By Hameed Ajibola Jimoh, Esq.
Some (if not all) Nigerian legislation, whether federal legislation, state legislation, bye laws of local governments, or other subsidiary laws, is full of difficult-to-comprehensive words for laymen to the extent that even lawyers are sometimes confused as to the meanings of certain words, phrases, clauses, or sentences used in some Nigerian legislation. What then is the position of the lay and untrained men in the understanding and application of such difficult-to-understand legislation? Whereas, by virtue of section 36(6)(a) of the Constitution of the Federal Republic Of Nigeria, 1999 (as amended)-herein after referred to as the Constitution, ‘Every person who is charged with a criminal offence shall be entitled to (a) be informed promptly in the language that he understands and detail of the nature of the offence;’ (Same provisions are contained under the African Charter of Human and People’s Rights as an international human rights law to which Nigeria had subscribed to be binding on Nigeria.) One critical question is, ‘How will such an enforcement agency of the government inform a suspect in the suspect’s language (assuming the language is even English) where the said enforcer or police (with due respect) does not understand the words used by the legislation he seeks to inform the suspect about?! Will that not lead to misinforming the suspect of the detail of the nature of the offence?! How will such enforcer or police interpret the provisions of the criminal legislations to the suspect?! Then, how will the suspect understand the criminal law under which he is being charged?! In my humble view, these are critical questions. Hence, this paper humbly recommends to legislators to always use the words or phrase ‘that is to say’ to clarify seemingly difficult words and in a way to ensure that every Nigerian legislation is easy to understand by all and not just lawyers or trained professionals (to the extent that even a professor who is a non-lawyer might not understand Nigerian legislation). Hence, this recommendation, in the interest of justice.
First and foremost, on the Rules guiding interpretation of statutes, the Supreme Court of Nigeria had held in the case of Olofu v. Itodo (2010) 18 NWLR (Pt. 1225) 545 at 585 paras. F-G held thus:
“I must remark here that in the interpretation of any statute or instrument, the object is to ascertain the intention of the legislature that had drawn it. The cardinal principle is that parties are presumed to intend what they have in fact said or written down.” This shows that the courts, in the course of interpreting the provisions of a statute or any document, are basically trying to give effect to the intention of the draftsmen of the statutes or documents.’.
Also, the Court has held that
“It is trite that a judicial interpretation must construe a provision to save it and should, by interpretation, avoid making nonsense of the statute. It is basic that one of the vital canons of interpretation of statutes is that Courts of record should be minded to make broad interpretation or what is sometimes referred to as giving same a liberal approach.’
See NURTW & Anor v. RTEAN & Ors (2012). 10 NWLR (pt 1307) 170, Elabanjo & Anr v Dawodu (2006) 15 NWLR (pt 1001) 76, Mobil Oil Nig. Plc v IAL 36 Inc. (2000) 6 NWLR (pt 659) 146.”
Furthermore, some of the principles guiding interpretation of Nigerian statutes are as follows:
The main principles of interpretation are ‘the literal rule’; ‘golden rule’; and’mischief ‘rule’.
(1) The Literal Rule: According to this rule, the words used in statutes and legal instruments are to be construed literally, i.e., by giving the words their ordinary grammatical meaning. See the case of Global Excellence Comm. Ltd. v. Donald Duke (2007) 16 NWLR (Pt. 1059) 22 in respect of Section 308(1)(a) of the Constitution.
(2) The Golden Rule: By this rule, the wordings of a statute or legal instrument must be given their ordinary grammatical meaning, but where the ordinary meaning will lead to absurdity, the Court should adopt an interpretation that avoids such absurdity. See the case of Saraki v. FRN (2016) LPELR-40013 (SC). Furthermore, where the words to be interpreted are ambiguous, it is the court’s duty to interpret the words in such a manner as to avoid absurdity. It is under this rule that the courts sometimes construe ‘“or’’ as conjunctive and “and’’ as disjunctive. See the English case of Brown & Co. v. T & J. Harrison (1927) All ER 195 at 203, thus:
“Again, I disagree with the learned judge in his view that the word “or” can never have a conjunctive sense. I think it quite commonly and grammatically can have a conjunctive sense. It is generally disjunctive, but it may be plain from the collation of the words that it is meant in a conjunctive sense, and certainly where the use of the word as a disjunctive leads to a repugnance or absurdity, it is quite within the ordinary principles of construction adopted by the Court to give the word a conjunctive use. Here, it is quite plain that the word leads to an absurdity.”
The Supreme Court applied this principle in the cases of Ndoma-Egba v. Chukwuogor (2004) 6 NWLR (Pt. 869) 382 at 409 and Kabirikim v. Emefor (2009) 14 NWLR (Pt. 1162) 602 at 623.
(3) The Mischief Rule: According to this rule, in order to interpret a statute properly, it is necessary to consider what the law was before the statute to be construed was passed and what mischief the old law did not provide for, as well as the remedy/cure for that mischief that is provided by the statute being interpreted. In short, this rule stipulates that the Court basically should construe statutes in such a manner as to suppress the mischief and advance the remedy. A good example is the case of Rotimi Ameachi v. INEC (2007) 5 NWLR (Pt. 1080) 227 and Section 141 of the Electoral Act, 2010.
A brief fact of the Amaechi’s case:
Amaechi contested at the PDP Governorship Primaries in Rivers State with 7 other contestants and won. PDP sent his name to INEC as its Governorship candidate but subsequently substituted Celestine Omehia’s (“Omehia”) name for Amaechi. Meanwhile, Omehia did not participate in the said PDP Primaries. Amaechi subsequently sued INEC at the Federal High Court (“FHC”) challenging the substitution of his name on grounds that the PDP did not comply with Section 34 of the Electoral Act, 2006 and joined PDP and Omehia as defendants. The FHC ruled against Amaechi and he appealed to the Court of Appeal. While that appeal was pending, the Governorship Election was conducted in Rivers State and Omehia was sworn in as Governor of Rivers State. Amaechi lost at the Court of Appeal and he appealed to the Supreme Court. The Supreme Court eventually held that his substitution was unlawful and declared him Governor of Rivers State.
Sequel to the decision of the Supreme Court in Ameachi’s case, the Electoral Act of 2006 was amended by the National Assembly and Section 141 now provides that “an election tribunal or court shall not under any circumstance declare any person a winner at an election in which such person has not fully participated in all stages of the said election.” The mischief the amendment cured is obvious.
Other Principles:
- i) It is a general principle of law that statutes must be read and interpreted as a whole. Thus, where a section of a statute is sought to be interpreted, the Court should consider other sections. This principle was applied in the case of Tegwunor v. State (2008) 1 NWLR (Pt. 1069) 630 at 656 and Rotimi Ameachi v INEC (supra) at page 314 paragraphs G – H.
- ii) It is also a trite principle of law that the Court and the parties are not allowed to read into the provisions of the statute or legal document. See the cases of Kwara State Independent Electoral Commission v. PDP (2005) 6 NWLR (Pt. 920) 25 at 53 – 54 and Nnabude v G.N.G (W/A) Ltd (2010) 15 NWLR (Pt. 1216) 365 at 385.
iii) The maxim expressio unius personae vel re est exclusio alterius and this simply means the express mention of one thing is the exclusion of others. See the case of Ehuwa v O.S.I.E.C & 3 Ors (2006) 18 NWLR (Pt. 1012) 544 at 568 – 569. A good example of this principle is the provisions of Section 284(1) of the Investments and Securities Act, 2007(“ISA”) and the case of Okorocha v U.B.A Plc & Ors (2011) 1 NWLR (Pt. 1228) 348. Where the list of persons or things listed in the statute are mentioned as an example, this principle will not apply. The Supreme Court reiterated this principle in the case of A-G Ondo State v A-G Ekiti State (2001) 17 NWLR (Pt. 743) 707 at 768.
- iv) The Context Rule – this states that the words of the statute are to be read and interpreted within the context in which they have been used. For example, the words “in particular” as contained in Item 61 of the 1979 Constitution was interpreted by the Supreme Court in the case of A.G Ogun State v Aberuagba & Ors (1985) 1 N.S.C.C 487 as having delimiting effect.
Aids to Interpretation:
The Court relies on the preamble, punctuation marks, headings and marginal notes of a statute to interpret its provisions. See Section 3 of the Interpretation Act, Cap I23, LFN 2004. The Court also relies on external aids such as dictionaries, textbooks, Interpretation Act, similar statutes and case law to interpret the provisions of statutes and legal instruments. In Dipialong v Dariye (2007) 8 NWLR (Pt. 1036) 332 the Supreme Court held that “where words or expressions in the provisions of a statute have been legally or judicially defined or determined, their ordinary meanings will definitely give way to their legally or judicially defined meanings.” See also the case of ACME Builders v K.S.W.B (1999) 2 NWLR (Pt. 590) 288.
Contracts:
The above principles of interpretation will also be applied when the Court is called upon to interpret a contract. The cardinal rule of interpretation of an agreement is that it must be interpreted in such a way as to give effect to the intention of the parties. In Bank of Credit and Commerce International SA v. Ali and others (2002) 1 AC 251at 259 Paragraph F-G, Lord Bingham held as follows:
“I consider first the proper construction of this release. In construing this provision, as any other contractual provision, the object of the court is to give effect to what the contracting parties intended. To ascertain the intention of the parties the court reads the terms of the contract as a whole, giving the words used their natural and ordinary meaning in the context of the agreement, the parties relationship and all the relevant facts surrounding the transaction so far as known to the parties. To ascertain the parties’ intentions the court does not of course inquire into the parties’ subjective states of mind but makes an objective judgment based on the materials already identified.” See also the case of Larmie v. D.P.M.S. Ltd (2005)18 NWLR (Pt. 958) 438 at 47.
Also, by the Rules of Statutory Interpretation, the following are emphasized:
Amongst the rules followed by the courts in the interpretation of statutes are ‘basic presumptions’:.
Basic presumptions.
While interpreting statutes, there are some rebuttable presumptions which would be held by the courts. The courts would usually assume that statutes are not intended to have some consequences unless stated otherwise. Some of the basic presumptions are as follows.
Presumption against change in existing law: The courts in the interpretation of statutes would always presume that there is no intention to change the existing law. The court would only hold otherwise if the new law expressly states that there is a change in the existing law or if it is impossible to read the new law without accepting a change in existing law. In Day v. Brown Rigg, the court favoured the position that the existing law had not been changed.
Presumption against repeal: Closely related to the above presumption is the presumption against repeal. The courts are usually of the position that existing laws have not been repealed simply because a new law on the matter has been enacted. It is usually necessary that the new law expressly repeals the old law or the two are so inconsistent that the new law cannot be in force unless the old law is taken to be repealed.
Presumption against strict criminal liability: One principle which is usually adopted in common law is that it is better for nine criminals to escape punishment than for one innocent person to be wrongly punished. In line with this, there is usually a presumption against strict criminal liability and a person cannot be pronounced guilty have any crime unless there was also an intention to commit the crime. It is not only a guilty act which is to be proved, but also a guilty mind. If the statute prescribes that the offence is one of strict criminal liability, then the presumption is rebutted as stated in R. v. Efana and Police v. Yahaya.
Presumption against deprivation of property: Any law which encroaches on a vested right is usually interpreted strictly. As regards property, there is a presumption of the law against a person being denied of their property unless the law expressly and unambiguously states so. Even when the law expressly states so, compensation should be paid and the courts shall not extend the law beyond what is provided for. See Garba v. Federal Civil Service Commission and Ohuka v. The State.
Presumption against ouster of jurisdiction: The courts usually hold a presumption against ouster clauses which purport to oust the jurisdiction of the courts. Where such ouster clauses are provided for, they must be express. Once they have been expressly and clearly provided for, the court has no choice but to accept that its jurisdiction has been ousted as stated by Nnaemeka-Agu, J.S.C. in Nwosu v. Imo State Environmental Sanitation Authority.
Other presumptions: Other presumptions which are followed by the courts include presumption against retrospectivity of laws, presumption against irregularity of law, presumption against impossibility as the law shall not ask anyone to do what is impossible, presumption against injustice, presumption against absurdity, etc.
Statutory definitions.
Most major statutes have interpretation sections which define technical words which may have been used to prevent ambiguity. Section 318 of the 1999 constitution contains such interpretations of some words used in the constitution and the Criminal Code also has an interpretation section. This helps to reduce confusion in the interpretation of statutes. To supplement all of these is the Interpretation Act which makes provision for general words and phrases used in statutes. For example, the Interpretation Act provides that words that refer to the masculine gender shall also be taken to refer to the feminine gender and words that refer to singular shall also refer to the plural and vice versa.
Intrinsic guides.
Intrinsic guides refer to the parts of the statute which may be used by the courts in interpreting statutes. They include the preambles, headings and titles, marginal notes and explanatory notes.
Preamble: Statutes often have preambles, and they are becoming more common in modern statutes. When they are used, they give an insight into the reason the statute was enacted. An example of this is the preamble in the 1999 constitution. The court in Okeke v. Attorney-General of Anambra State read the preamble to Decree number 13 of 1984 as part of the decree in order to better understand it.
Headings and Titles: Heading and Titles may be used to interpret a statute if the main body of the statute is ambiguous. The Supreme Court stated in U.T.C.(Nig.) Ltd. v. Pamotei that titles and headings should only be used in the interpretation of statutes when the body of the statute is ambiguous. The long title often provides the reason for the statute and this is often instrumental in the interpretation of the statute.
Marginal notes: Strictly speaking, marginal notes are not part of the statute just as headings are not. They may however be used in the interpretation of statutes as in cases like Oloyo v. Alegbe. Where the provisions of the statute are clear, the marginal notes may be ignored as they are not binding as laws.
Explanatory notes: Explanatory notes are usually inserted after the law has been passed and they are more common in modern statutes. They do not form part of the statute, but may serve as pointers to the intention of the legislature while passing the statute.
Common law rules.
The major common law principles which guide the courts in the interpretation of statutes are something like canons of interpretation. However, these rules are not absolute. It happens often that while one principle supports one perspective of interpretation, another principle would support an opposing interpretation. The major common law rules that shall be observed are the literal rule, the golden rule, the mischief rule and the ejusdem generis rule.
The literal rule.
The literal rule prescribes that words should be given their ordinary meaning when statutes are being interpreted. It is believed that the ordinary meanings of words contain the true intention of the legislature. This view was supported by Tridal, C.J. in the Sussex Peerage Case. It is believed that the mere inconvenience of words when applied in their ordinary sense is not enough to depart from the ordinary meanings of the words. This view was shown in the cases of Adegbenro v. Akintola and Okumagba v. Egbe. The harshness of the rule was shown in the case of R. v. Bangaza where the defendants faced capital punishment for an offence committed while they were infants because they were not infants anymore when they were convicted.
The problem with this rule is that words often have more than one meaning which can lead to ambiguity. This is what leads to the next rule.
The golden rule.
Where the application of the original meaning of the words used in the statute would create absurdity, inconsistency or ambiguity, the courts may choose to apply the secondary meaning of the words used. The assumption is that lawmakers do not intend anything that is absurd. The rule was formulated in Becke v. Smith where Parke, B., stated that it is important the give words their ordinary meaning when interpreting statutes, but the words may be modified if the ordinary meaning leads to absurdity. The words should only be modified as much as is required to remove the absurdity, and no further. The kind of absurdity that is referred to is when it would be illogical, either because the statute contradicts itself or it contradicts a principle in law. A statute cannot be said to create absurdity in its literal translation simply because it is inconvenient for one of the parties.
In Re Singsworth, a son who had murdered his mother was exempted from inheriting the deceased’s estate to prevent him from benefiting from his crime. In R. v. Eze, the court construed “or” as “and” to make sense of the definition of an indictable offence. This interpretation was adopted by the Supreme Court in Ejor v. Inspector-General of Police and given legislative endorsement through a subsequent amendment of the section.
Mischief rule.
The mischief rule was laid down in Heydon’s case. In the application of this rule, the intention of the judiciary is used to interpret a statute and not just the written words. In doing this, it is important for the court to consider the state of affairs before the law was made and the ill in the society which the law was made be correct. The court is then to interpret the law in line with such. It is known as the mischief rule because the court is to interpret the law in such a way that it applies to the mischief it was made to correct. In finding the intention of the legislature, the court may consult the preamble of the statute and other extrinsic sources. For example, if a law is made against littering in classes to improve cleanliness in the faculty and X litters right outside a classroom, the law may be interpreted to extend to outside the classrooms to suit the purpose for which the law was created. This rule was employed by courts in Smith v. Hughes and Akerele v. Inspector-General of Police.
The mischief rule may also be used to prevent a law made for one purpose from being used for another purpose. In Gorris v. Scott, a statutory order required that animals on board a ship be kept in pens of a specified size. The defendant violated the rule which caused the plaintiff’s sheep to get washed overboard during a storm. The plaintiff sued for breach of a statutory duty. The court gave its decision in favour of the defendant since the rule was made to prevent the spreading of diseases and not to prevent the washing of animals overboard. It was held that the law should be applied to the mischief for which it was created.
Where the words of the statute are clear, the rule may be used to expand or restrict the interpretation. In Corkery v. Carpentar, a bicycle was interpreted to be a “carriage” in the interpretation of a statute and in Kruchlak v. Kruchlak, a married woman with no husband to support her was treated as a single woman for the purpose of affiliation proceedings while in Wiltshire v. Barette, the power to arrest a person committing an offence was interpreted broadly to include persons apparently committing a crime.
The Ejusdem Generis Rule.
This rule proffers that when general words come after particular words, the general words should be interpreted in line with the particular words. In Nasr v. Bouari, the court was to interpret section 1(1) of the Rent Control Act 1965 which defines premises as a building of any description occupied or used by persons for living or sleeping or other lawful purposes. The court was to decide whether the section included use for a nightclub in its definition of premises. The court held that nightclub was not included as “other lawful purposes” refers to purposes similar to living and sleeping. In R. v. Payne, a crowbar was included in the interpretation of a statute under which it was an offence to convey into prison with the intent to facilitate the escape of any prisoner, any mask, dress or other disguise, or any letter, or any other article or thing.
New purposive approach.
From the foregoing, it is possible to divide the two groups of interpretation into the literal and the constructive approach. The literal approach involves the giving the words their ordinary meanings, while the constructive approach involves judges modifying the law more in line with the intention of the legislature.
The new purposive approach is a blend of the golden and literal rule. According to Lord Denning, a judge should not just wring his hands in helplessness and apply laws which perpetrate injustice. He was of the view that judges should apply the laws according to the intention of the legislature and that the gaps should be filled in where necessary. This view was opposed by some, and prominent amongst these is Lord Simonds. The strict constructionist is of the believe that laws should only be given their literal interpretation and if there is anything wrong with the laws, they should be corrected by the legislature through an amendment. The function of the judge, it has been stated, is to interpret the law and not to create the law.
Both the House of Lords of England and the Supreme Court tilt more towards the strict constructionist approach. However, it would be good for judges to occasionally give laws the interpretation that is best in line with justice.
Limitation of use of extrinsic material.
Traditionally, courts are not inclined to go into the history of laws or state policies, and instead they are only concerned with what the law says. The courts have even stated in cases like Kehinde v. Registrar of Companies that it would not be guided by government policy as it was the job of the executive to implement government policies and it was out of the authority of the judiciary. The Court of Appeal in Asheik v. Governor of Borno State stated that a budget speech is a bare policy statement of the government with no force of law until it is promulgated into law. However, the recent decision of the Supreme Court in Attorney General of Lagos State v. Attorney General of the Federation has shown that the court would occasionally be willing to delve into the history of laws in the search for the intention of the legislature.
Constitutional Interpretation
In the interpretation of the constitution, it should be noted that the courts’ attitude is not the same as in the interpretation of statutes. While the courts usually adopt a literal approach in constitutional interpretation, the courts are also often liberal and follow the decision which is best in the furtherance of justice. This is different from the position of the British courts interpreting the constitutions of its colonies. This is to be expected of a legal system which a written constitution is foreign to and practices a parliamentary system. While similar constitutional provisions in other common law jurisdictions may be considered in the interpretation of constitutions, they are only persuasive and are not to be overly relied upon. The constitution is to be interpreted in such a way that it fits into the political, social and cultural state of Nigeria, with Nigeria’s history being considered while interpreting. While the court adopted a literal approach in Attorney General of Ondo State v. Attorney General of the Federation, it adopted a liberal view in Bronik Motors Ltd. v. Wema Bank Ltd. Other cases which included constitutional interpretation include Director of S.S.S. v. Agbakoba, Rabiu v. State, Adegbenro v. Akintola, Awolowo v. Shagari, etc. (See: LearnNigerianLaw online)).
Furthermore, on the meaning of ‘that is to say’… in English according to the Cambridge Advanced Learner’s Dictionary (online), it is defined as ‘idiom’, meaning ‘or more exactly:’, ‘said when you want to give further details or be more exact about something:’. It is also said about the words as ‘You use that is to say or that’s to say to indicate that you are about to express the same idea more clearly or precisely.’. Also, in British English in other words; more explicitly’. See: Collins COBUILD Advanced Learner’s Dictionary (online). It is also said to mean ‘in American English ‘in other words’; ‘that means’’. See: Webster’s New World College Dictionary, 4th Edition (Online).
In my humble submission, the use of ‘that is to say’ in Nigerian legislations has some unique advantages such as:
- Every citizen gets to understand the mind of the legislators in a clearer term;
- The problems associated with an educated person reading in an uneducated way would have been resolved (that is to say; such problem would no more exist).
- Citizens would find it easy to contribute to public opinions on the making of legislations (that is to say; they will be able to offer opinion of such legislations).
- Suspects can now interpret the words of criminal legislations without difficulty and be able to seek the enforcement of their rights confidently either by themselves or through the engagement of the legal services of a legal practitioner; among other benefits.
Finally, it is humbly recommended that ‘contract agreement’ just like ‘legislations’ should also adopt the use of ‘that is to say’ to clarify the meaning so that parties can be at ad idem (that is to say; to be in agreement or have a unified intention or agreement of the said terms or words or meaning) and or the intention of the parties thereto. It is my hope that our legislators (as well parties to contract agreement) would review this paper and adopt the recommendations being made by this paper, in the interest of justice.
Email: hameed_ajibola@yahoo.com 08168292549.
Source: thenigerialawyer
