Thursday, 31 January 2019

Rules of legislative drafting (Professional Ethics)

RULES OF LEGISLATIVE DRAFTING
BY C.J. OKOYE ESQ.

RULES OF INTERPRETATION OF STATUTES


An important role of the courts is the interpretation of statutes and documents.
The object of interpretation of statute is to discover the intention of the framers of the law, which is always found in the language used in the statute.

Once the meaning of a statute is clear, the courts are to give effect to it.  See OJUKWU V. OBASANJO (2004) ALL FWLR (PT. 222) 166.

The exercise of interpreting statute is a question of law and not of facts.  The courts have formulated some rules and principles in the construction of statutes, which are referred to as “canons of construction”.

In interpreting the law, the court is not permitted to invite the lawmakers to explain what the provisions of any law mean.  The court must find the intention of the lawmakers through the medium of the words used.  Oftentimes, there is no precision in the words used.  For some reasons, some words tend to have two or more meanings.  Some words used in statutes appear vague such that the task of interpreting them may be likened to that of making a subsidiary legislation.  Examples of such words are as follows: “reasonable time”, “inordinate delay”.  When the words of a statute are clear, there is little problem of interpretation.  A statute, which is ambiguous or not clear, may be difficult to interpret.

Sometimes, there are mistakes made through the use of wrong words.  Such mistakes must be corrected by the Legislature.

COMPLETION OF GAPS IN LEGISLATION
Again, there may be gaps or lacuna(e) in statutes.
 But the courts are not expected to fill such gaps in statutes.  The legislature only can fill gaps in statutes by a subsequent enactment.  The court cannot guess the intention of the legislature but must discover because this is a primary object of interpretation. In interpreting statutes, the courts must first interpret the meaning of the words used in the statute before construing their legal effects or consequences.

The majority of the cases on appeal to the superior courts are on interpretation and construction of legal documents.  Hardly can there be any perfect legislative formula.  Therefore, the problem of interpretation persists.

It must be noted that there is no single fixed effective rule of interpretation that is applicable in all cases relating to construction of statutes.

THE TOOLS NEEDED TO SOLVE THE PROBLEM OF INTERPRETATION INCLUDE:

1) The Interpretation Act.
2) The Definition Clauses.
3) Law dictionaries and
4) Decisions of superior courts defining certain words and clauses.

There are some general Common Law principles and the statutory rules applied by the courts in interpreting statutes.  Although they are regarded as rules, yet they are mere guiding principles.

THE LITERAL OR PRIMARY RULE OF INTERPRETATION
This rule is also known as the “ordinary and natural meaning” rule.  It is also known as the “plain meaning” rule or the “grammatical approach”.  The rule says that in interpreting statutes, the words in a statute should be given ordinary or literal or primary or plain meaning once the meanings are clear and unambiguous.

Accordingly, the duty of the courts is to interpret the words of the statutes and they are not to resort to any external aid.

See the following cases:

1) AKINTOLA V. ADEGBENRO (1963) AC 61.

2) In AWOLOWO V. SHAGARI (1979) 6-9 SC 51, an Election Petition presented to the Presidential Election Tribunal sitting in Lagos, Chief Obafemi Awolowo contested the declaration of Alhaji Shehu Shagari as the duly elected President of the Federal Republic of Nigeria in an election held on the 11th day of August 1979.  The centrepiece of the contention was that Alhaji Shagari had less then one quarter of the votes casts at the election in each of at least two-thirds of the States in the Federation, contrary to Section 34(A) subsection (1)(c) (ii) of the Electoral Decree, 1977 which had been inserted by Section 7 of the Electoral (Amendment) Decree, 1978.

The respondent denied all the issues raised in the appeal.  Both the petitioner and Counsel to the 1st Respondent addressed the tribunal at length as to the interpretation which should be ascribed to the words:

“Not less than one quarter of the votes casts at the Election in each of at least two-thirds of the States in the Federation”.

It was held inter alia per Hon. Justice Fatai Williams, the then CJN, at pages 63 to 64 that:

“A statute should always be looked at as a whole; words used in a statute are to be read according to their meaning as popularly understood at the time the statute became law.  A statute is presumed not to alter existing law beyond that necessarily required by the statute”

The Hon. CJN went further at page 65 to 66:

“It is also relevant to point out that anybody called upon to interpret any kind of statute should not for any reason attach to its statutory provision a meaning which the words of the statute cannot reasonably bear.  If the words used are capable of more than one meaning, then the person interpreting the statute can choose between these meanings but beyond that, he must not go”.

The advocates of the Literal rule of interpretation believe that the legislature has said what it means and means what it said.  When the words of a statute are clear and unambiguous, it is unnecessary to travel beyond the statute for the purpose of construing them.

In IDEHEN V. IDEHEN (1991) 6 NWLR (PT. 198) 382, the Supreme Court held that the first and most elementary rule of construction is the Literal rule.


THE GOLDEN OR PURPOSIVE RULE
This is also called “the purposive rule”.
The rule stems from the assumption that every legislation has some underlying purpose and that in construing the words of the legislation, the courts must give effect to the purpose of the legislation.

In effect, the rule states that where the words used would lead to absurdity, then they should be modified so as to get the intention of Parliament or the legislature.

The Golden Rule was formulated in BECK V. SMITH (1836) 2 M AND W 191, particularly at page 195; 150 ER 724, particularly at page 726.  It states:

“It is a very useful rule in the construction of statute to adhere to the ordinary meaning of the words used and the grammatical construction unless it is at variance with the intention of the legislature to be collected from the statute itself or leads to any manifest absurdity or repugnance in which case the language may be varied or modified so as to avoid such inconvenience but no further.

It has been said that where the application of plain, grammatical meaning of the language of the enactment would lead to manifest absurdity or repugnance, the language may be varied or modified so as to avoid such inconvenience.”  BECK V. SMITH (SUPRA), per Parke, B.

See also the following cases:

2. LEE V. KNAPP (1967) 2 QBD 442.
3. BRONIK MOTORS V. WEMA BANK (1983) 1 SC 296; (1983) NSCC 226.  In Bronik Motors case, the issue was the interpretation of the expression “as may be prescribed” used in Section 230(1)(a) and (b) of the 1979 Constitution.

With regard to this expression, Hon. Justice Idigbe JSC stated:

“Therefore, where a judge is of the opinion that the application of the words of an enactment in their ordinary meaning would produce an absurd result which cannot be reasonably supposed to have been the intention of the legislature, he may apply the words in any secondary meaning which they are capable of bearing”.

Lord Denning, in the case of MAGOR AND ST. MELLONS RURAL DIST. COUNCIL V. NEWPORT CORPORATION (1950) 2 ALL ER 1226 particularly at page 1236 stated:

“We sit here to find the intention of parliament and of ministers and carry it out and we do this better by filling in the gaps and making sense of the enactment, then opening it up to destructive analysis”.

It is important to note that this rule has been criticised in that some say that it is not the function of any judge to fill in what he conceives to be the gap in the Act of Parliament.  If the judge does so, he usurps the function of the legislature.

Suffice it to say that in many cases, the courts in Nigeria have applied the Golden Rule without necessarily expressly mentioning it.

In ADAMOLEKUN V. COUNCIL OF THE UNIVERSITY OF IBADAN (1967) ALL NLR 40, (1958) NMLR 253, in applying the Golden Rule, the courts sometimes construe the word “or” as “and” in such a way as to avoid absurdity.  However, the primary object of the court in adopting such construction is to give effect to the intention of the legislature.

See R. V. EZE (1950) 19 NMLR 110.

THE MISCHIEF RULE
In the construction of the provisions of a statute, the history of the legislation and the mischief it was designed to prevent must be considered since the purpose of every interpretation is to discover the intention of the legislature from the words used.

In a simple form, the Mischief Rule is a rule of interpretation that states that in construing the words in a statute, the court should look at the circumstances leading to the enactment of that statute.  In doing so, the courts must be guided by the principle laid down in HEYDON’s case. (1584) 3 CO REP 76.  Four tests are laid down in Heydon’s case.

1. What was the Common Law before the statute was enacted?
2. What was the defect or mischief, which the Common Law did not provide for?
3. What is the remedy proposed by the legislature?
4. What is the true reason for the remedy?

This principle was restated in ABIOYE V. YAKUBU (1991) 5 NWLR (PT. 190) 130.  The argument is that unless there is a problem, the literal words should be applied.

See also SMITH V. HUGHES (1960) 1 WLR 830; (1960) 2 ALL ER 839.

See also AWOLOWO V. SHAGARI (SUPRA).

Note that this principle is only applicable where the meaning of a statutory provision is ambiguous.
Illustration:In a situation whereby students are asked to come early for lectures, and decide to come late for tutorial. He will not be held liable.
QUESTION
Spot the difference between the Golden Rule and the Mischief Rule?

ANSWER
The golden rule of interpretation states that where the words used in a statute would lead to absurdity, then they should be modified so as to get the intention of the Legislature whereas the Mischief Rule is a rule of interpretation that states that in construing the words in a statute, the court should look at the circumstances leading to the enactment of that statute and in doing so, the court must be guided by the four tests laid down in HEYDON’s case as follows:

1. What was the Common Law before the statute was enacted?
2. What was the mischief which the Common Law did not provide for?
3. What is the remedy proposed by the Legislature?
4. What is the true reason for the remedy?

See the following cases:

1. ABIOYE V. YAKUBU.
2. SMITH V. HUGHES.
3. AWOLOWO V. SHAGARI.

EJUSDEM GENERIS RULE
It has been said that ejusdem generis simply means “birds of the same feather”.  It also means “of the same kind or genus”.  This rule means that where particular words of the same class or genus are followed by a general word (a generis), the meaning of the general word will be limited to things similar to the class of things earlier enumerated.

In other words, the rule says that where a specific class of things or a particular class of things are mentioned followed by general words, the specific class should be interpreted as comprehensive and the general words interpreted as ejusdem, that is, of the same kind with the specific or particular class.

The courts have said that this doctrine should be applied with caution and that it should be applied only where the application will be consistent with the intention of the legislature.

It may be indicated in a clause or a document, the clear intentions to exclude the application of the rule.  In other words, you will find some documents specifically indicating that the rule does not apply.

See the following cases:

1. TILLMANNS AND CO. V. KNUTSFORD (1908) AC 406.  In Tillmann’s case, a ship, which was to be relieved of liability in the port, was inaccessible as a result of war, disturbances or any other cause.  It was held that inaccessibility of the port caused by ice makes the rule inapplicable in this case.

2. JAMMAL STEELS STRUCTURE V. ACB (1973) ANLR 823.  The Supreme Court in this case had to decide the issue whether the ejusdem generis rule applies to the interpretation of Section 7(1)(b)(iii) of the Federal Revenue Court Decree, 1973 that provides “banking, foreign exchange, currency or other fiscal measures”.  The court held that the rule applies.

3. OJUKWU V. OBASANJO (SUPRA).  Ojukwu’s case concerns the interpretation to be given to Section 137(1)(b) of the 1999 Constitution which says that:

“A person shall not be qualified for elections to the Office of the President if he has been elected to such office at any two previous elections”.

The Supreme Court held that the expression “such office” which comes after the words “to the Office of the President” is comparable to the office which can be filled through electoral processes.  It excludes an office to which one is appointed by the Supreme Military Council (SMC).

For the ejusdem generis rule to apply the specific words must constitute a class or a genus and the general words must exclude themselves from the class or the genus.  The ejusdem generis rule does not apply where there is only one word which does not form a genus.  See QUAZI V. QUAZI (1980) AC 744.

To exclude the ejusdem generis rule, you may adopt any of the following devices:

1. “including but not limited to”.
2. “without prejudice to the generality of the following”.

OTHER GENERAL PRINCIPLES OF INTERPRETATION
a. Lex non logit ad impossiblia, that is, “the law does not compel the doing of impossibilities”.  In other words, a statute is to be construed in such a manner as not to command what is impossible.  See the case of OHUKA V. STATE (1988) 1 NWLR (PT. 72) 539.

Where specific provisions of a statute are opposed to the general provisions, the specific provisions will prevail.  See the case of SCHRODER AND CO V. MAJOR AND CO. LTD. (1989) 3 NWLR (PT. 101) 1.

b. Ut res magis valeat quam pereat, that is, “that it is better for a thing to have effect than to be made void.  See ROE V. TRANMARR (1757) WILLES 682.  This rule portends that the legislature itself intends the interpreter of an enactment to construe the enactment in such a way as to implement rather than defeat the legislative intention.

Where there are two possible interpretations to a document, the court is expected to adopt that interpretation which will aid the smooth running of the system rather than that which creates confusion.  This rule of construction is the basis of the liberal and broad approach to the construction of the Constitution.  See NAFIU RABIU V. STATE (1980) 8-11 SC 130; (1981) 2 NCLR 293.

c. Expressio unius est exclussio alterius means, “the express mention of one thing is the exclusion of another”.
Where an enactment enumerates the things upon which to operate, everything else (not enumerated) must necessarily and by implication be excluded from its operation and effect.  See the case of ATTORNEY GENERAL OF BENDEL STATE V. AIDEYAN (1989) 4 NWLR (PT. 188) 646.

d. Statutes ousting Jurisdiction of the court or derogating from individual rights are strictly construed.  See ATTORNEY GENERAL OF THE FEDERATION V. SHODE (1990) 1 NWLR (PT. 128) 500.

e. The Constitution is interpreted broadly and liberally.  See NAFIU RABIU V. STATE (SUPRA).  See the case of ATTORNEY GENERAL OF BENDEL STATE V. ATTORNEY GENERAL OF THE FEDERATION AND ORS. (1980) 10 SC 1; (1981) NSCC 314.

f. Noscitur a sosiis, meaning, “words should be used as they are”.  This postulates that the company it keeps knows a word.  In other words, the meaning of a word can be gathered from the context.  For example:

“Council shall provide further directives regarding the legal training at the Nigerian Law School”.

Which training?  Is it Area Council or Legal Aid Council?  No, it refers to Council of Legal Education.  See the case of GARBA V. THE FEDERAL CIVIL SERVICE (1988) 1 NWLR (PT. 71) 429.
g. Contra proferentem Rule.  This means that when you are construing a word or phrase in a document, which is capable of more than one interpretation, it should be construed against the person who made it.  It is usually in use in Insurance transactions and commercial transactions generally.
h. Generalibus specialia Derogant
The maxim literally means special things derogate from general things.  It entails that general provisions in a statute cannot override special provisions.  See SHROEDER V. MAJOR (1989) 2 NWLR (PT. 101 1.  In the case of ATTORNEY GENERAL OF OGUN STATE V. ATTORNEY GENERAL OF THE FEDERATION (2003) FWLR (PT. 143) 206, the Supreme Court held that the provisions of Section 162(1) and (10) of the 1999 Constitution are general in nature while Section 163(b) are specific.  Therefore, Capital Gains Tax and Stamp Duties, which are provided in Section 163(b), are exceptions to the revenue, required to be paid into the Federation Account, pursuant to Section 162(1) of the 1999 Constitution.

THE BENEFICIAL RULE OF CONSTRUCTION
This is the approach of the courts when they are faced with a choice between a wide meaning which carries out what appears to have been the object of the legislature more fully and a narrow meaning which carries it out less fully or not at all.  The courts are then enjoined to choose the first approach.

See the following cases:

1) SAVANNAH BANK V. AJILO (SUPRA)
2) FORSDIKE V. COLKULOUN (1883) 2 QBD 71.

CONSTRUCTION OF LEGISLATIONS THAT OUSTS THE JURISDICTION OF THE COURTS OR DEROGATES FROM THE RIGHTS OF CITIZENS
Where a legislation ousts the jurisdiction of the courts or fetters the rights of citizens or deprive citizens of their inherent rights, the courts should adopt a very strict approach to the construction of such statutes.

See the following cases:

1. ATTORNEY GENERAL V. SHODE (SUPRA)
2. UDO V. OHMB (SUPRA)
3. KOTOYE V. SARKI (SUPRA)



QUESTIONS
1. Draft five headings of the principal matters of a Bill on Environment Protection.
2. Suppose in the process of preparing the draft, you discovered that there is an existing law “Clean Environment Act”, CAP C.07, LFN which is saddled with ensuring that Nigeria is a clean and healthy environment:

a. What advice will you give the Minister?
b. What will you do if the Minister insists that the draft Bill must be prepared?

ASSIGNMENT
Find out a law having “a purpose Clause”.  It will start with the objective of this legislation; it is not very common.

DRAFTMAN LANGUAGE TO BE AVOIDED.
The legal lang is ancient and archaic. Also d technique of drafting have also been traditional perculiar. The lang has evolved over the years transiting d usage of several other lang.
In ancient times ,lawyer triumphant in d use of archaic and latinic phrases and expressions which only lawyers, literay dons and men of letters can understand . This is becos d tradition approach to legal writing and lawyer were conservative and dry.
The modern approach to writing has been described as d “plain English approach”. Plain,simply and short sentence bring home intending means and messages faster dn long twisted
The following wld act as guides to d
1. Unfamiliar and uncommon words. A good draftman

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