Research is a systematic attempt to provide answers to questions or problems, such answers may be specific, abstract or general. In order to get answers certain materials will have to be consulted and analyzed, For example, in the course of studying law a student will be called upon to answer certain legal problems, which require conduction of legal research.
HOW TO FIND MATERIALS IN A LIBRARY
PRINCIPAL LEGISLATION
Subject Method
• Consider the subject to which the legal problem is related (e.g constitution, cooperatives, land or family relations);
• Then consider the possible sub-headings;
• Then make note of the short title of the law or piece of legislation involved;
• Include also the year and number of the Act or legislation;
• For example: The Cooperative Societies Act, 2013 (Act No. 6 of 2013);
Case Method
• This involves consulting the digest of index of statutes or case law on the relevant subject or statute;
• “Digest” here refers to a collection of summaries of reported cases, arranged by subject and subdivided by jurisdiction and court;
• In both methods it is also important to go through annotations;
• It is also important to know whether the said legislation is up-to-date or there are some amendments or whether it is already repealed;
• You should also know whether such a legislation is in operation or not;
• Also whether such a legislation has been judicially considered or not by the court (i.e pronouncement by the court on how it should be interpreted).
SUBSIDIARY LEGISLATION
This include the Same Method as Principal Legislation, however,
Delegated legislation have to be authorized by principal legislation, one has to know whether the authorizing legislation exists, Both principal and subsidiary legislation are published in the official Government Gazette, it is therefore essential to consult the Gazette to know the General Notice Number (GN No.) of publication.
• In England Statutes are cited in three ways:
– By the Short Title which includes the Calendar Year (e.g The Fetal Accidents Act, (1846)
– By the regnal Year or Years and the Chapter Number (e.g 910 Vict. C. 93)
– By Compromise of the two above (e.g The Fetal Accidents Act, 1846 (C. 93))
• Why English Statutes
– In the course of our post in this aspect we will frequently refer to English Law Reports, Statutes or Halsbury’s Statutes of England;
– They are part of the “received law”.
CITATION OF STATUTES IN EAST AFRICA
In East Africa a difference in citation was being made between laws that were enacted during the colonial period (Ordinances) and after, e.g The Chattels Transfer Ordinance (Cap. 28) :
– The former represents the title of the statute and the later the chapter number;
– However, in Tanzania according to the Laws Revision Act, 1994 (Cap. 4) [R.E. 2002] even Ordinances can now be cited as “Acts” and have been given the chapter number by the Revised Edition [R.E.];
After independence statutes are cited by indicating the title, year of enactment and Act number, e.g. The Cooperative Societies Act, 2013 (Act No. 6 of 2013) or if already revised by indicating the Title and Number of Chapter and year of revision, e.g The Companies Act, (Cap. 212) (R.E. 2002)
CITATION OF SUBSIDIARY LEGISLATION
In England Statutory Rules, orders and instruments are cited by abbreviation, year, number, volume and page, e.g;
– SR O 1914 (O. 1914); SI 1948 (No. 2357) 1 p. 101
(SR & O means statutory Rules and Orders, S.I. means Statutory Instruments);
In East Africa delegated legislation are cited by indicating the title, year and Government Notice number, e.g Instrument Under the Constitution of the United Republic of Tanzania (Government Notice No. 616 of 1986 or GN No. 161 of 1986) or Rombo District Council Produce Cess By-laws, 1986 (Government Notice No. 630 of 1986); (See also the Interpretation of Laws and General Clause Act, 1972 (Cap. 1) (Mainland Tanzania)
CITATION OF OTHER MATERIALS
- BOOKS
(i) Name of the Author or editor(s);
(ii) Title of book or Article;
(iii) Publication details of the book or article, including the year of publication;
(iv) Page reference if required;
Illustration
Books
– Martin, R., Personal Freedom and the Law in Tanzania, Nairobi. Oxford University Press, 1974
– Dias, R.W.W, Jurisprudence, (3rd ed.) London: Butterworths, 1970;
Note: Names of the authors, Title of the book underlined and publication details, may, include pages.
B. EDITED BOOKS
(i) Indicate specific article in the book in “quotes”;
(ii) Name of the author of the article;
(iii) Name of the editor (author);
(iv) Title of the book;
(v) Publication details, including the year of publication;
(vi) Page numbers. E.g,
Fimbo, G.M, “Land Socialism and the Law in Tanzania” in Ruhumbika, G., (ed.) Towards Ujamaa, Nairobi: East African Literature Bureau, 1974, at pg….
JOURNALS (PERIODICALS)
(i) Name of the author of the article;
(ii) Title of the article in quotes;
(iii) Name of the Journal (underlined);
(iv) Year of publication;
(v) Page number (where the article is appearing)
E.G., Lynden Harries, “Language and Law in Tanzania” in vol. 10(3) Journal of African Law [1966] 164 -167.
NB. Sometimes the mode of citation of periodicals is learnt by looking at the mode of citation set out by the Editorial Board or by making use of Indexes to Legal Periodicals or index to Legal citation, etc.
• Law Reports are repositories of cases decided from time to time by the courts – especially the Appellate courts;
• In Common Law countries, law reports are an essential source of law as they help in understanding and putting into practice doctrines such as stare decesisand precedent and will assist us further in understanding law making process mostly covered in jurisprudence;
• Law reports provide information relating to cases, rules laid down by the courts, interpretation of statutory provisions, etc.
• Thus every law student must be clear with what is meant by the term “law reports”, their necessity, who decides which cases should be reported and other information important for legal practice which can be obtained from the reports.
LAW REPORTS /CASE LAW…
Information obtainable from law reports include:
- Courts whose cases are reported, names of judges and details of other appointments;
- Names of Attorneys and Solicitors;
- Tables of cases reported and judicially considered, including the cited cases;
- Tables of statutes and subordinate legislation cited and considered;
- Subject index or digest;
- Constitution of the law reporting council and editorial board;
- Practice notes and directions;
- Method of citation of the law report;
- Reference to or notes of unreported cases or those to be reported in forthcoming volumes.
LAW REPORTS /CASE LAW…
• Criteria for reporting cases in Tanzania
– Whether the case states a new rule or restates an old principle;
– Declares, extends, qualifies or distinguishes an existing rule of law;
– Declares a new rule of law or the common law as a guide from another country;
– The case interprets a clause found in certain law, eg. Contracts, wills, etc.
– The judge gives instructions or pints of practice.
• Citation of Cases in Law Reports
– Names of the parties;
– Year in which the case is reported;
– Name of the series of Law Reports in which the case is reported;
– The page number at which the case commences, -- eg. Halden v. Halden (1966) W.L.R 148;
• Mwinyujuma v. R [1971] HCD n. 61;
• Juma Hassan v. Habibu Salum [1975] L.R.T n. 27;
• John Agricola v. Rashid Juma[1990] T.L.R 1
(a) Names of the Parties
• In a Civil Case the name of the Plaintiff (the person bring the action) comes first, followed by the name of the Defendant (the person complained against), eg. Juma Hassan v. Habib Salum;
• In a Criminal Case the citation “R” v. Smith is the abbreviation for “Rex” (King) of “Regina” (Queen) or “Republic” (Tanzania after independence). In criminal cases the accused person is accused on behalf of the Republic or Crown;
• The small letter “v.” is an abbreviation of the Latin word “versus” in criminal cases and “and” in civil cases or causes.
• BUT NEVER “V” or “versus”.
Anatomy of A Report
– Names of the court, judges with their designation (Eg. M.R; B.; CB.; P.; Ag.J.; L.J; J.; C.J; J.; J.A. etc.);
– Summary of main issues in italics, but DO NOT rely on the summary alone, it may not be complete or accurate;
– Court ruling with reasons, eg. Held….
– A list of cases referred during the hearing;
– In case of appeal, a statement where the appeal originated;
– The names of Counsels who appeared for the parties;
– The Judgments(s) of the Judge(s);
– The unreported case if cited will have to be indicated as (“unreported”).
– Meaning abbreviations on designation of judges are as follows:
– M.R = Master of Rolls;
– B. = Baron;
– CB = Chief Baron.;
– P. = President.;
– Ag.J. = Acting Judge;
– L.J = Lord Justice;
– J. = Justice;
– C.J = Chief Justice;
– A case is important for;
– the principle it lays down,
– The process it uses to reach a decision, (reasoning);
– Extraction of the “reason for the decision” (ration decidendi) and any other rule of law “not directly related” (obiter dictum);
– “Cases are used by lawyers like cadavers are used by doctors because cases are dead remnants of a lawsuits, law students have to learn to dissect them in order to discover the basis for which courts will decide new cases.
– JA = Justice of Appel.
