LEGAL METHODS IN TANZANIA (Part 1) by MWAKISIKI MWAKISIKI EDWARDS

Moshi Co-operative University
From the SelectedWorks of MWAKISIKI MWAKISIKI
Summer April 9, 2017
LEGAL METHODS I
MWAKISIKI MWAKISIKI, Moshi Co-operative University
Available at: https://works.bepress.com/mwakisiki-
mwakisiki/11/
Prepared by Tsar MWAKISIKI, MWAKISIKI, E
DOCTRINE OF PRECEDENT
The doctrine of precedent operates within the requirements of the doctrine of Stare Decisis. The
doctrine of Precedent is the practical application of Stare decisis.
Stare decisis requires that courts or judges are bound by their previous decisions in cases where
material facts are the same. It is a doctrine which looks for certainty, uniformity ascertainability
in the law, while allowing some flexibility.
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 65% and the pedestrian (injured party) liable
for 35% negligence. The amount of damages payable by the driver (or whoever is liable to pay)
will take into consideration the extent of liability involved on his part. This might be a precedent
case in future.
In Case (b) the Court may find that facts A,B and C (reckless driver, defective brakes and 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 that the facts in case
(a) are distinguishable from those in case (b) and therefore further that case (a) is not entirely
precedent or authoritative case in deciding case (b) or if the court chose to use the authority of 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).
Stare decisis1
The doctrine of judicial precedent is based on stare decisis. That is the standing by of previous
decisions. Once a point of law has been decided in a particular case, that law must be applied in
all future cases containing the same material facts. The doctrine is: all courts are bound to follow
decisions made by courts above them; appellate courts are normally bound by their own past
decisions.
1 stare decisis et non quieta movere means stand by the thing and do not disturb the calm.
The doctrine works by requiring judges to follow the decisions made in previous cases, thus
ensuring that there is a consistency in the law and that people coming to the law will be able to
make an educated guess as to the potential success and likely outcome of their case.
Why Precedents?
Three Models are normally advanced in response to the this question, and this includes, The natural
law model, the rule mode, and Result model as discussed herein:-
The Natural Law Model
This model argued that past decisions naturally generate reasons for deciding cases in the
same way as previous ones.
Equality and reliance are the reasons (Alexander)
Universal sense of justice: All men have to be properly treated in like circumstances
(Llewellyn). Reliance not upsetting expectations a value that courts should take into account.
The Rule Model
This model argued that, the precedent court has authority not only to decide a case before it
but also to promulgate a general rule binding on courts subordinate and equal rank. The
rules upon which actors justifiably rely.
The Result Model
This model is to the effect that, the result is reached in the precedent case rather than any
rule explicitly or implicitly endorsed by the precedent court is what binds. According to
Dworkin the result model reflects Law as integrity while the rule model is
Conventionalism.
TYPES OF PRECEDENT
1. ORIGINAL PRECEDENT
Where there is no previous decision on a point of law that has to be decided by a court, then the
decision made in that case on that point of law is an original precedent. Where the court has to
form an original precedent, the court will reason by analogy (considering the cases that are nearest
to it in principle).
2. DECLATORY PRECEDENT
The judges in the case merely declared what the law has always been. Declaratory theory of law
making. According to William Blackstone judges do not create or change laws. They simply
discover and declare what the law has always been. This means that case law operates
retrospectively since the law as declared has always existed.
3. BINDING PRECEDENT
A past decision is binding if: The legal point involved is the same as the legal point in the case now
being decided. The earlier decision was made by a court above the present court in the hierarchy,
or a court at the same level which is bound by its own past judgments.
4. PERSUASIVE PRECEDENT
The one which the court will consider and may be persuaded by, but which does not have to be
followed, such as obiter dicta, a dissenting judgment or ratios from decisions by courts lower in
hierarchy.
ADVANTAGE AND DISADVANTAGES OF PRECEDENT
There are numerous advantages to the doctrine of stare decisis. Amongst these are the
following:
(a) it saves the time of the judiciary, lawyers and their clients, since cases do not
have to be re-argues also has the benefit of saving the money of potential litigants;
(b) it provides a measure of certainty to law - thus, lawyers and their clients are able
to predict what the outcome of a particular legal question is likely to be in the light of
previous judicial decisions;
(c) it provides for a measure of formal justice, to the extent that like cases are decided
on a like basis;
(d) It provides an opportunity for judges to develop the common law in particular areas
without waiting for Parliament to enact legislation.
There are, however, corresponding disadvantages in the doctrine. Amongst these are the
following:
(a) the degree of certainty provided by the doctrine is undermined by the absolute
number of cases that have been reported and can therefore be cited as authorities this
uncertainty is compounded by the ability of the judiciary to select which authority to
follow, through use of the mechanism of distinguishing cases on their facts;
(b) law may become ossified on the basis of an unjust precedent, with the consequence
that previous injustices are perpetuated an example of this is the long delay in the recognition
of the possibility of rape within marriage, which has only recently been recognised.
(c) In developing law, it might be claimed that the judiciary is, in fact,
overstepping its constitutional role by making law rather simply deciding its
application.
OBLIGATIONS IN PRECEDENTS AND STARE DECIS

Vertical obligations, describes the obligation of a court to follow the decision made by a
court above it in the judicial hierarchy on the same question, even if that question has
arisen in a different case.
Horizontal obligations, the obligation of a court is not the obligation to obey a decision
from above, but is instead the obligation to follow a decision by the same court (although
not necessarily by the same judges) on a previous occasion.
COMMON TERMINOLOGIES IN LEGAL METHODS
1. 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 writing, treatment of sources (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.
2. LEGAL EDUCATION
Legal education, as used here, refers to experiences training and which help different kinds
of people to understand and use law in society. Here the emphasis is on experiences and
training into those experiences and the law. All of which will lead you into understanding
as well as using law in society.
3. Simple Case
This is a case in which the facts (material facts) exactly answer to the requirements of a rule of
law. The rule of law becomes the major premise, the facts the minor premise and the conclusion
is reached by using a Syllogism. Cases decided on the above are said to have been decided through
formalism. [The Judgment of Kyando & Ihema JJ in Ndyanabos Case]
4. Hard Case
This is the one where the rules of law are clear, but the result they require is hard or harsh. (a) in
the Case of Hutchison (1988:23): 1987 a swimming meet took place at the University of Toronto.
Most of the races proceeded as planned. But, at the end of the race, there was a challenge to the
winner of the race. The appropriate group of officials convened. The deliberations were lengthy
and tense. After much argument and posing over the rules, a decision was announced: the Winner
had been disqualified and the second winner acclaimed as Victor. referee offered a brief
justification of the Committees decision- The rules were clear- The Winner is the first Swimmer
to touch the side of the pool with both hands; and if this regrettable outcome is to be avoided in
the future, it will be necessary to change the rules: The Winning Swimmer had only one arm.
[Hard cases make bad Law.]
5. Common Law
According to Glanville Williams, Learning the Law, 11th Edn. London, Stevens & sons 1982 Ch.2
Common Law originally meant the law of England that was not local, 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 the decisions
of the courts (judges). It can also mean that law which is not equity (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.
6. Equity
According to Glenville Williams (Ibid) the term Equity in ordinary language means natural justice,
this is so because originally the system was inspired by 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.
7. Facts/Material Facts of a case:
What is the difference between facts (as they exist in life) and material facts (in the legal sense)?
The term facts 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 be described to have been
driving fast a vehicle which had defective brakes, at the time of driving 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 categorized as legally relevant or material facts: the fact that the driver of
the car or lorry was driving fast, that the car or lorry 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 so some controversy which will be dealt with later. [Read: Dr Avtar Singh,
Introduction to Jurisprudence Repr. Edn 2005 pp 88 91]
8. Issue(s)
What is an issue or issue? The concept issue(s) refers to the point(s) in dispute and the question
or questions which the court is called upon to answer in the course of hearing the matter and
making a decision in the course of the judgement. The answer to the question(s) by the court
(judge) leads towards the determination of the rule of the case or ration decidendi and other
statements of the law by the way (obiter dicta or dictum) which may be of use to the future courts.
9. 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 of the case or future court looking at a
precedent case in point, to determine the rule(s) of the case ratio decidendi of rationes decidendi.
10. Ratio Decidendi

What is Ratio Decidendi? to authorities on the question, courts make a habit of following their
previous decisions within more or less defined limits. This is called the doctrine of precedent. That
part of the case that is said to possess authority is the ration decidendi, 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 of a lawyer. There is a relationship between material facts, issues, holding and the ration
decidendi. Determining the ratio decidendi of a case is not a mechanical process but an art that
one gradually acquires through study and practice [Glanville Williams, Learning the Law, London
Steven and sons 1992 ch.6]
As you might have noted in the above passage the concept of ratio decidendi refers to that part of
the case that is said to possess authority. It constitutes the reason for the decision as well as the
rule of the case. It must be emphasized 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 the notes prepared either by your teacher or fellow student or the head note of a case (if that
case has been reported in a Law Report).
11. Obiter Dicta

Obiter dicta or dictum is a mere saying by the way, a chance remark in the course of the judgement
or decision by the court (judge(s) which is not binding upon future courts. Such a statement,
chance remark or proposition may be respected by a future court or judge depending on the
reputation of the judge or the eminence of the court and the circumstances under which it was
announced.
Obiter dicta is a rule of law stated merely by the way, of analogy or illustration or 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 in point, it may have been made without
full consideration of all the consequences that may follow from it.
It is a rule of law based on hypothetical facts. A judge in the course judgement may say: I decide
for the defendant, but if the facts had been properly pleaded, then should I have decided in favour
of the plaintiff.
For example!
Lord Atkin in Donoghue V Stevenson [1932] AC562 at 580 where he attempted to lay
down a general test for determining when a notional duty of care arises in the tort of
negligence. His dictum has become known as the neighbour test and was expressed in
these words:
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 Add my neighbour? The
answer seems to be emphasis 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 acts or omissions which are called in question. This dictum, though
clearly obiter, has been quoted in subsequent cases.
12. Judicial Hunch or Judges Predisposition.

The terms judicial hunch or judges predisposition refer to the motivations behind a judicial
decision. The attitude of the judges, their thought traditions, judges preoccupations, intuitions or
the basis of the judges values which preguishing.
EVASION TECHNIQUES
This encompasses all the techniques that judges widely use them for the sole purpose of avoiding
the strictness of the doctrine of Precedent, and they mainly includes distinguishing, Overruling,
and reversing as it well detailed here under:-
1. DISTINGUISHING
What is distinguishing in Case Law Technique?
According to Glanville Williams Learning the Law 1982 75 77) distinguishing is the process of
cutting down the express ration decidendi of a case. It can take the form of restrictive
distinguishing or non-restrictive distinguishing.
Non-restrictive distinguishing, occurs where a court accepts the express ratio decidendi of the
earlier case and does not seek to curtail it, but finds that the case before it does not fall within the
ratio decidendi because of some material differences of fact (Langridge V Levy and Winter Bottom
and Wright).
Restrictive Distinguishing, cuts down the express ratio decidendi of the earlier case by treating
as material facts to the earlier decision some fact, present in the earlier case, which the earlier
Court regarded immaterial, or by introducing a qualification (exception) into the rule stated by the
earlier court.
Distinguishing will enable the judge to make a distinction between the present case and the
previous decision which would otherwise form a precedent which the judge must follow. Unless
the judge is able to draw such a distinction he would be bound to follow the previous case even if
he or she did not agree with the legal reasoning. The concept of judicial precedent is strictly
adhered to.
There are two cases which are often cited by way of illustration of how distinguishing works. The
cases are Balfour v Balfour (1919) and Merritt v Merritt (1971). In both cases a wife made a claim
against her husband for breach of contract.
In Balfour v Balfour (1919) the husband went overseas to work and his wife was unable to go with
him, he agreed orally to send her 30 a month until she was able to join him. The relationship
broke down and the payments ceased. The wife tried to get the agreement enforced but the claim
failed as it was decided that there was no intention to create legal relations (one of the conditions
one would normally expect in order to find that a legally binding agreement existed). The
arrangement was one which was considered to be a domestic arrangement between a husband and
a wife.
In the later case the claim succeeded. The court in the case of Merritt v Merritt (1971) were able
to distinguish that there were material differences in the facts of the case of Merritt from those in
the case of Balfour. In Merritt the husband had agreed to pay 40 per month maintenance, the wife
was to use this to pay the mortgage and, once the mortgage was paid off, the house was to be
transferred from joint names to the wife's name. Although this had been written down and the
agreement signed, the husband would not transfer the house when the mortgage was paid.
The differences were that in the Merritt case the parties were already separated so the relationship
between one family member and another could be seen to be different and more distant. This might
explain why the parties decided to put the agreement in writing, again this was not the case
in Balfour and did indeed suggest that in the case of Merritt there was an intention to put the
arrangement on a more formal footing.
So in this case the husband had to transfer the house to the wife. Some might also argue that over
the time between the cases, society's attitude towards the subject of marital breakdown may well
have changed and that the court's decision in Merritt simply needed to be more realistic and reflect
the parties' need to protect themselves.
2. Overruling
Overruling a previous precedent arises where a court decides, in a later case, that the legal ruling
or reasoning in an earlier case was wrong. A court in a later case decide that the legal ruling or
reasoning in an earlier case was wrong, then it follows that the court is really saying that the earlier
decision should not now be followed and the case is no longer considered to be good law.
The best example can be seen in the case of JUWATA V. KIUTA CIVIL APPEAL NO. 29 OF
1987 as also reported in the Tanzania Law Reports as JUMUIYA YA WAFANYAKAZI
TANZANIA v KIWANDA CHA UCHAPISHAJI CHA TAIFA [1988] TLR 146
In this case the Chief Justice, Nyalali, overruled a previous per incuriam decision of the court in
the case of ZAMBIA TANZANIA ROAD SERVICES V J.K. PALLANGYO CIVIL
APPEAL NO. 9 OF 1982
In determining the matter courts interalia states the following; (principles laid down)
(i) Decisions of the Court of Appeal of Tanzania are normally binding on the Courts but as a
final court of appeal it is free to depart from such a decisions when it appears right to do so.
(ii) The Court of Appeal of Tanzania is not bound to follow a decision of its own if it satisfied
that the decision was given per incuriam.
(iii) Decisions of the Court of Appeal of Tanzania are binding upon any tribunal by virtue of the
common law doctrine of precedent.
3. Reversing
A court higher up in the hierarchy overturns the decision of a lower court on appeal in
the same case.
E.g. the Court of Appeal may disagree with the legal ruling of the High Court and come
to a different view of the law.
Reversing the decision of the High Court.
DEBATE ON HOW TO DETERMINE THE RATIO DECIDENDI OF THE CASE

To date there is no agreement on how to determine the ratio decidendi of the case. To show the
variation of opinion we shall examine the views of eminent lawyers/jurists: Karl Llewellyn
(American), Professor Goodhart (English), Prof. Julius Stone (Australian), Prof. W Twining &
David Miers and Prof. W Twining (both Englishmen).
(a) Karl Llewellyn in The Brumble Bush, Oceana Edn. 1951pp 45-49, 66-69 argued
that the ratio decidendi of the case is the rule the Court 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 whet reading the case in order to extract its ratio decidendi is
to read the actual judgement in the light of the holding on the point of law and 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 or procedure.
(b) Professor Goodhart in Determining the Ratio Decidendi of a Case in Vol. 40

Yale Law Journal [1920] 161-183 had the following to say:
The judge reaches a conclusion upon the facts as he sees them. On the face of these
facts he bases his decision or judgement. So when you are analyzing a case you
must state the material facts as seen by the judge and his conclusion based on them.
It is by his choice of the material facts that the judge creates law; It is essential to
know what the judge has said about his choice of facts.
He proposed the following steps in determining the principle of a care of ratio

decidendi:
First, ascertain the material facts on which the judge based his conclusion.
Second, if there is no opinion on the statement of facts, then assume that all the
facts given in the report (judgement) are material except those which relate to place,
person, kind and amount (unless they have been stated by the judge to be material
facts).
Third, A rule of law is the same for all persons, at all times, and at all places within
the jurisdiction of the Court.
Fourth, note the summary of Counsels speech in a reported case (judgement of an

un reported case) to as certain other essential facts.
He advised on how to distinguish material facts from immaterial ones:
o There is a presumption that facts of person, time, place, kind and amount are
immaterial.
o All facts, which the court specifically states to be immaterial.
o All facts which the court treated as immaterial must be considered immaterial.
o All facts specifically stated or treated material.
o If no distinction is made between material and immaterial facts, then all the facts
set out in his opinion must be treated as material facts except those which on the
face value are immaterial.
(c) William Twining & David Miers in How To Do Things With Rules 3 rd Edn.
Weidenfeld & Micolson London 1991pp 311 320 say that the term ratio decidendi
comes into question when legal advisers, advocates, judges and experts interprete
cases for their particular purposes. Questions which they ask themselves include the
following:
for what rule(s) is the case an authority? or for what proposition(s) of law can this
case be made to stand?
William Twining & David Miers identify five usages of the Term ratio decidendi as found
in the Literature:
o The rule(s) of law explicitly stated by the judges as the basis for the decision, that
is, the explicitly answer to question(s) of law in the case;
o The reason(s) explicitly given by the judge for the decision, that is, the explicit
justification for the answer(s) to the question(s) of law in the case;
o 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;
o The rule(s) of law for which a 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 [pp331-332]
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 and cannot be fulfilled without
the availability of 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, (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 [1966] 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 of, unreported decisions (cases); (xvi) Advance notes of cases to be reported in a
forthcoming volume.
WHICH CASES ARE REPORTED IN LAW REPORTS LAW REPORTING IN

TANZANIA: CRITERIA FOR A CASE TO BE A PRECEDENT.
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.).
2. Whether the case declares, extends, qualifies, or distinguishes an existing rule of law.
John Nyamuhanga Bisare V.R. [1980] TLT 6-13 & 273 (C.A).
3. Whether a case declares a new rule of law or the common law as a guide from
another country. John Nyamuhanga Bisare V R [1980] TLR 6-13 & 273 (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 benefit of the lower courts. Amratlal Donador Maltaser & An. T/A Zanzibar/Silks
Stores v A.H. Jariwalla T/A Zanzibar Hotel [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 Jammohamed TLR 29 (C.A.). [1980]
7. Whether tthe 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, Shiku Salehe V [1980]
TLR 250 and .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.
PROCEDURES FOR TAKING CASES FOR REPORTING
Copies of judgements 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 judgements they consider
worthy of inclusion in the Law Reports.
HOW TO READ A CASE2
How to read a case will depend on the purpose for which a case is read. There are two major
methods of reading a case, the Orthodox reading method and the unorthodox one.
ORTHODOX METHOD OF CASE READING
The orthodox reading of a case consists in the making of a precise or briefing of a case or what
we shall term a case note. This covers the name of the Court, the name of the parties, citation,
Coram, the material facts of the case, the main legal issue(s), legal arguments advanced by the
parties before the Court, the holding, the reasons for so holding (the ratio decidendi or the rule
of the case); any other rules of law not directly relevant to the material facts of the case (Obiter
dicta) 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 opinions derived from textbook 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, or rule of law should be applied.
UNORTHODOX METHOD OF READING

Unorthodox Method of Reading Cases : 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 question of law e.g. in the law of Tort-
negligence; on the law of evidence - circumstantial evidence; the law of contract - the
doctrine of fundamental breach, in land law - Rent Restriction etc. The reasons for
2
Twining, W. & Miers, D: How To Do Things with Rules, 3rd Edn. App. TV pg. 450 ff.]
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
collection of authoritative decisions and arguments about the question and by referring
to policy issues show conflicting precedents.
A group of cases can be studied just to show their sequence on a particular topic. One can
do almost the same thing but by studying a sequence of marriage cases before Courts in
East Africa during the colonial period. Such cases would be studied for the purpose of
demonstrating how the courts in the course of applying existing legal rules develop 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 aanalyze styles of
reasoning of judicial opinion. This would be in order to determine 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 predioting the way a judge or court is likely to
respond to a particular point or line or argument or to compare and contrast prominent
styles of individual judges, courts, or legal traditions in different times or places.
Styles of opinion referred to here are the Formal Style and Grand Style (Compare and
contrast Mustafa J.A.'s decisions with those of Mwalusanya J. or compare and contrast the
decisions of the late Mwakasendo J.A. (as the then was) with those of the late Biron, J.
(as he then was).
Other purposes for which a group of cases can be studied would involve a critical analysis
of the corpus of opinions of a single judge or a critical analysis of alleged political biases
of one or more courts. In this connection it is possible to study polygamous marriages,
before British Courts in East Africa, or cases 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 subject.
LANGUAGE AND THE LAW
Law is expressed through rules in a language which needs to be studied and understood.
As law students you must quickly acquaint yourselves with the language of the law. You
must distinguish, for instance, between crimes criminal law and civil law, crimes and civil
and torts wrongs, , conviction punishment , contract from other relations, damage and damages
, plaintiff and defendant , 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 a directive one. The principle aim is to influence people's behavior.
Thus legal language is seen as a means to a certain end . This characteristic 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 purpose [technical language].
The legal profession uses a specialised form of language. Such a special form of language
is not peculiar to law and lawyers. The legal profession unlike other professions is a
profession of words. "The language of the law is a single grain of sand at the bottom of
a great sea3". 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 example from decided cases.
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".
Legal language departs form ordinary usage of the English language in a number of
ways, for example,
(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 res,
3 Mellinkof, D; Language of the Law , Little Brown & Co. Boston & Toronto 1963
naturales certiorari , per incuriam , fructus (illegitimate children) animus revetendi , cestuique
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 a special sense by lawyers,
e.g. 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.
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 jurisprudence). 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.
LANGUAGE OF THE LAW AND LANGUAGE OF THE COURT
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 courts) is English [Rules made under various pieces 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, G.N. No.
102 of 1979, GN No. 451 of 1983 provide:
The language of the court is either Kiswahili or English but the judgement 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 judgement may be a source of
confusion to a normal non legal observer.
HOW TO FIND A CASE
You can find/identify a case by using any one 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 d/o Benedicto (Unreported); Alexander- (PC) Civil Appeal No. 162
of 1982 Jeremiah Venanti v. Clementina HC Civil Appeal No. 94 of 1983:

Veronika Mugashera v. Evangelina Mugoshora & 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 Law Library or Text
book indexes.
5. Subject Matter Method- Whether or not there are cases decided on the subject; e.g.
Pending trial or Appeal.
CITATION OF CASES IN LAW REPORTS
There are various methods of citing cases from Law reports. These include the following:
(a)Halden1 v. Halden 1 [1966]2 W.L.R.3 1481.4 (b)Obongo1 v. Municipal Council of

Kisumu 1 [1971]2 E.A.391.4 (c) Juma Hassani1 v. Habibu Salum 1 [1975]2 L.R.T.3 n. 27.4
(d) Mwinyijuma1 v. R1 [1971]2 HCD3 n. 61.4 (e) R1 V. Dudley Stephens 1 [1964] 142
QBD3 2734
Each of the examples has included the following: 1. 2. Names of parties involved in a case;
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 volumes
containing cases for the same year, the volume which contains the year of the 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" (Queen) or Republic (Tanzania after Independence). The
charge 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. The smaller letter "v" between the names of the parties to the action is an abbreviation
of the Latin word "Versus" (against). When speaking of a case you say "against" in
criminal cases or causes and "and" in civil Cases or causes BUT Never "V" 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 neither necessarily complete or accurate .
(iii) The head note, which is a brief statement of the case, and the nature of the claim
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 Judgement(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 the top of the front cover of the 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 dates 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
the citations (references) to cases in the Law Reports are written and these must be studied
and followed.
(xi) Citation of Unreported Cases: Nitin Coffee Estate Ltd & 4 Others V 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 V. 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 46 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: Brodgen
V. Metropolitan Railway Co. [1877]2 App. Cas. 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 OF CITATIONS OF THE CASE
Summary on Citation of Cases: Take note of: (ii)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, CE - Chief Baron, J -Judge, C.J.
P. Ag. J. J.A. -Chief Justice -President -Acting Judge -Justice of Appeal etc.
(xiiii)A case is important for the principle it lays down. But also for the process of
decision making including legal reasoning. Essential in reading the case is to extract the
reason for the decision (Ration 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 remnants 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 courts will decide a new
case, cause or matter. In the process of doing this students learn to distinguish between
Living Law and the law in the books . The former represents law in action and the latter
consists 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. If is impossible to teach law courses as
current legal events. One cannot 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].
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 Vict. 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, P.A., How To Use a Law Library 2nd 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 "regnal year") and the chapter number".
CITATION OF STATUTE IN EAST AFRICA
Most of the information on how statutes are cited in East Africa has been drawn from Ian
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 (Appendix VIII).
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 period - Ordinances e.g. Ordinance The Chattels Transfer , (Cap. 28). The former
representing the title of the statute and the latter the chapter number of the same statute;
the Orders in Council e.g. The Tanganyika Order-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 & Q 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 (Appendix VIII).
Also look at the following examples: (a) Instrument Under the Constitution of the United
Republic of Tanzania of 1986). (Government Notice No. 616 of 1986 or GN. No. 161 (b)
The Rombo District Council (Produce Cess) By Laws , 1986 (Government Notice No. 630
of 1986) etc. See also The Interpretation of Laws and General Clauses Act , 1972; (Tanzania
Mainland).
CITATION OF OTHER MATERIALS THAN CASES, LAW REPORTS AND

STATUTES :
Treated hereunder are the mode of citations used for Books, chapters in Books, parts of
edited materials, articles in journals and other works of authority.
(a) Books : (i) Name of Author or Author or editor(s); (ii)Title of book or Article;
(iii)Publication details of book or article; (iv) Page reference if required. To illustrate
each point let us 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: University of Chicago Press, 1969.
Dias, R.W.M., Jurisprudence, (3rd ed.), London: Butterworths, 1970. Note: Names the
authors, Title of the book underlined and publication details, may, include pages. 2.8
(b) Edited Books (indicating specific article): 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 article in quotes, author of Editors)
Title of the book, publication details, page numbers. 2.8 (Periodicals): Mubako, S.V.
"Racialism and the Erosion of the Rule of Law in Rhodesia" [1971]4 Eastern Africa Law
Review, 191.
INDUCTIVE AND DEDUCTIVE REASONING

What is meant by Inductive reasoning?
According to Twining, 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 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.
DEDUCTIVE REASONING
Deductive reasoning moves from general to particular. It involves the use of syllogisms i:
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. Conclusion: Allen ought to be convicted of the offence of bigamy. In deduction the
conclusion must follow from the premises as a matter of logical necessity; if you accept the
premises you must accept the conclusion, as it is logically compelling or conclusive.
Deduction plays an important part in interpretation. It must be remembered that deductive
reasoning is a closed system of reasoning. It operates where you have already known rules
either those laid in cases or in statutes and facts of the case are said to subsume into the rule
out of which a conclusion is reached.
HOW TO READ A STATUTE

Knowledge of the Structure of the Statute is very essential.
(a) Structure of A BILL (i) Notices (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
A Bill for (iv) Preamble: "An Act to repeal and replace ... (v) Enactment Formula
Enacted by the Parliament of the United Republic of Tanzania" (vi) Short Title and
Citation "This Act may be cited as ... (vii) Commencement of Enactment ... and shall come
into operation on such date as the Minister may, by notice in the Gazette appoint (the
Patents Act, 1987 (BILL)). (viii) Interpretation (Section) Provision "In this Act, unless
the context otherwise requires ...". (xi) Division of the bill into Parts and Each part with
sections. (x) Marginal Notes. (xi) Objects and Reasons (in both English and Kiswahili).
(xii) Signature of Minister/Date/Place.
(b) Structure of an Act of Parliament: (i) Court of Arms (ii) Act No and Year (Act No. 11
of 1981) (iii)Assent/Signature/Designation i.e. " 1 ASSENT J.K. Nyerere President
7th September, 1981". (iv) Long Title: "An Act to apply a sum of sixteen thousand six
hundred thirty-one million, seven hundred and one thousand, four hundred shillings of the
consolidated Fund to the Service of the year ending on the thirtieth day of June, 1982, to
appropriate the supply granted for that year, to authorize the reallocation of certain
appropriations and to provide for matters connected with those purposes. (v) Date of
Commencement (............) (usually appear at the right side of the enactment). In case the
date does not appear check for the appropriate provisions authorizing the Minister or any
official responsible to bring the Act into operation. This will normally be published
through the Government Gazette by way of a Notice). (vi) Enacting Formula "Enacted
by the Parliament of the United Republic of Tanzania". vii) Short Title and Citation
"This Act may be cited as ...". (viii) Interpretation Provision "The expressions used in this
act shall each have the meaning ascribed to it in the Exchequer and Audit Ordinance". Or
"In this Act, unless the context otherwise requires - (Then there follows the words and
phrases used in the enactment and how they may be understood). (ix) Marginal Notes
(appear at the right side of the enactment) (x) The enactment is then divided into parts,
with sections and subsections etc. At times there appended to enactments schedules.
Schedules form part and parcel of the enactments in which they appear. (xi) Statement
showing that the enactment was passed by the National Assembly and the appropriate
date. (xii) Signature of the clerk of the National Assembly.
The following matters should be considered when reading a statute. (Here we are not
dealing with statutory Interpretation or construction).
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. (c) Consider the constitutional validity (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 general 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. Hamnond (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 Case (1969) 107; R.V. Survey Association
[1948]1 KB 28; Bulner V. I.R.C. 3 WLR 672. [1966] (iii) Looking at key
provisions which underlie the operation of the statute, for example,
commencement, legislation, etc. definitions delegated (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 of
Tanzania).
HOW TO FIND MATERIALS IN A LIBRARY
In the course of studying law you will be called upon to use pieces of Legislation to
answer problems. Hereunder is how you have to go about locating pieces of legislation.
Faced with a 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 divorce. 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 Tile of the law or piece of legislation
involved. Together with the short title include, the year number of the Act and or
legislation i.e. The Nyarubanja Tenure (Enfranchisement) Act , 1965 (Act No. 1 of 1965).
This is called the Subject Method .
Other methods include the Case in which case you consult the digest of Index of statutes
or case law on the relevant subject or statute. The short title method, consulting reprints
or updating by checking whether the statute 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 methods include examining the date of commencement
of Acts (always appear in the piece 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 statute on the subject in question; whether or
not such a statute is up-to-date; whether or not there are amendments.
If there are amendments, 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 statute has been judicially
considered i.e. whether the court has made any pronouncements on how a statute or
part of it has to be interpreted (see Courts Interpretation of the Powers of the D.P.P. on
cases Involving Economic and Organized Crimes.
Whether the statute is affected by any other statute. For example, the Penal Code, Cap. 16, The
Minimum sentences Act, 1963, The Economic and Organized Crimes Act, 1984, and the
Criminal Procedure Act, 1985 SS. 164 and 165. Stephen Kiberenge & Others, V.R. H.C. CR.
App. No. 107/1986 & 108/1986 (Unreported). 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 Statute i.e. s. 114 The Law of Marriage Act, 1971 Bi Hawa Mohamed V. Ali
Sefu, Civil Appeal No. 9 of 1983 whether are proposals for changing the Law (Law Reform
Bulletin the call for reform of the Law of Marriage Act, 1971). (Bi Hawa Mohamed's Case).
HOW TO TRACE SUBSIDIARY LEGISLATION:
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 subject authorising delegated legislation; whether or not any delegated legislation
has been made; whether the amendments have been incorporated into the reprint; whether or
not the original delegated legislation and its amendments have commenced operation; and
whether or not the delegated legislation has been judicially considered. It is essential to consult
the official Government Gazette in which General Notices are published.
APPLICATION OF THE COMMON LAW DOCTRINE IN ENGLAND
The common law doctrine of precedent works on the basis of hierarchy of authority. The core
of the doctrine is that previous binding decisions of superior courts within the same judicial
hierarchy are accorded authority by the courts lower in hierarchy (vertical obligation) and
appellate courts are bound by own decisions (horizontal obligation.
STARE DECISIS IN ENGLAND

Before 1966 (The Old Rule): After 1966 (The New Rule)
The decisions of the House of Lords bind all courts below it.
The house of lords was bound by its own previous decisions.
This has been stated in the case of BEAMISH V. BEAMISH [1895] VOL 9 HL 274as well
as LONDON STREET TRAMWAY CO. V. LONDON COUNTRY COUNCIL [1898] AC
375
Note: Obiter dicta by itself are not a precedent but it can be taken as formation of the new rule.
EXCEPTION TO THE OLD RULE

(i) Decision in ignorance of statute
Even though a court may know of a statute, yet it does not appreciate its relevance to the
matter, such a mistake is such incuriam as to vitiate the decision.
(ii) Conflicting decisions

The House of Lords is not bound by its own previous decisions that are in conflict with
one another. Such a situation can arise in two ways as follows;
The conflicting decision may have originated at a time when the binding force of the
precedent was not recognized.
The conflicting may have arisen due to inadvertence that is in forgetfulness of an
existing precedent.
Whether a relevant prior decision has not been cited before the court, the court must have
acted in ignorance or forgetfulness of it, and the new decision if given in conflict with the
old it is given per incuriam and it is not binding on some public policy particularly
commercial was not binding if social conditions have changed.
AFTER 1966 (THE NEW RULE)

The House of Lords can depart from its own previous decisions when it appears right to
do so. This has been the base Per Lord Chancellor in the PRACTICE STATEMENT was
given (1966) 1 W.L.R. 1234 or [1966] VOL 3 ALL ER 77
APPLICATION OF PRECEDENT IN ENGLAND (THE COURT OF APPEAL
In England we may success in the old version system of the court and between the new
versions of the court system. In England the court decision were binding to that apex
court to that particular time. The court which is referred as the apex court is the House of
Lords. The previous decision or current decisions of House of Lords bind to the other
courts as well as the House of Lords itself.
THE COURT OF APPEAL OF ENGLAND

(a) House of lords decision is binding
Exception: Conflicting decisions and
Per Incuriam decisions.
BROOME V. CASS [1971] 2 QB 354
The Court of Appeal was not supposed to follow the previous decision of the House
of Lords because it was given per incuriam.
(b) The Court of Appeal is bound by its own previous decisions.

The Court of Appeal of England is absolutely bound by its own decisions and by those
of older courts of co-ordinate authority for example The Court of Exchequer Chamber.
This has been given in the case of YOUNG V. BRISTOL AEROPLANE CO. [1944]
K.B. 718
Exceptions for not being bound by own decisions.
If the decision is in conflict with another, it is bound to choose between the

conflicting decisions.
If the earlier decision of the court though not overruled, cannot stand with
the decision of the House of Lords.
If the decision was given per incuriam, that is, in ignorance of a statute or
rule having statutory effect which would have affected the decision had it been brought to the
notice of earlier court?
If the decision is disapproved by the Privy Council.
WORKS FINANCE CO. V. GOO [1971] VOL 1 ALL ER
The Court of Appeal is not bound to follow its own previous decision if it was
disapproved by the Privy Council.
The Court of Appeal is not bound by decisions of the Court of Appeal. They
are courts of co-ordinate jurisdiction so they cannot be bound by its decisions.
The decisions of the Privy Council are only persuasive, that is, do not bind courts
in English legal system.
APPLICATION OF PRECEDENTS IN EAST AFRICA
INTRODUCTION
The doctrine of precedent is fundamental in the process of judicial law making in East
Africa. The judicial concern with past and in particular conditions in England is
the outstanding feature of the decision making process in the superior courts in East
Africa. This concern largely attributed to the colonial context in which courts in East
Africa operated. England being the mother country of the colonized territories of East
Africa provided the law which was to apply in these colonies.
The other factor for courts in England concern with past English decisions relates to the
professional training and countries of origin of the judges of the superior courts in colonial
East Africa. These judges were mainly English so they were strongly influenced by
English practice and decisions and they felt at home with their application in East Africa.
PRIVY COUNCIL
Privy Council was the apex of the judicial pyramid in East Africa and other British
Colonies and dependencies. It was established as the Judicial Committee of the Privy
Council by the Judicial Committee Act of 1833 by King William IV (the forth),
as permanent committee of legal experts to hear appeals from the British colonies and to
dispose other matters as referred to them by His Majesty from time to time. The Privy
Council was therefore not a court of law but an advisory body. There are two situations
on the applicability of the Privy Council as follows;
BEFORE ABOLITION OF APPEALS TO THE PRIVY COUNCIL (BEFORE 1966)
Before the East African states abolished appeals to the Privy Council its decisions were
binding on the courts in East Africa. The origin of the decisions didnt matter as the law
was considered uniform in respect of: (i) Pronouncements on the Common Law, (ii)
Pronouncement of Mohamedan Law. This has been decided in the case of SHALO V.
MARYAM [1967] E.A. 409
AFTER ABOLITION OF APPEALS TO THE PRIVY COUNCIL (BEFORE 1966)
After the independence of East African Countries divergent views prevailed over whether
the independence of these countries fired the courts from the authority of Privy Councils
decisions.
(i) For practical reasons the fear of reversal on appeal by Privy Council after
abolition was no longer there.
(ii) The constitutions of the newly independent East African states by maintaining
the existing laws it meant also that Privy Council decisions were included.
This was given in the case of RASHID MOLEDINA V. HOIMA GINNERIES [1967]
E.A AT PP 656-657
The other controversial issue is whether the East African Court of Appeal had inherent
powers to depart from its own previous decisions as did the Privy Council. The answer to
this question came from the decision of Newbold, V.P., in the case of DODHIA V.
NATIONAL & GRINDLAYS [1970] E.A 195 B as follows;
His lordship affirmed that no decision of the Privy Council or of any English Courts or
of any foreign courts is binding on the East African Court of Appeal and the East African
Court of Appeal inherited the flexibility of the Privy Council to depart from it own
decisions when it appears right to do so
ENGLISH DECISIONS IN EAST AFRICA

The orthodox doctrine of precedent as adopted in East Africa didnt cover decisions of the
courts of England which were not structurally connected with the judicial systems of East
Africa. The main considerations which influenced judicial attitudes in East Africa were
as follows;
(i) The use of decisions of English courts by judicial personnel trained in the
common law tradition.
(ii) The adoption of the English common law and doctrine of equity as the basis of
the legal systems established by the British colonial administration.
English law was received in East Africa through the general and the special reception
clauses in the Order-in-Council. This is seen in KIRIRI COTTON CO. V. DEWANI
[1958] E.A. 239
His Lordship observed in this case that established decisions on the common law
and doctrines of equity of superior courts in England given before reception date are
binding in East Africa but after independence there were in persuasive in nature.
DECISION ON STATUTES IN PARI MATERIAL
Statute in pari material were model statutes in force in East Africa during the period of
British rule which were derivered from English legislation either directly or by way of
India. It would seem natural that in interpreting the model statutes, East African courts
should look to the interpretation given to that statute in the country of origin as well as in
the other countries with similar statute.
BEFORE INDEPENDENCE
English decisions were binding on East African Courts in the interpretation of local statute
in pari materia. This has been decided so in the case of THIMBLE V. HILL [1879] A.C.
342 that there might be local conditions which make the English construction
inappropriate, but East African courts cited with approval the need to preserve the unity
of English law throughout the empire.
AFTER INDEPENDENCE
After independence there were two views on the status of English decision interpreting
statutes in pari materia as follows;
(i) Those decisions are binding

That English decisions on statute pari materia are binding. This was the view of Spry. J,
in the case of RASHID MOLEDINA V. HOIMA GINNERIES [1967] E.A 645 as
follows
His Lordship when interpreting the Arbitration Act of Kenya which was derived from
English Arbitration Act of 1889 reiterated that respect must be shown to English decisions
interpreting a similar statute because English legislature enacted the Kenyan statute with
knowledge of those English decisions
In other words this was given when Kenya legislation was passed derivered from England.
Then court decisions which was given in England in interpretation of a statute then will
be used the same in Kenya simply because the legislation was originated from England.
Refers also the following case; TANGANYIKATANGANYIKA GARRAGE V.
MARCEL G. MAFURUKI [1975] LRT 23 : MTATIRO MWITA V. MWITA
MARIANYA [1968] HCD
(ii) English decisions are not binding.

English decisions on statute pari materia are not binding. This was expresses by the East
African Court of Appeal in the case of NATIONAL GRINDLAYS BANK V.
VALLABHJI [1966] E.A 186 as follows;
English decisions on statute pari materia were not binding and to be followed there must
be consistent of interpretations
Conditions to be followed
The decisions are not.
The decisions must disclose the consistent interpretation of the provision.

For instance the issue of postal rule in England and Tanzania are differing. So any decision
given on postal rule cannot be followed by Tanzania simply because it is inconsistent with
our statute. Refer also the case of NEW GREAT INSURANCE V. CROSS [1966] E.A
OR [1965] ALR COMM. 449
APPLICATION OF PRECEDENT IN TANZANIA
The Union Constitution of 1977 as amended in 1984 made provisions for the
establishment of the Court of Appeal of Tanzania. There was another Act enacted for the
establishment of the Court of Appeal of Tanzania that is The Appellate Jurisdiction Act
of 1979. The Court is therefore the final Court for appeals originating from Tanzania
Mainland and Zanzibar in all matters except Islamic law and disputed between Mainland
and Zanzibar governments over the application and interpretation of the Union
Constitution. In discussing stare decisis and its applicability in Tanzania it is better to cite
the illustrative decision of the Court of Appeal of Tanzania in the case of JUWATA V.
KIUTA CIVIL APPEAL NO. 29 OF 1987 as also reported in the Tanzania Law Reports
as JUMUIYA YA WAFANYAKAZI TANZANIA v KIWANDA CHA
UCHAPISHAJI CHA TAIFA [1988] TLR 146
In this case the Chief Justice, Nyalali, overruled a previous per incuriam decision of the
court in the case of ZAMBIA TANZANIA ROAD SERVICES V J.K. PALLANGYO
CIVIL APPEAL NO. 9 OF 1982
In determining the matter courts interalia states the following; (principles laid down)
(i) Decisions of the Court of Appeal of Tanzania are normally binding on the Courts
but as a final court of appeal it is free to depart from such a decisions when it appears
right to do so.
(ii) The Court of Appeal of Tanzania is not bound to follow a decision of its own if
it satisfied that the decision was given per incuriam.
(iii) Decisions of the Court of Appeal of Tanzania are binding upon any tribunal by
virtue of the common law doctrine of precedent.
ALTERNATIVE DISPUTE RESOLUTION IN TANZANIA
Alternative Dispute Resolution is the way of resolving dispute out of the court, it is one of the
mechanisms applied to reduce overlapping of cases in the courts of law and intend to preserve the
relationship between parties.
Globally, the role of traditional dispute resolution mechanisms in the dispute resolution continuum
has been noted over time with scholars stating that courts only deal with a fraction of all the
disputes that take place in society4.
In Tanzania before introduction of Alternative Dispute Resolution the only methods which were
applicable were the traditional methods and court proceedings. However the two methods were
not enough as far as solving the dispute amicably is concerned, the history of Alternative Dispute
resolution has been a little bit different from other ways that Tanzania
Today, Alternative Dispute Resolution (ADR) has gained international recognition and is widely
used to complement the conventional methods of resolving disputes through courts of law. ADR
simply entails all modes of dispute settlement/resolution other than the traditional approaches of
dispute settlement through courts of law. Mainly, these modes are: negotiation, mediation,
[re]conciliation, and arbitration. The modern ADR movement began in the United States as a result
of two main concerns for reforming the American justice system: the need for better-quality
processes and outcomes in the judicial system; and the need for efficiency of justice. ADR was
transplanted into the African legal systems in the 1980s and 1990s as a result of the liberalization
of the African economies, which was accompanied by such conditionalities as reform of the justice
and legal sectors, under the Structural Adjustment Programmes. However, most of the methods of
ADR that are promoted for inclusion in African justice systems are similar to pre-colonial African
dispute settlement mechanisms that encouraged restoration of harmony and social bonds in the
justice system.5 The need for African counties to adopt these methods of resolving dispute arose
4 Marc Galanter, Justice in Many Rooms: Courts, Private Ordering and Indigenous Law, Journal of Legal Pluralism,
(1981) Vol. 19, p.3
5 Mashamba C.J(2014)ALTERNATIVE DISPUTE RESOLUTION: Law and Practice.Mkuki na Nyota Publishers. Tanzania
pg 224
and many countries in Africa started to incorporate the Alternative dispute resolution methods in
their laws
In Tanzania ADR was introduced in 1994 through Government Notice No. 422, which amended
the First Schedule to the Civil Procedure Code Act (1966), and it is now an inherent component
of the country's legal system. In recognition of its importance in civil litigation in Tanzania, ADR
has been made a compulsory subject in higher learning/training institutions for lawyers. This
handbook provides theories, principles, examples of practice, and materials relating to ADR in
Tanzania and is therefore an essential resource for practicing lawyers as well as law students with
an interest in Tanzania. It also contains additional information on evolving standards in
international commercial arbitration, which are very useful to legal practitioners and law students. 6
There are a myriad of disputes that do not reach the courts and that are resolved through informal
negotiations by the disputants. Traditional dispute resolution is common feature in almost all
Africa societies and it is the oldest method of dispute resolution compared to other dispute
resolution methods. The rationale behind that is that the societies before colonialism had their own
traditional ways of resolving disputes. Regionally most African countries still hold onto customary
laws under which the application of traditional dispute resolution mechanisms is common. It has
been said that throughout Africa the traditions have since time immemorial emphasized
harmony/togetherness.
The two methods although they serve the same purpose of resolving dispute they differ from each
other. The following is the distinction between the two methods;
In Traditional methods, resolution of conflicts prescribes an outcome based on mutual problem-

sharing in which the conflicting parties cooperate in order to redefine their conflict and their
relationship. Resolution is non-power based and non-coercive, it follows then that conflict
resolution entails the mutual satisfaction of needs and does not rely on the power relationships
between the parties7. However in some circumstances the methods involves coercive measures to
6ibid
7Kenneth Cloke, The Culture of Mediation: Settlement vs. Resolution, The Conflict Resolution Information
Source, Version IV, December 2005
reach the conclusion. R v Palamba Fundikira8 In this case a trial by ordeal was conducted to
discover who has by witch craft caused the death of 11 children of the first appellant. Four women
were accused as causatives of the death of the children and to prove their innocence they were
subjected to a traditional test o drinking a traditional medicine called MWAVI. By itself mwavi
is not a poison but when taken with evil mind it turns to poison. Upon taking two women died and
other two vomited.
Alternative Dispute resolution is a total non coercive method and only intends to preserve the good
relationship that the parties had before the dispute.
Alternative Dispute Resolution settlement does not require the cause of the dispute that arose but
possibility of resolving it without further coercive and undesirable measure. A settlement process,
seeks to mollify the opposition without discovering or rectifying the underlying causes of the
dispute.9
In negotiation, parties meet to identify and discuss the issues at hand so as to arrive at a mutually
acceptable solution without the help of a third party. Negotiation is thus voluntary. It allows party
autonomy in the process and over the outcome. It is non-coercive thus allowing parties room to
come up with creative solutions. It has also been described as a process involving two or more
people of either equal or unequal power meeting to discuss shared and/or opposed interests in
relation to a particular area of mutual concern. This is different from the traditional methods which
were the elders acted as a neutral ground to the dispute and elders acted as judges.
Traditional local leaders including male and female elders played a pivotal role in conflict
management. Due to their the wide powers, knowledge, wisdom and the respect they were
accorded in the society they could resolve family conflicts and conflicts related to natural
resources. There are some conflicts that come to courts that could well have been handled by the
local elders in a community or the Local administration. In the case of Torgindi v Mutsweni
In this case Torgindi accuse Mutseni as a causative of his marriage breakdown and as a result a
dispute arose and the drumming arose. Each part was ordered to compose and sang a song as loud
8 [1947] 4 EACA 96
9 Claire Baylis and Robyn Carroll, Power Issues in Mediation, , ADR Bulletin,Vol.7, No.8 [2005],Art.1, p.135
as he could so that the whole village could hear. Mutsweni was not a good song composer but he
hired a person to compose for him. The drumming started and went on for more than 3weeks every
day. The village elders then opine that if the drumming continues it would end up infighting so the
parties were called to prepare and sing their songs before the elders. The elders here act as judges
and at the end they would decide who wins a case basing on the song composed.
ADVANTAGES AND DISADVANTAGES OF ADR

Following are the advantages of ADR:
1. It can be used at any time, even when a case is pending before a Court of Law.
2. It can be used to reduce the number of contentious issues between the parties; and it can
be terminated at any stage by any of the disputing parties.
3. It can provide a better solution to dispute more expeditiously and at less cost than regular
litigation.
4. It helps in keeping the dispute a private matter and promotes creative and realistic
business solutions, since parties are in control of ADR proceedings.
5. The ADR is flexible and not governed by the rigorous of rules or procedures.
6. The freedom of parties to litigation is not affected by ADR proceedings. Even a failed
ADR proceeding is never a waste either in terms of money or times spent on it, since it
helps parties to appreciate each others case better.
7. The ADR can be used with or without a lawyer. A lawyer however, plays a very useful
role in identification of contentious issues, position of strong and weak points in a case,
rendering advice during negotiations and overall presentation of his clients case.
8. ADR helps in reduction of work load of courts and thereby helps them to focus attention
on other cases.
9. The ADR procedure permits to choose neutrals who are specialists in the subject-matter
of the dispute.
10. The parties are free to discuss their difference of opinion without any fear of disclosure
of facts before a Court of Law.
11. The last but not the least is the fact that parties are having the feeling that there is no
losing or winning feeling among the parties by at the same time they are having the feeling
that their grievance is redressed and the relationship between the parties is restored.
12. The ADR system is apt to make a better future. It paves the way to further progress.
DISADVANTAGES
Following points may be dealt as some of the disadvantages of ADR:
1. Situations when ADR may not be appropriate, and may even carry a degree of risk for
one of the parties. It is important for the advisers to use their professional judgement in
each case, but this section outlines key factors for consideration.
2. There may be an imbalance of power between the parties, which could make face-to-
face mediation unfair. This could include family or neighbour mediation where there
has been violence or the threat of violence; or mediation between an individual and a
large organization such as a local authority, where the size and resources of the
organization would put the individual at a disadvantage.
3. There may be an urgent need (for example to prevent eviction) which requires an
immediate legal remedy.
4. Mediation and Ombudsmen do not provide a legally binding, enforceable outcome, and
decisions do not act as precedents in future cases.
5. Legal rights and Human rights cannot be relied on in ADR processes, which are private,
confidential and not open to public scrutiny.
6. Ombudsmen investigations can be very slow.
7. Although Ombudsmen can make compensation awards, they are often lower than is
likely to be achieved in court.
8. There are no consistent quality standards or regulation for ADR providers, so it can be
hard for the advisers or their clients to know how to choose a good service.
9. Where a dispute involves difficult legal points a mediator or an arbitrator is unlikely to
have the same legal expertise and knowledge as a judge. Disputes can be of various
situations such as- commercial conflicts, social conflicts, legal conflicts and many others
which require specialized mediator. Most of the cases the mediator possess a judges
point of view.
10. The arbitrators decision can require a court action if one of the parties refuse to accept
the arbitrators decision. This would not only create chaos but also a mandatory review
by the court. Thus ADR sometimes raises the question of biasness of arbitrators
decision. Also there is very limited opportunity for judicial review of an arbitrators
decision. A court might also overturn an arbitrators decision if its decided issues were
not within the scope of the arbitration agreement.
11. Alternative Dispute Resolution generally resolves only issues of money or civil disputes.
Alternative Dispute Resolution proceedings will not result in injunctive orders. They
cannot result in an order requiring one of the parties to do or cease doing a particular
affirmative act.
12. ADR generally proceed without protections offered to the parties in litigation, such as
those rules governed through discovery. Courts generally allow a great deal of latitude
in the discovery process, which is not active in alternative dispute resolution.
FACTORS LED TO ADAPTATION OF ADR

The search for a simple, quick, flexible and accessible dispute resolution system has resulted in
the adoption of Alternative Dispute Resolution mechanisms. ADR represents only a change in
forum, not in the substantive rights of the parties. ADR is not intended to supplant altogether the
traditional means of resolving disputes by means of litigation. The primary object of ADR system
is avoidance of vexation, expense and delay and promotion of the ideal of access to justice.
The need to get away from the conception that court is the only place to settle disputes has led to
exploring the possibility of creating a dispute resolving mechanism which would be flexible and
saves valuable time and money.
DIFFERENT ALTERNATIVE METHODS OF DISPUTE SETTLEMENT
Modern ADR is a voluntary system, according to which parties enter a structured negotiation or
refer their disputes to a third party for evaluation and/or facilitation of resolution.
A. ARBITRATION:
According to Russell, the essence of arbitration is that some disputes are referred by the parties
for settlement to a tribunal of their own choice instead of to a court. Arbitration is a procedure for
the resolution of disputes on a private basis through the appointment of an arbitrator, an

independent, neutral third person who person who hears and considers the merits of the dispute
and renders a final and binding decision called an award.
The parties to the arbitration have some control over the design of the arbitration process.
There is more flexibility in the arbitration process than in the traditional courts system as the parties
can facilitate the creation of an arbitral process relevant to their disputes. Once the process is
decided upon and within the parameters of the Statute, the Arbitrator assumes full control of the
process.
Among the advantages of the arbitration process are considerable saving in time and money
compared to a trial; the limited possibility for challenging the award which again contribute the
lower costs and finality of outcome; and greater participation by the parties than is case in the
courts/tribunal system.
A. CONCILIATION:
Conciliation is a private, informal process in which a neutral third person helps disputing parties
reach an agreement. This is a process by which resolution of disputes is achieved by compromise
or voluntary agreement. Here the parties, together with the assistance of the neutral third person
or persons, systematically isolate the issues involved in the dispute, develop options, consider
alternatives and reach a consensual settlement that will accommodate their needs. In contrast to
arbitration, the conciliator does not render a binding award.
The parties are free to accept or reject the recommendations of the conciliator. The conciliator is,
in the Indian context, often a Government official whose report contains recommendations. The
conciliation process is sometimes considered synonymous to mediation. Where a third party is
informally involved without a provision under any law, which is mediation. In other words a non-
statutory conciliation is what mediation is. Essentially however in effect and structure, conciliation
and mediation are substantially identical strategies where assistance is provided to parties to a
dispute by a stranger to the dispute. Both the conciliator and mediator are required to bring to the
process of dispute resolution fairness, objectivity, neutrality, independence and considerable
expertise, to facilitate a resolution of the conflict.
B. MEDIATION:
It is an informal process in which a neutral third party without the power to decide or usually to
impose a solution helps the parties resolve a dispute or plan a transaction. Mediation is voluntary
and non-binding, although the parties may enter into a binding agreement as a result of mediation.
It is not an adjudicative process.
The process of mediation aims to facilitate their negotiations. The mediator has no independent
decision-making power, jurisdiction or legitimacy beyond what is voluntarily offered by the parties
themselves. Mediation is a process of structured negotiation conducted by a facilitator with skill,
training and experience necessary to assist the litigating parties in reaching a resolution of their
dispute. It is a process that is confidential, non-coercive and geared to aid them in arriving at a
mutually acceptable resolution to their dispute of any nature.
One of the advantages of the mediation process is its flexibility. It is not as if one party wins and
the other party looses. But the parties arrive at an equitable solution that is why mediation is said
to be a win-win situation. Mediation employs several strategies, sub-strategies and techniques to
encourage the parties to reach an agreement.
Mediation like many ADR strategies has distinct advantages over the traditional courts/ tribunals
format of dispute resolution. The advantages of ADR including mediation are the informality of
the process, the speed in dispute resolution, relatively low cost, the ability of the process to focus
on the disputing parties interests and concern rather than exclusively on their legal rights;
encouragement to the parties to fashion their own solutions; much greater involvement of the
parties in the process; the essential confidentiality of the process and the high success rate.
The appropriate case for mediation are those where-
1. Parties want to control the outcome.

2. Communication problem exist between parties or their lawyers.
3. Personal or emotional barriers prevent settlement.
4. Resolution is more important than vindicating legal or moral principles.
5. Creative possibilities for settlement exist.
6. Parties have an ongoing or significant past relationship.
7. Parties disagree about the facts or interpretation.
8. Parties have incentive to settle because of time, cost of litigation, drain on productivity,
etc.
C. NEGOTIATION:
Negotiation in principle is any form of communication between two or more people for the purpose
of arriving at a mutually agreeable situation. Negotiation has been defined as the process we use
to satisfy our needs when someone else controls what we want.
Most of the disagreements or differences are dealt with in one way or the other by negotiation
between the principals themselves; relatively few involve legal intervention. In this form of ADR
the disputants or their agents maintain control over the negotiation process.
There are several techniques of negotiation such as competitive bargaining, cooperation bargaining
and principled negotiation which are but different facets and styles of negotiations.
Courtesy of MWAKISIKI, MWAKISIKI, EDWARDS
BACHELOR OF LAWS (LLB)
MOSHI CO-OPERATIVE UNIVERSITY
Mwakeyeddy@gmail.com
Visit: https://independent.academia.edu/MWAKISIKIMWAKISIKI
Seodanggae sam nyeone poongweol eulpneunda (After three years at a village

schoolhouse, even a dog can recite a poem)
iWhat 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 Abba is a dog Abba has four legs Syllogistic reasoning is one form of a priori reasoning.

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Moshi Co-operative University

From the SelectedWorks of MWAKISIKI MWAKISIKI

Summer April 9, 2017

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

The Natural Law Model

Equality and reliance are the reasons (Alexander)

The Rule Model

The Result Model

ADVANTAGE AND DISADVANTAGES OF PRECEDENT

OBLIGATIONS IN PRECEDENTS AND STARE DECIS

COMMON TERMINOLOGIES IN LEGAL METHODS

7. Facts/Material Facts of a case:

10. Ratio Decidendi

11. Obiter Dicta

12. Judicial Hunch or Judges Predisposition.

Reversing the decision of the High Court.

DEBATE ON HOW TO DETERMINE THE RATIO DECIDENDI OF THE CASE

(b) Professor Goodhart in Determining the Ratio Decidendi of a Case in Vol. 40

He proposed the following steps in determining the principle of a care of ratio

Fourth, note the summary of Counsels speech in a reported case (judgement of an

He advised on how to distinguish material facts from immaterial ones:

WHICH CASES ARE REPORTED IN LAW REPORTS LAW REPORTING IN

PROCEDURES FOR TAKING CASES FOR REPORTING

UNORTHODOX METHOD OF READING

LANGUAGE AND THE LAW

LANGUAGE OF THE LAW AND LANGUAGE OF THE COURT

HOW TO FIND A CASE

of 1982 Jeremiah Venanti v. Clementina HC Civil Appeal No. 94 of 1983:

CITATION OF CASES IN LAW REPORTS

(a)Halden1 v. Halden 1 [1966]2 W.L.R.3 1481.4 (b)Obongo1 v. Municipal Council of

(vi) A list of cases which were referred to during the hearing.

SUMMARY OF CITATIONS OF THE CASE

CITATION OF STATUTES IN ENGLAND

CITATION OF STATUTE IN EAST AFRICA

Delegated or Subsidiary legislation is Cited as follows: In the United Kingdom, statutory

CITATION OF OTHER MATERIALS THAN CASES, LAW REPORTS AND

INDUCTIVE AND DEDUCTIVE REASONING

HOW TO READ A STATUTE

HOW TO FIND MATERIALS IN A LIBRARY

HOW TO TRACE SUBSIDIARY LEGISLATION:

APPLICATION OF THE COMMON LAW DOCTRINE IN ENGLAND

STARE DECISIS IN ENGLAND

The house of lords was bound by its own previous decisions.

EXCEPTION TO THE OLD RULE

(ii) Conflicting decisions

AFTER 1966 (THE NEW RULE)

THE COURT OF APPEAL OF ENGLAND

BROOME V. CASS [1971] 2 QB 354

(b) The Court of Appeal is bound by its own previous decisions.

Exceptions for not being bound by own decisions.

If the decision is in conflict with another, it is bound to choose between the

If the decision is disapproved by the Privy Council.

WORKS FINANCE CO. V. GOO [1971] VOL 1 ALL ER

APPLICATION OF PRECEDENTS IN EAST AFRICA

BEFORE ABOLITION OF APPEALS TO THE PRIVY COUNCIL (BEFORE 1966)

AFTER ABOLITION OF APPEALS TO THE PRIVY COUNCIL (BEFORE 1966)

ENGLISH DECISIONS IN EAST AFRICA

DECISION ON STATUTES IN PARI MATERIAL

(i) Those decisions are binding

(ii) English decisions are not binding.

The decisions must disclose the consistent interpretation of the provision.

APPLICATION OF PRECEDENT IN TANZANIA

ALTERNATIVE DISPUTE RESOLUTION IN TANZANIA