum.
PRESUMPTION AGAINST UNCONSTITUTIONALITY
Laws are presumed constitutional. To justify nullification of law, there must be a clear and
unequivocal breach of the constitution. The theory is that, as the joint act of the legislative
and executive authorities, a law is supposed to have been carefully studied and determined
to be constitutional before it was finally enacted. All laws are presumed valid and
constitutional until or unless otherwise ruled by the Court.
63
PRESUMPTION AGAINST INJUSTICE

The law should never be interpreted in such a way as to cause injustice as this never within
the legislative intent. We interpret and apply the law in consonance with justice. Judges do not
and must not unfeelingly apply the law as it is worded, yielding like robots to the literal
command without regard to its cause and consequence.
Generally this presumption embody traditional notions of justice. It is expected that bodies
which the law confers discretionary powers will exercise them reasonably and will act in
accordance with the principles of Natural Justice. In case this is not done courts can
invoke presumptions to resque those under the wrath of unjust bodies or tribunals
[SYLVESTER CYPRIAN & ZIO OTHERS V THE UNIVERSITY OF DAR ES SALAAM,
MISC. CIVIL APPEAL NO. 68 OF 1994 (UNREPORTED), Kyando, J.]
PRESUMPTION AGAINST IMPLIED REPEALS
The two laws must be absolutely incompatible, and clear finding thereof must surface,
before the inference of implied repeal may be drawn. In the absence of an express repeal,
a subsequent law cannot be construed as repealing a prior law unless an irreconcilable
inconsistency and repugnancy exists in terms of the new and old laws.
PRESUMPTION AGAINST INEFFECTIVENESS
In the interpretation of a statute, the Court should start with the assumption that the
legislature intended to enact an effective statute.
PRESUMPTION AGAINST ABSURDITY
Statutes must receive a sensible construction such as will give effect to the legislative
intention so as to avoid an unjust and absurd conclusion. P
resumption against undesirable consequences were never intended by a legislative measure.
PRESUMPTION AGAINST VIOLATION OF INTERNATIONAL LAW
Tanzania as democratic and republican state adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of peace, equality,
justice, freedom, cooperation, and amity with all nations.
In Tanzania such a development has been unshared in by the formal enactment of the Bill
of Rights into the Constitution in 1984 (Acts 15 and 16 of 1984) and since then we have
noticed judges like Justice James Mwalusanya taking a lead to interpret certain laws depriving
64
people of their liberty or rights in the light of the Bill of Rights and principles of
International law [Daudi Peters ' Case, Mtikila's case, Manyweles's]
PRESUMPTIONS AGAINST EXTRATERRITORIALITY
There are presumptions about the geographical operation of the law in question (presumption
against extraterritoriality). In the Union of Tanzania are laws which apply to both Tanzania
mainland and Zanzibar and such laws as they are restricted to Tanzania mainland or
Zanzibar.
PRESUMPTION AGAINST RETROSPECTIVE OPERATION
What is meant by retrospective operation can be illustrated by the following example: In
Tanzania a law was passed in 1984 but it was intended to cover offenses which had been
committed in an earlier period i.e. December 1983. The Act was Penal and it did provide
that it was to operate retrospectively. Courts in East Africa have had to deal with cases
involving laws which were supposed to operate retrospectively and the way courts have
dealt with issues arising from such situations can be illustrated by the following: Ibrahim's
case [1963] EA 179(?) Uganda v. Nyengeya [1963] EA 106 Municipality of Mombasa v.
Nyali , [1963] EA 373.
TOPIC SEVEN
KEY PRINCIPLES APPLIED IN INTERPRETING THE PROVISION OF
THE CONSTITUTION
The constitution is supreme, it emanates from the supreme power in the state, and therefore,
it is incapable of being repealed, annulled or controlled by any other legislative authority.
Despite the fact that Constitution is the supreme and fundamental law of our country but
Since it is written in the form of a statute, the general principles of statutory interpretation
are applicable to interpretation of the constitution as well. As is the case with any other
statute, the court tries to find out the intention of the framers of the constitution from the
words used by them.
It is for the courts to pronounce the validity of enactments with reference to a definite rule
of law. courts have the power to review the validity of a statute by reference to fundamental
principles as laid down or fundamental rights as guaranteed by the constitution.
65
Having said the above, the fact remains that Constitution is a special act. It is a fact that
every provision of the constitution is constitutional and no part of it can be held
unconstitutional. This casts an important duty on the interpreters of the constitution to
interpret its provisions such that the spirit of the constitution is not maligned
The constitution are fairly static and not very easy to change but the laws enacted by the
legislature reflect the current state of people and are very dynamic. To ensure that the new
laws are consistent with the basic structure of the constitution, the constitution must be
interpreted in broad and liberal manner giving affect to all its parts and the presumption
must be that no conflict or repugnancy was intended by its framers.
Applying the same logic, the provisions relating to fundamental rights have been
interpreted broadly and liberally in favor of the subject. Similarly, various legislative
entries mentioned in the Union, State, and Concurrent list have been construed liberally
and widely.
The following are some of the key principles applied specially in interpreting the
provisions of the constitution:-
Principle of Harmonious Construction
Principle of harmonious interpretation is similar to the idea of broad or purposive approach.

The key to this method of constitutional interpretation is that provisions of the Constitution
should be harmoniously interpreted. As per Kelly: Constitutional provisions should not
be construed in isolation from all other parts of the Constitution, but should be construed
as to harmonize with those other parts. A provision of the constitution must be construed
and considered as part of the Constitution and it should be given a meaning and an
application which does not lead to conflict with other Articles and which confirms with the
Constitutions general scheme. When there are two provisions in a statute, which are in
apparent conflict with each other, they should be interpreted such that effect can be given
to both and that construction which renders either of them inoperative and useless should
not be adopted except in the last resort.
Doctrine of Pith and Substance
Pith means "true nature" or "essence" and substance means the essential nature underlying
a phenomenon. Thus, the doctrine of pith and substance relates to finding out the true nature
66
of a statute. This doctrine is widely used when deciding whether a state is within its rights
to create a statute that involves a subject mentioned in Union List of the Constitution. The
basic idea behind this principle is that an act or a provision created by the State is valid if
the true nature of the act or the provision is about a subject that falls in the State list.
The doctrine is concerned with the issue whether classes of subjects covered under the Act
come within an item in the central list. It is applied by Courts to determine the legislative
competence of a legislature in regard to a particular enactment when challenged with
reference to the entries in the various list. For example, the list of Union matters in the
Constitution of the United Republic of Tanzania, 1977 (as amended).
Doctrine of Colourable Legislation
This doctrine is based on the principle that what cannot be done directly cannot be done
indirectly. In other words, if the constitution does not permit certain provision of a
legislation, any provision that has the same effect but in a round about manner is also
unconstitutional. This doctrine is found on the wider doctrine of "fraud on the constitution".
A thing is Colourable when it seems to be one thing in the appearance but another thing
underneath.
Objectives based on colourable legislation have relevance only in situations when the
power of the legislature is restricted to a particular topic and an attempt is made to escape
legal fetters imposed on its power, by resorting to forms of legislation calculated to make
the real subject matter.
Principle of Incidental or Ancillary Powers
This principle is an addition to the doctrine of Pith and Substance. What it means is that
the power to legislate on a subject also includes power to legislate on ancillary matters that
are reasonably connected to that subject. It is not always sufficient to determine the
constitutionality of an act by just looking at the pith and substance of the act. In such cases,
it has to be seen whether the matter referred in the act is essential to give affect to the main
subject of the act. For example, power to impose tax would include the power to search
and seizure to prevent the evasion of that tax.
Similarly, the power to legislate on Land reforms includes the power to legislate on
mortgage of the land. However, power relating to banking cannot be extended to include
power relating to non-banking entities. However, if a subject is explicitly mentioned in a
67
State or Union list, it cannot be said to be an ancillary matter. For example, power to tax is
mentioned in specific entries in the lists and so the power to tax cannot be claimed as
ancillary to the power relating to any other entry of t
Doctrine of Parliamentary supremacy or Sovereignty
Parliament should not take away the power of Courts to strike down ordinary legislation
when tested against the Constitution. Courts have no power to pronounce on the validity
of a Constitutional amendment if the prescribed procedure for amendment has been
followed by Parliament. I n principle the constitution has no retrospective effects.
The Doctrine of Severability
This doctrine is applied mostly in human rights cases where the Court is called upon to
strike off particular provisions of legislation that are found to breach Constitutional
provisions that guarantee human rights DPPV Daud Pete [1997] LRC (Const.) 553
The doctrine of Eclipse
Can be invoked only in the case of a law valid when made, but a shadow is cast on it by
supervening Constitutional in consistency.
QUESTIONS FOR FURTHER REFLECTION
Qn.1 Discuss the principles of Constitutional Interpretation in detail. Explain, "In the interpretation
of constitution, the judicial approach should be dynamic than static, pragmatic than pedantic, and
elastic than rigid". Describe - Harmonious Construction, Doctrine of Pith and Substance,
Colourable Legislation, Proviso, Doctrine of Eclipse, Principle of separation. What is the proper
function of a proviso? Can it affect the enacting portion of a section as well?
Qn. 2 Discuss the rules of statutory interpretation with the help of decided cases. Explain - Literal
Rule, Mischief Rule (aka Rule in Haydon's care), Golden Rule, Rule of Harmonious Construction,
Noscitur a sociis, Ejusdem generis, Reddendo singul singuis. State the circumstances when these
rules are applied by the courts.
Qn. 3 Conceptual development of the law of negligence (tort(s) is examined as a process not as
something, which just developed at once. Explain the validity of this statement with reference to
law of negligence in Tanzania.
68
Proviso is a clause or part of a clause in the statute, the office of which is either
to except something from the enacting clause, or to qualify or restrain its generality,
or to exclude some possible ground of misinterpretation of its extent. Provided
is the word used in introducing a proviso.
************************************END********************************
WABILLAHI TAWFIQ
First thing we do, Lets kill all the Lawyers
ENGEEENERED BY MWAKISIKI, MWAKISIKI, EDWARD

Email: Mwakeyeddy@gmail.com or Mwakeueddy@gmail.com
Phone: +255 678 143 774 or +255 757 119 205
Visit: https://muccobs.academia.edu/MWAKISIKIMWAKISIKI
SN: Tsar Mwakey Eddy.
69

LEGAL METHODS IN TANZANIA (Part 2) by MWAKISIKI MWAKISIKI EDWARDS

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Moshi Co-operative University

From the SelectedWorks of MWAKISIKI MWAKISIKI

Summer August 9, 2017

This work is licensed under a Creative Commons CC_BY-SA International License.

Available at: https://works.bepress.com/mwakisiki-mwakisiki/2/

MOSHI CO-OPERATIVE UNIVERSITY

1. LANGRIDGE v LEVY [1837] 2M & W 519

The material facts

Issue: Whether the seller was liable?

Holding: In favor of the plaintiff (Rule discharged).

2. WINTERBOTTOM v WRIGHT [1840] 10 M & W 109

Issue: Whether A (defendant) was liable?

Argument by the Counsel for the plaintiff

Holding: Judgment for the defendant

3. FREDERICK LONGMEID & ELIZA (HIS WIFE) V HOLLIDAY [1851] 6 EX. 76

A major breakthrough occurred in Heaven v Pender7, where the court finally

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

8. The principle of Donoghuess case can only be applied where the

DEVELOPMENT OF THE LAW OF NEGLIGENCE AT PRESENT.

CONSTRUCTION AND INTERPRETATION, DISTINGUISHED

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

(Established Villages) Act, 1992 and The Local Customary Law

Obligatory Statutes: are used with reference to enabling statutes

Imperative or mandatory and directory statutes.

e) Classification by duration Statutes are classified by duration on the basis

reallocation of certain appropriations and to provide for matters connected with

unless there is something shown to the contrary-meaning of expression "extended to

The judge may read in words which he considers to be necessarily implied by

CRITICISM ATTACHED WITH LITERAL RULE OF STATUTORY

NOT SUITABLE FOR CHANGING TIMES

ADVANTAGE OF THE LITERAL RULE

ADVANTAGES OF GOLDEN RULE

DISADVANTAGES OF GOLDEN RULE

Meaning and use

1. What the Common Law before making the Act was.

DO JUDGES MAKES LAW???

of interpreting statutes so as to arrive at an appropriate conclusion and by so doing they

In conclusion, it is important to note that it is not a duty of a judge to just look at

In Tanzania the approach of using international documents in the process of interpreting

LOGICAL AIDS TO INTERPRETATION (CANONS OF STATUTORY

a) Noscitur a Sociis, a thing is known by its associates

(a) The specific words must constitute a category, class or genus.

It was held that:

"Charming Betsy" Canon

Interpretation in Light of Fundamental Values

Deference to Administrative Interpretations

Avoidance Canon (Canon of Constitutional Avoidance)

The legislature did not intend an absurd or manifestly unjust result.

PRESUMPTION AGAINST INJUSTICE

Principle of harmonious interpretation is similar to the idea of broad or purposive approach.

QUESTIONS FOR FURTHER REFLECTION

ENGEEENERED BY MWAKISIKI, MWAKISIKI, EDWARD

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