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Legal Methods Work Book for Year 2 Uganda Christian

University
BACHELOR OF LAW (Uganda Christian University)

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Uganda Christian University

LLB
Legal Methods
Introduction to Law

Legal Methods
Introduction to Law
Module Tutor: Paul Okirig
Tel: 0782528689
E-mail: okirigpaul@ucu.ac.ug

12/09/16

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CONTENTS

Page

Introduction

Chapter 1 The Nature of English Law

Chapter 2 Finding and Reading Legislation

Chapter 3 Using Legislation

Chapter 4 Finding and Reading Cases

Chapter 5 Using Cases

Chapter 6 Introduction to the Law of Contract

Chapter 7 Formation of Contract

Chapter 8 Vitiating Factors Affecting the Valid Formation

of a Contract

Chapter 9 The Contents of the Contract

Chapter 10 Discharge of the Contract and Remedies for

Breach

Chapter 11 An Overview of the Law of Torts

Chapter 12 Negligence

Practice Essay

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INTRODUCTION
This chapter is intended to:

 Show you how to use these materials;

 Introduce you to legal methods as a foundation for the study of law;

 Give you a brief picture of how the legal methods underpin other areas of
study.

How to use these materials

Each chapter commences with a set of objectives. By the end of the chapter if
you have read these materials and the recommended reading, correctly
answered the self-test questions, if any and completed the case studies then you
should have accomplished the objectives.

The materials in this booklet are intended for guidance only. It is not sufficient to
confine yourself to reading this workbook. You must read more widely, in
particular the recommended textbooks and other materials.

Recommended Textbooks

The recommended textbooks, which are supplied with these materials, are

Learning Legal Rules by Holland and Webb, 6th edition Oxford University Press

Do not however feel restricted to this book. You may wish to read further and to
this end a list of suggested reading is included below. There are numerous other
academic texts available on both legal methods and introduction to law and you
may benefit from reading associated sections of these. However, if you do so,
please ensure that the books cover the jurisdiction of Uganda.

When must you do the reading?

As far as possible you must do the reading at the point in the materials where
you see the textbook symbol and the relevant page numbers. Sometimes this
will be near the beginning of the chapter but more frequently you will find that the
reading is dispersed throughout the chapter. The recommended reading is the
minimum reading that you should undertake. On occasions some cases will be
mentioned yet you will not find a reference for them in the textbook or only a brief
reference to them. Where this is the case you are advised, as far as is possible,
to use the internet or the University library to locate the case and to read them in
greater depth. Information on how to access legal information using the internet
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can be found in the booklet “Basic Sources of Information in Law.” In the

University Library.

Self-Test Questions

In some chapters are a series of self-test questions. These questions are

designed to test whether you have the recommended reading and have
understood what you have read. You should attempt the self-test questions
immediately after you have completed the recommended reading. You should be
able to answer each set of self-test questions in only a few minutes. If your
answers are correct you can more on to the next section. It you have made any
mistakes you should read the relevant sections of the textbook once more and
then attempt the self-test questions again. Do not attempt to move on until you
are satisfied you understand the relevant legal concepts.

Since the reform of England’s civil procedure, there is no such term as plaintiff
(the person who brings an action). The term plaintiff has been replaced with the
term Claimant. In Uganda we still use the term plaintiff. Be mindful of the use of
the terms.

When considering English cases, you will find the term plaintiff used widely,
especially when you are considering cases that were decided before the new
terminology was introduced. Please treat the term as being interchangeable with
claimant. For the purposes of your assessments you should use the term plaintiff
since that is the term applicable in Uganda.

Introduction: what is “legal methods”?

In general the aim of this course is to provide students with an overview of the
central institutions and processes of the Uganda Legal System and to introduce
students to techniques of legal interpretation and legal research.

LEARNING OUTCOMES: KNOWLEDGE

On successful completion of the module students should be able to:

1. Understand the structure and operation of the central institutions and

processes of the Uganda legal system;

2. Explain the purpose and basic structure of the civil justice system and the
place and value of alternative methods of dispute resolution;

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3. Explain the purpose and basic structure of the criminal justice system and the
tension between the objectives of crime control and protection of civil liberties
and human rights;

4. Describe the role and constitutional position of judges and in particular the Law
Supreme Court, Court of Appeal, High Court and Courts subordinate thereto.

5. Understand judicial approaches to statutory interpretation and the influence of

English law and other legal systems on those approaches;

6. Understand the essential ingredients of the rule of law, and the importance to
fairness and justice in social and legal systems.

LEARNING OUTCOMES: SKILLS

Students completing this course should be able to:

7. Apply the techniques of legal reasoning covering precedent and statutory

interpretation;

8. Identify key issues in a case and summarise points clearly and accurately;

9. Conduct basic legal research tasks using primary and secondary sources;

10. Respond coherently to straightforward questions about the law using legal
referencing appropriately;

11. Locate legal sources;

12. Demonstrate understanding of legal terminology;

13. Understand the principles of good academic practice.

ASSESSMENT

Assessment is by way of group-work presented in class in an interactive manner

and a test. These account for 30 marks of a student’s grade. At the end of the
semester, a three hour and fifteen minutes unseen examination paper shall be
given. That accounts for 70 marks.

Permitted materials

None.

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Introduction to Legal system and method

This is a foundational module which provides you with some essential building
blocks for the study of law. Learning about law and legal systems is endlessly
fascinating and the material in this module provides a basis for your
understanding of the other modules you will tackle as part of your Law Course.

This module will help you to become familiar with some of the special vocabulary
of the law; it will introduce you to the essential skills of the lawyer – such as how
to read legal cases and statutes (Acts of Parliament); and it will provide an
overview of some of the key institutions and processes that make up what we
understand as the legal ‘system’.

This module is different from other law subjects The material on this module is
somewhat different from many of your other modules. While, for example,
criminal law and contract law focus on detailed legal rules (what we refer to as
‘substantive law’), this subject looks more broadly at the machinery of the legal
system which is necessary to make the law work – so that disputes are resolved
peacefully and that those who have broken the law may be brought to justice.
You will need to have an understanding of what law is and its role in society as
well as the meaning and significance of the concept of the ‘rule of law’. You need
to understand some basic constitutional principles – such as the relationship
between the government, law makers and judges – as well as how various parts
of the legal system work together. You will also need to be familiar with some of
the guiding principles of legal procedure in relation to dealing with civil disputes
(such as disputes over contracts or property) and in relation to the detection,
prosecution and punishment of criminal offences (such as theft or murder).

Purpose and content of the subject guide

The guide is designed to help you through the material that you need to learn,
understand and apply. It is not a textbook, but the chapters introduce you to the
factual information, ideas, policy issues and debates that form the subject matter
of the module. It guides your further reading and provides a framework for
understanding.

Each chapter starts with an introduction to the topic and summarises the key
issues that you need to know and understand. The sections of the guide direct
you to Essential reading, comprising the set textbook, material in the
accompanying study pack and relevant legal cases which can be found on the
virtual learning environment (VLE) or in the Online Library. At the end of each
chapter of the subject guide there is a summary of key points and some

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questions for reflection, to test how well you understand the material you have
read and to encourage you to undertake further reading and research, to develop
your knowledge and understanding of the legal system and legal reasoning.

Module aim

The aim of the module is to achieve an overview of the central institutions and
processes of the Uganda Legal System and to introduce students to techniques
of legal reasoning and interpretation.

Learning outcomes

On successful completion of the module you should be able to:

1.1 Understand the structure and operation of the central institutions and
processes of the English legal system and to have a basic facility with techniques
of legal interpretation

1.2 Conduct of legal research using primary and secondary resources

1.3 Understand techniques of legal reasoning covering precedent and statutory

interpretation

1.4 Describe the role of judges; in particular the Law Lords and the Supreme
Court

1.5 Explain the basic structures of civil and criminal justice

1.6 Understand the role of due Process and the importance of Article 6 (ECHR)
in Civil and Criminal Justice

1.7 Explain the key concepts of Legal Aid.

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Legal Reasoning

The most important legal skill a law student will ever learn is to think to “think like
a lawyer”. Legal methods seeks to impart that skill. This course is intended to
help you develop the learning and reasoning appropriate to the study of law.

Experience has shown that the most common problem students face is not what
are the rules but rather how do I make use of the rules.

Legal Methods is not about learning specific laws, it is about learning to study the
use and construction of legal rules. In other words, it is fundamentally about
developing “Legal Method” or what is sometimes called the technique of “thinking
like a lawyer”. What do we mean by thinking like a lawyer? It is really nothing
more than the way lawyers reason and analyse.

Legal reasoning is based on 3 things we shall look at in more detail later, that is,

 Ability to find and make use of legal material (statutes, law reports and text
books

 Interpretation of authorities (cases and statutes)

 Ability to construct arguments about facts of a case, why a particular

authority should or should not apply

Thinking like a lawyer means that a lawyer must acquire the skill to gather
information and use that information appropriately (reason). Remember the
words of Ronald Dworkin: Legal Reasoning is an exercise in constructive
interpretation.

Further Reading

Osborn’s Concise Law Dictionary, 10th Edition, Sweet and Maxwell

English Legal System, Elliott & Quinn, 7th Edition, Longman

How to Write Law Essays and Exams, S I Strong, 2 nd Edition, Oxford University
Press

An Introduction to Law, Phil Harris, 6th Edition, Cambridge University Press

The Law-Making Process, Michael Zander, 6th Edition, Cambridge University

Press

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CHAPTER 1

THE NATURE OF UGANDAN LAW

Read Holland and Webb chapter 1.

WHAT IS LAW?

Legal philosophers have spent much time analyzing this question.

The Longman Dictionary of Law (8th Ed) defines “law” as “the written and
unwritten body of rules largely derived from custom and formal enactment which
are recognized as binding among those persons who constitute a community or
state, so that they will be imposed upon and enforced those persons by
appropriate sanctions”.(page 271).

For our purposes we will adopt a simple definition from the Shorter Oxford
English Dictionary. In this, law is defined as:

“The body or rules, whether formally enacted or customary, which a state

or community recognises as binding on its members or subject”.

The words highlighted need some explanation.

Body of Rules

Our legal rules have been developed by the courts, Parliament, (through the
Passage of Acts of Parliament) and increasingly by the East African Community
(EAC).

State

Laws will apply, usually, to a defined area. The law we will be considering in this
book is that which operates in Uganda.

In Uganda, as in English law, there is a presumption that an Act of Parliament is

operative throughout Uganda but not elsewhere, unless in either case the
contrary is expressed in the Act. This will then “rebut” the presumption. This is
usually called “extra territorial jurisdiction” a good example is to be found in
section 4 of the Anti – Terrorism Act, 2002, Act No.
“4. Extraterritorial jurisdiction of Uganda courts in relation to offences under this Act
(1) The courts of Uganda shall have jurisdiction to try any offence prescribed by this Act, wherever
committed, if the offence is committed—
(a) in Uganda; or

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(b) outside Uganda—

(i) on board a vessel flying the Uganda flag or an aircraft which is registered under the laws
of Uganda at the time the offence is committed;
(ii) on board an aircraft, which is operated by the Government of Uganda, or by a body in
which the government of Uganda holds a controlling interest, or which is owned by a
company incorporated in Uganda; or
(iii) by a citizen of Uganda or by a person ordinarily resident in Uganda;
(iv) against a citizen of Uganda;
(v) against a State or government facility of Uganda including an embassy or other
diplomatic or consular premises of Uganda;
(vi) by a stateless person who has his or her habitual residence in Uganda;
(vii) in an attempt to compel Uganda or the Government of Uganda to do or abstain from
doing any act;
(viii) by any person who has for the time being present in Uganda;
(ix) on the property of any person.
(2) Offences committed outside Uganda to which this section applies, shall be dealt with as if
committed in Uganda.”

In the United Kingdom which comprises Scotland, Wales and England, it is usual
to find that Parliament, in passing an Act of Parliament, deals with the law
relating to England and Wales in one part of the Act and then with the law relating
to Scotland in another part of the same Act.

It is worth remembering that Scotland has a separate legal system and a different
legal tradition.

Recognition

It is the recognition by the legal system of laws which distinguish them from other
rules. Legal rules must be distinguished from moral rules. Some activities which
may be considered immoral are not illegal. On the other hand, some activities
may not be considered immoral but nonetheless are illegal, such as various
parking offences. Not all immoral acts are illegal and not all immoral acts are
illegal - Can you think of any acts of that kind?

The law may embody a rule of morality. “Thou shalt not steal” is expressed in a
legal form by Part XXV of Penal Code Act, Cap. 120.

The main rules recognized by our legal system are created by statute, the
decisions of the courts and to a much lesser extent custom and usage. See
section 14 of the Judicature Act, Cap. 13 (doctrines of equity and common law,
established or current custom or usage and section 15 – customary law).

In Uganda, the Constitution is the supreme law (see article 2 of the Constitution)
– any other law or custom inconsistent with the Constitution shall to the extent of
the inconsistency be void. This is what is termed as “Constitutional Supremacy”.

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It is the same system as that existing in any jurisdiction with a written Constitution
such as the United States of America.

Acts of Parliament come immediately next in terms of hierarchy (See article 79 of

the Constitution). In accordance with article 2 of the Constitution, Acts of
Parliament must not be inconsistent with the Constitution. The Constitution in
article 137(2) grants a person the right to petition the Constitutional Court for
redress where the person believes that an Act of Parliament contravenes the
Constitution. As we said earlier the Constitution is supreme.

 See the case of Oloka-Onyango & Nine others v. Attorney General,

Constitutional Petition No. 08 of 2014, UGCC 14 (1 August 2014) – where
the Constitutional Court declared the Anti-Homosexuality Act
unconstitutional because it was passed without the requisite quorum.

EAC law has not at the moment had so much impact on Ugandan law as it is in
the EU.

In England, traditionally the laws passed by Parliament have been regarded as

the highest authority. The validity of Acts of Parliament could not be challenged in
the courts (Pickin v British Rail Board)1.

However, since this England joined the European Union, Parliament’s supremacy
has been limited by the need to comply with the requirements of the law of the
E.U. In England, the courts may even disapply a law passed by Parliament if it
prevents the enforcement of a right under community law.2

This may all change after England voted to leave the EU. It is not clear yet what
settlement England will have with the rest of the EU but is proper to conclude that
some level of independence from EU law will be regained by the courts in
England.

Division of Law

Ugandan Law is divided into two great branches:

 criminal law:

 civil law.

A question of concern is how crimes and civil wrongs are to be distinguished?

The answer is simple and is largely one of how the law defines certain actions.

1 [1974] AC 765
2 R v Secretary for Transport, exp Factortame (No.2) [1991] 1 AC 603

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Certainly the difference does not arise from the nature of the act itself, as the
same act may be both a crime and a civil wrong.

For example, If I am punched in the face by X, there are two possible legal
consequences. The first, and obvious consequence is that X may be subject to
criminal proceedings for assault and battery. A second possibility is that I may
sue in the civil courts for the tort of assault and battery.

Hence it may be said that the legal consequences which follow a wrongful act
determine if the act is a crime or a civil wrong or indeed both.

The Differences

There are a number of important differences between Civil and Criminal

proceedings:

Different Terminology

In criminal proceedings a prosecutor prosecutes the defendant or the accused

and if successful the defendant or accused is found guilty and convicted. The
defendant or the accused will then be sentenced by a judge or magistrates.

In civil proceedings, the usual terminology is, a plaintiff (in England, claimant)
sues (brings an action) against a defendant and if successful a defendant is said
to be liable and judgment will be given for the claimant. Then a claimant may be
compensated for the loss suffered. This terminology is not interchangeable.
Where the decision is appealed against, the party making the appeal is known as
the appellant. The other party is known as the respondent.

Different Procedures

The criminal and civil trials are in a number of respects very different. One
important distinction concerns the burden and standard of proof. In criminal trials
the burden of proof is on the prosecutor, who must show that the accused is
guilty. This gives effect to the principle that a person accused of a criminal
offence is innocent until proven guilty. In civil trials the burden of proof will usually
be on the plaintiff, who must prove the facts that they allege.

The standard of proof in a criminal trial is that the accused must be shown to be
guilty beyond reasonable doubt. This is a much higher standard of proof than the
standard in civil trials where matters are decided on a balance of probabilities.
Thus in a civil matter the standard of proof is that the facts alleged must be more
likely to be true than not.

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CRIMINAL LAW CIVIL LAW

Regulates conduct considered by the state Regulates the relationship between legal
to be prejudicial to the community i.e persons both individuals and corporations.
CRIMES.

Proceedings are normally instituted by Proceedings are instituted by one of the

Director of Public Prosecutions – only the parties - the parties may agree to settle at
DPP can terminate them. any time.

Court considers questions of innocence or Court may consider disputes arising out of
guilt. contract, property rights, employment,
family etc. it may compensate for civil
wrongs such as negligence.

Awards compensation and may prevent

The main object is to punish the guilty by repetition of unlawful behavior.
fine or imprisonment.

Courts (generally)

In Uganda, there are no particular courts for civil or criminal matters. There may
be special tribunals to handle matters such as the Industrial Court for
employment matters but generally such a distinction does not exist.

In England Criminal matters are tried in the Magistrates and Crown Courts. Civil
cases are dealt with by the County Court and the High Court.

Different Outcomes

It is important to note the different purposes underlying the criminal and civil
justice systems. The aim of the criminal trial is to determine the guilt or innocence
of the accused and to impose the appropriate penalty. In doing this the court may
be showing its abhorrence of a particular course of conduct. It may also hope to
deter others from indulging in that conduct.

In a civil action the aim may be compensation for injuries caused through the
negligence of another or for losses suffered as a result of a breach of contract.
The court may have to settle disputed claims to ownership of property, grant a
divorce or regulate rights in relation to children.

Some Branches of Civil Law

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Contract Tort Property Commercial Family Law

Law

What kinds of Negligence Classification Business, Media Marriage

agreements are of Property. Divorce and
enforceable in Separation.
law. Nuisance Companies
Nature of
Defamation ownership in Partnerships Property
The terms of land. Sole-Traders. Rights.
the agreement
between the Strict Commercial Parent and
parties. Rights in the Contracts. Child.
Liability.
property of
Resolution of
another
Commercial
Remedies for Dispute.
Trusts.
breach of
contract Competition Law.

The Origins of the Common Law

Before the 11th century there were many different systems of customary law in
England centred on local rulers, merchants and the church.

By the end of the eleventh century the King had achieved a large measure of
control over the country. This allowed the administration of justice to be
developed on a national basis through sheriffs answerable to the King. A
centralized system of courts developed which followed a common procedure.
These courts applied rules which had evolved from the existing customary rules.

This common law administered by the Court of Exchequer, the Court of Common
Pleas and the Court of the King’s Bench, was at the heart of the English Legal
System.

It was very much judge made law and it was inextricably bound up with
procedure.

Judges did not give a remedy because they felt that justice demanded it. They
provided a remedy only if there was a procedure for enforcing it. Whether there
was a procedure it was governed by a system of writs used to initiate legal
actions. These laid down the form of action and any claim had to be fitted into
this.

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At a fairly early state it had been decided that no new forms of action should be
developed. This made the law somewhat rigid although much effort was devoted
to squeezing claims within the boundaries of existing forms of action often by
means of “fictions”, a device by which the courts pretended that the issues were
different to what they really were.

Equity

Where the plaintiffs felt that they had suffered an injustice but could not obtain a
remedy, they began to approach the King as the “fount of all justice.” Gradually
he began to delegate such cases to one of his Ministers, the Lord Chancellor.
Originally the holders of this post had been clerics, spiritual advisers to the
monarch. For this reason they were sometimes referred to as “keepers of the
King’s conscience.” This led to the formation of a special court, the Court of
Chancery, which, in reaching its decisions, applied the principles of equity. These
were designed to supplement the common law and correct any shortcomings so
as to ensure justice. This led to the growth of a separate system of law called
Equity.

These parallel systems of common law and equity, each with their separate
courts, continued until the Judicature Acts of 1873-5, after which rules of
common law or equity could be applied equally by any court.

The English Legal System is a Common Law as Opposed to a Civil Law System

The term common law has a variety of meanings. Which meaning the term bears
clearly depends upon the context in which it is used. For example, common law
originally meant the law common to all of England. It also describes a system of
law which has developed through the courts.

Civil Law and Common Law Compared

CIVIL LAW COMMON LAW

Authoritative statement of main legal rules

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in the form of codes. Non-codified: variety of sources.

The role of the judge is to apply the

principle established in the code to the The judge examines decided cases and
facts of the case. follows the appropriate precedent.

No strong system of precedent although

some regard paid to previous decisions. A strong system of precedent and the
establishment of the doctrine of binding
precedent (stare decisis).
Greater concern with abstract principles.
Emphasis on the remedy available in
specific cases.
Inquisitorial.
Accusatorial system.
Judges give a collegiate decision.
A bench of judges-each judge delivers his
own decision-some may dissent.

Associated with the common law is the idea of judge-made law. This is achieved
when a dispute is brought before a court and the judge applies the law to the
facts of the dispute.

Some cases are recorded and published in law reports and these then represent
a legal source. Judges may then use these reported cases in deciding later
cases coming before the court and indeed must decide a case in accordance
with earlier cases, in certain circumstances, if the facts of the later and earlier
cases are the same or similar. The above process is known as the Doctrine of
Judicial Precedent.

The Civil Law is used to describe a different form of legal system, one which is
dominant in continental Europe. Such a system has its roots in Roman Law and
is characterized by laws in a codified form. Codification is a process whereby all
laws on a subject area are authoritatively stated in texts. These are referred to as
Codes.

Napoleon, for example, instigated the codification of French Law. The Code Civil
covers the law of persons, property, succession, contract and tort. France also
has a criminal code and as new areas of law developed, others were added, for
example, the Social Security Code.

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Unlike English Law where great emphasis is placed on the facts of cases, the
Civilian systems of law rely much more on the Codes and the principles of law
enacted therein.

The role of the judge in a civil law is different. He applies appropriate principles to
the matter in question having regard to the intention behind the text in question.

The Importance of EAC Law

As Uganda is a member of the East African Community, Ugandan Law is in an

increasing number of areas subject to EAC Law, for instance in matters of
customs, where the East African Customs Management Act, an Act of the EAC,
applies to all the Partner States. This law is influenced by the Law in other
Partner States (Kenya, Tanzania, Rwanda, Burundi – the last two have a civil
tradition). Hence Ugandan Law is being exposed to many different approaches
and concepts.

Increasingly one must be aware of the growing impact of EAC Law on Ugandan
Law.

Almost all areas of everyday life are affected by the legislative activities of the
EC, to ensure the elimination of internal barriers to trade, the development of a
common commercial policy and the move towards common social policies.

The Status of the EAC

The EAC is not itself a state but it is more than an association of those states that
subscribe to the Treaty for the Establishment of the East African Community. It is
a separate, supranational body governed by the “law of international institutions
in general and its own constitution in particular”.

In international law there are two attributes of a sovereign body: The power to
make treaties and the power to enter into diplomatic relations. The EAC has no
treaty making power under the EAC Treaty. It also has no the power to enter into
diplomatic relations and it has no such diplomatic relations with any country.

Unlike the EAC, the EC has all the above attributes. The EC then constitutes a
supranational body with certain aims, principally economic, but also social, and
this has a twofold significance. Rights and duties are created for individuals. In
the event of a conflict EC law prevails over national law.

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SELF-TEST QUESTIONS

(1) What are the sources of Ugandan Law?

(2) Distinguish between criminal law and civil law.

(3) Name three areas of law contained within the term civil law as used in
Uganda.

(4) What is meant by the term plaintiff?

(5) What are the standards of proof applicable in criminal and civil trials?

(6) Distinguish between civil law and Civil Law.

(7) Explain the meaning of the term judicial precedent.

(8) Explain how EAC Law affects Ugandan Law.

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CHAPTER 2

FINDING AND READING LEGISLATION

Read Holland and Webb chapters 2 & 3.

INTRODUCTION

This chapter contains essential background information. Pay particular attention

to the form of an Act of Parliament and EAC legislation.

The Constitution and Legislation (Acts of Parliament) are the most important
source of Ugandan Law.

The power to make laws affecting this country rests mainly with Parliament,
through the passing of Acts of Parliament (article 91 of the Constitution – the
power of Parliament to make laws shall be exercised through Bills passed by
Parliament and assented to by the President).

The laws made by Parliament are called Acts of Parliament. See article 91.

In addition, there may be a delegation of legislative powers to other subordinate

bodies in the various forms of delegated legislation. See article 79(2)– except as
provided by the Constitution, no person or body other than parliament shall have
the power to make provisions having the force of law in Uganda except under the
authority of conferred by an Act of Parliament.

Some terminology:

STATUTE An Act of Parliament.

(Section 6 of the Acts of Parliament provides that

unless the situation warrants otherwise all Statutes
in Uganda shall be styled Acts.)
BILL The name given to a prospective statute during its
passage through Parliament. When it passes
through all its parliamentary stages and is given the
Assent it becomes an Act of Parliament.

DELEGATED LEGISLATION Legislation made by some person or body under

authority of an Act of Parliament. Sometimes called
subordinate legislation. It may be made in a variety
of forms including statutory instruments and statutory

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orders.

The subject matter of this legislation tends to be

technical and detailed.

ROYAL PREROGATIVE Those powers, rights, immunities and privileges of

(Englad) the Crown which derive from the common law and
authorize a range of legislative executive and judicial
acts e.g power to make treaties. Nowadays almost
entirely exercised by the Government on behalf of
the Crown.

Does Uganda have the equivalent of the Royal

Prerogative?

Finding and Reading Statutes (Acts of Parliament)

Acts of Parliament are published by the Government Printer which is the Uganda
Printing and Publishing Corporation (UPPC), a statutory Corporation soon after
their passage and are available for sale individually. See section 13 of the Acts of
Parliament Act, Cap. 2.

In addition, an Act may be published in form of a reprint, that is, an Act which has
been amended may, with the authority of the Attorney General, be reprinted with
all the necessary additions, omissions, substitutions and amendments effected
by the amending Act. See section 18(1) of the Acts of Parliament Act, Cap. 2.

It is worth noting the following about statutes in Uganda.

 Every Act is judicially noticed as a public Act. See section 7 of the Acts of
Parliament Act.

What does judicially noticed mean? See the case of Commonwealth

Shipping Representative v. P & O Branch Services [1923] AC 191

Judicial Notice is also sometimes referred to as “judicial cognisance”

 The current Laws of Uganda, that is, the Sixth edition of the Laws of
Uganda was prepared under the authority of the Laws (Revised Edition)
Act, 1994 which was enacted for that specific purpose. The Sixth Revised
Edition contains Laws of Uganda up to the year 2000.

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 The Sixth Edition is what is referred to affectionately by lawyers as the Red

Volumes (for Acts of Parliament) and Blue Volumes (for Statutory
Instruments).

To find a statute, you must know something about citation of statutes. Citation
simply means identification of a statute.

Citation of Statutes

Generally, the citation of the short title to an Act shall be sufficient to identify the
Act. See section 15 of the Acts of Parliament Act.

 The Laws of Uganda are arranged in terms of Volumes. A collection of

Chapters is called a Volume. The Volumes are grouped in terms of subject
matter.

 The Acts of Parliament (Red Volumes) take up 13 Volumes and the

Statutory Instruments (Blue Volumes) run from Volumes 14 to 28.

 A Volume is composed of Chapters. Every Act is a Chapter or Cap. in

short.

For instance, the Interpretation Act, Cap. 3. This means that the
Interpretation Act is the third Act in the Red Volumes. The Chapters are
sequential all through Volumes 1 to 13. This means that the Chapter is the
most important way of citing an Act of Parliament.

You may also find an Act by way of Volume.

Statutes passed after the year 2000

Statutes passed after the year 2000 do not appear in the Red Volumes since the
year 2000 is the cut-off date for the laws that were incorporated in the Red
Volumes.

Acts in the Red Volumes may be cited as follows: Let us consider the Penal
Code Act.

 We can refer to it by full short title, that is the name and chapter number,
thus we say “The Penal Code Act, Cap. 120”

 We can also refer to it by name: that is Penal Code Act. This is because in
the Red Volumes it is not possible to find another Act with the name “Penal

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Code”. The simple reason is that the Revisers would have merged all the
Acts.

 We can also refer to it by Chapter, that is, Chapter 120 or Cap. 120. This is
because there is only one law with that Chapter in the Red Volumes.

Acts passed after the year 2000 are cited differently from those in the Red
Volumes. These are cited by year or number in accordance with section 11 of the
Acts of Parliament.

“11. Numbering.
(1) Acts shall be numbered consecutively in the order in which they become Acts and the
numbering shall begin afresh at the commencement of a calendar year.
(2) As soon as the President has signed a copy of an Act under section 9 or 10 or a bill
becomes an Act under article 91 or 262 of the Constitution without the assent of the
President, the clerk shall cause the number of the Act to be entered on a copy of the Act
signed or which has become law without the assent of the President, as the case may be.”

 This is how to cite an Act: for instance, the Anti – Terrorism Act, 2002, Act
No. 14 of 2002.

This means the Anti – Terrorism Act was passed in the year 2000 and it is
Act number 14 of the Acts passed in the year 2000.

Acts are numbered consecutively in the order in which they are passed
from the beginning of the year to the end of the year and the next year the
numbering starts afresh.

One has to remember the provisions of section 11 of the Acts of Parliament

Act which provide as follows in respect of numbering Acts:

 Whereas section 11 provides that it is the Clerk to Parliament who assigns

the numbers, it is in practice done by the Government Printer.

Citation of statutory instruments

Statutory instruments are the most common form of delegated legislation. They
are referred to by the abbreviation SI followed by the year and instrument
number, e.g. SI 1995/104.

For statutory instruments appearing in the Blue Volumes you will find something
like:

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“Statutory Instrument 84—7.

The Capital Markets Authority (Advertisements) Regulations.”

This is cited as the Capital Markets Authority (Advertisements) Regulations, S.I

No. 84-7.

The statutory instrument is cited by reference to the Chapter Number of the Act
under which the statutory instrument was made and the number of statutory
instrument.

In this case, the Capital Markets Authority (Advertisement) Regulations is the

seventh statutory instrument made under Cap. 84

Statutory instruments made after 2000 are cited by reference to year and
number. Let us consider following extract from the Statutory Instruments
Supplement of the Gazette:

“2012 No. 2.
The Mortgage Regulations, 2012.”

This is cited as the Mortgage Regulations, 2012, S.I No.2 of 2012.

If you wish to find such an instrument you use the year, which is the Mortgage
Regulations, 2012 or simply say S.I No. of 2012

NOTE: The year and number is very important in the citation of statutes and
statutory instruments which do not appear in the Red and Blue Volumes

Note

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 The Government printer publishes individual Acts and Sis

 The Acts may be consolidated in a Revised Edition where the Acts may for
convenience be renamed without changing substance

 On the commercial market you may also find Acts and SIs compiled by
commercial persons and Institutions such as the Law Development Centre
(LDC), High Court – these may not be authoritative and their authenticity
may be challenged

The Acts English Statutes

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Since English Law has a strong bearing on the study of law in Uganda
considering our colonial legacy, it is critical to have an idea of English Statutes.

Some Important Series of Statutes

Series Contents Spines of Volumes display

1 Public General Acts Statutes 1869 - Calendar year/chapter no.s

2 Chitty’s Annual Statutes Statutes 1802 - 1948 Regnal Year/calendar year

3 Current Law Statutes Statutes 1848 - Regnal Year/calendar year

Annotated

4 Halsbury’s Statutes of All Statutes in force Names of major subject areas

England 4th ed. arranged (e.g. Housing)
alphabetically subject

5 Statutes in Force HMSO All Statutes in force Names of major subject areas
1972 – (Loose leaf) in the UK arranged (e.g. Elections)
alphabetically by
subject.

Citation

Statutes can be referred to or “cited” in the following ways:

a) by name and year (for acts of any date)

e.g. Theft Act 1968.
b) by year and chapter (for acts passed since January 1963)
e.g. 1968, c 60.

c) by regnal year and chapter number (for acts passed before 1963)
e.g. 4 & 5 Eliz 2 c 52.

Regnal year means the number assigned to the year in which the Act was
passed counting from the first year of that Monarch’ reign.

i.e. the Poor Law Amendment Act passed in 1834 as “4 & 5 Will. IV c. 76)

Parts of an Act of Parliament

When referring to PARTS of an act one cites:

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i. the section,
e.g. the Universities and Other Tertiary Institutions Act, 2001, section 4
ii. the subsection,
e.g. Universities and Other Tertiary Institutions Act, 2001, section 4(3)
iii. the paragraph,
e.g. Universities and Other Tertiary Institutions Act, 2001, section 4(3)(a)

Title

A modern act will have a short title by which it will be referred:

e.g. Financial Institutions Act, 2004;

and a long title which explains the scope of the Act.

e.g. An Act to revise and consolidate the law relating to financial institutions; to provide for
the regulation, control and discipline of financial institutions by the Central Bank; to
repeal the Financial Institutions Act, Cap. 54 and to provide for other related matters.

Divisions

Sections: All acts are divided into sections, e.g. section 1. See section 5
of the Acts of Parliament Act

Sub-sections: The sections are further divided into sub-sections, e.g. section

1(1). See section 5 of the Acts of Parliament Act.

Paragraphs: The sub sections may be further divided into paragraphs, e.g.
section 1(1)(a).

Parts: The act may be divided into parts, e.g. Part 1.

Other Parts

Sections for particular purposes:

Sections of the act may indicate the following:

 Enacting formula

See section 4 of the Acts of Parliament – words of enactment

Extend to all sections and to any schedules and other provisions of the Act

 Interpretation Section:
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This will set out the meaning to be attached to a particular expression.

 Commencement Section:

This will indicate when the act is to come into force. See section 14 of the Acts
of Parliament Act.

 Territorial Extent:

This will indicate which part of the Uganda the act applies. Most acts apply to
the whole of Uganda. Provisions on territorial extent are only used to when
dealing with extra territorial matters such as we saw earlier in reference to the
Anti-Terrorism Act, 2002.

 Delegation or Power:

This will give the power to make delegated legislation, e.g. to the appropriate
Minister. The section may specify the form of delegated legislation to be used
(e.g. a statutory instrument) and may prescribe certain checks on its use (e.g.
it may prescribe that it is subject to an affirmative resolution passed by
Parliament).

 Definition Sections:

These define words or phrases used in the legislation.

 Sections amending or repealing other legislation.

Headings and Marginal Notes

The Parliamentary draftsman may arrange the act in Parts, each with a cross-
heading to give some indication of the contents of that Part. In addition, again to
help the end user of the legislation, he will provide head notes.

Neither headings nor head notes are strictly part of the act but occasionally the
courts have accepted they have limited use in determining the purpose of those
sections to which they refer.3

Schedules

A useful device used by the Parliamentary draftsman is to use schedules at the

ends of acts for matters of detail or information which can best be presented in a
tabular form. A particular use of schedules is to set out those earlier provisions
which have been amended or repealed by the legislation in question.

3 DPP v Schildkamp [1971] AC1

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Commencement

Statutes come into force either on the date specified in the act or, in the absence
of such a provision, on the date when it is published in the Gazette. The date of
commencement can be found immediately after the Long Title.

Read section 14 of the Acts of Parliament Act.

Sometimes the act allows the appropriate minister to bring the act into force bit
by bit, by giving him the power to make commencement instruments by way of
delegated legislation.

1. Commencement.
This Act shall come into force on a day to be appointed by the Minister
by statutory instrument, and different days may be appointed for the
commencement of different provisions.

Where to Find Delegated Legislation (English Law)

Delegated legislation may be found in the following publications:

 Statutory Rules and Orders and Statutory Instruments Revised

(for SIs before 1949);

 Statutory Instruments

(for SIs since 1949);

 Halsbury’s Statutory Instruments

(arranged in subject order);

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Index to Government Orders.

An example of a statutory instrument is The Unfair Terms in Consumer Contracts

Regulations 1999 (see below).

Finding and using EAC Law

This will part of your course work

Please write two pages on finding and using EAC law

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Findings and Using EC Law

Some Terminology

REGULATION A Community law which has general applications, is

binding in its entirety and directly applicable in all
Member States – Article 189 of European Community
Treaty 1957.

DIRECTIVE A Community law which is binding as to the result to be

achieved upon each Member State to which it is
addressed, but which leaves to the national authorities
the choice of form and methods – Article 189.

DECISIONS A Community law which is binding in its entirety upon

those whom it is addressed. Decisions may be
addressed to Member States but can equally be

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addressed to individuals and companies.

The Treaties

These form the primary source of Community law, constituting the basis of the
Community legal order. Such Treaties include the Treaty of Rome and the Treaty
of European Union (Maastricht Treaty). These are primary sources and take
priority over conflicting provisions in subsidiary Treaties and conventions in
secondary legislation. Such subsidiary agreements may be concluded between
Member States (e.g. The Convention on the Law Applicable to Contractual
Obligations 1980), or externally (e.g. the GATT arrangements).

 Treaties are normally divided into parts.

 Parts may be sub-divided into chapters.

 A Treaty is further divided into articles (the equivalent of sections of a

statute).

 The Treaties may be preceded by a preamble stating its aims. For example,
the Preamble to the Treaty on European Union declares that the states are:

“resolved to continue the process of creating an ever closer union among

the peoples of Europe in which decisions are taken as closely as possible
to the citizens in accordance with the principle of subsidiary.”

 Treaty provisions may be supplemented by various protocols which explain

or expand on the various articles or sometimes accommodate a Member
State’s desire to opt out of certain provisions4.

 Detailed provisions may also be found in annexes to the Treaties.

The text of all the Treaties, together with the protocols, annexes etc. can be
found in the Official Journal of the European Communities in the L series of that
publication. The series are arranged by volume starting in 1958 and by issue
numbered sequentially throughout the issue year.

The full text of the Treaties can also be found either in the Treaties Establishing
the European Communities or in Halsbury Statutes Vol. 50 and Supplement.

Secondary Legislation

4 Under Article 239 a protocol is an integral part of a Treaty.

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Under Article 189 the Council, Commission and Parliament can legislate to
achieve the objectives of the Treaty.

Regulations

One of the main secondary sources of community law are Regulations. A

Regulation sets out general rules. Once made, these are applicable in all the
Member States without any further action being taken and may be relied on by
an individual before national courts.

Regulations are published in the Official Journal (OJ) (L Series). Each Regulation
has a number, followed by the year.

e.g. Council Regulation 1612/68 on freedom of movement for workers within

the Community (OJ 1968 L 257/2 p.475).

The Regulation is divided into Parts, each part consisting of a number of

Articles.

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An example of a Regulation emanating from the Commission is

Commission Regulation 1251/70 which is designed to implement Article
48(3)(d) of the E C Treaty. It can be found in OJ 1970 L 142/24.

Directives

Directives are the main measures used to achieve harmonization of laws and
they may not necessarily be addressed to all Member States. A Directive is
binding, as to the result to be achieved, upon each Member State to which it is
addressed, but it leaves to the national authorities the choice of form and
methods of implementation.

Directives are referred to by year and number.

An example of a Directive is:

Council Directive 93/13 on Unfair Terms in Consumer Contracts. The

Directive is divided into a number of Articles. Note that the directive was
implemented by the UK government in the Unfair Terms in Consumer
Contracts Regulations 1994, now the Unfair Contract Terms in
Consumer Contracts Regulations 1999.

Decisions

Decisions are frequently used by the Commission in the implementation of EC

competition law. A decision may be addressed to an individual and is legally
binding without the need for any implementation by the Member States.
Decisions are published in the Official Journal series.

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Exercise 1

LEGISLATION

Find a copy of the Penal Code Act, Chapter 120 in the Red Volumes. Identify the
following parts of the Act:

Short title

Long title

Section

Sub-section

Paragraph

Part

Chapter Number

Schedule

Date of Assent

Definition Section

Interpretation Section

Substitution Section

Territorial Extent

Saving provision

Delegation of power

Head Note

Commencement date

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CHAPTER 3

USING LEGISLATION
Read Holland and Webb chapters 7 & 8.

INTRODUCTION

Ideally all statutes should be drafted in clear and simple language which the
layman can understand but a quick glance at statutory material reveals that this
is not often the case. The language used is often complex. The sentence
construction is often over-elaborate.

However hard the draftsman tries to cover every eventuality, unforeseen

circumstances will arise which the Act does not appear to cover precisely. Add to
that the fact that language is an imprecise tool to communication, it is no surprise
that ambiguities will inevitably arise.

Lord Denning once said,

“It would save judges immeasurable time and trouble if Acts of Parliament
were drafted with divine prescience and perfect clarity.”

Note:

 Once words appear in an Act they are subject to all sorts of interpretation
and argument

 They include meaning of language (translation exercise – meaning of a

particular word or phrase i.e. meaning of copyright, dishonesty, vehicle,
animal, leave (Ssekikubo case)

 Application of language to the facts

 Courts don’t ascertain the meaning of words or phrases for the sake,
meaning is ascertained in the context of the statute (we have to explore
several sources to ascertain the meaning of a word)

The Approaches to Statutory Interpretation

The judges have adopted a number of different approaches to the task of

statutory interpretation.

These are:

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 The Literal Rule;

 The Golden Rule;

 The Mischief Rule;

 The Unified Contextual Approach.

Although these are mostly called rules, it is important to note that they are not
legal rules which must be followed slavishly. Rather they are approaches. As
Lord Reid said in Maunsel v Olins.5

“They are not rules in the ordinary sense of having some binding force.
They are our servants not our masters. They are aids to construction,
presumptions or pointers.”

Nor are they mutually exclusive and are sometimes even combined in the one
judgment.

The Literal Rule

Presupposes that the words chosen by parliament clearly show its intention in
passing the Act

This approach concentrates on the actual words used and gives them their
ordinary dictionary meaning in the absence of any express definition in the Act.
As Tindall C.J. said in The Sussex Peerage Case in 1844.

“If the words of the statute are in themselves precise and unambiguous,
then no more can be necessary than to expound those words in their
natural and ordinary sense.”

To do otherwise would mean that the court is making law.

See Duport Steel v Sirs [1980] 1 WLR 142 – Per Lord Diplock – page 232

It is the starting point in most cases.

In Fisher v Bell6, Bell a shopkeeper was charged with an offence under s.1. of the
Offensive Weapons Act 1959. This made it an offence to manufacture, hire or
offer for sale, a flick knife. Bell had displayed such a knife in his shop window.
Bell’s conviction was quashed as a result of a literal interpretation being given to
the words of the statute.
5 [1975] AC 373

6 [1961] 1 QB 394

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In the law of contract it has long been held that displaying goods in a shop
window is not an offer but simply an invitation to treat, an indication of a
willingness to do business. It had not been established that Bell had gone further
and actually offered the goods for sale, the action required by the statute. The
judge conceded that it was patently absurd that such knives could not be
manufactured, sold or given but could be displayed without breaking the law.

However, the Act did not cover the situation expressly and he felt that it was not
for the court to fill in the gaps.

This clearly leads to a very odd result. Common sense suggests that if
Parliament had thought about the matter it would have included displaying knives
in shop windows as within the areas of prohibited conduct.

The literal rule can be criticized as sometimes leading to an absurd result. As

Lord Esher said in R v Judge of the City of London Court7:

“If the words of the Act are clear, you must follow them even though they
lead to a manifest absurdity.”

It can also be criticized as giving language a certainty it does not always

possess. Professor Hart, for example, has argued that the literal approach is
based on a false premise from the outset, namely that words have plain and
ordinary meanings apart from their context. The mere fact that there is a dispute
tends to suggest some ambiguity.

The dictionary may provide a range of primary meanings. It may be impossible to

tell from the context which Parliament intended.

See R v Harris (1836) 7 C & P 446

R v Munks [1964] 1 QB 304

The Golden Rule

Sometimes the courts have attempted to avoid reaching an absurd conclusion by

rejecting a literal approach to statutory interpretation and ascribing to the words
in question some secondary meaning that they are capable of bearing which will
lead to a common sense interpretation. They will do this only where there is
some ambiguity in the words being interpreted.

This approach was first recognized in Grey c Pearson8 where Parke B said that:

7 [1892] 1 QB 273
8 (1857) 6 HL Case 61

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“In construing statutes the grammatical and ordinary sense of the words is
to be adhered to unless that would lead to some absurdity or some
repugnance or inconsistency with the rest of the instrument in which case
the grammatical and ordinary sense of the words may be modified so as to
avoid absurdity and inconsistency but not further.”

The operation of the golden rule can be seen in R v Allen9. It concerned the
interpretation of Section 57 of the Offences Against the Person Act 1861 which
provided that “whosoever being married shall marry another person during the
life of the former husband or wife” commits the offence of bigamy. But how can
one marry another if already married? One can only purport to marry. If the
literal meaning of the statute was adopted it would be impossible to commit the
offence. In the light of this patent absurdity the court rejected the literal meaning
of the word and held that it really meant go through a ceremony of marriage.

This approach is useful where there is a patent ambiguity and where the words in
dispute are capable of bearing a secondary meaning. This is not always so. Nor
are there clear guidelines as to when the courts are willing to reject the patently
absurd and adopt this approach.

The Mischief Rule

A more radical approach, first adopted in Heydon’s Case in 1584, allows the
court to disregard the actual language used if this would lead to absurdity and
concentrate instead on attempting to follow Parliament’s intention in passing the
legislation.

“…for the sure and true interpretation of all statutes, these things are to be
discerned and considered

What was the mischief and defect for which the common law did not
provide?

What remedy hath Parliament resolved and appointed to cure the disease
of the Commonwealth?

The true reason of the remedy

and then the judge …..must make such construction as shall suppress the
mischief and advance the remedy.”

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The question asked by the Court is what is the problem or mischief that the
statute was designed to correct? Once that is identified the court must interpret
the statute in such a way as to deal with that mischief.

Care must be taken because at the time the rule was stated the intention of the
Act could be discerned from the Preamble of the Act – was easy for the Judges
to discover the meaning of the Act by reading the Preamble.

A good example is the Preamble to the Constitution

See Black-Clawson International Ltd v. Papierwerke Waldhof [1975] AC 591: see

page 237.

Judges were not always allowed to look outside an Act to discern meaning until
recently. Determining mischief may not be easy.

As Lord Bingham noted in R v. Secretary of State ex parte Spath Holme [2001] 1

ALL ER 195What if the Act cures more than one mischief, how is meaning to be
discerned?

See Gorris v Scott (1874) LR 9 Ex. 125

Smith v Hughes [1960] 1 WLR 830

Some argue that the Mischief rule has been subsumed in the golden rule or vice
versa

See the statements of Lord Diplock in Royal College of Nursing v. DHSS [1981]
AC 800

The Mischief Rule

Marshall v BBC [1979] 2 ALL ER 80
A Case Study

LORD DENNING M R. This case raises a short point on the interpretation of the
Representation of the People Act 1969. Mr James Marshall is the Labour candidate in
the constituency of Leicester South. There are three other candidates – Conservative,
Liberal and National Front.
On Monday 23rd April 1979 the British Broadcasting Corporation (the BBC) decided to
send out a camera unit to film all the candidates during the course of the election
campaign. They told Mr. Marshall that they were going to film all the candidates for the

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purpose of a programme which they were going to broadcast. Mr Marshall said that he
would not willingly take part in any such programme.
On Wednesday 25th April Mr Marshall was campaigning outside the East Midlands Gas
Board in Leicester. He suddenly became aware that he was being filmed by a BBC
camera crew. He protested. He said that he had not consented to take part in a
programme and that the camera crew were infringing his rights as a candidate. The
BBC crew did not accept his protest. They continued to film him.
Thereupon, Mr. Marshall issued a writ against the BBC. He asked the court for an
injunction to restrain them from broadcasting without his consent any item which he
took part in which the National Front candidate also took part. He would not mind the
BBC broadcasting a programme which contained himself and the Conservative and
Liberal candidates: but would not consent if it contained the National Front candidate as
well. The judge granted an injunction to that effect.
The BBC now appeal to this court. They say that Mr Marshall has not a veto of this
kind. It all depends on a few words in Section 9 of the Representation of the People Act
1969. Subsection (1) of that section provides:
“Pending a parliamentary or local government election it shall not be lawful for any item
about the constituency or electoral area to be broadcast from a television or other
wireless transmitting station in the United Kingdom if any of the persons who are for the
time being candidates at the election takes part in the item and the broadcast is not
made with his consent.”

It is said on behalf of Mr Marshall that the words “take part” means if he is shown on the
item. He is shown on this film. So he takes part in it.

The BBC say the contrary. They say the words “take part in” mean “actively
participating” in the item. It is only if he actively participates in the item that he has a
power of veto. That is the contest.

Looking at the mischief at which the statute is aimed, it seems to me that it is designed
to protect a person who actively participates in a programme – as in the case of a
candidate who is sitting on a panel, or is being questioned by an interviewer. A
candidate who is being interviewed on television may be cross-examined by the
interviewer and forced into a position in which he gives answers which he afterwards
regrets. It is only right that he should be protected. The programme should not be
transmitted except with his consent. Furthermore, all these programmes are edited. The
result of the editing may be that an impression is given which is quite unfair to the
person who was taking part in that way. That is the mischief at which the subsection is
aimed. It is to protect a candidate who is actively participating in a programme if he

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thinks that it shows him in a bad light.

But it seems to me that that does not apply to a candidate who has not actively
participated in a programme. A candidate who merely acquiesces in a film being taken
or in a speech being taped does not actively participate. Nor does a candidate who co-
operated by being filmed walking around the constituency. Such candidates cannot
object to the broadcast being made.

It is important to observe that the BBC has accepted a duty to be impartial in their
programmes. This is especially important during an election campaign. They are not to
favour one candidate or party more than another candidate or party. Take this very
case. If Mr Marshall is right, he can say: “Film of the National Front candidate is not to
be shown in this review of the constituency at all”. If he says that about the National
Front, he can say it about any other opposing party.

He could say to the BBC “Either them or me, but you have to choose between us”. If
they have to choose between two parties, they are ceasing to be impartial.

If Mr Marshall’s claim were correct, it would mean that the BBC would no longer be
impartial. They would be forced by this veto to become partial.

This approach is sometimes called the purposive approach. As Michael Zander 10

points out, the one advantage it has is that it looks beyond the words themselves
and places them in context by getting the court to consider why the Act was
passed – then using that knowledge to give the words under consideration the
meaning which best accords with the social purpose of the legislation.

See also Charles Onyango Obbo and Anor v Attorney General

((Constitutional Appeal No.2 of 2002)) [2004] UGSC 1 (10 February
2004); It is important to identify the objective and effect of section 50,
to the extent they are discernable. Much as counsel on both sides
exhibited commendable effort in presentation of argument, neither
addressed us on that aspect. I also have not been able to access the
contemporary legislative materials that would have helped me to
identify the 'mischief that the legislature sought to remedy in enacting
section 50. In his minority judgment in the Constitutional Court, the
learned Twinomujuni J.A., traced the origin of the false statement
offences to a 13th century English statute that created the offence of
Scandalis

10 The Law Making Process

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The Unified Contextual Approach

Sir Rupert Cross felt that the judges in practice, used a combination of these
rules in interpreting any one statutory provision. He called this a unified
contextual approach to statutory interpretation. He described it as follows:

“The judge must give effect to the [grammatical and] ordinary, or where
appropriate, the technical meaning or words in the general context of the
statute; he must also determine the extent of general words with reference
to that context.

If the judge considers that the application of the words in their grammatical
and ordinary sense would produce a result which is contrary to the
purpose of that statute, he may apply them in any secondary meaning that
they are capable of bearing.

The judge may read in words which he considers to be necessarily implied

by words which are already in the statute and he has a limited power to
add to, alter or ignore statutory words in order to prevent a provision from
being unintelligible or absurd or totally unreasonable, unworkable, or totally
irreconcilable with the rest of the statute.

In applying the above rule the judge may resort to certain aids to
construction and presumptions…”

AIDS TO INTERPRETATION

Presumptions of Statutory Interpretation

In interpreting statutes the courts apply a number of presumptions of statutory

interpretation. Such presumptions can of course be rebutted by clear evidence to
the contrary.

 Against changes in the common law:

Leach v R11;

 That Parliament did not intend to oust the jurisdiction of the courts:

Chester v Bateson12;
11 [1912] AC 305
12 [1920] 1 KB 829

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 That the Crown will not be bound, unless this is expressly stated or
necessarily implied:

Lord Advocate v Dumbarton D C13;

 Against retrospective operation:

Waddingston v Miah14;

 Penal provisions will be construed narrowly:

Sweet v Parsley15;

Rules of Language

The following “rules of language” are an aid to statutory interpretation.

Eiusdem Generis Rule

(Of the same genus or class)

This applies where a statute provides a list e.g. cars, lorries and other vehicles.
In considering whether any particular item is a vehicle in terms of the Act, the
court will look at the class listed.

In Powell v Kempton Park Racecourse Co16 the court found that s1 of the Betting
Act of 1853 did not apply to Tattersall’s ring at the race-course. The Act prohibited
the keeping of a “house, office, room or other place for purposes of betting.” The
places listed were all indoor places. Tattersall’s ring was not of the same “genus.”

Noscitur a Sociis Rule

(Words derive colour from those that surround them)

This applies where there is a list of words. The meaning of any of one word is
coloured by its associates.

Expressio Unius Est Exclusio Alterius Rule

(The expression of one thing is the exclusion of others).

13 [1990] 2 AC 580
14 [1974] 2 All ER 377
15 [1970] AC 132
16 [1899] AC 143

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The listing of one or more things of a particular class without indicating that other
similar items are included, suggests that they are excluded.

For example, a section of an act applying to land, houses and coal mines might
not apply to other types of mines.

Internal Aids to Interpretation

Certain parts of the statute may be used to aid interpretation.

i. The Long Title;

ii. Headings;

iii. Marginal Notes;

iv. Punctuation.

It should be noted that ii. – iv. are inserted by the draftsman and are not
approved by Parliament. Nevertheless, they have been used as an aid to
construction although they must not be used to change the meaning of enacted
words which are clear.

Punctuation can be some assistance.

The courts are divided as to the extent to which the short title can be used. It is
rarely likely to be of help.

DPP v Schildkamp [1971] 1 per Lord Reid

“The question which has arisen in this case is whether and to what extent it is
permissible to give weight to punctuation, cross-heading and side notes to sections in
the Act. Taking a strict view, one can say that these should be disregarded because
they are not the product of anything done in Parliament…

But it may be more realistic to accept the Act as printed as being the product of the
whole legislative process, and to give due weight to everything found in the printed
Act…”

External Aids to Construction

Historical Context

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e.g. the fact that a statute has been passed in wartime.

(See R v Halliday, ex p Zadig17).

Dictionaries and Other Literary Sources

Other Statutes

Legislative Antecedents

British Amusement Catering Trades Association v Westminister City Council18

Travaux Preparatoires

Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG19

Hansard

Traditionally the courts could not look at Hansard to help interpret a statutory
provision, even with a view to identifying the mischief the act was designed to
cure. Indeed Lord Denning was soundly ticked off by the House of Lords in David
v Johnson20 for attempting to do so.

In the context of EC legislation the House of Lords in Pickstone v Freemans plc21,

did refer to Hansard for the purpose of construing regulations made to implement
a Community Directive.

The right to consult Hansard was finally recognized by the House of Lords in
Pepper v Hart [1993] AC 593. We now have numerous examples of this practice.

Pepper v Hart

Lord Browne – Wilkinson

“I therefore reach the conclusion, subject to any question of parliamentary privilege,

that the exclusionary rule should be relaxed so as to permit reference to parliamentary
materials where:

a. legislation is ambiguous or obscure, or leads to an absurdity

b. the material relied on consists of one or more statements by a minister or other

promoter of the Bill together if necessary with such other parliamentary material as

17 [1917] AC 260
18 [1988] WLR 485
19 [1975] AC 591
20 [1979] AC 317
21 [1989] AC 66

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is necessary to understand such statements and their effect.

c. the statements relied on are clear.”

The Human Rights Act 1998 and Statutory Interpretation

By Section 3 of the 1998 Act: “so far as it is possible to do so, primary legislation
and subordinate legislation must be read and given effect in a way which is
compatible with Convention Rights.”

The courts must interpret legislation, whenever enacted, so as to ensure

compatibility with Convention Rights, if the words of the legislation are capable of
being so interpreted. If the words are incapable of being given a meaning which
is compatible with Convention Rights then primary legislation is still valid but a
court may make a declaration of incompatibility. In relation to subordinate
legislation see section 3(2)(c) and section 4(3) and (4). As to the meaning of
Convention Rights see section 1 of the 1998 Act.

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SELF-TEST QUESTIONS

1. Explain the literal approach

2. What are the main criticisms of the literal approach?

3. Explain the golden rule.

4. In R v Allen (1872) LR 1 the court had to interpret section 57 of the

Offences Against the Person Act 1861. This said “whosoever, being
married, shall marry another person during the life of the former husband
or wife is guilty of bigamy.”

Could an offence be committed if this section was interpreted literally?

What word or words must be given a secondary meaning to avoid
absurdity?

5. In what circumstances can the primary meaning be abandoned?

6. In what way is the mischief rule narrower than the golden rule?

7. When the Law Commission of England issued a report on statutory

interpretation in 1969, it described the mischief rule as a rather more
satisfactory approach then the literal and golden rules. Do you agree? Are
there difficulties inherent in this approach? If so, specify.

8. In interpreting statutes the judges say that they are seeking out and
applying the intention of Parliament. How successful do you think the
unified contextual approach is in achieving this?

9. In what circumstances can the courts look to Hansard for assistance in

interpreting an Act of Parliament?

10. What advantages and disadvantages are there in permitting the use of
Hansard in this way?

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EXERCISE 2

Interpreting an Act of Parliament and the Impact of Case Law

As you have seen there are various “rules” and aids that may be employed in the
interpretation of statutes. In formulating an argument concerning the meaning of
a statute the “rules” and aids should be used to persuade a court that your
interpretation is correct. The following exercise requires you to consider a limited
point of statutory interpretation. Consult your copy of the Unfair Contract Terms
Act 1977 and read the following three cases: R & B Customs Brokers v UDT
[1988] 1 All ER 847, Davies c Sumner [1984] 3 All ER 831 Stevenson v Rogers
[1999] QB 1028.

Legal Background

Quite frequently a party will seek to exclude liability that may arise under a
contract. The law recognizes that where an exclusion clause is imposed and not
the product of negotiation and choice there is potential for unfairness. In
consequence, Parliament passed a statute, the Unfair Contract Terms Act 1977,
to deal with this issue. The Act does not apply to contracts. This may be seen in
s6(2) which only applies where a person is “dealing as consumer”.

Questions

1. Under s6(2) what is the effect of a person “dealing as consumer”?

2. How does the 1977 Act define the phrase “dealing as consumer”?

3. Read R & B Customs Brokers v UDT [1988] 1 All ER 847 and answer the
following questions:

(a) What are the legal issues in this case?

(b) State the material facts relating to the issue arising from
interpretation of the Unfair Contract Terms Act 1977.

(c) Why does the court consult Davies v Summer [1984] 3 All ER 831,
which concerns the Trade Descriptions Act 1968, when it is accepted
that “the legislative purposes of the two Acts are not the same”?

To what extent may judges consult other statutes as an aid to the

interpretation of a statute?

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(d) Is the court in R & B Customs Brokers v UDT bound by the decision
in Davis v Summer?

(e) What test is formulated by the court to answer the question of what
is meant by the phrase “in the course of a business”?

(f) What was the decision of the court?

(g) If the “literal rule” is applied to the interpretation of the phrase “in the
course of a business” would this affect the decision reached by the
court in R & B Customs Brokers v UDT?

(h) The purpose of the 1977 Act appears to be the protection of

consumers as they are generally in a weaker position as against
businesses. If a purposive approach to interpretation is adopted
what meaning should be given to “in the course of a business”?

Identify the sources from which the purpose of a statute may be

drawn.

(i) Return to this question once you have read Chapter 6 on Judicial
Precedent. In Dillion LJ’s judgment his Lordship comments upon the
situation had the plaintiff company been dealing otherwise than as a
consumer. What is the status of such remarks and what is the
importance of such status?

4. Read the case of Stevenson v Rogers [1999] QB 1028 and answer the
following questions:

a) What are the legal issues in this case?

b) Why did the judge in the High Court find in favour of the defendant?

c) What was the decision of the Court of Appeal?

d) Why did the Court of Appeal consider itself not to be bound to follow
the decisions in Davis v Summer and R & B Customs Brokers v
UDT?

e) How were the decisions in the cases of Davis v Summer and R & B
Customs Brokers v UDT distinguished?

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CHAPTER 4

FINDING AND READING CASES

Read Holland and Webb chapters 2 & 5.

INTRODUCTION

In Ugandan Law a major source of law is case law, the principles laid down by
the courts in decided cases. As will be seen, there is in Ugandan Law a system
of judicial precedent where the courts within certain limits are bound to follow
earlier decisions.

Such a system of precedent can only operate where there is a well established
system of law reporting.

The origin of law reporting can be found in Year Books containing collections of
decisions, the earliest around 1285. Fuller accounts began to be produced.
These private or nominate reports were produced mainly by private reporters
and bore their names.

Most of these reports were reprinted in either the 178 volumes of the English
Reports or the 152 volumes of the Revised Reports.

The present system of law reporting stems from 1865 and from 1870 has
operated under the aegis of the Incorporated Council of Law Reporting for
England and Wales. This is augmented by various official and commercial series.

The reference to a case in the law reports is known as a citation.

Finding a Case

A well known contract case is Carlill v Carbolic Smoke Bell Co. [1893] 1 QB 256.

The parties to the case known as the plaintiff and defendant respectively. The
letters QB stand for Queens Bench Division, and refer to a frequently used series
of the law reports.

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Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256

Plaintiff Defendant Citation

The Citation refers to the relevant law report using an abbreviation, together with
its volume and page reference.

[1893] I QB 256
Year Volume Number Abbreviation Page Number

Where the date is surrounded by a square bracket […], the date is an essential
part of the citation, as it signifies that the volumes are arranged on the shelf by
year. The volume number is used only to distinguish the various published in that
year.

e.g. [1968] AC 269

where round brackets are used (…), the date is not essential but the volume
number is, i.e. the arrangement on the shelf is by volume number, not by date.

e.g. [1980] Cr. App R. 193

Each series has its own abbreviation. Here are the most common of these:

The Law Reports

(By convention these are the preferred series to use in court)

Appeal Cases AC

Chancery Division Ch

Family Division Fam

Queens Bench QB

(Kings Bench when a King is on the throne)

The Weekly Law Reports WLR

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EU Reports

Common Market Law Reports CMLR

European Court Reports ECR

Commercial Reports

The All England Law Reports All ER

Specialist Reports
(Some examples only)
Criminal Appeal Reports Cr App R
Industrial Relations Law ICLR
Industrial Tribunal Reports ITR
Road Traffic Reports RTR

In addition, summaries of recent cases can be found in The Times, The

Guardian, The Independent and The Financial Times and in the various
professional journals such as the Criminal Law Review, the Law Society Gazette
and the New Law Journal.

There are various indexes available to obtain the citation of a case such as the
Current Law Citator. Particular series of law reports such as the All England have
indexes.

It is always important to check whether a case has been overruled or

distinguished in subsequent case. A simple way of checking is to consult the
Current Law Case Citator.

Because the courts have been recognized on several occasions the names of the Law
Reports have changed over the years. Earlier abbreviations included:
Probate Division P 1875 - 1972
Exchequer Division Ex D 1875 - 1890

Read Learning Legal Rules pp56-64 which explains the features of an

English law report. When you have completed this task read pp64-71 which
explain the features of European Community Law Report.

EXERCISE 3
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READING A CASE

Merritt v Merritt [1970] 2 All ER 760

1. Read the facts of the case and state what you consider to be the material
facts.

2. (a) From which court is this case reported?

(b) From which court had the appeal come?

3. Can you explain the titles of the judges

- Lord Denning MR

- Widgery and Karminski LJJ

4. What was the outcome of the appeal?

5. Was the decision unanimous?

6. In the paragraph beginning “Held” – what do you think it means when it

says that Balfour v Balfour, Gould v Gould and Jones v Padavatton were
distinguished?

7. What arguments were put forward on behalf of Mr Merritt to support his

appeal?

8. What presumption normally applies where agreements are made between

husband and wife?

9. In what other relationships does this case indicate that the same
presumption might apply?

10. As a result of the appeal being dismissed, what is the eventual outcome for
Mrs Merritt?

Read Learning Legal Rules pp68-77 which explains the features of an English
law report. When you have completed this task read pp77-84 which explains the
features of a European Community report.

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CHAPTER 5

USING CASES

Read Holland and Webb chapter 6.

INTRODUCTION

In English Law, under the doctrine of judicial precedent a judge must determine
the case before him in accordance with the principles of law established in
previous cases. In this way an established principle of law may be extended to a
novel situation raised by a dispute. Alternatively it may be that the earlier case
may be distinguished as giving rise to a different legal situation to the case in
question.

Relationship between Legislation and Case Law

Parliament is the supreme law maker and the law made by the judges is
subservient to legislation. Hence judges cannot change law made by Parliament,
but Parliament may change law made by judges. Judges do, however, interpret
laws made by Parliament. This occurs when a dispute arises on a point of
statutory interpretation.

Some areas of law are largely the creation of the courts. The law of contract and
tort is, for example, largely found in case law where judges will have applied
principles are in need of clarification or a difficulty has arisen in the application of
these principles, or, indeed, if there are gaps in the law, Parliament may legislate
to deal with the problem.

For example, when it became clear that the case law made by the judges in
relation to exemption clauses was inadequate, Parliament responded by passing
the Unfair Contract Terms Act 1977.

Unlike Parliament which may create new legal rules and make radical changes to
existing principles. Their task is to interpret and develop the law in the light of the
case before them. It has been said that if law making is seen as a tapestry,
Parliament may create the picture but the judges are confined to inserting
stitches here and there as cases come before the courts.

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Judicial Precedent Explained

When a case comes before the court there are two tasks to be performed:

The determination of the issue raised by the parties

This may be a finding of guilt in a criminal trial or a finding of liability in a cil

action. The doctrine of res judicata provides that the decision reached on the
facts of any case is binding only on the parties in that case, subject to any rights
of appeal.

A statement of a principle law

In arriving at his decision the judge must explain how the law applies to the facts.
The principle of law will be used in reaching a decision on the facts.

This principle of law is an integral part of the doctrine of judicial precedent. If in a

case, a factual situation arises which is similar to the factual situation in a
previous case, then, within limits, the judge in the latter case must apply the legal
principles derived from the previous case. In this way like cases are decided alike
and an element of certainty and predictability is incorporated into legal actions.

Thus the operation of judicial precedent is dependent on:

 the identification of the principle of law which can be derived from a case. This
is known as the ratio decidendi.

 the development of a hierarchy of courts. Judges are bound by decisions of

courts above them in this hierarchy. This is known as the doctrine of stare
decisis.

Ration Decidendi

The principle of law which may be derived from a case is termed the ratio
decidendi. The ratio is the only binding part of the case. It should be noted that
the decision is not binding nor are the findings of fact22.

The courts have never provided an authoritative definition of the term RATIO
DECIDENDI. Cross has defined it as:

“any statement of law on which judge expressly or implicitly based his

decision.”

Zander suggests that it is:

22 Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743

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“a proposition of law which decides the case in the light of or in the context
of the material facts.”

Another academic, Dr Goodhart, has suggested a test for discovering the raio
decidendi of a case. He says that it is to be found by identifying the facts treated
by the judge as material and the decision reached on these facts.

Material Facts

In practice it is not always easy to determine which facts are considered to be

material in any case. How widely or narrowly are these to be framed?

For example in the well known case of Donoghue v Stevenson 23, the facts
concerned a manufacturer’s possible liability for damage by a customer drinking
a bottle of ginger beer which he had produced, which allegedly contained a
decomposed snail. The House of Lords imposed liability on the manufacturer. Did
this relate to the manufacture of ginger beer or any drink or any comestible or
indeed, to any product? Depending on the choice of material facts the ratio may
be framed widely or narrowly.

As a result its future application will vary. If the fact that it was a drink is
immaterial, the ratio will apply to any foodstuff. Stated as its widest, it might apply
to any product manufactured and used. It might then apply for example, to
electrical goods or clothing which cause some sort of harm to the customer.

Finding the Radio

The above definitions and tests are useful in providing pointers but none are
entirely satisfactory. Goodhart’s test, for example, is flawed in several respects.
How does one determine which facts are material? It pays too little regard to later
cases and the manner which the ratio is subsequently developed. It has to be
accepted that the process of finding the ratio is inherently flexible and one is
often presented with a choice of rule.

A Practical example

A well known contract case decided by Lord Denning in the Court of Appeal is Entores

23 [1932] AC 562

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v Miles Far East Corporation24.

It concerns an international contact. The problem facing the court was whether a writ
could be served outside the jurisdiction of the United Kingdom. In order to do this it had
to be shown that the contract had been made within the jurisdiction. In essence the
question for the court was where the contract was made. The facts were outlined by
Lord Denning.

“The plaintiffs are an English company. The defendants are an American corporation
with agents including a Dutch company in Amsterdam. The plaintiffs say that the
contract was made by Telex between the Dutch Company in Amsterdam and the
English company in London… Each company has a teleprinter machine in its office and
each has a Telex number. When one company wishes to send a message to the other,
it gets the Post Office to connect up the machines. Then a clerk at one end taps a
message on his machine just as if it were a typewriter and it is instantaneously passed
to the machine at the other end which automatically types the message onto the paper
at that end.

There was a completed contract by which the defendants agreed to supply 100 tons of
cathodes at a price of £239 a ton. The offer was sent by Telex from England offering to
pay £239 a ton for 100 tons, and accepted by Telex from Holland. The question is
where the contract is made”.

Lord Denning concluded that the contract was made in London.

Lord Denning’s Reasoning

“When a contract is made by post it is clear law throughout the common

law countries that the acceptance is complete as soon as the letter is put
in the post box and that is the place where the contract is made. But there
is no clear rule about contracts made by telephone or by telex.
Communications are virtually instantaneous and stand on a different
footing.

The problem can be solved by going in stages…take a case when two

people make a contract by telephone. Suppose that I make an offer to a
man by telephone and in the middle of his reply the line goes “dead” so
that I do not hear his words of acceptance. There is no contract at that
moment. The other man may not know the precise moment at which the
line failed. But he will know that the telephone conversation was abruptly
broken off because people usually say some things to signify the end of
24 [1955] 2 QB 327

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the conversation. If he wishes to make a contract, he must therefore get

through again so as to make sure that I heard… The contract is only
complete when I have his answer accepting the offer.

Take the telex. Suppose a clerk in a London office taps out on the
teleprinter an offer which is immediately recorded on a teleprinter in a
Manchester office, and a clerk at that end taps out an acceptance. If the
line goes dead in the middle of the sentence of acceptance, the teleprinter
motor will stop. There is no contract. The clerk at Manchester must get
through again and send his complete sentence. But it may happen that the
line does not go dead, yet the message does not get through to London.
Thus the clerk at Manchester may tap out his message of acceptance and
it may not be recorded in London because the ink at the London end fails
or something of this kind.

In that case the Manchester clerk will not know of the failure but the
London clerk will know of it and will immediately send back a message “not
receiving”. Then, when the fault is rectified, the Manchester clerk will
repeat his message. Only then is there a contract. If he does not repeat it,
there is no contract, it is not until his message received that the contract is
complete.

In all the instances I have taken so far, the man who sends the message of
acceptance knows that it has not been received or he has reason to know
it. So he must repeat it. But, suppose, that he does not know that the
message did not get home. He thinks it has. This may happen if the
listener on the telephone does not catch the words of acceptance, but
nevertheless does not trouble to ask them to be repeated or the teleprinter
fails at the receiving end, but the clerk does not ask the message to be
repeated so that the man who sends as acceptance reasonably believes
that his message has been received. The offeror in such circumstances is
clearly bound because he will be stopped from saying that he did not
receive the message of acceptance. It is his own fault that he did not get it.
But if there should be a case where the offeror without any fault on his part
does not receive the message of acceptance yet the sender of it
reasonably believes it has got home when it has not then I think there is no
contract”.

The Judgment Analysed

In order to decide how this case is to be used subsequently in the development

of the law one must analyse Lord Denning’s judgment.
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What were the material facts of the case?

It could be argued that the material facts identified by Lord Denning were:

 goods are to be sold;

 parties communicate by Telex;

 there was an offer and an acceptance;

 the acceptance was sent from abroad and received in England.

In assessing the material facts of a case it is essential always to remember the

issue that the court is being asked to decide. The material facts are those facts
which are derived from the particular circumstances of the case before the court
and are necessary to allow the court to decide the issue raised when the relevant
law is applied.

In considering the material facts it must be borne in mind that it is necessary to

identify an appropriate level of generality. Thus it must be considered whether it
matters that the defendant is an American company with agents in Holland.
Surely it is sufficient to say that it operates outside the jurisdiction of this country.
Does it matter that the goods are cathodes and the price is £239 per ton? It is
sufficient to speak of goods.

The Ratio Decidendi

The ratio is not the reason for the decision. Rather it provides an answer to the
legal issue which arises from the material facts. The legal issue concerned the
place where the contract was made. The ratio which can be derived from Entores
could be formulated thus:

“Where a contract is made by telex (and other forms of instantaneous

communication?) the acceptance, and therefore the contract, is only
complete on receipt of the acceptance”

The Development of the Ratio

The statement of the ratio in Entores was extracted from Lord Denning’s
judgment. Our understanding of the ratio may, however, be refined by examining
subsequent cases. As Zander says:

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“The ratio is not fixed but a formula that is capable of adjustment according
to the force of later developments.”

In Brinkibon v Stahag Stahl Und Stahlwarenhandlesgesellschaft m.b.h. 25, the

question was as in Entores; where was the contract made? Was it within the
jurisdiction?

The court affirmed the ratio as applying to communications of acceptance by

Telex. It also made it clear however, that it did not necessarily apply to all such
communications.

Wilberforce indicated that while the basic principle was not to be doubted as a
general rule, the progress of communications necessitated that a flexible
approach be adopted.

“No universal rule can cover all [such] cases they must be resolved by
reference to the interests of the parties, by sound business practice and, in
some cases, where the risks should lie…”

Thus the ratio stated above has now been modified.

In General where a contract is made by telex, the acceptance and therefore the
contract is only complete upon receipt of the acceptance.

Summary

The following points should be borne in mind looking for the ratio of a case:

 A judge will usually justify the decision reached by giving reasons. These
do not form part of the ratio;

 If a principle of law, on which the conclusion of the court is based, is set

forth in the judgment then this must be the ratio (subject to the impact of
later cases – see below); if no principle of law is explicitly stated, then the
ratio must be found using the guide-lines outlined here;

 It is essential to consider which facts are treated by the court (expressly

or impliedly) as material and immaterial;

 In considering the issue of material facts it is important to consider how

far one can generalize or categorise such facts (see above example in
Donoghue v Stevenson);

25 [1983] 2AC 34

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 It is important to bear in mind, what the court is being asked to decide i.e.
what is at issue; it may be necessary to look at the arguments and
pleadings in order to determine the issue or question before the court.

If there are later relevant cases, it is important to consider the impact of these on
the “presumed ratio” of the case under consideration.

It is to be remembered that the main problem in identifying ratio is the inherent

flexibility of the process. As Twining and Miers 26 state, one outstanding
characteristic of rules derived from the cases is that they are rules not in a fixed
verbal form, unlike rules in statutes which are stated clearly.

A Divided Court

Entores was decided by the Court of Appeal. Three judges heard the case. They
were all in agreement. This is not always the case. The ratio decidendi of a case
will be found by analyzing the judgments of those judges supporting the majority
decision.

Of course a group of judges may reach the same decision but may come to it by
a variety of routes. They may base their decision on widely different grounds. In
R. v Inland Revenue Commission. Ex p National Federation of Self Employed
and Small Businesses27, the House of Lords had to decide who had “sufficient
interest” to challenge alleged illegal behavior by the Inland Revenue. A majority
of the House found that the applicants lacked the necessary interest to be heard
by the court. They all based that decision on different propositions of law. One is
then faced with a choice of ration.

Obiter Dicta

Statements if law made obiter dicta, are statements that are not necessary to
decide the issue before the court. In many instances such statements arise as
the judge speaks of hypothetical situations which do not arise in the case in
question. For example in Entores, Lord Denning discussed the situation where
contracts were made by telephone, where a telex line had gone dead or the ink
on a printer had gone dry and the message had not been received. Such obiter
statements do not form part of the ratio and will not be binding in subsequent
cases.

The use and bounds of Precedent

26 Doing Things with Rules
27 [1982] AC 617

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In interpreting and using cases it is important to be aware of the limits within

which judges and lawyers operate. The main limitations, are:

 The extent to which a precedent is binding. This is determined by the doctrine

of stare decisis described below;

 Obiter statements are simply persuasive.

The doctrine of precedent is not so strict that it leaves no room for manoeuvre.
There are many ways in which a rule in a case may be challenged or weakened.
For example, Twining and Miers identify a number of techniques for avoiding a
precedent:

 It involved a faulty interpretation of other prior cases;

 It was a decision given per incuriam;

 It is irreconcilable with prior or subsequent decisions;

 It has been subsequently overruled or doubted by other judges.

Other factors tending to weaken the authority of a precedent are, for example:

 The deciding court was of low authority;

 The scope of the decision is unclear;

 The deciding court was particularly influenced by special considerations;

 Social conditions have changed since the ratio decidendi was establish;

 The report of the precendent is unreliable;

 The decision has been criticized by legal writers.

The Doctrine of Stare Decisis

The doctrine of stare decisis requires courts to follow precedents set by courts
above them in the hierarchy of the courts when considering cases giving rise to
the same legal questions. This is to ensure that like cases are treated as like.
They are not bound by decisions which are not precedents for the case in
question or are decisions of courts lower in the hierarchy.

The Hierarchy of the Courts

In outline the hierarchy of the courts is as follows:

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 In relation to domestic English Law (that is excluding European Community

law) the House of Lords is the highest court; its decisions bind all courts
beneath it;

 Next stands the Court of Appeal, Civil and Criminal Divisions, bound by the
House of Lords and binding all courts below;

 The Divisional Court of the High Court is bound by the House of Lords and the
Court of Appeal, Civil and Criminal Divisions, and binds all courts below;

 The High Court is bound by all the courts above and binds the Magistrates
Courts and County Courts;

 The Crown Court is bound by the House of Lords, the Court of Appeal and the
Queen’s Bench Divisional Court (this latter deals with criminal appeals);

 The Magistrates’ Courts and County Courts are bound by all the above courts,
except the Crown Court, but their decisions are not binding.

(see Chapter 1 Learning Legal Rules for further details concerning the Court
Structure.)

The House of Lords

Its decision bind all courts beneath it and until 1966 it considered itself bound by
its own earlier decisions. It then issued a practice statement announcing a radical
change of policy.

PRACTICE STATEMENT (JUDICIAL PRECEDENT)

Their Lordships regard the use of precedent as an indispensable foundation upon which
to decide what is the law and its application to individual cases. It provides at least
some degree of certainty upon which individuals can rely in the conduct of their affairs,
as well as a basis for orderly development of legal rules.

Their Lordship nevertheless, recognize that too rigid adherence to precedent may lead
to injustice in a particular case and also unduly restrict the proper development of the

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law. They propose therefore to modify their present practice, and while treating former
decisions of this House as normally binding, to depart from a decision when it appears
right to do so.

In this connection they will bear in mind the danger of disturbing retrospectively the
basis on which contracts, settlements of property and fiscal arrangements have been
entered into and also the especial need for certainty as to the criminal law.

This announcement is not intended to affect the use of precedent elsewhere than in this
House.

The circumstances in which the House of Lords will use its power to depart from
its own previous decisions are as follows:

 The House of Lords will use its power to depart from its own previous
decisions sparingly. This is to avoid uncertainty being created in the law;

 Merely because a later House of Lords believes that an earlier House of Lords
decision is wrong does not mean that it will depart from it. The House will only
be prepared to reconsider where there is a broad issue of justice or public
policy or legal principle;

 They might think it right to depart from a precedent which was influenced by
conditions which no longer prevail.

An example of the House of Lords departing from a previous precedent was seen
in Murphy v Brentwood District Council 28, where the earlier decision in Anns v
Merton London Borough Council29 was overruled. It was considered that the
decision in Anns was wrong in principle, extending liability in the tort of
negligence for acts to economic loss when it should only extend to physical injury
to people and property.

(To claim for economic loss in the tort of negligence a claim must be brought
within the rule in Hedley Byrne & Co Ltd v Heller and Partners Ltd 30 as arising
from a negligent misstatement)

If social ad physical conditions change then a new rule may be appropriate.

28 [1990] 3WLR 414

29

30 [1964] AC 465

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(See Herrington v British Railways Board31, in which the House of Lords departed
from Addie v Dumbreck)

The Court of Appeal

Civil Division

The Court of Appeal in Young v Bristol Aeroplane Company32 held that it was
bound by its own previous decisions, subject to certain exceptions:

 Where there are two conflicting decisions the Court of Appeal may chose
which to follow;

 It must follow any subsequent House of Lords decisions;

 Where the decision is given per incuriam;

 An interlocutory decision of two judges does not bind a subsequent court

(interlocutory means that the decision does not determine the dispute. It may,
for example, be the granting of an interim injunction pending the hearing of a
case).

In the 1970s Lord Denning tried to escape from the rules of precedent applying to
the Court of Appeal (Civil Division). He argued that the Court of Appeal should
apply a similar approach to the House of Lords in its practice statement.

“Whenever it appears to this court that a previous decision was wrong, we

should be at liberty to depart from it if we think it right to do so.”

This was rejected by the House of Lords in Davis v Johnson33 where it was
clearly stated that the Court of Appeal (Civil Division) was bound by its previous
decisions subject to the exceptions noted above, thus affirming the view in it was
clearly stated that the Court of Appeal (Civil Division) was bound by its previous
decisions subject to the exceptions noted above, thus affirming the view in
Young’s case.

Court of Appeal (Criminal Division)

It is also bound by the rule in Young’s case. As with its predecessor, the Court of
Criminal Appeal, it does not regard itself bound by its own previous decisions in
circumstances where the law has been misapplied or misunderstood34.

31 [1972] AC 877
32 [1944] KB 718
33 [1979] AC 264

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High Court

The High Court may sit as:

 a Divisional Court;

 a Court of First Instance.

The rules of precedent differ in each case.

Divisional Court

When sitting as a divisional court, the High Court regards itself as bound by
decisions of previous divisional courts subject to the exceptions in Young’s case.
Where the Queen’s Bench Divisional Court is hearing criminal appeals
originating from decisions of magistrates courts, it will refuse to follow a previous
divisional court if the law has been misapplied or misunderstood in the previous
case. This is the same approach as that adopted by the Court of Appeal
(Criminal Division).

In relation to applications for judicial review the Queen’s Bench Divisional Court
does not consider itself bound by its previous decisions.

High Court at First Instance

The decisions of that court are not binding on any High court judge but lower
courts are, of course, bound. However decisions of the High Court or of courts of
equal jurisdiction are treated as highly persuasive.

Crown Court, Magistrates’ and County Courts

Decisions of these courts are not binding.

The Judicial Committee of the Privy Council

Its decisions are of persuasive authority in English law.

The European Court of Justice of the European Communities

Regard must be had to decisions of the European Court of Justice (ECJ). Those
decisions are part of English law. However the ECJ itself adopts the continental
practice in not treating previous decisions as strictly binding, although the ECJ
does build up a body of case law which will govern its future decisions. A ruling of
the ECJ incorporated into an English decision becomes subject to the English
doctrine of precedent.
34 R v Taylor [1950] 2KB 368 and R v Gould [1969]2QB 65

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The European Court of Human Rights

By section 2 of the Human Rights Act 1998 a court or tribunal in determining a

question which arises in connection with a Convention Right (see section 1 for
the meaning of this term) must take into account any relevant Convention
decision.

Whilst the British courts are obliged to consider relevant Convention decisions,
they are not bound by them in a strict sense. The European Court of Human
Rights is not strictly bound by its own previous decisions.

Avoiding Precedents

The Doctrine of Stare Decisis ensures that the law develops in an orderly way
and promotes certainty. However, there are number of methods whereby the ratio
decidendi of a case may be avoided.

Reversing

When a higher court overturns the decision of a lower court in the same case it is
said to have reversed that decision. You should always check that you are
reading the report of the final hearing of a case. This may be checked by
consulting Current Law Case Citator.

Overruling

When a higher court overturns a principle which was enunciated by a lower court
in an earlier case, it is said to have overruled that case. The effect of this is that
the precedent created by the earlier case no longer is law. However, the report of
the earlier case will still appear in the law reports and it is important to check
before reading a case that it has not been overruled. This may be done by
consulting the Current Law Case Citator.

Distinguishing

In some cases, the court will say that a certain precedent does not apply to the
case it is deciding because of a difference in the facts of the two cases. The
precedent remains valid, and so has not been overruled: it has merely been
distinguished in that particular case.

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EXERCISE 4

USING A CASE

Read Pharmaceutical Society of Great Britain v Boots Cash Chemists

(Southern Ltd [1952] 2 QB 795 and consider the following questions:

1. Identify the LEGAL problem faced by the court.

2. What are the MATERIAL FACTS of the case (i.e. the facts the court

considers relevant to the decision)?

3. What did the court DECIDE?

4. For what REASON did the court arrive at the decision if did?

5. In light of your answers to the above what do you think is the ration

decidendi of the case?

(Professor Cross describes the ration decidendi of the case as “any rule of

law expressly or implied treated by the judge as a necessary step in

reaching his conclusion, having regard to the line of reasoning adopted by

him, or a necessary part of his direction to the jury”).

6. In which court was the judgment given?

(Once you have discovered the ratio of a case it is necessary to assess its
importance. Always note the court giving the decision. If the ratio is that of
the House of Lords then all courts beneath it will be bound by the ratio; if
the decision is that of the High Court only the County Courts and
Magistrates’ Courts will be bound by applicable precedents. Note a
decision of a High Court judge does not bind later High Court Judges).

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EXERCISE 5

Reading a Judgment of an Appellate Court

As has been previously seen when reading a case it is important to identify the
points of law decided by the court. With appellate courts as there may be several
judges sitting there may be several judgments delivered. The judges may all
agree as to the decision to be reached in a case, but may differ in their
reasoning; or the judges may disagree as to both reasoning and decision and
dissent one from the other. The ratio decidendi of such a case is to be found
identifying a majority view drawn from the reasoning adopted, if there is a
majority view.

Read Johnstone v Bloomsbury Health Authority [1991] 2 All ER 293 and answer
the questions below.

Legal Context of the Case

As you will discover in the unit on Contract Law obligations may arise from both
express and implied terms of a contract. Express terms are agreed orally or in
writing between the parties whereas implied terms may arise, for example, by
operation of law. In employment contracts the law implies a term that the
employer will exercise care in respect of an employee’s health and safety,
Wilsons & Clyde Coal Co Ltd v English [1937] 3 All ER 628.

Questions
1. What was the Court of Appeal being asked to decide? Identify the legal
issue(s) before the court.
2. Identify the material facts of the case.
3. (a) Explain whether or not s2(1) of the Unfair Contract Terms Act
1977 may apply to the issue raised in this case.
(b) Does the argument based on public policy find favour with the Court
of Appeal? Give reasons for your answer.
4. In relation to the issue of whether or not the implied term of the contract
prevailed over the express term to what extent were the judges in
agreement?
(a) Did Browne-Wilkinson VC agree with Stuart-Smith LJ?
(b) What position did Legatt LJ adopt?
5. Identify the ratio decidendi of this case?

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EXERCISE 6

Case Law and the Interpretation of Statutes

You have been that statutes cannot be read in isolation once the courts have
given guidance as to the meaning of the words used by Parliament. using the
knowledge and skills you have so far acquired read the following materials and
answer the questions set.

Legal Background
Generally, English law does not require contracts to be made in writing, any form,
oral, written or a mixture of both, will suffice. However, contracts for the sale of an
interest in land require that formalities be satisfied as set out in s2 of the Law of
Property (Miscellaneous Provisions) Act 1989.

Read s2 of the Law of Property (Miscellaneous Provisions) Act 1989;

McCausland v Duncan Lawrie [1996] 4 All ER 995;

Record v Bell [1991] 4 All ER 471;

Wright v Robert Leonard (Developments) Ltd [1994] EGCS 69.

Questions

(a) Outline the requirements under the Act for the valid information of a
contract for the sale of land.

(b) Section 2 applies to the making of a contract, it does not seem to apply to
a variation of a contract for the sale of land already made. In consequence,
could a variation be made orally and still be enforceable? Explore this
issue indicating any arguments supporting the correct interpretation of s2.

(c) Where the continued existence of a contract is made conditional upon the
verification of statements made by a seller, must his “condition” satisfy the
requirements of s2?

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(d) If an agreement is reached orally for the sale of land and furnishings, is it
fatal to the validity of the contract that the written document does not
include provisions as to the furnishings?

(e) To what extent are the courts consistent in their approach to the issue of
inclusion of terms not appearing as part of a written contract?

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