Subject: LEGAL METHODS

STUDY MATERIALS

Compiled By:
Francis A. Wazarwahi Bwengye
Senior Lecturer in Law

CONTENTS
1. Component Parts of a Statute.... ....p.1-2
2. Statutory Interpretation... .p.3-14

3. Case Note... ..p. 15-16

4. The Doctrine of Judicial Precedent.. .p.17-24

 1. A STATUTE AND
ITS
1) Chapter Number/ Act COMPONENTS
Number
Statutes bear chapter (Cp.) Numbers
enacted. Chapter number helps to show chronologically as they were
the citation of the statute which
eases access of the statute. (See
Advocates Act, Cap. 257).
Some Acts don't have chapter Numbcrs but
have Act Numbers e.g The
Companies Act, No. 1 of 2012.
2) Short Title
This is the title that defines the Act (See "Advocates Act" This can also be
abbreviates as AC.

3) The Long Title

This phrase indicates the purpose of the Act. It gives what the Act is
intended do serve, e.g Land Act, Cap.227, long title
states:.
Cases: Ward v Holman [1964] 2 ALL.E.R 727

4) The Commencement Date

This is the date when the statute becomes operational as law and
binding on all citizens. Its importance is that it avoids retrospectivety SO
that one cannot be held liable for commission or omission of any act
before commencement dateunless expressly stated otherwise; E.g. The
Companies Act. No.2 of 2012- commencement date was put on 1st
July 2013.

5) Arrangement Of Sections
This is atable of contents of the statute. A summary of all the sections of
the statute together with the Schedule annexed. Sections are numbered
with each number dealing with a specific rule of law; E.g. Section 1 gives
the short title of the statutes stating "This Act may be cited
as. ..Act", Section 2 is usually the interpretation section giving
meaning of words used in the Act.

6) Headings Of Sections
These summarize what the parts of the sections underlying them as to
what they are all about.

1
 Cases: 1.Ulmerv LR.C.[1966) 3 WLR 672
2. R.V. Survey
Assessment (1948] 1 KB 28
7) Marginal Notes
Not part of the statute. Just
in statutory
inserted by the draftsman. Normally ignored
interpretation. They are sub-headings placed in margins of
a printed statute giving a brief indication of matters dealt with in
section. Sometimes used as headings of the the
internal aids to constructions. sections. Normally used as
Cases: 1. Mugo v R. (1966] EA 124
2. In the Estate of
3. Huber: Use of Shanijt [1965) EA 789
Rev. 107 Marginal Notes in East Africa [1969] 2 EAL
8) Schedule
Written list of explanations or details
Usually divided in paragraphs. attached at the end of the Act.
 2.STATUTORY INTERPRETATION
1)Introduction

It is very important that a law school student comprehends the Concept of

Statutory Interpretation, as issues relating to the interpretation of statutes are
very commonly met in practice by the average Advocate; for example, in the
interpretation of The Constitution of the Republic of Uganda, or of a specific
provision of a piece of legislation as to its consistency with the Constitution by the
Constitutional Court.

It should be clearly borne in mind that when Parliament has passed an Act
(Statute), the words of the Act are authoritative as words. It is only those words
that have passed through the legal machinery of law making; and individual
members of Parliament cannot be put into a witness box to supplement or
interpret what has been formally enacted. Thus the words of an Act carry a sort of
disembodied or dehumanized meaning; not necessarily the meaning intended by
any actual person in particular, but the meaning that is conventionally attached
to such words.

2) Definition.

Statutory interpretation is the process by which the Courts determine the

meaning of statutory provisions for the purpose of applying them to situations
being litigated upon. It is what a Court of law will do with a statutory provision
before applying it. The Courts and students of judicial practice have synthesized
the stages and dynamics of this subject into a set of rules supposedly followed in
the subject.

Statutory interpretation is an important part of the mechanism for implementing

the policy of the Legislature. Most legislatures in modern democratic systems tend
to go in the direction of being more or less representative of the interests of the
people. These interests are ideally and ultimately provided for in the statutes. So it
becomes very important to accurately ascertain these interests in the form of
statutes. Courts have thus to ascertain the intention of the Legislative.
3) General Rules of Statutory Interpretation
a) The general rule is that words must be given a
sensible meaning. Statutes
must be read as a whole and a consistent meaning assigned to
words. The intention of parliament can only be discovered if all particular
statute are read together. In Leader v Deffy2 [1898] 13 App, parts of the
P.301, it was stressed that the intention of Cas. 294 at
Parliament is not to be presumed
3
 before reading the statute as a whole. This is important because words may
acquire special meanings in statutes. Hey should be read in context to be
applied as Parliament intended. Every clause of the statute should be read
in the context of the whole
statute.
b) Words of a statute are to be given
their natural and ordinary
meaning. The duty of the court is to apply the Law and where the words are
clear and unambiguous, they must be given their plain
context of the statute requires, words are to be given
meaning. Unless the
ordinary
Barrel vFordree (1932] A.C. 676 at P. 682 court held thatmeaning. In
the safest
course of action in the interpretation of statutes is to
make the words
themselves and try to arrive at their meaning. Similarly in
Curkfeild [1960] & B373. Lord Upjohn held that it was the Stephensduty of the
v
court to interpret the language as used by
insurance case is Cutter v Eagle Star InsuranceParliament.
A case in and
the claimant was sitting in
his friend' car in a car park and was injured when a can of
litter fuel
exploded. The insurance company was supposed to
compensate him for any
injury caused while on the road. Court held that the
park wasn't a road and
the company is not liable to pay for the
injuries caused. In the case of
Fisher vBell [1961] 1 QB394 a shopkeeper who placed an illegal item in
shop window with a price tag not make an offer to
sell it, because of the
specific meaning of "offer for sale" in contract Law. As a
Parliament amnended the statute concerned to close this result of this case,
loophole.
c) The statute must be read as a
whole andconstruction made of all the
parts. This isbecause the intention of the
can only be discerned by reading it as alegislature enacting the statute
in
whole. It is important that the
statute is implemented in its context. It is
presumed that when parliament
enacts a provision of a statute it has the rest of the
provisions in mind, It is
therefore important the words be constructed with the rest of the
in mind. provisions
In the case of Canada sugar
Refining Co. vR, (1898] AC 735 at p. 741;
Lord Davey stated:
"Every clause of a statute should be constructed with
context and other clauses of the Act, so as, as far as
reference to the
consistent enactment of the whole statute or seriespossible,
to make
of statutes relating to
he subject matter"
rdto
sbe
may
However, where the meaning of a word is clearly in conflict with another
ad meaning of the same statute, one meaning cannot be used to limit the other
meaning. Courts are in agreement that where it is clear that the words
are used in different contexts in the same statute, then each context 1s to be
constructed independently.
d) The intention of the legislature predominates
Where the intention of the legislature is clear from the words used in the
statute is should be the overriding consideration in interpretation. This is
based on the reasoning that the court has no powers to make law. The duty
of the court is to give meaning to what parliament has enacted. This was
clearly expressed in Pepper (Inspector of Taxes) v Hart (1877| 3 App.
Cas. 68 at p. 68. In practice, courts use various means to stretch the
meaning of statutes so as to give them effect.

e) Policy and object of the statute

If possible, the construction adopted must be in accordance with the policy

and object of the statute in question. This must be confirmed to cases where
the policy and object of the legislature are clear on the face of the statute
though the words themselves may be ambiguous. The danger with these
rules of interpretation concerning the policy or object of the statute is that
they may expose the process of construction to bias or personal opinion or
result in guessing as to what the intention of Parliament is. In IRC v
Dowdall 0' Mahoney, [1952] AC 401 at p. 426, Lord Radcliff said; «the
belief or assumption of those who frame Acts of Parliament cannot make the
law."
As to the general word in a statute which have no definite meaning, the
consideration of the object and subject matter of the statute may be a
material aid to construction may lead to a modification of the literal
meaning of those general words. At the same time, it must be said that
there is a danger of surmise once literal words of a statute are modified or
departed from. In Abel v Lee [1871] LR 6 Cap 365 at p. 371 Willes J said:
But utterly repudiate the notion that it is competent for a judge to modify
the language of an Act to bring it to in accordance with his views of what is
right and reasonable."
One can contend that the mere fact of general
words being used in a statute
or precludes all inquiry into the object of the
statute or the
intended to remedy. Further, Lord Goddard said in Bernes Vmischief it is
Jarvis [1953
5
 I WLR 649 that a certain amount of common sense must be applied in
constructing a statute. The object of the statute should be considered. No
doubt general words may, in certain cases be properly interpreted to have a
meaning and scope other than the literal or usual meaning. They may be so
interpreted when the scheme appearing from the language of the legislature
read in its entirety to consistency as requiring the modification.

) Words must be presumed to use words in their popular sense. Words must
be constructed according to the ordinary canon of construction, that is, by
giving them their ordinary meaning in the English language as applied to
such a subject matter unless some gross and manifest absurdity would
thereby produced. It is presumed that when parliament makes legislation
be
it is aware of ordinary usage of words. It is p[resumed to use
words in this
sense. In Re Hall's Settlement,[1954]IWLR 1185, Lord Upjohn said: the
only safe canon of construction Ican adopt is to give the words their
natural
meaning unless the context otherwise requires." If words are used in
connection with some particular trade or business, they will be presumed to
be used in a sense appropriate to or usual in such
business or trade. At the
same time it is presumed that words of statutes are used
precisely and
exactly not loosely. In Unwin vHanson, [1891] 2 QB 115 legislation gave
thejustices of the peace power to order and direct that trees
growing near a
highway which prejudice the highway by excluding the sun and wind there
from, be "pruned or lopped" and if the owner of the trees makes
default in
complying with the order the surveyor of highways for the district was
authorized to "prune or lop" such trees. It was held by Lord Esther in the
Court of Appeal, that the term lop" as used in the section
the branches laterally and did not include
meant cutting off
cutting off the top of such trees.
Therefore, where the literal interpretation is not tenable the popular sense
prevails.

g) Words are taken to be used in the sense they

bore when the statute was
made. An Act must be constructed as if the court was
interpreting it the day
after it was passed. In Kingston Wharves vReynolds J¯amaica Mine Ltd,
(1959) AC 187 the Privy Council was called upon to consider
18,000b tractor propelled by internal combustion engines were whether
within the meaning of the Act. It was held that the legislature "carriages"
could not
have intended articles of the weight and complexity of
tractors be
to
by the term. In Rookes v Barnard, [1964) AC 1129 at page 1174 covered
Lord Reid
states; "In constructing an Act of Parliament we are attempting to find the
intention of Parliament. We must find the intention from the words which
6
 Parliamnent has used, but these words must be constructed in light of facts
known to Parliament when the Act was passed.
h) Wheresame words bear the same meaning
Same words are used in the same sense in the same statute and
Consequently a change is an indication of a change of intention on the part
of the legislature. This rule is related to the rule requiring that the statute
be read as a whole so that it is consistently interpreted. It is admitted that a
Word may be used in different contexts with different meanings in the same
legislation. In IRC vKenmare Romer LJ (1956) Ch.483 Court held it is
desirable to give the same words the same meaning it they are used in the
same statute. Where the word is ambiguous in one context, the ambiguity
may be cleared by clarity in another. But where a word has shades of
meaning which merge into each other it is permissible to vary the shade
according to each individual context. There are also instances where the
application of the rule may result in injustice or absurdity. In Maddox v
Storer, [1963] 1 QB 451 the defendant was charged with an offence in
connection with driving a minibus which was originally constructed to carry
offence
seven passengers and had not been altered since construction. The
covered vehicles n adapted" for the carriage of more than seven passengers
and the issue was whether "adapted" could cover a vehicle which had not
been altered. The word 'adapted' in other parts of the Act received judicial
construction as meaning altered so as to be fit." The court refused to apply
the general rule and held that the context must govern the meaning.
Interpreted independently it could carry vehicle originally constructed to
same
cOver more than seven passengers. Therefore, words as used in the
statute may convey different meanings.

i) Statutes that are clear must be enforced

Where the words of a statute are clear, it must be enforced though the
result may be harsh, unfair or inconvenient. Simnilarly, where the statute is
clear, the court cut down its words so as to limit its application in
accordance with questions of public policy which prevailed before the
statute was passed. In Carteledge v Joplin (1963] AC 258 the Plaintiff's
action was held to be statute barred although it was not possible for them to
know the nature of their injury within the limitation time. They contracted
pneumoconios which could cause devastating effects in a man's lungs
without being detected for a period of more than six years. They therefore,
lost the cause of action before they could reasonably be expected to know
7
 Act set out expectations
they had it. In that case, the fact that the limitation
to the limitation of fraud and disability, the court
was of the view that it was
Birkenhead said; "the
not their duty to extend exceptions. Lord recognized
view will no doubt be extremne it should be
Consequences of this
to some class of the
that very few statutes do nÍt cause inconvernience
society."

) Construction to avoid absurdity.

Statutes will be constructed as far as possible to avoid absurdity. This is an

extension of the general rule that a statute, like deeds, should be
constructed in such a way as to give validity rather to its provisions. In
Miller v Salomons [1852] 7 EX 475 a statutory form of oath which
contained the name of Kings George III was required that the obligation to
administer the oath lapsed with the death of the monarch. It was pointed
out that the name George was intended to designate the reigning sovereign.
The case afforded an instance in which the language of the statute had to be
modified toavoid absurdity. However, where there is no alternative the court
is bound to apply the statute as it is.

k) The express mention of a thing or person excludes others. In Lead

Smelting Co. V Richardson, [1962] AC 321 the Poor Relief Act of 1601
imposed a poor rate on occupiers of lands, houses, tithes and coal mines.
The words were constructed to exclude mines except coal mines. In
Colquhoum vBrooks, [1946) KB 362 "1 may observe the method of
construction summarized in the maxim expressounius exclusion alterius is
certainly the one which requires to be watched. The failure to make the
expressio complete often arises from accident; very often from the fact that
it never struck the draftsman that the thing supposed to be excluded
needed specific mention of any kind."

Under the ejusdem generis rule the mention of a category includes reference
to the things that are part of that category. For the rule to be applied there
must be a category first. The court presumes that the summary if reference
to the particular things included in the category. In Allen v Emerson,
(1946] 1 QB 14 an Act stipulated that theatres and other places of
amusement should be licensed. However, the rule should not be used to
extend the application of an act beyond its intended limits. In A.G. vBrown,
I1960| Ac 432 section 43 of the Customs Consolidation Act provided that
the importation of "arms ammunition, gunpowder or any other goods" may
t
be prohibited by proclamation. A proclamation under the Act purported to
prohibit the importation of pyrogallic acid and the question before court was
whether the proclamation was valid. The court held that under the ejusdem
generis rule, the acid was not one of the classes of articles the importation
of which could be prohibited by proclamation.
1) A person should not be permitted to impair the obligation of his contract by
thi
his own act tO profit his own wrong and a statute will be constructed in
sense if possible. In Kish vTaylor, | 1912] AC 604, it was held that a man
should not take advantage of his own wrong and he may not plead in his
own interest a self- asserted necessity. Under the Infant Relief Act 1874, all
contracts entered into by infants for the supply of goods which are not
necessities are absolutely void and the infant cannot recover the money paid
for them if he has used or consumed them. Under the Bankruptcy Act 1883,
voluntary settlements made by a person who became Bankrupt within two
years thereafter are void as against the trustees in bankruptcy. In Re Brail,
[1893]2 QB 381 the words were constructed to mean voidable so that the
title of a purchaser for valuable consideration from the done before
avoidance could not be defeated by the trustee.

4)Modern Rules of Interpreting Statutes

a) The Context of rule

When Members of Parliament are passing a given piece of legislation, they do so

without necessarily anticipating the fact that a specific provision of the statute in
question will be interpreted differently in differing circumstances before, say, a
Court of Law. Since the Members of Parliament are not readily available to explain
exactly what they meant while drafting the statute, it is up to the Court sitting
over the matter to decide what the draftsmen actually meant in a particular
provision of the statute.
The context rule dictates that when interpreting a given word or set of words
within an Act of Parliament, the ordinary meaning of the word or set of words
must be controlled by the context in question, that is to say, regard must be had
to the context within which the word(s) appear(s) in the statute are used. This rule
is at times expressed in the Latin maxim, "Noscitur a socis" (A word may be
known by the company it keeps").
Under this rule, one may look not only at the rest of these section within which
the word appears, but at the statute as a whole and even
with earlier or later
legislation dealing with the same subjcct matter, as it is assumed that when
Parliament passed an Act, it probably had the carlier legislation is the statute
being interpreted or not. However, it is not a static attribute of statutory
interpretation that words have consistent meaning accorded to them: the context
may show that the same word bears two different senses, even when repeated in
the same section. A degree of flexibility ought to thus be employed while
interpreting a provision of a statute.
In reading a statute, it is important to look for a definition section assigning
special neanings to some of the words within the statute. In addition to the
interpretation section in the statute, The Interpretation Act, Cap.2, Laws of
Uganda, operates as a standing legal dictionary of some of the most important
words used in the section; for instance, by virtue of this Act, "man" embraces
"woman", although some of the laws have been revised to accommodate the
gender sensitivity demands of today's world, by including "she" wherever "he"
appears in a statute.

b) Fringe meaning" Rule.

When interpreting statutes, the Courts often announce that they are trying to
discover "the intention of the legislature." In actual fact, if a Court finds it hard to
know whether a particular situation comes within the words of a statute or not,
the probability is the situation was not foreseen by the legislature, so that
Members of Parliament would just be as puzzled by it as the judges are. Here, the
"intention of the legislature" is a fiction. Because of this difficulty, some deny the
Courts are really concerned with the intention of Parliament. Thus in the case of
Farrell v. Alexander (1977| A.C. at 81 G, Lord Simon held:
"In the construction of written documents including statutes, what the
Court is
concermed to ascertain is, not what the promulgators of the instrument meant
tosay, but the meaning of what they said."
Some Judges think it proper to speak of the intention of
of "the meaning which Parliament must have Parliament, in the sense
intended the words to convey." In
the case of doubt, the Court has to guess what
meaning Parliament would have
pícked on if it had thought of the point. The
intention is not
hypothetical. There is, of course, a limit to what Court can do by way ofactual, but
filling out
a statute, but to some extent, this is possible.

An example is the familiar legal problem of fringe

though they have a central core of meaning that is meaning", The words we use,
relatively fixed, have a fringe
of uncertainty when applied to the infinitely
variable facts of experience. For
10
whenhat

example, the general notion of a "building" is clear, but a Judge may not find it
easy to decide whether a grass hut or telephone kiosk, or wall, or a tent, 1s a
"building" In problems like this the process of interpretation is distinguishable
from legislation. Here, one can safely conclude that the Judge is a legislator. For,
if he decides that the hut is a building, he is in efect adding an interpretation
clause to the statute, which gives "building" an extended application; whereas if
he decides that the hut is not a building, he adds a clause to the statute which
gives it a narrower meaning. The words of the statute, as they stand, do not give
an answer to the question before the judge; and the question is therefore
legislative rather than interpretative.
This kind of "interpretation" can be taken to be legally and socially sound.
) The Mischief" Rule.
This rule is also referred to as The Rule in Heydon's Case (1584) 76 E.R 637 at
page 638. Here, the Judges are directed to look at the common law (that is, the
legal position) before the Act, and the mischief that the statute was intended to
remedy; the Act is then to be construed in such ¡ way as to suppress the mischief
and advance the remedy. Aichit pulle shayld any b
The practical utility of the rule depends to some extent upon the means that the
Courts are entitled to employ in order to ascertain what mischief the Act was
intended to remedy. A true investigation of the background of a Statute would
take into account press agitation, party conferences, Government
pronouncements, and debates in Parliament; but all these are ignored as a
result of a rule excluding evidence of the political history of a Statute. The rule is
justified by the burden that would be placed upon a legal advisor and the
uncertainty that would be introduced into the law if such historical materials had
to be consulted. In practice, therefore, the Judge generally derives the object of a
statute merely from perusal of its language, in light of his knowledge of the
previous law and general knowledge of social conditions. See Davis v. Johnson
[1979) A.C at 338 F.
d) The Literal Rule.
Words of a statute must be interpreted according to their literal meaning and
sentences according to their grammatical meaning. It is generally accepted that
words have a certain elasticity meaning, but the general rule remains that the
Judges regard themselves to be bound by the words of a statute when these words
clearly govern the situation before the Court. The words must be applied with
nothing taken away. More precisely, the general principle is that the Court can
11
 neither extend the statute to a case not within its terms, though perhaps within
its purpose, nor curtail it by leaving out a case that the statute literally includes,
though it should not have. The courts must identify the intention of the
legislature. Wicks V. DPP (1947| AC 367.
In the case of Duport Steels Ltd. v. Sirs [19801 1 AL E.R. 529, Lord
Diplock
asserted that the principle applies even though there is reason to think that if
Parliament had foreseen the situation before the Court, it would have modified the
words it used. He opined: The established rule is that "it is for Parliament, not for
the Judiciary, to decide whether any changes should be made to the law as stated
in the Acts."

One practical reason for the literal rule is that Judges are now
afraid of being
accused of making political judgments at variance with the purpose of Parliament
when it passed the statute. This fear is sometimes
understandable, but not all
statutes divide Parliament on part lines. ACourt that tries to decide as Parliament
would have wished is more likely to be right that follows the words
not what Parliament intended. The established rule is
believing it was
that "People are entitled to
follow statutes as they are; they should not have to speculate as to
intention,"
Parliament's

Nevertheless, the facts of the case may be such as to raise serious doubts whether
Parliamnent intended its words to apply. The decision by a Court that a particular
situation was not intended to come within the ambit of a statute, though
its words in what mnay be their most obvious
within
meaning, does not deny the
supremacy of Parliament, for if Parliament disagrees with the decision it can pass
another Act dealing specifically with the type of case. However, the hard truth is
that Parliament generally pays little attention to the working of the
law. It is not
merely that Parliament fails to keep old law under continuous revision; it
loses
interest in its new Creation as soon as they are on thne statute book.

It should be acknowledged, however, that the disparity

between the
literal rules usually creates a confrontation between the tWo, formischief
and
as clearly
elucidated upon above, the differences between the two are irreconcilable: the
literal rule disregards the mischief rule. This was acknowledged in the Bail
Application case DPP v. Rtd. Col. Dr. Kiiza Besigye Constitutional Reference
No. 20 of 2005, where the right to bail under Article 23(6) of The
Constitution
was comparatively subjected to both forms of interpretation in deciding whether it
ismandatory, and thereby absolute, or discretionary.

12
ithin
e) The Golden Rule.

The rule provides that if words are ambiguous and not clear, the court adopts an
interpretation which avoids an absurd result. It is a more or less a modification of
the literal rule. The Courts may sometimes allow themselves to construe a statute
this would involve
in such a way as to produce a reasonable result. even though
departing from the prima facie meaning of the words. The rule is to the effect that
a statute may be construed to avoid absurdity. The general statement of the
golden rule is that (1) the literal (primary) meaning must be adopted unless (2)
(2)
this results in absurdity. It is convenient to take the "golden rule" as meaning
use the
alone, since this is what it adds to the literal rule; but some Judges
Hart (1854) 14
phrase to refer to meaning (1) alone (see the case of Mattison v.
means unlimited, and seems to
C.B at page 385; 139 E.R at page 159. It is by no
apply only in three types of cases.
court to prefer a sensible
In its first application, the Golden Rule allows the
possible. It does not
meaning to an absurd meaning, where both are linguistically
obvious meaning of the
matter that the absurd meaning is the more natural and
I.R.C. [1953] A.C.281,
words. Thus, Lord Reid, in the case of Coutts & Co. v.
said:
startling
"Where a statutory provision on one interpretation brings about a
another possible
and inequitable result, this may lead the Court to seek
interpretation which will do better justice."
foolishly said "and" when it
Judges have occasionally corrected a statute that
However, the argument
meant "or, or that foolishly said "or" when it meant and".
with a statute.
must be very strong to invite the Court to meddle
f) Presumptions.
applied, all of which are of
In interpreting statutes, various presumptions may be
a negative or restrictive character. They are the background
of legal principles
Parliament is assumed
against which the Act is viewed, and in the light of which
them. Some embody
to have legislated, without being expected to express
not to be
traditional notions of justice, such as the rule that a statute is presumed
what was almost
retrospective, except in procedural matters. Others reflect
certainly the intention of Parliament, as that an Act applies only to Uganda,
unless the contrary is expressed.
values of a
The most controversial presumptions are those enshrining the
capitalist society-the presumption against interference with vested rights, the
13
presumption against the taking of property without compensation, and the
presumption against interference with contract.
Presumptions may be regarded as instances of the
Judges goes beyond the automatic enforcement of theproposition that the duty of
Judges' function is also to do justice in accordance withdictates of Parliament. The
certain settled
entitled to assume that Parliamentprinciples
of law in afree society; and they are
intend to subvert these principles, unless there is does not
For this reason, the Courts apply the a clear statement that it does.
rule that when Parliament has
judicial or quasi-judicial power upon a conferred a
with the rules of natural person, he/she must act in accordance
justice. When Parliament creates a new
presumed to be subject to certain defenses at crime, this is
and duress, and also the common law, such as self-defense
recklessness). These are requirement of a state of mind
(intention, knowledge or
graft on the statute by judge-made principles required by our ideas of justice
statute to suggest them. "implication", although there may be no words in the
In Re Sigsworth
[1935] Ch.
that the deceased, Mary Ann 89, the trial Judge assumed that it had been
proved
question was whether the sonSigsworth, had been murdered by her
son, and the
Intestates' Estates Act of 1952. was entitled to her estate as "issue"
under the
reason that no one is entitled to The learned Judge held in the negative, for the
easier by the fact that a profit from his own wrong. The
of wills; a similar
murder cannot take conclusion had already been decision was made
arrived at in the law
under his victim's will. In this
applied this principle to the
mention of it. Even statutes may be of the intestacy statutecase,
interpretation the Judge
which made no
principle of justice which are to be read as subject to
certain
discovered in the common law. fundamental
See also:

1. Uganda Motors Ltd v., Wavah

2. David Seijaka Nalimna v, Holding Ltd (1992) 2 KALR 8
3.
Wamatsembe Samuel MuyongaRebecca Musoke (1992) 5 KALR132
v. Mukoli
Mutanje (1997) 6 KARL 98

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ona,nd the

3. CASE NOTE
1) Title &Citation
Title shows parties to the case. Namne of complainant or petitioner
appellant willappear first
Citation tells how to locate the Report in which the case was reported. If you
E.A,HCB,
get name of the case by using INDEX VOLUME of the Report, e.g.
is
KARL, ALI.E.R. In the case of Mutasa v Okello (2008] EA 9, the title
be made
Mukasa us. Okello and the citation is [2008] EA9. Use can also
e.g. Lexis-Nexis,
of one of the computer-assisted legal research tools
Westlaw (all of U.K), ULII (Uganda).

2) Brief Facts of the Case

case. Facts are
Summary of material facts and legal points raised in the
judgment. These
Usually conveniently summarized at the beginning of the
should include:
a) On sentence description of the nature of the case.
b) Material facts leading to the dispute.
c) Statement of relevant law leading to the case
the lower court.
d) If it is an Appeal- Summary of action taken by

3) Issues
case have to be drawn
Issues or questions of law raised by the facts in the
and explicitly stated.

4) Law Applicable
which law is applicable
After drawing up the issues one has to clearly state
to settle the issue raised.

5) Decisions
question
Decision also known as "the holding" is the Court's answer to a
raised by the court
presented to it for answer by the parties involved or
itself.

6) Reasoning
The reason for deciding the way court did (ratlo decidendi)

15
7) Dissenting Opinion (If Any)
Both concurring and dissenting opinions in case of a bench f judges
(numerous judges in one case as in constitutional cases or appeal cases), to
be equally analyzed to bring out the major points of agreement Or

disagreements of the majority and the minority judge(s).

8) Analysis
Evaluation of the significance of the case in relationship to other cases its
place in history, what it shows about the court, its judicial officers, its
decision- making process, the impact it has on litigation, government or
society.

16
to appears to the Judge that following such decision would lead to
absurdity and/or injustice. Its advantage is that it helps to keep judicial
precedents and the law flexible.
) Over-ruling precedent
A COurt in a later case states that the legal rule decided in an earlier case
has been wrongly decided. This happens when:
i) If the precedent was laid down by an inferior Court.
1) Court may over-rule its own decision in early case if it was
decided per incurium: see case of: Matiya K. Wamala vs.
Samson Sebutemba{ 1963] EA 631. Over-ruling a case means
that the previous decision ceases to have legal effect and the case
at hand unless it is subsequently reversed.

g) Reversing Precedent

Acourt higher up in hierarchy over turnsthe decision of a lower court in

the same case. E.g. the court Supreme Court may reverse the decision of
the Court of Appeal; (C.A.) reverses decision of High Court and High
Court reverses decision of Magistrates.

A superior Court may over- turn its own decision to suit the
circumstances in the society or when it feels that the decision was
wrongly arrived at or that it over looked certain circumstances. This is
usually done n cases of review.
5) Components of A Court Decision
Court decision has two important legal components; the ratio decidendi and the
obiter ictum.
a) The Ratio decidendi

The Ratio decidendi denotes the legal reasoning given by the

and how he /she has decided the case as he did. It is the
judge to defend why
legal
judge in making a decision. In essence the ratio decidendi is reasoning
of the
that part of the
judge's decision. It is binding on lower courts under the doctrine of the
decisis. This means that judges in such lower courts must decide stare
that come before them based on ratio decidendi of the similar cases
judge in that case.
b) The Obiter dicta
Obiter dicta refers to other statements made by the
decidendi. It is 'a by the way' addition by a judge whilejudge in explaining to ratio
explaining, obiter dicta do
19
not form ajuridical precedent. But they are persuasive in nature. The cOUrts al
not obligated to follow obiter dicta.
In Practice, It is not easy to distinguish between ratio and the Obiter as the
is usually in continuous form without any headings
judge
specifying what is ratio and
what is not. It therefore, calls for proper knowledge of the judge in that field
for
him/her to be able to clear distinguish the two.
6) Advantages of Judicial Precedents
a) Control and avoidance of litigation.
The doctrine of precedent controls and
avoids
courts were not bound by previous decisions of theunnecessary litigation. If
own decisions, there would not be an end of superior courts or their
litigation in law since every
discounted litigant would keep appealing for desirable
Lakhamshi Brothers Ltd v. R. Raja and sons,[1 966] EACA justice. See
Sir Charles New bold held, "there is a 315. Where
principle
important in the administration of justice and thatwhich is of the very greatest
the interest of all persons that principle is this; it is in
there should be an end to
litigation."
b) Possibility of growth.
The practice allows for new rules to
be
adapted to meet new circumstances and established and old rules to be
the changing needs of society.
Where a precedent is considered to be
extended in later cases; conversely, particularly
where
valuable, its scope can be
a precedent is found to
defective, its scope can be restricted by the be
precedent. process of distinguishing
c) Practicality.
Rules in English case law do not
do not deal with derive from a particular theory of law.
the consideration hypothetical
of real circumstances either. They are as a resultTheyof
case of: Isaac Ongeri v situations which have come before court. See the
Republic, Kenya; Criminal Appeal No. 239 of
2010. The appellant was appealing
senior principle magistrate on chargesfrom
of
original conviction and sentence of
woman noted that she had no injury on rape. The doctor who examined the
tests confirmed the presence of her outer genitalia, but
appeal and quashing the
laboratory
spermatozoa. The court while upholding the
conviction relied on an earlier decided similar rape
case of Mwangi v
the presence of Republic (1984) KLR 598 where it was observed that «
penetration whichspermatozoa
in the genitalia is not
are the vital evidence of rape or
ingredients in proof of a rape.
20
d) Uniformity.
Binding precedents maintain uniformity in law and make the ruling of
predictable. In the case of Bone v Seale (1975]2 ALL.E.R. 62, it wascases
held
that smell from a neighbor's pig farm amounted to a private
based this decision on the ratio decidendi of Harsey vEsso nuisance. Court
where it was stated that disturbing neighbors' sleep by noise and Petroleum
and damage to clothes from acid smuts amounted to a vibrations
nuisance.
In Mason vLJY Auto parts Ltd (19671 2 ALL.E.R. The
defendants stored
flammable materials on their land. It ignited and fire spread to neighboring
property. The defendants were held liable as the storage of the materials
amounted to a non-natural use of the land. The major reference was
Rylands v. Fletcher [1968] LR.3HL 330 where the defendants employed
independent contractors to construct a reservoir on their land. The
contractors found disused mines when digging but failed to seal them
properly. They filled the reservoir with water. As a result, water flooded
through the mines hafts in the plaintiff's mines on the adjoining property.
The defendants were held liable for a nuisance since the construction of
reservoir was a non-natural use of land.

e) Orderly Development of legal rules.

The doctrine of stare decicis and binding precedent provides a basis for
orderly development of legal rules and also provides a degree of certainty.
This is clearly illustrated in the case of Namwandu v. A.G [1972) EA 108
(U) where the plaintiff, a widow wanted to claim damages from government
for the murder of her husband since it was the army responsible. The court
relied on an earlier case of Muwonge v A.G (1967 EA 114 where in this
case unlike that of Namwandu, the government was vicariously reliable for
the acts of the policemen who shot a boy, in the course of his duty as he
was called on to quell a riot. It was held that the Government was not
vicariously reliable for the acts of the army men because they were not in
the course of their duty.

f) Filling in the gaps in absence of statutory law.

Where a crime isnot provided for by aparticular statute, court are at liberty
to decide the case basing on an earlier decided case.An example of this case
law can be drawn from Ngome and another v Republic, [2012] 1 EA 374
where the appellants were charged and convicted of the offence of robbery
with violence. They appealed against conviction and sentence but the case
was dismissed. They appealed on the grounds that the High Courtjudge
21
 failed to re-evaluate the evidence but
trial court. It was held that the High simply restated the facts given in the
Court had a duty of evaluating the
evidence and then forming its own conclusion
court. The court relicd on the Court of separate from that of the trial
Appeal
[1972] EA 32, where it was stated that "an decision in Okeno v Republic
entitled to expect the evidence as a whole to appellant on a first appeal is
be submitted to a fresh and
exhaustive examination and to the appellate
evidence. The first appellate court must itself court's own decision on the
draw its own weigh conflicting evidence and
conclusion...."
g) Prevention of
importation of Personal
In Horizon Coaches decisions or views.
Ltd v
Rurangaranga
Odoki, Chief Justice dismissing the first
and others (2012] EA 181
(scu)
the respondent had a ground of appeal touching whether
"in my view, cause of action as a tenant in
therefore, even if the issue of lack occupancy, observed;
of cause of
considered by the Court of Appeal, it would have action had been
proprietary interest it come to the virtue of the
the appellant." The had in the unexpired lease which was
learned Chief Justice relied on the extinguished by
District Land Boardand Another v National
case of Kampala
Corporation (2005] 1 EA 69, where in that case Housing and Construction
rights of it was
a tenant in occupancy whether observed that the
protected and guaranteed under the lawful or bona fide
Constitution and the Landoccupants,
Act.
are
7)
Disadvantages of Precedents
a) Rigidtty
Many precedents are a bit rigid. Once a rule has been
superior court, it binds all lower even if the decision is laid down in a
The doctrine is
and wrongly based on the fact that judges dothought to be wrong.
over-adherence to the doctrine may not make mistakes
the precedenttherefore, result in carrying forward
a wrong
passed law
the case of Uganda wherev followed was wrongly decided. In
EA 514 where the Commissioner of Prisons
issue before court was to Exparte Matovu [1966]
legality of the 1962 determine the validity and
Minister (Milton Obote) Constitution which had been
who took over power of abolished by the Prime
National Assembly and replace it with the 1966 the government in the
Kelsen's theory and the Pakistan case of Constitution, Applying
533 the Pakistan
court held that the State vDosso, P.L.d 158.S.C.
revolution and concluded that the 1966series of events amounted to a
supreme law of Uganda. In the
Dosso caseConstitution
where the
was the valid and
22
Constitution was
in
suspended and the President subsequently passed a law validating all laws
in force before the proclamation except the Constitution, and restored the
jurisdiction of all courts. Applying Kelsen's theory, court held that the
validity of laws rests on such Constitution, that is, the Grund-norm. These
two cases justified despotic governments as long as their revolutions were
successful.

In the case of A.Gv Gen Tinyefuza (C-A. NO. 1 of 1997) the Supreme
Court considered the prerogative aspects of the President to appoint persons
as special presidential advisors. There was reference to the case of Shaban
Opolot v A.G (1969) EA 631 in which the dismissal of the Plaintiff,
Brigadier Shaban Opolot as army commander, in 1966 was considered to
fall within the prerogative powers of the President.
b) Compromises Law
The doctrine compromises the law and thus fails to individualize the
administration of justice since facts in any two cases can never be 100
percent the same. Then how can decisions in one case be applied in
another? (Allthe cases we have looked at under this study.)
c) Bulk and Complexity
Too much law; making laws complex to handle. Case law is embodied in
a multitude of decisions made over a number of years in a number of
volumes of Law Reports. This means that there is so much law to learn
where even the most decorated advocate may overlook some important
rule in a given case. This is particularly so with the various branches of
law which have been developed by case law.

d) Slow Growth.
The legal system embodied in the doctrine of precedent depends on
constant litigation for rules to emerge. However, as litigation tends to be
slow and expensive the body of case law cannot grow quickly enough to
meet modern demands. Where it is felt that a particular case has long
been a precedent operates unfairly, or where the law on an important
point is unclear, it is argued by some that appeals to courts should be
financed at public expenses, as it is inequitable that the law should be
developed or clarified at the expense of private litigators.

23
e) Burdening Judges
The doctrine burdens judges as they have to look up at all precedents
that are binding on them before deciding a matter.

f) Deterring Courts from bringing new rules.

Courts are limited to bring in new rules. In the administration of justice
courts have to look up to earlier decided cases and the judges cann0t
bring in better rules since a precedent is binding on them
g) Administration of Justice is Impaired
Given the measureof inflexibility imposed by the doctrine of precedent in
administration of justice, courts find difficulty in executing justice
according to the needs of society at any given time.

h) Injustice
The judge may use too much of his discretion to dodge the principle in
earlier case. This brings about an element of injustice and more often the
distinguishing elements are minute, more or less artificial points.

i) Lack of Corresponding Precedents.

Some cases before the jurisdiction of courts lack corresponding
precedents to follow. Although this is a rare occurrence, there exists
cases that appear for the first time in court and lack corresponding
precedents that have their kind.

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