A paper presented on this 1st Day of December 2014 at Ubuntu institute of social

justice at Mwanza, Tanzania

ESSENTIALS FOR JUDGEMENT

In his book, The Family Story, (London: Butterworth, 1981), he describes his technique in judgment-
writing in this way (p. 207): I try to make my judgments live – so that it can be readily understood – by
the parties in particular: and by others who hear it… I start my judgment, as it were, with a prologue –
as the chorus does in one of Shakespeare’s plays – to introduce the story. Then I go on from act to act as
Shakespeare does – each with its scenes – drawn from real life… But I do it by dividing my judgment up
into main headings (corresponding to the acts) and sub-paragraphs (corresponding to the scenes) – each
with a caption – so as to catch the eye. I draw the characters as they truly are – using their real names –
so that I never get them mixed up… In telling the story I set out the merits – I rely on them – I do not
scorn them. Because the merits go to show where justice lies… … I avoid long sentences like the plague:
because they lead to obscurity. It is no good if the hearer cannot follow them. I strive at all costs to be
clear… I refer sometimes to previous authorities because I know that people are prone not to accept my
views unless they have support from the books. But never at such length. Only a sentence or two. I avoid
all reference to pleadings and orders…they are mere lawyers stuff. I finish with conclusion an epilogue
again as the chorus does in Shakespeare. In it I gather the threads together and give the result.

-Lord Denning’s remarkable and revealing credo for judgments

CONCEPT OF JUDGEMENT:

Judgment is a very broad term which man applies in a daily life. As the man engaged in a several

conduct need to pass judgment in different occasions and environment. Therefore, it can be

viewed as an integral part of human operation of thoughts. However, in light of the theological

doctrines of judgment, holy bible in 1chronicles 16:33, Matthew 12:36-37 and in holy Quran

Surat az-zumar 39:68-70 talks on how judgment day will be and essence of judgment

Therefore, what is drawn from those verses is that Judgment is something crucial which

everyman is subjected to face in future, and shows how judgment is associated with

righteousness, truth, and integrity. Tomorrow is never promised to anyone, but standing in front

of Allah on the Day of Judgment is!

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LLB-SAUT
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Under this paper is not my concern to deal with the judgment in theological eyes but just to show

the fundamentality of writing fair and good judgment in the eyes of the Law.

Good judgments enhance the image and perception associated with the justice delivery process

and increases public confidence in the judiciary, Litigant, and public. They at all times look

forward for just, fair and quality justice. A well written judgment based on comprehensive

analysis of facts and law and it is an indication of the intellectual strength of a judge and a sign

of a worthy judicial system. It is therefore indispensable that lawyers, magistrates, and judges

should acquire the skills to write good judgments.

What is the judgment?

Judgment may be defined as the reasoned account and analysis of the evidence, findings of the

fact thereon, and the explosion of the principles of law applicable to such facts and decision as to

the rights and liabilities of the parties to a suit.2

Or

Judgment is a written legal document which resolves the issue in a suit and finally determines the

rights and liabilities of the parties in the suit.3 Under section 3 of the civil procedure code defines

judgment as the statement given by the judge or magistrate of the grounds of a decree or order.

Decree is the part of the judgment formulates the decision the judge has made. It informs the

parties exactly about what the court orders them to do and how the decision shall be executed.

The given order must be enforceable; this means it has to be very precise, naming exactly the

parties, their duties, the deadlines, the amounts of money, the interest rates to be paid, etc. It

must be clear for the executing court or the enforcement agents without any further discussion

what obligations the parties have to fulfill according to the decision. Any vague formulation of
2
B.D Chipeta (2002),Civil Procedure in Tanzania, Dar es salaam University Press.
3
B.D Chipeta ,A Magistrate Manual,T.M.P book department, Tabora.
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an execution order could cause the parties to start a new dispute about the execution and the

contents of the decision. This should be

“It is ordered and decreed that the defendant do pay the plaintiff the sum of Rs...

with interest thereon @ ... per annum from ... to the realization of the said sum

and do also pay costs of the suit

and not like this

"the plaintiff is allowed to recover an amount of ... with interest @ ... from…day to the date of realisation

with costs

A judgment therefore has a significant social and civic function, now the purpose for judgment is

the following;-

a) To determine the guilty or innocence of accused

After hearing facts, evidences, law, arguments, the court of law will be in a position to

pronounce the conviction or acquittal .Judgment speaks on the status whether the accused

is guilty or innocence.

b) To determine rights and liabilities of the parties

Determination of rights and liabilities is the core business of every court that at last the

parties to a dispute expect that the court will determine the fate basing on fairness and

law such determination is extracted from decree.

c) To serve as precedents

Basically common law doctrine of precedent depends much on honest, reasoned and well

written judgment. The future case with similar nature would rely on the jurisprudence

advanced in the well-reasoned and founded judgments.

d) To develop the legal jurisprudence

good position to establish some new principles which may impact on the existing

jurisprudence at a time. Reasoned judgment is vital to enhancing the development of

several areas of law for example Donoghue Vs Stevenson (1932) was the case of sine

quanon under the law of negligence.

e) To provide accountability and ethics to judicial officers

The court of law is said to be temple of justice and true custodian of individuals rights,

through judgments judges are measured by the public on their decision and public trust

,confidence towards the courts is manifested from just and fair judgments. Due to this, a

judicial officer including magistrates and judges becomes accountable and ethical since

there is an independent eye to check on the credibility and efficiency of their work. In

some jurisdiction such that of Guyana, failure for a judge to write and delivery judgment

renders the ground for removal from office.4

f) To communicate reasons to the parties

The parties and their lawyers, if they have them, need to know how and why a decision

has been reached. It is particularly important that the losing party knows why he or she

has lost the case. It is natural for someone who loses to feel disenchanted with the legal

process so it is important that the reasons for judgment show that the losing party has

been listened to, that the evidence has been understood, the submissions comprehended

and a decision reached. This is particularly important in the case of an unrepresented

litigant

4
Article 197(3) of Guyana constitution
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 g) To inform the general public on the matter in question, we communicate to the public

through the judgments that we write. In order to communicate, a judgment must be clear,

precise, and say everything that needs to be said as to why a decision was reached and no

more. And should not be filled with legal technicalities

h) To provide reason for an appeal court to consider

Once you have been writing judgments for a while you come to welcome the

clarification or expansion of the law by an appeal court or the identification of errors that

you have made so that you don’t repeat those errors. It takes an immense burden from a

judicial officer to know that if you get it wrong it can be corrected on appeal.

However, the said purpose for writing judgment depends much on adherence of the

Independence, impartiality, fairness and competence. Failure to do so, spirit of justice will be

dying behind the closed door.

Skills of judgment writing.

Writing judgment is an art. Therefore, it is agreed that there is no fast and hard rule on how

judgment should be written but the laws such as criminal procedure Act and civil procedure code

provides some elements which need not to be forsaken in every course of writing judgment

which we shall see later, now let us see some skills for judgment writing.

Structure:

Judgment must at least comprise part of the Facts, evidence, arguments, law, applications of law

and conclusion.

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Facts –it is the very important and early stage in judgment writing since from the facts is where

judge is capable to resolve and determine matters in dispute and those not in dispute. It is

important for the decision maker to resolve each of the facts in issue. There must be a summary

of the case as presented by the parties , collects the facts from both sides in a fair trial. In a civil

case, parties describe the facts in their pleadings and in criminal cases through submissions. The

narration of the facts in the judgment need not be boring but interesting and simple. Judgment

need not spell out all the facts contained in the pleading: material facts alone need be stated.

Facts must be narrated in a chronological order. A careful analysis of the pleadings will reveal

what facts are not in dispute and what facts have to be determined.

Evidence- a good judgment is founded on evidence tendered before the court of law from both

sides of the case. And that is the spirit of fair hearing, basing on evidence renders fair and just

judgments to all parties.

Arguments- a good judgment is that which contains arguments from counsels of both parties in

respect to the matter in question. From arguments of parties and evidence is where judge or

magistrate can form an opinion in arriving decision.

Law and its application- It is important to the resolution of any legal dispute that we set out the

relevant statute and case law. We set it out because in clarifying for correct decision we have to

know what the law is and to be able to state it clearly and persuasively. The facts in hand must be

tested in the ambit of Law and give a result. Apply the law to the facts, hence the parties and the

public will accept the decision much more willingly if they can see that the decision is the result

of the objective application of law to the facts that have been found.

Conclusion-At the end you set the decision which must be accompanied by the reasons thereto.

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There are a number of basic rules of good writing which is as much an element of the skill of

judgment writing

 Avoid the use of clichés. I always think a good way to remember this one is to say to

yourself to bite the bullet and avoid trite clichés like the plague

 Be precise and to the point

 Use the active voice rather than the passive. The active is usually more direct and

vigorous than the passive: “I shall always remember my first day as a Magistrate”. This is

much better than “My first day as a Magistrate will always be remembered by me”. The

latter sentence is less direct, less bold and less concise. If the writer tries to make it more

concise by omitting “by me”, “My first day as a Magistrate will always be remembered”,

it becomes indefinite: is it the writer or some undisclosed person or the world at large

who will always remember your first day as a Magistrate? This rule, like all others, is not

an invariable rule of practice but whenever you use the passive you should consider the

use of the active voice instead

 Try not to use language that excludes

 Avoid obvious errors. Judgments are usually expressed in formal written rather than

colloquial oral language.11 It is as well to avoid obvious grammatical errors than will

make others think less of your work. A number of frequent errors can be seen in the

following rather amusing list:

1. Subjects and verb always has to agree.

2. Make each pronoun agree with their antecedent.

3. Just between you and I. case is important too.

4. Being bad grammar, the writer will not use dangling participles.

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 5. Join clauses good, like a conjunction should.

6. Don’t write run-on sentences they are hard to read, you should punctuate.

7. Don’t use no double negatives not never.

8. Mixed metaphors are a pain in the neck and ought to be thrown out the window.

9. A truly good writer is always especially careful to practically eliminate the too frequent use

of many adverbs.

10. Do not use a foreign term when there is an adequate English quid pro quo.

 Try to be interesting That the flow of judgment must be capable of being interested with

public or any reader ,that it should not be boaring

Judgment writing is a skill that can be learned, practiced, improved and refined. A well

structured Judgment enhances clarity and conciseness and helps ensure the reasoning process in

complete. Simple, brief and clear is the best judgment and must contain everything that needs to

be said as to why a decision was reached and nothing more. The Practice of writing lengthy

judgment is not appreciated.

CONTENTS OF JUDGEMENT

It is trite law that judgment must contain a concise statement of the case, point(s) of

determination, decision and reasons for decision.5Also under provision of section 312 of criminal

procedure Act 1985 the same requirements for judgment are shown. However, judgment must be

written by, language of the court, signed and dated. Date must be that on which judgment is

pronounced in an open court. As it has been explained earlier there is no rule of thumb as to the

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Order 20 rule 4 of Civil procedure code
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exact form a judgment should follow, different people use different styles. All that is needed is

compliance with the decision in Kasusura vs Kabuye6.

Concise statement of the case:

Point(s) for determination: judge must develop essentials points from the facts and evidences

given which his decision shall rely upon. From this point is where judgment is drawn.

The decision: in Rashid Nkungu Vs Ally Mohamed7 that as no evidence was adduced there was

no basis for the summing up to the assessors and the judgment that followed. Judgment must

bear decision which is emanated from adduced evidence.

Reason(s) for decision: The judge must give reasons for his decision, for by so doing he gives

proof that he has heard and considered the evidence and arguments that have been produced

before him on each side.8 And also that he has not taken extraneous considerations into account.

The supreme requirement of a good judgment is reason. Judgment is of value on the strength of

its reasons. The weight of a judgment, its binding character or its persuasive character depends

on the presentation and articulation of reasons. Reason, therefore, is the soul and spirit of a good

judgment. Reasoned decisions are not only vital for the purpose of showing the citizen that he is

receiving justice but they are also a valuable discipline for the tribunal itself. A statement of

reasons is one of the essentials of justice.9

Firstly, the requirement of a reasoned opinion provides considerable assurance that the decision

will be better as a result of its being properly thought out. Secondly, reasons will enable a person

who has a right of appeal to determine whether he has good grounds for an appeal and will

6
(1982) TLR 338
7
(1982) TLR 46
8
Tanzania Air Service Ltd Vs Minister for Labour, Attorney General, and Commissioner for Labour (1996 ) TLR 217
9
Prof,Wade (et al), (2005) ,Administrative Law,9th ed, oxford university press
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inform him of the case he will have to meet if he does decide to appeal. Thirdly reasons will

make a tribunal more amenable to the supervisory jurisdiction of the courts and will ensure that a

tribunal is acting within its powers. That is to say, reasons will inform a person why a decision

has been made and will make manifest any errors of law. Fourthly, reasoned opinions will

encourage public confidence in the administration of justice and prevent some arbitrary action.

Burden of proof

In preparing a judgment, one of the important aspects to note in judgment writing is the Burden

of Proof. In civil cases, the standard of proof is on a balance of probabilities or on a

preponderance of probabilities, and the burden of proof on any issue is on the party who asserts a

fact on such issue. In criminal case, the standard of proof is beyond a reasonable doubt.

Pronouncement of judgment

A judgment must be pronounced in open court. Open court means a place to which the public has

free and unhindered access to listen to the court proceedings, and it is usually a court room.10It is

the requirements that springs from the principle of justice must be done and seen to have been

done. However, the court has discretionary powers to try in contrary depending on interest of

justice, intimidation of witness, and interest of national security.

Pronouncement of judgment by succeeding magistrate when it happens that by reasons of death,

transfer or any other sufficient cause a judge or magistrate fails to exercise jurisdiction in a

particular place before pronouncing judgment which he has prepared .In such event the

succeeding judge or magistrate may pronounce judgment which has been written and not

pronounced by his predecessor.11

10
ibid
11
Order 20 rule 2 of civil procedure code of 1966
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In arriving to this end, refer back the Lord Denning remarks on the Judgment, TRY TO MAKE

YOUR JUDGEMENT LIVE.

Thanks

Court of law is not the place for enrichment but balance and justice.

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