LEGAL RESEARCH

The legal profession is based on utilizing authority to back up a case and that is why you will find
a lawyer is constantly engaged in researching so as to give authoritative materials for what he/sh
is saying or writing; the aim being to discover principals to be used in supporting arguments for
solving cases, the same may be done by judges or magistrates for purposes of backing up their
judgments or rulings as the case may be. This is done through legal research.

Legal research is the way how lawyers and legal scholars look for information on matters regarding
law. Glanville Williams holds the viww that, “Lawyers do not know much more law than other
people but they know better where to find it.” This supports the common adage that “a good
lawyer is one not one who knows the law but one who knows where to find the law.” Legal research
is therefore the process of identifying and retrieving information necessary to support legal
decisions. In its broadest sense, legal research includes each step of a course of action that begins
with an analysis of the facts of a problem and concludes with the application and communication
of the results of the investigation.

Objective of Legal Research

Law may be termed as a behavioral science as it regulates human behavior. It is expressed in words
which are used in a particular context. Whatever be the source of law, it cannot provide remedy
for all the situations and for all the time to come. Changes in society demand that law should move
with the time, if it has to remain alive and active and it can remain alive, active and useful, if it is
aware of its lacunae and takes steps to overcome it with the passage of time. The object of legal
research therefore, is to find out lacunae or deficiencies in the existing laws and to suggest suitable
measures to eliminate them. If there is an area for which there is no law at all the objective of legal
research would be to suggest suitable legislation for that area; but if there is a law for that area, but
due to one reason or the other, it did not work, its aim would be to suggest reform in the existing
law so as to make it workable. Thus the significance of legal research lies in the submission of
proposal for reform in the existing law, be it enacted, customary or judicial. However, this would
not be the end or the sole objective of the legal research. When research is undertaken as a part of
process of law reform, it is undertaken for making suggestions for improvements in the law on
concrete and easily identifiable matters and the formulation of those proposals in precise terms.
This is very significant and governing factor in the area of legal research.
The following may be taken as objectives of legal research:
• To discover new facts.
• To test and verify old facts.
• To analyze the facts in new theoretical framework.
• To examine the consequences of new facts or new principles of law; or judicial decisions.
• To develop new legal research tools or apply tools of other disciplines in the area of law.
• To propound new legal concept.
• To analyze law and legal institutions from the point of view of history.
• To examine the nature and scope of new law or legal institution.
• To ascertain the merits and demerits of old law or institution and to give suggestions for a
new law or institution in place of old one.
• To ascertain the relationship between legislature and judiciary and to give suggestions as
to how one can assist the other in the discharge of one‟s duties and responsibilities and
• To develop the principles of interpretation for critical examination of statues.
Significance of Legal Research
In modern time, law has assumed much significance. It provides for and dominates almost all
activities of human beings, it has been accepted that law is perhaps most important instrument of
social change. When an individual deals with his property or he enters into employment or he
causes injury to someone, he fails to pay his dues or he deals with his spouse and children or the
government affects his property or personal rights, he comes in contact with law and either he or
his opponent obtains remedy in accordance with existing law and where there is no law, according
to the discretion of the court. The significance of research may be based on justice, equity and
good conscience, thus this may be summed up as follows.
• It helps the government in formulating suitable laws to pursue its economic and social
policies.
• It helps in solving various operational and planning problems pertaining to business,
industry and tax.
• It helps the courts in solving the problems without much delay and in such a way that the
problem may not re-cure at all or at least in near future.
• It helps the legal practitioner in taking a decision as to how he should tackle the problem
at hand.
To other users of the law apart from government legal research plays the following significant
roles:

Importance of Legal Research:

• Collection of authoritative material through legal research may be relevant to solve a legal
problem.
• Legal research enables the judicial officer to solve complex legal issues when the law is
applied to the facts of a particular case before the judicial officer.
• A good lawyer is one who knows where to find the law so the lawyer can through practice
master and acquire the art of finding where to find the law, and this is done through legal
research.
• Helps to acquire knowledge for a certain topic.
• Helps advocates to effectively prepare for their cases.
• Foundation for a good legal advise.

Steps taken in carrying out legal research:

Legal research is a process. This guide gives you a general overview of the process of conducting your own
legal research and may change according to the specificities of the case you are engaged in. Legal research
and analysis is the process that lawyers use to determine what laws apply to the facts of their case, which
facts are relevant to their claim, what type of remedy they can ask for in court, and what other cases might
impact the judge’s decision. Legal research is performed by anyone with a need for legal information,
including lawyers, law librarians, and paralegals. Sources of legal information range from printed books,
to free legal research websites (like ULII SAFLI, Uganda online law library)

The process of applying the law to the facts of your case and arguing for a specific outcome
requires more training and will be perfected overtime with accumulated experience. The following
should guide you in your legal research.

1. Purpose of Legal Research; one should establish the reason for carrying out legal research.
 2. Finding primary sources of law, or primary authority, in a given jurisdiction (cases,
statutes, regulations, etc.).
3. Searching secondary authority (eg. law-reviews, legal dictionaries, legal treatises, and legal
encyclopedias such as American Jurisprudence and Corpus Juris Secundum), for
background information about a legal topic.
4. Knowledge about the facts

The first step in legal research is to write a statement of facts. Do this to help gain a complete
understanding of everything that has happened, or is happening, in your case. Sit down and write
out everything that has happened so far, and everything that is currently going on. Do include facts
you consider unimportant. Sometimes facts that seem unimportant can make a big difference in
the court process. Revise it to make sure it is accurate and reflects the facts of your case. Make
sure to include dates when each incident took place. Use those dates and your statement of facts to
make a case timeline as well. On the case timeline, list dates from the time your problems started
until the present day, along with the events that occurred on those dates. This easy visual reference
will help you keep important dates in your case straight as you go through the legal research
process.

5. Determine Your Legal Problem and Your Desired Outcome

After understanding your case, the second step is to get an idea of the legal problem you are facing,
and what your ideal outcome at the end of the legal process would be. Simply figuring out where
to start your legal research can often be a very hard part of the process. It may help to sit down and
write down the issues you are facing, along with your ideal outcome. Also think about what a good
compromise could be.

The legal issue you are facing will guide what type of law you research. For example, if you are
currently a noncustodial parent under to a court order—but would like to become the custodial
parent—that means you may be seeking to modify the prior court order. Here, you have a family
law issue involving modification. Thus, your legal research would be focused on family law and
modification.

6. Finding Legal Information and Reading About the Law

The information is both general and specific; you might want to first get general legal information
and from there find specific legal information. The information that you will look for will depend
on the subject of your case, if it is the law of contract you will look all the relevant information
regarding contracts. Finding Specific Legal Information

Treatises, handbooks, and practice guides are commonly referred to as secondary resources.
Secondary resources are a good place to start finding specific legal information. They summarize
the current state of the law, and tell you what specific cases and statutes are important. This is
where attorneys commonly start their legal research.

After looking through the appropriate secondary resources, look through the case law, statutes,
and other resources mentioned by the secondary resources to do further legal research.
Before applying the law to your case, you will need to have a general understanding of the law
relevant to your case, and that knowledge must be up-to-date.

7. Legal Analysis/Legal Writing and beyond

During legal analysis, you apply the law to the facts of your case. Once you have determined which
law applies to your case, made sure it is binding and current, and have read up on it, it is time to
start your legal analysis and writing.

This short article cannot tell you everything you need to know about legal analysis. Indeed,
attorneys take an entire series of classes on legal analysis and writing in law school. You should
consider reading a book on legal analysis and writing, whether you check one out at a local law
library, buy a low-cost e-book online, or buy one at a discount book store.

Normally, attorneys will write a document known as a “legal memorandum” at this stage. A legal
memorandum summarizes the facts, states the issue, applies the laws to the facts, does a counter-
analysis from the other side’s perspective, and predicts what the likely outcome of a case will be.
A legal memorandum is complex and tough to do on your own. Consider contacting a private
attorney for help, perhaps through limited scope representation.

Once done, a legal memorandum provides you with a fundamental understanding of the law of
your case at a glance. Any book about legal writing and analysis should include a guide to writing
a legal memorandum

There are many methods for conducting legal research that may yield good results. The key to
good research is to be patient, careful, and thorough as you read. Another important practice is the
technique of note taking to enable you find the law applicable and the relevant citations.

CITATION OF AUTHORITIES:
When submitting a piece of academic work, you must properly acknowledge the sources of
information that you have used in your research. You must reference your sources whenever you
quote, paraphrase, or use someone else's ideas or words.
Legal citation is a standard language that allows one writer to refer to legal authorities with
sufficient precision and generality that others can follow the references.
Citation refers to the process of referencing to any legal source as authority for the conclusion of
law cited in the text.
Citation can be in the following formats:

• Footnotes: Citations in the body of the page, using a superscript (raised) number placed
after the relevant text, which refers to a footnote listed at the bottom of the page.
• Bibliography: Provided at the end of the paper, this gives detailed information about each
source featured in the footnotes, as well as details of the other sources consulted in
preparation of the assignment.

How to cite statutes;

One should show the Section, subsection, name of statute and chapter of the statute. Section 15 of
the Interpretation Act of Uganda provides that any statutory instrument may be cited by reference
to it’s short title or by reference to the number of the notice in the gazette.
Legislation: there is section subsection, roman and paragraph. 42(2) (e)
Constitution: there is Article, sub article, roman and paragraph
Subsidiary Legislation: Rule or regulation, example Regulation, sub regulation, roman number
and paragraph.
Rule- Sub rule, roman number and paragraph

CITING BOOKS
Immediately after the name of the author the year comes, the title, edition, place where it is
published and the publisher (Author Names---Book name---Year of publication---Edition-Page)
For example Fintch, J. D, (1974), Introduction to legal theory, (2nd edition) , sweet and Maxwell.

Important hints in citing

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

Citing an Article in a Journal: it is a compilation of articles. In citing an article in a journal start

with the author of the article, the title of the article, the year and volume number of the journal,
and page number (Author---Title---Journal Title Abbreviation---Initial page number---Year of
publication). For example: Fridmann,G., “ The intention of Tort and contract”

How to cite a Newspaper article;

Name of Newspaper---Date---Name of Article---Author---Page.
How to cite electronic case law;
Case name---Name of database---Court---Document number.
How to cite internet sources;
Author or owner of website---Title---Pinpoint reference---URL---Date material was retrieved.
References and Bibliography:
It is important to acknowledge all the sources as either references of bibliography.
Internet Sources: These are the modern forms of legal research. However, some factors have to
be considered when using internet sources;
• Authority should be analyzed.
• Information from internet must be accurate.
• Stability of website i.e Is it owned by an individual or an institution?
• Whether the current information is the one posted.
So among the internet databases used include; ULII, SAFLI, BALI e.t.c.
Justice Odoki in the case of Paul Kawanga Ssemwogerere v. Attorney General stated that, “….with
modern electronic systems of legal research, relevant knowledge and skill is essential in order to
achieve successful results.”
Customs: The rules and rights of customs can be relied on in legal research since form customary
law. Section 15 of the Judicature Act provides for customary law to be observed by the High Court
provided it is not repugnant to any laws and principles of natural justice.
Law dictionaries: These give different meanings to legal words and they are useful in legal
research. E.g. Osborn’s Concise Law Dictionary, Black’s Law Dictionary etc.
Journals: These are academic documents on several subjects of law and they can also be used as
sources of information during the process of legal research.

Challenges faced when carrying out legal research

• Legal research is expensive. Some legal research materials are expensive i.e. law books,
subscription charges to online case data bases e.t.c
• Law sources are scarce.
• Various statutes get amended thus making research work vague.
• Crowd sourced websites like Wikipedia
• Unauthorized authors.
• ICT legal research is expensive.\Link rot. i.e in case a legal website goes down, it may not
easily be accessed.
• Opportunistic editing.
• Legitimization of the internet in general.
• Ethical considerations.

Examples of ICT use in legal research in Ugandan courts.

• In Kwizera Eddie v. Attorney General, Justice Lillian Tibatemwa cited the online
‘Duhaime’s law Dictionary’ for the phrase “costs follow the event”.
• In Mifumi (U) Ltd v. Attorney General, the court cited wikipedia for the definition of “bride
price.”
• In Mugarura v. Attorney General, the court cited wikipedia for the definition of “moral
character and integrity.”
• In Oyoo Francis v. Olanya, Justice Stephan Mubiru cited wikipedia when directing the
court to an online article called ‘Lords Resistance Army Insurgency.’
• In Arim Felix v. Stanbic Bank, Justice Lillian Tibatemwa cited wikipedia for the meaning
of “An entry into a suspense account may be a debit or a credit.”
• Justice Odoki in the case of Paul Kawanga Ssemwogerere v. Attorney General stated that,
“….with modern electronic systems of legal research, relevant knowledge and skill is
essential in order to achieve successful results.”

Plagiarism
Definition: This is the process of using someone else’s work without permission or using someone
else’s work without acknowledging the author. This is the use of materials from unacknowledged
sources or direct quotation of materials from documented reference without acknowledging that
the words have been taken verbatim from those references. According to the Webster’s Dictionary,
a ‘plagiarist’ is defined as “One who plagiarizes, or purloins the words, writings, or ideas of
another, and passes them off as his own; a literary thief.”

Causes of plagiarism.
• Doing last minute work.
• Resubmitting the work which is already evaluated.
• Copying from a fellow student.
• Not acknowledging sources.
• Using misleading reference.
Penalty for practicing plagiarism.
• Results into getting a zero.
• Results into reduction in the grade.
• Results into re-writing the work.
How to avoid plagiarism.
• Acknowledging sources.
• Seek for advise were unsure.
• Having a bibliography.
• Try to formulate your own words.
• Try to come up with your own ideas.

REASONING
Reasoning is the process of using existing knowledge to draw conclusions, make predictions, or
construct explanations. Reasoning a faculty of a mind by which will distinguish the truth from
false statements, good from evil and which enables the processors to reduce truth from facts. You
can know that a person is lying because of the nature of the reasoning. Three methods of reasoning
are the deductive, inductive, and abductive approaches.

Analogy reasoning: is the reasoning by comparison or by examples. Meaning comparing two

cases by saying that the case of so and so have the same products as the case of so and so.

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

Deductive reasoning : this is a reasoning from general rule to specific situations that is to say it
involves the application of a readymade principal to individual cases. Deductive reasoning is the
process of reasoning from the general to particular rule to arrive at a conclusion. In deductive
reasoning propositions are asserted and then are used as the basis of reasoning, refer to Bret’s
major propositions in givens v. Pender, thus deduction is a process of reasoning in which reasons
are given in supporting a claim. The reasons are the premises or justifications. The premises
support the conclusion in such a way that it would be impossible for the premises to be true and
for the conclusion to be false. The process of deductive reasoning involves stating one or more
propositions and then reasoning your way to a conclusion by applying established principals or
logic. Deductive reasoning is typified by the mathematical method where propositions are asserted
and then used as the basis of reasoning, thus if A = B it falls that 2A=2B and that A-B is equal to
0 and so on
CASES :
1. Langridge vs levy
2. Wilkinson vs downton
3. Derry vs peek
4. George and wife vs skivington
5. Heaven vs pender
6. Candler vs crane

LEGAL REASONING
Legal Reasoning refers to a process of legally thinking about a legal problem and then make
particular arguments based on the law to persuade the court. William Walker Atkinson in his book
‘The Art of Logical Thinking’ defines“Reasoning” as, the act, process or art of exercising the
faculty of reason; the actor faculty of employing reason in argument; argumentation, ratiocination;
reasoning power; disputation and argumentation.
Legal reasoning is a method of thought and argument used by lawyers and judges when applying
legal rules to specific interactions among legal persons. ... It is here that the court gives reason for
its legal ruling, and it helps other courts, lawyers and judges to use and follow the ruling in
subsequent proceedings. Legal Reasoning refers to a process of legally thinking about a legal
problem and then make particular arguments based on the law to persuade the court.

Legal reasoning must be based on the law and not on religious or biblical rules.
Thus in Julius Lwabinumi v. Hope Bahimbisomwe, the Supreme court stated that,
“ the statements and the reasoning of the justices of the Court of Appeal are with due
respect problematic. First, Uganda is a circular state witch is governed by canon law based
on the constitution, statutory law and common law doctrines of equity. Given the circular
nature, it was not proper for the learned justices to base judicial decisions on religious
marital vows.”

There are principles of legal reasoning and these include;

a) Issues: Lawyers must formulate issues relating to the law.
b) Facts: The facts to be considered must be “material facts”.
c) Rules: Lawyers must state the right law the same way it is provided for under a statute; lawyers
must cite the right law.
d) Analysis: After identifying the material facts, lawyers must connect the material facts with the
law.
e) Conclusions: Lawyers must make conclusions after carrying careful observations and
investigations of the matter

Legal reasoning in entirely based on four major aspects;

1. Reasoning by Analogy
2. Judicial Discretion.
3. Linguistic reasoning
4. Empirical reasoning

Linguistic reasoning;
Under linguistic reasoning, arguments are supposed to be made basing on the law. This means that
lawyers have to base their arguments on the wording of the provisions of a statute. Lawyers must
apply the legal provisions the way they are provided for under a given statute, so that they make
arguments which are within the “confines of the law.” Thus in the case of Theodore Ssekikubo
and others v.Attorney General, the constitutional court was faced with the interpretation of the
word “leave” under Article 127(1)(g) of the constitution. The court interpreted the word ‘leave’ to
mean ‘go way, stop leaving in, and stop working for.’ However, on appeal to the Supreme Court,
the court faulted to follow the constitutional court’s definition of the word ‘leave’. The court stated
that;
“We think that the majority of the justices of the Constitutional Court must have in law
taken the word ‘leave’ out of the context it was used in article 127 (1) (g) and try to interpret
it in isolation of the rest of the words in article 127 (1) (g).”

It is important to note that, linguistic reasoning is entirely based on applying the rules or legal
provisions the way they are provided for under a given statute. Thus in Attorney General v. Major
general David Tinyefunza, Justice Kanyeihamba stated that;
“I have found it necessary to reproduce Article 137 of the constitution in a whole and refer
to the Judicature statute, rules and directives because of the tendency of the legal profession
amongst lawyers to select one or two provisions or sections of a law or clauses of the
constitution and then reach to legal conclusions upon them…..which is not in any way
productive.”

Judicial discretion;
This requires the knowledge of the law, and then applying such knowledge to the facts of a case
in order to arrive legal conclusions. Lawyers must identify the problem giving rise to a case so that
they are in position to identify the laws applicable. Lawyers then have to evaluate the problem
basing on the evidence available and then arrive to conclusions after careful observation and
investigation. Thus in Sam Kuteesa and others v. Attorney General it was stated;
“Judicial discretion is exercised by the courts when the court considers everything before
it without considering any reason which is not a legal one…, the courts act according to
 the ruels of reason, justice and law within the limits of legislation. Judicial discretion is not
a private opinion, humor, vague…, or fanciful consideration.”

Also in R v. Board of Education, the court was the view that,

“ the courts act according to the rules of reason, justice and law within the limits of
legislation. Judicial discretion is not a private opinion, humor,…vague or fanciful
considerations.”
It is important to note that, lawyers must understand the legal problem very well before making
conclusions so that they do not arrive at wrong conclusions. For example, in Ssekikubo and others
v. Attorney General, the constitutional court arrived at a wrong conclusion when the Justices
interpreted the word “leave” to mean ‘to go away, stop living in and, stop working for’. The
Supreme court held that the constitutional court faulted in it’s reasoning while interpreting the
word ‘leave’.

Reasoning by analogy;
Here arguments are made basing on the fact that, a case should be handled in a similar way another
case with similar facts and ratio was handled by court.
“If case (A) was decided in a certain way, and the facts and ratio of case (A) are similar with the
facts of case (B) at hand, case (B) has to be decided the same way case (A) was decided by court.”

In Amama Mbabazi v. Yoweri Kaguta Museveni and another(Presidential Election petition No.1
of 2016), it was observed by court that the facts and issues of Amama Mbabazi’s case were
practically the same as the facts and issues in the previous case of Dr Kiiza Besigye v. Yoweri
Museveni and anor(Presidential Election Petition No.1 of 2006), were the court held that although
there were irregularities in the electoral process, such irregularities could not substantially render
the elections null and void. Therefore, the court in Amama Mbabazi’s case followed the reasoning
in Dr Kiiza Besigye’s case and it held that, even though there were irregularities in the electoral
process, such irregularities could not substantially render the elections null and void. (It is clear
that the court in Amama’s case reasoned by analogy when it followed the decision in Besigye’s
case).

Emperical reasoning;
Here arguments are made basing on the evidence at hand while arriving at legal conclusions. A
lawyer must base his/her legal arguments on the available evidence so that he or she makes a valid
legal argument. Section 4 of the Evidence Act emphasizes that, evidence may be given in any suit
or proceeding on the existence or non-existence of every fact. This can be illustrated basing on
criminal cases. For example, in Uganda v. Kyamusungu, the court relied on the evidence presented
by the prosecution that the eye witnesses saw the accused raping the victim. The court thus relied
on such evidence to convict the accused of rape.

Judicial hunch or intuition:

This is the use of meta legal examples, that is, examples outside the law to support the arguments
or rulings. They can use example sin the society especially where the law is of so far back while
the society is dynamic so they pick examples from the contemporary society to support their
arguments example: before the bill of rights was asserted in the constitution judges could guarantee
the people’s rights by using examples in the society
NB; judicial hunch is done in the following instances
• Where there is controversy between the law that is between case laws and statutes.
• Where there is lacunae in the law
• Where a judge wants to match with time to provide a decision that reflects the present
society in the case of Laiton Kigala V. Mussa Banji TLR 40
In this case the judge used the TANU manifest, the preamble to the constitution, and international
conventions to justify his arguments

Styles of judicial opinions

These styles have nothing to do with the decision itself, they just give a route so as to arrive at a
particular decision. In deciding cases judges ultimately have to justify their end results. Styles of
judicial opinion is the model applied by judges in justifying their results. It is not concerned with
the result itself but the way the result is arrived at.
Formal style: this is a style that have judges or magistrates who believe that the task of the court
is only to interpret the law and not to make the law, law making is the exclusive task of the
parliament, meaning they will focus themselves on what the law is saying. These people always
follow the laws. It is the one which strictly applies the rules of law. It applies the provisions of a
statute as they are, no judicial hunching. By a applying the formal style the judges usually avoid
social factors, they simply look at the law and apply the rule of law to the facts before them. The
underlined presumption is that, judges ought to abide only to that which has been passed by the
parliament. The only sources of law that apply in formal style are STATUTES and PRINCIPALS
LAID DOWN BY COURTS OF LAW example Given V. Pender and Donoghue V. Steveson. Read
the case of Murray V. South Carolina Railway Co. 1 MC 385. This is a case involving an action
by an employee of a railroad against his employer for injuries arising from the negligence of a
fellow employee Johnson Chancellor Maintained, inter Alia that the foundation of legal liability
is the omission to do some act which the law commands, the commission of some act which the
law forbids, or the violation of some contract by which a party is injured. From this rule above the
judge deduced biological reasoning that, since the railroad had not done or omitted to do anything
within the forbid categories it was not liable
Grand style: before they make their decisions they look on the impact of the decisions that are so
they compare on their decision that they have, meaning that if they find that their
decision is favorable then they will find out reasons to support their decision. is the style of opinion
based on reasoning rather precedents. In arriving at it decision the court proceeds on what we
may call a situational consensus. It looks at the consequences of the decision before drawing a
conclusion. In this style application of rules of law comes after analyzing the situation, this style
combines both the law and policy J DICKSON says “ whenever an issue arose which seemed to
the judge to call for relief not directly warranted by precedent, the case was up to be decided on
broad and vague grounds of ‘ natural justice and an unnalysied sense of right and wrong and what
is fair and just from a lay point of view”
In the case of Priestley V. Fowler 3 Mess and Wejs 1 in the cause of his employment, while riding
on a wagon of the employer, the van failed by reason of the negligence of the fellow employee.
The plaintiff then sues the employer for damages arising from the accidents, basing himself on the
then well embodied rule that an employer was liable for injuries inflicted on a third party through
the negligence of his employees. Lord Habinga delivered the opinion of the court, he was the son
of a rich blunter in Jamaica, educated at Cambridge, married to a daughter of a county gentlemen
and himself a land owner. He began his discussion of the applicable law by stating that “ it is
admitted that there is no precedent for the present action by a servant against his master we are
therefore to decide the question upon the general principal, and in so doing we are at liberty to
look at the consequences of a decision one way or the other”.
Realist styles: these judges do not even know Precedent because they base on the decision which
is made in the court and that they say that law is unpredictable. Basing on that any case should be
decided on its own merits. Meaning that in the process of making decision they have no time to
think of precedent that are binding. Realist define law not as a body of rules but a system that is
based on facts not rules. According to the realist style what judges say and what the lawyers argue
in court it is the law. Hence law is not the same always and not predictable at all, law can be X
today provide for X today but maybe Y and provide for Z tomorrow until a court has provided a
ruling on the facts before it no law on that subject is in existence. This is because in the cause of
pronouncing judgments the judges make law and not the parliament even precedents are not law
because judges can overrule them. Realists say that every case should be judged on its own facts
Where the hierarchy of the court is regular because the precedents are binding depending on the
hierarchy of courts the principal will only be used if the material facts of the cases are similar
example Donoghue V Stevenson and Grant V. Australian Knitting mills also the principal of the
previous case must have been decided by a higher court In the judicial hierarchy however that
principal will only be applicable if it has not been abrogated by a court which has powers to
overrule or it has not been super seeded by a provision of the law
NB: a court is bound by its previous decisions unless for some exceptions. The higher courts may
follow the decision of a lower court but it is not bound by that decision but it has only approved
that decision. Lower courts are also bound by the decisions of the higher courts even if they are
incorrect (implied over ruling) this is when the high court establishes a principal then the Court
appeal establishes another principal from the principal of the high court by not saying it is a bad
law but they just change the principal.

Importance of the principal of stare decisis

• It promotes consistent in the decision making process
• It promotes predictability
• It promotes uniformity in decision making
Disadvantages of the principal of stair decisis
• It makes the judges to be lazy
• It kills researching skills
• It kills reasoning of the court
• It may lead to injustice to decision making

Binding nature of precedents

Precedents may be persuasive or authoritative
Authoritative precedents: these are binding decisions they can be absolutely binding or
conditionally binding
Absolute Precedent: is where the lower courts take them as authoritative even if they are wrong
(vertical application) relationship between the higher court and the lower court.
Conditional Precedent: is where a court may choose to be bound or not it is applicable only among
the court of concurrent jurisdiction ( horizontal application )
NB: the choice may be a result of any of the following factors or circumstances
• if it is contrary to the law
• if it is contrary to reason so it is wrong either because of either
• fault interpretation of the previous case.
• If the case was per incuriun ( no use at all) that is to say it was given because of
forgetfulness, or it is inconsistent to the law.
• It has to be over ruled or doubted
• If the decision is highly criticized by the academicians

Persuasive precedents: are those decisions made by courts of other jurisdictions. They are only
persuasive in other jurisdictions and not binding, however this is a general rule.
Techniques used in handling ratios or precedents/ evasive technique
We are interested much with how the judges and lawyers may behave in order to avoid the binding
ness of precedents (Ratios) in their arguments when reasoning the ways or techniques include the
following:
Over ruling: it occurs where a superior court in Hierarchy is satisfied that not only that the previous
decision is wrong, but also that it should no longer be followed then it over rules it. The earlier
decision thus is deprived of any power to bind any court in future example the court of Appeal of
Tanzania over the decision made by the High Court
Express over ruling: this is when the court express that this decision is a bad law.
Implied over ruling: this is when a court decides to change the principal of another court by making
its own principal which will over rule the other.
Disregarding: it simply means not following a precedent. It is done by court of concurrent
jurisdiction. It may occur for example where there are 2 conflicting decisions, and if this occurs
then the latter is preferred to the prior decision. This happens where the 2 courts are of the same
court (coordinate)
Distinguishing: it occurs where a judge or advocate compares the material facts of a previous case
and those of a present case and finds that there are some differences between the 2 cases and so
declares that the principal in the previous case does not fully apply in the present case. In practical
terms distinguishing is the most significant technique of all.
NB: distinguishing an earlier case is simply a way of saying that a previous case or decision is
irrelevant to the latter case.
Types of distinguishing:
Restrictive distinguishing: it cuts down the expressed ratio decidendi of the earlier case by treating
as material to the earlier decision some fact, present in the earlier case, which the earlier court
regarded as immaterial or by introducing a qualification (exception) in to the rule stated by the
earlier courts that is to say the judge in the present case considers the ratio decidendi in the previous
case to be narrow. You do more research on the ratio decidendi by digging in more in the material
facts.
Nonrestrictive distinguishing: it occurs where a court accepts the expressed ratio decidendi of the
earlier case and does not seek to curtail it, but finds that the case before it does not fall within these
ratio decidendi because of some material difference of facts. You do not attempt to challenge the
previous ratio decidendi at all.

LAW REPORTS FROM EAST AFRICA

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

East Africa Law Reports – The reports covered decisions of the Court of Appeal for East Africa
and the superior courts of the constituent territories, namely, Kenya, Uganda, Tanzania, Aden,
Seychelles and Somaliland. The East Africa Law Reports were published from 1957 to 1975 when
they collapsed following the dissolution of the East African Community. They have been
reintroduced by Law Africa with the launch of EA 2000 and EA 2001.
Uganda Commercial Law Reports – The reports cover decisions of the Commercial Division of
the High Court of Uganda since its establishment in 1996.The first in series of the law reports,
1997 – 1998 UCL was launched in November 2005 by the then Chief Justice, Justice Benjamin
Odoki.
Tax Appeals Tribunal Compendium of Judgments and Rulings – Covers decisions of the Tax
Appeals Tribunal.
Kampala Law Reports – Published by a private practicing lawyer
High Court Bulletin – Published by the Law Development Centre.
Uganda Law Reports – Last published in 1973
Law Reports of the Court of Appeal of Eastern Africa – Reporting decisions of the defunct Court
of Appeal of Eastern Africa

Briefing a case / case notes

While reading a case not everything is important. This is all about short summary of the judgment,
by putting the important issues only. We need to know that the part of the case that carries
authorities Ratio decidendi (RD).
In reading a case or judgments you have to read the entire judgments so that you may be in a
position to identify the relevant or material facts, issues to be determined, reasoning of the court,
the principal of a case etc. this in aw is called writing case notes.
Content of the case notes
Title and citation of the case example R V. Juma Shaban 1986 TLR 100
You must select materials facts: materials facts are the ones on which the judgment of the court
is going to base. however, it is not easy to identify what facts are materials because, what facts are
materials is dependent on a judge or magistrate making that decision but there are some indicators
or identifiers of facts that are material for example the nature or the transaction in question, the
nature of breach or commission in a civil or criminal case respectively, damage suffered
circumstances of the commission or breach etc. when a judgment is read there are material facts
which are the most important, these are arts which the judgment of the court is going to base. A
principal of the case is the result of the material facts of the case and the reasoning and judgment
of the court.
Issues: you must identify relevant issues that might require the indulgent of the court and that
might be relevant or important in the decision to be made. Issues may be on a point of law, may
as well be on the procedure or may as well be on the facts. A simple way of identifying issue in a
judgment is to look for questions or the word whether. Almost all judge’s facts appear on the first
page and probably on the first line. ISSUES:
These are points or questions that the court must answer in delivering a judgment. The simplest
way to find an issue is to ask yourself a question.
-arguments by the parties:
Reasoning of the case: refers to the reasons or justifications for the court to arrive at a particular
decision example the reasoning may base on policy issue example Gender empowerments etc.
Before a judge arrives at a judgment he must make a reasoning that will act as a judgment.
Ratio decidendi (RD): these are important issues that you must be able to extract in a case. This is
a principal of a case or part of the case that carries authority and it result of the material facts plus
reasoning and judgment of the court. Facts are also important because those lines will bring that
principal.
Legal writing
Language is the professional tool that enables a lawyer to communicate well with his audience so
language is an important aspect to be considered and to be given much weight so it is important to
learn on how you can effectively communicate with your audience also language will enable you
to put forward your argument with articulation.
Problems in writing
• Lack of care
• Poor planning
• Inability to capture and maintain the readers interest
• Lack of structure
• Poor grammar

Important clues in writing

Clarity: Your writing should make a reader to understand what you have written with minimum
efforts, your statements should be clear and free from ambiguity.
Simplicity: use simple but relevant legal terminologies or language. Avoid long and complex
sentences unless it is necessary.
• Use one idea in one sentence
• Avoid using difficult words
• Avoid technical jargons
Accurate and precision: write something that is exact and free form errors, being very careful.
Persuasive: try to convince your reader on what you are writing.
Forms and precedents
• PLAINT
• WRITTEN STATEMENT OF DEFENSE (WSD)
• AFFIDAVITS
• CHARGE SHEET
• DEED POLL

Plaint: this is a legal document which is used to institute a civil proceeding in a court of law which
contains all the material facts on which the plaintiff relies to substantiate his plaint. Governed by
order VII of the civil procedure court N.B a plaint does not include evidences which the plaintiff
intends to rely upon this means that are those facts that you will rely on example if it is a contract
you will tell the court your story and you attach a copy of the contract but evidence meaning that
you want to prove.
The facts are arranged in paragraphs and at the end the plaintiff has to sign and his advocate too.
a plaint must contain
Facts establishing the cause of action (what did that person do)
Facts showing that the court has jurisdiction
Remedies or reliefs the plaintiff seeks from the court.
A plaintiff is a person who takes a case to court, but in criminal cases there are no plaintiff.
Written statement of defense: this is a legal document drawn by the defendant traversing the plaint
paragraph after paragraph for purposes of denying what is contained in a plaint with a prayer that
the suits be dismissed in some circumstances with costs.
A (WSD) is to be filed within 21 days from the date of service
A (WSD) may contain:
-points of objection example that the court has no jurisdiction, the suit is time barred, counterclaim
etc.
Affidavits: these are sworn statements by the deponent stating facts that are within the knowledge
of the deponent.
However sometimes the deponent may state facts which are not within his own knowledge but he
has to show or state the source of that information.
Affidavits are sworn before a commissioner for oaths.
The facts to be stated have to be in numbered paragraph.
An affidavit has to be signed and verified by the deponent N.B affidavits are of different types
Affidavits on verification of names
Affidavits declaring nationality of the deponent.
Affidavits in support of an application in the court of law etc.
Charge sheet : this is a legal document that is formally used to institute criminal proceedings, they
are governed by the criminal procedure Act Cap 20 revised edition 2002.
Content of a charge sheet
• Title of the court (name of court)
• Title of the document (Charge)
• Details of the accused (name and other details)
• Counts
• Statement of the offense
• Particulars of the offense
• Details of the state atoner

Deed poll: this is a legal document that is used to change names where by a person who wants to
change names and abandons those old names and assumes new ones which he would like to be
recognized by. For it to be effective it has to be registered with the registrar or of tittles and an
announce to that effect has to be published in a government gazette.

In Uganda, the legal procedure of change of name (Deed Poll) and Gazetting are as follows:The
legal procedure of changing a name is provided for under, The Oaths Act (Cap 19), the Births and
Deaths Registration Act (Cap 309) and the Registration of Documents Act (Cap 81).

1. Find a lawyer to draft for you a Deed Poll stating the changes you are making, then sign
the deed poll and swear by it (Affidavit).
2. Thereafter, the Deed Poll is registered with the Uganda Registration Services Bureau
(URSB) in the documents register for record purposes.
3. After registration at URSB, Gazette the change of name in the Uganda Gazette which is
printed and Published at Uganda Printing and Publishing Corporation (UPPC).
4. You Gazette by delivering the registered document and proof of payment of the Gazette
fee at any of the UPPC offices.