LEGAL METHODS

Dr. Kasim Balarabe

LLB (ABU), BL (Nigeria), LLM (Geneva,

Switzerland), LLM (VU Amsterdam), Dip. RL (San

Remo, Italy); PHD (Maastricht, Netherlands)

Barrister and Solicitor of the Supreme Court of

Nigeria

Lecturer IUIU MC
TOPIC 1: LEGAL REASONING

1. Basic Concepts in Logic

2. Bases of Legal Reasoning

3. Methods of Legal Reasoning

4. Logic and Legal Reasoning

5. Fallacies – Typical Errors in Reasoning

INTRODUCTION

I consider the invention of the syllogism one of the most beautiful, and also one of the most
important, made by the human mind. - Gottfried Leibniz

BASIC CONCEPTS IN LOGIC

Propositions

A proposition or statement is a sentence which is either true or false.

Examples:

 All cows are brown.

 The Earth is further from the sun than Venus.

 There is life on Mars.

It is possible to determine whether any given statement is a proposition by prefixing it with:

It is true that . . .

and seeing whether the result makes grammatical sense.

Argument
An argument is a series of statements, some backed by evidence, some not, that are purposely
presented in order to prove, or disprove, a given position.

To engage in the process of argumentation is to deploy methodically a series of arguments.

An argument is a journey from problem to solution through the medium of the interpretation and
application of legal rules to legal problems.

Logic/Reasoning

Logic is the science of reasoning, thinking, proof or inference. It can also be said to be the
process of creating or generating conclusions from evidence or premises.

Logic is about Thinking, Reasoning and Inferences

In reasoning we produce reasons as evidence for certain conclusions we wish to establish. It is

closely connected to making inferences.

The reasons we provide allow us to infer a certain conclusion. Logic is a science “good reasons”.
The reasons given are always expressed in a language.

Logic has sometimes been characterized as discipline which deals with the relation between
sentences.

For a lawyer, logic is the study of propositions and how conclusions may be correctly obtained
from propositions in the process of reasoned argument.

Inference is a process which allows us to establish the truth of a certain sentence called the
conclusion of an argument, from the truth of other sentences which constitute the evidence for
the conclusion.

BASES OF LEGAL REASONING

The Fact

A fact is something that has really occurred or is actually the case. The usual test for a statement
of fact is verifiability, that is, whether it can be demonstrated to correspond to experience.
Facts refer to the normal facts of life. For example, in a normal happening like car accident the
following may be categorized as facts: the driver may be described as tall with a long beard,
dressed in a blue shirt, brown jacket, white trousers. He may also be described to have been
driving very fast a car with defective brake, at the time it was raining and the road was slippery.
The injured person may bear the description that he was riding a bicycle, on the right side of the
road, dressed in a white attire and was also drunk. All these are facts.

Material Facts

Material facts are facts considered relevant in addressing a legal issue. Material facts are sorted
out from a mass of facts.

In the previous example of facts, for the purposes of the law of negligence the following facts
may be categorized as relevant or material facts: the fact that the driver of the car was driving
fast, that the car had defective brakes. On the part of the injured person, the fact that he was
riding a bicycle in a drunken state.

No law can be applied in a vacuum except where the fact is proved to exist.

In legal reasoning, there must be the issue at stake which warrants the application of legal
reasoning by a lawyer or a judge. This requires the fact to be in issue or fact connected to the fact
in issue.

The Law

Where facts are known and examined, a lawyer or a judge applies the relevant law that is
applicable to the facts in issue and draw their legal reasoning and conclusions.

A lawyer is expected to evaluate and examine legality of that law and whether or not the facts
revealed is in conformity with the element and ingredients of such law.

The law may be written or codified.

METHODS OF LEGAL REASONING

One of the goals of advocacy and lawyering is for a lawyer to develop the ability to be able to
convince others to adopt his reasoning and concur with his position.

Decisions taken by both a lawyer and a judge are fundamental because it will affect the rights,
duties, liabilities and obligations of concerned parties, hence the importance of the knowledge of
reasoning.

The reasoning used to convince other is known as legal reasoning.

The methods of legal reasoning are: Principles and Rules; Legal Rhetoric and Legal Logic.

i. Principles and Rules

These refer to the established legal truth or position of the case.

No legal reasoning can be advanced without examining the relevant principles and rules. The
principles serve as standard guide in the process of law making and interpretation.

The application of the principles and rules can only be made after determining the fact in issue in
each particular case.

ii. Legal Rhetoric

Rhetoric is the ability of a person to attempt to convince or change another through writing or
speech (persuade).

To persuade another requires the ability to put audience in a particular frame of mind with proof.

Rhetoric is divided into forensic and deliberative.

Forensic Rhetoric is a persuasion adopted by lawyers who represent the interest of their clients
to persuade the court to accept their position.

Deliberative Rhetoric is adopted by judges in seeking to arrive at a rationalized decision that is

justifiable in the overall interest of the parties and the society.
Both lawyers and judges can achieve this by applying the law.

iii. Legal Logic/Reasoning

The exercise of legal reasoning must be in conformity with legal rules and principles. A
presentation must be made in a logical and convincing manner.

The application of legal logic makes the argument and decision clearer and more acceptable.

Advantages of Legal Logic/Reasoning

The application of legal logic helps judges and lawyers in the following ways:

1. To reason clearly, methodically, analytically, sensibly and reasonably;

2. To clearly express and explain themselves;

3. To identify and stop wrong arguments capable of misleading the court leading to a wrong
judgment; and

4. To work professionally.

Legal Logic/Reasoning can take the following forms: deductive/syllogism and inductive logic.

LEGAL LOGIC/REASONING

LEGAL REASONING

Construction of legal arguments: you must develop argumentative strategies to apply the law and
facts to legal problems;

In lawyering and advocacy, it is not enough for an argument to “make sense” or “get the point
across.” A legal argument must exhibit what is referred to as “pristine logic.” In order to exhibit
“pristine logic,” a legal argument should adhere to the form of the logic syllogism.
A legal argument is a dispassionate appeal to reason constructed from the evidence and
applicable legal rules as applied to a set of facts. Argument is a core skill for the study and
practice of law.

Lawyers are often thought of as having logical minds. This gives the impression that legal
reasoning itself is or should be governed by logic.

Concepts of law are more like chess pieces. They can be used to produce certain results but the
players have a choice as to the move. Similarly, lawyers and judges have a choice as to how they
will move the concepts.

The way in which they are moved and applied to facts involves a process of reasoning.

All legal reasoning follows one path. No legal argument can be accepted or rejected without all
of the following pieces:

1) Issue - What specifically is being debated?

2) Law/Rule - What legal rule governs this issue?

3) Facts - What are the facts relevant to this Law/Rule?

4) Analysis - Apply the law/rule to the facts.

5) Conclusion - Having applied the law/rule to the facts, what's the outcome?

TYPES OF REASONING/LOGIC

There are two main types of Logic or Reasoning: deductive and inductive – and a third process:
abductive.

1. DEDUCTIVE/SYLLOGISM

Deduction is the reasoning process that draws a conclusion from the logical relationship of two
assertions, usually one broad judgment or definition and one more specific assertion, often an
inference.
It is reasoning from general premises which are known or presumed to be known to more
specific, certain conclusions.

In deductive reasoning, the argument has to follow a prescribed form:

 A major premise: states a generality

 A minor premise: states a particularity

 Conclusion

The major premise- is a general statement.

Ex. All telemarketers are obnoxious.

The minor premise – is a statement of a specific instance related to the major premise.

Ex. The person on the phone is a telemarketer.

The conclusion – is a statement derived from the minor premises relationship to the major
premise.

Ex. The person on the phone is obnoxious.

This form of argument is called syllogism: the subject in the major premise becomes the
predicate in the minor premise and the conclusion is necessary, or compelled.

The major way of attacking a deductive argument is through the premises. The conclusion is
logically compelled and cannot be attacked. The major and minor premises, however, may be
attacked for argument.

Constructing a Deductive Argument

When constructing a deductive argument, your task is to defend the truth of your premises.

If your argument is valid, i.e., logically constructed, then the reader must agree with your
argument.
If the reader disagrees, then the reader must prove that one of the premises is not true.

Examples of Deduction

Homosexuality is an immoral act, because it is unnatural and is a contradiction of God’s law of

procreation.

Major Premise: All acts that are unnatural and contradict God Laws are immoral.

Minor Premise: Homosexuality contradicts God’s law of procreation

Conclusion: Homosexuality is immoral.

Homosexuality is an immoral act, because it is unnatural and is a contradiction of God’s law of

procreation. Thus, homosexuality should be banned.

Major Premise: All acts that are unnatural and contradict God’s Law are immoral and should be
banned

Minor Premise: Homosexuality contradicts God’s law of procreation

Conclusion: Homosexuality is immoral and should be banned

Major Premise: Stealing is a criminal act

Minor Premise: Shoplifting is stealing

Conclusion: Therefore: Shoplifting is a criminal act

Notice: A claim of definition is a form of syllogism

Deductive Reasoning in Law

A lawyer advising his client as to the application of a detailed statutory provision will employ
deductive type of reasoning.

The statute is a major premise, the lawyer identifies his case as falling within the statute and then
deduces as the conclusion the way in which it applies to his client.
Deductive reasoning is only applicable once a clear major premise has been established.

2. INDUCTIVE

It deals with soundness of inference for which the evidence is not conclusive. It is reasoning
from specific cases to more general, but uncertain, conclusions.

In Inductive reasoning, the conclusion, although also based on premises, extends beyond the
facts in the premise.

The premise supports the conclusion, it makes it probable – but it is possible that another
conclusion exists.

Example of Inductive Reasoning: Boss to employees: Michael has a tattoo of an anchor on his
arm. He probably served in the Navy.

Inductive Reasoning in Law

If the source is not a statute but case law, no major premise is likely to be clear from just one
case decision. Instead the judge or lawyer would have to examine several cases to find a major
premise which underlies them all.

He will have to reason from particular case decisions to a general proposition.

Judges too make use of inductive and deductive logic when deciding cases.

Cases which involve a question of which law should be applied come before the court precisely
because there is no purely logical answer to the question.

Instead there is a choice which according to Lord Diplock, is exercise by making a policy
decision.

But how does the judge make this decision?

Obviously will be influenced by the rhetoric of the parties’ counsel, by the way in which they
have framed the issue and the analogies they have suggested.
He may have his own personal views but perhaps the most important influence on his choice is
the knowledge that he will have to justify his decision in a reasoned judgment.

Legal Reasoning and Justification

Prof. Neil Mac Cormick suggested that two factors in particular may be considered by judge
when justifying his decision:

1. The extent to which a proposed decision will cohere with existing principles and
authorities: the greater the inconsistency with the existing legal framework that will result
from a proposed decision, the less likely it is to be adopted.

2. The broader consequences of the decision for potential litigants, the legal system and
indeed the role of law in society.

Judges may refer to common sense, the supposed view of the common man or they may refer to
notion of justice and fairness.

NOTE:

When there is an established principle, deduction is used to solve the problem. It takes the form
of a simple syllogism. The established principle becomes the major premise. The particular issue
posed by the case in point becomes the minor premise. If as a result of this juxtaposition,
something follows of necessity, this becomes an unassailable conclusion from the point of view
of logic. For example:

If any person dishonestly takes out of the possession of another person movable property without
the person’s consent and moves it in order to take it, he is said to commit theft.

Now A being B’s servant entrusted by B with the care of B’s plate dishonestly runs away with it
without B’s consent. A has committed theft.

DEDUCTIVE

Involves reasoning from known premises, or premises presumed to be true, to a certain

conclusion
The conclusions reached are certain, inevitable, inescapable

It is the form or structure of a deductive argument that determines its validity

The fundamental property of a valid, deductive argument is that if the premises are true, then the
conclusion necessarily follows

The conclusion is said to be entailed in or contained in the premises

INDUCTIVE

Involves drawing uncertain inferences, based on probabilistic reasoning

The conclusions reached are probable, reasonable, plausible, believable

By contrast, the form or structure of an inductive argument has little to do with its perceived
believability or credibility, apart from making the argument seem clearer or more well-organized

The receiver (or a 3rd party) determines the worth of an inductive argument

Argument by Analogy

Analogy is the most common form of argument in law. It is sometimes referred to as reasoning
by example.

Argument by analogy is argument by considering similarity of cases.

It begins by stating that two objects are observed to be similar by a number of attributes.

It points to the conclusion that the two objects are similar with respect to a third attribute.

The strength of such an argument depends upon the degree of relationship.

In analogy, there are three important steps as described by the doctrine of precedent: a
proposition descripture of the first case is made then applied to the next situation:

a) Similarity is seen between the two cases

 b) The rule of law inherent in the first case is announced

c) The rule of law is made applicable to the second case

Reasoning by Analogy

Ascertain the material facts on which the judge has based his conclusion;

Judges are involved in a type of inductive reasoning called reasoning by analogy. This is a
process of reasoning by comparing examples. The purpose is to reach a conclusion in a novel
situation.

This process has a three-stage process:

1. the similarity between cases is observed;

2. the rule of law (ratio decidendi) inherent in the first case is stated (reasoning is from the
particular to the general: deduction);

3. that rule is applied to the case for decision (reasoning is from the general to the
particular).

Sorties

This is a kind of “closed system of reasoning” in which a single conclusion is drawn from more
than one premises.

Example: On Retrospective Legislation.

This Act was passed in January 1984.

The accused committed the offence in December, 1983.

This Act is Penal.

Penal Acts are not supposed to be retrospective unless the intention is shown in the Act that they
should be.
This Act shown an intention that it is retrospective.

Therefore: _____

Abductive Reasoning

Lawyers inevitably look at possible inductive reasoning that counters their own argument,
otherwise they could be caught by surprise. This involves constructing opposing hypothetical
theses.

The evidence a lawyer has may suggest alternatives, and perhaps even more plausible
alternatives. This creative process which tends to argue around the data based on hypothetical
matters, rather than on matters known, is called abductive reasoning.

It is always a good idea to try and predict counter-arguments to your own. Then you can consider
how you would deal with them.

Conclusion

The essential quality of a well-structured argument is that it takes the reader / listener from the
beginning to the end and makes them hold the opinion that the argument is correct or the most
plausible argument.

Sometimes, the process of argument uses bridges from one fact to another that are not made of
evidence but inference.

At the everyday level of explanation, a legal argument tends to say:

 This happened;

 The following law states that this behaviour is illegal in certain circumstances;

 These witnesses, these official documents, this forensic evidence prove that it happened;

 It can be proved therefore that X did this;

 X, therefore, broke the law.

An essay may argue about theory, rather than fact, but the structures remain the same.

Argument construction is not difficult if there has been meticulous preparation of information.

The argument will be basic or elegant depending upon the development of skills, understanding
of the law, the level of preparation, thought and reflection that has gone into the argument
construction.

What one gets back is proportional to the quality of what has gone in.

FALLACIES – TYPICAL ERRORS IN REASONING

A fallacy is an error in reasoning. A fallacious argument is one that may appear correct, but on
examination proves not to be so. Even if the premises and conclusion are all correct, an argument
may still be fallacious if the reasoning used to reach that conclusion is not logically valid.

Types of Fallacies

Modern logicians have identified over one hundred distinct types of fallacy. However only 15
types that occur most frequently in legal writing and advocacy are listed here.

Most of these fallacies may be grouped in two broad categories. Fallacies of relevance occur
when the premises “miss the point” and fail to provide logical support for the conclusion.

Fallacies of ambiguity occur when the meaning of a key word or phrase shifts and changes, so
that the terms do not really “match up” within the argument.

Legal arguments can be quite complex and fallacies can be hard to detect in legal memoranda,
briefs, and judicial opinions. Knowing how to spot and avoid them can improve legal writing and
advocacy.

By familiarizing yourself with the fallacies listed here and searching for them in your own
writing and the writing of others, you can develop and nurture the habits of “pristine logic” that
all successful lawyers employ.

SPECIFIC FALLACIES
1. Appeal to Inappropriate Authority: This fallacy arises when the authority invoked has no
legitimate claim in the matter at hand. In legal writing, this fallacy occurs when we cite a
secondary authority or a case from another jurisdiction as controlling authority. It also occurs
when we cite the opinion of an expert in a matter outside his or her expertise.

Example: to cite Kenyan case law before a court in Kampala

Example: “The possession of nuclear weapons is a moral abomination. Even Edward Teller, the
‘father of the hydrogen bomb,’ urged the United States to halt production once the full extent of
their destructive power became known.”

Explanation: While it may seem persuasive that even the “father” of the hydrogen bomb
disapproved of its development, note that Teller was a physicist, not a cleric or moral
philosopher His views on morality are completely outside his expertise.

2. Disconnected Premises: In a standard logic syllogism, there must be exactly three basic
concepts: a “major term” that occurs in the major premise, a “minor term” that occurs in the
minor premise and a “middle term” that occurs in both the major and minor premises, but not in
the conclusion. (The conclusion should connect the major and minor terms.) The middle term is
the glue that holds the argument together. That glue must be applied in the right places, or the
argument will fall apart. In a typical legal syllogism, the middle term will consist of either the
elements of a cause of action or the definition of some term of art.

Example: “Murder is the intentional killing of a human being. State v. Jones. Here, the defendant
is an escaped convict who was already serving a life sentence for the murder of a police officer
and was apprehended just two miles from where the victim’s body was found. Therefore, the
defendant is guilty of murder.”

Explanation: In this example, the attempt to create a syllogism is foiled because there is no
middle term. The conclusion tells us that the defendant is guilty of murder. The major premise
(the first sentence) defines “murder” by telling us the elements of that crime. Thus, in order to
establish the conclusion, the minor premise (the second sentence) should show us that this
defendant’s conduct satisfied each of these elements. The elements of the crime should be the
“middle term” that connects the premises together. Instead, the minor premise does not even
mention the elements of murder. It gives us other, extraneous, information about the defendant
(i.e. his prior record and where he was apprehended). Because it fails to refer back to a “middle
term” (the elements of murder), the minor premise is disconnected from the major premise and
the argument falls apart.

3. Irrelevant Conclusion: This fallacy occurs when the premises “miss the point” and fail to
substantiate the conclusion, instead supporting some other, perhaps unstated, conclusion. Often,
this fallacy arises when we advocate for a particular objective, but offer only generalized support
for that objective that could equally well support an alternative approach. An irrelevant
conclusion may also be called a non sequitur.

Example: “My aunt wants to move somewhere warm and buy property for her retirement. She
also wants to avoid a high property tax. She had been thinking about South Africa, but the
property taxes are quite high there. Therefore, she shouldn’t move to South Africa – she should
move to France.”

Explanation: Here, the premises (my aunt wants to move somewhere warm, my aunt wants to
avoid a high property tax, and South Africa has a high property tax) do support the conclusion
that my aunt should not move to South Africa.

But they don’t support the conclusion that she should move to France. In the first place, we
aren’t told whether France is warm and whether France charges a high rate of property tax. But
even assuming that France is warm and does not charge a high rate of property tax, the premises
don’t tell us why my aunt should move to France, as opposed to UK, Mexico, US, Kenya, etc.
Therefore, this part of the conclusion is a non sequitur; it is logically irrelevant to the premises.

4. False Cause: This fallacy consists in treating something as a cause that is not, or should not be
assumed to be, a cause. Most commonly, the mistake is in assuming that A caused B simply
because A preceded B.

Example: “The defendant fled the state just hours after the crime was committed. Therefore, he
was clearly involved in one way or another with its planning or execution.”
Explanation: The assumption here is that one thing (the defendant’s decision to leave the state at
a certain time) was caused by something that immediately preceded it (the crime). But the mere
fact that one thing precedes another is not enough to prove causation. Certainly, many people left
the state shortly after this crime was committed. Should we assume that they were all criminal
accomplices?

5. Overzealous Application of a General Rule: This fallacy occurs when we apply a

generalization to an individual case that it does not necessarily govern. The mistake often lies in
failing to recognize that there may be exceptions to a general rule.

Example: “The Constitution guarantees freedom of speech. Therefore, our client cannot be held
liable for anything she has said.”

Explanation: The Constitution does not give an absolute, unqualified right to free speech. For
example, the client could be liable in tort if her words defamed someone. Here, the major
premise is overzealously stated without regard to several exceptions qualifying the general rule.

6. Hasty Generalization: This fallacy is the converse of the preceding one. It occurs when we
move too quickly to establish a broad principle or general rule based on specific factual
observations.

Example: “In the present case, the dog that attacked the small child clearly had a ‘vicious
propensity.’ Two years earlier, that same dog had bitten a postal worker who came on the
property to deliver the mail.”

Explanation: Here, the premise is that the same dog that bit the child had bitten a postal worker
two years earlier. The conclusion is that the dog has a “vicious propensity.” Without some strong
precedential support, this argument would almost certainly fail in court. Two incidents in the
span of two years hardly seem enough to establish a “propensity.” This argument makes a hasty
generalization from two quite possibly isolated events.

7. Circular Argument: This fallacy occurs when one assumes the truth of what one seeks to
prove in the very effort to prove it. In other words, an argument is fallacious when the conclusion
lies buried in the premises used to reach that conclusion. This is also known as begging the
question. Question-begging arguments often mask themselves in clever rhetoric. They can be
easy to miss because they often sound good.

Example: Plato wrote: “We must accept the traditions of the men of old time who affirm
themselves to be the offspring of the gods – that is what they say, and they must surely have
known their own ancestors. How can we doubt the word of the children of the gods?”

Explanation: Plato’s conclusion is that some ancient humans were the children of the gods. His
premises in support of that conclusion are that (1) they said so themselves, and (2) one cannot
doubt the word of the children of the gods. But note that these premises only lead to the
conclusion if we also assume that the people who said they were the children of the gods were
the children of the gods. His argument sounds good, but it doesn’t establish anything as a matter
of logic.

8. Complex Question: This fallacy occurs when the question itself is phrased in such a way as to
presuppose the truth of a conclusion buried in that question. The solution is generally to root out
the buried assumption by “dividing the question.”

Example: “Isn’t it true that your sales increased dramatically after these misleading
advertisements were published?”

Explanation: This question presupposes that the advertisements were misleading. Either a yes or
a no answer might suggest that the witness had done something wrong. Opposing counsel should
object to the question, and ask that it be “divided” as follows: “Isn’t it true that your
advertisements were misleading? Isn’t it true that your sales increased dramatically after these
advertisements were published?”

9. Ambiguity: When we use a key word or phrase to have two or more different meanings in the
same argument, we commit the fallacy of ambiguity. Because many words and phrases are
naturally ambiguous (have two or more meanings or even a range of meanings), this fallacy often
escapes notice.

Example: Jonathan Swift said: “No man will take counsel, but every man will take money;
therefore, money is better than counsel.”
Explanation: The problem here is an ambiguity in the word “take.” To “take” counsel means to
listen to and heed advice. To “take” money means to accept a gift of cash. To understand why
this equivocation between two meanings is fallacious, see what happens when we use one
meaning of “take” consistently throughout the argument: “No man will listen to and heed advice,
but every man will listen to and heed money. Therefore, money is better than advice.”

10. Composition: We commit the fallacy of composition when we mistakenly impute the
attributes of a part of a whole to the whole itself.

Example: “The prosecution has offered nothing but circumstantial evidence. As we have seen,
not one of these pieces of evidence conclusively proves that my client committed the robbery.
Therefore, the prosecution has not carried its burden of proof beyond reasonable doubt.”

Explanation: This argument is fallacious because it imputes an attribute of each individual piece
of evidence (insufficiency to prove guilt beyond a reasonable doubt) to the totality of the
evidence. However, the sum of the evidence – considered together – may very well prove guilt
beyond a reasonable doubt.

11. Division: This fallacy is the reverse of the fallacy of composition. We commit the fallacy of
division when we mistakenly argue that attributes of a whole must also be present in each part or
constituent of that whole.

Example: “The spotted owl is disappearing. This animal is a spotted owl. Therefore, this animal
is disappearing.”

Explanation: The problem here is that what is true of the entire species (that it is disappearing) is
not necessarily true of each member of that species.

12. Argument from Ignorance: An argument is fallacious when it maintains that a proposition
is true because it has not been proved false or false because it has not been proved true.

Example: “The Big Bang theory is a complete and utter lie. This ‘theory’ has been bandied about
for decades and no one has ever been able to point to any conclusive proof.”
Explanation: Here, the absence of conclusive proof does not establish that a theory or proposition
is false. It merely establishes that the theory or proposition is still open to some debate.

13. Attack Against the Person: This fallacy occurs when the thrust of an argument is directed,
not at a conclusion, but at the person who asserts or defends it. This is sometimes referred to as
an ad hominem argument.

Example: A lawyer tells a jury that evidence of a witness’s criminal past proves that the witness
was lying.

Explanation: Evidence of this kind may be relevant to establishing the witness’s general
credibility (or lack thereof), but it does not independently prove that the witness was lying on
this occasion.

14. Argument from Force: An argument is fallacious when it substitutes veiled threats for
logical persuasion or when it asserts that something must be the case because “that’s just the way
things are.”

Example: White House Chief of Staff Howard Baker once opened a cabinet meeting over
allegations of misconduct on the part of Attorney General Ed Meese as follows: “The President
continues to have confidence in the Attorney General and I have confidence in the Attorney
General and you ought to have confidence in the Attorney General, because we work for the
President and because that’s the way things are. And if anyone has a different view of that…he
can tell me about it because we’re going to have to discuss your status.”

Explanation: Note that Mr. Baker did not provide any reasoned explanation for his conclusion
that the other cabinet members should have confidence in the Attorney General. This argument
substitutes a thinly veiled threat for the use of reason.

15. Appeal to Emotion: This fallacy occurs when expressive language designed to excite an
emotion like outrage or pity is used in place of logical argumentation.

Example: “Ladies and gentlemen of the jury, if found guilty, my client faces 20 years in prison.
But I ask you, can you in good conscience send a devoted husband and father of four children, a
man who has dedicated his life to providing for his family, who has participated actively in his
church, and who given over 10% of his income to charities, to prison for such a length of time
that he will not be able to watch his children grow up or support them financially through their
college years?”

Explanation: Again, the defendant’s character is irrelevant to the question of his liability. Here,
counsel is appealing to the jury’s pity instead of offering a logical argument in support of her
client.

TOPIC 2: DOCTRINE OF JUDICIAL PRECEDENT

1. Doctrine of Judicial Precedent

2. History of the Doctrine

3. Developing Precedent

4. Justification for Precedent

5. Operation of Precedent

6. Binding & Persuasive Precedents

7. The Concept of Ratio Decidendi

8. Finding the Ratio of a Case

9. Techniques of Handling the Ratio

10. The Concept of Obiter Dictum

11. Precedents and Superior Courts

DOCTRINE OF JUDICIAL PRECEDENT

Definition of Precedent Generally

“Precedent” literally means something that has happened before.

In ordinary English, “precedent” has come to mean an event which defines a standard

“Unprecedented” is something that is uncommon or well beyond standard. E.g. the level of
corruption is unprecedented.

Precedent is a source of law. The judgments passed by some of the learned jurists became
another significant source of law.

When there is no legislature on particular point which arises in changing conditions, the judges
depend on their own sense of right and wrong and decide the disputes. Such decisions become
authority or guide for subsequent cases of a similar nature and they are called precedents.

The dictionary of English law defines a judicial precedent as a judgment or decision of a court of
law cited as an authority for deciding a similar state of fact in the same manner or on the same
principle or by analogy.

The legal principle or rule created by a court which guides judges in subsequent cases with
similar issues or facts. Sometimes called Authority.

Professor Gall described it in the following terms: The operation of the doctrine of stare decisis
is best explained by reference to the English translation of the Latin phrase. “Stare decisis”
literally translates as “to stand by decided matters”.

To serve as precedent for a pending case, a prior decision must have a similar question of law
and factual situation.

Stare Decisis

The phrase “stare decisis” is itself an abbreviation of the Latin phrase “stare decisis et non
quieta movere” which translates as “to stand by decisions and not to disturb settled matters”.

Glanville Williams describes the doctrine in practical terms: What the doctrine of precedent
declares is that cases must be decided the same way when their material facts are the same.
Obviously, it does not require that all the facts should be the same. We know that in the flux of
life all the facts of a case will never recur, but the legally material facts may recur and it is with
these that the doctrine is concerned.

Suppose that in a certain case facts A, B and C exist, and suppose that the court finds that facts B
and C are material and fact A immaterial, and then reaches conclusion X. Precedent enables us to
say that in any future case in which facts B and C exist, or in which facts A and B and C exist the
conclusion must be X. If in a future case A, B, C, and D exist, and the fact D is held to be
material, the first case will not be a direct authority, though it may be of value as an analogy.

It follows from William’s analysis that the addition of fact D to a future case means that
conclusion X may or may not follow. In other words, the presence of a new fact D may have the
effect of distinguishing the future case from the precedent or conversely the precedent may be
extended to apply to the future case.

In Sweney v. The Department of Highways, Middleton J.A. for the Ontario Court of Appeal
stated: But, in my view, liberty to decide each case as you think right, without regard to
principles laid down in previous similar cases, would only result in a completely uncertain law in
which no citizen would know his rights or liabilities until he knew before what Judge his case
would come and could guess what view that Judge would take on a consideration of the matter,
without any regard to previous decisions.

Using the Past in the Present

Historically, various judicial systems have used past decisions to help decide present cases.

But only Common Law requires judges to follow/use past decisions, even those with which they
disagree.

Civil Law Systems believe stare decisis interferes:

 with judge's ability to interpret the law

 legislature's ability to make the law

HISTORY OF THE DOCTRINE

The Origins of Stare Decisis

Few records of case decisions in early common law

Old English decisions were merely based upon the court's sense of justice. They represented the
will of the King and enunciated no legal rules or reasons.

Judges and lawyers brought knowledge and experience into decision making process.

 Thus, past cases were used, but not formally

 Certainly not binding

Documenting Cases

By mid-1400s the Year Book started setting forth more details of the cases decided by the
common law courts.

Yet judges did NOT feel they were BOUND to follow past decisions.

The Growing Role of Precedent

Late 1500s/Early 1600s – precedent on procedural matters

Influence of Edward Coke

 The Reports

 Use of Precedent to curb power of King and sometimes Parliament

But still no binding precedent

 Moving Toward Binding Precedent

Increased quality of reports: the efficient operation of which was vital for the adoption of a
doctrine of binding precedent, was modernized by the establishment of an incorporated body
charged with just this function.

The increasing amount of commercial activity brought with it the desire for predictability and
certainty in the law so that businessmen could arrange their affairs with confidence.

The hierarchy of courts as we know it today began to take shape and the judicial functions of the
House of Lords were placed in the hands of eminent lawyers.

Amidst all these changes the doctrine of binding precedent took root, and judges sensed the need
to deliver reasoned judgments which could be cited and followed by later courts.

1800s saw acceptance of binding precedent

From principles of adhering to decisions to a set of rules

WAYS OF DEVELOPING A PRECEDENT

1. When there is no existing law

Judges must rely on common sense and the principles of law for guidance in making their
decision.

Many laws regarding murder have been created in this way: e.g. provocation and self-defence.

2. When legislation is interpreted

Parliament is responsible for creating legislation, but courts must interpret it, or establish the
meaning of certain words.

For example, a person can only be guilty of burglary if they enter a “building” – the court must
decide what constitutes a building.

Justifications for Precedent

Equality
Judicial Efficiency

Certainty/Predictability

Appearance of Justice

The doctrine achieves equality by treating like cases alike.

Stare decisis promotes efficiency. Once a court has determined an issue, subsequent courts need
not expend the time and resources to reconsider it.

Stare decisis promotes certainty because the law is then able to furnish a clear guide for the
conduct of individuals. Citizens are able to arrange their affairs with confidence knowing that the
law that will be applied to them in the future will be the same as is currently applied.

Stare decisis promotes the appearance of justice by creating impartial rules of law not
dependent upon the personal views or biases of a particular judge. It achieves this result by
impersonal and reasoned judgments.

Intro to Using Precedent

Few disputes have exactly the same facts or legal issues.

Job of an Advocate is to convince judge that past decision is similar factually and legal issues

Underlying rationale of past decision may help to determine its precedential value.

This is not an exact science!

Arguments Against Precedent

Inequality

Rigidity

Stagnation

Inefficiency (Promotes laziness)

Separation of Powers?

 Judge made law? Isn't law-making part of the legislative branch?

Keeping it in Perspective

Not all decisions create binding precedent.

Most decisions are made by lower courts.

Only published decisions form binding precedent!

Quick Note about Statutes

Courts acknowledge that statutes override “judge-made law.”

Stare decisis applies to rulings interpreting statutes as well as common law

OPERATION OF THE DOCTRINE

This doctrine works in two ways:

1. Vertically – a superior court binds all court subordinate to it and the court has power to
overrule principles of law laid down by courts of inferior jurisdiction

2. Horizontally – a court (usually appellate court) is bound by its own previous decision,
the decisions of its predecessor and the decision of courts of coordinate jurisdiction.

BINDING AND PERSUASIVE PRECEDENTS

Binding Precedent

Where binding precedent occurs, a court MUST follow the precedent already set, whether it
believes the decision is correct, or not.

In Uganda, a precedent is binding if it has been set by a higher court, in similar cases.

A judge is only bound by the ratio decidendi. Obiter dicta do not create precedent.
The Binding Element of Precedent

Every Court Decision Must Contain:

1. Findings of material facts

2. Statements of principles of law applicable to the legal issues raised by the facts AND

3. A judgment (or judgments) based upon the application of the legal principles to the facts.

The parties care about #3

Future parties in lower courts will care about #2

 And this is the only part that is binding on future parties.

Persuasive Precedent

Could include statements made by a judge, or decisions made by courts in other jurisdictions.

May influence a decision, but a court is not required to follow it.

The degree of persuasiveness is dependent upon various factors, including:

1. the nature of the other jurisdiction;

2. the level of court which decided the precedent case in the other jurisdiction;

3. the date of the precedent case, on the assumption that the more recent the case, the more
reliable it will be as authority for a given proposition, although this is not necessarily so;

4. on some occasions, the judge’s reputation may affect the degree of persuasiveness of the
authority

In Summary

To work with binding precedent, one must understand:

 how to find the legal principle that formed the Ratio

  how to determine what facts are relevant to the decision

 the level of the court that made the rule/ratio and

 whether the court you are in is bound by it

THE CONCEPT OF RATIO DECIDENDI

Ratio decidendi is a phrase derived from Latin, which means the reason or rationale for the
decision.

Primarily used in legal terminology, ratio decidendi refers to the rationale that a judge or court
uses to support a decision or judgment in a court case.

Sir Rupert Cross defined the ratio decidendi as any rule of law expressly or impliedly treated by
the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning
adopted by him... (Precedent in English Law).

Prof. Michael Zander states that the ratio is a proposition of law which decides the case, in the
light or in the context of the material facts... (Law Making Process).

There may be legal, social, ethical, or moral principles underlying a court decision, and it is these
principles that collectively form the ratio decidendi.

This is the part of the case that is said to possess authority and that is binding. This is the rule
upon which the decision is founded.

There is a relationship between material facts, issues, holding, and ratio decidendi.

Finding ratio decidendi of a case is an important part of the training of a lawyer. However, for
various reasons, it may be difficult to determine the ratio decidendi of a particular case, but the
best way to do so is to read the whole court opinion carefully to discern the reasons for the ruling
on the case.

FINDING THE RATIO OF A CASE

The Debate
The issue of what exactly it is that constitutes the ratio of a case is one that has been hugely
debated by theorists of the common law.

The two most plausible theories are those of A.L. Goodhart, and of Cross and Harris.

Goodhart has famously suggested that the ratio decidendi of a case is constituted by the principle
that derives from the material facts of the case, or, more precisely, the facts that the judge treats
as material facts in relation to the judgment the judge issues.

Goodhart is careful to note that facts may be treated as material either implicitly or explicitly.

Goodhart: the judge reaches a conclusion upon the facts as he sees them. On the face of these
facts he bases his decision or judgment.

Goodhart is right to point out that, in the total fact situation of any actual case, some facts will
matter from the legal point of view and some will not. That the accused was seen driving away
from the bank at high speed moments after the robbery matters; that the accused was driving a
Ford does not; unless matter of identification are at issue, in which case it might matter; and so
on.

When you are analyzing a case, you must state the facts as seen by the judge and his conclusion
based on them. It is by his choice of the material facts that the judge creates law; it is essential to
know what the judge has said about his choice of the facts.

Goodhart proposes the following steps to be followed in determining the ratio decidendi.

1. Ascertain the material facts on which the judge has based his conclusion;

2. If there is no opinion on the statement of facts, then assume that all the facts given in the
report (judgment) are material except those which on the face of it are not. Then
immaterial facts are those which relate to place, person kind and amount (unless they
have been stated by the judge to have been material facts).

3. The conclusion reached by the judge on the basis of material facts constitutes the
principle of the case.
One important reason in favour of Goodhart’s view is that the material facts are usually
relatively easy to determine, and they will not change as time goes by.

The objection to his view is that the ratio is typically broader in scope than any recitation of
material facts.

In the famous case of Donoghue v Stevenson [1932] AC 567, the material facts concerned a
decomposed snail in a ginger beer bottle, but unquestionably the ratio decidendi of the case was
some broader principle concerning the liability of manufacturers for harm occurring to ultimate
consumers.

The same case shows even the concept of `fact’ to have some fuzziness. The case went to the
House of Lords on the basis that, if the facts were as the plaintiff alleged, did the defendant have
a case in law to answer? The `material facts’ that produced such a substantial change in the
common law of negligence were in reality `alleged material facts. It is a matter for further
contemplation whether the `material fact’ view can be emended to deal with these concerns.

Cross and Harris propose the following understanding of ratio decidendi: `The ratio decidendi of
a case is any rule of law expressly or impliedly treated by the judge as a necessary step in
reaching his conclusion, having regard to the line of reasoning adopted by him, or a necessary
part of his direction to the jury.’

The word ‘necessary’ is used in the sense of ‘essential to the working of a judicial system’.

Such an account captures many of the fixed points enumerated above, and is therefore an
attractive proposal.

Whatever the ratio decidendi of a case is, it is something that is determinative or dispositive.
That is, the ratio is not merely necessary but also in some sense sufficient for the decision in the
case.

It is not clear how Cross’ and Harris’ proposal explains this element of sufficiency.

The search for the ratio of a case is a process of elucidation; one searches the judgment for the
abstract principles of law which have led to the decision and which have been applied to the facts
before the court. As an example, the ratio in Donoghue v. Stevenson would be that a person
owes a duty of care to those who he can reasonably foresee will be affected by his actions.

Some helpful techniques for determining ratio decidendi include isolating the facts that are
material, relevant to the court ruling, and identifying legal precedent that the court relied on in
reaching its decision.

Under common law principles, the applicable laws, as applied to the facts of a specific case,
directly determine the correct outcome or holding of a case.

The ratio decidendi is one of the most powerful tools available to a lawyer. With a proper
understanding of the ratio of a precedent, the advocate can in effect force a lower court to come
to a decision which that court may otherwise be unwilling to make.

Ratio Decidendi and Complicating Factors

Complicating the analysis of a case ruling for its ratio decidendi is that the majority of court
opinions contain extraneous information that may cloud the true rationale of the case.

The court ruling may include facts that are not always pertinent to the main issues in the case and
statements on the law that are not directly relevant to the main point of the ruling.

This additional information can distract the reader from the main point of the court ruling and
may confuse the point of law that the court is trying to make. Legal scholars call these additional
fact obiter dicta.

There are a range of situations which complicate statements about bindingness or strength of a
given precedent.

Multiple Judgments/Issues

Cases may differ depending on whether they contain a single opinion or several opinions.

The determination of ratio decidendi becomes easier if there is only a single opinion or all the
opinions are in agreement. What happens when there is more than one judgment?
In the appellate courts, depending upon the importance of the case, three, five or seven judges
can sit. Each can give judgment, although often a judge says ‘I concur with my learned colleague
Lord Bridge’ or some other similar phrase.

At times, there may be one or more judgment disagreeing with the majority view that a certain
litigant could win the case.

There is, of course, no problem where it is clear that the majority agree with the same statements
of the application of the law. But what if the different judges agree on outcome and disagree on
reasons for the outcome?

In such cases, there is no doubt that each reasoned judgment has a ratio. But can it be said that
there is ratio of the court?

Lack of agreement among judges in relation to the reasoning process can weaken the
precedential value of the case, because judgments in cases can result in different scenarios.

For example:

a) The majority of judges agree to dismiss/allow the appeal on one ground. A minority of
judges agree with the majority as to outcome, but base their decision on different ground.

If a case involves facts A, B, and C and the defendant is held liable. however, two of the three
judges had agreed that fact A was the only material one and that the others were immaterial, then
the case would be a precedent one on this point, though the third judge had held that facts B and
C were material.

In the above situation, the ratio of the majority is binding and strong. The ratio of the minority is
entitled to weighty consideration in a future case;

b) The majority agree to dismiss/allow the appeal but there is no common ground as to why
the appeal has been dismissed or allowed.
In case the several judges agree in the result, but differ in the material facts on which they are
based, the principle is limited to the sum of all the facts considered material by the various
judges.

Thus, a case involves facts A, B, and C and the defendant is held liable. The first judge finds that
facts A is the only material fact, the second finds that fact B is material and the third finds that
fact C is material. The principle of the case is therefore, that on the material facts A, B, and C,
the defendant is liable.

In the above situation there is no clear majority in favour of any ratio. The case therefore lacks
authority for the narrowest interpretation of the ratio. But it is impossible to state how such a
case is viewed other than to treat it as a weak authority

Furthermore, it is possible that a case may have more than one ratio decidendi. This may occur
where a court is asked to decide several issues, in which case each answer to the question posed
must be based upon a rule.

This may create two or more rationes decidendi depending upon the number of issues before the
court.

Alternative Issues

It would seem that if a judge dissents as to the decision to be reached in a case then the judgment
is to be ignored as far as the doctrine of precedent is concerned; the dissenting judgment will not
be part of the ratio decidendi of the case.

However, such dissent may point to an alternative view of the law which may be accepted by a
later, but higher court. For example, see the dissenting judgment of Denning LJ in Candler v.
Crane Christmas & Co. (1951) 2 KB 164 which was approved in Hedly Byrne & Co. Ltd v.
Heller & Partners Ltd (1964) Ac 465, while the case itself was overruled.

Decisions without Reasons or Points of Law

The root reason for all these complexities is that, unlike many of his Continental brothers, an
English judge is under no obligation to produce reasons in his judgment. Reasons are not legally
required and a decision with no reasons is nevertheless binding.

In cases where the reasons are unmarked, identifying the ratio can be difficult as it is not clearly
indicated in a judgment.

Similarly, some old cases are weak authority as they do not state the reason for the decision.

TECHNIQUES OF HANDLING THE RATIO

Judges may avoid following a previous precedent by:

 Overruling

 Reversing

 Distinguishing

 Conflicting Decisions

 Decisions Made Per Incuriam

Overruling

This is where a court higher in the hierarchy departs from a decision made in a lower court. The
previous decision is no longer binding. This may be because:

 Related principles of law have developed making old rule hollow (useless).
  Facts have changed or are different so that old rule is no longer justified.

 Prior judicial ruling was clear error and enforcement is nearly impossible.

 Old rule is no longer workable.

R v R [1991] 3 WLR 767 House of Lords: The defendant was charged with the attempted rape
of his wife. At the time of the offence the couple had separated although no formal legal
separation existed and neither party had petitioned for a divorce. Held: The House of Lords
overturned the matrimonial exception to rape. His conviction for rape was upheld.

Lord Keith: "Since then the status of women, and particularly of married women, has changed
out of all recognition in various ways which are very familiar and upon which it is unnecessary
to go into detail. Apart from property matters and the availability of matrimonial remedies, one
of the most important changes is that marriage is in modern times regarded as a partnership of
equals, and no longer one in which the wife must be the subservient chattel of the husband.
Hale's proposition involves that by marriage a wife gives her irrevocable consent to sexual
intercourse with her husband under all circumstances and irrespective of the state of her health or
how she happens to be feeling at the time. In modern times any reasonable person must regard
that conception as quite unacceptable."

This can also occur in a court of the same level in the circumstances outlined above e.g.:

British Railways Board v Herrington [1972] AC 877 overruled Addie v. Dumbreck [1929]
AC 358

British Railways Board v Herrington: A six-year-old boy was electrocuted and suffered severe
burns when he wondered from a play park onto a live railway line. The railway line was
surrounded by a fence however, part of the fence had been pushed down and the gap created had
been used frequently as a short cut to the park. The defendant was aware of the gap in the fence
which had been present for several months, but had failed to do anything about it. Under existing
authority of Addie v Dumbreck no duty of care was owed to trespassers. However, the House of
Lords departed from their previous decision using the 1966 Practice Statement and held that the
defendant railway company did owe a duty of common humanity to trespassers.
Reversing

This is where a higher court departs from the decision of the lower court on appeal.

R v Woollin: D threw his 3-month-old baby at the wall and he died as a result of the injuries.
The Court of Appeal upheld his conviction of murder on the grounds that the outcome was
‘virtually certain’. However, the House of Lords reversed their decision, and replaced the
conviction for murder with one for manslaughter.

R v Kingston: D had pedophilic tendencies and X wanted to blackmail him. X invited D round
for tea, drugged his drink and put him into a bedroom with V. D abused V and was charged. The
original trial held that he was guilty, even though his intoxication was involuntary. The Court of
Appeal reversed this, and then the House of Lords reinstated the original verdict.

Distinguishing

This is where the facts of the case are deemed sufficiently different so that the previous case is
no longer binding.

Balfour v Balfour: Mr. Balfour and his wife went to England for a vacation, and his wife
became ill and needed medical attention. They made an agreement that Mrs. Balfour was to
remain behind in England when the husband returned to Ceylon (Sri Lanka) and that Mr. Balfour
would pay her £30 a month until she returned. This understanding was made while their
relationship was fine; however, the relationship later soured. The lower court found that there
was sufficient consideration in the consent of Mrs. Balfour and thus found the contract binding,
which Mr. Balfour appealed.

Issue: Are offers between husband and wife legally binding?

Appealed allowed: Atkin held that the law of contracts is not made for personal family
relationships. As there was no intent to be legally bound when the agreement was made, there
can be no legally binding contract. Atkin holds that if the courts were to allow all wives to come
to court when agreements had been broken with their husbands then the courts would be overrun
with frivolous cases.

What is the ratio in this case?

Arrangements made between husbands and wives are not generally contracts as the parties do not
intend to be legally bound by the agreements.

In Merritt v Merritt [1970] 1 WLR 1211: A husband left his wife and went to live with another
woman. There was £180 left owing on the house which was jointly owned by the couple. The
husband signed an agreement whereby he would pay the wife £40 per month to enable her to
meet the mortgage payments and if she paid all the charges in connection with the mortgage until
it was paid off, he would transfer his share of the house to her. When the mortgage was fully
paid, she brought an action for a declaration that the house belonged to her.

Held: The agreement was binding. The Court of Appeal distinguished the case of Balfour v
Balfour on the grounds that the parties were separated. Where spouses have separated it is
generally considered that they do intend to be bound by their agreements. The written agreement
signed was further evidence of an intention to be bound.

Conflicting Decisions

This is where there is another precedent of equal weight which stands for the opposite
proposition and argument is made that it is that other case which the court should follow.

This is related to but different from the “per incuriam argument”

Why?

It does not necessarily challenge either decision as having been given per incuriam. The rule is
rather that the court may decide which one of the conflicting decisions to follow.

In Young v. Bristol Aeroplane Co., [1944] 1 K.B. 718, three exceptions to stare decisis rule
were stated. One is that “the court is entitled and bound to decide which of two conflicting
decisions of its own it will follow”.
Another authority: where two cases cannot be reconciled, the more recent and the more
consistent with general principles ought to prevail. See Campbell v. Campbell (1880) 5 AC
787.

Decision Made Per Incuriam

Per incuriam, literally: "through lack of care “.

Judgment of a court decided without reference to a statutory provision or earlier judgment which
would have been relevant.

General rule established in Morelle Ltd v Wakeling [1955] 2 QB 379

1. decisions given in ignorance or

2. forgetfulness of some inconsistent statutory provision or

3. forgetfulness of some authority binding on the court concerned:

so that some part of the decision or some step in the reasoning on which it is based is found to be
demonstrably wrong.

The Rule Relating to Judgment Per Incuriam

Decision does not then have to be followed as precedent by a lower court.

In R v Northumberland Compensation Appeal Tribunal ex parte Shaw [1951] 1 All ER 268,

a divisional court of the King's Bench division declined to follow a Court of Appeal decision on
the ground that the decision had been reached per incuriam as a relevant House of Lords decision
had not been cited to the Court of Appeal.

The Concept of Obiter Dictum

Components of a Judgment: Ratio Decidendi and Obiter Dicta.

Obiter dictum: mere saying by the way; a chance remark in the course of the judgment by the
judge(s) which is not binding.
In judgments, judges will say many things e.g. review the agreed facts; review applicable
legislation; review existing decisions; review submissions by counsel; present patterns of
reasoning; and ultimately render a verdict.

The ratio decidendi will be found among all this material.

The ratio will typically not be found among the various reviews mentioned above, nor in the
verdict itself.

Ratio is typically found in the reasoning presented for the verdict.

The remarks are known as obiter dicta: expressions of opinion by a judge that are external to the
dispositive reasoning in the case.

Obiter dicta may be respected by a future judge or court depending on the reputation of the
judge, the eminence of the court and circumstances under which it was announced.

Generally, not regarded as binding

Why?

It may have been made without full consideration of the cases on the point or full consideration
of all the consequences that may follow from it.

The problem remains, though: how can one distinguish in the reasoning of a judge the part that
constitutes the ratio decidendi and the part that constitutes obiter dicta?

PRECEDENT AND SUPERIOR COURTS IN UGANDA

In Uganda, a decision will have the weight of law as precedent if it is given by a judge of court
of record.

Courts of record - under Article 129 of the Constitution: The High Court, Court of Appeal and
the Supreme Court.
Vertical Application

Vertical application operates along hierarchy of Courts where higher Courts bind lower Courts:
P.K Ssemwogerere & Anor v. Attorney General.

Within the Uganda's legal system, the ratio decidendi of every Supreme Court decision will bind
all lower Courts.

The High Court judges are bound to follow the ratio decidendi of every case decided by the
Supreme Court and Court of Appeal.

The Magistrates Court and all other subordinate Courts are bound not only to follow the
decisions of the Supreme Court and Court of Appeal but are also obliged to follow the decision
of the High Court.

Horizontal Application

1. The Supreme Court

The general rule is that the Supreme Court is required to follow its previous decisions.

The horizontal application of precedents is constitutionalized in Article 132(4) – that the

Supreme Court may while treating its own previous decisions as normally binding differ from
those previous decisions when it appears it is right to do so.

2. Court of Appeal

No similar provision in the Constitution on horizontal application of the doctrine in the Court of
Appeal and High Court.

The position was clarified by Odoki, J. in P.K. Ssemwogerere and Zachery Olum v. A.G that
the Court of Appeal is normally bound by such decisions except under a few circumstances set
out in Young v. Bristol Aeroplane Co Ltd.
The UK Court of Appeal held that stare decisis should be followed by the court subject to
following qualification:

1. The Court is entitled and bound to decide which of the two conflicting decisions of its
own it will follow.

2. The Court will be bound to refuse to follow the decision of its own which though not
expressly overruled cannot stand decision of the House of Lords.

3. The Court is not bound to follow a decision of its own, if it is satisfied that the decision
was given by per incuriam.

The Court of Appeal should normally be bound by previous decision of its own. But there is a
great difference between a final Court of Appeal and a subordinate Court of Appeal. If it is
contented that the decision of the subordinate Court of Appeal was wrong, it would always be
open to have it tested and if necessary, rectify it in the final Court of Appeal.

3. High Court

The High Court is not bound by its previous decision hence not bound by the decision of another
High Court.

However, in practice judges at this level always make references and consider decisions of their
colleagues.
TOPIC 3: STATUTORY INTERPRETATIONS

RULES OF INTERPRETATION

1. Literal Rule
2. Golden Rule
3. Mischief Rule
4. Purposive Approach

OTHER RULES OF LANGUAGE

1. Ejusdem Generis Rule

2. Expressio Unius Exclusio Alterius
3. Noscitur A Sociis
4. Aids To Interpretation
5. Internal
6. External
 7. Presumptions

Objectives

By the end of the session, all learners will:

1. Be able to explain the main approaches to interpretation, from literal to purposive.

2. Be able to apply these approaches to an Act of Parliament.

OVERVIEW

Separation of Powers – Parliament makes the laws; judges apply them.

But words can be blunt – more than one meaning, old fashioned language, absurd results.

By what method(s) do the judges interpret the meaning of an Act of Parliament?

Do they make law or just apply it?

WHO NEEDS TO INTERPRET STATUTES?

Judges when

1. Deciding civil cases

2. Directing the jury on points of law in criminal cases

Lawyers when advising their clients

Law students when writing essays!

THE NEED FOR STATUTORY INTERPRETATION

Broad terms

Ambiguity (more than one meaning)

A drafting error
Changes in the use of language

Unforeseeable Development

THE NATURE OF LANGUAGE

Dr. Richard Carrier (philosopher):

Words are code signals that humans use to share experiences with other humans.

“As long as our codebook is the same...we will be successful in our communications. Of course,
this is an ideal dream. In reality, no two codebooks are the same, and most code-words are
ambiguous...and most have many different meanings which can only be determined from
context.”

“The proper definition of a word, as opposed to its lexical definition found in dictionaries ... is
fixed by how that word is actually used in practice.”

EXAMPLE

Offences Against the Person Act 1861

s20 Inflicting bodily injury, with or without weapon

Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon
any other person, either with or without any weapon or instrument, shall be guilty of a
misdemeanour, and being convicted thereof shall be liable . . . to be kept in penal servitude ...

What do we think about the language used?

EXAMPLE

David has been Arrested for being in the park and charged under the following section:

“men with beards and moustaches are prohibited from parks.”

Is David guilty?
EXAMPLE

Words derive their meaning from their context

What is a Person?

Every person willfully, openly, lewdly and obscenely exposing his person with intent to insult
any female…

One word used twice – 2 meanings

EXAMPLE

A Statute may state:

a. Public Hospital or School

Does it include just public schools or any school?

b. Every owner of a vehicle in Uganda

What or who has to be in Uganda – the owner or the vehicle?

c. No person shall enter or remain in a bathhouse suffering from a communicable disease

Who has the disease the person or the bathhouse?

How do judges read and interpret Acts of Parliament?

RULES OF INTERPRETATION

There are rules of interpretation adopted by the courts over the years. These include:

1. Literal Rule

2. Golden Rule

3. Mischief Rule
 4. Purposive Approach

Equally there are other Rules of Language:

1. Ejusdem Generis

2. Expressio unius exclusio alterius

3. Noscitur a sociis

LITERAL RULE

Interpreting the literal meaning of the words in the Act.

Giving words their plain, ordinary, dictionary meaning

R v Judge of the City of London Court (1892)

Lord Esher: “If the words of the Act are clear then you must follow them even though they lead
to a manifest absurdity. The court has nothing to do with the question whether the legislature
has committed an absurdity.”

Magor and St Mellons v Newport Corporation (1950)

Lord Scarman: “We are to be governed not by Parliament’s intentions, but by Parliament’s
enactments.”

Viscount Simmonds argued that for judges to change the wording of statutes would amount to a
“naked usurpation of the legislative function”

London & North Eastern Railway Co v Berriman (1946)

Widow tries to claim compensation after husband killed while oiling railway tracks.

Fatal Accidents Act gave compensation to those killed while ‘relaying’ or ‘repairing’ the track.

Her husband was actually ‘maintaining’ it.

So, she got nothing.

Cheeseman v DPP (1990)

Police officers witnessed a man masturbating in a public toilet.

Town Police Clauses Act 1847 made it an offence to do so in front of “passengers” on the street

The Act defined “street” as any public place.

Cheeseman v DPP (1990)

Lord Bingham: referred to an 1847 dictionary and decided that “passengers” meant “anyone
using the street for ordinary purposes”.

The police were using it for a special purpose and thus were not passengers.

GOLDEN RULE

This is a modification of the literal rule - judges should use the literal rule unless it would
produce an absurd result.

River Wear Commissioners v Adamson (1877):

Lord Blackburn - “giving the words their ordinary signification, unless when so applied they
produce an absurdity or inconvenience so great” as to convince the court that it could not have
been Parliament’s intention to give the words their ordinary meaning.

Two forms: narrow and broad.

Narrow Golden Rule:

Jones v DPP (1962) per Lord Reid: “If [words] are capable of more than one meaning, then
you can choose between those meanings, but beyond this you cannot go.”

Broad Golden Rule

Where words have a clear meaning, but following them would lead to a repugnant situation.

The court will modify the words of the statute to avoid this horrible situation.

Judicial law making?

Re Sigsworth (1935)

Administration of Estates Act 1925 entitled the son to inherit the benefit of his deceased
mother’s estate.

Son murdered his mother and wanted the estate.

So, the court altered the law to prevent him from inheriting.

J. Martin: “Where there is a problem with using the literal rule, the golden rule provides an
escape route.”

Re Sigsworth (1935)

Lord Denning: If Parliament overlooks a possibility like this, “we fill in the gaps”.

Adler v George (1964) S.3 of the Official Secrets Act 1920 made it an offence to obstruct a
member of the Armed Forces “in the vicinity of any prohibited place”.

The defendant was actually inside the prohibited place, rather than 'in the vicinity' of it, at the
time of obstruction.

He argued that the natural meaning of “in the vicinity of” meant near to, whereas the obstruction
had actually occurred in the prohibited place itself, an air force station.

The court held that while in many circumstances 'in the vicinity' could indeed only be interpreted
as meaning near to, in this context it was reasonable to construe it as including being within the
prohibited place.

MISCHIEF RULE
This is the oldest rule and was first used in Heydon’s Case in 1584.

In this case it was held that the court should consider the following:

1. What was the common law before the making of the Act?

2. What was the mischief (problem) for which the common law did not provide?

3. What was the remedy for this problem proposed by Parliament?

4. The true reason of the remedy

Essentially, what was the original problem and how was Parliament trying to plug it?

Smith v Hughes (1960)

Street Offences Act 1959, section 1(1): “It shall be an offence for a common prostitute to loiter
or solicit in a street or public place for the purpose of prostitution.”

House of Lords heard appeals from six women who have been on private balconies and behind
private windows touting for business.

Smith v Hughes (1960)

Lord Parker: “What is the mischief aimed at by this Act? Everybody knows that this was an Act
to clean up the streets, to enable people to walk along the streets without being molested...by
common prostitutes. Viewed in this way it can matter little whether the prostitute is soliciting
while in the street or is standing in the doorway or on a balcony, or at a window.”

Jones v Wrotham Park Settled Estates (1980)

Lord Diplock - the mischief rule should not be used in all cases, but only when the following
circumstances apply:

1. The mischief can be seen clearly from the Act

2. It was apparent that Parliament had overlooked the problem

 3. The words required to be added could be identified with a high degree of certainty

Royal College of Nursing v DHSS

Abortion Act 1967 – pregnancy must be terminated by a “registered medical practitioner”.

Could a nurse carry out the procedure?

Three judges said yes, two said no.

Majority view:

The mischief Parliament had been trying to remedy was the practice of dangerous abortions.

New techniques meant it was now safe for a nurse to carry out the procedure.

So even though the Act limits it to Doctors, they created a new permission for nurses to do it
too.

Minority view:

The words of the Act are clear: abortions are limited to trained Doctors.

The other three judges are not interpreting the Act but “redrafting it with a vengeance”.

PURPOSIVE APPROACH

This is a modern version of the Mischief Rule, but takes it further by not just looking at the evil
or mischief that Act was designed to put right, but looking for the purpose of the Act.

The UK Law Commission described it as looking for the “positive social purpose of the
legislation”

Pepper v Hart (1993) Lord Griffiths noted:

“The courts now adopt a purposive approach which seeks to give effect to the true purpose of
legislation and are prepared to look at much extraneous material that bears on the background
against which the legislation was enacted”
What is the purpose of the Act? What was Parliament hoping to achieve?

Magor and St Mellons v Newport Corporation (1950)

Lord Denning: “We sit here to find out the intention of Parliament and carry it out, and we do
this better by filling in the gaps and making sense of the enactment than by opening it up to
destructive analysis.”

Magor and St Mellons v Newport Corporation (1950)

Lord Scarman: “If Parliament says one thing but means another, it is not...for the courts to
correct it. We are to be governed not by Parliament’s intentions but by Parliament’s
enactments.”

RULES OF LANGUAGE

EJUSDEM GENERIS:

Latin for “of the same kind”.

Where a list of words is followed by general words, the general words are limited by the specific
words in the list.

if an Act used the phrase “dogs, cats and other animals” the phrase “and other animals” would
probably include other domestic animals, but not wild ones.

Powell v Kempton Park Racecourse (1899)

The Betting Act 1853 made it an offence to keep a house, office, room or other place for the
purposes of betting.
D charged with keeping a “house, office, room or other place for betting”.

He had been operating an outdoor betting stall.

HELD: Since the list is restricted to indoor places, so was the general phrase “other places”.

EXPRESSIO UNIUS EXCLUSIO ALTERIUS:

Latin: “The expression of one thing is the exclusion of another.”

Where there is a list of words not followed by general words, the Act only applies to the items in
the list.

If the Act specifically mentioned “Persian Cats” the term would not include other breeds of cat.

Tempest v Kilner (1846)

Statute of Frauds 1677 required a contract for the sale of goods, wares and merchandise of
more than £10 to be evidenced in writing.

Court held that this did not apply to a contract for the sale of stocks and shares.

NOSCITUR A SOCIIS:

Latin for “A word is known by the company it keeps.”

A word draws meaning from the other words around it.

The word must be looked at in context.

Look at other words in the section and other sections in the Act.

If a statute mentioned “cat baskets, toy mice and food”, it would be reasonable to assume that
“food” meant cat food, and dog food was not covered by the relevant provision.

Inland Revenue Commissioners v Frere (1965)

Section set out rules for “interest, annuities, or other annual interest”.
Because of the words “other annual interest”, the court decided that “interest” only meant annual
interest.

Pengelly v. Bell Punch Co. Ltd [1964] 1 WLR 1055

Whether a floor used for storage came under the Factories Act 1961, whereby 'floors, steps,
stairs, passageways and gangways' had to be kept free from obstruction.

The court held that as all the other words were used to indicate passage, a floor used exclusively
for storage did not fall within the Act.

AIDS TO INTERPRETATION

1. Intrinsic
2. Extrinsic

INTRINSIC

The Statute

The Long Title of the Act

The Preamble – sets out the need for the legislation and its intended effect

Headings

Marginal Notes

Schedules – Parts of the Act and may be looked at if there is ambiguity in the main body of the
Act

EXTRINSIC

The historical setting

Earlier case law

Dictionaries of the time

Previous Acts on the same topic

International treaties

Hansard

PRESUMPTIONS

The courts assume that certain points are implied in all legislations. These presumptions include
the following:

1. Presumption against injustice

That Parliament does not intend to perpetrate injustice through enactment of statutes.

For example, the Employers Liability Act 1969 provided that equipment includes any plant and
machinery, vehicles, and air craft: it was held that a worker injured in a ship has a remedy under
the Act even though ships are not mentioned in the definition because it would be unjust to
differentiate between accidents in aircrafts and ships.

R v. Secretary of State Exparte Marton London Borouder Council demonstrates that however
powerful presumption against injustice may be, it comes in common with all other presumptions
to be rebutted by the plain, clear and unambiguous language of a statute.

2. Presumption against deprivation of property.

Statutes empowering the acquisition of private property will be strictly construed against the
person seeking to rely on them. Where private property is taken away from the owner, the law
infers that compensation will be paid unless there are clear words in the statute to the contrary.

3. Presumption of strict interpretation of penal laws

Laws which impose criminal or other penalties are strictly construed - if the words are
ambiguous and there are two or more reasonable interpretation, the more lenient one is to be
given.
In Dickson V Fletcher, Brett (J) stated that those who contend that the penalty should be inflicted
must show that the words in the Act portray the same, they must fail if the words are merely
equally capable of a construction that would or would not inflict a penalty.”

4. Presumption of compliance with international law

The Courts must have regard to international law which bind a particular State while seeking to
resolve ambiguities within a statute.

In Brind v. Secretary of State for Home Department,

Lord Bridge stated “it is accepted by courts, that like any other treaty obligation which have not
been embodied in the law by the statute, the convention is not part of the domestic law.

That the courts accordingly have no power to enforce such conventional rights directly and that
if domestic legislations conflicts with the convention, the courts must nevertheless decline to
enforce it.

5. The presumption against absurdity

Griffin v. Oceanic Contractors, Inc., 102 S.Ct. 3245 (1982):

“It is true that interpretations of a statute which would produce absurd results are to be avoided if
alternative interpretations consistent with the legislative purpose are available.”

6. The presumption against retrospective application

There is perhaps no presumption in law that is most established than the general principle that a
retrospective operation is not to be given to a statute so as to impair existing rights or obligation.

In Ywebortew v. Kenderam
Under the Limitation Act enacted in 1948, the limitation period for bringing claims for personal
injuries was 12 months.

An accident occurred in April 1972.The limitation period expired in 1973.

However, in June 1974, the 1948 law was amended so that the limitation period became three (3)
years.

In the instant case proceedings begun in March 1975, so that the action was clearly statute barred
if the original limitation period was to be applied.

It was held that the action was statute barred on the basis that the purpose of amendment in June
1974 was to extend limitation period which had not yet expired and to extend those which would
arise in the future.

The purpose of the provision was not to deprive potential defendants of the defenses which they
already had, because to do so would be unfair

7. Legislature does not intent to remove any matters from the jurisdiction of the courts

8. Existing rights are not to be interfered with

9. Laws which create crimes should be interpreted in favour of the citizen where there
is ambiguity
TOPIC 5: INTERPRETATION OF DEEDS

1. Definition of deeds
2. Validity of a deed at common law
3. Types of deeds
4. How to interpret deeds
5. Documents often found with deeds
6. The structure of a deed
7. Recording (real estate)
8. Title deed
9. Wild deeds

By the end of the session, all learners will:

 1. Be able to explain the meaning of a Deed

2. Be able to explain the different types of a Deed

3. Know what amount to a valid will under Common Law

4. Learn the essential skills of interpreting a Deed

5. Know the structure of a Deed

6. Be in a position to register a Deed

7. Know the rationale of registering a Deed

8. Know the different terminologies used in interpreting a Deed

DEFINITION OF A DEED

This is any document affecting title i.e. proof of ownership of the land in question

Any legal instrument in writing which passes, affirms or confirms something which passes an
interest, right, or property and that is signed, attested, delivered and in some jurisdiction sealed

A Deed can be unilateral or bilateral

Deeds include conveyances, commissions, licenses, patents, diplomas and conditional powers of
attorney is executed as Deeds

VALIDITY OF A DEED AT COMMON LAW

For a Deed to be valid it must fulfil the following requirements:

i. It must state on the face of it that it is a Deed, using wordings like “This Deed…” or
“Executed as a Deed”;

ii. It must indicate that the instrument conveys some privilege or thing to someone by using
the word hereby or the phrase by these presents in the clause indicating the gift;
 iii. The grantor must have the legal ability to grant the thing or privilege and the grantee
must have the legal capacity to receive it;

iv. It must be executed by the grantor in presence of a prescribe number of witnesses known
as instrumentary witnesses (known as being in solemn form);

v. In some jurisdictions, a seal must be affixed to it. Originally, affixing seals made persons
parties to the Deed and signatures were optional, but most jurisdictions made seals
outdated and now the signature of the grantor and witnesses are primary;

vi. It must be delivered to (delivery) and accepted by the grantee (acceptance); and

vii. It should be, but not necessarily acknowledged before a competent officer, most often a
registrar (Deeds Office, Deeds Registry) or notary public

TYPES OF DEEDS

The following are the most usual types of a Deed:

i. Conveyance

ii. Bargain and Sale Deed

iii. Quitclaim Deed

iv. Deed of Trust

CONVEYANCE

These are transfers of land from one party to another usually for money
Early forms of conveyance included feoffments, surrenders, and admissions at manor courts (if
the property was copyhold), final concords, common recoveries, bargains, sales, leases and
releases

Conditions attached to the acceptance of a Deed are known as covenants

A Deed indented or indenture is one executed in two or more parts according to the number of
parties which were formally separated by cutting in a curve or indented line known as the
chirograph

A Deed Poll is one executed in one part by one party having the edge polled or cut even and
includes simple grants and appointments

In the transfer of real estate, a Deed conveys ownership from the previous owner (the grantor) to
the new owner (the grantee) and can include various warranties

The precise name and nature of these warranties differ by jurisdictions.

Often however, the basic differences between them is the degree to which the grantor warrants
the title

The grantor may give a general warranty of title against any claims or the warranty may be
limited to only claims which occurred after the grantor obtained the real estate

The latter type of Deed is usually known as a Special Warranty Deed, while a General
Warranty Deed is normally used for residential real estate sales and transfers

BARGAIN AND SALE DEED

This implies that the grantor has the right to convey title but makes no warranties against
encumbrances

This type of Deed is most commonly used by court officials or fiduciaries that hold the property
by force of law rather than title, such as properties seized for unpaid taxes and sold at Sheriff’s
sale, or an executor
QUITCLAIM DEED

This is a Deed by which the owner of a piece of real property, called the grantor, transfers any
interest to a recipient, called the grantee.

The owner/grantor terminates (“quits”) any right and claim to the property, thereby allowing the
right or claim to transfer to the recipient/grantee.

DEED OF TRUST

In some jurisdictions, a Deed of Trust is used as an alternative to mortgage

It is not used to transfer property directly

It is commonly used in some States such as California for example to transfer title to land to a
trustee which holds it as security for a loan (debt) between a borrower and lender

When the loan is paid off, title is transferred to the borrower by recording a release of the
obligation and the trustee’s contingent ownership is extinguished

Upon default, the trustee will liquidate the property with a new Deed and offset the lender’s loss
with the proceeds

INTERPRETATION OF DEEDS

Deeds often seem difficult to interpret even if you are only reading a catalogue of their contents

Interpretation is often easier if you understand their layout and know what some key words and
phrases imply

Some of the key words in a Deed:

Mortgage: a person borrowing money on security of their house

Before the middle of the nineteenth century, most mortgages did not involve banks or building
societies but were between individuals with the person lending charging interest
Bonds: to further secure conveyances, mortgages etc. the person making the bond was ‘bound
over’ to pay a certain amount which became forfeit if they did not do certain things (like repay a
loan) or had not told the truth (such as selling land which did not belong to them when they
conveyed it)

Grants of Easements: for example, allowing someone to have a right of way across the land

Maps/Plans: these are often drawn in the margins of conveyances showing the land to be
conveyed or mortgaged

Wills and Administrations: in which the land owner devised (i.e. willed) their land to others

OTHER DOCUMENTS OFTEN FOUND WITH DEEDS

Abstracts of Title: shows how title to the land passed to the current owner. Such an abstract may
go several hundred years or just a few months

Epitome of Title: where a property is unregistered, this is a bundle of documents (previous

Deeds) pulled together to prove the current legal owner’s ownership of the title

This is needed so that the seller can prove they have the right to sell the property, as well as to
show anything that affects it; such as rights or easements

This is becoming rarer as it has now been compulsory to register the title with the Land Registry
every time it is sold for a number of years

Parish Register Transcripts: to prove the status of individuals with claim to title to the land
concerned e.g. whether they were dead or married or had children

Sale Particulars: owners often kept a copy of the sale or estate agent’s particulars with the title
deeds

THE STRUCTURE OF A DEED

Most Deeds are broken down into a number of sections:

Parties: the people involved in the Deed. Important to remember that the first party is usually the
one instigating the action i.e. the person borrowing money (if a mortgage), selling his/her
property (if conveyance) etc.

Recitals: these pieces of information tell you what has led up to the present Deed

Testatum: a command to witness which acknowledges the payment and receipt of the
consideration and signals the beginning of the operative part: usually begins with “Now this
Deed witnesseth as follows….

Consideration: how much money (or anything else) is involved

Operative Parts: what is actually happening, e.g. a conveyance from one party to another

Parcels Clause: clause detailing the location and description of the property being conveyed

Habendum: from the Latin phrase “Habendum et Tenendum” meaning “to have and to hold”
this indicate the party who now has title to the land or any trustee who may hold it on his behalf

Tenendum: “to have and to hold”, formally referring to the tenure by which the estate granted
was to be held, though now completely symbolic

Reddendum: reserves something to grantor out of thing granted, such as a rent under the
formula “yielding and paying”

Warranty: grantor warrants the title to the grantee

General: when the warrant is against all persons

Special: when it is only against the grantor, his heirs, and those claiming under him

Uses: any condition on the person who now possess the land e.g. who will inherit the title on the
death of the current title holder

Covenants: what the parties promise to do now e.g. produce earlier deeds as proof of title to the
land if title is challenged
Witnesses: people witnessing the signatures of the parties

Testimonium: attest to the due execution of a Deed or instrument – e.g. in Uganda: In Witness
Whereof, the parties to these presents have hereunto set their hands and seal

RECORDING (REAL ESTATE)

Usually the transfer of ownership of a real estate is registered at a cadastre in the UK.

In most parts of the US, deeds must be submitted to the Recorder of Deeds who acts as a cadastre
to be registered

An unrecorded deed may be valid proof of ownership between the parties but may have no effect
upon third-party claims until disclosed or recorded

In Uganda, such deeds may be registered with the Registrar of Documents under Registration of
Documents Act, Cap 81 Laws of Uganda, 2000 edition)

Endorsements: things literally written on the back of the Deed. These often include receipts for
money paid, redemption of mortgages or subsequent sale of the part of the land

Conclusion: execution and date

TITLE DEED

These are documents showing ownership, as well as rights, obligations or mortgages on the
property

In many jurisdictions, compulsory registration has been required for all properties mortgaged or
transferred

The details of rights, obligations and covenants referred to in deeds will be transferred to the
register

WILD DEEDS
A wild deed is a recorded deed that is not in the chain of title because a previous instrument
connected to the chain of title was not recorded.

Example: John sells his land to Henry, but Henry does not record his deed. Henry later sells the
land to Cooper, and Cooper records her deed. But because the previous deed (the deed from John
to Henry) was not recorded, Cooper's deed is outside the chain of title. In a title search, someone
looking up John's name in the grantor index would find no indication that John conveyed the
property, and nothing would lead the searcher to Cooper's deed

A wild deed will not provide constructive notice to later purchasers of the property, because
subsequent bona fide purchasers cannot reasonably be expected to locate the deed while
investigating the chain of title to the property.

A wild deed is also known as a thin air deed.

TOPIC SIX: LEGAL RESEARCH

1. Introduction
2. Conducting Legal Research
3. Research Skills
4. Types of Legal Research
5. Statutory Law and Case Law
6. Identifying Materials
7. Conducting Searches
8. Finding And Reading The Law
OBJECTIVES

By the end of the session, all learners will be able to:

1. demonstrate an understanding of the structure of legal literature and the media through
which it is made available

2. locate and use online library, catalogues and indexes

3. select relevant materials

4. use and interpret legal citations and abbreviations

5. check the authority and currency of the information

6. integrate legal research into the study programme

INTRODUCTION

Legal Research is the search for authority that can be applied to a given set of facts and issues

It is the process of identifying and retrieving information necessary to support legal decision-
making

It includes each and every 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

The process varies according to the country and legal system but it generally involves tasks such
as:

i. Finding primary sources (authorities) of law in a given jurisdiction (statutes, cases,

regulations etc.);

ii. Searching for secondary authorities (law reviews, legal dictionaries, encyclopedia etc.)

iii. Searching non-legal sources for investigative or supporting information

Sources of legal information range for printed books to free legal research websites and
information portals such as Wolters Kluwer, Chancery Law Chronicles, LexisNexis and Westlaw

CONDUCTING LEGAL RESEARCH

Research is essentially about ‘finding out’:

i. Looking for materials that will help to answer questions;

ii. Assessing how the different materials add up; and

iii. Reaching a conclusion

Research involves in-depth investigation, seeking new knowledge and understanding by

examining various sources

It is a directed activity with a purpose and objective that concern questions needing answers

The type of research materials utilised depends on the questions needing answers

LEGAL RESEARCH AND RESEARCH IN OTHER CONTEXTS: THE DIFFERENCE

An initial step in developing legal research expertise is to develop an awareness of the types of
materials that constitute “the law” and of the relationships between these materials

It may be necessary to consult statutes, cases, and or regulatory materials (administrative

agencies regulations or decisions)

The above materials are considered “primary sources”

A major challenge for a beginner is to gain a perspective on how such sources may apply to a
particular subject-matter and how they relate to each other

It is often necessary to consult multiple sources and use different techniques for each type of
source

Legal research differs from other research because:

 i. When confronted with a legal issue, the researcher must endeavour to locate any
potentially relevant authority which would be binding on the applicable jurisdiction;

ii. Cases or statutory provisions which seem not to favour a client’s position cannot simply
be ignored but can be distinguished;

iii. Law as organic, the researcher must learn to appreciate the need to update and verify
every source upon which he intends to rely on in developing legal argument

iv. The use of analogy in legal reasoning

THE UNIVERSE OF CHOICES FOR LEGAL RESEARCH

Legal research profoundly impacted by information and technology in recent years

The volumes of potentially applicable materials and the formats in which they can be accessed
have increased dramatically (print materials, electronic, and internet materials)

Number of cases decided by courts skyrocketed in recent years

The volume of legislations and regulations has expanded in scope and in volumes

Lawyers have to make determinations about how much research a particular problem is worth in
consideration of cost and time efficiency

Some internet sources may not be reliable: accuracy and currency vary greatly

It is often more efficient to combine and considered the most effective approach to combine print
and electronic sources

THE LEGAL RESEARCH PROCESS

Legal research is not a linear process

The following steps are typically taken in legal research

The order may vary depending on information that is known at the outset of the project, on
information discovered during the research process and on the scope of the project

1. Analysis of the facts and formulation of preliminary statement of issues

This is a continuous process and issues can be reframed during the research process

2. Familiarization of the court structure of the jurisdiction

It may be necessary to conduct background research to determine the laws governing the
jurisdiction

3. Conducting background research for an overview of the subject area, identifying

issues and terms and clues to primary sources

Learning the types of authorities involved (whether the issues are governed by case law,
statutory law, administrative law etc.)

4. Searching for legal authorities using appropriate methods of updating

There are different techniques of finding primary sources, using variety of tools will ensure
comprehensive research and compensate for difficulties that may be encountered in using
particular sources

Note date of access in the case of internet sources

5. Reading and evaluating primary sources

Don’t overlook the importance of reading cases and other authorities encountered during the
process

Don’t substitute reading of headnotes, synopses or interpretation in secondary sources

Look for holdings of cases not just broad statement of law

 6. Making sure cases are still good law and currency of statutes

Check all available supplements if using print sources

Check for recent amendments

7. Refining of analysis and formulation of conclusions

Returning to secondary sources near the end of the research can be helpful

They are easier to understand after reading primary source

WHEN TO STOP/CONCLUDE THE RESEARCH PROCESS

Advisable that it is done when:

The steps in the model have been completed

Variety of appropriate sources have been used

The same authorities being found over and over

The cost exceeds the benefit (running out of time)

RESEARCH SKILLS

Conducting legal research involves:

i. Formulating the research question into issues and sub-issues that need to be researched

ii. Identifying materials (primary and secondary sources) or the type of materials that need
to be searched for to answer the questions at hand

iii. Searching for, locating and retrieving relevant research materials

iv. Ranking the relevance and importance of the materials retrieved (analysis)

v. Reading the materials (sources) in appropriate detail, taking note and making a critical
assessment of them where appropriate (using sources in a critical and reflective way)
 vi. Putting together an overall view from these different sources (synthesis – and a second
aspect of using sources in a critical and a reflecting way); and

vii. Summarizing the above research processes and the decisions and issues involved (having
a reflective research trial)

TYPES OF LEGAL AUTHORITIES

1. Primary

Primary legal authorities are authorized statements of law issued by governmental bodies.

This include courts opinions, constitution, legislation, regulations and rulings of administrative
agencies and other similar documents that carry the force of law

They can either be mandatory (binding) or persuasive (non-binding)

Ascertaining what constitute mandatory authority requires a knowledge of which law-making

bodies issue legal authority for a particular jurisdiction

Mandatory statutory authority must be followed (stare decisis)

Persuasive primary authority can include court decisions of other jurisdictions which do not have
to be followed but which may be used as examples of good reasoning

This can be important if mandatory authority does not exist in a particular jurisdiction or if the
researcher wishes to look for arguments as to why existing precedents should be changed

2. Secondary Sources

Secondary sources describe, discuss, interpret, comment upon, analyze, evaluate, summarize,
and process primary sources.

Secondary source materials can be articles in newspapers or popular magazines, book or movie
reviews, or articles found in scholarly journals that discuss or evaluate someone else's original
research.
 3. Tertiary Sources

Tertiary sources contain information that has been compiled from primary and secondary
sources.

Tertiary sources include almanacs, chronologies, dictionaries and encyclopedias, directories,

guidebooks, indexes, abstracts, manuals, and textbooks.

IDENTIFYING MATERIALS

1. Start with a good book on the topic

Browsing through relevant legal texts is still the best starting point.

This will logically set out the issues, provide an analytical framework, and discuss legislation
and leading cases

Try to find a text that analyzes your topic. You should always do a search of the library
catalogue at this stage.

2. Find a relevant article

Finding an article written specifically on your topic is a convenient short cut to legal research.
This research step involves searching both:

i. indexes to law review and journal articles and

ii. full text databases of law review and journal articles

3. Consult a general encyclopedia like the Encyclopedia Britannica

If you need a very general overview, or if you cannot find any discussion of your topic in a
textbook, try using the current edition of Halsbury's Laws of England or Encyclopedia Britannica

These provide brief overviews of most areas of law, including some areas where there is not
much else written (e.g. actions against the Crown, cemeteries, aviation law, etc.)
They give broad, general treatment but will identify the issues and refer to leading cases and
statutes

4. Browse a subscription database

Check whether there is an electronic source for the particular subject you are researching

Electronic products often integrate commentary from textbooks, legislation, and case law

Using the Table of Contents or indexes provided by the various sources, one can browse and find
commentary with direct links to legislation and cases

ANALYSING THE QUESTION: THE 5WH APPROACH

One way of analyzing a given question is to ask whether it can be understood in terms of one or
more of the six questioning or interrogatory words or their equivalents

WHO, WHAT, WHEN, WHERE, WHY AND HOW

Each of the above performs a different function in legal research context

WHO?

This can be used to focus usefully on problems of power or authority e.g. who appoints the
judges can raise question about the exercise of that particular power in theory and in reality

Who questions can lead onto some interesting further issues about how power is exercised and
why, for what purpose

WHAT?

This often focuses on processes or developments – e.g. on what is happening or what might
happen in the future in an area of law

It can also be what law is on a topic especially where the law is uncertain or where it changes
rapidly
WHEN? HOW?

When and How questions are common part of legal analysis and perform similar functions

Whenever there is an attempt to:

a. understand the scope and application of the law; or

b. consider the way in which law gives effect to government policy; or

c. consider the condition under which an institution is functional (by what test)

then it is necessary to consider the circumstances in which the law operates

Where?

This tends to be least useful in formulating legal research topics.

‘Where’ questions may however be useful for example in thinking about the location of sources
(where can statistics showing changes in the numbers of law firms in Uganda over the last five
years can be found?)

Why?

‘Why’ questions, like ‘how’ questions are significant in exercising skills of analysis and
evaluation

They are often associated with law reform, at least, implicitly or as part of the bigger question
(why did the law need to change)

Similarly, in making comparisons between legal principles in different legal systems or looking
at the ways in which the law on an issue has changed over the years within the same legal system
or jurisdiction, the question is why those changes took place etc.

CONDUCTING SEARCHES

It may be possible to encounter vast quantity of materials especially online

One needs to be selective especially if one is not looking for a specific title but conducting a
more general search

The reading techniques ‘skimming’ and ‘scanning’ are important

By skimming – to get an overall picture and by scanning – to focus on one particular issue

THE STATE OF LAW IN UGANDA

With the increase in social, economic and political activities in Uganda, there has been an ever
increasing need to enact new laws

Some of the new laws have directly been derived from the Constitution as the supreme law of the
country from which any inconsistent law is null and void to the extent of inconsistency

Section 14(2) of the Judicature Act states that the jurisdiction of the High Court shall be
exercised in conformity with written law

Any person who seeks to resolve a legal problem must consider the constitutional provisions first
and then the provision of any other written law on the subject

The researcher can consider the provisions of subsidiary legislation and the provisions of equity,
common law and customary law

The laws in Uganda are found in volumes which are generally referred to as the laws of Uganda
2000

The Acts of parliament are bound in 13 Red volumes

The different Acts of parliament appear in these volumes as chapters for example the Judicature
Act appears as chapter 13 laws of Uganda

Each of the chapter of the laws of Uganda appears in a sequence in the volumes depending on
the chapter number

A researcher who needs to ascertain the location of an Act of Parliament within the volumes only
needs to check at the back of any of the Red volumes within the index
Acts of Parliament sometimes contain provisions for the responsible minister to formulate rules
or regulations to operationalize certain provisions within the Act

The rules or regulations formulated under such a power are referred to as statutory instrument

These instruments are also organized in volumes which run from volume 14 to volume 28

Any researcher who seeks to research on a particular instrument has to refer to volume 28 which
has an index of all statutory instruments made under the different Acts of parliament

RULES OF CASE CITATION

Case citation is a system used in many countries to identify past court case decisions, either in
series of books called reporters or law reports, or in a "neutral" style that identifies a decision
regardless of where it is reported

Case citations are formatted differently in different jurisdictions, but generally contain the same
key information

Where cases are published in paper format, the citation usually contains the following
information:

i. Report title

ii. Year of Decision (or Report)

iii. Volume Number

iv. Page Number

How to Find a Case

A number of different strategies which may be depending on information you have

1. A case can most easily be found by its name and reference to its location in the law
reports
Taken together, these provide a means of identification as unique as a fingerprint

The name of any case in English law is normally based upon the parties involved e.g. Mesher v
Mesher or R v Shivpuri

The case reference is more properly called its citation

The most common form of citation of any case will be made up of the following elements:

YEAR VOLUME (if any) REPORT PAGE

[1989] 2 QB 123

This tells that the case is to be found in volume 2 of the Queen’s Bench Law Reports for 1989,
beginning at page 123

The style of citing cases is, as with journal citations, rigidly adhered to

FINDING AND UPDATING CASE LAW

Researching Old Case Law

Case law reports before 1865

From 1272 to 1535, the Year Books reported the law in legal French. They are rarely cited in
present-day courts.

Modern reprints with English translations alongside the original were made during the 19th and
20th centuries, in the Rolls Series, and in volumes published by the Seldon Society and the Ames
Foundation.

Between 1571 and 1865 more than 500 different publications containing law reports were
printed under the name of the person who wrote the reports. They are now known as the
nominate reports.

The Law Reports

The Law Reports began in 1865, and are the most authoritative reports of cases in the UK.

They include the most important judgments from the House of Lords and Privy Council; the
Court of Appeal - Criminal and Civil Divisions, the Chancery Division, Family Division, and
Queen's Bench Division; the Employment Appeal Tribunal; and the European Courts of Justice

The current series titles of the Law Reports are: Appeal Cases (AC) (which includes judgments
from the House of Lords), Queen's Bench Division (QBD), Chancery (Ch) and Family (Fam).

Older, discontinued series include Crown Cases Reserved 1865-75 (LR CCR) and Probate,
Divorce & Admiralty Division 1891-1970 (P)

Both the Law Reports and the Weekly Law Reports (WLR) are published by the Incorporated
Council of Law Reporters (ICLR)

Judgments that appear in volumes 1 and 2 of the WLRs will be published in the Law Reports,
after they have been checked by the judges

The Law Reports are the only reports that include arguments of counsel

The All England Law Reports

The All England Law Reports (All ER) began in 1936. They are published by
Butterworths/Lexis Nexis, and are a rival publication to the Law Reports.

The All ERs report significant judgments from the Courts of Appeal and High Courts, and ECJ
cases since 1995

The All ERs are generally considered to be second in authority to the Law Reports

Where are the All ERs? Online in Lexis Nexis

Index to the All ERs

The All ERs Index consists of three volumes, published annually

Volume 1 indexes all reported cases and UK and EU legislation judicially considered
Volumes 2 and 3 are a subject index.

EAST AFRICA MATERIALS

1. E.A.L.J.I is a legal periodical and cited by volume and contains an index e.g. cite (1969)
5 E.A.L.J.I

2. E.A.L.R published in London. Started in 1957 and came out annually in four quarters.
They contained decisions of all East African countries. These are decisions of HC, CA
and formally P.C

3. E.A.C.A started in 1937 and ceased in 1956. used to come out annually and cited by
volumes e.g. (1953) 23 EACA

4. K.L.R began in 1922 and contains decisions from the Privy Council and Court of Appeal.
They are cited by volumes (1922) 9 K.L.R. from 1934 to 1956 there were volumes 16-29.
they started reporting cases in High Court

5. H.C.D for Tanzania law: compiled by Faculty of Law at Dar es Salaam, citation by
square brackets e.g. [1965] H.C.D 20

6. T.L.R (Revised) cited T.L.R

7. H.C.B (monthly bulletins) replaced by H.C.B compiled by the Department of Law

Reporting at L.D.C. it reports cases of HC and CA, usually there is an index for such year

8. H.C.B reports cases sometimes after two years and sometimes after three years

9. Kampala Law Reports (KALR) started by an advocate and reports cases from 1989 from
HC, CA and SC and only those the reporter deems important. Some judges don’t use it –
it’s not official

Law Reporting in Uganda has been very week and thus very few law reports have been
published in Uganda since 1958
The Law Development Centre is mandated to prepare and publish law reports and other legal
materials but so far have published only High Court Bulletins

Lawyers are forced to depend on photocopies of judgments requested from the courts

Law Reporting in Uganda

Ugandan judgments are reported in the following law report series

1. East Africa Law Reports: the reports covered decisions of the CA for East Africa and the
superior courts of the constituent territories: Kenya, Uganda, Tanzania, Aden, Seychelles
and Somaliland.

Published from 1957 – 1975 when they collapsed following the dissolution of the EAC

They have been reintroduced by Law Africa with the launch of EA 2000 and EA 2001

2. Uganda Commercial Law Reports – The reports cover decisions of 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

3. Tax Appeals Tribunal Compendium of Judgments and Rulings – covers decisions of the
Tax Appeals Tribunal

4. Kampala Law Reports – published by a private lawyer

5. High Court Bulletin – published by the LDC

6. Uganda Law Reports – last published in 1957

7. Law Reports of the Court of Appeal of Eastern Africa – Reporting decisions of the
defunct Court of Appeal of Eastern Africa