Statutory By Dr. Ferdinand Marcel Interpretation Temba[PhD (Law) University of By Dr. Ferdinand Marcel Temba Dar es Salaam] LL.B Mzumbe University, LL.M (Labour Law) University of Cape Town, PhD in Law - University of Dar es Salaam.
Introduction By Dr. Ferdinand Marcel Temba[PhD (Law) University of • Statutory interpretation is the process by which courts determine the meaning of statutory provisions for the Dar es Salaam] purpose of applying them to factual situations before them. • It is a process which is essential because; • There are no universal ways of drafting statutes • There are sometimes hidden intentions of law makers which cannot easily seen by just reading the provision of the statute • Interpretation of the statute may sometimes be difficult whenever words used have more than one meaning or they are ambiguous • Statutes are always open to all manner of argument and interpretation.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • There are a number of factors which can lead to an unclear meaning; Dar es Salaam] • A broad term as was in the case of London and North Eastern Railway Company v. Berriman [1946] 1 All ER 255: • Mr Berriman was a railway worker who was hit and killed by a train while he was doing maintenance work. Regulations stated that a lookout should be provided for men working on the other railway line ‘for the purposes of relaying or repairing it’.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • Mr Berriman was maintaining the line. His widow tried to claim compensation for his death because Dar es Salaam] the railway company had not provided a lookout man. • The court ruled that the relevant regulation did not cover maintenance work and so Mrs Berriman's claim failed. • The court looked at the specific words in the regulation and was not prepared to look at any broad principle that the purpose of making a regulation that a lookout man should be provided was to protect those working on railway lines.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • Ambiguity • A drafting error Dar es Salaam] • Wording may be inadequate • New developments, e.g. technological developmnet • Changes in the use of language • If there is a casus omissus (where Parliament did not foresee the circumstance)
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • It has to be understood that: • The role of making law is on the parliament Dar es Salaam] • The role of the Judiciary is to apply and interpret the law • Hence courts should avoid to usurp the powers vested to the parliament by making law • Nonetheless, courts are custodians of people’s rights. Thus in the course of interpreting law they have to ensure that justice is always served.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • The interpretation of statutes may be; • Strict Dar es Salaam] • Liberal • In course of interpreting statutes, courts have developed guiding approaches or rules which are grouped into two; • Main principles/Primary rules to statutory interpretation • Subsidiary/Secondary rules to statutory interpretation
Classification of Statutes By Dr. Ferdinand Marcel Temba[PhD (Law) University of • Statutes can be classified according to the following; • Classification with reference to Duration Dar es Salaam] • Classification with reference to the effect • Classification with reference to the extent/operation • Classification with reference to the nature • Classification with reference to the Object • Classification with reference to the Content • Classification with reference to the subject matter
Primary Rules to statutory By Dr. Ferdinand Marcel interpretation Temba[PhD (Law) University of • These include: Dar es Salaam] • Literal/Plain Meaning rule • Golden rule • The Mischief Rule/The Heydon’s case Rule • The Purposive/teleological approach rule • These are merely different approaches to statutory interpretation and they are not binding to the courts. In course of developing arguments, courts may adopt any or combination of the above rules.
Plain Meaning Rule By Dr. Ferdinand Marcel Temba[PhD (Law) University of • This is the rule that is founded on latin maxim ‘litera legis ita scripa est.’ Dar es Salaam] • The rule is based on the assumption that the words chosen by the parliament in the Act clearly show the intention in passing that Act. • Court should not be allowed to add, taking from or modifying letters of the statute
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • Lord Diplock in Duport Steels Ltd v Sirs [1980] 1 WLR 142, 157, that “Parliament makes laws, the Dar es Salaam] judiciary interpret them”. …, • Lord Diplock further stated: • The role of the judiciary is confined to ascertaining from the words of that the parliament has approved as expressing its intention, what that intention was and so giving effect to it.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • Where the meaning of the statutory words is plain and unambiguous it is not for judges to Dar es Salaam] invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral…
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • The rule emphasizes that it is not for the court to decide whether changes should be made to the Dar es Salaam] law. • Courts have to interpret the words of a statute in their ordinary and natural or grammatical meaning. • What literalist would be looking for is the primary or most obvious meaning of the word, not any general or secondary meaning. • It is what it means and not what it might mean.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • Under Literal rule, courts have to adopt the grammatical or ordinary meaning of the words as Dar es Salaam] they appear in the statute • It is expected by citizens that laws will be applied by the courts as they appear • Hence legislative text is presumed to be coherent and consistent and thus preferable compared to any other external influence. • Under this rule the judge considers what the statute actually says, rather than what it might mean.
Continue By Dr. Ferdinand Marcel Temba [PhD (Law) University of Dar es • In Pinnet v. Everett [1969]2 All ER 257 at 258-259, Lord Reid in the House of Lords stated inter alia: Salaam] • In determining the meaning of any word or phrase in a statute the first question to ask always is what is the natural or ordinary meaning of that word or phrase in its context in the statute. • It is only when the meaning leads to some result which cannot reasonably be supposed to have been the intention of the legislature that it is proper to look for some other possible meaning of the word or phrases.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • As you will note in the process of learning law and reading cases involving statutory Dar es Salaam] interpretation, different judges have advanced different views on how the literal rule has to apply. • The main trend has been the so-called Grammatical interpretation. • To some judges this is the safest rule because they think, it is a rule of common sense.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • In Tanzania one of the case that applied this literal or plain meaning rule is the case of Singida RTC v. Dar es Salaam] Tanzania Telecommunication Corporation [1979] LRT n.11 • In this case, the plaintiffs dispatched a telegram at Singida Post Office, which is ownde by the defendants, to GALCO at Dar es Salaam. • The said telegram required the said GALCO at Dar es Salaam to dispatch four thousand corrugated iron sheets to the plaintiffs.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • Owing to the negligence of the defendant’s servant either at their Singida post office or at one of their Dar es Salaam] post offices at Dar es Salaam ‘four thousand’ read ‘forty thousand’. • Upon receipt of the wrongly worded telegram, GALCO dispatched a first consignment of twelve thousand corrugated iron sheets to the plaintiffs. • In turn the plaintiffs were forced to transport back to GALCO the excess amount of corrugated iron sheets at a cost of shs 39,200/= which amount they were claiming from the defendants.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • Sections 73(b) and 117 of the Act which provided that the defendant corporation shall Dar es Salaam] not incur any liability by reason, inter alia, of any delay in the transmission of any telegram or by reason of any error in, omission from or non-delivery or mis-delivery of any telegram. • The Counsel for the plaintiffs contended that the statutory provision were not intended to cover all types of errors.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • In solving the issue the Court had this to say; • The Cardinal canon of construction of statutes Dar es Salaam] is to give the words used in a statute their ordinary plain meaning. Generally speaking, therefore, the courts must be content to accept the ordinary and plain meaning of words used in a statute as conclusive evidence of what the legislature has said and meant. • The Court emphasized that the principle of interpretation can only be departed from where the statute is vague or ambiguous.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • Therefore the Court held; • In the absence of evidence to that effect, the Dar es Salaam] courts have no option but to take it for granted that the legislature has said what it meant and meant what it has said. • It observed further that; • It is true that these statutory provisions do erode the common law rights of an individual in that they take away his right to sue in negligence.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • But that is no reason for departing from the true meaning of the words used and the Dar es Salaam] intention to be gathered therefrom. The language used in the Act makes it quite clear that the intention of the legislature was to place the common law rights of the individual in the second place. • It has to be noted that, in arriving to this conclusion, the Court resorted to Regulation 5(b) of the Regulations made under the Act and found out that the Parliament meant what it stated.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • The literal rule has both advantages and disadvantages. Dar es Salaam] • Constitutionally it respects parliamentary supremacy and the right of Parliament to make any law it might wish no matter how absurd they may seem. • It also encourages precision in drafting and ensures that anyone who can read legislative text can determine the law, which promotes certainty and reduces litigation.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • Some disadvantages, however, can also be identified. • It fails to recognise that the any language itself may Dar es Salaam] be ambiguous and that words may have different meanings in different contexts. • The use of this rule can sometimes lead to absurdities and loopholes which can be exploited by an unmeritorious litigant. • Judges have tended to over-emphasise the literal meaning of statutory provisions without giving due weight to their meaning in a wider context.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • Placing emphasis on the literal meaning of words assumes an unobtainable perfection in Dar es Salaam] draftsmanship. • Finally, it ignores the limitations of language including developments that may take place.
Continue By Dr. Ferdinand Marcel Temba [PhD (Law) University of Dar es • For more insight on understanding of plain/literal rule read: Salaam] • Fisher v. Bell (1960), Divisional Court • George Walter and 3 Others v. R (1977) LRT n.5
The Golden Rule By Dr. Ferdinand Marcel Temba[PhD (Law) University of • This is the rule that is more or less similar to the literal rule. Dar es Salaam] • It is the rule that prefers interpretation of the statutory provisions by looking at the ordinary and grammatical meaning of the words except where by doing so would lead to absurdity. • Glanville William says: • …the Courts sometimes allow themselves to construe a statute in such a way as to produce a reasonable result, even though this involves departing from the prima facie meaning of the words.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • This rule is used by judges when in course of interpreting statutory provisions they find out Dar es Salaam] that the meaning is ambiguous and to follow such meaning will lead to absurdity. • Michael Zander states: • …the Golden rule does at least have the saving grace that it may protect the court from egregious foolishness. • The term absurd simply means wildly unreasonable, illogical or inappropriate.
Continue By Dr. Ferdinand Marcel Temba [PhD (Law) University of Dar es • The classic exposition of the rule is to be found in River Wear Commissioners v Adamson (1876–77) 2 App Cas 743, Salaam] at 764–5, per Lord Blackburn: • I believe that it is not disputed that what Lord Wensleydale used to call the golden rule is right, viz, that we are to take the whole statute together and construe it all together, giving the words their ordinary signification unless when so applied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary signification and to justify the court in putting on them some other signification which, though less proper, is one which the court thinks the words will bear.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • In Tanzania, the case of Joseph Warioba v. Stephen Wassira and Another [1997] TLR 272 (CA) Dar es Salaam] demonstrates the application of the Golden Rule. • In this case the first respondent Mr Stephen Masatu Wassira, was elected Member of Parliament for Bunda constituency, but subsequently his election was nullified by the High Court (Lugakingira, J) upon an election petition filed by the appellant, Mr Joseph Sinde Warioba.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • In the course of dealing with that petition the trial judge found that the respondent had committed an Dar es Salaam] act of corrupt practice, but declined to certify the same to the Director of Elections in terms of s 114 of the Elections Act. The appellant was aggrieved by such omission, hence this appeal. • The main issue was whether the learned trial judge erred in law when, having correctly found the Respondent to have committed corrupt practices, he declined to certify to the Director of Elections that the Respondent is guilty of corrupt practices.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • The trial judge declined to certify to the Director of Elections because corrupt practice was not Dar es Salaam] made the subject for certifying to the Director under s 114 of the Elections Act. • The Act provided for certifying to the Director of Elections the finding of illegal practice only, not corrupt practice. • Section 114(1) of the Elections Act stated: • 114(1) Where the Court determines that a person is guilty of any illegal practice, it shall certify the same to the Director of Elections ...'
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • Counsel for the respondent had contended before the High Court that in the absence of Dar es Salaam] any reference to `corrupt practice' in the provision, there could be no basis for requiring that Court to certify any finding of corrupt practice to the Director of Elections. • To counter that argument, counsel for the appellant submitted that the omission to require findings of corrupt practice to be certified to the Director of Elections was simply through inadvertence.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • Hence the Court of Appeal was called upon to determine whether such an omission was Dar es Salaam] deliberate or was through inadvertence. • Having examined carefully the historical background towards the amendments to the Elections Act the Court observed;
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • It would, therefore, be absurd,…for Parliament to empower the elections court to certify for sanctions Dar es Salaam] persons found guilty of illegal practice but to let those found guilty of corrupt practice go scot free, especially considering the fierce war which the society has been waging against corruption in recent years, and continue to do so in the present day. Had Parliament been appraised of such blatant absurdity at the time of enacting the Act, it would have taken steps to remove it; we feel justified to construe s 114 in such a way as to achieve just that which Parliament had set out to do, and no more.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • The Court added further that; • Section 114, literally construed, would be Dar es Salaam] discriminatory in its effect because, as already noted, it empowers the court to certify for sanctions persons found guilty of illegal practice while conferring no such power on the court in respect of those found guilty of corrupt practice which is a similar or even more serious offence. This would contravene Article 13(2) of the Constitution of the United Republic which in effect prohibits the enactment of any law which is either directly discriminatory or is discriminatory in its effect.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • Another case which can demonstrate the application of Golden Rule Julius Ishengoma Dar es Salaam] Francis Ndyanabo v.The A.G, Civil Appeal No. 64 of 2001 (CA) (Unreported)
The Mischief Rule By Dr. Ferdinand Marcel Temba[PhD (Law) University of • This is sometimes called the rule Heydon’s Case (1584) Dar es Salaam] • The Court ruled that for the sure and true interpretation of all statutes four things must be considered; • What was the common law before the statute was made? • What was the mischief and defect for which the common law did not provide? • What remedy has Parliament appointed to cure the disease of the Commonwealth? • The true reason of the remedy
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • Judges of Exchequer stated further that: • It is the role of the judges to make construction Dar es Salaam] which will suppress subtle inventions for continuing the mischief • To add force and life to the remedy according to the true intention of the makers of the Act • The Mischief Rule has significantly influenced the interpretation of statutes that takes into consideration the historical background of the particular Act
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • Michael Zander says: • The mischief rule is designed to get the Court to Dar es Salaam] consider why the Act was passed and then to apply that knowledge in giving the words under consideration whatever meaning will best accord with the social purpose of the legislation. • Simply this rule tries to interpret statutory words by looking at the intention of the parliament through the history of enactment of a particular Act.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • In Tanzania, the case of Bi Hawa Mohamed v. Ally Sefu [1983] TLR 270 (CA) demonstrate application Dar es Salaam] of this rule. • The Court observed as to the meaning of this rule; • Under this rule, the court, in looking for the true meaning of ambiguous statutory provisions, is guided by the defect or mischief which the statute was enacted to rectify or cure.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • In this case; Dar es Salaam] • The appellant and respondent were wife and husband respectively until the dissolution of their marriage by a court decree of the Primary Court of Ilala District at Kariakoo, Dar es Salaam in 1980. • In subsequent proceedings the Primary Court held that the appellant was not entitled to any share in the matrimonial assets as she was a mere wife and that the house was bought by the husband's money.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • On appeal to the High Court, the Primary Court's decision was substantially upheld. Dar es Salaam] • This was a second appeal to the Court of Appeal. • The issue before the Court of Appeal was; • Whether the High Court and Primary Court erred in law in holding the view that domestic services of a housewife do not amount to contributions made by her in the acquisition of matrimonial assets. • The issue centered on whether matrimonial home was acquired by the joint efforts of the appellant and respondent and what is the contribution of each party to such efforts.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • The Court hence stated: • On examination of the Law of Marriage Act, Dar es Salaam] 1971, and the law as it existed before its enactment, one cannot fail to notice that the mischief which the Law of Marriage Act, 1971 sought to cure or rectify was what may be described as the traditional exploitation and oppression of married women by their husbands.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • The Court added further that: • It is apparent that the Act seeks to liberate married Dar es Salaam] women from such exploitation and oppression by reducing the traditional inequality between them and their husbands in so far as their respective domestic rights and duties are concerned. • Although certain features of traditional inequality still exist under the Act, such as polygamous marriages, these do not detract from the over-all purpose of the Act as an instrument of liberation and equality between the sexes.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • Having determined such mischief which the law intended to cure. The Court concluded that; Dar es Salaam] • Guided by this objective of the Act, we are satisfied that the “joint efforts” and “work towards the acquiring of the assets” have to be construed as embracing the domestic “efforts” or “work” of husband and wife. • Nonetheless such conclusion did not help the appellant since her appeal was dismissed on other grounds. • Read also the Case of Asha Soud Salim v Tanzania Housing Bank (T.H.B) (find the proper citation)
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • Ali s/o Mapuliko Kallu v. R [1976] LRT n. 37 at 147 Kisanga J. Dar es Salaam] • This was criminal appeal. • The appellant had been counted of causing death by dangerous driving contrary to section 44 A (1) of the Traffic Ordinance (Cap 168) and was sentenced to 2 years imprisonment. • Counsel for the appellant cited a principle which related to the third ground of appeal that the sentence was excessive.
Continue By Dr. Ferdinand Marcel Temba [PhD (Law) University of Dar es • It was a High Court Case (Kenya) in Wanjema v. Republic [1971] EA 493 in which it was pointed Salaam] out by Justice Kisanga such a case was not an authority because it had not been followed by Onyiuke J in Republic v Mohamed Bushir, [1973] LRT n 51 where the judge had stated that Wanjema's was to be considered as a guide and not as a rule\".
Continue By Dr. Ferdinand Marcel Temba [PhD (Law) University of Dar es • The judges View was as follows: • The basic principle which should guide the Salaam] courts in any country is that it is their duty to carry out the purpose of the legislature in creating an offence and prescribing punishment. • The courts have to consider the Mischief aimed at and the measures adopted by the legislature for dealing with it.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • Where the legislative provision which creates the offence makes it punishable with Dar es Salaam] imprisonment without an alternative of fine, the courts should impose a prison sentence unless the circumstances disclosed by the evidence or the facts given by the accused in his plea in mitigation of the sentence warrant a different form of punishment.
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