THEOPENUNIVERSITY OF TANZANIA

FACULTY OF LAW

LEGAL METHOD

INTRODUCTION TO THE THEORY AND TECHNIQUES OF HANDLING LEGAL

MATERIALS, CASELAW TECHNIQUE AND LEGAL REASONING

[ADVANCE COPY]

Dr. M. C. Mukoyogo

Senior Lecturer.

and

Head, Legal Theory Department

Faculty of Law

University of Dar es Salaam

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 TABLE OF CONTENTS

SECTION I: Introduction to Legal Research and Writing………………………….........7

Lecture 1: Introduction…………………………………………………………………..7

Lecture 2: Legal education, Legal Methods………………………………………….....17

Lecture 3: Law Reports/ Case Law……………………………………………………..35

Lecture 4: Language and the Law…………………………………………………….....54

SECTION II: The nature, Classification and Sources of Law…………………………

SECTION III: Dispute Settlement methods……………………………………………….

SECTION IV: Store Decisis (The Doctrine of Precedent)………………………………...

SECTION V: Common Law Case Technique………………………………………………...87

Lecture 1: Introduction……………………………………………………………….........87

Lecture 2: Debate on How to Determine the Ratio Decidendi of the case…………….…106

Lecture 3: The development of the law of negligence…………………………………121

Lecture 4: The Development of the Law of Negligence……………………………….143

SECTION VI: Logic and Legal Reasoning…………………………………………………..222

Lecture 1 Logic…………………………………………………………………............222

Lecture 2: Legal Reasoning and Case of Negligence…………………………………...241

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APPENDIXES

I Library Exercise

II Notes on Cases: Authority

III Stephen Kiberenge& others v. R.; HC Cr. App. No. 107/1986 and 108/1986(unreported)

IV Sunday News september 18, 1988 p. 8

V July 19-25, 1994 Kesi ya Katiba Dodoma

VI Katikiro of Buganda v. Attorney General(1967)1 WLR 199

VII M. Zander, The Law Making Process 2nd Edn. Pp. 109-115 Extract of judges Opinions.
VIII Legal Methods Let/2/14

IX Problem of statutory interpretation LM/Mukoyogo/93

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 LEGAL METHOD

SECTION I: INTRODUCTION TO REGAL RESEARCH AND WRITING

LECTURE 1.1 INTRODUCTIONS

These lectures are intended to guide you as a beginner in law how to go about your studies. At the very
beginning you will have to ask yourself a number of important questions. These questions will relate to
the study of law. The main aim of these questions is to make you aware of the problems and complexities
which are involved in pursuing legal studies. Generally they are questions addressing the concepts of law,
life, student life, organisation of study, how hard to work, methods and materials used in learning law,
where to find the law (i.e. the place where legal materials can be found as well as the repositories of legal
knowledge).

In the course of these lectures you will be directed to have to know where to find the law, how to find the
law, how to record information, citation of legal materials and how you finally construct a legal argument
from those materials. Legal materials are always found in Libraries. Knowledge of how to go about
looking for materials in the Library is very essential. In a Law Library or any other Library you will find
stocked Principal and Subsidiary pieces of Legislation. These will range from the Constitution and
instruments designed to operationalise the Constitution, Ordinances, Orders in councils, Acts of
Parliament

and Notices, orders and regulations otherwise known as subsidiary legislation. These will be termed as
the primary sources of law. These consist of the most authoritative materials for law study. Your
argument will have to depend very much on these authoritative materials.

Apart from pieces of legislation are Law Reports, these contain decided cases by the courts otherwise
known as precedents. Under the Common Law System they are another source of law, you will have an
opportunity to learn on how you can trace a case from a law report, how you cite a law report, how you
extract the essentials of a case (the manner you have to write a precis). Other materials will consist of
Parliamentary Proceedings (in Hansards), Government Papers, Commission Reports, the Government
Gazette, Textbooks and Writings of Publicists, Journals, Policy Documents and Newspapers.

No lawyer will back up his or her argument by using News paper cuttings. You must make note of this
fact, because the legal profession is built up of love for authority in the course of advancing arguments. In

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very few instances will a lawyer advance his or her argument ex-cathedra. To know where these materials
are stocked in the Library you have to know what is meant by bibliographical references, subject and
author catalogues, indexes etc. In the course of studying law you will know that legal materials are
presented in a specialised language called the language of the law. The language of the law is general
even though it is intended to cover both general and specific facts situations. You will have to abandon
assuming that you know the word. Often than not, the meaning of words or phrases will be derived from
the context within which they appear Also you will have to resort: to specialized dictionaries in order to
understand what the legal import of a word or phrase is or not. For example, in the normal course of
things people give each other certain things including oranges. A person may say to another ―Have an
Orange‖. To a lawyer this short sentence may appear in the following manner:

―I hereby give and convey to you all and singular, my estate and interest, rights, title,
claim and advantages or and in the said orange together with its rinds, juice, pulp and pits
and all rights and advantages therein with full power to bite, cut and suck and otherwise
eat the same notwithstanding‖.

You will have occasion of being told that the language of the law is not merely reporting but a directed
language. The main principle is to influence people‘s behavior. The legal language will be seen as a
means to a certain end. Before dealing with technical matters, it is important to take note of the following
essentials of studying.

1.2 STUDYING LAW

Why do you intend to study law? What has specifically attracted you? What are your aspirations after
graduation? How much you already know about law? What does the term law mean? What do you mean
by a legal obligation? Is there any minimum content to a system of laws? Under what circumstances is
civil disobedience justifiable? What is the relationship between law and morality? What are the main
divisions of law? Studying law is a long and tedious process. To acquire the knowledge of the law, you
must now "'here to find what. As already indicated above law is written in various kinds of materials.
These materials are found in Libraries. Knowledge of the Library is very essential for your knowledge of
the law. You need also to know the hierarchy of authoritative materials (as already hinted on above).

1.3 Student life:

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How many subjects did you previously study? How were you taught? (Lectures, Seminars, consultations,
time allocated to each). Did you ever know in advance which materials to read? Did you get course
outlines? Were you supplied with supplementary materials for reading? How much time was officially
allocated to you by way of seminars, Lectures, and how much was left to you to manage? Were you
taught to remember, find out yourself or to express your opinion or just accept whatever the teacher said?
Have you developed critical thinking through what you hear and read? Have you so far developed an
independent sense of thinking and judgment? In the course of study you will be provided with decided
case law, secondary materials in academic journals, monographs and textbooks. Study involves a
disciplined use of time.

1.4 The organisation of Study time:

How have you organised your study time previously? Have you ever been able to divide your time from
the beginning of the academic year or at the end? Why? Have you ever studied through a privately
organized timetable? How successful have you been following it to the letter? Do you think that a
workman like timetabling of one‘s effort is very important as well as effective? Do you think it advisable
to know whether you are worrying or not when to work and when work is finished?

1.5 How Hard to work

Is the work of a law student creative or merely receptive? Is the view that a law student‘s work involves a
creative reordering of materials true? Is it part of hard work to continue without a break or recreation?

1.6 How is law taught?

Is law best learnt by an individual than taught? Do you think it is correct to say that the most important
part of the study of law is the effort and work which an individual puts in than what he receives from
other? What is the role of lectures and seminars? Why lectures? Is it an adequate method of learning law?
What do you understand by notes taking in the course of lecture? What does notes taking achieves? Are
the notes taken during a lecture hour sufficient in themselves?

1.7 What are the other Methods of Learning Law?

(a) The other methods include reading of judgments by the Courts (precedents) either in their original
form or as extracts from casebook materials. Out of this practice there has developed a term

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 known as case method of learning law. What is the case method? What does it intend to achieve?
How adequate is it as a method of learning the law?

(b) The other method is called the clinical legal education method. Here students get into contact
with clients. They do the basic aspects like interviewing and recording complaints and out of
these they build up materials essential for legal study. The main assumption behind this approach
is the idea that, if doctors are taught through practicals why not lawyers? How can law students,
like doctors be involved in practical training? Is it possible to involve law students into live cases
without sacrificing what they are ultimately likely to earn out of such an experience? There are
those who think that it is not possible such training to be done through live court cases, but most
successfully through Moot Court Trials. The problem which emerges is whether or not such trials
can replace what actually takes place in a court-room.

Other considerations relating to the method of training lawyers raises questions of confidentiality, duties
to clients and conflict of interests. The questions are whether what is learnt through this method of law
will import the relationship between the rules and their practical context or both.

1.8 KNOWLEDGE OF THE LIBRARY

Studying Law is a long and tedious process. To acquire the knowledge of law, the learner must know
where to find what. Laws are written in various kinds of materials. Such materials are often stocked in
Libraries. Knowledge of the Library will be essential for you as a beginner in law. Even though you will
later realize that it is necessary to know the society in which law arises and regulates activities. Most
immediate information on law will be derived from text books deposited in the libraries. How to go about
in locating necessary materials for the study of law is the subject matter of these materials.

As beginners in law you must know that, there is a hierarchy of authority of the materials you will
read on law and about law. At the Apex are pieces of legislation (Principal and Subsidiary) - starting with
the Constitution. You will later learn that, in the scheme of interpretation, the constitution constitutes the
legislation is a matter of contention but the constitution and other pieces of legislation (principal
legislation) are enacted by parliament. Parliament delegates its law making powers to ministers and
various institutions through parent or principal Acts and what they enact is called subsidiary legislation.
The second important source of law will be Law Reports, Parliamentary Proceedings, Government

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Papers, Commission Reports, Government Gazette, Textbooks and works of publicists, law journals
policy documents and newspapers.

It must be understood from the start that, the order for the hierarchy of authority set above must be
followed very closely to avoid a misconception on law and authoritative sources of law.

Efforts must be made by you to know in details what each of these sources represents and the role it plays
in the understanding of law and society.

Certain technical matters must be studied and employed in practice in the process of learning to become
and work like lawyers or legally trained persons. The legal profession demands that you know the
meaning of term statute or legislation, you know how to cite a statute, you know what is meant by
delegated legislation, how to find a statute. Important questions you must ask yourself when researching
about statutes; you should know how to read a statute in which case, you must understand the structural
aspects of a statute.

Then you must know what is meant by law reports, the purposes law reports, serve to lawyers and the
legal profession, who is responsible for reporting cases, how cases from law reports are cited; the main
elements of a citation and the purposes served by such citation other important information obtained from
law reports. Knowledge of the anatomy of the case is important1 (whether or not square or round brackets
in citation serve any significant purposes), how you set about finding a case and the importance of each
step in the process of finding a case. Whether or not unreported cases are important (factors which
contribute to these cases not finding their way in law reports); then how you set about reading the case
and research on either legislation or cases in Law Reports you will require to get acquainted with
bibliographies and digests. You must know what is meant by the term bibliography, the differences
between general bibliographies and legal bibliographies, decide whether or not a library catalogue is a
bibliography. What is meant by a digest, the purposes for which a digest (digests) serve, the major types
of digests, whether such materials are available in the Library.

Frequently you will be referred to legal periodical. You should know what is meant by the term legal
periodicals, the names and amount of legal periodicals published in the East and Central African region,
those published and available in the library form other parts of the world. Decide what is usually
contained in legal periodicals, the purpose for which such materials serve to the legal profession or to the
study of law, whether or not constant reference to such information is very important. Know how you set
about finding information from legal periodicals, decide what the differences are between information

1
See Notes on cases- authority Appendix II

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obtained from legal periodicals and that obtained from newspapers, magazines etc. As a law student and
future lawyer you should know how to make use of information obtained from daily papers. This is
important in so far as Newspapers often than not, show a link between law and society. This is usually
through various forms i.e. the manner information is printed, the type of information printed in a news-
papers, is regulated by the law, but also the articles may. Cover certain events involving legal issues.

Newspapers report matters which range from personal relationship, public affairs and daily changes.
Often than not, there are reports on crime, debates on pieces of legislation, weather and international
events. Reading newspapers would help in raising consciousness about the pervasive nature of law in
society, the relevancy of legal perspectives when one is interpreting current events, show the relevancy of
law to national, international and transnational issues.

By reading newspapers one becomes aware that law operates in an independent world. It may also
illustrates the point that, student have already experienced law before coming to study law. More
important, reading newspapers may help to illustrate the problematic nature of the concept of ―Law‖ and
what is ―Legally relevant".

Methods of reading newspaper may include reading the whole newspaper and systematic content analysis.
The later method may help to explore various aspects of the relationship between law and public opinion
or in the analysis of the media treatment of legal issues and events, etc.

Policy Documents:

It is important to distinguish law from policy. What are legal as distinguished from policy
documents? Legal documents include such materials as contain statements of law, for example, Acts of
parliament, contracts treaties, judgments, etc. policy documents are such documents as the Arusha
Declaration, Mwongozo reports of official committees or private organizations, documents dealing with
issues of public policy, law reform reviews and parliamentary debates(Hansards), law periodicals,
command papers and white papers, etc. such materials will help you to analyse problems and often
prescribing the appropriate solution. Such materials form part of the legislative history. Policy document
may highlight the purpose for which a particular law has been enacted and therefore the context in which
it applies.

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Suggested Readings:

1. J. Dane/P.A. Thomas, How to use a Law Library London 1979 chs. 2-6.

2. M. Zander, The Law-Making Process, 2nd edn. London 1985 ch. 7

3. G. Williams, Learning the law, 11th Edn. London 1982 ch.12

4. W. Twining/D. Miers, How to Do Things With Rules, 3rd Edn. London 1992 App. IV.

LECTURE 2.1 LEGAL EDUCATIONS

The subject of the legal Education has been controversial and complex. The situation in Tanzania
is rather unique in that, there is only one faculty of law which teaches or trains lawyers. The faculty has
since its inception to date not undergone any meaningful expansion to allow a larger intake of lawyers.
Despites a commonwealth Report in legal education which had proposed for the establishment of a Law
School train lawyers in practical aspects of the law, nothing of the like has ever got the blessing of the
government. The Faculty of Law does not teach ―black-letter law‖ but teaches from a socio-economic
context. There is a debate on what this term means but suffices it to say that lawyers are trained to
become society conscious.

One of the major aims of training lawyers in Tanzania is to give them an awareness which will allow
them to practice law in a complex world of objectives and differences of approach to the subject. The
complexity of the concept of legal education will be revealed by a few examples drawn from a variety of
lawyers.

OTTO Kahn Freund (1981) says:

Legal education is at its best if the student learns to look at each concrete situation from
two different angles………….He should learn to look at it in a strictly and rigidly
dogmatic way and he should also learn to look at it as a social situation requiring the
solution of a social problem………..a law student must go through a process of rigid
deductive argument from the premises set by statutes or precedent. He must not be
allowed to go around it by escaping into talk about policies, he must go through it.

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 This is a plea for orthodox legal education where as a must a student leaves a law school without being
necessarily exposed to the influence of law on society vice-versa. Another view was expressed through a
UNESCO publication 1973 at p.16 where it says:

Legal education as used here refers to experiences and training which help different kinds of
people to understand and use law in society.

Here the emphasis is on experiment and training into those experiences and the law. All of which will
lead you into understanding as well as using law in society.

In a debate relating to curriculum review at the Faculty of law, University of Dar es salaam in 1970‘s
one of the lecturers by the name of a Lal patel had the following view of legal education:

Legal education must be structured from the stand point of a developing country
seeking to adjust its socio-economic system to the attainment of a socialist society.
Any formular of legal education plea should have this much as a premise………. (T)
he two main elements of legal education are academic and practical. Law Faculties
in East Africa should certainly be asking themselves: Do their curricula adequately
respond to the total dynamic social and economic context of ongoing development
process? Legal education is a means to developing a legal profession not merely a
legal technician.

Implicit in the above passage is an idea of not producing just a lawyer but one who can assist in
the development process. Now it is not clear that Tanzania is still going socialist. Whatever the social
developmental trend still a nation needs a lawyer who can be instrumental in that process. In one of my
papers I said:

Legal education aims at equipping a lawyer to be with abilities to handle legal

materials. A lawyer‘s education has to be directed towards appraising, predicting,
persuading and practicing law. Legal education has to lay bare legal forms: the legal
rules and their rationale or philosophy underlying. Legal education should act as a key
to future uncovering and solution to problems.

It is possible you will come across a lot more explanations about legal education, suffice to say that, one
obtains academics education which will ultimately be utilized in practice in given social and economic
context.

Summary:

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• The concept of legal education is complex and controversial.

• Legal Education aim at equipping a lawyer to be with the ability to handle legal as well as social

Questions and materials.

• Legal educations refers to the experiences and training of different people in understanding law

and society.

• Legal Education is both dogmatic and liberal

• Legal Education is contextual

2.2 LEGAL METHOD

Legal method or sometimes referred to as legal process deals with the techniques (skills) of handling
authoritative legal materials. It is a subject which introduces a beginner in law to the theory and
techniques employed in law. Here you will deal with the basic techniques or methods of conducting
legal research, acquisition of knowledge on legal writings, treatment of resources (material) of law:
particularly the actual location of legal materials, examining the way courts and other tribunals make or
find the law, discuss tribunals and their relationship to the legal system. You will be seeking to explain
how legal forms arise and change, the general problems of law and fact, legal categorization and
reasoning based on data (facts of life)and rules derived from legislation and precedents as well as other
legal literature. Legal method will help you to acquire basic knowledge of legal rules, as well as an
understanding of the relationship if any between law and society. An attempt will be made by this subject
to define law in terms of one American Judge Benjamin Cardozo‘s definition:

―…….Law is a hypothesis of Prophecy‖.

(Other definitions will be made to you later in this series of lectures).

Literature on Legal Education:

1. The Report of the committee in Legal Education (Cmd 4595:1971).

2. Legal Education in a Changing world-UNESCO Publication 1975 (international legal Centre).

3. Twining, W.L ―Pericles and the plumber‖ in Vol.83 L.Q.R.[1967]396

4. Mukoyogo,M.C. Teaching Legal Method: A Personal note on challenges and problems in

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 Effecting the Aim of legal Education in Tanzania‖ 1983(unpublished mimeo).

5. Freund,O.K in gray K.J. & Symes, D.D Real property and Real People-Principles of Land law,

London 1981.

6. Patel, L. ―Goals of Legal Education in Tanzania‖-unpublished paper dated 5th August 1970

(Presented to curriculum Review Exercise).

7. Shivji, I.G. ―From the analysis of forms to the exposition of substances: the task of a lawyer

intellectual‖, in Vol.5 Nos. 1&2 EALR [1972]7-8.

8. Nyerere, J.K. ―Education and the Law‖ in Freedom and Unity, O.U.P Dar es Salaam 1974 p. 130-

131.

9. Holmes, O.W. ―The path of the Law‖, in Vol.10 Harv.LR. (1886)457.

2.3 LEGAL RESEARCH AND WRITING

Here you will learn how to find the basic legal materials which are usually stocked in the Library. The
materials will include statutes, law reports, policy documents, periodicals or law journals, textbooks and
newspapers. You will systematically learn how to locate each one of these. What you will be doing is
research. Research is a systematic attempt to provide answers to questions, such answers may be abstract
and general. In order to get the answers certain materials will have to be consulted and analysed.

Literature on Legal method

1. Farar, J. Introduction to legal method, London 1977 prefaces.

2. Hampstead lordlloyd & Freeman MDA, Lloyds Introduction to Jurisprudence, 5th Edn. London
1985 chs. 2 and 11.

3. Twining, W. Miers, D: How to Do Things With Rules, 3rd Ed. London 1982.

4. Jones, H.w. Note on Teaching of Legal Methods‖ in Vol. 1&2 Journal of legal education.

5. Cooper, E.C. living the Law, Indianapolis 1958.

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6. Holmes, O.w. "The Path of the Law" in Vol. 10 Harv. L.R.(1886)457

7. Twining, W. ―The Badman Revisited‖ in 58 cornell L.Rev.275.

8. William, G. Learning the law, 10th Ed. London 1978.

2.4 HOW TO FIND MATERIALS IN A LIBRARY:

In the course of studying law you will be called upon to use piece of legislation to answer problems.
Hereunder is how you have to go about locating pieces of legislation.

Faced with problem relating to a statute or statutory provision it is important to consider the subject
under which the problem places itself i.e. whether the question relates to the constitution or Land or
Fauna or Family Relations. Having known the Subject then Consider the Possible Sub-headings i.e.
individual rights or rent restriction or unlawful hunting or divorces. Both the Subject and Sub-heading
should be checked in the indexes or textbook indexes. When you find a hint make note of the short Title
of the law or piece of legislation involved.

Together with the short title include, the year and number of the Act or Legislation i.e. The Nyarubanja
Tenure (Enfranchisement) Act, 1965(Act No.1 of 1965). This is called the subject Method. Other method
includes the case Method in which case you consult the digest of index of statutes or case law on the
relevant subject or statutes. The short title method, consulting reprints or updating by checking whether
the statutes has been amended or repealed. You can go through annotations these may include case
annotations within the same jurisdiction, case annotations from other jurisdictions, annotations found in
textbooks or through words and phrases annotations. Other relevant method includes examining the date
of commencement of Act (always appears in pieces of legislation or in Government Gazette) or by
studying the legislative History.

All along the inquirer must ask himself the following questions: whether or not there is any statutes
on the subject in question; whether or not such a statutes is up-to-date; whether or not such amendments
are in reprints, whether or not such amendments have been incorporated in the reprints; whether or not the
original and its amendments have commenced operation; whether the statutes has been judicially
considered i.e. whether the court has made any pronouncement on how a statutes or part of it has to be
interpreted(see court interpretation of the powers of the D.P.P on cases involving economic and organized
crime law). Whether the statute is affected by any other statute. For example, The Penal Code, Cap.16,
the Minimum sentence Act, 1963, the Economic and organized crime Act, 1984 and the Criminal
procedure act, 1985 ss. 164 and 165. Stephen Kiberenge & Others, V.R. H.C. CR. App No.107/1986 &

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108/1986(unreported)2 which minister administers the statute. e.g. The criminal procedure Act, 1985, ss.
5, 7 and 11.

What extrinsic material can be used in interpreting the statutes i.e. S.114 The law of marriage Act,
1971 Bi Hawa Mohamed v. ali sefu, Civil Appeal No. 9 of 1983(unreported)3. Whether or not there are
proposal for changing the law (Law Reform Bulletin the call for reform of the law of marriage Act, 1971).
(Bi Hawa Mohamed‘s case)

2.5 HOW TO TRACE SUBSIDIARY LEGISLATION:

The method applicable in tracing subsidiary legislation is somehow the same with that for principal
legislation. Further the researcher ought to pose the following questions: whether there is a statute on the
subjects authorizing delegated legislation; whether or not any delegated legislation has been made;
whether the amendments‘ have been incorporated into the reprints; whether or not the original delegated
legislation and its amendments have commenced operation; and whether or not the delegated legislations
has been judicially considered. It is essential to consult the official Government Gazette in which General
Notices are published.

1.5 (b) HOW TO READ A STATUTE:

1. Knowledge of the structure of the statute is very essential.

(a) Structure of a BILL

(i) Notice
(ii) Introductory words

―The Following Bill, to be submitted to the national assembly, is published

for general Information with a statement of its objects and reasons‖

Dar es salaam Secretary to the cabinet date.

(iii) Heading

2
Appendix V-also to be considered under statutory interpretation.
3
Appendix V- also to be considered under statutory interpretation

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 A Bill

For

(iii) Preamble

An act to repeal and replace...

(iv) Enactment formula.

―Enacted by the parliament of the united republic of Tanzania‖

(v) Short Title and citation ―This Act may be cited as…….
(vi) Commencement of Enactment...and shall come into operation on such
date as the Minister may, by notice in the Gazzette appoint (the patent Act,
1987(BILL))
(vii) Interpretation (section) provision in this Act, unless the context otherwise
requires...
(viii) Division of the bill into parts and each parts and each part with sections.
(ix) Marginal Notes
(x) Object and reasons (in both English and Swahili)
(xi) Signature of minister/Date/Place.

(b) Structure of an Act of parliament:

(i) Court of Arms

(ii) Act No. and years(Act No.11 of 1981)
(iii) Assent/Signature/Designation and Date i.e. 1 ASSENT

J.K nyerere

President

7th September, 1981‖

(iv) Long Title

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An Act to apply a sum of sixteen thousand six hundred thirty-one million, seven hundred
shillings of the consolidated Fund to the services of the year ending on the thirtieth day of
june, 1982, to appropriate the supply granted for that year, to authorize the reallocation of
certain appropriations and to provide for matters connected with those purposes.

(v) Date of commencement (...........)Usually appear at the right side of

the enactment). In case the date does not appear check for the appropriate
provisions authorizing the minister or any official responsible to bring the Act
into operation. This will normally be published through the Government Gazette
by way of a notice).

(vi) Enacting Formula

―Enacted by the parliament of the United republic of Tanzania‖

(vii) Short Title and Citations

―This Act may be Cited as..........‖

(viii) Interpretation Provision

― The expressions used in act shall each have the meaning ascribed to it
in the exchequer and audit ordinance‖. Or In this Act, unless the context
otherwise requires-(then there follows the words and phrases used in the
enactment and how they may be understood).

(ix) Marginal Notes

Appear at the right side of the enactment).

(x) The enactment is then divided into parts, with sections and
subsections etc. at the time there appended to enactment schedules. The
schedules form part and parcel of the enactments in which they appears.

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 (xi) Statement showing that the enactment was passed by the national
assembly and the appropriate date.

(xii) Signature of the clerk of the national assembly.

The following matters should be considered when reading a statute. (Here we are not dealing with
statutory interpretation or construction).

(a) Know the parts of the statute (follow the description above).

(b) Up-date the statute by searching for any amendments and repeals. This will help in
avoiding committing an error of citing statutory provisions which may have already been
repealed or amended.(Reproduce article by abdulrahaman, O.J. Kaniki ―Forgery‖ in Sunday news
18thSeptember, 1988 p.8 and the correction made by Andrew, B.W. Mkapa ―The law of forgery
was a misdirection‖ In Sunday news 2nd October,1988 p.4)

(c) Consider the constitutional validity (H. Kelsen, Pure The Emerqency Pmvers Act, 1966;
Uganda V. Commissiong Prisons Ex Parte Matovu (1966) E.A. 514: The state V. Dosso
(1958)2 Pakistan 2 P.S. CR. 180; Madzimbamoto V. Lardner Burke[1969] 2 S.A. 284; [196]1
A.C. 645; Lakanmi and KikelEmsola v. AG (Western state) 20 Int. Compl. Q.117.

(d) A statute must be seen against its background". Find out whether it is changing the
existing law or moving into an area previously not dealt with (Economic and organized Crimes
Act, 1984; The Criminal Procedure Act, 1985).

(e) Examine the form and content of the Act through its parts with a view to:

(i) Obtaining a genera~ overview of the Act by looking at the table of the provisions;

(ii) Examining the headings, - titles and the marginal notes Wellington Thuhu Mugor &.
Others V. Republic [1966] EA 124 at 128 Per Rudd, A. CJ (as he then was): Bushell V.
Harnnond (1902) 2 K.E. 533 at 567 Per Collins, M.R.; stephen, Huber; "Use of Marginal
Notes in East Africa" in Vol. 2 East African Law Review (1969) 107; R.V. Survey
Association Case [1948]1 KB 28; Bulner V. I.R.C. [1966] 3 WLR 672.

Page 18 of 141
 (iii) Looking at key provisions which underlie the operation of the statute, for example
commencement, definitions delegated legislation, etc.

(iv) Apply the grammatical analysis in the sense that every clause in a sentence is related to
the principal clause and every word in a Clause is related. The aim is to find the principal
clause and then the subordinate clause. Example: S. 285 of the Penal Code, (Cap. 16 of
the Laws of Tanzania) or s. 89A (1) of the penal code(cap.16 of the laws of Tanzania).

2.6 CITATION OF STATUTES IN ENGLAND:

Here we are considering the mode of citing- English statutes: According to Glanville Williams in his book
Learning the Law 10th Edn. 1978 p. 38f:

Statutes are cited in three ways:

by the short title, which includes the Calendar Year (e.g. the Fatal Accidents Act, (1846), or by the regnal
year or years and the Chapter (e.g. 9 10 Viet. C. 93), or by a compromise of the two (e.g. The Fatal
Accidents Act, 1846 (C. 93)).

The relevancy of the above passage will be fully appreciated by studying English Law Reports,
English Statutes or Halbury's statutes of England.

According to Dane, J. and Thomas A., How. How to Use a Law Library 2nC Edn. 1987 (Sweet &
Maxwell) p. 41f:

"Statutes (or Acts) are commonly referred to by a shorter version of their title (the short title)
and the year of publication, e.g. The Theft Act, 1968. Every Act published in a year is given
its own individual number and Acts may also be cited by the year in which they were passed
and the Act (or chapter) number. Thus the Theft Act was passed the sixtieth Act passed in
1968 and is cited as 1968, C. 60. "Chapter" is abbreviated to "C", when written, but is spoken
in full.

The present system of citing statutes by their year and chapter number began in 1963. Before
that date the system was more complicated. Prior to 1963 statutes were referred to by the
year of the monarch's reign (the "regional year") and the chapter number".

2.7 citations of statutes in East Africa:

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Most 'of the information on how statutes are cited in East Africa has been drawn from Tan R. Macneil in
his paper "Research in East African Law" contained in Vol. 3 No. 1 March 1967 of the East African Law
Journal at pp. 55-60 describes the manner of citing statutes in East Africa.

Other guides to citation should be sought from Law Reports, Index and Noter-Up 1957 and the citation
sections of the particular statutes in question. A difference in citation should be made between laws which
were enacted during the colonial periods-ordinances e.g. the chattels Transfers ordinances, (Cap.28). The
former representing the title of the statutes and the latter the chapter number of the same statutes; the
orders in councils e.g. the Tanganyika ordinance -in-Council, 1920; and statutes enacted after
independence, e.g. The Criminal Procedure Act, 1985(Act No. 1 of 1985).

Delegated or subsidiary legislation is cited as follows

In the United Kingdom, statutory rules orders and instruments are cited by: Abbreviation, year, number,
volume and page, e.g. SR O 1914(o.1000): SI 1948(No.2357)1 p.101. SR& O means statutory rules and
orders and S.I. means statutory instruments.

In East Africa a description as to citation of subsidiary legislation is found in Macneil Vol.3 No.1 East
African Law Journal March 1967 p.4. Also look at the following examples:

(a) Instrument under the constitution of the United Republic of Tanzania (Government notes No.

616 of 1986 or GN. No. 161 of 1986).

(b) The Rombo District Council (Produce cess) By Laws, 1986 (Government Notice No. 630 of

1986)etc. see also, The Interpretation of law and General Clauses Act, 1972; (Tanzania

Mainland)

2.8 CITATION OF OTHER MATERIALS THAN CASES I LAW REPORTS AND STATUTES:

Treated hereunder are mode of citations used for Books, Chapters in Books, Parts of Edited
materials, articles in journals and other works of authority.

2.8 (a) Books:

(i) Name of Author or editor(s);

(ii) Title of book Article;

( iii) Publication of book or article;

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 ( iv) Page Reference if require

To illustrate each point let go through each:

Books:

Martin, R., Personal Freedom and the law in Tanzania, Nairobi, Oxford University Press, 1974.

Fallers, L.A., Law without precedent, Chicago: United press, 1969.

Dias, R.W.M., Jurisprudence, (3rd ed.), London: Butterworth, 1970.

Note: Names of the authors, Titles of the books and publication details, May, include pages.

2.8 (b) Edited Books (indicating specific articles).

Fimbo, G.M., Land, socialism and the law in Tanzania‖ in Ruhumbika, G.,(ed.) Towards Ujamaa,
Nairobi: East African Literature Bureau, 1974.(Names of author of an article, title of the articles in
quotes, author of Editors)Title of the book, publication details, page numbers.

2.8(c) Journals (periodicals):

Mubako, S.V ―Racialism and the Erosion of the Rule of law in Rhodesia‖[1971]4 Eastern Africa law
Review, 191.

Bayer, K.H., Basic Questions of crime control and prevention in the German Democratic

Republic[1971]3 Dar es salaam University Law Journal, 42.

Lynden Harries, ―Language and law in Tanzania‖ Vol.10 (3) journal of African law [1966]164-
167

(Names of Author(s), title of articles in quotes, vol. No. of Journal, Name of the
Journal(underlined), year of publication, page number where the article is appearing).

Sometimes the mode of citation of periodicals is learnt by looking at the mode of citation set out by the
editorial Board of a particular periodical. Another way of knowing the appropriate citation of a periodical
is to make use of indexes to legal periodicals or index to legal citations, etc.

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LECTURE 3: LAW REPORTS/CASE LAW

In this part you are learning about law reports, what they are, what they contain, how they came
into being (who is responsible), their importance and how to locate them.

1. Case law/law reports.

2. Which Cases is Reported-Tanzania‘s example.

3. Format of the judgments - High Court (Unreported Case).

4. Tanzania Law Reports - Editing & Writing Guidelines.

5. Reasons for an Efficient System of Law Reporting.

6. How to Find a Case.

7. Citation of a Case.

8. List of Law Reports in the Library and how they are cited.

9. How to Read a case.

CASE LAW

1. Law Reports: Law reports are repositories of cases decided by the Courts -especially the Appellate
Courts. In the common law countries, Law Reports are an essential source of law. The requirements of the
doctrine of Stare Decisis and Precedent cannot be fulfilled without the availability of law reports.

As it will be noted in the course of studying law, law reports apart from providing information
relating to cases and rules of law laid down by the courts; contain information related to statutory
provisions etc.

Every student must be clear with what is meant by the term law reports; why it is necessary to have
law reports.; who decides which cases should be reported, the problems relating to law reporting in
Tanzania, and other information important for legal practice which can be obtained from law reports.

Information which can be obtained from law reports include:

(i) Courts whose cases are reported, names of judges of the courts, and details of their appointments,
retirement, and deaths. Obituaries for deceased judges and tributes to retiring judges;

(ii) Names of Attorneys and Solicitor/Attorney Generals,

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 (iii) Tables of cases reported;

(iv) Table of other cases judicially considered (by the cases reported);

(v) Table of cases cited (in the cases reported);

(vi) Table of cases cited and considered;

(vii) Table of statutes cited and considered (in the law report);

(viii) Tables of subordinate legislation cited and considered;

(ix) Subject Index or digest;

(x) Constitution of the Law Reporting Council and the names of the members of the Editorial Board;

(xi) The name of the Editor or Chief Editor;

(xii) Practice notes and directions of the Court for example the [l966] Practice Statement on
Stare Decisis in the House of Lords in England.

(xiii) Cases which have been taken on appeal;

(xiv) Method of citation of the law report;

(xv) Reference to, or notes

(xvi) Advance notes of cases to be reported in a forthcoming volume.

3.2 WHICH CASES ARE REPORTED IN LAW REPORTS

LAW REPORTING IN TANZANIA - CRITERIA FOR REPORTING CASES IN

TANZANIA (EDITORIAL POLICY.

1. Whether the case states a new rule of law or restates in modern terms an old rule
of law or restates an old principle in terms of particular applicability to Tanzania
or modifies a rule of common law to suit particular circumstances of Tanzania.
John Nyamuhanga Bisare V.R.[1980] TLR, 6-13 & 273 (C.A.).

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 2. Whether the case declares, extends, qualifies, or distinguishes an existing rule of
law. Nvarnuhanga Bisare V R [1980] TLR 6-13 & 273 (C.A.).
3. Whether a case declare a new rule of law or the common law as guide from
another country. John Nyamuhanga Bisare vs. R (1980) TLR 294 (C.A).
4. Whether the case interprets a clause commonly found in contracts wills e.g. Sluis
Brother (E.A.) Ltd. V.M. Mathias & Tawaro Kitowari [1980] TLR 294 (C.A).
5. Whether the case is one in which the judge deliberately sets out to clarify the law
for the benefits of the lower courts. Amratlal Donador maltser& An. T/A
Zanzibar/silks stores vs. A.H. Jariwalla T/A Zanzibar Hotels[1980] TLR 31(C.A)
6. Whether the case is one in which the judge gives instructions or points of practice
or procedure. Nazar M.H. Ladale v. Gulamali Fazal Jarnrnoharned [1980) TLR
29 (C.A.).
7. Whether the case deals with quantum of damages and may be regarded as helpful
in establishing uniformity in the making of such awards.
8. Whether the case establishes an old rule of law so as to demonstrate that it is still
alive; R.V. Eria Sebwato [1960) EA 714, Waziri Amani V R, [1980] TLR 250
and Shiku Salehe V.R., HC CR. App. No.1 of 1987 (unreported) .
9. Whether the case declares a rule of law that has not yet been well established or
clearly enunciated.
10. Whether the facts of the case are of a kind that could not have been in the
contemplation of the judge who laid down the principles which have been
applied to them.

Procedure for taking cases for reporting:

Copies of judgments of the High Court (and Court of Appeal) should be made available to members of
the Editorial Board who would meet to make a final selection ... the managing editor do ask all judges to
send in copies of judgments they consider worthy of inclusion in the Law Reports.

Adopted from the Editorial Policy of Law Reports in Nigeria and views of Burrows, K.C. (19420 58
LOR. 96-106.

3.3 FORMAT OF JUDGEMENT - High Court: (Unreported)

1. Name of the Court and Place.

2. Capacity of the Court (original or appellate jurisdiction

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3. Name of court and number of case and year indicating also original case No. (Civil or criminal)

4. Name of the statutes of Magistrates or judges(s) from whom appeal originates

5. Name of parties

5. Charge and court (Criminal cause)

6. Title (Judgment etc)

7. Names of Judges and their Judgments

8. statement of facts which the corresponding provisions

9. Issue or Point of Law involved

10. Law involved (statutory)

11. Position of Case Law on the matter

12. Decision

13. Order of the Court

3.4 HOW TO FIND A CASE

You can find /identify a case by using anyone of the following methods:

1. Know the name of the case - e.g. John Nyamuhanga Bisare V R;[1980]TLR 6.

2. Locate reference to a case and cite all the references shown e.g. John Nyamuhanga Bisare V Rep.
[1980] TLR 6-13 & 273 (CA.)

3. Up-date the case by the subsequent cases on the same principle e.g.

a) Divorce and Division of Matrimonial Asserts - B.A. Rwezaura, "Division of Matrimonial Asserts
under the Tanzania Marriage Law" in Verfassung und Recht in Ubersee Vol. 17 No. 2 at 117-193

b) Time of limitation in redemption of clan shamba Elizeus Rutakubwa v. Jasson Angelo - civil
Appeal No. 21 of 1987 (Unreported); Yeronimo S/O Atanase v. Mukamulani dlo Benedicto -
(PC) civil Appeal No. 162 of 1982 (Unreported); Jeremiah Venanti v. Clementina Alexander HC
civil Appeal No. 94 of 1983: Veronika Mugashera v. Evanaelina Muaoshora & 2 Others - (PC)
HC civil Appeal No. 95 of 1985 (cases which deal with whether or not the time of limitation for
the redemption of a Clan Shamba is three months or twelve years) .

4. Use of annotations or Indexes e.g. the East Africa Law Report Index and Note-Up 1957-1967 or

any other annotations and Indexes available in the LaYi Library or Text book indexes.

5. Subject Matter Method - Whether or not there are cases decided on the subject; e.g. pending trial

Page 25 of 141
 or Appeal.

3.5 CITATION OF CASES IN LAW REPORTS

There are various methods of citing cases from Law reports.

These include the following:

(a) Haldenl -v. Haldenl[1966]2 W.L.R.3 1481.4

(b) Cbongol v. Municipal Council of Kisumu1[1971]2 E.A.391.4

(c) Juma Hassanil v. Habibu Saluml[1975]2 L.R.T.3 n. 27.4

(d) Mwinyijuma v. Rl [1971]2 HCD3 n. 61.4

(e) R1 V. Dudley SteDhensl [1964] 142 QBD3 2734

Each of the examples has included the following:

1. Names of parties involved in a case;

2. Year in which the case is reported;

3. Name of the series of Law Reports in which the case is reported. The name of the series is often
abbreviated. If there are several volume containing cases for the same year, the volume which
contains the year of case required is indicated.
4. The page number at which the case commences or in other reports number of the case i.e. HCD n.
or LRT n.

Here is a detailed explanation of the necessary steps and implications of citations:

(a) Name of the Parties

In civil Cases the name of the Plaintiff (the person bringing the action) comes first, followed by
the name of the defendant (the person complained against) e.g. Juma Hasani v. Habib Salim.

In Criminal Cases: usually the citation "R." V. smith is the abbreviation for the Latin words "Rex" (King)
or "Regina" is against smith or John or Malifeza - who is the accused person in a Criminal Offence. In a
criminal offence the accused person is accused on behalf of the Republic or crown.

Page 26 of 141
 The smaller letter "v" between the names of the parties to the action is an abbreviation of
the Latin word "Versus" Criminal cases or causes and "and" in civil Cases or causes
BUT Never "VI! or "Versus".

(b) Anatomy of A Report:

(i) The name of the Court in which the case was heard, the names of the judges with their
designations (M.R.; CB; L.J.J. C.J. Ag. J.P; V.P.: etc.) and the date on which the case
was heard (Master of the Rolls, Chief Baron, Lord Justice, Chief Justice, Acting
Justice of Appeal, Vice President).
(ii) A summary (in Italics) of the main legal issues of the case. (You are advised not to rely
on this summary because it is either necessarily complete or accurate).
(iii) The head note, which is a brief statement of the case, and the nature of the claim (in civil
cases) or charge (in criminal cases).
(iv) The Court's ruling is stated, with a summary of the reasons (held ... )
(v) In certain Law Reports, for example, All England Law Reports the major legal points are
cross referenced to Halsbury‘s Laws.
(vi) A list of cases which were referred to during the hearing.
(vii) In case of an appeal, a statement of where the appeal originates together with the
nature of the appeal to another court.
(viii) The names of Counsels who appeared for the parties. Whenever the abbreviation
Q.C. appears it means Queen's Counsel.
(ix) The Judgments(s) of the judge(s).
In Tanzania we don't have Weekly reports. But in England and some other
developed Commonwealth Countries there are Weekly Reports - as Unbound
Reports. These are cited as follows: 24 January 1978 part 4 [1978]1 All E.R 225-304.
These details will be found at top of the front cover of all England Law Reports. It
includes the date of the issue, the part (or issue) number and the year, volume and
page numbers covered in that issue.

(x) In some cases the date are printed in the square brackets (198), whilst in other cases
dates are printed in round brackets. There are certain conventions about the way in
which citations (References) to cases in the Law Report are written and these must be
studied and followed.

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 (xi) Citations of unreported cases: Nitin coffee Estates Ltd & 4 others vs. United Engineering
and J. singh Manik, civil appeal No. 15 of 1988 (unreported) Godfrey James Ihuya
and others v. R., criminal Appeal No. 45 of 1980(unreported). Alphonce philibert
v.R., court of Appeal of Tanzania, criminal Appeal No. 27 of 1979(unreported) cited
in Joseph marwa chacha vs. Republic,[1980] TLR 798(Draft). Waswa Gamashi,
Kamundo Gamashi and Kanyalali samyenge v. R., EACA Cr, Appeal case No. 51 of
1975(Unreported), Abdu Ludova v. Uganda; EACA criminal Appeal case No. 68 of
1975(unreported).

(xii) Conventions governing the citation of English Reports 1865-1875: (year) L.R.
Volume, abbreviation of series, page-for example Rylands V. Fletcher (1868) LR
3HL 330. 1875 to 1890 (year) Volume, Abbreviation for series (L.R. is omitted).
Page: for example:

Brodqen V. Metropolitan Railway Co.

[1877]2 App. Case. 666.
1891-Date (year) Volume within a year, Abbreviation for series, page; for example;
Carlil V.Carbolic Smoke Ball Co. [1892] 2 Q.B. 484. Date in round brackets is not of
major importance. Important is the volume number, for example :( 1868) L.R....540.
Date in square Brackets is an essential part of the reference, for example: [1895] A.C.
229.

Summary on citation of Cases:

Take note of:

(i) The name of the case, where it is reported (if unreported take note of the fact);

(ii) The judges and the proper abbreviation adopted in the Law Report for example:

A.C.J. -Acting chief Justice

B -Baron

CB -Chief Baron

J -Judge

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 C.J. -Chief Justice

P. – President

Ag. J - Acting Judge

J.A - Justice of Appeal

(Xiii) A case is important for the principle it lays down. But also for the process of decision including
legal reasoning. Essential in reading the case is to extract the reason for the decision
(Ratio decidendi) and any other rules of law not directly related to the reason for the decision
for that particular case (obiter dictum).

(Xiv) Cases are used by lawyers like cadavers used by Doctors. Cases are dead remnant of a lawsuit or
what came before the court in the past. Law students are expected to learn to dissect such past
cases in order to discover the basis for which court will decide a new case, cause or matter. In the
process of doing this student learn to distinguish between living law and the law in the
books. The former represent law in action and the latter consist of precedents. Case analysis
should be considered with reference to their application to cases yet to be tried involving
questions yet to be considered. The past is a mirror to the future. As soon as it is so said,
another problem emerges, that is, the existence of a gap between the study of law and the
Practicing of law. It is impossible to teach law courses as current legal events. One can‘t
understand the present except by learning the past. At the same time one cannot profitably study
contracts, torts or property law except by considering it in relation to the present and the future.
The lawyers business is to relate decided cases of the past to the unresolved conflicts of the
present and future [Cooper, C.E., Living the Law, Indianapolis 1958].

Page 29 of 141
3.6 HOW TO READ A CASE4

How to read a case will depend on the purpose for which a case is read. There are major methods of
reading a case. The orthodox reading method and the unorthodox one. As student of law both methods
will used depending on the stage of your study. The orthodox reading as a case consists in the making of
précis or briefing of a case or what we shall term a case note. This covers the name of the court, name of
the parties, citation, coram, the material facts of the case, the main legal issue(s), legal argument advanced
by the parties before the court, the holding, the reasons for so holding (the ratio decidendi or rule of the
case); and any other rules of law not directly relevant to the material facts of the case (Obiter dicter) and
the order of the court. It may include a personal opinion on the court‘s use of authorities or precedents.
Treatment of procedural issues correctness of the decision and reasons for the decision; use of opinion
delivered from text book writers, journals and other relevant materials, and any other view on what has
influenced a court‘s/tribunal‘s decision. All these matters are necessary because every case arises out of a
fact situation and, when brought to court/tribunal for determination, the court has to decide which rule of
law should be applied. The lawyer‘s task is to find decided cases involving similar fact situations
(Precedents) in order to properly argue a case for his client. A judge too, will do the same and often than
not he will be assisted by the lawyers representing the parties. Thus these lawyers must write their case
précis and hand them over to the court. It is because of this and other purposes that, how to read a case
becomes very important.

A case must be seen as a written memorandum of a dispute or controversy between persons I telling with
varying degrees of completeness and accuracy, what happened and what each of the parties did about it,
what an impartial judge or tribunal did in the way of bringing the dispute or controversy to an end and the
avowed reasons of the judge or tribunal for doing what was done. Having known these details may help a
lawyer or judge to use such a case as against other cases in diagnosing conditions of doubt. Examples will
be found in comparing Donoahue v. stevenson[1932] AC 562 with Farr V. Buttlers[1932J 2 KB 606;
Hedley Byrne & Co. v. Heller & Partners Ltd. [1964J AC 465 and Grant V. Australia Knitting Mills
[1936J AC 85 or it can be used in attaching an adverse precedent, for example B.A. Rwezaura's article
"Division of Matrimonial Asserts under the Tanzania Marriage Law" in Verfassuna unct Recht in
Ubersee, Vol. 17 No. 2 at 177-193 in which the court/s trend of denying women's right to matrimonial
property is ana lysed and criticised. But it can also be used in boosting the precedent value of a favourable

4
[Twining, W. & Miers, D: How To Do Things with Rules, 3rd Edn. App. TV pg. 450 ff.]

Page 30 of 141
precedent for example what has been done by the Court of Appeal for Tanzania in KIUTA's Case in
relation to the precedent value of Dodhia V. National and Grindlavs Bank Ltd. [1970] EA. 195 (K).

Group of Cases:

In the course of studying law subjects, a group of cases will be used either by way of synthesizing
relevant precedents on a single questions of law. In the law of tort-negligence; on the law of evidence-
circumstantial evidences; the law of contract-the doctrine of fundamental breach, in land law-Rent
Restriction etc. the reasons for doing so may be to resolve doubt about the law or constructing an
argument or making an exposition on the legal topic in question. What is required would be to make a
correction of authoritative decisions and argument about the questions and by referring to policy issues
show conflicting precedents.

A group of cases can be studied just to show their sequences on a particular topic-E. Levi, Introduction
to legal Reasoning, or J. Farrar, Introduction to legal method 1979 App. 3 did this on the notion of
negligences. One can do almost the same things but by studying a sequences of marriages cases before
court in East Africa during the colonial period. Such cases would be studied for the purposes of
demonstrating how the court in the course of applying existing legal rules develops new rules. Further,
would be to illustrate methods of reasoning and factors other than legal which influence court‘s decisions.

Another way in which a group of cases are useful is by trying to analyse styles of reasoning of
judicial opinion. This would be in order to determines whether a particular judge conforms to a particular
style of reasoning at a particular point in time or during a given period; or use them as an aid to predicting
the way judge or court is likely to respond to a particular point or line or argument or to compare and
contrast prominent style of individual judges, courts or legal traditions in different times or places. Style
of opinion referred to here are formal style and grand style( compare and contrast Mustafa J.A.‘s decision
with those of Mwalusanya J. or compare and contrast the decision of the late Mwakasendo J.A( as he
then was). Twining, W.L., Karl Llewallyn and the realist movement, 1985pp. 265-266 & 455; K.
Llewellyn, Brumble Bush, pp. 156-160 and style of opinion in East Africa‖- M.C. Mukoyogo, studying
law Skills- A guide for Beginners in law ( Faculty of law Mimeo 1988( Appendix IX).

Other purposes for which the group of cases can be studied would involve a critical analysis of a corpus
of opinion of a single judge or critical analysis of alleged political biases of one or more courts. In this
connections it is possible to study polygamous marriages, before british courts in East Africa, or cases

Page 31 of 141
involving the implementation of the Arusha Declaration or cases involving Preventive Detention Act,
1962 and Revolutionary situations or any other relevant cases on a given subjects.

Relevant cases would be-single judge Mwalusanya J. Mrs Agrein samwel kahigi Rwehumbiza v.
Ephraim kahimba-HC(RPC) civil appeal no.25 of 1933(unreported); Erizeus Rutakubwa v. Jason Angelo,
Hc (PC) civil appeal No. 183 0f 1982 (unreported); Martin s/o Lumumba v. The United Republic, H.C
CCr. App. No. 28 of 1984(Unreported).

Cases on Polygamous Marriages in East Africa: R. v. Amkeyo,(1917) 7 EALR 14; R. V. Oumin s./o
achada, (1915) 1 ULR 152; R. V. Obongo, (1920)31; Abdulhaman Bin Mohamed and another V.
R.[1963] EA (U).

Case on the implementation of the Arusha Declaration: Laiton Kigala V. musa Bariti[1975] LRT n. 40.

Mbarika Ujamaa Village v. Alvanda Mwalimu[1975] LRT n. 63 Msigwa & Others v. The secretary of
Kijiji cha ujamaa(Villages) Marocha, Civil appeal No. 23 of 1977( Unreported).

Case Involving preventives Detention: AG. V. Lesnoi Ndenai alias Joseph salevo laiser & Two
others[1980] TLR 619.

Uganda V. Commission of Prisons ex parte matovu[1966] EA 514.

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LECTURE 4.1 LANGUAGES AND THE LAW

Language is the principal tool of the lawyer‘s trade, and ability to write and speak, clear forceful English
is essential to success at the Bar.

Law is expressed through rules in the language which need to be studied and understood. As law student
you must quickly acquaint yourself with the language of the law. You must distinguish for instance
between Crime and Civil wrongs, Criminal law and Civil law, crimes and torts, Convictions and
punishment, contract from other relations, damage and damages, plaintiff and defendants, petitioner and
co-respondent.

Apart from acquaintance with legal terminology you should know that the language of the law is not
merely a reporting language but directive one. The principle aim is to influence people‘s behavior.
Thus legal language I s seen as means to a certain end. This characteristics does not matter whether the
law is written in English, Swahili or German. One should learn to distinguish language as it is known and
spoken by the people and such language as has been adopted for specific purposes(technical language).
The legal profession uses a specialised form of language. Such a special form of language is not peculiar
to law and lawyer. The legal profession unlike other profession is a profession of words. ―The language of
the law is a single grain of sand at the bottom of a great sea‖. [Mellinkof, D; language of the law, Little
brown & Co. Boston & Toronto 1963]

But the profession is concerned with rights, obligations, wrongs and incidental procedures. The
language of the law does not only express but conveys thought and images. The above finding can be
illustrated by the following examples from decided cases:

(a) Lord Justice Harman in Dary v. Leeds Corporation [1964] 1 WL.R 1218, 1224:

"To reach a conclusion on this matter involved the court in wading

through a monstrous legislative morass, staggering from stone to
stone and ignoring the marsh gas exhaling from the forest of
schedules living the way on each side, I regarded it one time, I must
confess, as a slough of despond through which the court would never
drag its feet but I have, by leaping from tussock to tussock as best I
might, eventually, pale and exhausted, readded the other side where I
find myself, I am glad to say, at the same point as at that arrived at
with more agility," by Lord Denning, M.R.

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 (b) Lord Devlin in Behrens V. Bentram Mills Circus Ltd, [1957] 2 QB 1 at 17-18:

"If a person wakes up in the middle of the night and finds an escaping
tiger on top of his bed and suffers a heart attack, it would be nothing
to the point that the intentions of the tiger were quite amenable‖.

(c) Lord Hewart in sidoup Building Estates Limited V. Sidery(1940 )

Traffic case 164.
Mr. Meston puts his case, such as it is very clearly. It
really comes to this: that if his case were different from
what it is, he might succeed; but as this case is what it is,
this appeal must be dismissed‖[emphasis supplies]

(d) Justice Samata in Easther Mponda V. Bakari Nahoda, [1982]TLR 202 at 203.
What I have endeavourer to state does not mean that if fresh grounds arose
after the first petition was determined warranting the appellant to make
another attempt to have the marriage dissolved no new petition could
properly be instituted. But I do not see how facts which are said to have
existed in 1974 could by any stretch of imagination be described as fresh in
1977. For avoidance of doubt it must be plainly stated that if after the
determination of the first petition, the respondent had behaved in a manner
justifies the dissolution of the marriage then the appellant is at liberty to
institute a fresh petition on the basis of such misconduct. The door to the
temple of justice is not shut against those who behave that they are entitled
to redress of any injury caused to them". [Emphasis added]

As the above cases examples show; some aspects of learning law are like learning a language. One way of
speeding up the process is to try and master as quickly as you can some basic legal vocabulary, like a
tourist learning a few useful phrases before visiting a foreign country (W. Twining: "Reading Cookbook"
in How To Do Things with Rules, 3rd Edn. London, App. IV).

Legal language departs from ordinary usage of the English language in a number of ways, for example,

Page 34 of 141
 (a) Some words are technical legal words which are unfamiliar to most or many non=lawyers
e.g. bailment, interrogatories etc.
(b) Some words are borrowed from Latin or Law French or some other foreign languages but
are used by lawyers as if they were English words, e.g. ratio decidendi, means rea
certiorari, per incuriam, fructus naturales (illegitimate children) animus revetendi,
cestuigue trust, or obiter dictum;
(c) Some words are or should be familiar to you, but nevertheless are technical terms that
have derived their meaning from the law, e. g. mortgage, lease, slander, murder, theft;
(d) Some words are familiar, but are used more precisely or in the special sense by lawyers.
Eg. Contract, considerations, license, case stated, livestock. These words are likely to
confuse the unsay because of thinking that they know them and what they mean [Blom-
Cooper, L.J; The Language of the Law, London, 1965]. In order to work comfortably one
is advised to use special dictionaries which are available in pieces of legislation (the
deprution sections) or consult legal Dictionaries. It will be deceptive to consult normal
English dictionaries only such words, phrases or terms.

However according to some authorities on this matter [William Twining in How To Do Things with
Rules] some words cannot be satisfactorily elucidated by dictionaries. These fall into two categories
namely (a) words or terms the meaning of which is a matter of legal convention or complexity. He gives
an example of the phrase "shall marry" which is found in the Offences against the Person Act (England);
the term fair rent" or the term possession. He advises that in order to master the meaning, of such words
one has to master the law. The second category (b) are some familiar abstract words which regularly
generate puzzlement when questions are raised about their meaning. Such words as right, rule, liberty
justice or even the word law. These words have been explained by legal theorists because they are central
to legal philosophy (analytical jurisprudences). These words carry with them certain connotations to such
an extent that they cannot be taken for granted.

It is important to decide when a dictionary can be of assistance in solving your problem and when it
cannot. Second you have to be in the habit of reading cases in which interpretation of various words and
phrase have been judiciary considered.

4.2 Language of the court and Language of the Law:

You must distinguish the language of the court from the language of the law. In Tanzania the language of
the court is both English and Kiswahili but the language of the records of the courts( except primary

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court), in English [Rules made under various piece of legislation: The Appellate Jurisdiction Act, 1979,
Act No. 15 of 1979: The Court of Appeal Rules 1979 as amended by the Tanzania Court of Appeal
(amendment Rule 3A) Rules, GN. No. 102 of 1979, GN No. 451 of 1983 provides

The language of the court is either Kiswahili or English but the judgment
must be in English.

Section 13(2) of the Magistrates Courts Act 1984 (Act No.2 of

1984) provides:

The Language of the District and Resident Magistrates courts is either English or Kiswahili but the record
is to be in English.

Section 13(1) of the Magistrates Courts Act, 1984 (ibid) provides:

The Language of Primary Courts shall be Kiswahili. What has been referred to above is the language
which is to be used by the court as well as parties to a proceeding when conducting a hearing. The
essence is that, parties to the proceedings as well as the court must have a common means of
communication in the course of the proceedings. But the way communication goes within the confines of
the court room that may be subject to further investigation. The manner documents are drawn and
presented before the court, the manner lawyers communicate with the Court or judges in terms of
addressing them, and the manner and style of presentation of arguments and judgment That be a source of
confusion to a normal non legal observer.

Page 36 of 141
 SUDI

A Short story

by

PILI

I SAT on a short stool in Mama Kidile's open-air kitchen as I had got used to doing for the last two years.
Mama Kidile was laboriously preparing her evening meal.

While the kisamvu was boiling on the open fire, she cut half an onion into minute pieces and presently
began grinding them skillfully between two halves of a coconut shell. She had already mixed together a
quarter teaspoon of tumeric powder with a bit of spices which would eventually be mixed with the
smashed onion.

"Tumeric powder, my God, it is so expensive: eighty shillings a kilo: You can't afford it. I buy it by
spoonfuls, fifty cents each. Not like the old days. In those days Washihiri would sell you tumeric powder
for a cent. But the old days, well ... " Mama Kidile said.

Her usual lamenting about inflation was rudely interrupted by a cockroach which was trying to escape
from the heat of the firewood. She swiftly picked up her slipper and at one fell swoop smashed it to death.

Mama Kidile was a well known figure in this neighbourhood. It was said that she had seen not only the
two World Wars but also remembered Maji Maji. She had married an ex-Arab slave owner and had
several children by him.

Occasionally, her grandchildren and great-grandchildren visited her, bringing presents and a little money
on which she survived. But she had stubbornly turned down all offers to go and stay with any of her
relatives.

Mama Kidile, who I figure, must have by now lived at least eighty-five years, if not more, occupied onc
room in the 'house' and like others paid thirty shillings every month to the owner. Actually the so-called
house was not much of a house at all.

It was a typical mud and wattle structure with thatched palm leaves as its roof. The tenants called it, not
without bitter sarcasm, 'mbavu za mbwa'. This house with some six rooms was owned by tone Mzee
Mwinyigogo who was one time a Mayor of the City and now a respected Party elder.

Page 37 of 141
My friend Sudi and his friend! who had been introduced to me only as Bob, occupied another room. The
other four rooms were occupied by an assortment of bachelors, one of whom I had often seen hawking
vegetables in the streets of Dar es Salaam.

About the other three, besides having a nodding acquaintance with them, I knew nothing. Their
occupation, origin or tribes were all only a matter of conjecture on my part. I had never dared ask Sudi
about them because he resented being prodded about his neighbours.

The truth is that I had never even dared to enquire how my friend Sudi and his friend Bob had managed to
sleep on that narrow bed during the day when sudi still had his job. The bed incidentally was the only
piece of furniture in that room.

The room itself was not much bigger than the bed either. I reckoned it must have been about six feet by
eight. On the wall facing the door the occupant hung their clothes; the side wall was decorated with
cellophane paper cut out from cellophane paper bags while on the opposite one. Bob had hung a pin-up of
a nude woman. Bob‘s fair lady was hardly discernible, however. The soot from the kerosene cooker
below.

MAJAMBAZI

Had blackened her beyond recognition.

Anyway, it did not require much intelligence to make a guess as to the use of the ill-fated bed in
the past. Two years of acquaintances with that neighbourhood and my close association with sudi was
good enough background to let me draw the conclusion that sudi and bob had hardly over slept together in
that room.

while Sudi would be doing his day-shift at the Twiga Nylon-Works, his friend Bob would be fast asleep
in that narrow bed. Bob, on the other hand, would go for his night-shift' - making the rounds of bazaar
shops, selecting his picks - leaving his friend Sudi the comfort of the sponge mattress, their only dear
possession. In short, the bed had been employed double-shift during those good old days.

"I know you have come to enquire about your friend", Mama Kidile, having emptied the spicy paste
into the "Sufuria of kisamvu", was now fully facing me. "Sudi, Bob and the others - al of them are
cooling their backs at the Central Police Station" There was the usual humour in Mama Kidile's
pronouncement, to which I had got used to.

Page 38 of 141
But this time the usual humour was combined with unusua bitterness which was strange to me. Never
before had I witnesses such bitterness in Mama Kidile's voice. "They came that night what was it? -
What's the day to-day? ...".

"Saturday ...‖ I said softly. "Yes, it must have bet Tuesday. A dozen of those people of peace came here.
They raided our rooms. They searched each one of us, abusing and swearing to us and calling us
majambazi'".

They searched our rooms and overturned our beds. In the course of their furious search, they found some
hundreds of hundred shilling notes packed in an envelope and tucked in under Sudi' mattress. There it
was. That was all the proof they needed. He could we, the poor, have money? *That is the fruit of the
loot1 one of them had barked while putting the envelope in his pocket. They herded Sudi and Bob and
others into their Land Rover and drove away. It was only because of my age - and may be because of i
sharp "tongue", added Mama Kidile, not without a sense of self importance, "that they left me alone".

POTENTIAL CLIENT

"Go my child, go quickly. Rescue your friend before their batons claim his second arm as well she
added.

I had no time to waste. Without even saying kwaheri', I left Mama Kidile, I hurriedly jumped over
the open sewage and made my way to Aggrey Street. The single thought that preoccupied me was to
reach Mr. Tomlison's bungalow at Msasani before six p.m. -before he got lost on his drinking spree.

Luck was on my side. I got the UDA as soon as l reached the nearest bus-stop. While I sat there
holding tightly the handle-bar and while the rickety Ikarus dangerously negotiated the sharp corners
of the narrow streets of Dar es Salaam, my whole two years association with Sudi began to unfold before
me like a motion picture. Let me translate that picture' into words.

It was a hot afternoon. The time was around three p.m. Mr. Tamlison had just arrived and entered his
office through the side door. I was furiously typing away demand notes: in between answering
phone calls and attending to clients.

Our reception room was full of people who had come to see Mr. Tomlison. Some of them I knew for they
ere our long-standing clients: others were coming for the first time. Some were businessman who had

Page 39 of 141
been allegedly involved in this or that shoddy deal while others were well-dressed, middle aged
bureaucrats charged with theft, etc., etc.

There were even one or two harassed house-wives who probably wanted to petition for divorce. Some of
the visitors had by now sat for more than an hour. Others had just come in. Regardless of who they were
or when they came, they all anxiously waited to see Mr. Tomlison: F.C. Tamlison, Esquire, Advocate.
Notary Public and commissioner for Oaths'.

MrTomlison was a well-known advocate in the city. He h been in private practice for the last twenty years
and was knc for not only winning cases but also for getting a lot of publicity in the newspapers.

There were differing opinions as to what exactly accounted f Mr. Tomlison's success, the public had no
doubt. They thought was brilliant because for one thing he was a great orator in court and for another he
won his cases.

His learned brothers, however, were a bit less enthusiastic. They knew that he didn't read much law nor
did his oratories contain much of it either. But he was a smooth talker and knew a magistrates, police
officers, judges and journalists personally. He could talk' to appropriate authorities and was more success
in doing so than his other learned brothers who too, of course talked' but with less success.

True, among the less successful were a handful who refused ^talk'. They were fresh from the law school
and fervently believe in law and justice. Presumably, with time, they too would lea the ways of
practical men'.

Anyway, to come back to the reason for Mr. Tomlison's succes actually neither Mr. Tomlison's learned
brothers nor the members the public were quiet right. I had been working with Mr. Tomlis as his clerk
for the last five years and knew the inside out of h office.

I knew not only how Mr. Tomlison worked but also how the leg system worked. The truth is that Mr.
Tomlison did not rely on a one method for his success. He combined his brilliance in court (and,
admittedly, occasionally he was capable of ingenious legal arguments) with his smooth talk' to
appropriate authorities. R L~l He did not flinch from loosening his pockets or tampering with evidence if
that was what would win him a case. His sole motto in life was to win a case by hook or crook and to
make money by hook or crook. And that is exactly what he did.

Fortunately for Mr. Tomlison, the legal system itself and those who ran it accommodated him perfectly. It
was not so much that the legal system had adapted to the likes of Tomlison, rather it was the likes of
Tomlison who had adapted themselves to the legal system. Or at least that is how my clerical head

Page 40 of 141
explained the state of affairs that I observed in its minutest details day in day out Mr. Tomlison himself
summarised the whole situation in a nutshell when he often remarked humorously; "My binding authority
is not books but bucks".

But to return to my friend Sudi. As I said, I was furiously typing away when a young, tall man entered our
office, stood in the doorway for a while, throwing hesitant glances on both sides. He must have been in
his twenties although he looked older and worn out.

He was wearing a trouser with big holes exposing both his knees, rubber slippers and a short sleeved
shirt. In his left hand he was tightly clutching a flat file while in the other ... he did not have another hand.
On his right should hung only a torn shirt sleeve without an arm in it.

Through the torn sleeve you could clearly see the stump wh the arm must have joined the shoulder and it
gave evidence o: freshly healed wound. I supposed that is what attracted the attention of the visitors as
well as mine. All of us stared at him slowly talked towards my table.

"I have a problem. I want to see the advocate", Sudi s as beads of sweat rolled down his forehead which
with great effort he tried to shake off by jerking his head from side to side.

"Have a seat", I said. "I will call you. The advocate very busy ...".

Now I had standing instructions from my boss that I should let anyone waste his time unless he was a
potential client': which I understood to mean, unless he

ACCIDENT

Was capable of paying fees. "My time is my stock-in-trade, know", Mr. Tomlison would often remind
me.

Sudi, from his looks and apparel, could obviously not qualify. But I knew that in the past Mr.
Tomlison had accepted people like Sudi. These were usually ordinary pedestrians who had b involved in
run-down cases claiming damages from the insurance company. Partly because of this and partly because
I somehow felt natural sympathy for this one-armed young man I decided I would interview Sudi to find
out his whole story. So I beckoned him follow me into an adjoining room.

Sudi's story was as simple as it was gruesome. For the last seven years he had been working
for Twiga Nylon-works Limited. He had joined as a casual worker but later was employed monthly as a

Page 41 of 141
machine operator getting some five hundred shillings a month. When he started, Sudi said, Twiga was
only a small concern employing a hundred workers. Now it had expanded and was employing more than
five hundred. He had helped to build that company, Sudi declared with some pride.

I knew, had it been Mr. Tomlison, he would have brushed aside such talk by saying: "That is irrelevant,
cut it out ...". Although I had failed into a similar habit when interviewing clients, this time I decided to
keep quiet and encouraged Sudi to go on.

On 26th February, 1978, Sudi continued, at around one p.m. he met bad luck. there was an accident. On
the floor near his machine there was a splashing of oil which Sudi had not noticed. He accidentally
stepped on it and his left foot slipped. In a desperate effort to hold on to something his right had landed on
a roller, slipped over it and was pulled in between two rollers. That was the last thing he remembered.
He had obviously fainted,

CHAMPARTY

His friends later told him that his arm was completely flattened like a piece of paper when they retrieved
it from the rollers.

Sudi was taken to Muhimbili where he stayed for two months. When he was finally discharged he
reported to his employers immediately.

No sooner had he entered the Personnel Manager's office, I was handed a notice of termination and was
paid fifteen hundred shillings in terminal benefits. "We are sorry but we can't employ a one-handed
man, you know", the Personnel Manager had said.

"But I have sweated for this company for seven years ... "Yes the Personnel Manager had, said, "we
don't need your sweat. We need your hands. I am sorry".

"What about my compensation"? Sudi had demanded.

Here the Personnel Manager, who had been speaking softly and pleasantly up to now had become furious
and had raised his vo "What compensation? You should be grateful that we have given your terminal
benefits and your salary for two whole months, could have easily dismissed you for absenteeism, you
know, don It waste my time any more. I have other people to attend]

Page 42 of 141
Sudi had walked out of that office totally depressed confused. He did not know what to do, for in the
whole big city of Dar es Salaam he had no one he could rely on. His old father ailing mother were back
in their village in Chalinze. He knew they would welcome him but they could not possibly support him.

And in any case what could he do in the village with only one hand? His closest friends were Bob and
Mama Kidile. What could they do either to support him?

Sudi had narrated the whole story to Bob who had reacted his typically violent manner. "If I had been
in your place, I would have killed the bloody Personnel Manager and the bloody tajiri' as well. I tell you I
have always told you. These people are no good. Look, I have bidden them farewell forever. Let them
sake money and I will take my share of it - whether they like it or not‖.

Actually it was much later that Sudi had told me this part of the story about "Bob. And. in tact vt was
Bob who had suggested to Sudi that he ought to see an advocate because as Bob had put it: "From my
experience I know advocates are wizards. They can perform many tricks and I am sure they can use one
you".

That is how Sudi had come to Mr. Tomlison's office and wanted assistance. Sudi as a person
and Sudi's misfortune aroused a lot of sympathy in me. I wanted to help. I thought I would be able to
convince Mr. Tomlison to take Sudi's case. So I did what I had rarely done before.

I jumped the queue of potential clients' and took Sudi straight to see Mr. Tomlison.

When Sudi saw Mr. Tomlison, a giant of a man sitting behind a big desk, he was a bit taken aback. It was
not so much his girth that had come as a surprise to him, Sudi told me later.

The reason he was taken aback was that he had expected to see an Asian for, for him, all advocates must
be Asians. He was therefore surprised to see a black man - as black as himself - and moreover, with an
English name, being introduced to him as the advocate.

I explained the whole story to Mr. Tomlison leaving immaterial' details and showed him
various medical reports from Sudi's file.

Mr. Tomlison turned to Sudi and said:

Page 43 of 141
 "Usually I don't take such cases; and if I do, I charge high fees, not less
than ten thousand shillings".

"But I don't Have a single cent ...‖ Sudi interrupted soft "Yes, I know. I know that. But I feel sorry for
you. look I will help you. I will make a claim on your behalf charge you a small percentage - about
thirty per cent - if we win. Is that acceptable"? Of course, Sudi agreed. And, of course] without
realising that, that was an illegal deal.

In legal language what Mr. Tomlison was proposing is called champarty' which in Osborne's Law
Dictionary is defined as "offence of assisting a party in a suit in which one is naturally interested with
a view to receiving a share of disputed property". But champarty or no champarty there was no other
way in which Sudi could be helped and I wanted Sudi to be helped

TRIUMPH

I was therefore pleased when Mr. Tomlison told me to open file for Sudi and record his interview.

During the two years that Sudi's case lasted I saw him v often and we became very close friends. I often
visited Sudi at his place and that is how I also came to know Mama Kidile and Bob and that
neighbourhood behind Aggrey Street. As a matter of act during all this period Sudi depended on Bob and
me for his survival although it was clear that he resented this dependence; and yet was helpless.

Sudi would often dream aloud of the day when he would win his case. "The first thing", he would
tell me, "I would buy khangas for my mother, even on the black market. I would give Bob some money to
learn driving so that he becomes a driver and earns an honest living. The next thing: I would catch a bus
to Chalinze. Build a house for my old people and buy a plot of land to cultivate. I am fed up with city life.
It has robbed me of everything, even my hand ...". And his face would become serious as he would start
reminiscing about his Nylon' days.

That day finally came Sudi won a claim of thirty thousand shillings. That is what a hand of a worker was
worth, the Judge had decided.

Some days later, on a Tuesday morning to be exact, Sudi had come to our office to collect his money.

Page 44 of 141
"Yes, my boy, thank Tomlison……. ". Mr. Tomlison had said with undisguised sense of personal triumph
and self-congratulation. "Now as we had agreed, I take nine thousand shillings as my fees. I have also had
to incur some incidental costs which cannot be claimed from the defendant party. these include the costs
of ‗talking' to appropriate

BUNGALOW

Authorities. Altogether they amount to three thousand shillings.

Mr. Tomlison was shuffling the pages of a thick book as if he was reading the costs therein: a
practice Mr. Tomlison always adopted to impress his illiterate clients. In fact, Mr. Toml: was only
shuffling the pages of his desk diary'.

"So that leaves you a clean eighteen thousand shillings lot of money eh"".

"Thank you", Sudi replied in his soft voice.

"I will give you cash. And you sign this paper signifying that you have received your claim in full".

Sudi put his thumb-print, took the big brown envelope without counting the money walked out of Mr.
Tomlison's of wearing a broad smile on his face.

That evening I met Sudi and we had a long talk. We together in a bar - a European bar, Sudi called it - and
drank - a European beer, Sudi called it. Sudi expounded to me in c detail his future plans.

He had already given a thousand shillings to Bob who promised to use it to learn driving. He had bought a
pai khanga for Mama Kidile and he now offered me five hundred shillings as a present. I politely
declined. Sudi had been a great fr: almost a brother to me and it had been my pleasure to assist I said in
my short ^submission', for, after a couple of beers had really sounded like a submission.

Sudi was going to catch a bus to Chalinze the next day. We promised to write to each other and he
implored me to visit Mama Kidile often. I had little realised then that anything could come in the way of
Sudi only to discover on Saturday that my poor brother and friend had never made it to Chalinze. Instead
he was again facing the officers of law, this time on suspicion of being a common thief.

My motion picture abruptly came to a stop as the UDA screeched to a halt near Mr. tomlison's bungalow.

Page 45 of 141
As soon as I got off, I walked towards Mr. Tomlison's bungalow. Mrs. Tomlison(a white
woman for she and his English name were Tomlison's gifts from his law school, the

PENNILESS

Lincoln's Inn) opened the door.

Mr. Tomlison was surprised to see me, for I hardly ever visited him at home. I knew Mr. Tomlison was
rich but the extent of his richness only now began to register on my mind when I saw the inside of his
posh bungalow. It was a kind of thing I could imagine a white governor or a rich Asian industrialist
having. But an African advocate?! However, I didn't have much time nor the inclination to observe in
detail the gadgets in Mr. Tomlison's living room.

I quickly told Mr. Tomlison what had happened to Sudi. "So what do you want me to do?".

"But, Sir, he has now been detained for almost three days without being brought to court".

"Well, why should that surprise you? After all, he is common man. Even bigger people than him
have been detained" Mr. Tomlison confidently.

"But surely we can file habeas corpus" , I said with some diffidence.

"I know that Pascal I know you have picked up a bit from me but you don't appear to have picked up
enough business. I cannot defend penniless ‗jambazi'".

PSYCHIATRIC

Mr. Tomlison's emphasis on penniless' did not escape me. Because I, More than anyone else, knew that
otherwise. Mr. Tomlison had no qualms about defending xmajambazi' as such.

I knew that was the end of the matter and saying thank I began to walk out of Mr. Tomlison's bungalow.

"Pascal", Mr. Tomlison called out, "I might do you a favour. Take this note and give it to
Ralph, the Superintendent. It might work, I don't know. But that wont release your friend. It
might only bring him to court".

Page 46 of 141
"Thank you, Sir, thank you very much. I am much obliged. And I bowed - as they do in court - and
gracefully walked out.

The note was duly delivered to Ndugu Ralph and my friend was duly produced before a magistrate on
Monday morning.

Sudi walked straight to the dock. He did not even care to look around him. One by one charges were read
out against him Sudi was asked to plead. Sudi remained completely quiet. He not say a single word.

When the Magistrate began to wonder and inquiringly the Prosecutor, the Prosecutor said: ¬

"I am sorry your Honour. But the accused has behaved in a funny manner since
he was arrested on Saturday. We suspect he has some mental problem. I would
therefore request the Honourable Court to adjourn this case and keep it for
mention on 15th June. Meanwhile, may the accused be removed to the
Muhimbili Psychiatric Ward for examination.

"Adjournment granted: Order accordingly".

"My God .... What has happened to my dear Sudi? A mental wreck.... What have they done to
him?" My sub-conscious cried out.

But my Conscious mind, disciplined by years of attendance at court, bid me otherwise. Without a word I
stood up made a bow and tiptoed out of the court room.

4.3 Language of Legal Documents:

Legal documents are couched in a language which to some people may look repetitive. What you
must understand is the fact that the language of the law must convey thought in a precise manner.
Thought must be in logical flow and the concepts used in that communication must at all times avoid
contradictions. Must be geared to emphasize the type of thought that is being conveyed.

In our example a person tells his friend ―Have an orange‖. The person who intend to give to a brother
an orange in the Donor and the recipient a donee. In law the donor must at all time say whether or not is
passing on mere possession if an orange or parting completely with ownership of the same. It must be
clear to the done that he has or h as not full powers in dealing with the orange which is passed to him or

Page 47 of 141
her. Thus, in order for the owner and possessor of an orange to part with both ownership and possession
in an orange and vest it in another person the following formulation becomes inevitable.

―I HEREBY GIVE AND CONVEY TO YOU ALL AND SINGULAR, MY ESTATE

AND INTERESTS, RIGHTS, TITLE, CLAIM AND ADVANTAGES OR AND IN THE
SAID ORANGE TOGETHER WITH IT‘S RIND? JUICE PULP AND PITS AND ALL
RIGHTS AND ADVANTAGES THEREIN WITH FULL POWER TO BIT, CUT AND
SUCK AND OTHERWISE EAT THE SAME NOT WITHSTANDING…..‖

Other example of the language of the law or legal documents are found in the following
extracts:

ARE APPLICATION:

IN THE BUSHTREKKER HOTEL OF TANGA AT MKONGE HOTEL

MISC. APPLICATION NO. 1 OF 1994

IN THE MATTER OF AN APPLICATION BY RECALCITRANT STUDENTS FOR LEAVE NOT TO

WRITE A CHAPTER ON 20TH JUNE, 1994

AND

IN THE MATTER OF AN INSTRUCTION TO WRITE A'CHAPTER BY 4.00 P.M. ON 29TH JtJNE I

1994

AND

IN THE MATTER OF INJURY DUE TO EXTREME FATIQUE

BETWEEN RECALCITRANT STUDENTS…………...APPLICANT

AND

INSTRUCTORS……………………………………..RESPONDENT

Page 48 of 141
CHAMBER SUMMONS

(Made under rules of natural justices)

LET ALL PARTIES CONCERNED appear before the Honourable DVC on the 29th Day of June 1994 at
4.00 p.m. or soon thereafter at the hotel bar counter as the Applicant can Pray for order that:

1. The applicant be allowed not to hand in their sample chapters as directed.

2. The applicant be allowed an extension of time to hand in their respective papers.

The application has taken out at the instance of the applicant and the affidavit of Luoga, F.D. shall be real
in support thereof and upon such other and further ground to be adduced to the hearing.

Under normal circumstances an application of this kind will be accompanied by other documents. It does
not appear in this form alone.

AN AFFIDAVIT

IN THE DISTRICT COURT OF…………………

AT………………………..

MISC. CIVIL CASE NO…………………………OF……………

1. .--------------------------------------------------------------------------}APPLICANT
2. ……………………………………………………………………..}

VERSUS

3.------------------------------------------------------------------------- RESPONDENT

AFFIDAVIT

I……………………………………………….of P.O. BoX …………………………the second applicant ,

do hereby make oath and states as follows:

Page 49 of 141
 1. That I am the 2nd Applicant and the present Application.

2. I have interest in the disputed land as I am the last born son of the first Applicant and according to
customary Law I have a heritable interest in the land.

3. That the respondent ………………………….in this application is acting through its

……………………..and the address of which its P.O. BOX………………………..

4. That the land in dispute was granted to the first applicant comprising of a two acre piece of land
by……………………in……………………the applicant has stayed I hereon with his sons,
including the second applicant, ever since.
5. That in……………gave land……………which included part of the land granted to first applicant
by……………………………………………….
6. That although…………………………….didn‘t define the status of the applicant over
land……………..treated by applicant as licensees or person for whom could recover possession
therefrom at any time.

CHANGE OF THE NAME BY DEED POLL.

By the deed, I the undersigned do hereby for my self absolutely renounce and abandon the use of my
former of………………………………………………and herein therefore do assume the name
of…………………………………………………..and the pursuance of such change of name aforesaid, I
hereby declare that I shall at all time thereafter, in all record, deed and instruments and transanction, and
upon all occasions whatever use and sign the said name of……………………………………so renounce
aforesaid. And hereby authorize all persons to designate and address me by such name of
……………………………only.

In witness whereof, I have hereunder signed my assumed name of…………………………………..and

have set my seal this day of 6 May 19…………

Signed, sealed and delivered at………………………………………..

By the above formerly known as………………………………………

In the presence of………………………………………………………

(A deed poll can take various forms these appears in the government Gazette, you are advised to look at it
for an appropriate form)

Page 50 of 141
GOVERNMENT PETITION AGGAINST JUSTICE JAMES L. MWALUSANYA

Following the government‘s statement clarifying the grounds for rejection of Justice L. Mwalusanya from
presiding over Rev. Mtikila‘s constitution petition, the family mirror is hereby publishing the full text of
the government application at the Dodoma High Court on June24, 1994.

AFFIDAVIT

I, KIPENKA MSENEMBO MUSSA, Christian, of P.O. BOX 693 Dodoma take oath and state as
hereunder:-

1. That I am a senior state attorney in the Attorney Generals chambers duly authorized to act on
behalf of the applicant.
2. That it is now the establishment practice of the High Court to bind a Hon. Judge who take an
action of a case to preside over it.
3. That civil case No. 5 of 1993 in which the applicant is the respondent was mentioned before the
Hon. Mr. Justice J.L Mwalusanya whom has issued direction and is intent upon presiding over it.
4. That Mr. Justice Mwalusanya is author to a treatise title ―UPANUZI WA DEMOKRASIA NA
UIMARISHAJI WA HAKI ZA BINADAMU KATIKA MFUMO WA DEMOKRASIA YA
VYAMA VINGI TANZA1 which is judicially noticeable.
5. That in paragraph 4 of the amended petition the petitioner has demanded a National
Constitutional conference or a broad based Commission of drafting a new constitution as his
alleged constitutional basic right.
6. That in his treatise Mr. Justice Mwalusanya is of the view that such a demand is maintainable in a
court of law (Pg. 10).
7. That Mr. Justice Mwalusanya Counsel the intending petitioners OD how cO couch ~heir
argument once the matter is brought in court (Pg. 10-11).
8. That in paragraph 5 of the petition the petitioner alleges that a referendum on the status of the
Union is a Constitutional right and has demanded for the same.
9. That Mr. Justice Mwalusanya addressed himself on the issue of a referendum on the status of the
Union and took the stand that it must be sought from the people through the Court (Pg. 19-20) .
10. That again in paragraph 5 of the petition the petitioner alleges the government has been
unconstitutionally adding union matters contrary to the Articles of the Union.
11. That Mr. Justice Mwalusanya addresses himself on the issue of Union matters and takes the
stand that the Government action was contrary to the articles of the Union (Pg. 18-19).

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12. That the petitioner alleges in paragraph 6 that the provisions of 88.8, 12, 6 and 64 of the
Societies Ordinance are violative of the freedom of association.
13. That in his treatise Mr. Justice Mwalusanya declares that all the 40 enactments enlisted in book
three of the Nyalali commission as oppressive are unconstitutional (Pg. 7).
14. That the societies ordinance is listed in Book three of the Nyalali commission (Pg. 10) ..
15. That in paragraph 7 and 8 the petitioner alleges that his basic right to freedom of association is
offended by the provisions of sections 40(4), 41, 42 and 43 of the Police force ordinance.
16. That in his treatise Mr. Justice Mwalusanya states without reservations that sec. 40(1) and 42 of
the Police Ordinance are unconstitutional.
17. That Mr. Justice Mwalusanya did in fact declare that S. 41 of the Police Ordinance is
unconstitutional in the (Dodoma Registry) original Appeal No. 90 of 1992 (Rev. Christopher
Mtikila's and others V B) .

18. 18That the Republic contested the decision in the court of Appeal and the Appeal is yet to be
heard (Cr. Appeal No. 98 of 1993).
19. That in paragraph 9 the petitioner alleges that the right of a citizen to stand in elections as an
independent Candidate has been denied.
20. That Mr. Justice Mwalusanya addresses himself on this issue in his treaties and declare thus
Hivyo sheria yeyote inayombagua Mwananchi
kutoshiriki kugombea Kiti katika uchaguzi kwa kuwa eti
sio Mwanachama wa Chama Cha Siasa ni sheria batili"
(Pg. 12).

21. That the petitioner in paragraph 10 alleges that Newspapers Act and the
Tanzania News Agency Act violates constitutional right to freedom of expression.

22. That Mr. Justice Mwalusanya in his treatise declares, wit] reservations that the
Newspapers Act No. 3 of 1976 unconstitutional (Pg. 21).

23. That the contentions of the petitioner enumerated herein a have been denied by the
applicant in his statement of def and will be live issues at the hearing.
24. That taking into account Mr. Justice Mwalusanya's judgement stand on the
issues and his counselling intending petitioners I, and indeed any fair minded

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 observer entertain a reasonable apprehension that he might not bring impartial and
unprejudiced mind to the resolution of issues on account of pre-judgment.

WHEREFORE I play that the Hon Mr. Justice Mwalusanya, upon suggestion, refrains
from sitting and adjudicating on petition.

Dated at Dodoma this 21st day of June, 1994

SECTION IV: COMMON LAW CASE TECHNIQUE

Lecture 1: Introduction

In this part of the course we, are going to learn the theory behind how judges reason while
deciding cases. Then we shall apply this theory to particular cases or facts situations by looking
at actual cases decided by the Courts in England on the development of the Law of Negligence.
We must appreciate one point namely, that, for you to understand the way judges or courts have
developed the law, reading of actual cases will be mandatory.

The study strategy will involve you in reading cases decided by the Courts in England between
1837 and 1964, and one case decided by the High court of Tanzania in 1972 which in a way
imported the principles of negligence to Tanzania. A summary of each case accompanied by
relevant questions for understanding each case and its implications will be provided for you..-
For further clarification of some points, a list of further reading materials will be provided at the
end of this lecture.

You will also learn terms and concepts which are important and which guide legal reasoning in
the case law Technique. The concepts or terms include: common Law, equity, facts, material
facts, issues, holding, ratio decidendi, obiter dictum or obiter dicta, distinguishing of cases. stare

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decisis. Precedent, hierarchy of courts, analogy, induction, judicial hunch, deduction, positivism,
bold spirits, timorous souls, contract, fraud, fiduciary relationship, owner-invitee
relationship, duty of car negligence (proximity) etc.

1.2 Objectives

At the end of this lecture you should be able to:

(a) describe the hierarchy of the courts and the role it plays in the development of case law,

(b) explain how to extract material facts of the case from

(c) explain how to extract the rule of the case (Ratio decidendi) to be used in future cases from a
variety of rules in any given case, and understand the value of precedents in case law.

(d) evaluate how the rule of the case (ratio decidendi) can be used in a future case by a future court in
the basis of the doctrine of precedent,

(e) evaluate whether or not judges make law or discover the law in the course of deciding cases,

(f) Evaluate whether or not judges abide by the rigid rules of logic or are assisted by other factors in
the process of reasoning and in reading at decisions.

1.3 Definition of Terms or Concepts

We shall start this lecture by looking at the meaning of various important te.rms or concepts which apply
in case Law Technique. The terms or concepts include those already introduced to you in the introduction
section: Common law, equity, fact, materials facts, issues, holding, ratio decidendi, obiter dicta (dictum)
distinguishing of cases, stare decisis, precedent (hierarchy of the courts), analogy, induction, deduction,
judicial hunch, positivism, bold spirits, timorous souls contract, fraud, fiduciary relationship, owner-
invitee, duty of care, negligence, (proximity)

(a) Common Law:

What is meant by the term Common Law? According to Glanville Williams in his book Learning the
Law, London (stevens and sons) 1982 (Eleventh Edition Ch. 2: Common Law original meant the law of

Page 54 of 141
England that was not local law, that is the law that was common to the whole of England. the phrase may
also signify the law that is not a result of Parliament (legislature) but that which was created by the
customs of the people and decisions by the courts (judges). It can also mean that law which is not eauitv
(the law developed by the courts of Chancery). Common law may also mean statutory modifications of
the common law. Lastly it may mean that law which is not foreign, in other words, the law of England
when compared to the law of America, Canada or any other country.

(b) Equity:

What is meant by the term Equity? According to Glanville Williams (ibid) the term Equity in ordinary
language means natural justice this is so because originally the system was inspired by the ideas of natural
justice and therefore the origin of the name. Equity is law in the sense that it is part of the law of England
but not in the sense that Common Law carries.

(c) Fact/ Material facts:

What is the difference between facts and material facts. This term a fact refers to normal facts of life. For
example in a normal happening like a car or vehicle accident which may cause injury to another person,
the following may be categorized as facts: the driver of the car or lorry may be described to have been
tall, with a long beard, dressed in a blue shirt, brown jacket and white trousers. The same driver may also
be described to have been driving fast a vehicle which had defective brake, at the time it was raining and
the road was slippery. The injured person may bear the description that he was riding on a bicycle, on the
right side of the road, dressed in a white Kanzu and was also drunk. All what I have stated may constitute
facts but for the purposes of the law of negligence the following facts may be categorised as relevant or
material facts: the fact that the driver of the car or lorry was driving fast, that the car or vehicle had
defective brakes, and on the part of the injured person, the fact that he was riding on a bicycle while in a
drunken state.

It will be noted that the manner material facts are sorted out of a mass of facts to constitute material facts
has given rise to some controversy that will be dealt with later on. [Also see Twining, W. & Miers,
D; How to Do Things With Rules, London (Rep 1992) pp 175-180. See also Debate on How
To Determine the Ratio Decidendi of the Case in Lecture 2:1]. It (d) Issues (s):

(d) Issues(s)

What are issues? The concept issue(s) refers the point in dispute and the question or questions which the
court is called upon to answer in the course of hearing a matter and making a decision in the course of the

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judgment. The answer to the question(s) by the court (judge) leads towards the determination of the rule
(Ratio decidendi) and other statements of the law by the way (Obiter dictum) which may be of use to
future courts,

e) Holding:

What is a holding in a given case? A holding in a given case refers to the actual decision of the
court i. e. in whose favour the matter is actually decided. It may be in favour of the defendant or
the plaintiff. It is the holding which then helps the reader or future court looking at the case in
point to determine the rule(s) of the case (Ratio decidendi). It is always found at the end of the
judgment. It takes the expression of "Rule discharge", "order accordingly", dismiss the
application 'with costs", the appeal is allowed", the appeal must succeed", "Appeal dismissed"
and the like. Once one is able to find such a conclusion, it should be easy to extract the rule of the
case (Ratio decidendi).

(g) Ratio decidendi:

What is Ratio decidendi?

We are told by authorities on this question that: English Courts make a habit of following their
previous decisions within a more or less well defined limits. This is called the doctrine of
precedent. The part of the case that is said to posses authority is the ratio decidendi,5 that is to say,
the rule upon which the decision is founded. Finding the ratio decidendi of a case is an important
part of the training a lawyer. There is a relationship between material facts, issues, holding and
the ratio decidendi. It is not a mechanical process but an art that one gradually acquires through
practice and study. [Granville Williams, Learning the Law. London (Steven & sons) 1992 ch. 6].
As you might have noted in the above passage the concept of ratio decidendi refers to that party
of the case that is said to possess authority. It constitutes the reason for the decision as well as the
rule of the case itself. Please note (Important):

5
To be pronounced as raysio. See also Twining, W. Miers, How To Do Things With Rules.
(1976) pp. 160-also in

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 It is emphasized here that for you to appreciate how to extract the ratio decidendi of the case, you
will have to constantly keep reading the whole case yourself and not to depend on notes prepared
either by your teacher or fellow student.

(g) Obiter Dicta;

Obiter dictum is a mere saying by the way, a chance remark in the course of the judgment or
decision by the judge(s) which is not binding upon future courts. Such a statement, chance remark
or proposition may be respected by a future judge or court depending on the reputation of the
judge, the eminence of the court and the circumstances under which it was announced.Obiter
dicta are rule of law stated merely by way of analogy or illustration or a suggestion of a rule upon
which the decision is not finally rested. It is not regarded as binding because it may have been
made without full consideration of the cases on the point, it may have been made without full
consideration of all the consequences that may follow from it.

It is a rule base on hypothetical facts.

A judge in the course of his judgement may say:

"I decide for the defendant, but if the fact had been properly pleaded then I should have decided
in favour of the plaintiff":

Other examples of Obiter Dicta will be found in the following cases:

(i ) Per Brett MR in Heaven v Pender [1883] 11QBD 501

(ii) Per Lord Esher (former Brett MR) in LeLievre Gould [1893] 1QB491

(iii) Kiriri Cotton v Dewani [1960] EA 188

(iv) R.F Mboya v Mewa Singh Manqat [1969] HCD No. (Holding No. 3)

(h) Doctrine of Precedent

What is meant by the doctrine of precedent? The doctrine precedent you will come to understand cannot
operate unless you have also understood the doctrine of Stare decisis: According to the doctrine of
stare decisis courts or judges are said to be bound by their previous decisions in case where material facts

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are the same. It is a doctrine which looks for certainty; uniformity, ascertainably in the 1« while
allowing some leeway to flexibility. Flexibility realized through the doctrine of Precedent which not
only operates within the hierarchical manner of the Courts but also give the courts the ability to develop
new rules or disco1 them in the course of making decisions in situations which i appear novel or different
to those previously considered.

For example:

In case (a) The court may find that facts ABC (reckless driving, defective brakes, and a pedestrian
who was drunk) relevant in apportioning the extent of liability in a rundown case. It may find that the
driver was liable to the extent of 651 and the pedestrian (injured party) liable for 35%
negligence. The amount of damages payable by the driver (or whoever is to pay) will take into
consideration the extent of liability involved. This might be precedent in future. In case (b) the court
may find that facts ABC (reckless driver, defective brakes, slippery road) present but further find that C
(pedestrian was driving on the right side of the road and not in a drunken state of mind). The latter fact
situation may lead a court to say the facts in case (a) are distinguishable from the case in (b) and therefore
further say that case (a) is not entirely precedent or an authoritative case in deciding case (b) or if the
court chose to use the authority in case (a) then it must further say that the driver of the lorry will have to
bear an entire blame in the accident as opposed to what happened in case (a).

Distinguishing:-

What is distinguishing in the case law Technique?

According to Glanville Williams (Ibid: 7 5-77) distinguishing is the process of cutting down the
expressed ratio decidendi of a case. It can take the form of "restrictive distinguishing "non
restrictive distinguishing". Non-restrictive distinguishing occurs where a court accepts the express ratio
decidendi of the earlier case and does not to curtail it, but finds that the case before it does not within the
ratio decidendi because of some material different of fact (as in the example above). Restrictive
distinguish cuts down the expressed ratio decidendi of the earlier case treating as material to the earlier
decision some ft present in the earlier case, which the earlier court regarded immaterial, or by introducing
a qualification (exception) the rule stated by the earlier court.

This manner of distinguishing is said to play a very important part in legal argument, the point will
become clearer as begin studying the cases themselves.

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(j) Analogy:

What is meant by the term analogy? Analogy according Professor Edward Levi in his book Introduction
to legal Reasoning. The University of Chicago Press, Chicago/London (1948) means reasoning by
example. The same argument reproduced by Farrar, J. Introduction to Legal Method. London1977
appendix 3 and Twining, W. and Miers, D. in How Things With Rules. London 1992 (3rd Edition) pp.
260-263, 309.

Reasoning by analogy (sometimes reasoning by example) is typically reasoning from particular to

particular. Hospers puts the matter as follows:

An analogy is simply a comparison, and an argument from analogy is an

argument from comparison.An argument by analogy begins with a
comparison between two things X and Y. It then proceeds to argue that those two
things are alike in certain respects, A, B, C, and concludes that therefore they are
also alike in another respect, D, in which they have not been observed to
resemble one another .... It will be apparent at once that an argument from
analogy is never conclusive22 (p. 260)

A Classic statement was made by Edward Levi:

The basic pattern of legal reasoning is reasoning by example. It is reasoning from case to case.
It is a Three-step process described by the doctrine of precedent in which a proposition descriptive
of the first case is made into a rule of law and then applied to a next similar situation.
The steps are these. Similarity is seen between two cases; next the rule of law inherent in the first case
is announced; then the rule of law is made applicable to the second case .... The finding of similarity or
difference is the key step in the legal process. 23 Twining, W./Miers, D: How To Do Things
With Rules, London 1992 (3rd Ed.) pp. 260-261). Twining, w. and Miers further suggest that
such a description is an oversimplification of the part played by reasoning by analogy (or
example) in legal reasoning. Together with this criticism they encourage us to read Levi's
proposition because it is important in interpretation especially for its explicit account of the
manner in which common law concepts and doctrines quietly adapt to new situations and changing
needs in the process of application in that "the rules change as the rules are applied".24 [Twining, W./
Miers,D. 1992: 261]. [See also Lectures on Logic and Law].

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(K) Inductive Reasoning:

What is meant by Inductive reasoning? According to Twin W. and Miers, D. (Ibid 259-260):

Typically, Inductive reasoning is reasoning from particular to general, but the term may be used in a
broader sense to encompass all kinds of reasoning in which the premises support, but do not
compel, the conclusion, the following are examples of inductive reasoning:

In case A elements a, b, c, d, and e were present and the

plaintiff succeeded. In case C elements a, b, c, d, and e were
present and the plaintiff succeeded. In case c elements a, b,
c, d, and e were present and the plaintiff succeeded. Conclusion:
in all cases in which elements a, b, c, d, and e are present,
the plaintiff should succeed.

Such type of reasoning will be seen when treating the case of Heaven V Pender. [1883] 11 QBD 503
especially the decision of Brett, Mr. Twining and Miers remind us that inductive reasoning is concerned
with probabilities, and in normative contexts it is more accurate to talk of the relative strength or cogency
of (inconclusive) reasons. [Ibid: 260]. It is possible to develop new rules through inductive reasoning.
[See also Lectures on Logic and Law].

(1) Deductive Reasoning:

What is deductive reasoning? Again according with Twining, W. and Miers (Ibid) deductive
reasoning moves from general to Involves the use of syllogisms": Major Premise: Whomsoever being
married and who shall go through a form and ceremony of marriage recognized by law, ought to be
convicted of the offence of bigamy. Minor Premise: Allen being married, went through a form and
ceremony of marriage recognized by Law.6

Conclusion: Allen ought to be convicted of the offence of bigamy.

6
What is a syllogism? An argument taking the form of two proposition (termed premises) containing a
common word or term, from which a conclusions is necessarily drawn. For example all dogs have four
legs; Abba is a dog All dogs have four legs 1 Abba is a dog Abba has four legs Syllogistic reasoning
is one form of a priori reasoning [T.D. Riddal Jurisprudence. Butterworth 1991 p. 13].

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In deduction the conclusion must follow from the premises a matter of logical necessity; if you accept the
premises must accept the conclusion, as it is logically compelling conclusive. Deduction plays an
important part interpretation [P. 256]. It must be remembered that deducti\ reasoning is a closed
system of reasoning. It operates wh« you have already known rules either those laid in cases or statutes
and facts of the case are said to subsume into the ruleout of which a conclusion is reached. [See
Lectures on Logic and Law].

(m) Judicial Hunch:

What is meant by the term Judicial Hunch? The term refers to the motivations behind .judicial decisions.
The attitude of the judges, their thought traditions, factors like stare decisis. Judge‘s predispositions,
preoccupations, preconceptions, intuitions or the basis of judge's values which prevail in a community.
The judicial Hunch can be determined by examining the language which is employed by a judge in trying
to justify a decision to be reached or which has been reached. For example: Parke, B in Lanaridge V.
Levy made the following remarks:

We should pause before we made a precedent by our decision which would be an authority for an action
against the vendors, even of such instrument and articles as are dangerous in themselves, at the
suit of any person whomsoever into whose hands they might happen to pass, and who should be
injured thereby. Bowen, L.J. in Le Lievre V. Gould Categorically stated: We have not to consider what
the law might be, but what it is. Lord Esher (former Brett MR) in Le Lievre V. Gould stated: The
guestion of liability for negligence cannot arise at all until it is established that the man who has
been negligent owed some duty of care to the person who seeks to make him liable for negligence, what
duty is there when there is no relation between parties by contract? A man is entitled to be as
negligent as he pleases towards the whole world if he owes no duty to them. By using the judicial
hunch judges are able to foresee the results of the case before them and the meaning to be derived from a
precedent case or a statute. The judges are able to see the results in respect of the litigants and the
decision must be made in accordance with the class of cases and has to be consistent with the whole
system. Judges must be seen as sensitive indicators of social change by either registering such changes
in their decisions or by moulding an existing rule to suit a new situation. While on the one hand a judge
is moulded by the values he shares with other members of the community, on the other hand, he acts as a
custodian of those values. The judges and the court system as a whole must endeavour to meet the

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expectations of the community in general as well as a specific manner. The judgement must reflect
the sense of justice as understood by a broad base of the community. Judicial justification, therefore,
becomes the criterion for the judge's method of the decision.

Cases:

1. Bi Hawa Mohamed V. All seifu, Civil No. 9 of 1983 (Unreported) (C.A.).

2. Kapasyu's Case. [1968] H.C.D. n. 88.

3. Francis Nqaire V. National Insurance Corporation. [1972] H.C.D. n. 134 or [1973] E.A.56.

4. R. V. Amkeyo. (1917)7 EALR 14.

5. Laiton Kigara V. Musa Bariti. [1975] LRT n. 40.

6. A.G. V. Lesnoi Ndeinai alias Joseph \Saleyo Laizer & Two Others. [1980] TLR 619.

7. Doris Liundi's Case.

(n) Legal Positivism;

What is meant by the term Legal Positivism? Legal Positivism is the view that regards law as being that
which is decreed, irrespective of its content, in particular irrespective of its moral goodness or badness.
This position was laid down in Britain by the fathers of Positivism namely Jeremy Bentham (1748-1832)
and John Austin (1790-1859). For the purposes of this study this stand point will be exemplified by such
statements by the Courts (judges) as:

(i) We think this action may be supported without laying down a principle which would
lead to that indefinite extent of liability — we should pause before we made a precedent by
our decision which would be an authority from an action against vendors, even if such
instruments and articles as are dangerous in themselves at the suit of any person
whomsoever into whose hands they might happen to pass and who should be injured
thereby. Per Parkers in Langridge V. Levy. [1837] 2WtW 519.
(ii) I am clearly of the opinion that the defendant is entitled to our judgement. We ought
not permit a doubt to rest upon this subject, for our doing infinity so might be the means of

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 letting in upon an infinity of actions. Per Lord Abinger, CB. in Winterbottom V. Wright
[1842] 10 M + W 109.
(iii) A false statement carelessly made without a reasonable ground for believing it to be
true, may be evidence of fraud, but does not necessarily amount to fraud. Per Stirling, J. in
Perry & Others. V. Peek. [1889] 14 App. case 337. In all these instances courts were stressing
the point that in English law there were ascertainable rules of liability like contract. Unless
the complaining party was a contracting party or was privy to it, no liability in law could lie
for damages against the alleged wrongdoer.
Lord Esher, MR (former Brett MR) in Le Lievre V. Gould, 1893 stated, inter alia
"Liability for negligence cannot arise at all until it is established that the man who has been
negligent owed some duty to the person who seeks to make him liable for negligence. What
duty is there where there is no relation between the parties by contract? A man is
entitled to be as negligent as he please towards the whole world- if he owes no duty
to*them.
| Bowen, L.J. in the same case categorically stated "we have not to consider what the
law might be, but what it is

References on Positivism:
1. Ronald Dnorkin, Taking Rights Seriously Duckworth 1977 Introduction.
2. Ronald Dnowrkin, Laws Empire. Fontana Press, 1986 pp. 33-35, 37-43.
3. Lloyd Hampstiad/Freeman, Introduction to Jurisprudence 5th Edn.
4. J.D. Riddal; Jurisprudencer Butterworths London 1991 pp. 12, 24-25.
5. L.L. Fuller, "The Case of the Speluncian Explores" (1949) 62 HCR 616.

Note:
Legal Positivism:
According to Donald Dnorkin in Taking Rights Seriously Duckworth 1977 Introduction:
Legal Positivism or the theory of Legal positivism holds the truth that legal propositions
consist of facts about the rules that have been adopted by specific social institutions, and
nothing else. Legal positivism assumes that law is made by explicit social practice

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 or institutional decision; it rejects the romantic and obscure idea that legislation can be
a product an implicit general or corporate will. Legal posit rejects the idea that legal
rights can pre-exist any fo legislation; it rejects the idea that individuals or can have rights
in adjudication other than the r explicitly provided in the collection of explicit rules can
pose the whole community's law. Legal positivism i theory that individuals have legal
rights only in so f they have been created by explicit political decision explicit social practice,
[pp. vii, x, xi and xii],

LECTURE 2.1 DEBATES ON HOW TO DETERMINE THE RATIO DECIDEND

THE CASE

Discussion under this section is intended to help you understand that there is a variety of opinions on how
ratio decidendi of a case is extracted or determined, easiness of understanding this section presents extract
authoritative views on the question, for you to compare opinions and finally you should make up your
mind as to w views you will find appropriate in guiding your stud cases. To be compared are the views
Karl Llewellyn, Goohart Julius Stone and Twining & Miers.

2.2 Karl Llewellyn in The Brumble Bush Oceana Ed. 1951 45-49, 66-69: The ratio decidendi of the
case is the rule courts tells you is the rule of the case. It is based on the ground upon which the Court has
reached its decision. It can be narrow or broad. What you must look for when reading a case in order to
extract its ratio decidendi is to read the actual judgment in the light of the holding on the point of law or
fact or both (which was before the Court) . The basis of the judgment are the material facts, issues (the
actual dispute to be resolved) based on or limited by the form of procedure.

What then are the facts? Those facts which have a legal bearing and these must be categorised (i.e. a
motor car or motor vehicle) to represent a wider abstract category of facts. No case exists in isolation. It is
important for you to acknowledge the importance of other cases. This is so because the function of the
case system is that no case can ever have a meaning by itself. Its meaning is obtained from the
background of other cases. The aspect in which they are similar leads to what is legally relevant and to
operate alike or to operate at all upon the court. The state of the facts, it must be noted, are rarely if ever
quite alike. Thus the doctrine of precedent is Janus faced.

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Professor Goodhart in his article "Determining the Ratio Decidendi of a case" in Vol. 40 Yale Law
Journal (1920) 161-183 says that the judge reaches a conclusion upon the facts as he sees them. On the
face of these facts he bases his decision or judgment. So when you are analysing a case y must state the
material facts as seen by the judge and hi 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. He proposes the following steps to be followed in determining the principle of a case
(Ratio decidendi) First ascertain the material facts on which the judge has based his conclusion. Second,
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 be material
facts. A rule of Law is the same for all person, at all times, and at all places within the jurisdiction of the
Court. Fourth, not the summary of counsel's speech in a reported case (or judgement of an
unreported case) t ascertain other essential facts.

He advises on how to distinguish material facts for immaterial ones:

(i) There is a presumption that facts of persons, time place, kind and amount are immaterial,
(ii) All facts which the court specifically states to immaterial.
(iii) All facts which the Court treated as immaterial must be considered immaterial.
(iv) All facts specifically treated material,
(v) If no distinction is made between material and immaterial facts then all facts set out in
his opinion must be treated as material facts except those which on the face of value are
immaterial. In a case where there is more than one opinion (Heaven V. Pender or Donoahue V.
Stevenson) the principle of the case is limited to the sum of all facts held to be material by the
various judges. For example is Heaven V. Pender. Brett MR treated as material facts:

The defendant supplied ropes for use of the Plaintiff. The defendant must have known if he thought about
it, that the stage would' be used immediately by some such person as the plaintiff.

But according to Cotton & Bowen LJJ the material facts of the case were that:

The defendant was the owner of the dock and must be taken to have invited the plaintiff into his premises.
The plaintiff was injured due to the dangerous stage on the premises. Under these circumstances it
becomes difficult to generalise what the material facts are. We can safely say what facts were

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considered material facts by the minority judge and what the majority of the judges considered to be the
material facts.

The conclusion reached by the judges on the basis of material facts constitutes the principle of the case.

2.4 According to Julius Stone in his article "The Ratio of the Ratio Decidendi" in vol. 22 Modern
Law Review. (19 at 603-608: if the ratio of the case is based on the fact relating to the holding, then in
the case of Donoque vs. Stevenson there are nine facts which can be found a give rise to many rival ratio
decidendi which correspond to the number of distinguishable facts.

This is so because each of these "facts" are cap various levels of generality all embracing "the question
and hence a precedent and each yields di results in different fact situations. In the case of Donoghue V.
Stevenson which was a decision of the House of Lord (1932) the court imposed liability on the
manufacturer opaque bottle of ginger beer which was found to contain certain dead snail, for injury
(Shock and gastro entire the plaintiff, a scotch (Woman) widow who drank five bottle given to her by one
who purchased it from a r who in turn purchased it form the manufacturer.

From these material facts Professor Julius extracted different levels of stating the material facts:

(i) Facts as to the agent of harm (dead snails, other noxious physical foreign body or any noxious
foreign element physical or not, or any noxious element).
(ii) Facts as to the Vehicle of harm (an opaque bottle of ginger beer or any opaque bottle of
beverage, or any bottle of beverage or any container of any commodities Tor human
consumption, or any container of any chattels for human use) or any chattel whatsoever or
anything including land or building.
(iii) Facts as to the defendant's identity (a manufacturer of goods nationally distributed,
through dispersed retailers, any manufacturer, any person working on the object for reward, any
person working on the object, or anybody dealing with the object).
(iv) Fact as to the potential danger from a vehicle of harm object likely to become dangerous
by negligence or whether or not so).
(v) Fact as to the injury of the plaintiff (physical personal injury or any injury).
(vi) Fact as to the plaintiff‘s identity (A Scotch widow, or a scots woman, or a woman or any adult or
any human being or any legal person).
(vii) Fact as to the plaintiffs relation to the vehicle of harm (Donee) purchaser, from a retailer
who bought it from the defendant or the purchaser from such retailer or the purchaser from

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 anyone, or any person related to such purchase other person, or any person into whose hands the
object rightly comes, or any person into whose hands it comes at all.
(viii) Fact as to discoverability of agent of harm noxious element being not
discoverable inspection of any intermediate party; or not discoverable without saleability
destroying saleability of the commodity or nor discoverable any such party who had the duty to
inspect, or ndiscoverable by any such party who could reasonably be expected by the defendant to
inspect, or not discoverable by any such party who could reasonably be expected by the court or
jury to inspect,
(ix) Fact as to the time of litigation (the complained of were litigated in 1932 or any before
1932 or after 1932 or any time).

Note:

From each level of stating the facts there emerges within different levels of staging the same material
facts.

2.5 William Twining and David Miers in How To Do Things Rules. (3rd Edn.) Weidenfeld &
Nicolson London 1991 pp. 3 20 say that the term ratio decidendi comes into question "when
legal advisers, advocates, judges or experts interpret cases for their particular purposes",
questions which they ask themselves include the following:

For what rule(s) is this case an authority'? or for what proposition (s) of
law can this case be made to stand'?

They rightly point out that within the traditional legal theory the rule or proposition of law
asserted by the interpreter is called ratio decidendi. But within the traditional legal theory (as
already indicated) there is no agreement about what is entailed when this term is used. They quote an
extract from Neil MacCormic "Why Cases Have Rationes and what These Are" as follows:

It is a disputed question whether there is any such thing as a or the ratio in a given
case; it is disputed whether or not there is a ratio to be found authoritatively within a
given opinion, or whether the so called ratio is simply some proposition of law which
a later court or courts find it expedient to ascribe to an earlier decision as the ground
of that decision which may then be used to help to justify some later decision perhaps
even under the guise of its being that which necessitates the granting of the given later
decision. An extreme version of this view would presumably be that the ratio of a case

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 is whatever it is any time authoritatively said to be authority for, and thus no one
single proposition over time.73

Then they identify five usages of the term ratio decidendi which is found in the literature:

(i) The rule(s) of law explicitly stated by the judges as the basis for the decision, that is,
the explicit answer to question (s) of law in the case;
(ii) The reason(s) explicitly given by the judge for the decision, that is, the explicit justification for
the answer (s) given to the question (s) in the case;
(iii) The rule(s) of law implicit, in the reasoning by the judge in justifying the decision, that is, the
implicit answer's) to the question(s) of law in the case:
(iv) The reason(s) implicitly given by the judge for the decision, that is, the implicit justification for
the answer(s) given to the question(s) in the case: and;
(v) The rule(s) of law for which the case is made to stand or is cited as authority by a subsequent
interpreter that is, the imputed answer(s) to question(s) of law in that case [pp. 331-332]

In their view finding a ratio decidendi decidendi is not a formalistic exercise but it involves an element of
choice from a range of possibilities. There follows what determines the choice of a ratio decidendi and
how wide the range of possibilities should be:

1. In reasoning on a point of law one is not confronted with a single isolated precedent.
There is a collection of potentially relevant precedents. Each case must be read in the
contest of all other potentially relevant cases. There is no single way of determining a ratio
decidendi.
2. It is false to assume that in determining the ratio decidendi we should depend on the standpoint
of a judge, because it is not only the judge who interprets rules. Consequently,
advocates and other officials do interpret cases in process of trying to persuade courts to reach
decisions in favour of their clients. (See: Grant V. Australian Knitting Mills argument
pursued by counsel for the defendant; Hedley Byrne V. Heller the argument advanced by the
counsel for the defendant or in Ngaire V. National Insurance Corporation the argument
advanced by counsel for the plaintiff).
The other side, one should bear in mind the nature of the adversary system in which each
side in the cause of action will press on an interpretation of a relevant precedent which is
consistent with the desired results. A good advocacy consists in directing the attention of the
Court to the most plausible interpretation. * Note on the Nature of the Adversary System:

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 Mwakasendo, J.A. (as he then was) in the case of AMRATLAL DONADOR MALTASER
AND ARIOTH V. A.H. FARIWALLA [1980] 31:

Dilatory Nature Although the plaint in this case was filed in Resident Magistrate's Court in May 1969 I
note with grave concern the dilatory nature of interlocutory proceedings which did not to an end until
October, 1975, that is little over six years after the plaintiff filed his plaint in court. I cannot see good
round on the face of the record proceedings to justify this deplorable state of affairs…….the record
reveals a complete lack of any concern for dispatch on the of the court as well as counsels for
parties.

Time and again people have complained at the law's delay and to use Lord Denning's dequent words:
"counted it as grievous wrong, hard bear. Shakespeare sanks it among the whip and scorns of time.
Dickens tells how exhausts finances, patience, courage hope ( Also Allen V. Sir Alfred McAlpine &
Sons L [1968] 2QB 229 at 245.

The Role of the Court hunted to umpiring a game?

It would appear that the Resident Magistrate Court was of view that its role was limited umpiring a
game' between counsel of various parties to the suit no matter how it took to settle the score
between them. That is clearly not what a court of law should be or do.

If the law is not to be as ass, a court of trial has a duty not to only to follows the rules of procedure but
also to exercise some firm control over the proceeding before it and if need be, to impose and inforce a
time table for litigation.

Mr. Justice Templeman has said:

"The argument against that course has always been that litigation was a game which litigants or their
adviser were at liberty to play at their "own pace and that the only duty of a judge was to decide a
proportion of those few cases which survived to the last round and then to hand down lofty
judgments which enured for the benefit of posterity until they were reversed by an appellate tribunal".

A passage from a judgement by Lord Simon of Glaisdale in Central Asbestos Co. Ltd. V. Dodd [1972] 2
ALL ER at 1153 on the question of Civil litigation:

Litigation is the resolution of civil contention by methods preferable to violence. But that does not mean
that it is otherwise an inherently desirable activity. The rule of law is not to be equated with a reign of

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litigiousness. Litigation involves a call on scarce resources, and it is apt to & emotional and social
strains of its own; no one with experience of litigation would suppose is Miss Flite was a purely
fanciful creation. He the desirability of forensic dispatch. There be few circumstances in which
contentions with society can be prolonged unresolved without risk to the fabric of society.

Moreover dilatory procedures may defeat the very purpose of judicial process, namely to
vouch-safe just; since if litigation is prolonged, not only is tl waste of time and money and moral
energy, circumstances may change in such a way that \ would have been at the outset a just conclusion in
the end no longer so. Finally, delay will it more difficult for the legal procedure themselves to
vouch-safe a just conclusion evidence may have disappeared and recollection become increasingly
unreliable. Speedy rough justice will. therefore. generally be betl justice than justice worn
smooth and fragile with the passage of years. (Emphasis added).

2.5 In an article Title "Demystifying Precedent in English Law ―William Twining says that the term
ratio decidendi is longer of any analytical value in the discourse about t interpretation of precedents. In
his view a distinction must be made between explicit formulations of propositions of judicial opinions and
propositions which are implicit in the reasoning of such opinions and proposition of law imputed to
precedents by subsequent interpreters. He also calls for a distinction between answers to questions of law
(legal propositions) and justifications for such answers.

In his view neither Parliament nor the courts have attempted to lay down an authoritative definition of the
term ratio decidendi of a past case. Both institutions have resisted formalisation of the doctrine of
precedents in key aspects. This allows a certain amount of leeway in the interpretation of precedents.

Explicit formulations of propositions of law and propositions implicit in the reasoning in prior cases are

regularly invoked by lawyers and judges in later cases as part of their arguments. In respect of binding
precedents such propositions are often presented as if they are binding part of the case, but such ascertain
are often upon to challenge.

Common Law rules are not rules fixed in verbal form. And there is no theoretical consensus about the
correct way of extracting authoritative propositions of law from judicial decisions. The disagreement is
based in whether there can be precision in determining the scope of a proposition, further a great majority
of reported precedents today deal with interpretation of statutes or other rules fixed in verbal form. This
operates as a constraint to subsequent interpretation because the statutory or other text provides
a more clearly identifiable "encourage" for interpretation and argumentation that do the text of judicial
opinion. The precise nature and extent of such a constraint is much debated.

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As it has been pointed in the foregoing extracted notes. There are no hard and fast rules for determining
the ratio decidendi but as beginners in law you should be able to choose which one of these options can
best be utilised by you in order to quickly understand what cases present to lawyers.

LECTURE 3: DEVELOPMENT OF THE LAW OF NEGLEGENCES

3.1 Introduction:

During the second part of the 19th Century according to Fleming the law of negligence was
entering its second phase of its development. It saw the expansion of legal protection to
persons who got injured on country roads and city streets along rail roads and in factories.
Courts tried to use the so called antiquated rules in order to break through the narrow compass
within which the law of negligence in embryonic stage was gestating. Professor Edward Levi

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in his study of the period and the cases which were decided by the courts then tells us
that such development took a kind of a process which was circular in nature. There was a back
and forth movement manifested in three main steps, namely, the enunciation of the rule, the
application of the rule to a future case and the final establishment of the rule. We are further told
that, judges (courts) of that period were cautious not to extend the application of any rule beyond
what the then existing law allowed. They were not ready to open up the courts to a floodgate of
litigation, even in those cases where courts were seen to have opened up a new ground of
liability, such a ground was bound to face a number of qualifications. It has been contended
that judges were not ready to open up the Pandoras Box*. The judges considered themselves to
be content with pigeonholes of liability rather than broader rules of liability. As we shall later
see they operated on the strict rule of contract but slowly moved away from it when-ever
opportunity arose.

The cases to be treated were cases where those who were injured were third parties (people other
than those who had entered into contracts).

The courts or judges were called upon to determine the basis and extent of liability for payment
of damages in those cases where it was found possible and justifiable.

The importance of the Pandora's Box in the study of case law technique under the Common law
is that, judges will be seen to take precautions anytime they are about to lay down a principle for
liability. In one famous case which establishes the notion of negligence as we know it to day i.e.
in Donoghue v.stevenson, [1932J AC. 562 Lord Atkin while borrowing the example of a
neighbour from the New Testament, in order to establish the relationship between two person
quickly paused the question as to who is one's neighbour in Law?:

The rule that you have to love your neighbour becomes, in law, you must
not injure your neighbour: and the lawyer's question, who is my
neighbour? Receives a restricted reply.

You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour. Who in law I
is my neighbour? The answer seems to be: persons who are so closely and
directly affected by my act that I ought to reason'1bly have them in

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 contemplation as being so affected when I am directing my mind to the
acts or omissions which are called in question.

From this passage you notice that Lord Atkin does not intend to suggest that your neighbour is
everybody who comes your way, but such persons as the law contemplates are likely to be
injured by your action or omission. In the course of using the analogy of Pandora's Box, judges
are able to control the development of the rules not necessarily in accordance with developments
of the day. The judges will be categorised into two types namely, the Timorous Souls those who
were conservative through-out and

Important:

Pandora‘s-Box, what does the term mean? The Pandora Box refers to an account in
Greek Mythology whereby a young lady had been "married to one of the Greek Gods. In
the house where she was to later live was room which was kept under lock and key and
she was made to understand that she was allowed to open it. One day when her husband
and other perote were away, because of her curiosity Pandora opened the room in which
she found a Box which she opened only to let lose all the evils known to the world today.
[For a better account see: stephanie Dowrick, Greek Island Mythology, New English
Library 1974 pp. 11-12].

and the Bold spirit those, despite their conservative upbringing were ready to balance
developments vis-a injury in the community and thereby determining rule liability.

Both judges were positivists in that the rule which they applied were already in existence or
within what was accepted by the existing law of England.

The precedent value of the decisions will be se< be located in a hierarchical order of the courts,
name/f dfa {f&crse of £orcfe whose decisions until l were binding and after 1966 Lord
Chancellor's Pract.

Statement the House of Lords can depart from its previc decisions when it is right to do so [Lord
Chance 11q [1966] 3 ALL ER 77, Compare with Conway V. Rimmer [196 A.C. 910]. The

Page 73 of 141
decisions of the House of Lords are bindingon the courts below in the hierarchy. The Decisions
of t Court of Appeal are binding on the Court itself and those Courts of Co-ordinate jurisdiction
except in their instances which will be discussed under the doctrine Stare decisis later. Court of
Appeal decisions are binding on the other courts below it. The decisions of the Hi Court are in
theory binding on it and practically on a courts below the High Court in the hierarchy* The rule
laid down by the Courts will bear the following characteristics-using the example of a case of a
breach of a promise to marry: [Oliphant, ―A recture to stare decisis‖ in 14 American Bar
Association Journal 71-73, 159 (1928)

(i) Suppose you promised to marry A (your girlfriend) and A proceeded and told her
mother about it and her mother induced her not to get married to you. Can you
successfully sue her mother for inducing a breach of a contract to marry? In case
the matter went before a Court of Law it would be necessary to determine whether
or nJt there exists a rule on the point that a mother is allowed to interfere in
marriage arrangements of her daughter. Then ascertain whether or not you are one
of the categories of persons to whom the law allows such an interference to be
invalidated such a category, courts are likely to decide that, that mother's
interference was right in law and that under such a situation she is not l~able to
pay damages to you.

The possible rule that the Court will emerge with reads as follows:

"Where a mother persuades a daughter not to marry a person of her choice the prospective
husband cannot recover in damages". Such a rule will be a ratio decidendi of- the case. But such
a rule is restricted to interference to marry by a mother to her daughter. It is not intended
circumstances where a mother interferes with her son. The ratio decidendi in the above case is
narrow.

(ii) A wide rule may be developed in the second situation where you find father's and
mothers being allowed by the law to interfere in the marriage arrangement by
their children be their sons or daughters. The rule may read: Fathers and mothers
may interfere in marriage arrangements of their children without risking liability.

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 The second rule is broader than the first rule. Another rule may allow parents to
interfere in the affairs of their children qnd the third rule is likely to be broader
than the one in the first and second examples. Thus rules will be seen to appear at
different levels of abstraction depending on the level of material facts relevant to
the law in question [Read: Julius stone, "The Ratio Decidendi of the Ratio
Decidendi" in 2 Modern Law Review [1959] 597 at 603]

In laying down the rules, judges will be seen to be influenced by certain

value considerations: social, economic, cultural, political, religious, so that, you
should .not see them as though they operate like machines. For example Biron, J.
(as he then was) In Francis Ngaire V. National Insurance Corporation(1972) HCD
n. 134 or [1973] E.A 56

I Therefore I have not the slightest hesitation in holding that the corporation is
under a duty to exercise due care and diligence in giving Mr.Chakera a true answer to his
enquiry as to whether the vehicle which was involved in the accident, which caused so much
damage and injury to the plaintiff was insured by the corporation at the material time. And it
cannot be gainsaid that Mr. Mwaikambo was extremely negligent in giving false information he
did for according to Mr. Salemohamed, all he had to do was to look up the policy file wherein it
would show the date the vehicle was insured with the corporation, reflects very
adversely on veracity of the evidence of Mr. Mwaikambo, for he categorically
stated that he consulted the claims file and that file showed that the vehicle was insured from
20 April, 1968 to 19 April, 1969. If he is to be believed on this, is negligence is all the
more aggravated. Be that as it may, it is possible that Mr. Mwaikambo failed to consult
the policy file and assumed that the vehicle must have been insured with the corporation because
by the Insurance vesting of Interests and Regulation) Act, 1967, Para V.S. 13, the
corporation was granted the monopoly in this country for handling such insurance.
That incidentally, would confirm Mr. Chakera's evidence that Mr. Mwaikambo remarked
―who else could have insured the vehicle". [P. 65 of the Judgement in [1973 ] EA] .

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 Other examples drawn from cases decided by the Courts in England will bear the following
indicators:

Parke, B. in Langridge v. Levy [1837J 2M + W 519 said inter alia that:

We are not prepared to rest the cause of action upon one of the grounds on which
the learned counsel for the plaintiff sought to support his right of action, namely,
that whenever a duty is imposed on a person by contract or otherwise, and that
duty is violated, anyone who is injured by the violation of it may have a remedy
against the wrongdoer.... We should pause before we make a precedent by our
decision which would be an authority for actions against the Vendors, even of
such instruments and articles as are dangerous themselves, at the suit of any
person whomsoever into whose hands they may happen to pass, and who should
be injured thereby.

We shall have a chance to go through numerous examples of this kind in which given certain
social economic conditions, judges were not ready to extend liability for its own sake.

LECTURE 3:2 The Development of the Law of Negligence

We are going to examine cases on the development of the notions of negligence on a case to case
basis. In each you will be required to know. In each case you will be required to know the
parties, the citation of the case, judges (judge), the material facts, issue (s), arguments by
parties and the basis of their argument, the actual decision of the court (holding) and the
reasons for so holding (ratio decidendi) and other rules by the Court, orders and the use of
precedents. You should at the end of the day determine the types of reasoning involved and
where the case takes you from there (i.e. what is the future value of the (case)). Summaries
presented should not be an excuse for not reading the case which is herein extracted for you.

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3.3 (a) A case decided on the basis of implied contract warrant and knowledge of the user
where the article is not dangerous in itself.

LANGRIDGE V. LEVY [1837] 2M & W 519

The material facts were that the father of the plaintiff went to the defendant who was the seller of
guns to buy a gun for himself and his sons. While at the shop of the defendant he made a
representation to the seller that the gun was for himself and his sons and in inducing the sale the
defendant warranted that the gun was safe and secure while it was not. In the process of the son
using the gun so purchased, sustained injuries and brought an action against the seller.

Issue: Whether the seller was liable? Argument by counsel for the Plaintiff:

Wherever a duty is imposed upon a person contract or otherwise, and that duty is
violated, anyone who is injured by the violation of it ma have a remedy against the wrong doer
Argument by counsel for the defendant:

There was no privity of contract and therefore the plaintiff was not entitled in law to recover 1
damages. Since the father was

Wherever a duty is imposed upon a person by contract or otherwise, and that duty i1s violated,
anyone who is injured by the violation of it may have a remedy against the wrong doer
Argument by counsel for the defendant: There was no privity of contract and therefore the
plaintiff was not entitled in law to recover

Ratio decidendi: Where the defendant knowingly sold a gun to the father for the use of himself
and his sons and had knowingly made a false warrant that it i~ safe and secure w•hile it was not,
and on the basis of such warrant the plaintiff used it to his detriment the defendant is liable.

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In the course of delivering the judgment a number of things were considered:

(i) The Court was not ready to lay down a broad rule of liability.

(ii) The court considered the fact that the gun was not an instrument which is
dangerous in itself unless loaded:

dangerous in itself, but requires an act to be done that is, to be loaded, in order to make it so, had
been simply delivered by the defendant, without any contract or representation on his part, to the
plaintiff, no action would have been maintainable for any subsequent damage which the plaintiff
might have sustained by the use of it.

The Court made use of the principle in Pasley V. Freeman3 TR 51 that mere falsehood is not
enough to give a right of action, but it must be a falsehood told with an intention that it should be
acted upon by the party

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

Important:

You should bear in mind the following questions when reading the judgment of Langridge V.
Levy:

1. Was negligence a factor in this case?

2. What was the false representation upon which this decision rested?

3. To who was the representation made?

4. Did the defendant know that the plaintiff would be likely to use the gun?

5. Was the gun a dangerous thing?

6. What limits did the Court set to the doctrine of liability established in this case?

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7. why was the false representation called a fraud?

3.3 A case in which the court decided that t~,e injured party was too remoteto be contemplated
by the defendant.

Back to Contract

WINTER BOTTOM V. WRIGHT [1842] 10 M+W 109

Material facts

A. Contracted with the Postmaster General to provide a mail coach to convey mail bags
along a certain line of the road and
B. Other also contracted to hire horses to coach along the same line, at the same time B. and
his process of driving the coach C. got injured and brought an action against A. for
damages due to injury sustained in the cause of driving the coach which broke down
due to latent defects in its construction.

Issue: Whether A (defendant) was liable?

Argument by counsel for the defendant He objected that the declaration was bad in substance. According
to him the general rule was that whenever a wrong arises out of a breach of contract, only the party to the
contract can purpose was to limit extension of liability to even those who were no privy to the contract.

Argument by the Counsel for the plaintiff:

The counsel for the plaintiff based his argument on the decision of Langridge V. Levy. He tried to
show that the defendant had entered into contract with a public officer to supply an article, which
from its nature and use ... was necessarily to be used by the plaintiff. On the basis of this it was
sufficient to bring this case within the rule reestablished by Langridge V. Levy which proceeded
on the ground of knowledge and fraud: in that in this case the defendant made a representation
that the coach was in a proper state for use.

Holding: Judgement for the defendant.

Ratio decidendi: Where there is no contract or the injured party is no privy to it no action will lie (or be
maintained).

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Lord Abinger C.B. Stated inter alia:

We ought not to permit a doubt to rest upon this subject, for our doing so might be the means of
letting in upon us an infinity of actions. This is an action of first impression, and it has been
brought in spite of the precautions which were taken in the judgment of this court in the case of
Langridge V. Levy. to obviate any notion that such an action could be maintained. We ought not
to attempt to extend the principle of that decision, which although it has been cited in support of
this action, wholly fails as an authority in its favour; for there the gun was bought

For the use of the son, the plaintiff in that action, who could not make the bargain himself but was
really and substantially the party contracting. Here the action is brought simply because the
defendant was a contractor with a third person and it is contended that thereupon he became liable
to everybody who might use the carriage. If there had been any ground for such action, there
certainly would have been some precedent of it; but with the exception of actions against inn
keepers, and some few other persons, no cause of a similar nature has occurred in practice:

Important: The rule in Langridge V. Levy cannot be applied in Winterbottom V. Wright because as Lord
Abinger CB. seems to suggest Winterbottom and Wright is a case of its own kind.

Lord Alderson, B had the following to say:

I am of the same opinion. If we were to hold that the plaintiff could sue in such a case, there is no
point at which such actions would stop. The only safe rule is to confine to the right to recover to
those who enter into the contract: If we go one step beyond that, there is no reason why we should
not go fifty. [Ps 68 of the report] [Emphasis supplied].

Rolfer, B. had the following to say:

This is one of the unfortunate cases in which there certain has been damnum, absque injuria; it is
so, no doubt, a hardship upon the plaintiff to be without a remedy, but by that consideration we
ought not to be influenced. Hard cases. it has been frequently observed, are apt to introduce bad
law. [Emphasis added].

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All the judges in this case are in agreement that in the circumstances of the day the plaintiff could not
recover because he was not a party to the contract. He was a stranger in so far as the law and the
defendants were concerned. Important:

Important: Below are guestions which are relevant to you when reading the case of Winterbottom V.
Wright. [1842]10M + W 109.

1. Was there a contract between the plaintiff and defendant? What contracts were there and
who were the parties to each contract?
2. Was the claim made in contract or tort?
3. Did the court say the defendant owed a duty to the plaintiff? To any one?
4. How was Langridge V. Levy's case dealt with by the Court?
5. Why was the court not prepared to extend liability of the defendant to cover loss
sustained by the plaintiff in the circumstances?
6. Do you think the Court adequately disposed of Peacock's argument?
7. What other important arguments were raised?

3.3(c) A Case of a Misfeasance

FREDERICK LONGMEID AND ELIZA (his wife) V. HOLLIDAY [1851] 6 Ex. 76.

Material facts: The defendant a seller of lamps a lamp to the plaintiff's husband. The defendant not a
manufacturer of those lamps. The lamps w called "Holliday's Patent Lamp". The said lamp for the
purpose of being used by him and his wi There was evidence that the lamp was defectiv
manufactured. In using the lamp with naphtha the 1 exploded and the plaintiff's wife was injured, two
plaintiffs brought an action (Frederick previously recovered damages in an action for defendant's
breach of implied warranty of sale), jury found all facts for the plaintiffs except for allegation of fraud
because, in their view the defendant did not know the lamp was in fact defective,

Isssues: Whether the plaintiff can recover on the basis of fraud?

Arguments by counsel for the defendant:

As there was no proof of fraud, the action could not be maintained.

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Argument by counsel for the plaintiff:

The defendant was guilty of fraudulent representation in that it was stated that the lamp was fit and prope
for use, which he knew was not true, and that he knew

who was going to use the lamp, who was in fact injured in the process of using the lamp. This case was
in line with the decision in Langridge V. Levy. ] Holding: Defendant not liable (Rule absolute) Ratio
Decidendi: Where in the ordinary cause of doing business between one individual and another, a
machine that is not dangerous in itself but which might become so by latent defect entirely unknown, is
let or given by one person to another the former is not answerable to the latter for subsequent damage
accruing from the use of it.

Obiter Dicta:

a) If the defendant had been guilty of a fraudulent representation that the lamp was fit and proper to
be used, knowing that it was not and intending it to be used ... then that individual would have
had an action for deceit on the principle enunciated in Langridge V. Levy [1837] 2M + W 519.

(b) If anyone knowingly tells a falsehood, with intent to induce another to do an act which results in
his loss, then he is liable to that person in an action for deceit

Parke B enumerated instances besides contract & fraud in which an action might lie but which can be
distinguished from the above case:

a) If an apothecary administers improper medicines to his patients, or a surgeon unskillfully

treated him, and thereby injure his health, he would be liable to the patient even where
the father or friend of the patient may have been a contracting party with the apothecary
or surgeon.
b) A stage-coach proprietor, who may have contracted with a master to carry his servant, if
he is guilty of neglect and the servant sustains personal damage, he is liable to him ....
c) If a mason contract to erect a bridge or another work of a public road, which he
constructs, but not according to the contract, and the defects of which are a nuisance to
the highway, he may be responsible for it to a third party, who is injured by the defective
construction ....

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 d) If anyone delivers to another without notice an instrument in its nature dangerous, or
under particular circumstances, as a loaded gun which he himself loaded, and that another
person to whom it is delivered is injured thereby, or if he places it in a situation easily
accessible to a third person who sustains damage from it (Dixon V. Bell 5M+Selw. 198)

Important: Below are questions which you must keep in mind when reading the above case:

1. Why was the husband a plaintiff?

2. Was there any contract between the female plaintiff and the defendant?

3. Was there any fraud by the defendant?

4. On what basis was the case distinguished from the other referred to which liability arose
independently of contract or fraud? Why did the courts impose liability in those cases?

5. Why was the lamp not considered a dangerous object?

Important:

If there had been in this case a breach of contract with the plaintiffs, the husband might have sued
for it; but there being no misfeasance towards the wife independently of contract, she cannot sue
and join herself with her husband. What was the nature of the law of the time with regard to
married persons? What is the position of the law today?

3.3 (d) case where the seller of the article that caused injury was also a manufacturer of the article
and knew who the consumers were (representation was not relevant in this case).

GEORGE k WIFE V. SKIVINGTON [1869] LR 5 EX 1

Material facts: The plaintiff (Joseph George husband of the second plaintiff) purchased a chemical
compound of the defendant as a hair wash for the use of his wife. The hair wash was made up of
ingredients known only to the defendant and by him represented to be "fit and proper to be used for
washing the hair". There was also an express statement that the defendant knew the purpose for which the
article was bought. Due to the defendant's "unskillful, negligent and improper" make of the
compound caused injury complained by the female plaintiff (she lost her hair or her hair fell off).

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Issue; Whether an action at the suit of the plaintiff (wife) her husband being joined for conformity,
will lie (or was there a cause of action against the defendant"?}.

Arguments by the defendant; 1

There was no warranty, express or implied towards the purchaser, therefore no liability.

Argument for the plaintiffs: J

The defendant was a chemist who made the compound which he sold for a particular purpose, and
knowing the purposes, for which it was bought, is liable in an action on the case for unskilfulness and
negligence in the manufacture of it whereby the person who used it was injured.

Holding: Judgement for the plaintiffs.

Ratio decidendi: Apart from any question of warranty, express or implied there is a duty on the
defendant, the vendor, to use ordinary care in compounding his wash for the hair. There was such a duty
towards the purchaser and it extends to the persons whose use the vendor knew the compound was
purchased in Landridqe V. Levy cited as authority for this proposition]. Here a similar duty arose towards
the person who was known to the defendant to be about to use this wash; namely a duty that the article
sold should be reasonably fit for the purpose it was bought for and compounded with the reasonable care.
[Kelly C.B. on pp....].

Obiter Dicta:

Kelly, C.B. distinguished the case of Lonqmeid V. Holliday from this case in that the former cases
decision was not based on the negligence of the vendor.

Piggott B was of the same opinion and he added the following:

(a) ... where the thing purchased is for the use not of the purchaser himself but, to the defendat's
knowledge, of his wife, does the defendants duty extend to her? I can see no reason why it should not
[The judge points the incapacity of women to sue on their own in those days which is a reason why a
husband had to be joined with her].

(b) Piggott, B advanced yet a contract situation; where a chemist sells to a customer a drug; without any
knowledge of the purpose for which it is to be applied, which is fit for a grown up person, and that drug is

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afterwards given by the purchaser to a child and does injury, it could not be contended that the chemist is
liable.

Cleasby, B. was also of the opinion that the action did lie against the defendant. He stressed the

principle of contract by saying:

….No person can sue on contract but the person with whom the contract is made; and this is undoubtedly
the proposition attempted to be taken advantage of in Langridge V. Levy". Then proceeded to apply
the principle to the facts of the case and found that there was . .. good cause of action in the
person injured similar to that which was held to be good in Langridge V. Levy.

Important; below are questions to guide you when reading the case just discussed:

1. Who were the plaintiffs in this case?

2. Who were the parties to the contract?

3. Could a female "plaintiff in 1869

(a) Enter into a contract in her own behalf?

(b) Sue in her own name? See: The Married Women's Property, Act, 1882 (England)

45 & 46 Vict. C 75, (Extract provided).

4. What damage did the male plaintiff suffer? Why was he a plaintiff?

5. Did the chemist intend to mislead anyone or harm anyone with his product? Is the case therefore
exactly the same as that of Langridge V. Levy?

6. Why is it important that the chemist knew the identity of the ultimate consumer?

7. What differences were there, if any, in the views of Kelly, CB. and Cleansby, B. as to the ratio
decidendi of Langridge V. Lew?

8. Are the reasons advanced by the three judges in support of their decision in favour of the
plaintiffs the same?

Page 85 of 141
9. Was the defendant liable in his capacity as a manufacturer or seller or was liability dependent on
him being both manufacturer and seller?

10. How would the plaintiffs have proved the defendant was negligent?

11. Have the judges taken a step beyond Langridge v. Levy?

12. Do you see a possibility of a case of this kind to occur in the Courts in Tanzania today? Who are
likely to become the main complainants before the Courts of Law?

(a) A case in which the judges reached the same decision but used not only different princip~es but also
different patterns of reasoning. Important for the future development of the law of negligence was the
decision of the minority judge:

HEAVEN V. PENDER [1883) BABD 503

Note: Material facts in this case will be seen through the eyes of the judges who decided this case.

Material facts according to the Minority Judge Brett MR were as follows:

The plaintiff was a workmen in the employ of a ship painter. The ship painter entered into a
contract with a ship-owner whose ship was in the defendant's dock to paint the outside of his ship.
The defendant, the dock owner, supplied under a contract with the shipowner, an ordinary stage
to be slung in the ordinary way outside the ship for the purposes of painting her. It must have
been to the defendant if he considered that matter at all that, the stage would be used by such a
person as the plaintiff (as ship painter). The ropes by which the stage was slung, were supplied,
without reasonable careful attention to their condition. When the plaintiff began to use the stage
the ropes broke, the stage fell and the plaintiff was injured.

Issue: Whether the defendant owned a duty of care to the plaintiff?

Argument in favour of the defendant:

The stage was, through want of attention of the defendant's servants supplied for use by the
plaintiffs but want of attention amounting to want of ordinary care is... no good cause of action,
although injury ensue from such want, unless the person charged with such want of ordinary care
had a duty to the person complaining to use ordinary care in respect of the matter called in
question.

Arguments by the plaintiffs:

Page 86 of 141
The defendant did not use ordinary care and skill and because of that the plaintiff was injured, the type of
injury was not caused by the plaintiff's contributory negligence, therefore the defendant owed a duty of
care to the plaintiff.

Holding: Judgement in favour of the plaintiff.

Ratio Decidendi: Whenever one person is by circumstances placed in such a position with regard to
another that everyone of ordinary care and skill in his own conduct with regard to these circumstances he
would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and
skill to avoid such a danger.

Methodology:

What method did Brett, MR, employ in arriving at such a proposition? Brett, MR employed a
case to case approach and in each case he found a rule and a combination of these rules leading to
a general rule for liability called a duty of care, made him arrive at a conclusion, that, there was a
general rule called DUTY OF CARE which he then deductively applied to the facts situation of
the case he was to decide. This is the process of Inductive Reasoning and after a general rule has
been ascertained then it is applied by a process of deductive reasoning. In real terms he
considered the following facts situations:

(a) Two drivers meeting have a contract with each other.

(b) Two ships navigating at sea.

(c) A railway company which has contracted with one person to carry another has not only a
contract with the person carried but has also a duty towards that person.
(d) The owner or occupier of house or land who permits a person or persons to come to his house or
land has no contracts with such a person or persons but has a duty towards him or them.

Thus Brett, MR maintained "the existence of a contract between persons does not prevent the existence of
the suggested duty towards him or them, raised by law independently of the contract, but the facts with
regard to which the contract is made and to which it applies in exactly similar but a contract of duty".
Brett, MR. Ruled out certain considerations:

We have not in this case to consider the circumstances in which an implied contract may arise to use
ordinary care and skill to avoid danger to the safety of person or property. We have not in this case to

Page 87 of 141
consider the question of fraudulent misrepresentation express or implied which is a well recognized head
of law.

What is then to be solved?

What is the proper definition of the relation between two persons other than the relation established by
contract, or frau~, which imposes on the one of them a duty towards the other to observe, with regard to
the person or property of such other, such ordinary care and skill as may be necessary to prevent injury to
this person or property. Does the present case fall within such a definition.

The judge re-examined his examples as enumerated earlier and had the following to say:

When two drivers or two approaching each other, such arises between them when ships
are a relation approaching each other in such a manner that, unless they use ordinary care
and skill to avoid it, there will be danger of injurious collision between them. The
relation is established in such circumstances between them, not only if it be proved that
they actually know and think of this danger, but whether such proof be made or not. It is
established, as it seems to me, because anyone of ordinary sense who did think would at
once recognize that if he did not use ordinary care and skill under such circumstances
there would be such a danger. And everyone ought by the-Universally recognized rules of
right and wrong, to think so much with regard to the safety of others who may be
jeopardized by his conduct:

The judge went on to enumerate what would happen in the case of railway company as follows:

In the case of a railway company carrying a passenger with whom it has not entered into contract
of carriage the law implies the duty, because it must be obvious that unless ordinary care and skill
be used the personal safety of a passenger must be endangered.

He said the following in relation to an owner or occupier:

With regard to the condition in which an owner or occupier leaves his house or property other
phraseology has been used, which it is necessary to consider. If a man opens his shop or
warehouse to customers it is said that he invites them to enter, and that this invitation raises the
relation between them which imposes on the invitor the duty of using reasonable care to keep his
house or warehouse that it may not endanger the person or property of the person invited If you
permit a person to enter then you impose .on yourself a duty not to lay a trap on him.

Page 88 of 141
Having considered all these instances which impose a duty to take care and skill, Brett, MR concluded as
follows:

It follows, as it seems to me, that there must be a more remote and larger proposition which involves and
covers both sets of

propositions lead to exactly similar minor premises there must be a more remote and larger premises
which embraces both of the major propositions.

The proposition which seem to be in line with decided cases on supply of goods or machinery or the like
was stated as follows:

Whenever one person supplied goods or machinery, or the like, for the purpose of their being used by
another person under such circumstances that everyone of ordinary sense would, if he thought, recognised
at once that unless he used ordinary care and skill with regard to the condition of the thing supplied or
mode of supplying it, there will be danger or injury to the person or property of him for whose use the
thing is supplied, and who is to use it a duty arises to use ordinary care and skill as to the condition or
manner of supplying such a thing.

What follows is consideration of "the judgement of the majority of the judges Cotton and Bowen LJJ.
(The ratio decidendi of this case is based on the notion of owner- invitee relationship 2 judges against 1].
found the defendant liable.

Decision of Cotton, LJ and Bowen, L.J. restricted itself to the category of owner invitee relationship:

Important: Below are guide questions when reading the CASE of, Heaven v. Pender, [1883] 11 QBD
5D3.

1. Did the defendant know who was going to use the stage?

2. Was the element of fraud stressed here?

3. What was the decision in this case? Was it that was laid down by Brett, M.R.?

4. What was the ration decidendi of this case?

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5. What is the difference in the reasoning of the judges in this case do you perceive?

6. What remarks of Cotton L.J. would you consider to be Obiter dicta?

4.1 (a) The First Case of Negligent statements Causing financial Loss:

DERRY AND OTHERS V. PEEK (1889) 14 App. Case 337 Material facts:

By a special Act 45 & 46 Vict., C. Clix the Plymouth Devonport and District Tramways Company was
authorised to make certain tramways. By S. 35 the carriages used on the tramways might be moved by
animal power and with the consent of the Board of Trade, by steam or any mechanical power for fixed
periods and SUbject to the regUlations of the Board. By S. 34 of the Tramways Act, 1870 (33 & 34 viet.
C 78) which section in the special Act "all carriages used on any tramway shall be moved by• the power
prescribed by special Act, and where no• such power rise prescribed, by animal power only".

The appellants as directors of the company issued a prospectus which encouraged people to invest in it
because by the special Act of Parliament the company had a right to use steam or mechanical motive
power, instead of horses.... As soon as the prospectus was issued, the respondent relying upon a paragraph
in the prospectus applied and obtained shares in the company. The company proceeded to tramways, but
the Board of Trade refused to consent to the use of steam or mechanical power. In the result the company
was wound up and the respondents brought an action of deceit against the appellants claiming damages
for fraudulent misrepresentation of the defendants whereby the plaintiff was induced to take shares in the
company. [In the High Court the action was dismissed by Stirling, J.] Appeal to the Court of Appeal.

Issue: Whether an action of fraudulent misrepresentation would lie?

The Court of Appeal held that (Cotton, L.J., Sir Hannen, J. and Lopes, L.J.) the defendants were liable to
make good to the plaintiffs the loss sustained by taking the shares. The defendants appealed to the House
of Lords.

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Holding: Appeal allowed, order of Court of Appeal reversed. Ratio Decidendi: In an action of deceit the
plaintiff must prove actual fraud that is a false representation made knowingly, or without belief in its
truth or recklessly, without caring whether it be true or false and intending the plaintiff •to act upon it.

Other observations by the House of Lords:

A false statement,may be evidence of fraud, but does not necessarily amount to fraud. such a
statement, if made in the honest belief that it is true, is not fraudulent and does not render the
person making it liable to an action of deceit.

Lord Herschell said:

In my opinion making a false statement through want of care falls far short of, and is very different thing
from fraud, and the same may be said of a false representation honesty believed though on insufficient
grounds.

The Court was saying that there is a distinction in law between false representations and fraud or deceit
and whoever wants to base an action on false representation must prove actual deceit.

Important: Below are guide Questions when reading the Case of Derry V. Peek:

1. Was there a contract between the plaintiffs and the defendants?

2. Did. the defendants act negligently in making the statement?

3. Does the House of Lords say there can be no recovery at all for negligent misstatement?

4. Did the plaintiff sue in negligence?

6. What then is the ratio?

7. Why didn't the Plaintiff change his statement of claim from deceit to some other cause of action?

4.1 (c) A case in which the decision of the House of Lords in Derry V. Peek was put to test and Lord.
Esher (Former Brett, MR) MR rejected to apply his own notion of duty of Care he expounded
in Heaven V. Pender

LE LIEVRE & DENNES V. GOULD, [1893J 1 QB 491.

Page 91 of 141
Material Facts:

H. owner of land, arranged with d for a loan to be paid to L, a builder, on the security of a mortgage of the
land. The money was to be paid by installments at certain stages in the progress of buildings to be erected
on the land by L, and the stages were to be certified by an Architect. H. asked the defendant, G, who was
an architect and surveyor to issue these certificates.

In the process d transferred the mortgage to LL after four installments had been paid on certificates
furnished by G. In due course the plaintiffs lost money on this transaction and sued for damages.

Argument by the plaintiffs:

H. in employing G to issue certificates and in preparing the schedule of advances, was acting as
the agent •of the plaintiff D. The certificates given were in fact to the knowledge of G and if there
were no fraud on his part the defendant did not use due care, skill and diligence to ascertain
whether the facts of the certificates were true. in so giving the certificates the defendant acted
with gross negligence, and in breach of the duty which he owed to the plaintiffs.

Argument by the defendant were that:

The defendant denied that he had been employed by d or on his behalf to issue certificates. He
never undertook any duty towards the plaintiffs or either of them. He was not fraudulent, the
certificates were issued bonafide and in belief that the statements contained in them were true.

Holding: Appeal was dismissed. Judgement in favour of the dependants.

Ratio Decidendi: The question of liability for negligence cannot arise at all until it is established that a
man who has been negligent owed some duty to the person who seeks to make him liable for negligence.

Obiter Dicta: Decision of Heaven V. Pender

Observations:

1. The Judgement of Lord Esher (Former Brett MR) MR. reveals the following:

(i) A duty cannot arise unless there is relationship of the parties through contract (What duty is
there when there is no relation between the parties by contract?").

Page 92 of 141
 (ii) A man is entitled to be as negligent as he pleases to the whole world if he owes no duty to
them.
(iii) The case of Heaven V. Pender has no bearing on this case.

(iv^ Qetfj "Eee?*. VftoMse °^ Lord's decision)

(v) established that in the absence of contract, an action for negligence cannot b maintained when there
is no fraud. Negligence, however great, does not of itself constitute fraud

2- (i). According to Bowen, L.J. in Perry V. Peek the House of Lords pointed out that, as common law
lawyers had always held, an action of deceit must be based upon fraud, and that negligence is not itself
fraud, although negligence in some cases may be of such a kind as to make it highly probable that there
has been fraud,

(ii) Negligent misrepresentation does not amount to deceit and negligent misrepresentation can give
rise to a cause of action only if a duty lies upon the defendant not to be negligent.

(iii) We however, have to consider not what the law might be, but what it is. (This is as-
positivistic utterance by the judge).
(iv)... a man is responsible for what he states in a certificate to any person to whom he may have
reason to suppose that the certificate may be shown. But the law of England does not go to that
extent, it does not consider that what a man writes on a paper is like a gun or other dangerous
instrument and unless it is intended to deceive, the law does not, in the absence of contract, hold
him responsible for drawing his certificates carelessly. 3. In the Opinion of A.L. Smith L.J. the
decision of Heaven V. Pender was founded upon the principle, that a duty to take due care did arise when
a person or property of one was in such proximity to the person or property of another that, if due care
was not taken, damage might be done by the one to the other. Heaven V. Pender does not go further
than this ... the case is totally different from the present and its principle cannot be applied to it.

Important: Below are guide questions when reading the case of Lelievre V. Gould:

1. What does fraud means?

2. Has Lord Esher MR (Former Brett MR) changed his mind in Lelievre V. Gould's case since his
decision in Heaven V. Pender?

3. What are the two ratio decidendi of the decisions?

Page 93 of 141
4. Do you agree with Lord Esher MR and Bowen, L.J. that Perry V. Peek impliedly overruled Gan
V.

Wilson [1888] 39 Ch. D. 39 D. 39 and made it possible to apply Lord Esher MR's Heaven V. Pender
principle to negligent acts? Was not Langridge V. Levy concerned with, statements'? Be do you
reconcile Langridge V. Levy and Perry V.Peek?

Note on Precedent:

Le Lievre V. Gould:

According to the strict rule of precedent, the English Court of Appeal must generally follow its own
previous decisions i.e. it is bound by the ratios of its own previous cases. So in this case, the
court is bound by tte« ratio of HVP. We saw that strictly, the ratio of HVP must be the rule of the
majority of Judges: Cotton & Bowen. Neither Brett's formulation of the larger proposition, nor his
formulation of suppliers liability is therefore the ratio, nor part of the ratio. But does the Court in
Lievre V. Gould adhere to these strict rules? Esher (BrettV MR refers to what HVP established' ,
meaning his own minority rule. Smith, LJ also refers to Brett's Rule as the principle of HVP. Only
Bowen, LJ refers to the ratio of HVP as the majority rule i.e. the rule as to Owner of] premises.

But before we conclude that the Court is not adhering to the strict doctrine, we should remember that they
do not in fact prefer the minority rule of HVP to the majority rule. They reject both as applying to the
facts before them.

Page 94 of 141
deceive, the law does not, in the absence of contract, hold him responsible for drawing his certificates
carelessly.

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

Important: Below•are guide questions when reading the case of Lelievre V. Gould:

1. What does fraud means?

2. Has Lord Esher MR (Former Brett MR) changed his mind in Lelievre V. Gould's case since his
decision in Heaven V. Pender?

3. What are the two rationes decidendi of the decisions?

4. Do you agree with Lord Esher MR and Bowen, L.J. that Derry V. Peek impliedly overruled Gan
V.

security. As a result of acting on that advise the security had become insufficient and Lord Ashburton
claimed that the advise had been given by Nocton knowingly that the security would be rendered
insufficient and that it had been given in Nocton's interest aDd not in his client's inte+est.

In the first 'instance the Court found that there had been no fraud, therefore dismissed the action.

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The Court of Appeal reversed that finding and granted relief. on the basis that Nocton had been guilty of
actual fraud.

The House of Lords reversed the decision of the Court of Appeal. Held the plaintiff was to succeed on the
basis of a breach of duty which arises out of his fiduciary relationship with the plaintiff and of which the
plaintiff suffered loss.

Holding: Court of Appeal decision affirmed on different

grounds.

Ratio Decidendi: Where a person renders advise to another and the advisee falls within a fiduciary
relationship with the adviser, in case the advisee sustains loss the adviser is liable.

Viscount Haldanel L. C. statements are worthy noting:

(i) Derry V. Peekwhich establishes that proof of fraudulent intention is necessary to sustain
an action of deceit, whether the claim is dealt with in a Court of law or by a Court of Equity does not
narrow the scope of the remedy In

5. Are solicitors always sUbject to fiduciary duties inpractic\ng their profession?

6. Do you think it was sufficient that t~ defendant, Nocton, benefited from his statement?

7. Vlhat significa.nce did Viscount Haldane LC attribute to the findings of fact by the trial jUdge?
Hov! do you think Donoqhue V. stevenson affects these cases?

4.2 (b) A case which finally establishes the concept of

Negligence known in the Law of Torts today. This notion introduces three aspects for it to be completed:
Negligence consist in the duty of care, breach of the duty and damage. A person alleging that another
person was negligent must necessarily prove these three things if he is to succeed at all. As.it will be
noted the notion is seemingly broaG but cannot be extended to cases of remoteness i.e. where there is no
reasonable foreseeability of the extent of damage whioh results in the alleged negligence.

Donoghue V. stevenson, [1932] AC 562 (House of Lords)

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Note: This was an appeal from Scotland (England and Scotland have two different legal systems).

Material facts: The appellant, a shop assistant sought to recover form the respondent, an aerated water
manufacturer, on the basis that he was negligent and out of such negligence she was injured by the
presence of a snail in a bottle of ginger beer manufactured by the respondent and ordered for the

6.

Morality &

Law

Neighbour Principle (Biblical but trans¬lated into a legal category)

action for damages for negligence the complainant has to show that he has been injured by the breach of
duty owed to him in the circumstances by the defendant to take reasonable care to avoid such injury.

In the present case we are not concerned with breach of duty we are concerned with the question as a
matter of law in the circumstances alleged by the defendant owed any duty to the pursuer to take care ....

In English law there must be, and is, some general conception of relations giving¬rise to a duty of care, of
which particular cases found in the books are but instances. The liability for negligence, whether you style
it such or treat it as in other systems as a species of "culpa" is no doubt based upon a general pUblic
sentiment of moral wrong doing for which an offender must pay. The rule that you are to love your
neighbaur

becomes, in law, you must not injure your neighbour: and the lawyer's auestion, who is

my neighbour? (emphasis added) receives a restricted reply. You must take reasonable care to avoid acts
or omissions which you can reasonably foresee would be likely to injure yourneighbour. Who then, in
law, is my neighbour? The answer seems to be: persons

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who are so closely and directly affected by my act that I ought reasonably to have them in contemplation
as being so affected when I am directing my mind to the acts or omissions which are called in question.

According to Lord Atkin this is the principle enunciated in Heaven v. Pender by Lord Esher MR (then
Brett MR) when it is limited by the notion of proximity introduced by Lord Justice AL smith in Le

Lievre & Dennes V. Gould where Lord Esher MR stated

inter alia that:

That case establishes that under certain circumstances, one may owe a duty to another, even though there
is no contract between them. If one man is near to another, or is near to the property of another, a duty lies
upon him not to do that which may cause a personal injury to that other or injure his property.

Lord Justice A.L. Smith maintained:

The decision of Heaven V. Pender was founded upon the principle that a duty to take due care did arise
when the person or the property of another that, if due care is not taken, damage might be done by one to
the other.

In the view of Lord Atkin these principles SUfficiently ~te the rule of oroximity. This oroximity is not
confined "to re physical proximity, but is used ... to extend to such close

who are so closely and directly affected by my act that I ought reasonably to have them in contemplation
as being so affected when I am directing my mind to the acts or omissions which are called in question.

According to Lord Atkin this is the principle enunciated in Heaven v. Pender by Lord Esher MR (then
Brett MR) when it is limited by the notion of proximity introduced by Lord Justice AL smith in Le

Lievre & Dennes V. Gould where Lord Esher MR stated

inter alia that:

That case establishes that under certain circumstances, one may owe a duty to another, even though there
is no contract between them. If one man is near to another, or is near to the property of another, a duty lies
upon him not to do that which may cause a personal injury to that other or injure his property.

Lord Justice A.L. Smith maintained:

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The decision of Heaven V. Pender was founded upon the principle that a duty to take due care did arise
when the person or the property of another that, if due care is not taken, damage might be done by one to
the other.

In the view of Lord Atkin these principles sUfficiently state the rule of Droximity. This Droximity is not
confined "to mere physical proximity, but is used ... to extend to such close

7.

(4) The categories of negligence are never closed. The cardinal principle of liability is that the party

able to prove that he has suffered damage as a

(1932)2KB

container is opened by him [Emphasis supplied]. The Dissenting opinion of Lord Buckmaster has the

(d) What attitudes do they display in relation to social need for a remedy in this case?

8. Which cases govern the issue in Lord Buckmaster's opinion?

9. What was Lord Buckmaster doing to George V. Skivington and Brett MR's dicta in Heaven V.
Pender?

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10. What differences can you discern between the reasoning of

Lord Atkin and Lord MacMillan?

Also: Read (1) Julius stone, "The Ratio Decidendi of the Ratio Decidendi" in vol. 22 Modern Law
Review[1959J 597 at 602-603. (2) ~wining, W. & Miers, D., How To Do Things with Rules, London
1992 pp. 51-57. [Views have been expressed in Lecture 2: Debate on How To Determine the Ratio
Decidendi of the Case].

4.2 (c) A case in which the principle of proximity enunciated in Donoghue V. stevenson could not be
applied because the husband of the plaintiff had had a chance of intermediate inspection of the
machines which caused his death. Scrutton LJ in this case makes it explicit that English
judges in making decisions are controlled by the facts before them.

FARR v. BUTTERS BROS & COMPANY[1932J 2 K.B. 66.

Note: Between the date of the judgment given by McCardie J and the hearing of the appeal, the
House of Lords had delivered a very important judgment in M. Alister v. Stevenson. . How far was
this case affecting the decision in the present case?

Material Facts: The action of the appeal arose under the Fatal Accidents Act, 1846, by a widow of a
foreman erector of cranes who was killed by the falling of the jib of a crane which he had been
responsible for erecting. The action was brought against the manufacturer of the crane, who sold it in
part to a firm of builders who were themselves to assemble the parts, and who in fact did this under the
supervision of the man who was killed. It was clear that two of the cog-wheels used in the working of
the crane did not fit accurately. All agreed that the deceased while the crane was being assembled,
ascertained that the cog-wheels did not fit properly, their inaccuracy was such that the crane was
working with unusual fitness, that he examined the cog-wheels and found where the inaccuracy was that
required to be corrected, that he marked those inaccuracies with chalk in order that it might be corrected,
and that he said, that he would report the matter to his principals. In spite of this discovery,
marking, and statement of his intention to report, he began working the crane before the inaccuracies had
been corrected. In working it in that condition he was, while standing by the jib, killed by its fall, the
falling being due to the effect ; of the inaccuracies which he had discovered.

Issue: Whether there was liability on the part of the manufacturers to the employee of the
purchaser? Was there liability in Tort?

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Argument by the defendant: Having manufactured a supplied the part of the crane to the purchasers
there was opportunity for examination in that the purchasers were assemble the parts, that opportunity
was used by their skill erector who examined the wheels and found their condition a did not rectify it.
Therefore, the manufacturers were not liable.

Argument by the Plaintiffs: The defendants had be negligent in manufacturing the cranes whose parts
killed husband of the plaintiff and therefore they were liable to ft in tort.

Holding: Appeal was dismissed. Judgement in favour of defendants.

Ratio Decidendi:

Important Observations made by Scrutton LJ in this case:

1. There was an opportunity for examination "We have repeatedly held that when a plaintiff gives
evidence which is only consistent with the accident being cause** by his own negligence the
judge ought to withdraw the case from the jury instead of leaving it to them to say whether the
admitted facts constituted negligence".
2. Scruton LJ agreed with Lord Atkin that: I venture to say that in the branch of law which deal
Every with civil wrongs, dependent in England, at any rate entirely upon the application by
judges of general on its principles also formulated by judges, it is of facts: particular importance
to guard against the danger of stating propositions of law in wider terms than is necessary, lest
essential factors be omitted in the wider survey and the inherent adaptability of English law be
unduly restricted. For this reason it is very necessary, in considering reported cases in the law of
torts, that the actual decision alone should carry authority, proper weight, of course, being given
to the dicta of the judges.
Thus he further states his own famous proposition on the way English judges operate:
English judges have been shown in stating principles going far beyond the facts they are
considering. They find themselves in a difficulty if they state too wide propositions and find that
they do not suit the actual be.

Then he considered the Decision of the House of Lords in Donoghue's Case and how the Court
limited the proposition: The rule that you are to love your neighbour becomes law, you must not
injure your neighbour, and the lawyer's question, who is my neighbour? receives a restricted
reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to

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 be persons who are so closely and directly affected by my act that I ought reasonably to have
them in contemplation as being so affected when I am directing my mind to the acts or omissions
which are called in question.

In the case in point the judge goes with the opinion of Lord MacMillan that responsibility ceases when
control ceases (no proximity):

It may be a good general rule to regard responsibility as ceasing when control ceases.
So also where as between the manufacturer and the user there is interposed a party who has
the means and opportunity of examining the manufacturer's product before he reissues it
to the actual user.
Important: Below are questions to guide you reading of the case:

1. Why did Scrutton LJ say that Lord Atkin's proposition was wider than necessary?

2. What is the ratio of Farr V. Butters? Did Scruton LJ. Attempt to qualify Donoghue V.
Stevenson‘s case, if so, how?

3. Was liability avoided in this case because an intermediate examination could have been carried out
or because such examination was actually carried out disclosing the defect?

4. If the latter represent true facts, were the statements of Scruton LJ as to the effect of the law in the
former situation ratio or dicta?

4.2 (d) A case in which counsel for the defendant sought to draw a distinction between an article
which is consumed internally causing injury and an article which is used externally causing
injury. He in fact was saying that Donoghue v. Stevenson‘s decision was no authority on this
case.

GRANT V. AUSTRALIAN KNITTING MILLS (1936) AC 85 Material facts:

The appellant contracted dermatitis of an external origin as a result of wearing a woollen

underpants which, when purchased from the retailers, was in defective condition owing to the
presence of excess sulphites, which, it was found, had been negligently left in it in the process of
manufacture. The appellants claimed damages both against retailers and manufacturers.

Issues: Whether the manufacturers were liable tort and the retailers in contract? Whether
the principle of Donoqhue v. Stevenson is applicable to this case? Argument advanced by the

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 plaintiff was that the decision of the House of Lords in Donoghue v. Stevenson was
binding on the Court to follow.

Argument by the Defendant was that Donoqhue v. Stevenson's case was a case of food or drink to be
consumed internally, whereas the pants were worn externally. That while in Donoqhue's Case the makers
of the ginger-beer had retained "control" over it in the sense that they had placed it in stoppered sealed
bottles, so that it would not be tampered with until it was opened to be drunk, the garments in question
were merely put in paper packets each containing six sets which in ordinary course would be taken down
by the shopkeeper and opened, and the contents handled and disposed of separately, so that they would be
exposed to the air. It was further argued that though there was no reason to think that the garments when
sold to the appellant were in any other condition, least of all as regards sulphur contents, than when sold
to the retailers by the manufacturer still the mere possibility and not the fact of their condition having
changed was sufficient to distinguish Donoqhue's Case There was no "control" because nothing was done
by the manufacturers to exclude the possibility of any tampering while the goods were on their way to the
user

Lastly it was argued that if the decision of Donoghue's Case were extended even a hair's breadth, no line
could be drawn, and manufacturer's liability would be extended indefinitely.

Holding: The case came within the principle of Donoghue's case, decision against the respondents appeal
allowed with costs,

Ratio Decidendi: A person who for gain engages in the business of manufacturing articles for
consumption by members of the public in the form in which he issues them is under a duty to take care in
the manufacture of these articles

Lord Wright in this case considered a number of things:

1. Negligence is found as a matter of inference from the existence of the defects taken in connection
with all the known circumstances even if the manufacturer could by apt evidence have
rebutted that inference they have not done so.
2. It is clear that the decision of Donoghue v. Stevenson treats negligence, where there is
a duty of care, as a specific tort in itself and not simply as an element in some
more complex relationship or in some specialised breach of duty, and still less as having
any dependence on contract. All that is necessary as a step to establish the tort of
actionable negligence is to define the precise relationship from which the duty to take care is
deduced.

Page 103 of 141

 3. It is, however, essential in English Law that tj duty should be established: the mere fact
that man is injured by another's act gives in itself cause of action: if the act is deliberate,
the party injured will have no claim in law even thou the injury is intentional, so long as the
other party is merely exercising a legal right: if act involves lack of due care, again no
case actionable negligence will arise unless the duty be careful exists.
4. .... If the term "proximity" is to be applied all, it can only be in the sense that the want care, and
the injury are in essence directly a intimately connected; though there may intervening
transactions of sale and purchase, a intervening handling between those two events a themselves
unaffected by what happened between them: "proximity" can only properly be used exclude any
element of remoteness, or of some interfering complication between the want of ca and the
injury…..
5. Equally also may the word "control" embrace, thou it is conveniently used in the opinions
Donoqhue's case to emphasize the essential facto that the consumer must use the article exactly a
it left the maker, that is all material features, and use it as was intended to be used. In that sense
the maker may be said to control the thing until it is used.
6. ... duty is difficult to define, because when the act of negligence in manufacture occurs there is no
specific person towards whom the duty could be said to exist . . . the duty cannot at the time of
the manufacture be other than potential or contingent, and only can become vested by the fact of
actual use by a particular person.
7. In Donoghue's case the thing was dangerous in fact, though the danger was hidden, and the thing
was dangerous only because of want of care in making it…….
8. The principle of Donoghue' s case can only be applied where the defect is hidden and unknown to
the consumer, otherwise the directness of cause and effect is absent, the man who consumes or
uses a thing which he knows to be noxious cannot complain in respect of whatever mischief
follows, because it follows from his own conscious volition in choosing to incur the risk.

Important: Below are questions to guide you in reading the case:

1. What does Lord Wright mean by "proximity"?

2. Must the defect in the article be latent?
3. What is the logical argument for extend of liability from an article of drink to clothing?
4. What did the plaintiff have to prove to establishment negligence on the part of the defendants?
5. Did Lord Wright consider the possibility intermediate examination which did not effect purpose
for which the product was produced w avoid a duty of care arising?

Page 104 of 141

 6. Did the possibility of a third party tampering the product produce a duty of care being owed the
manufacturer?
7. Was the Privy Council bound to follow the decisis of the House of Lords in Donoqhue v.
Stevenson?
8. Do you think the idea of "intermediate examination severely limits the impact of Donoqhue v.
Stevens and Grant v. Australia Knitting Mills changed?

Note on Precedent:

We can say that G v. AKM explains D.v.S in such a w that ^.t would make it more difficult for future
judges limit its application e.g. - see the treatment control, duty etc. The PC rejects various
types limitations that might be put on the principle. It also supports Atkin's neighbour principle in that t
PC discusses the general duty i.e. the elements negligence not merely manufacturers' liability.

I Notice that although the PC is not bound by the HL [decision of D v. S., the court still argues
as to whether distinctions should be drawn. In strict precedent theory, since PC is not bound by
even the ratio of D v. S. it is not necessary to distinguish, or extend the ratio the facts in G v. AKM in
order to decide that case. This form of argument is adopted; however for two

reasons:

1. That courts will argue on authority i.e. previous decisions, even though they are not binding.
They seek to follow predictable paths, not to make random decisions.
2. Distinguishing may have at least two functions. It is sometimes a technical device used by a
judge, who is bound by a previous decision, for Anarrowing the ratio until it no longer
applies to his case - what Glanville Williams calls "restrictive distinguishing".
Used in this way, the distinction may be sensible or not, - it may be admitted to be illogical
or irrational - see Claytan v. Woodman. On, as here, it may simply be a rational method of
testing a legal rule, so that we say the rule is established in fact situation A, and does it
still make sense in fact situation B? for example (see Hedlev Byrne). If there is a rule
that a doctor, who tells a patient he is fit for work, & the patient is not, &
suffers ill health and al financially, is liable, does it make sense to s the doctor should
not be liable if he advices h wrongly not to work, and he stays away from work losing only

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 money. The distinction is rejected irrational, the doctor's error is equally worth morally, of
blame in both cases, the same socio interest in compensation for loss is involved both
situations. Although we see that the fact are different f we can see no reason to treat th
differently.

Questions:

1. Is it sufficient for a manufacturer, in defendi himself against an action of negligence by

consumer merely to show the method used manufacture the article was not
negligent t example, that normally, the garments went througl process of washing to remove
harmful substance (although this particular garment was defecti because somehow it was
not treated as the other garments were) . What does this case lay down the rule of law on this
point?
2. The definition of relationship' given by the coi is quite vague. Why did they not define it mc
accurately? Could they have done so?

4.3 (a) A case of Negligent statements causing financial loss

It was the first case of negligent statements after the : decision of the House of Lords in Donoghue v.
Stevenson,[1932] AC. 562.

CANDLER V. CRANE CHRISTMAS. [1951]2 kb 164

Material facts:

The plaintiff invested money in a company relying on accounts put before him by accountants. The
accounts were wrong and negligently prepared. The plaintiff lost money and sued the accountants.

Issue: Whether the defendants were liable in Tort of negligence?

Argument by the plaintiff's Counsels was based on the decision of House of Lords in Donoghue's case
namely that since that decision there was no distinction between negligent manufacture causing
physical harm and negligent statements leading to financial loss. Defendants were liable.

Arguments by the Counsel for the defendants: were that there was no cause of action, that is, no liability
in tort for negligent misstatement. Further that there was no liability in tort for negligent statements
causing financial loss as opposed to physical harm, and further that the accountants were liable in contract
to the company and not liable to the plaintiffs in tort.

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Holding: The Court of Appeal held in favour of the defendant in that they were not liable(majority 2
to 1)

Ratio Decidendi: There is no duty of care in negligence as for negligent misstatement.

Obita Dicta:

Important in this case is the Dissenting Judgment of Lord Denming L. J. which sought to make it clear
that since the House of Lord's decision in Donoghue's case no distinction existed between negligent
manufacture causing physical injury and negligent statements causing economic loss.

Lord Denning, L. J. maintained that the case of Donoghue v. stevenson, had substantially changed the
law. It did cast doubt on the authority of older cases such as Lelivre v. Gould which negatived actions
intort for negligent misstatements. He was urging the court to accept that there was a cause of action for
"negligent misstatements. Lord Denning dealt with the arguments by the Counsel for the defendant in the
following manner:

1. On the argument that there was no cause of action, that is, no liability in tort for negligent
misstatements, Lord Denning answered that such an argument was not maintainable because
there was need for progress in law rather them stagnation.
2. On the argument that there is no liability in tort for negligence acts (or statements) causing
financial loss as opposed to physical harm, Lord Denning's reply was that, the Counsel did not
dispute that there would be liability in two hypothetical cases (i) the analyst who tests food and
negligently states that it is wholesome, whereas it is harmful, and the man whose job is to inspect
lifts, who negligently states that a lift is safe when it is not. It might have been that the counsel
only accepted those hypothetical cases on the ground that they were both cases of physical harm,
resulting from negligent misstatements and that on the facts of this case, there being no physical
damage, they would not make the defendant liable. He thus retreated from his earlier position that
there was no liability for negligent misstatements in tort at all, to the position that there was only
liability if such statements resulting to physical harm, but not otherwise.

In Lord Denning's view there is no distinction between physical harm and financial loss in-¬relation to
duty of care. It might be more difficult to prove the proximate relationship, that is foreseeability of
damage, in the case of purely financial loss, but that is a matter of proof in each case.

(3) Dealing with the third argument of the Counsel for the defendant, namely, that the accountants were
liable in contract to the company and not liable to the plaintiff in tort Lord Denning rejected the 19th

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Century fallacy. In his view "it is a well established rule that if A is liable to B into C in tort on
the same facts."

The tort of negligence according to Lord Denning is an entirely separate cause of action, so it is
irrelevant that another cause of action exists as regards to other persons.

NOTE:

Lord Denning‘s judgment is a Dissenting Judgment, it is not part of the Ratio of Candler's case, it is
not binding. The ratio of Candler's case is the statement of the majority, expressed by Lord Asquith, that
there is no duty of care in negligence as for negligent mis-statement [This ratio was later overruled by the
House of Lords in Hedley Byrne v. Heller.

Lord Asquith's treatment of the House of Lords' Decision in Donoghue v. Stevenson:

He rejected Lord Atkin's "neighbour principle" on the ground that it was not accepted by other judges of
the majority. He does not think that Lord, Wacmillan agreed with Atkin's broad principle when he
said that "the categories of negligence are never closed". Since he finds that the ratio of Donoghue v.
Stevenson (which is a House of Lords decision binding on the Court of Appeal) is restricted to
manufacturers liability, he finds that did not overrule earlier Court of Appeal decisions in Lelivre v.
Gould. This statement of Donoghue v. Stevenson is significant especially in assessing the present status
of Lord Atkins neighbour principle.

Postscript:

Lord Asquith and Lord Cohen delivered a majority judgment which was based on the distinction between
economic loss and physical injury. Lord Asquith referred to the decision in Derry v. Peek and maintained
that the case of Donoghue v. Stevenson was not intended parenthetically or subsilentio to sweep away
such a sub-stratum. Nor did Donoghue v. Stevenson reverse or qualify the principle laid down in Leleivre
v. Gould:

In the present state of our law different rules seem to apply to negligent misstatements, on the one hand,
and to the negligent circulation or repair of chattels on the other, and Donoghue v~ stevenson does not
seem to have abolished those differences.

Lord asquith was read ready to be called a ―Timorous soul‖ as opposed to ―bold spirit‖ Compare the
competing values: while Lord Denning would want to extend the application of the rule in Donoghue v.
stevenson~to all situations, Lord Asquith on the other hand, is content limiting himself to existing

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notions, maintaining that Donoghue v. stevenson was yet another instance (a category) in the
development of notions for liability where there is no contract.

Important: Below are questions to guide you in reading the case of Candler v. Crane Christmas Co.

1. Was there more than one ground or reason for the decision?
2. What is a precedent sub-silentio?
3. Does the "neighbour" principle cover all cases of harm caused by negligence?
4. Was _the Court of Appeal bound to follow the ratio of Lelievre v. Gould's case?
5. In what circumstances did Lord Denning consider a duty of care in respect of negligent statement
arose?
6. Does Lord Asquith distinguish Donoghue v. stevenson on the ground that:
(a) It was a case of manufacturer's liability.
(b) it was a case of a negligent act or omission (but not a statement).
(c) It was a case of physical damage or all the above reasons or some.
7. Does Lord Asquith accept that a case can be an authority for a proposition which is not
expressly stated in the case? What does he say of Perry v. Peek, of a subsilentio in Donoghue v.
Stevenson? Is he consistent?

4.3 (b) A case of Negligent statements leading to Physical injury and not economic loss. The
problem before the court was to determine which of the then existing authorities on negligent
statements was to guide. Also the court had to consider whether Donoghue v. Stevenson was an
appropriate authority,

CLAYTON V. WOODMAN [1962] 2 QB 533 [HC & CA decisions] Material facts were that the
plaintiff, a bricklayer was employed by the first defendants, a firm of builders who had contracted
with the second defendants, a regional hospital board to install a lift and motor room in one of
their hospitals. The contract required that the work should be done with directions of an architect,
third defendants. To install a lift it was necessary to demolish part of the building. On the
instruction of the architect the plaintiff embarked in the installation in the process of which he
was injured and brought this action against the defendants.

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 Issue: Whether the defendants were liable and on the basis of which authority? [Arguments by
Counsels are in a way scattered. So it is advised that they will be presented as we analyse the
judgment as a whole]. Holding: The HC held Dl and D3 liable (which was
reversed by the Court of Appeal on grounds \other than those by Salmond J). Judgment of
Salmond J:

(1) The use of the term ratios

He distinguished Derry v. Peek, Lelivre v. Gould. Candler v. Crane Christma (all decisions of the Court
of Appeal and binding on him) on the ground that there, the damage was financial not physical i.e. the
fact that the damage in those cases was financial was material. This fact was not mentioned in Derry v.
Peek in that case- it was impliedly treated as material. The fact was not mentioned in Lelievre v. Gould.
In that case there is nothing to suggest that the judges thought the results would have been different had
the negligent misstatement resulted in physical harm.

Salmond J. in fact employs the definition of ratio called the rule of induction.

(2) Salmond's distinction:

He admitted that Asquith LJ in Candler v. Crane christmas, excluded all cases of negligence‘s from
liability. One can say he has to accept the authority of Candlers case as it is a Court of Appeal case, and
cannot deny that at least some negligent misstatements are not actionable. His distinct on between
negligent misstatements that cause financial loss, not physical damage, he admits to be 'illogical' (pp. 542-
546].

Note: Salmond J made the following important statements in the course of his judgment:

1. It was suggested that the fall was triggered off by the action of the plaintiff himself, but even if
this be so (and) an for from being satisfied that it is), it seems to me to be immaterial [ p. 538].

2. In my view, the first defendants have no defence to this action. It was their duty as the plaintiff's
employers to take reasonable care for his safety. They knew that the work had reached a stage
when a chase was about to be cut in the gable. They should have appreciated that this would be a
highly dangerous operation unless the gable were supported by cutting or shoring, but they
allowed this work to be carried out without any such shutting or shoring. In my judgement, the
first defendants were clearly negligent in that they did not shore or shut this wall when they knew

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 that the chase was about to be cut in it. This negligence was the cause.of the accident. [Liability is
based on duty of care (owner invitee) and strict liability (statutory) [p.538-539)).

3. I am quite unable to find that the second defendants in any way failed in their duty of care to their
invitees [po 540). Types of mistakes which can be performed by a Professional:
4. There are, of course, many mistakes that a professional man can make without failing to exercise
reasonable skill or care, but not an elementary mistake of this kind. I have no doubt at all that any
ordinary architect using reasonable care and skill would certainly have realized the extreme
danger of cutting the chase without shoring or shutting the gable [p.541).
5. I reach the conclusion that since neither Lelievre v. Gould nor Candler v. Crane Christmas was
concerned with a careless statement causing physical damage, they cannot exclude the application
of the principle enunciated in Donoghue v. Stevenson to the particular facts of the case [po 546).
(What are the implications of this statement to future judges?)

6. Although the dicta of Asquith LJ must carry the greatest weight, I do not consider that the
decision in Candler v. Crane Christmas excluded careless statements from the ambit of Donoghue
v. Stevenson. It may difficult to think of the logical reasons why there should be, in some
circumstances, a duty to take care in making statements causing physical damage but never such a
duty in making statements .causing only financial loss. Logic and commons sense, are uncertain
guides in this branch of the law [p. 545]

Questions:

(1) Does Salmond J. find that the fact that the architect gave the instructions direct to the
bricklayer, was material? You find in the judgment?
(2) The following is a quotation from Millner Negligence in Modern Law
(Butterworth 1967 p. 32) . *0n the other hand, failure to take positive
precautions against a peril which was not (even remotely) of your own making
nor proceeding from property which is under your control or was so at the relevant
time is not generally regarded as negligence. The law does not exact altruistic
behaviour, it does not reguire you to love your neighbour, but only that you shall
not inure your neighbour [the words of Lord Atikins in Donoghue v. Stevenson
[1932] A.C. 562 though referring to *acts and omissions' clearly excludes
form the neighbour principle precisely such acts of pure altruism.

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 (1) What hypothetical examples does Salmond give of this altruistic behaviour'?
(2) Consider the liability in negligence of the doctor in the following circumstances, under
the English law of negligence:-
(a) Bw. Juma is driving along Morogoro Road one night and is involved in a serious
collision with another vehicle. His car ends up on the wrong side of the road, the driver's
door flies open and Bw. Juma is deposited, unconscious and bleeding on road. Dr.
Mshenzi, driving to town, sees the accident and Bw. Juma lying on the road, but decides
that after a hard day's work he is in real need, a Tusker, decides to ignore the accident.
He drives round the unconscious man and the wrecked car, and proceeds to the Ulevi Bar
to quench his thirst.
(b) Dr. Ndugu, driving along a few minutes later, though tired after a bUsy day stops
his car and goes to the aid of Bw. Juma. He attends to Bw. Juma's injuries, and seeing
that he has lost a lot of blood decides to give him a transfusion. He has in his car, by
lucky chance, a bottle of blood, of the COlfullon (blood group, 0 positive). He has no
means of testing what Bw. Juma's blood group is. It is, however, obvious that if Bw.
Juma does not get blood soon, he will die. Dr. Ndugu takes a chance, and administers the
blood, Bw. Juma dies a few minutes later. When he is taken to the mortuary later it is
discovered that he was wearing a medallion round his neck beneath his clothing which
said IIWarning, I have a rare blood group: Group A negative. In an emergence contact
Ocean Road Hospital Tel. 52361 at once. Bw. Juma died directly as a result of his being
given the wrong blood group.

(3) Do you think that the rule as to altruistic behaviour is appropriate in an African country aspiring for
socialism?

4 .3 (c) A case of innocent but negligent misrepresentation which caused economic loss and the
court's assessment of circumstances under which the loser can get damages.

HEDLEY BYRNE & CO LTD V. HELLER & PARTNERS LTD. [ 1963]2 ALL ER 575 at 578-618

Material Facts: The appellants were a firm advertising agents. The respondents were mere bankers. The
appellants case against the respondent; that having placed on behalf of a client X on c] terms substantial
orders for advertising time or Television programmes and for advertising spao certain newspapers on
terms under which the appeal became personally liable to the TV and news] companies, they inquired

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through their own banker respondent) as to the credit worthiness of X who wer customers of the
respondent. They were given bj respondents satisfactory references. In those repl respondents clearly
stated that such information given on the understanding that "it was for private and without responsibility
on the part of the bank o officials" (disclaimer from liability). Therefore turned out not to be justified, and
it was plaintiff's claim that reliance on such refer resulted into loss. The appellants were seeking to
recover the incurred financial loss from the respondent on the ground that the replies were given negligent
and in breach of the respondent‘s duty to exercise care in giving the]

In the High Court, McNair J gave Judgment in favour of the respondents on the ground that they owed no
duty of care to the appellants. He said:

I am accordingly driven to the conclusion by authority binding upon me that no such

action lies in the absence of contract or fiduciary relationship.

In my judgment, however, these facts; though clearly relevant on the question of

honesty if this had been in issue, are not sufficient to establish any special relationship
involving a duty of care even if it was open to extend the sphere of special relationship
beyond that of contract and fiduciary relationship.

The judgement of McNair J was affirmed by the Court of Appeal on the basis of authority binding on the
Court of Appeal and that there was no sufficient close relationship between these parties to give rise to
any duty. The case was before .the House of Lords and the Law Lords who heard the appeal were Lord
Reid, Lord Morris of Borth-Y-Gest (read by Lord Hodson), Lord Hodson, Lord Devlin) (read by Lord
Pearce) and Lord Pearce.

Issue: Whether the respondents were liable?

Arguments by the appellants:

The argument was based on the decision of Donoghue v. stevenson on the notion of proxiillity.

Argument by the respondent was that they owed the appellants no duty of care and in any case they had
given their replies with a disclaimer of liability.

Holding: Appeal was dismissed (case decided in favour of the respondents) .

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Ratio Decidendi: When a mere inquiry is made by one banker of another, who stands in no special
relationship to him, then, to be careful can be inferred, ... there is no duty excepting the duty of common
honesty ....

Obiter Dicta:

If, in the ordinary course of business or information or advise from another, who is not under
contractual or fiduciary obligation to give information or advise, in circumstances in which a
reasonable man so asked would know that he was being trusted, or that his skill or judgment was
being relied on, and the information or advise without clearly so qualifying his answer as to show
that he does not accept responsibility, then the person replying accepts a legal duty to exercise
such care as the circumstances require in making his reply; and for a failure to exercise that care
action for negligence will lie if damage

In this case the Law Lords drew a distinction between liability likely to arise when there is a contract
between the effect of a disclaimer when a person gives advise to another with whom he has no contract.
The Law Lords emphasize the banker will not at any point release information to any other person that
will prejudice his client.

Let us now examine what comes out of the speeches of the Law Lords:

(a) Lord Reid responding on the authority of Donoghue v. Stevenson, acknowledged the importance of
that decision but maintained that, that decision was not intended to negligent words differently from
negligent acts".

The law ought so far as possible to reflect the standards of the reasonable man, and that is what Donoghue
v. Stevenson set out to do. The most obvious difference between negligent words and negligent acts is
this. Quite careful people often express definite opinions on social or informal occasions, even when they
see that others are likely to be influenced by them; and they often do that without taking care which they
would take business connection (p. 580). Another obvious difference is that a negligently made article
will only cause one accident, so it is not very difficult to find the necessary degree of proximity or
neighbourhood between the negligent manufacturer and the person injured. But words can be broadcast
with or without the consent or the foresight of the speaker or writer. It would be one thing to say that the
speaker owes a duty to a limited class, but it would be going very far to say that he owes a duty to every
ultimate "consumer" who acts on those words to his detriment (pp. 580-581).

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So it seems to me that there is good sense behind our present law that in general an innocent but negligent
misrepresentation gives no cause of action. There must be something more than the mere misstatement (p.
581 Emphasis Supplied).

Then to judge proceeded to examine what the authorities had to say:

The most natural requirement would be that expressly or by implication from the circumstances the
speaker or writer has undertaken some responsibility.... It must now be taken that Perry v. Peek did not
establish any universal rule that in the absence of contract an innocent but negligent misrepresentation
cannot give rise to an action. But as it is shown in this House in Nocton v. Lord Ashburton, that it is too
much widely stated: "To found an action for damages there must be a contract and breach and fraud"
(Perry v. Peek). We cannot therefore accept as accurate the numerous statements to that effect in cases
between 1889 and 1914 and we now determine the extent of the exceptions to that rule. Cases in which
besides that obligation arising from honesty the breach may give rise to damages:

-cases where a person within whose special province it lay to know a particular fault has given an
erroneous answer to an inquiry made with regard to it by a person desirous of ascertaining the fact for the
purpose of determining his course,

- "constructive fraud"

-"breach of special duty" (pp. 581-582)

(b) Lord Morris of Barthoy-Gest had the following to say:

Quite apart from employment or contract there may be circumstances in which a duty to exercise care will
arise if a service is voluntarily undertaken. A medical doctor may unexpectedly come across an
unconscious man, who is a complete stranger to him, and who is in urgent need of skilled attention: If the
medical man, following the fine tradition of his profession, proceeds to treat the unconscious man he must
exercise reasonable skill care in doing so (p.589).

In the case of a banker the judge said:

If someone who was not a customer of a bank made a formal approach to the bank with a definite
request that the bank would give him deliberate advise as to certain financial matters of a nature
with which the bank ordinarily dealt with the bank would be under no obligation to accede to the
request: if however they undertook, though gratuitously, to give deliberate advise they would be
under a duty to exercise reasonable care in doing it (p. 589).

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There can be no negligence unless there is a duty but duty may arise in many ways:

There may be duties owed to the World at large: alterum non lacdere. There may
be duties arising from contract. There may be duties arising from a relationship
without the intervention of contract in the ordinary sense of the term, such as
duties of a trustee to his cestui que trust or of a guardian to his ward (p. 593).

On someone who possesses special skill:

My Lords I consider that it follows and that it should not be regarded as settled that, if
someone possessed of a special skill undertakes, quite irrespective of
contract, to apply that skill for the assistance of another person who relies on such skill,
a duty of care will arise. The fact that the service is to be given by means of,
or by the instrumentality of, words can make no difference. Furthermore,
if in a sphere in which a person is so placed that others could reasonably rely on his
judgement or skill or on his ability to make careful inquiry, a person takes it on
himself to give information or advise to, or allow his information or advise to, or
allow his information or advise to be passed on to, another person who, as he knows or
should know will place reliance on it, then a duty of care will arise (p. 594)

(c) Lord Hodson had the following to say:

I shall refer to certain cases which support the view that apart from what are usually
called fiduciary relationships such as those between trustee and cestui que trust,
solicitor and client, parent and child or guardian and ward there are other
circumstances in which the law imposes a duty to be careful, which is not limited to a
duty to be careful to avoid personal injury or injury to property but covers a
duty to avoid inflicting pecuniary loss provided always that there is sufficiently It is
impossible to catalogue the special features which must exist for a duty of care to
arise:

I do not think that it is possible to catalogue the special features which must be found
to exist before the duty of care will arise in a given case, but since.... I agree ... if in a
sphere where a person is not placed that others could reasonably rely on his judgment
or skill or his ability to make careful inquiry such person takes it on himself to give
information or advice to, or allows his information or advise to be passed on to,

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 another person who, as he knows, or should know, will place reliance on it, then a
duty of care will arise (p. 601) .

On How English Law Has Developed:

(d) Lord Devlin on the authority of Donoahue v. Stevenson had the following to say:

I come next to Donoghue v. Stevenson. In his celebrated speech in that case Lord Atkin did two things.
He stated what he described as a general conception and from that conception he formulated a specific
proposition of law. In between he gave a warning "against the danger of stating propositions of law in
wider terms than is necessary, lest essential factors be omitted in a wider survey and the inherent
adaptability of English law be unduly restricted".

What Lord Atkin called "a general conception of relations giving rise to a duty of care" is now often
referred to as the principle o~ f1proximity". You must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be like to injure your neighbour. ln the eyes of the law your
neighbour is a person who is so closely and directly affected by your act that you ought reasonably to
have him in contemplating as being so affected when you are directing your mind to the acts or omissions
which are called in question (p. 607).

Then he proceeded to show what it meant for the following courts; and in particular to the case under
consideration:

Now it is in my opinion a sensible application of what Lord Atkin was saying for a judge to be invited on
the facts of a particular case to say whether or not there was "proximity" between the plaintiff and the
defendant. That would be a misuse of a general conception and it is not the way in which English law
develops. What Lord Atkin did was to use his general conception to open up a category of cases giving
rise to a special duty. It was already clear that the law recognized the existence of such a duty in the
category of articles that were dangerous in themselves. What Donoghue v. Stevenson did may be
described either as the widening of an old category or as the creating of a new and similar one. The
general conception can be used to produce other categories in the same way. An existing category grows
as instances of its application multiply, until the time comes when the cell divides ( p. 607).

He went on to show the value of Donoghue v. Stevenson to Hedlev B. v. Heller:

The real value of Donoghue v. Stevenson to the argument in this case is that it shows how the
law can be developed to solve particular problems. Is the relationship between the parties in this case
such that it can be brought within a category giving rise to a special duty? As always in English law the

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first step in such an inquiry is to see how far the authorities have gone, for new categories in the law do
not spring in existence over-night. It would be surprising if the sort of problem that is created by the
facts of this case had never until recently arisen in English, law. As a problem it is a byproduct of the
doctrine of consideration. If the respondents had made a nominal charge for the reference, the
problem would not exist. If it were possible in English law to construct a contract without consideration,
the problem would move at once out of the first and general phase into the particular; and the question
would be, not whether on the facts of the case there was special relationship, but whether on the facts of
the case there was a contract. . A promise given without consideration to perform a service cannot
be enforced as a contract by the promisee, but if the service is in fact performed and done
negligently, the promisee can recover in an action in tort (p. 608).

Distinction is drawn between words and Act or Omissions

(e ) Lord Pearce had the following to say: After quoting a passage by Lord Chancellor Viscount
Haldane in Nocton v. Lord Asburton he stated inter alia:

The law of negligence has been deliberately limited in its range by the Courts' insistence that
there can be no actionable negligence in vacuo without existence of some duty to the plaintiff.

Negligence in word creates problems difference from those of negligence in act. Words are more
violable than deeds. They travel fast and far a field. They are used without being expended and
take effect in combination with innumerable facts and other words. Yet they are dangerous and
can cause vast financial damage [cites Grant v. Australia Knitting Mills] then went on to say:

If the mere hearing or reading of words were held to create proximity, there might be no limit to
the person to whom the speaker or writer could be liable. Damage by negligent acts to persons or
property on the other hand is more visible and obvious, its limits are more easily defined and it is
with this damage that the earlier cases were more concerned.

(Then the judge examines the development of the law on liability on the basis of words starting with the
case of Pasley v. Freeman (1789) which laid down a duty of honesty in words to the world at large - this
creating a remedy designed to protect the economic as opposed to the physical interests of the
community. The extension was made in Derry v. Peek - a duty to use reasonable care in the preparation of
the document called a valuation. But the ratio decidendi of Derry v. Peek is said to have been wrongly

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applied in Le Lievre v. Gould as explained by Lord Denning LJ. in Candler v. Crane Christmas and in
Nocton v. Lord Ashburton, it was said that the authority of DVP had been too much emphasized.

Commenting on the Decision of the House of Lords in Donoghue v. Stevenson Lord Pearce said:

The range of negligence in act was greatly extended in Donogue v. Stevenson on the
wide principle of the good neighbour - sic utere tuo alienuum non laedas. How far
economic loss alone without some physical or material to support it, can afford a
cause of negligence by act? The House of Lords in Donoghue v. Stevenson was, in
fact, dealing with negligent acts causing physical damage and the opinions cannot be
read as if they were dealing with negligence in word causing economic damage.
That case can no more help in this sphere than by affording some analogy from the
broad outlook which it imposed on the law relating to physical negligence (pp. 613-
615) .

Important: Below are questions to guide you in reading the case of Hedley Byrne & Co. Ltd. v. Heller &
Partners Ltd:

1. Is the decision reached on the basis of Donoghue v. Stevenson or another principle, e.g a special
relationship?

2. Are all the parts of the jUdgement set out "mere dicta"?

3. What is the authority now of Le Lievre v. Gould?

4. What view did their Lordships take of Derry v. Peek?

5. What view did their Lordships take of Candler v. Crane Christmas?

6. You have read the judgment in each of which the conclusion was that the defendant was not
liable to the plaintiff. What difference in reasoning in the judgments can you detect?

8. Why do you think their Lordships went to such length in elaborating their opinions when they
agree that the presence of the disclaimer of responsibility avoided ability?

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4.3 (d) A case decided by the High Court of Tanzania - tried to import the notion of negligence at the
time when the Courts in East Africa were no longer bound to follow English Decisions, a period in which
Insurance business was monopolised by a state created National Insurance Corporation. The judge in this
case used the doctrine of Estoppels drawn from the law of evidence to hold the corporation liable because
the injured party was already time barred to sue appropriate Insurance Company.

FRANCIS NGAIRE V. NATIONAL INSURANCE CORPORATION[1972]HCD No. 134 OR [1973]

EA 56.

Material facts: the plaintiff on 15/4/1968 (a driver and mechanic) while sitting in his motor vehicle,
perked on its correct side of the road, lost his arm when another driver. The owner's defence was that he
was not liable but the driver admitted having been at fault and that at the time of the accident he was
performing an official duty. The case came before the Former Chief Justice Georges who gave judgment
in favour of the plaintiff and awarded him Shs. 50, 000 /= damages. The plaintiff's lawyer attempted to
secure damages from the corporation, the corporation repudiated liability. The plaintiff duly filed an
action in tort against the corporation in wrongly informing him that the vehicle of Mr., Mushi was insured
by the Corporation, when in fact the vehicle was insured by the British India General Insurance Company
¬and at the time such information was revealed the plaintiff was already time barred.

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

Whether Mr. Mwaikambo of the dependant Company verbally presented to the plaintiff's counsel that Mr.
Mushi's vehicle was insured on the date of the accident?

plaintiff's advocate represented that Mr. Mushi was their insured in respect of motor vehicle registration
number TDN 518 as was alleged in the plaint?

Whether the defendant company by their letter addressed to the plaintiff's advocate put the plaintiff on
inquiry as to the company with which the motor vehicle company permitted by law to undertake the
Insurance of Vehicles in Tanzania against third party risks. The plaintiff's advocate inquired whether the
vehicle t0at cause an accident was in fact insured by the Corporation and the against of the defendant did
represent to the said advocate that the said vehicle was insured at the material date.

That acting on the said representation, the plaintiff's advocate immediately after instituting the
proceedings did notify the defendant of the institution of proceedings by a letter, no notification to any
other company was made. That later• the defendant company through a letter denied that the said vehicle
was insured with them at the material time of the accident and refused to satisfy the judgement as

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pleaded. That the defendant company was under a duty to the plaintiff to make the statements and
representations with care.

Arguments by the Counsel for the defendants:

The defendant denied that at the time of the accident, it was the sole 'company permitted by law to
undertaken Tanzania insurance of "vehicles against third party risks. That the advocate of the plaintiff did
not contact the agent of the defendant company who made the allegation that the said vehicle was at the
material time insured by the defendant company.

That communication by letter to plaintiff's advocate had denied that the company was liable and therefore
refused to satisfy the judgment.

That the defendant company was under any duty to the plaintiff to make the alleged or any statements or
representations, that there was no breach of the alleged duty, that the defendant was not guilty of any
negligence to the plaintiff. |t -y Holding; Judgement entered for the plaintiff.

Ratio Decidendi: When one person has by his declaration, act or omission, intentionally caused or
permitted another person to believe a thing to be true and to act upon such belief, neither he nor his
representative shall be allowed, in any suit or proceeding between himself and such person or his
representative, to deny the truth of that thing.

Important Remarks by Biron J (as he then was):

1. Reacting on the answer given by the agent of the company to the advocate of the plaintiff Mr.
Chakera's version of the telephone conversation, he actually telephoned when the plaintiff
called at his office enquiring on the progress of the case, was that he first of all referred to his
letter of 4 March ... and enquired from Mr. Mwaikambo whether the vehicle in
question was insured by the corporation. Mr. Mwaikambo not only confirmed that it was,
but asked rhetorically "who else could have insured the vehicle" (p. 60 also p. 63).
2. It is abundantly clear from Mr. Mwaikambo's evidence that when having obtained the file
referred to by him, which he himself said was motor claims file, Evidence: there was, I would say
beyond a shadow of doubt only one letter on that file .... As this was the only letter on the file
which Mr. Mwaikambo consulted, he must have known, or at least should have known, as it so
explicitly stated, that the accident occurred on 15 April, and Mr. Chakera's query was in respect
of that accident, Mr. Mwaikambo himself admitted that there had been no other claim brought
against the vehicle (p. 62}.

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3. In answering issues four and five the Learned Judge made reference to House of Lords decisions,
which at that time were of persuasive value. This came about due to the fact that at independence
appeals no longer lay to the Privy Council from the Courts in East Africa and the Court of Appeal
for East Africa in 1968 made a decision in Dodhia v. National and Grindlavs Bank Ltd. [1970]EA
on the rules of precedent applicable to East Africa which affected the Court's attitude towards
foreign decisions,
(a) Then quoted a remark by Lord MacMillan in Donoghue v. Stevenson. [1932]A.C. 562: The
categories of negligence are never closed. To this remark Justice Biron (as he then was) went on
to say: Although authorities have distinguished between injury or damage resulting from
statements whether oral or written, and physical acts, I think, there is a divergence of view and
attitude adopted by Australian Courts, and the American courts are much liberal than are the
English ones, I must confess my inability to distinguish between statements and other physical
acts, after all, a statement is a physical act, whether oral or written, and to guote the old adage, the
pen is mightier than the sword, to which I would add, that the tongue could be equally as
mischievous as the pen.
However, in England the matter has now, I think, been finally settled by the House of Lords case
of Hedley Byrne v. Heller & Partners [1963]2 ALL. E.R. 575. I think it is sufficient to quote the
head-notes as follows:
"If, in the ordinary course of business or professional affairs, a person seeks information or advise
from another, who is not under contractual or judiciary obligation to give the information or
advice, in circumstances in which a reasonable man so asked would know that he was being
trusted, or that his skill or judgment was being relied on, and the person asked chooses to give the
information or advice without deeply so qualifying his answer as to show that he does not
accept responsibility, then the person replying accepts a legal duty to exercise such care as the
circumstances require in making his reply; and for a failure to exercise that care an action for
negligence will ie if damage results" (p. 64).

As you might have noticed this is an "If" proposition not binding on the judge at all. At the same
time the judge realised that English authorities were no longer binding:

For the record I ought to add that, although English authorities are no longer binding on this
court, I can sense reason for holding that the law as laid down by the House of Lords, is any
different in this country, but on the contrary, I have not the slightest hesitation in holding that it is
the same (p. 64 Para G).

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But because of the seemingly inadequacy of the case law authorities, the judge based his decision
more firmly by employing the doctrine of Estoppel from the Law of Evidence Act, 1967 section
123 (p. 64 Para H):

...... When a declarations made by an employee in the ordinary course of his duties his employer
is liable for such a declaration (p. 64 Para 1).

He went on further to say:

There is a duty cast on an insurance company from whom an inquiry is made as to whether a
certain vehicle is covered by that company, to exercise the utmost care and diligence to give the
correct information, as a failure to do so would occasion loss and damage to the inquirer. I would
even go further to say that the law has established a relationship between the public and insurance
companies and laid a fiduciary (relationship) obligation on the part of insurance companies,to
exercise all due care and diligence in giving proper and true information (p. 65 Paras D & E).
There was also a comment on the fact that at the time the National Insurance Corporation had a
monopoly of Insurance business in Tanzania as specifically provided so by the law. If courts did
not protect the public then the corporation was likely to conduct itself in a manner injurious to the
community at large.
Therefore I have not the slightest hesitation in holding that the corporation was under a duty to
exercise due care and diligence in giving Mr. Chakera a true answer to his inquiry, as to whether
the vehicle which was involved in the accident which caused so much damage and injury to the
plaintiff was insured with the corporation at the material time. Be as it may, it is possible that Mr.
Mwaikambo failed to consult the policy file and assumed that the vehicle must have been insure
with the corporation, because by the insurance (Vesting of Interests and Regulation) Act, 1967,
Part V, S. 13 the corporation was granted the monopoly in this country for handling such
insurance (p. 65 Paras F-H). Important: Below are questions to guide you in the
course of reading the case of Francis Ngaire v. National Insurance Corporation [1972] HCD n.
134 or (1973)EA 56. "220.
1. What were the facts of the case?
2. What happened in the case?
3. What was the nature of the communication between the plaintiff's lawyer and the
officials of the National Insurance Corporation?
4. What was the defence of the owner of the vehicle which caused the accident?

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 5. What was the Court's decision with regard to the driver's alleged negligence? What
amount of damages was the plaintiff entitled?
6. What were the issues drawn by the judge? How did the judge proceed in answering
them?
7. How did Justice Biron (as he then was) deal with the remark by Lord MacMIllan in
Donoahue v. Stevenson's case? What was his treatment of the decision of the House of
Lord in Hedly Byrne v. Heller & Partners? Why was the case not decided solely on
the basis of the authorities from the House of Lords?
8. What is the ratio decidendi of this case? On what authority is it based?
9. What do you learn from this case? Is there any distinction drawn by the courts in
England and East Africa between negligence in words leading to financial loss and
negligence in act or omission leading to physical damage?
10. Is it possible so. far to say that there is a general tort of negligence upon
people irrespective of their position can recover from the wrongs of others?

SECTION VI: LOGIC AND LEGAL REASONING

LECTURE 1.1 LOGIC

Logic is that branch of philosophy which reflects upon the nature of thinking. It attempts to answer
questions like what is correct reasoning? What distinguishes a good argument from a bad one? What
are the methods of detecting fallacies in reasoning, if so what are they? Logic is the most
fundamental branch of philosophy. It is not a branch o psychology, it does not deal with all types of
thinking call reasoning. Logic is prescriptive ought and deals with t formulation of general rules for
correct reasoning. [See also Twining, W. and Mier, D. in How to Do Things With Rules 3r Ed. Ch.7
p. 255 quotation from Runes's Dictionary o Philosophy (fn. 12). Thinking Reasoning and inferences:

In reasoning we produce reasons as evidence for certain conclusion we wish to establish. Reasoning is
closely connected with making inferences (inferring). The reasons we provide allow us to infer a certain
conclusion. In this sense logic is a descriptive attempt to distinguish bad reasoning from good reasoning
or what is eguivalent to good inferences. Logic is a science of "good reasons". The reasons given are
always expressed in a language. Because this is so logic has sometimes been characterised as discipline
which deals with the relation between sentences. Inference is a process which allows us to establish the

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truth of a certain sentence called the conclusion of an argument, from the truth of other sentences which
constitute the evidence for the conclusion. On the basis of the foregoing, logic may be defined as a branch
of philosophy which attempts to determine when a given sentences permits us to correctly infer929Y

Deductive and Inductive Logic

Traditionally philosophers divide logic into two main branches: Inductive and deductive logic. Both are
concerned with the rules of correct reasoning or correct argumentation. Deductive logic deals with
reasoning which attempts to establish conclusive inferences. To say that an inference is conclusive means
that, if reasons given are true, then it will be impossible for the inference based upon those reasons to be
false. Such reasoning is called valid reasoning or valid inference. Deductive logic is concerned with rules
for determining when an argument is valid. In daily life not all reasoning attempts to provide conclusive
evidence for the truth of a given conclusion. For practical purposes we do not need conclusive evidence.
What we merely want is evidence to show that the conclusion we have arrived at is well founded. In a
case of Murder in a Court of law, a judge may wish to know whether a conclusion arrived at is reliably
inferred from the evidence before the court.

Inductive Reasoning deals with soundness of inferences for which the evidence is not conclusive. It is not
concerned with inferences which are valid but those which are probable. Inductive reasoning is about
what reasons provide evidence for a given conclusion truth when the reasons in question are not
conclusive ones. [Brett MR's proposition in Heaven v. Pender]. It is concerned with relations between the
evidence and the conclusion drawn from the evidence.

1.2 DEDUCTIVE LOGIC: THE SYLLOTISM

This is the most famous types of deductive logic or reasoning called the syllogism. A syllogism is an
argument which contains two premises and a conclusion. Every syllogism must be composed of three
sentences no more no less. The conclusion is a sentence which try to prove or establish the truth. The
Premises: These are two sentences which provide reasons for asserting that the conclusion is true. For
Example

All dogs are vertebrates (Major Premis)

All vertebrates are animals (Minor Premis)

All dogs are animals (conclusions) The theory of syllogism:

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The system of rules which enables us to tell when syllogistic arguments are Such that their premises
imply the conclusion and when they do not. The theory of syllogism provides us with a technique for
distinguishing good from bad reasoning. Each of the sentences which make up a syllogism contains four
parts:

All: a qualifier Dog: Subject or subject term

Vertebrate: the prodicate or predicate terms are: The copula a word which connects or relates the subject
to the predicate. The subject term refers to the thing or entity about which we assert something. ^The
Predicate term designates that which is asserted by the subject. The copula will always take the form of a
verb to be. The functions of the qualifies is to indicate the extent to which we refer to the members
denoted by the subject term. Logic in the Law:

The way codes or pieces of legislation are drafted or drawn show an internal logic of the concepts and
categories of the phrases and terms contained as well as internal local consistence of the provisions. The
law is concluded in more generalised phraseology in order to enable it to deal both with specific and
tenurial cases. Judgments are written in a manner that suggests a logical consistence and the choice of
words and phrases reflects certain categories logically connected [Read cases on the Law of Negligence].
Despite all this there has been a life long debate on whether logic plays an important in law or not. This
first was seen in the struggles between Justice Coke and McMonerdry in Britain in the Judgments by
Justice Coke in:

Prohibition del Roy 1607

When King James I attempted to interfere personally with the administration of Justice, Coke C.J.
reproved the intervention of the monarchy by saying:

Causes ... are not to be decided by natural reason but by artificial reason and judgement of the Court.
What the Chief Justice was saying was the fact that through training and practice a lawyer attains
ascertains level of thinking and arriving at decisions through the art of reasoning. In dispute is the extent
to which logic is applied in legal decisions. Athur Guest says that there has been a move against logic in
law because:

"logical thought processes are rigid and inflexible to the extent of

turning judges into stooges of the law other than conscious individuals".

This suggests that to use logic would mean to turn judges into automatons which is in fact not reflected
by the way judges make decisions.

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Another opponent to the use of logic is O.W. Holmes "The Path of the Law" in which he categorically
asserted that:

The life of the law has not beenlogic but experience. These seem to put some limitations on the extent
to which logic is applicable by lawyers. Thus in these materials logic and law or legal reasoning will refer
to the kinds of reasons judges consider appropriate in recommending or justifying a conclusion on a
question of law in a legal system (Twining) or the skills which lawyer use in handling "law" and
facts (Brandon, S), or the object of legal reasoning in a decision (A Guest) , or a whole range of types of
reasoning for various intellectual tasks performed by a lawyer (s) in planning, organising
management, conflict resolution, analysing statutes and judicial opinions in order to extract a legal
doctrine, and various levels of obstructions of factual situations (complex) with a purpose of summarising
essential facts accurately. It involves thinking in tactical terms when designing statutes and legal
institutions (J. Stone) Kihert are enumerated represent some scopes of legal reasoning, the other
according to Bodenheimer, in Jurisprudence. 3rd Edn. 1978 b 368. The facts of a dispute between
the parties having been ascertained by the Court, they are subsumed under the rule by a process of logical
deduction. Before this is done, it may be necessary to interpret ambiguous words or indeterminate
concepts forming part of the rule rMwinvimadi Ramadhani v. Rep. Crira App. No. 150 of 1962
[unreported]. It may also happen that a general rule covering the facts is not readily available to the
sequence of earlier decisions [Brett MR in Heaven v. Pender1.

There are also many cases where the facts found by the court do not fit within the semantic frame of the
existing rule, but where the device of analogy is used by the court in applying a related rule or similar
precedent embodying a general policy or rationale appropriate for the decision of the case.

Home Office v. Dorset Yatch Co. Ltd.. [1970] AC 1004).

1.3 DEDUCTIVE REASONING:

Rules of Chess:

"If you move four Castle there can take it away with my Knight".

Rules of Geometry;

"Since this figure is a parallogram therefore its opposite sides are equal".

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Rules of Football:

These rules start from the qiven and through a chain of reasoning arrive at conclusions. The given is
called the premises and that which is claimed to follow from it as the conclusion. This is a closed system
of thinking. It is a process of "drawing out" what is already there in the premises.

Legal Rules:

MP. Every male person who .. Knowingly lives wholly or in part on the earnings of prostitution ... is
guilty of a misdemeanor (s. 145 of the Penal Code Cap. 16). the accused knowing lived in the earnings of
a prostitute (a fact) therefore, the accused is guilty of a Misdemeanour. (Finding of the Court and
application of the rules of law).

(ii) No Murderers is entitled to take any property under his victims will [Riggs v. Palmer, 115 NY 506, 22
NE. 188 (1889)] (See Appendix X).

Elmer is a murderer (Law and fact)

Therefore Elmer is not entitled to take any property under his victims will.

(e) Other Examples:

(a) All convicted thieves are sUbject to a minimum prison term of 5 year.

Therefore this offender is sUbject to a maximum prison term of 5 years.

(b) _________________________________________________________________
X is insane

Therefore X is not guilty of murder.

(c )__________________________________________________________________

No bar is open to all individuals. Therefore, no bar is a public place.

(d) All persons who, conspire to corrupt pUblic morals are guilty of an offence at Common Law.

X conspired with B to corrupt public morals.

(e ) __________________________________________________________

some residents are non-citizens Therefore some residents are not voters .

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4 SORTIES

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 on 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 shows an intention that it is retrospective

Therefore:

Hote: Where 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 premis. If as the 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 a 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 a theft.

1.5 CRITICAL COMMENTS

According to H. A. Hart in his article "Problems of the Philosophy of law" in Essays in Jurisprudence, ch.
3 which also appears in the Encyclopedia of Philosophy. Edward Ed. Vol. 6 p. 264:

... the application of legal rules to particular cases cannot be regarded as

syllogism or any kind of deductive inference ... neither the general legal rules nor
particular statements of law (such as those ascribing rights or duties to
individuals) can be characterised as either true or false and thus cannot be

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 logically related either among themselves or to statements of facts... they cannot
figure as premises or conclusions of a deductive argument.

Dennis Lloyd in "Reason and Logic in the Common Law" in Vol. 64 Law Quarterly Review, [1948]
468 says:

Law is certainly concerned with the deduction o general propositions and their
application to particular case, and so this extent we may perhaps accept Maitlands
dictum when he observed: Law is a point where life and logic meet".

No court can, and indeed ought to construe such propositions as pure generalisations unrelated to the
facts of life into which they must be integrated. Every proposition, however general inform,
must in law be viewed in the light of what Professor Whitehead has called its pattern of
circumstances. In Law as in real life, there is always an element of choice. When a judge seeks to
apply to the facts before him a rule of law of which he asserts that "the person who for his own purpose
brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it
at his pant", there is not one word in this sweeping generalisation which is not capable of infinitive
refinement and qualification. Law is not so much concerned with logic or reason in the formal sense but
rather with reasonableness. The judge as a member of the community is bound to share more or
less in its common notions.

1.6 INDUCTIVE REASONING

In human affairs we experience this;

If Mrs Pombe sits next to Mrs Maji they will probably quarrel.

Experience with weather we notice:

If you go out in the midday sun without a hat in some part of the World you are likely to get sunstroke. In
Human Habits we note:

James is a teetotler and therefore doesn't drink Konyagi.

All these propositions are based on the speaker's experience. The conclusion is drawn from
particular habits of evidence in the past and this enables the speaker to form a general
estimate of the Character of Mrs Pombe and Mrs Maji. This process of reasoning is called
Induction. It is a process in which one is arguing from experience, from evidence supplied
by the outside world. It is an open system. A general rule is formed from particular cases.

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 Induction can never have the same kind of certainty as the conclusions arrived at by
deduction, though it may have a very high degree of probability.

Thus induction is concerned with empirical statements.It includes the process of reasoning from
particular cases to a general rule. It is a process of putting together", it is sometime called synthetic. It
is a method used in the physical sciences. The laws which are formulated by scientists are derived from
particular instances. They are formed by a process of induction. But once they have been formed
particular conclusions are deduced from them.

Inductive Reasoning and the Courts:

Unlike deductive reasoning, Inductive reasoning starts from examining particular cases with a view to
reading a general principle. Instead of starting with a general rule, the judge starts with relevant cases,
discovers the general rule implicit in them. Brett MR. in Heaven v. Pender♦ The movement is from the
known towards the unknown facts.

The material facts of HVP according to Brett MR were that the defendant supplied ropes for the use of the
plaintiff. The defendant must have known if he thought about, that such a stage would be used
immediately, by some such persons as the plaintiff. By applying inductive reasoning he proceeded in his
judgement that there were situation in life which give rise to liability tor T\ecjlia;%TYt acts even NJhexe
there is no contract between the parties or fraud. Examples considered were cases of drivers of cars,
railway companies when carrying passengers of the employer who had bought tickets for them, owner of
premises or house who invite others on those premises or house.

In his view these situations give rise to the following broad proposition:

Whenever a person is by circumstances placed in such a

position with regard to another that everyone of ordinary sense who did think
would at once recognize that if he did not exercise ordinary care and skill in his
own conduct with regard to those circumstances he would cause danger of
injury to the person or property of another, a duty arises to use ordinary care
and skill to avoid such a danger:

This proposition was arrived at by way of Induction. And it was applied to the actual facts of the case
through the process of deduction. Here there is an interlinkage between induction and deductions.

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1.7 CRITICAL COMMENTS

According to H.L.A. Hart in "Problems of Philosophy of Law" (Ibid) says:

Reference to induction is usually made in this connection to point contrast

with the allegedly deductive reasoning involved in the application of legislative
rules to particular cases. Instead of starting with a general rule the judge must
turn to the relevant cases, discover the general rule implicit in them.... The
outstanding difference between the two methods is the source of the major premise -
the deductive method assumes it whereas the inductive sets instances" [see
also G.W. Paton, A Textbook of Jurisprudence. 2nd Ed. Oxford 1951 pp. 171-172].
It is of course true that Courts constantly refer to past cases both to discover rules and
to justify their acceptance of them as valid. The past cases are said to have authority
for 023(3 tfte ru^es extracted from them. J The selection of one rule from among
alternatives as the rule for which precedent is taken to be authority must
depend on the use of the criteria limiting the choice, and those criteria
are not matters of logic but substantive matters which might vary from
system to system or from time to time in the system. A rule for which a
precedent is authority is the rule which a later court considering the
precedent would select from the logically possible alternative after weighing the
usual moral and social factors. The use of induction to refer to the intense application
of deduction involved in finding that a past case is the instance of a general rule may
be misleading.

Induction my also invite confusion with the forming deductive inference known as
perfect induction or with real or alleged methods of discovering generalisations
sometimes referred to as intuitive induction.

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1.8 ANALOGY

According to E.H. Levi, this is the basic pattern of reasoning. It is sometimes referred to as reasoning by
example. Argument by analogy is argument by considering similarity of cases. The problem is that they
may be taken to be more similar than they really are. Analogies cannot be validly used to establish
conclusions but they point to them. Analogy and Metaphor:

Metaphors: (1) Kijiko has an eye like a hawk

(2) Jane has a heart of gold

(3) He is as brave as a lion

(4) Fit as a fiddle

(5) Flat as a pancake

(6) Straight as an arrow

Analogies;

(1) The razor's edge of his intellect will be blunted by constant use (Not a Good one).

(2) Body politic (The State compared to human body).

(3) Extract from Francis Bacon in the body Politic:

Nobody can be healthful without exercise, neither natural body nor politic, and certainly, to a kingdom or
estate….a just and honourable war is the true exercise. A civil war, indeed is like the heat fever; but a
foreign war is like a heat of exercise, and seventh to keep the body in health, for in slothful peace, both
courage will effeminate and manners corrupt.

The argument:

Exercise is good for the human body. What corresponds to exercise for the body is a foreign war,
therefore a foreign war is good for the body politic (The similarity is drawn between the natural body and
the body politic or state). The whole print of a metaphor and analogy is that things compared are basically
dissimilar. Analogies are useful in illustrating points and helping us to understand complicated ideas,
but they can never be based on established conclusions. Analogy and the Courts:

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Analogy is a process of arriving at a decision by framing similar rules of analogous cases [Deny v. Peek.
Lelievre v. Gould. Nocton v. Lord Asbruston. Candler v. Crane Christmas. Clavton v. Woodman, and
Hedlev Bvrne v. Heller]. The object is not to create new rules but to develop the existing areas without
disturbing the consistency and uniformity in the law. 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.

What is meant by the term similarity:

It refers to the willingness to pick out key similarities to reason from them to the justice of applying a
common classification. Reasoning by common standards. For example in the case of Le Lievre & Deenes
v. Gould. Lord Bowen L.J. stated inter alia:

I am of the same opinion.... How in Deny v. Peek, the House of Lords pointed out, as common
law lawyers had always held, an action on deceit must be based upon fraud, and that negligence is not of
itself fraud.

The classification changes as the classification is made. The rules change as they are applied. The
rules are seen to arise from a process in which, while making comparisons in fact situations, rules are
created, and then applied. The kind of reasoning which classifies things as equal when they
are somewhat different Donoghue v. Stevenson and Grant Australian Knitting Mills) articles for external
& internal consumption causing injury to the consumer) . The categories used in legal reasoning
are left ambiguous in order to permit the infusion of new ideas. > This is true even where
legislation or a constitution is involved.

The question is whether in the process law is certain, unchanging, express in rules or uncertain, changing,
so that this should be seen as a mere technique of deciding specific cases? The answer is that, it is both.

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Reasoning, by example is a key to many things (i) it indicates in part the hold on which the legal process
has over the litigants (ii) it shows the decisive role in which the common ideas of society and and the
dinstinction made by the expert can have in shaping the law (iii) it brings into focus important
similarities and differences in the interpretation of case law, statutes and the constitutions of a nation.

LECTURE 2.1 LEGAL REASONING & CASES OF NEGLIGENCE:

Law, rules and principles are general. Application of law, rules and principles to particular instances calls
for categorisation (a certain level of abstraction of facts in question). Litigants do present their dispute in
the form of facts and stories, these have to be reduced into legally acceptable categories before any law,
rule or principle can be made applicable to them and a conclusion made by way of a decision.

In real life according to Irvin C. Rutter in his article "A Jurisprudence of Lawyers' Operations" in Vol. 13
Journal of Legal Education (1960-61) 3Aff the wor "cow" at different levels of abstraction can mean the
object in the lowest level of abstraction, it may also mean livestock when features that a cow has in
common with pigs, chicken, goats and sheep have been considered; but it can mean fqrm assert when
captures the cow has in common with barns, fences, livestock, furniture, generating plants and tractors
are considered; and at the highest level it may mean wealth. Another common example found in
some legal textbooks is a dog by the name of Bean which is a terrier, Pedro (the Chichualua),
Snuffelts (the English bulldog) and Shanne (the Irish Worlfound) . . . all these may differ in size,
shape, appearance and behaviour but they are all dogs. At a different level of abstraction or
categorisation the word dog may refer to a terrier which is an animal which is a mammal and which at the
highest level of abstraction is a living thing. The movement from the particular to the general
categories is known as Induction and the movement from the general to the particular is know as
deduction.

At times the facts of life or the case can be compared through the method of analogy. In the process of
comparison characteristics similar to a certain set of facts situation are categorised together for the
purpose of ascertaining an applicable law, rule or principle. This features mostly in the common law case
method the cases in the Development of the tort of negligence just studied are an example, and the results
may be the same as those obtained by the use of statutory provisions.

Categorisation which is typical in the Common Law case method can be illustrated as follows:

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 "Interpretation and classification of facts play on important part with respect to
actual dispute before the court and when it comes to interpreting previous cases for
the purposes of precedent. The way judges view the facts of previous decisions may
be of utmost importance.

In Grant v. Australia Knitting Mills. [1936] AC 85 for the discovery whether the rule in the previous case,
Donoghue v. Stevenson. [1932] AC 562 was applicable, it was necessary for the court to decide whether
the fact that the way ward-product in Donoghue. a bottle of ginger beer was of relevance. In other words
how was the chattel in Donoghue to be factually described and classified as a product or a "bottle of
ginger beer". If the court was to decide that it must be classified as a "ginger beer" it would then be
possible to hold that a rule formulated to deal with a "fact" was hardly applicable to the "facts of Grant
where the cause of complaint was a contaminated pair of underpants: if on the other hand it was classified
as a "product", then the rule might well be relevant". But the idea of levels of obstruction and
categorisation of facts can become complicated even at the level of considering an individual case. This is
illustrated by Professor Julius Stone in his article "The Ratio of the Ratio Decidendi" in 22 Modern Law
Review [1959]597 at 603-608 when he considered the case of Donoghue v. Stevenson [1932] AC 562 or
[1932] All ER1 and its various levels of stating the facts. He first considers:

(a) The Fact as to the agent of harm: this can include consideration of dead snails, or any notions
physical foreign body or any notions foreign element, physical or not, or any notions element.

(b) Facts as to the agent of harm: an opague bottle of ginger beer, or an opaque bottle of beverage or
any bottle of beverage or any container of any commodities for human consumption, or any chattel
whatsoever, or anything (including land or buildings);

(c) Fact as to the identify of the defendants: A manufacturer of goods naturally distributed through
dispersed retailers, or any manufacturer, or any person working on the object for reward, or any person
working on the object or anyone dealing with the object.

(d) Facts as to the Potential Danger from the Vehicle of harm: object likely to become dangerous by
negligence, or whether or not so;

(e) Facts as to the Injury to the Plaintiff: Physical personal injury or any injury;

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(f) Facts as to the Identify of the plaintiff: A Scots Woman or a woman or any adult of any human
being or any legal person.

(g) Facts as to the Plaintiff's relation to the vehicle of Harm: Donne of purchaser, from retailer who
bought directly from the defendant, or the purchaser from such retailer or the purchases form anyone, or
anyone, or any person related to the purchaser or other person, or any person into whose hands the object
rightly comes, or any person into whose hands it came at all.

(h) Facts as to the Discoverability of the Agent of Harm: The norions element being not discoverable
by inspection or any intermediate party or not so discoverable without destroying the sealibility of
the common duty; or not so discoverable by any such party who had the duty to inspect, or not so
discoverable by any such party who could reasonably be expected by the defendant to inspect, or
not discoverable by any such party who could reasonably be expected by the court injury to
inspect,
(i) Facts as to the time of litigation: the facts complained of were litigated in 1932 or any other time
before 1932 or after 1932 or any time. Often then most material facts are based on the view of the
precedent court and not according to the later court or observer.

2.2 WHAT HAVE WE NOTED IN THE CASES SO FAR STUDIED?

(1) The basic pattern of Legal reasoning is ANALOGY: reasoning by example (Analogy). We have
noted that in both Pasley v. Freeman and Langridge v. Levy an injured party could successfully
sue a defendant whose statement was made negligently with intent that it should be acted upon
and made with an intent to fraud. The two cases were analogous. But the case of Winter bottom v.
Wright was held not to be analogous to Langridge v. Levy because according to Lord Abunger
CB. Winter bottom v. Wright was a case of its own kind. The party injured was not contemplated
by the defendant and there were no statements made by the defendant to the plaintiff. The case of
Frederich Loomeid Eliza v. Hollidav was not analogous to Lanaridae v. Levy because the article
which caused injury was not dangerous in itself or there was no Misfeasance. (The Court was
saying in case the article that causes injury is Dangerous in itself an action may lie in case of
injury occurring. The case of George v. Shivington was decided on the basis of knowledge of the
user as was the case in Langridge and Levy. The case of Logmeid Eliza v. Holliday was
distinguished because according to Kelly, CB. Loomeid Eliza's case was not based on the

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 negligence of the vendor. All along the judges were insisting that "no person can sue on contract,
but the person with whom the contract is made".

In Heaven v. Pender we notice the evolution of the notion of duty of care alongside with that of owner
invitee relationship. The process reasoning by Brett MR was on a case by case which as a result indicated
the existence of a broader category of duty of care. We can say he was drawing examples, which lead to
the discovery of a broader proposition called duty to take care and using the principle in the case under
consideration to arrive at a conclusion in which the defendant is held liable. The minority of the judges
Cotton and Bowen L.J.J, were content to make a decision on the deductive basis of the notion of owner-
Invitee relationship.

Reasoning; They were unwilling to lay down a principle which was broad than necessary.

The case of Derry v. Peek was the first case in which statements made negligently led to financial
loss. In that case the Court made a distinction in between false representations and fraud or deceit.
For a person to hold another liable on the basis of false representation must prove actual fraud or
an intention to deceive. The statements in Perry and Peek were in no way made analogous to the
warranty found in Langridge v. Lew. Lelievre Piennes v. Gould was yet another case involving
negligent statements causing financial loss. One would have expected that Lord Esher (former
Brett MR) MR would have applied his broad principle of Duty of care enunciated in Heaven v.
Pender to hold the defendants liable. This he did not because he maintained that for a duty to arise
there must be a relationship between the parties through contract. He maintained further, that, the
decision in Perry v. Peek insisted that in the absence of negligence, an action for negligence
cannot be ^"maintained where there is no fraud A Bowen LJ maintained, that, an action of deceit
must be based upon fraud. Smith L.J. sought to distinguish Heaven v. Pender from the case in
point in that, it was a different case and the principle was in applicable. In Nocton v. Lord
Ashburton the judges were saying unless the parties had assumed a special relationship like
lawyer - client relationship (fiduciary relationship) no action will lie on a negligent statement
leading to financial loss. The court was insisting on proof of actual fraud. One would have
expected that after the decision of the House of Lords in Donoghue v. Stevenson [1932] which
you ushered in the notion of negligence would have been taken to have once and for all provided
a notion in which future cases would be decided. Even in those cases where it was sought to draw
analogy with it, it collapsed. This is so because the person alleging to have been injured by the
action or omission of the other had yet to prove that there was breach of duty and that the damage
caused could have been contemplated by the wrongdoer (proof of proximity) . Proof of proximity

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 failed in the case of Farr v. Butters [1932] because the injured party had had a chance of
discovery the defect in the machines he was working on. which he continued to work on without
repair and consequently causing his death. The Court maintained that every case must be decided
on its own facts. The only analogy case was Grant v. Australia Knitting Mills [1936] in which the
court found "proximity" to exist between the manufacturer of underpants and the actual user even
in those conditions where the underpants were Oj sold in parts. The Principle in Donoqhue v.
Stevenson was made to apply because the Court was of the view that "the defect was hidden and
unknown to the consumer". Thus the manufacturer had control on his products until they reached
the ultimate consumer.

In Candler v. Crane Christmas except for the dissenting judgement by Lord Denning which suggested that
since the decision of the House of Lords in Donoohue v. Stevenson there was no longer a distinction
between negligence causing physical injury as compared to negligence leading to financial loss. The
majority of the Judges Asquith LJ and Cohe LJ still insisted on the distinction. According to Asquith L.J.
citing Derry v. Peek, the House of Lord's decision in Donoghue v. Stevenson was not intended to have
parenthetically or sub si lent ro swept away such a subtraction. He further maintained that Donoghue v.
Stevenson had not reversed or qualified the principle which had been laid down in Lelievre v. Gould:

In the present state of our law different rules still seem to apply to the negligent misstatement,
on the one hand, and to the negligent circulation or repair of chatters, on the other, and Donoghue
v. Stevenson does not seem to have abolished these differences. Lord Asquith was ready to be
called a Timorous soul" as opposed to "Bold Spirit". The majority of the judges are content to reason
within the narrow categories of liability. In Clayton v. Woodman which was a case of negligent
statement, leading to physical injury one would have expected that the Ratio decidendi of Donoghue v.
Stevenson would be applicable. One would also have expected that the judges would not distinguish it
from earlier cases on negligent statements except Candler v. Grane Christmas. What you note in the
judgement of Salmond J. is the distinctions made of the decisions of Perry v. Peek. Le lievre v. Gould and
Candler v. Grane Christmas. On the latter case he said that Lord Asquith had drawn a distinction
between negligent statements causing financial loss and negligence causing physical injury. He had to
accept that case as an authority:

Although the dicta of Asquith LJ must carry the greatest weight, I do not
consider that the decision is Candler v. Grane Christmas excluded careless
statements from the ombit of Donoqhue v. Stevenson. It may be difficult to think
of the logical reason why there should, in some circumstances, be a duty to take

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 care in making a statement causing physical damage but never such a duty in
making statements causing only financial loss.

He admitted that: "Logic and common sense, are uncertain guides in this branch of the law". While it can
be said logic did play an important role in the use of precedents and creation of new rules of ability, it is a
also true that judges were guided by other considerations than logic. The case of Hedley Bvrne v. Heller
takes us back to the categories which are specific rather than that of negligence which to some judges is
unnecessarily broad.

Lord Devlin maintained that the law in this area was not yet settled (i.e. no broad notions yet accepted by
the law) :

If the Law is settled ... then such a law is defective. In that it would leave a man without remedy where he
ought to have one and where it is well within the scope of the Court to give him one, it would also be
illogical.

He suggested that while "the common law is torelant of much illogicality especially on the surface, ...
system of law can be workable if it has not got logic at the root of it".

At the root of the common law system, the logic is that an individual who claims must place
himself/herself within a certain set of categories of law which allows him or her a remedy in case of an
injury sustained. Thus in Hedley Byrne v. Heller, the plaintiffs had to show that they belonged to a
category of persons whose communication by the bank had to be made with utmost care short of which
the defendants were not liable. Not even to the extent of employing the test of a reasonable man.

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LITERATURES

1. John Farrar, An Introduction to Legal Method, London 1977, Appendix 3.

2. Irvin C. Rutter, "A Jurisprudence of Lawyers operation" in Vol. 13 J.L. Ed. (1960-1961)317-

363.

3. Julius Stone, "The Ratio Decidendi of the Ratio Decidendi" in 22 Mod. L. Rev.

[1959] 597 at 603-608.

4. Llwellyn, Brumble Bush, Oceana 1951, 45-49; 66-69.

5. Brandon, S; English Legal System in A Mutshell. London, (Sweet & Maxwell) 1979 Ch. 10.

6. Guiest, A.G; "Logic in the Law in Oxford Essays -Jurisprudence.

7. Hall, Readings in Jurisprudence 1938 pp. 341-386, 539-584.

8. Emmet, The Use of Reason pp. 53-61; 162-165.

9. Twining/Miers, How to do Things With Rules. London 1976 or 1982 Ch. 7.

10. Lloyd/Freeman, Lloyds Introduction to Jurisprudence. 5th Edn. pp. 1183-1189; 1189-90; 1190-

1201.

11. D. Lloyd, W. Reason and Logic in the Common Law" is 64 L.O.R. 468 (12948).

12. Lord Diplock in Home Office v. Dorset Yatch Co. Ltd.[1970] AC. 1004.

13. A.J. ASHWORTH? "Reason Logic and Criminal Liability," in 91 LQR 102-130 (1975).

14. J. Dewey, Logical Method and Law, Lloyd 5th Ed. pp. 720-730.

15. Cardozo, The Nature of the Judicial Process Lloyd 5th Ed. pp. 1176-1177.

16. G. Williams, "Language and the law" Llyod 5th Ed. pp.1180-1183.

17. J. Wisdom, Gods Lloyd 5th Edn. pp. 1169-1190.

18. F. Castberg, Problems of Legal Philosophy, Lloyd 5th Edn. pp. 1194-1198, 1198-1201.

19. R.H. Thouless, Straight and Croocked Thinking Pan Books, London Sydney.

20. Emmet, the Use of Reason Longman I960, pp. 53-61, 162-165.

21. L.G. Boomin, "Concerning the Relation of Logic to Law", in 17 J.L. Ed. [1964-65]

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