: LEGAL METHOD 1

FOR CL

MR; NZIKU CLETUS

Lecturer of Laws.
INTRODUCTION TO LEGAL METHOD

Legal method is the

What is study which deals
The General Objective
of this study is to
Legal with the techniques
of handling
impart students with
skills of handling legal
Methods? authoritative legal
materials.
materials.
This is one of the subjects It is in this subject where a
which introduces beginners beginner in law will be
in law to the theory and exposed to the entire
techniques employed in law. concepts of “what is law.”
Legal Basic
method techniques in
acquiring
focuses knowledge in
on: legal writing

How to Handling of
various
find legal sources of
materials. law.
Generally, Legal method
helps a law student to
understand various legal
rules and the general
relationship between law
and society.
THE CONCEPT OF LAW
What is Law?

The most fundamental questions which any

beginner in law must ask include:

What is Law?

Why Law?

How Law is made?

Who makes Law?

Where to get Law?

• Law as a concept has been defined by many legal scholars depending
on focus of author’s opinions and views.
 The definition of the concept “Law” beer between two extreme
positions. First, its coercive character and second is its social
acceptance, the actual observance of law by the community to which
it is addressed.
 The coercive character rest on:
 the source of authority(sovereign command) and
 the enforceability by sanctions

Read: Austin and Kelsen school of thought on the concept of law.

Cont…

Law can also be defined by looking at “institutional”

sources of law. The Institutional sources are:

The Parliament

Statute Law

Delegated Legislation

Informal Rules
Cont…

The Courts
• Develop case law.
Cont…

Law can further be defined as

a system of rules. It guides and
directs our activities in much
of day to day life.
Cont…

The purchase we
make in shop

Our conduct at
work/university

Our relationship
with state
The relationship
between states
Relationship
between two
nationals
Classical definition of Law by legal Scholars
 Idealistic Scholars:
(a) Natural law position
They believe that men is not responsible for law
making. According to them law depends from
supernatural God.
(b)Positivist scholars
Believe that law are made by those in powers.
They make law to rule those who are not in
power.
Cont…

• Materialist Scholars
Based on Marxist school of thought. Believe
that, in order to understand the concept law, it
is important to examine the social, economic
development of the society. For instance: in
primitive mode of production there was nom
law. During Feudalism there was law.
Cont…

Law is made
Generally by the state
Law is a set • Law is
of RULES Characteristic normative in
which features of nature( Binding
regulate Law: )
• Permissive
human social • Prohibitive
behavior. • Directive
 Functions of Law
• Structuring the public (state) power:
Provide for the structure of the state and
control the exercise of power. Article 4 of the
CURT, 1977 structure Tanzania in three organs
namely:
 The Executive
 The Judicially
 The Legislature
Cont…

• Facilitate and regulate private relations:

o Private economic matters
Law prays a major role to help the system
work. Tanzania, currently is under capitalist
economy characterized by producers and
consumers (commodity production). We need
law to regulate their relationship. Eg. The law
of contract Act, Sales of Goods Act, the
Arbitration Act, and many others.
Cont…

o Private non economic relation

Law regulate private non economic issues.eg. The Law of
Marriage Act, the Affiliation Act, the Adoption Act, the probate
Act and many others.

 Solving conflicts
Social interactions among members of the community give rise
to conflicts. Such interaction can be for economic or non
economic purpose.
The state through law establishes mechanisms for solving
dispute. Read Article108(1) and Article 117(1) of the
Constitution of URT, Section 3 and 4 of the MCA.
 END
SLIDE SHOW
Cont…

• Facilitate and regulate public relations

The law provides for relationship between
states and individuals. Law provides what the
state like and what does not like and hence
citizens to act accordingly. For example the
Penal Code, allows certain behavior and
prohibits others.
Summary on the concept Law:

Law is the element which binds the members

of the community together and their
adherence to recognise values and standards.
It is both permissive in allowing individuals to
establish their own legal relations with rights
and duties, as in the creation of contracts, and
coercive, as it punishes those who infringe its
regulations.
Cont…

Law consists of series of rules regulating

behavior and reflecting to some extent , the
ideas and preoccupation of the society within
which it functions.
: LEGAL METHOD 1
Lecture Two
By
MR; NZIKU CLETUS
Lecturer of Laws
 CLASSIFICATION OF LAW
Generally there
are various ways • Municipal(domestic) law and
of classifying International law:
law. For our • Municipal law is the law made
purpose, law is within a state or made in a
classified given community and it applies to
according to the that particular state only. Eg.
subject. The Penal code cap.16, Employment
and Labour Relation Act,2004 etc.
classification are
as follows:
Cont…

International law is the law which deals with

relationship between states and people of
different states. The major source of the
international law are the international
norms and usages. International law are in
the forms of Conventions, Treaties and
Protocols. Eg. The Law of the Sea, The
Vienna Convention on the Law of
Treaties,1961, The EAC Treaty, The Protocol
for establishment of the African Court on
Human and People’s Rights. ect.
Cont…
 International law itself is divided into conflict of
law(private international law- PIL) and public
international law(usually termed international law).
 Public international law covers relations
between states in all their myriad forms, from war to
satellites, and regulates the operations of many
international institutions.
 Conflicts of laws (PIL) is part of the law which
comes into operation where we are confronted by a
legal problem which has a foreign element. Foreign
element can be of many kind.
Cont..

• For example: a contract may be made in

France, it may require delivery of goods to
Canada. An accident may occur as a result of
negligent in Italy, the driver comes from Paris ,
the injured from England and they wish to
pursue litigation in an English Court. The
question of which law to be applied may arise.
Cont…

 Criminal Law and Civil Law

 Criminal law is the law which deals with crimes. It is one of
the public law which deals with the relationship between
state and individuals. This is the law which creates offences
and punishment. A good example is the Penal code cap 16,
PCCB Act, Organized Economic Crime Act.

 Civil law is the law which covers the relationship between

individuals. It is part of private law.
Cont…

• One of the drawn difference between criminal

law and civil law is the procedure of litigation and
end results. In Tanzania for instance, A criminal
law case is initiated by the Republic (DPP)
through a charge sheet. Under the International
Criminal Court (ICC), the Rome statute empowers
the prosecutor General to investigate and
prosecute crime of genocide, crimes against
humanity, and crime of aggression.
Cont…

• End result of criminal case is conviction

followed by sentencing or acquittal.
BUT, civil law suit involve individuals namely
the Plaintiff and Defendant. In the
circumstance where the Defendant is found
liable the plaintiff will be compensated as end
result.
Cont…

 Substantive Law and Procedural Law

Substantive laws covers laws giving rights and
obligations (duties). For instance, the Law of
Contract Act, provide rights and duties of
parties to a contract. LCA also provide
remedies incase of breach of contract. The
Law of Marriage Act, gives rights and duties of
marriage couples and their family (Wife +
Husband+ Children).
Cont…

But the above cited laws do not provide the

procedure on how to secure the rights.
A criminal law also follow under the category
of substantive laws. Because it provides what
acts or omissions are prohibited by the state.
But, the Penal Code cap 16 does not provide
for the procedure of dealing with criminal
suspects.
Cont…

Unlike substantive laws, procedural laws

covers the procedure for establishing what is
rights and what is wrong. A good example is
the civil procedure Code, cap 33 RE.2002,
Criminal Procedure Act, Cap 20 RE.2002.
International Courts also have procedural laws
which regulate the conduct of the court. For
example, The East African Court of Justice
Rules of procedure, 2013 regulate the EACJ.
 SOURCES OF LAW
• Historically our legal system has been influenced by
colonialism. Before Colonialism there were no formal
laws in Africa, Tanzania in particular. Generally there
was no different between law and morality.
• The reason for not having formal laws was existence
of low level of development.
• Colonialists brought their laws with modification to
suit Africa.
• Tanzania uses adversarial system because was a
British colony.
Cont…

Sources of law

International Law

Constitution

Statute/Legislation

Received Laws

Pre-existing Laws

Case Law (Precedent)

 DISPUTE SETTLEMENT METHODS
• Introduction
Dispute arises between more than one person. The
reasons for dispute are many. One is claim of
rights. In circumstances where dispute arises, the
society have special mechanism of settling such
dispute.
• Generally the methods of dispute settlement
differs from one society to another considering the
nature of the economy of the particular society.
Cont…

• For instance the methods of dispute

settlement in societies differs from the market
economy societies. While the communal
societies uses traditional methods of dispute
settlement, the market economy society uses
modern methods of dispute settlement
mechanism.
 Basic principles in communal societies
• Land valued for its use. i.e land has use value.
Under communal societies land was very
important in keeping animal and crop
production.
• The major issue in land was ownership. i.e
dispute were mainly based on land ownership.
Thus most claim were based on ownership of
land.
Cont…

• Land ownership was absolutely.

These principles are reflected in the following

cases:
i. Kapasyu Mwaipinga v. Mwendilemo
Mwakyusa (1968) HCD, 88.
ii. Izack Nguvumali v.Petro Bikulako (1972) HCD
139.
iii. Swalehe v.Salim (1972) HCD 140.
Cont…

• In Kapasyu’s case, the two parties were relatives.

Their dispute was on ownership of a parcel of land
each claiming it by inheritance. The assessors in
the District court suggested that the parties were
related so the dispute could be brought to
amicable solution by dividing the land equally
between the two claimants. Such verdict is
consistent with Nyakyusa customary law, and hon.
Magistrate concurred with argument by assessors
and held that:
Cont…

• “ It is clear that any customary law which

disposes an owner would be contrary to the
principles of natural justice…”

Note: Read the other cases cited.

 TRADITIONAL DISPUTE SETTLEMENT METHODS

Under the tradition methods of dispute

settlement, rules ,procedure and institutions
for dispute settlement was regulated by
customary law.

The traditional methods of dispute settlement

were mostly used during the pre-capitalist
societies.
 Cont…

The pre-capitalist societies were characterized by

different mode of disputes settlement. These
were:
 Mediation
 Conciliation or coping
These pre-capitalist societies were less structured
and social organization was based on kinship.
Under these society affairs of the people was a
matter of concern of the whole community.
 Methods of settling disputes
 Mediation and Conciliation
This is a method of dispute settlement based on
matters which are private in nature. The
mediator lead the parties in reconciling their
differences.
A good example is the dispute between
KADUME and his father’s half brother Soine.
 Cont…

• The Kadume’s involved ownership of land

between Kadume- Makara’s son and Soine-
Makara’s half brother.

NB: Read the Kadume’s case and capture the

following:
 Identify the procedure used in settling the case?
 What considerations guided the mediator in the
decision?
 Cont…

 On what grounds did Soine claim the land?

 What was the end result of the dispute?
Also Read:
i. Kapasyu Mwaipinga v. Mwendilemo Mwakyusa
(1968) HCD, 88.
ii. Izack Nguvumali v.Petro Bikulako (1972) HCD 139.

And capture the following:

 Name of the parties
 Relationship of the parties
 What gave rise to the dispute
 Institutions which dealt with the dispute
 Cont…
 Drumming the Scandal
This was another method of traditional dispute
settlement.
Read: Torgindi of Mbaa Yar and Mtswen of MbaGishi.

 Ordeal
Try by ordeal was a method of dispute settlement where
by an alleged person was subjected to a great torture
and if he/she would survived then was regarded not to
have committed the alleged offence.
 Cont…

 Read: REX V. PALAMBA S/O FUNDIKIRA 14 E.A.C.A 96

(Tanganyika, 1947).

General Features of customary dispute settlement:

 Dispute settlement is either by mediation,
compromise or compensation
 Parties to dispute should win a little and loose a little
 No special institutions for settling of dispute
 Procedures for settling dispute are simple
 Lecture 4
Legal Research and Writing
• Language of the Law.
Language is an important tool of the lawyer.
A lawyer must have:
 writing skills
 Talking skills
Must speak well, interpret documents well,
must draft documents very well and write
submission well.
 Cont…

• For common law countries the legal lg we talk

is English.

• Nature of English Language

It uses many vocabularies borrowed from
many languages.
For example: Some English words has its origin
from Norman(French). So French words are
used as part of English vocabularies.
 Cont…

• Remember, historically, England was

conquered by French.
• So the Norman influenced their lg to be part
and parcel of English lg.
• A good example of Norman words which are
currently used as English words include:
Words ending with “tion” e.g. “Examination”
“Organization” “Publication” “ijaculation”
 Cont…

The word “clear” originate from French word

“cler”
 Again English is said to have borrowed words
(vocabularies) from old English.
These are the words which were used in time
memorial. They are still used in law.
For instance: “Whereof” “Thereafter”
“whereby”
 Cont…

• English lg is also regarded to have borrowed

certain words from Latin.
• This is because, the world was formerly
colonized by the Roman Empire, thus England
borrowed words from Latin which are used in
the legal language.
• For example: “Primafacie” “Mutatis mutandis”
• Some words are from Greek e.g Alpha and
Omega
 Cont…

• Thus, since legal language uses legal terms,

lawyers must learn to write and speak properly.
• The legal termination used may be common but
when used in the legal lg may carry different
meaning.
For example: “Kill” to a common person may mean
causing death to human being or any living
organism.
 Cont…

• But in law, killing is taking life of human beig, it

may further mean “murder” or “manslaughter”
• Stealing- In a normal lg, stealing is the act of one
person to take the property of another without
his/her permission.
• But, in to constitute “stealing” the following
elements must exist:
 Fraud(Fraudulent intent)
 Asportation or converting
 Cont…

A thing capable of being stolen

Must be a property of another person.

Features of the Language of the Law

 Uses common words with uncommon
meaning.
Eg. Sex, in common language may mean
“Gender”
 Cont…

But in law, “Sex” may be determined by age,

consent etc.
See the following words:
 “Sexual intercourse” In law if two (blood) related
relatives have sexual intercourse is called “incest”
 Sexual intercourse between man and a woman
without consent is “Rape”
 Sexual intercourse against order of nature is “
unnatural offence” (gay practices)
 Cont…

 Legal Language uses old English and French

terms. Remember England was conquered by
French in 1066.
 Legal language uses Latin words and phrases:
E.g. “Actus reus” “Mensrea”
 Legal language uses terms of art.
e.g. “Hear say evidence” meaning the testimony
(evidence) by a person who did not see or hear.
 BAD LANGUAGE FOR LAWYERS
• Bad language for lawyers is a kind of language
which is not understood by people who do not
belong in the legal profession. It is alleged that,
in their writings lawyers uses bad language.
• Richard C.Wydick wrote on plain English and
states that:
“We lawyers can’t write plain English, we use 8 words to say
what could be said in 2 words, we use arcane phrases to
express common ideals, seeking to be precised we become
verbose..”
 Cont…

The essence of author’s argument is that, the language

of the lawyers is bad and full of verbosity.

How to avoid Bad Language:

1. Omission surplus words-
To omit surplus words one should spotty bad
construction.

Note that, it is common for a sentence in English

language to have two kind of words.
Cont…

The two kind of

words are:
• Working words –
they carry meaning
• Glue words – They
carry no meaning .
e.g. “The” “a”
“of” etc.
 Cont…

• One way of identifying surplus words is by

underlining the working words.
See the sentence below:
The ruling by the trial judge was prejudicial error for the
reasons that it cut off cross examination with respect to
issues which were vital.

Remove the unnecessary glue words.

The trial judge’s ruling was prejudicial error because it cut off
cross examination on vital issues.
 Cont…

• Avoid compound prepositions; e.g.

 With respect to… ( use “on”)
 For the reason that… (use “because”)
 In accordance with…( use “under”)
 In the nature of…( use “like”)
 As much as…(“since”)
 In relation to…(use “about”)
 In the event that…( use “if”)
 Cont…

• Trim out verbose word clusters

Word clusters can be trimmed without loss of
meaning from the sentence. See the below
sentences:
 The fact that the accused was a young
boy have influenced the judge.
 The accused’s youth may have
influenced the judge
 Cont…

• Shorten clauses and phrases

e.g. While the trial was in progress the judge excluded
photographers from the court room.
The sentence may also be written as:
During the trial photographers were excluded.

• Do not Redundant legal phrases

e.g. Null and Void, Free and Clear etc. These words
almost give the same meaning. It advised to use only
one word.
 Cont…

• Use familiar concrete words

Familiar words are those which makes the client
understand. For instance use of the words like:
wherefore, where after, Here inafter, whereas,
Resgestae etc should be avoided.

Although lawyers are encouraged to avoid

unfamiliar words, use of certain unfamiliar words
can’t be avoided because they tend to show
lawyerism.
 Cont…

For example words like stare decisis(stand by

the decision), caveat emptor ( buyer be aware),
etc.

• Use short sentence

As a lawyer use short sentence as possible. e.g.
s. 287(1) of the penal code cap 16 define the
offence of attempt robbery. The provision is
couched in a very long sentence.
 Cont…

Most provisions in our statute books are

crafted in an old English. The sentences do not
have paragraphs, comma and punctuation
generally.

The problem of long sentence can be avoided

in the following ways:
 Use common English rules of witting
sentences. Subject + Verb+ Object (S+V+O)
 Cont…

Put only one thought in one sentence

Give average number of words.

• Avoid Language Quirk

These are weaknesses in the language where
legal writers uses elegant pleasing words
repeatedly, unnecessary words and language
Sexism.
 Cont…

In legal language, we are advised not to use same

words twice in a sentence unless it appears to be
necessary. Also avoid use of words which are
gender biased (sexism). See s.196 of the penal
code.

 To avoid sexism apply the following:

 Use genderless words. E.g chairmen use
chairperson, manly efforts use efforts, Reasonable
man use reasonable person
 Cont…

 Avoid expression that suggests men are only

creatures on the earth. For example: Don’t say man
basic liberties, say human basic liberties, don’t say
Rights of man, say human rights etc.

 Avoid sex base description and tittles where there is a

reasonable substitute. For example:
Don’t say workman, say a worker, don’t say Foreman,
say supervisor, don’t say policeman, say police officer,
don’t say news man, say journalist/reporter etc.
 Language of the Court in Tanzania

• Generally, the language of the Court in

Tanzania is Kiswahili and English.
• S.13(1) of the Magistrate Court Act provides
that Kiswahili is the language of the primary
Court.
• Similarly, s, 13(2) also stipulate that the
language of the District Court and Courts of
Resident Magistrate is Kiswahili or English.
 Cont…
• Rule 5 of the Tanzania Court of Appeal
Rules,2009 provides for the language of the
CAT which is English or Kiswahili but the
Judgment, order or decisions of the Court are
in English.
END OF THE SHOW
 LEGAL RESEARCH
• What to be covered
 How to find legal materials in the Library
 How to locate legal materials

Before one fends legal materials in the library one must be

aware of the types of legal materials available in any
law library.
 Types of Legal materials:
 Law Reports
 Statute
 Cont…

Law Journals
Parliamentary Bills
Articles
Legal text books
Hansad Reports
Thesis and dissertations by Law students etc.
 Cont…

• Law Reports
 Law Reports are the legal materials which contain
authoritative decision of the judges/justice which
are official records of the court decisions.
 Lawyers normally deal with factual situation, it is
difficult therefore to face new factual situation.
 Thus, in such situation a lawyer will have to
consult already decided cases.
 Cont…

• The following are Law Reports a lawyer may

consult:
From common Law Jurisdiction:
o Queens Bench (QB)
o King Bench (KB)
o Weekly Law Review (WLR)
o Appeal cases
o Chancery Division (Ch.D)
 Cont…

• There are also other law reports from the British

empire like Canada, Australia, News land, India,
West Africa etc.
• In Tanzania we have the following Law Reports:
 High Court Digest(HCD)- 1968-1972
 Law Reports of Tanzania(LRT)1973-1975
 Tanzania Law Reports (TLR)1980-2006
 East African Reports (EAR)
 East African Court of Appeal(EACA)
 Cont…

• HOW TO SEARCH CASE LAW

Begin by looking the subject matter (Index)
e.g. Is it Land law, Law of contract, Constitutional
law, Business law, the law of trust etc.
Search the names of parties alphabetically
 Cont…

o How to find Statute

o Principal legislation+ subsidiary legislation
 Use subject method
 Use case Method, normally case law cites
provisions of the statute.
 Use short title; Here you may use the No. of the
statute and year of enactment e.g. Land Law
Cap 113 [R.E 2002], The Land Registration Act
Cap.334 [R.E. 2002]
 Cont…

• How to Read a statute

Look at the title of the statute
 Normally a statute has long title and short title
Look on table of contents- it is indicated by
sections
Look at the body of rules- It is comprised of
sections/provisions. The name of the section
is provided in the marginal note.
 Import aspects on How to read a Statute

• It is essential to have a knowledge on the

structure of a Bill.
 Structure of the Bill
o Notices
o Introductory words eg. The following Bill to be
submitted to the National Assembly is published
for general information …
o Heading e.g a Bill for..
o Preambe e.g “this is an Act to repeal and replace…
 Cont…
o Enactment formula e.g “
Enacted by the parliament of the United Republic of Tanzania”
o Short title and citation
o Commencement of the Enactment
o Interpretation section e.g “In this Act, unless the context
otherwise requires..”
o Division of the bill into parts and sections
o Marginal notes
o Objects and reasons
o Signature of the minister, date and place.
 Structure of Act the Parliament

Normally an Act of the parliament has the

following structure:

• Court of Arms
• Act No. and year( Act no 12 of 2002)
• Assent e.g Assent by John Pombe Magufuli
• Long title
• Date of commencement
 • Enacting formula
• Short title and citation
• Interpretation provision
• Marginal Notes
• The enactment is divided into parts with
sections
 Cont…

Statement showing that the enactment was

passed by the National ASSEMBLY

• Signature of the clerk of the National

assembly
 Law 120: LL.B 1

Lectures After Recess

 How to Read Cases
• For any lawyer the skills of reading a case is
very important.
• Normally there are two major methods of
reading a case but each of the method will
depend on the purpose of a reader.
• The two methods of reading a case are:
 The Orthodox method and
 Unorthodox method
 Orthodox method

• Under this method a lawyer can read a case by

writing/presenting a particular case in a brief
and precise manner.
• Under this method only important parts of a
case will be identified. These are:
 Name of the court
 Name of the parties
 citation
Coram
The material facts
Legal issues
Legal arguments by parties
The holding
Ratio decidendi
Obiter dicta
Order of the Court.
 Unorthodox method
• Unlike orthodox method, the unorthodox
method is a way of reading cases by
categorizing them in groups.
• A group of cases is used by way of synthesizing
relevant precedents on a single question of
law e.g. in the law of tort-negligence, the law
of evidence etc. Give examples of cases;
 LECTURE 5
COMMON LAW CASE TECHNIQUE
• The purpose of studying common law
technique is to have skills on how judges
reason while deciding cases. The end result
will be to apply those theories to factual
situation.
• In order to understand how the judge or
courts developed the law, reading a case is
very important.
• Therefore, before we learn the practical aspect
of common law case technique it is important
to know some of the important concepts/terms
which are mostly used.
• These terms/concepts include the following:
 Common Law
 Equity
 Facts
 Material facts
 Issues
 Holding
 Ratio – decidendi
 Obiter dictum or Obiter dicta
 Distinguishing of cases
 Stare decisis(precedents)
 Analogy
 Induction
 Judicial hunch
 Deduction
 Positivism
 Bold spirit
 Timorous Souls
 Branches of English Law
• It should be noted that the law of England
may be said to be composed of three
branches, namely; Legislation, Common Law
and Equity. Legislation simply means the Act
of parliament, through which the government
of the day carries into effect its principal
policies.
 What is Common Law?
• It is a branch of law of England.
• Originally common law meant the law that
was not local law, that is, the law that was
common to the whole of England.
• Common law can also be defined as the law
that is not the result of legislation, that is the
law created by the decisions of the judges and
the custom of the people.
• Also common Law is not the law of equity
( that develop by the old court of chancery).

• Finally, common law is the law that is not

foreign law, in other words the law of England.
 What is Equity?

• In ordinary language Equity means ‘Natural

Justice” This is a branch of law of England.

• Thus, equity is part of the law in England.

 How equity came into being?

• In the middle ages, courts of common law

failed to give redress to some of the cases.
Disappointed litigants decided to petitioned
the king who was a “fountain of justice”
• In order to find an alternative relief to his
people and through the chancellor, the
established a special court, the court of
chancery, to deal with these petitions.
• Rules applied by the court of chancery
became part of the of law. The most
important branch of the law of equity is the
law of trusts, but equitable remedies like
specific performance and injunction are much
used.
• The court of chancery developed a number of
principles which are applicable today. One of
the very principle is “he who comes to equity
must come with clean hands”.
 Facts and Material Facts

• The fundamental question we should ask here

is that what is the difference between facts
and material facts in a case?
• The term facts refers to normal facts of life or
description of person or things. For example;
In alleged murder case one may describe the
murderer as: he was tall, black hairs, wearing
white shoes. Also at the time when he
committed the offence dressed red jacket.
• All what is described above may constitute facts.

But
• Material facts in same scenario may include: The
fact that the accused unlawfully caused the death
of the victim with malice aforethought, and the
fact that the victim was found lying dead,
constitute the offence of murder.
• Generally material facts are sorted from the
facts. Material facts are necessary for the
courts to reach decision in a particular case.
• Material facts are those facts which are crucial
for determination of issue at hand. Without
material facts the court cannot reach
determination of a case.
 Issue(s)
• Issue(s) in a case refers to point(s) or
questions which the court is called upon to
answer in a course of hearing a case and
making a decision.
• The answer to the issues will lead the court in
developing a rule.
How issue(s) can be formulated in a case

• Can be in a form of question eg. In murder

case where “A” is alleged of causing the death
of “B”, in hearing the Court will ask the
following questions:
Is “B” dead? Was “A” killed by “B”? Was “B”
killed by “A” unlawfully? etc.
• Similar issues may also be formulated in the
following manner:
Whether “B” is dead?
Whether “A” killed “B”?
Whether “A” killed “B” unlawfully?
 Holding
• Holding in any case refers to the actual
decision in that case. For instance; in a
criminal case the decision may either be
conviction of an accused person or acquittal.
• Conviction means the accused is held liable.
• Un like in criminal cases in civil cases the
decision can either be in favour of the plaintiff
or the defendant.

• The holding will also help the reader to

identify the rule formulated in the case.
• Holding normally take the following form:
“Order according”, “Application is dismissed
with costs”, “The appeal allowed”, “the appeal
must succeed”, “appeal dismissed” etc.
 Ratio Decidendi (RD)
• RD is the part of a case that is said to posses
authority.
• RD is a rule of law upon which the decision is
founded.
• Finding RD of a case is an important part of
training of a lawyer.
• Finding RD is not a mechanical process but an
art gradually acquired through practices.
• It is important to determine RD of a case
because the doctrine of precedent requires
cases to be decided in same way where the
material facts are similar.
• Generally, in any case there is a relationship
between material facts, issues and Racio
decidendi.
Suppose that in a certain case facts A, B and C
exist; and suppose that the court finds that
facts B and C are material and facts A
immaterial, and then reaches conclusion X
( e.g judgment for plaintiff or judgment for
defendant). Then the doctrine of precedent
enables us to say that in any future case in
which facts B and C exist or in which facts A
and B and C exists , the conclusion must be X.
• Extracting R.D = Material facts + Holding

e.g. In Wilkinson v. Downston (1897)2Q.B.57

where the plaintiff was awarded damages by
the jury for nervous shock, and the trial judge
then heard argument on the question whether
the verdict could be upheld in law.
• In its decision, the court made the following
rule: that where the defendant has wilfully
told the plaintiff a lie of a character that is
likely (a clearer word than “calculated”) to
frighten and so cause physical harm to the
plaintiff, and it has in fact caused such harm,
the defendant is liable, in the absence of some
ground of justification.
• If you look the ratio above it omits to specify
the particular lie told by the defendant,
because this was immaterial.
 Obiter Dicta
• Obiter Dicta is a mere saying “by the way”
which is not binding upon future courts,
though it may be respected according to the
reputation of a judge.
• It is not binding because a judge may
formulate an Obiter dicta without due regard
to the case at hand.
• It is a rule based on hypothetical facts.
• In the case of R v. Howe [1987]A.C.417, Obiter
Dictum is defined to mean a suggested rule upon
which the decision is not finally rested.

• The reason for not regarding an Obiter Dictum as a

binding is that it was probably made without a full
consideration of the cases on the point, and that, if
very broad in its terms, it was probably made
without a full consideration of all the consequences
that may follow from it.
• An Obiter Dictum in other words, is a rule
based on hypothetical facts. If the Judge says:

“I decide for the defendant, but if the fact had

been properly pleaded then I should have
decided in favour of the plaintiff”,

The latter part of the statement is Obiter.

• Read the following cases and extract Ratio
decidendi and Obiter Dicta:

i. Heaven v. Pender[1883]11QBD 508

ii. Lelievre v.Gould [1893] 1QB491
iii. Kiriri Cotton v.Dewani [1960] EA 188