Continue By Dr. Ferdinand Marcel Temba [PhD (Law) University of Dar es • In Tanganyika Section 44 of The Traffic Ordinance (Cap 168) which creates the Salaam] offence of causing death by dangerous driving makes it punishable with imprisonment without expressly providing for the levy of a fine as an alternative. • The Mischief aimed at was the increasing rate of fatalities on the roads caused by dangerous driving.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • The legislature has prescribed the measure for dealing with this danger to the public. Dar es Salaam] • As was stated in the case the case in Wanjema in these days of appalling fatality figures on the roads drivers should know and know clearly that if they cause death by dangerous driving they are imminent danger of being sent to prison
Continue By Dr. Ferdinand Marcel Temba [PhD (Law) University of Dar es • Then on the basis of the above proposition Justice Kisanga said the approach was advantageous because: Salaam] • ...it enables the Court to implement the intention of the legislature i.e. to take stiff measures against the increasing fatalities on the road caused by dangerous driving and yet allowing flexibility whereby the courts may impose a lenient or alternative form of sentence where the circumstances of a particular case warrant it. Therefore, I respectfully think that this approach is to be preferred. • Mwinyimadi Ramadhani v. Rep. Crim. App no. 150 of 1963 (High Court of Tanganyika) (unreported).
By Dr. Ferdinand Marcel Temba[PhD (Law) University of Dar es Salaam]
The Purposive Approach Rule By Dr. Ferdinand Marcel Temba[PhD (Law) University of • It is sometimes called the teleological approach. • It is a rule that focuses on the intention of the Dar es Salaam] parliament. It is frequently used in combination with the Golden rule or Mischief rule. • It is a rule of construction that identifies the overall purpose of the legislation
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • Different from Mischief or Golden rule, in discerning such an intention, Dar es Salaam] • Attention is not typically limited to the context in which the text was originally enacted • Frequently reference may be made to more recent events so as to produce an intention that relates to all cognate provisions of the law currently in force. • The aim is to update the intention of the parliament with the prevailing circumstances.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • Purposive approach is a new invention in the rules of statutory interpretation and it is Dar es Salaam] commonly used in European Union. • In Tanzania the case of Joseph Warioba v. Stephen Wassira and Another [1997] TLR 272 (CA) demonstrates the application of this rule. • Having considered counsels submissions in this case, the Court observed;
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • We think that this is a fit case where, …, the court should interpret s 114 as including or extending to Dar es Salaam] corrupt practice. The view that nothing should be added to a statutory provision was widely accepted by the courts in England during the nineteenth and first half of the twentieth century. Thus for instance, in R v Judge of the City of London Court (1) at 290 the Court of Appeal (per Lord Esher, MR) said, inter alia, that: • ... If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The Court has nothing to do with the question whether the legislature has committed an absurdity.'
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • The Court proceeded to cite English Authorities on that position saying; Dar es Salaam] • Re-affirming that view, the House of Lords (per Lord Atkinson) in the case of Vacher and Sons Ltd v London Society of Compositors (2) at 121 said: • ... a Court of law has nothing to do with the reasonableness or unreasonableness of a provision of a statute, except so far as it may help it in interpreting what the Legislature has said. • If the language of a statute be plain, admitting of only one meaning, the Legislature must be taken to have meant and intended what it has plainly expressed, and whatever it has in clear terms enacted must be enforced though it should lead to absurd or mischievous results.'
continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • Those were observations which were cited from cases which were in favour of the Literal/Plain Dar es Salaam] meaning rule. • In order to adopt the purposive approach the Court of Appeal observed; • However, over the years this position has changed, and the view today is that in interpreting a statutory provision the court may, in a fit case, read words into the provision.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • The Court continued to state: • Thus, for instance, in Kammins Ballrooms Co Ltd v Dar es Salaam] Zenith Investments (Torquay) Ltd (3) at 893 the House of Lords (as per Lord Diplock) adopted what was described as the `purposive' approach, instead of the literal approach, and imputed to Parliament `an intention not to impose a prohibition inconsistent with the objects which the statute was designed to achieve, though the draftsman [had] omitted to incorporate in express words any reference to that intention'.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • The Court added further that: • That approach was re-echoed and elaborated Dar es Salaam] upon by the Court of Appeal in Nothman v. Barnet London Borough (4) at 1246 where Lord Denning, MR said: • The literal method (of construction) is now completely out of date. It has been replaced by ... the “purposive” approach.... In all cases now in the interpretation of statute we adopt such a construction as will promote the general legislative purpose underlying the provision.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • It is no longer necessary for the judges to wring their hands and say: There is nothing we Dar es Salaam] can do about it. Whenever the strict interpretation of a statute gives rise to an absurd and unjust situation, the judges can and should use their good sense to remedy it - - by reading words in, if necessary -- so as to do what Parliament would have done had they had the situation in mind.'
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • The Court hence arrived to a conclusion that: • Consistent with such holding, the Court declined to Dar es Salaam] adopt the literal approach, and instead read A words into the provision of the statute which it was construing. We find these last two cases to be very persuasive. [Emphasis is mine] • Hence in this case the Court used a combination of two approaches; Golden Rule and Purposive Approach. • Read also the Case R v. Mbushuu Alias Dominic Mnyaroje and Kalai Sangula [1994] TLR 146 (HC)
Presumptions By Dr. Ferdinand Marcel Temba[PhD (Law) University of • When determining the meaning of particular words the courts will make certain presumptions Dar es Salaam] about the law. • If the statute clearly states the opposite, then a presumption will not apply and it is said that the presumption is rebutted. • In terms of statutory interpretation, presumptions help the court in drawing an inference towards the existence of a certain fact or point of law unless the contrary is proven.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • Examples of presumptions include; • Presumption against extra-territoriality Dar es Salaam] application of the law • Presumption against ousting courts jurisdiction • Presumption in favour of strict construction of penal statutes • Presumption in favour of liberty of an individual especially where custodial sentence is involved • Presumption that an Act of the Parliament must be intra-vires the Constitution, e.t.c
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • Some of the presumptions have been expressly provided in some of statutes, e.g; Dar es Salaam] • Presumption as to existence of a certain fact, s.5 of the Evidence Act, Cap 6 R.E 2002 • Presumptions as to documents, s 88-99 of the Evidence Act, Cap 6 R.E 2002 • Presumption of death, marriage and validity of a registered marriage, s 159-161 of the Law of Marriage Act, Cap 29 R.E 2002, e.t.c
Rules of Language/Logical aids By Dr. Ferdinand Marcel to statutory interpretation Temba[PhD (Law) University of • In some instances the courts may choose to look Dar es Salaam] at other words in the statute to ascertain the meaning of specific words. • To enable them to do this they have developed a number of rules of language to help make the meaning of words and phrases clear. • There are three main rules of language: • Ejusdem generis rule • Expressio unius est exclusio alterius rule • Noscitur a sociis rule
Ejusdem generis rule By Dr. Ferdinand Marcel Temba[PhD (Law) University of • This rule states that where there is a list of words which is followed by general words then the Dar es Salaam] general words are limited to the same kind of items as the specific words. • In the case of Powell v Kempton (1899) AC 143, a ring at a racecourse was held not to fall within the terms ‘house, office, room or other place’ because the list of words indicated that ‘other place’ should be construed as an indoor place.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • In the case of Julius Petro v. Cosmas Raphael [1983] TLR 346 the late Mwalusanya, J was called upon to determine Dar es Salaam] the scope of the term “relative” and he stated; • As to what is 'relative' it is not defined… At least there should be closeness of blood relationship. On the principle of ejusdem generis rule of interpretation the word 'relative' should be restricted to near relatives not distant relatives, so that we do not venture very far from related members of the household contained on the second part of that phrase. • Read also the case of; • DPP v Bernard Njavike [1988] TLR 18 (CA) • Gadi Kidasa v. R [1982] TLR 105
Expressio unius est exclusio By Dr. Ferdinand Marcel alterius rule Temba[PhD (Law) University of • Expressio unius est exclusio alterius-the express mention of Dar es Salaam] one thing excludes others. • That is, where matters are expressly stated, then any other matters of the same class not so expressly stated are excluded-see the case of The A.G and 2others v Aman Walid Kabourou [1996] TLR 156 (CA) • Where there is a list of words which is not followed by general words, then the Act applies only to the items in the list. • In the case of R v Inhabitants of Sedgley (1831) it was held that the use of the words ‘lands, houses and coalmines’ excluded application to other types of mine.
Noscitur a sociis By Dr. Ferdinand Marcel Temba[PhD (Law) University of • A word is known by the company it keeps. The words must be looked at in the context and interpreted accordingly. Dar es Salaam] • This involves considering other words in the same section or other sections of the Act. • In the case of Muir v Keay (1875) LR 10 QB 594, the purpose of licensing theatrical or musical entertainment did not fall within the words of the Act covering houses ‘for public refreshment, resort and entertainment’, because the word ‘entertainment’ in the Act referred to refreshment houses, receptions and accommodation of the public.
Internal/Intrinsic Aids to By Dr. Ferdinand Marcel Statutory Interpretation Temba[PhD (Law) University of • Intrinsic aids are matters within an Act itself which Dar es Salaam] may help make the meaning clearer. • The court may consider; • The long title, • The short title • Preamble • Headings before a group of sections • Schedules attached to the Act. • Marginal notes explaining different sections;
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • In most cases intrinsic aids are not generally regarded as giving Parliament's intention as they Dar es Salaam] will have been inserted after parliamentary debates and are only helpful comments put in by the printer. • Schedules, however, are in most cases part of the statute and the statute has to be read together with what schedules have provided for.
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • Read the following cases on the use of intrinsic aids; Dar es Salaam] • DPP v. Bernard Njavike [1988] TLR 18 (CA) • A.G v. Lohay Akonaay and Joseph Lohay [1995] TLR 80 (CA) • DPP v. Daudi Pete [1993] TLR 22 (CA) • Willow Investment v. Mbomba Ntumba and Another [1996] TLR 377 (HC)
Extrinsic/External Aids to statutory By Dr. Ferdinand Marcel interpretation Temba[PhD (Law) University of • These are sometimes known as Travaux Dar es Salaam] Preparatoires • They are matters which may help put an Act into context. • They assist in understanding the objective behind the enactment of the Act by exploring the true intention of the Parliament
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • Sources include; • Previous Acts of Parliament on the same topic, Dar es Salaam] • Earlier case law, • Dictionaries of the time, • The historical setting. • Hansard • Commissions’ reports. • Bills, Whitepapers • Conventions, Regulations, Directives e.t.c
Continue By Dr. Ferdinand Marcel Temba[PhD (Law) University of • At Common law the use of Hansard was permitted following the decision in Pepper (Inspector of Taxes) v. Hart Dar es Salaam] (1993) where the House of Lords accepted that Hansard could be used in a limited way. • It permitted Hansard to be used where the legislation is ambiguous or obscure or leads to an absurdity, and the material relied on comprises one or more statements by a Minister or other promoter of the Bill and such other parliamentary material as is necessary to understand the statements, and the effect and the statements that were relied on have to be clear.
Search
