Two principal concerns
1. Constitutional Interpretation
2. Statutory Interpretation
STATUTORY INTERPRETATION
While Parliament may make laws, judges interpret them. The operation of the court process may therefore be of great significance in the manner in which an Act operates. In fulfilling their task of applying the law to the facts before them, the courts frequently have to interpret (i.e. decide the meaning of) statutes. While sometimes, words in a statute may have a plain and straightforward meaning, sometimes however there is some ambiguity in the words of the statute that must be resolved by the judge. In such an instance, the courts will seek to adopt a construction which will resolve the uncertainty or ambiguity. So as could be seen, interpretation is different from construction. Interpretation is seeking the meaning of the text while construction is seeks to resolve uncertainties or ambiguities. Though distinct, as Quansah rightly remarks, these two processes are in practice indistinguishable because disputes normally occur when there is some uncertainty about or ambiguity in a text. In resolving these, the court will inevitably give meaning to the words of the text. Thus, the two processes normally go hand in hand.
Legislation may contain uncertainties for a variety of reasons :
a. Words change in meaning over time
b. New technologies and cultures make application of existing laws difficult for which reason statute may need to be interpreted to fit modern thinking
c. The need for social cohesion may also mean the interests of some groups may need to be taken into account in interpreting statue
In common law jurisdictions, the judiciary may apply rules of statutory interpretation to legislation enacted by the legislature, or to delegated legislation. To find the meanings of statutes, judges use various tools and methods of statutory interpretation, including traditional canons of statuary interpretation, legislative history, and purpose. These rules have come to be known as the literal rule or plain meaning rule, the Golden rule, the Mischief rule and the Purposive approach.
It must be noted that these rules are not binding precedent properly so called but seve as aids, ground rules, guide posts ,or a road map to the art and science of interpretation. In Asare v AG Date-Bah aptly couched this position as follows : “ ‘Rules’ of interpretation are not to be understood as binding courts in in the same way as the ratio decidendi of a case is binding on subsequent courts. The so-called ‘rules’ of interpretation are merely guides or aids to judges in deciphering the meaning of words they are required to interpret.”
THE LITERAL RULE: This is the oldest among the various rules and also referred to as the plain meaning rule. This is a type of statutory construction which dictates that statutes are to be interpreted using the ordinary meaning of the language of the statute. It looks at the text as it stands. According to the plain meaning rule, words must be given their plain, ordinary and literal meaning. If the words are clear, they must be applied, even though the intention of the legislator may have been different or the result is harsh or undesirable.
In Republic v Fast Track Court, Accra; Ex parte CHRAJ (Anane, Interested Party) , Brobbey JSC noted as follows : “It [ordinary meaning]is not the meaning that a person will find by a research into technical books or arcane sources. That will be far beyond the comprehension of the ordinary man. The ordinary meaning will be the meaning which any ordinary man on the street will understand by that word or the sense which he / she will attribute to that word which is the sense in which it will be used by that ordinary man. IN the normal run of affairs, the ordinary man will approach the dictionary for the meaning if he has any doubt about the meaning of the word.”
Here the court is not concerned with the propriety of the legislation; its duty is to administer and interpret and give effect to the statute even if the terms appear unpalatable. In this regard the maxim judicis est jus dicere sed non dare (it is the function of the judge to apply the law , not to make it)applies.
An example of the use of the literal rule can be seen in the oft quoted case of Tuffour v Ag. The SC had to decide in that case the meaning of the phrase “shall be deemed” in article 127(8) of the 1979 Constitution in relation to the appointment of Justice Apaloo as the CJ. In construing the phrase, the court opted for the natural meaning of the words in the phrase and held that it meant a thing that is said to be something else with its attendant consequences when in fact it was not.
In order to reach this conclusion, the court referred to the use of the phrase in other contexts of the Constitution. For example, in section 1(1) of the transitional provisions to the 1979 Constitution the word “deemed” had been used to mean that although the first President had not been appointed under the Constitution, he should for all purposes exercise all the functions of the President as if he had been so appointed. Also the same phrase had been used in section 2(1) of the transitional provisions to the 1979 Constitution in relation to the election of members of Parliament. They were considered to have been elected under the Constitution even though they had not been so elected. Consequently, the court held that the phrase “shall be deemed” in article 127(8) of the 1979 Constitution should mean that a justice of the superior court of judicature holding office immediately before the coming into force of the Constitution should continue in office as if he had been so appointed. It follows from this that Justice Apaloo, being the head of the superior court of judicature before the coming into effect of the 1979 Constitution became the CJ by virtue of article 127(8) of the 1979 Constitution and there was no need for him to have been vetted by parliament for the purpose of approving him as the Chief Justice.
In Kwakye v AG, a majority of the SC held that the phrase “judicial action taken or purported to have been taken” in section 15(2) of the transitional provision to the 1979 Constitution, must be given its ordinary , literal dictionary meaning. The court construed the phrase to mean an action which was not a judicial action properly so –called but which looked like, was intended to be, or which had the outward appearance of a judicial action.
In technical statues, words will be read in their technical and not in their ordinary meaning. An example of the application of this principle is the English case of Fisher v Bell where the expression “offer for sale” in section 1(1) of the Restriction of Offensive Weapons Act 1959 was held to apply to the placing of a flick-knife in a shop window. The court had a choice between the technical meaning of that term as used in the law of contract (invitation to treat) and the popular meaning according to which goods placed in a shop window are offered for sale. The court chose the former meaning of an invitation to treat, that is an invitation to the public to make offers for the goods displayed.
It is claimed for the plain meaning rule that it prevents courts from taking sides in legislative or political issues. It is also said that ordinary people and lawyers do not have extensive access to and still used today, primarily because it avoids the danger of the judges usurping the function of the legislature through judicial interpretation some of which under case law and the concept of judicial precedent amounts to law making.
On the other hand, it is claimed that the rule rests on the erroneous assumption that words have a fixed meaning. In fact, words are imprecise, leading justices to impose their own prejudices to determine the meaning of a statue.
In criticizing the plain meaning approach to interpretation, Date-Bah JSC in Asare v AG had this to say “What interpretation is to be given the words should depend upon the court’s perception of the purpose of the provision and the context of the words, rather than on their dictionary meaning. The ‘plain meaning’ approach to judicial interpretation is not necessarily the most apposite. In my view, words hardly ever have a meaning in vacuo. Words take on meaning in association with the other words in whose context they are used. Therefore the interpretation of words almost invariably means doing more than finding their mere dictionary (or ‘literal’ or ‘plain’) meaning.”
THE GOLDEN RULE : This, also known as British rule, is a form of statutory interpretation that says the words of a stat8te should be understood in their ordinary sense. It provides that wordings should be given their ordinary meaning as far as possible, but only to the extent that the do not produce an absurd or totally obnoxious result. In other words, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified , so as to avoid that absurdity or inconsistency, but not further.
This rule may be used in two ways :
1. It is applied most frequently in a narrow sense where there is some ambiguity in the words themselves
2. The second use of the golden rule is in a wider sense, to avoid a result that is obnoxious to principles of public policy, even wehre words have only one meaning./ a result contrary to the intentions of the legislature
The usual consequence of applying the golden rule is that words which are in the statute , are ignored or words which are not there, are read into it. Thus in Ababio v The Republic, the cout was to interpret paragraph 5A of the Chieftaincy (Amendment)(No 3) Decree, 1967 (NLCD 203). The said paragraph provided inter alia, that :
(1) Any person who contravenes any provision of this Decree shall be guilty of an offence.
(2) Without prejudice to the generality of the foregoing…a person shall be deemed to have contravened the provisions of this Decree if-
a. he refuses or fails to recognize the relationship referred to in paragraph 2 of this Decree or refuses or fails to pay such allegiance as flows form the existence of such relationship;
b. without reasonable excuse (the proof of which shall be on him) he fails to attend meetings of the Traditional Council…”
The court in interpreting “any person” in the above paragraph held that the phrase cannot bear its ordinary literal meaning as person in general because such a meaning would create an absurd situation where any person, not necessarily a chief, could be prosecuted under the Decree if he failed, for example, to honour an invitation to attend a meeting of a traditional council. The court interpreted the phrase to mean persons who had been demoted as paramount chiefs and whose stools had been specified in the schedule to the Decree. This meaning was to aid the cure of the mischief, ie the displacement of customary allegiance to traditional paramount chiefs and whose stools had been specified in the schedule to the Decree. This meaning was to aid the cure of the mischief, ie the displacement of customary allegiance to traditional paramount chiefs which earlier legislation had given rise to, which the amendment Decree was enacted to deal with.
In CFAO v Zacca, the Court of Appeal had to interpret the words “shall be deemed to be an appeal pending before the SC” as set out in section 13(2) of the transitional provisions to the 1969 Constitution. The ordinary meaning of “pending” in relation to a cause or matter connotes such cause or matter having been physically field before the court. The majority of the court, however, held that in the context of the section, “review pending” must be benevolently construed to mean all pending applications for review whether filed or not.
In General Cold Industry Ltd v Standard Bank Ghana Ltd, the plaintiff company was registered under the Companies Code, 1963 as “General Cold Industry Ltd,” A bank account of a company called “General Cold Co Ltd” was frozen by the State under the schedule to the Assets and Bank Accounts Decree, 1972, as amended by the Assets and Bank Accounts (Schedule) (Amendment) (No 15) Instrument, 1979. In addition to this, shares of the same company “General Cold Co Ltd” were confiscated and transferred to the State under the Transfer of Shares and Other Proprietary Interests Decree, 1979. The court had to decide whether plaintiff company , “General Cold Industry Ltd “ was the same as “General Cold Co Ltd”, the subject of the frozen bank account and the confiscation of shares. It was argued that on the proper construction of the enactments, there seemed to have been a mistake on the part of the draftsman who omitted the word “industry” thereby not correctly identifying the plaintiff company as the company the enactments referred to. The court was therefore urged to delete the word “company” and substitute the word “industry” thereby not correctly identifying the plaintiff company as the company the enactments referred to. The court was therefore urged to delete the word “company” and substitute the word “industry” in order to avoid an absurdity of the two enactments freezing and confiscating the assets of a non-existing company. The court rejected this argument holding that the enactments could not be construed to affect the plaintiff company as it was no where mentioned in them. In the court’s view, even if there was an omission, this could not be corrected by the court. The remedy lie, not with the court, but with the legislature which was at liberty to amend the enactments to reflect its intention. AS matters stood, the court’s duty was to ascertain the intention of the legislature from the words of the statute and on that basis the words did apply to the plaintiff company.
In Francis Jackson Developments Ltd v hall, Lord Denning said “ If the literal interpretation of a statue leads to a result which Parliament can never have intended , the courts must reject that interpretation and seek for some other interpretation, which does give effect to the intention of Parliament.”
In Sasu v Amua-Sekyi [1987-88] 1 GLR 506, CA, The Court of Appeal had to construe section 3(2) of the then Courts Act, 1971, as inserted by the Courts (Amendment) Law, 1987. the section provides as follows: “Where a decision of the Court of Appeal confirms the decision appealed against from a lower court, an appeal shall lie against such decision of the Court of Appeal which may on its own motion or on an oral application made by the aggrieved party decide whether or not to grant such leave, and where the Court of Appeal refuses to grant the leave to appeal the aggrieved party may apply to the Supreme Court for such leave.” This provision was examined in the light of other provisions of the amendment Act and the court came to a conclusion that there was an obvious omission of the words “with the leave of the Court of Appeal.” In the court’s view, without these words the subsection would be rendered unintelligible and as such they should be inserted immediately after the words “an appeal shall lie against words may not only make the subsection intelligible but would also give effect to the intention of the legislature.
THE MISCHIEF RULE: This rule is also known as the rule in Heydon’s case which attempts to determine the legislator’s intention. It developed from the 16th century. Its main aim is to determine the “mischief and defect” that the statute in question has set out to remedy, and what ruling would effectively implement his remedy. Thus, the courts apply this rule to ascertain the intention of Parliament. It asks the question: By creating an Act of Parliament what was the “mischief” that the previous law did not cover? The application of this rule gives the judge more discretion than the literal and the golden rule as it allows him to effectively decide on Parliament’s intent. It can be argued that this undermines Parliament’s supremacy.
In the Heydon’s case, it was said that four things must be considered before the rule is applied. These are
(a) What was the common law before the making of the Act?
(b) What was the mischief and defect for which the common law did not provide?
(c) What remedy ahs Parliament prescribed to remedy the defect?
(d) The true reason of the remedy
THE PURPOSSIVE APPROACH: This is similar to the mischief rule. This rule of statutory interpretation holds that statutes should be interpreted in the light of the purpose behind the legislation.
In ‘Statutory Interpretation’ by Bennion, he posits that “A purposive construction of an enactment is one which gives effect to the legislative purposive by –
(a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purposive (in this code called purposive-and-literal construction)) or
(b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in this code called a purposive-and –strained construction)
This rule is usually used to resolve ambiguities in cases in which the literal rule cannot be applied. In the Ghanaian context , it has gained prominence in the interpretation of the provisions of the Constitution. Thus, in Republic v Fast Track Court, Accra; Ex parte CHRAJ (Anane Interested Party), Wood CJ said : “In my respectful view, in any constitutional interpretative dispute, involving the use of ordinary words or expression, where no technical words or expressions of art have been employed, an where the Constitution is completely silent on the meaning to be assigned to those words or expressions, the first rule that should be invoked is the ordinary or plain meaning rule. Legitimate questions that must necessarily follow its application include the following : does it [the ordinary meaning ] advance or defeat the purpose of the legislation or does it lead to a result at variance with the main purpose of the provision, or to some unjust , scandalous, incongruous, absurd, stranger or extraordinary results…If the interpretation substantially advances the legislative purpose, the matter ought to end there. Certainly, where the modern purely ‘strained’ to end there. Certainly, where the modern purely ‘strained’ purpose –oriented approach (subjective approach) would rather work injustice or lead to absurd, weird or extraordinary results, the rule must altogether be avoided. The established principle, quite understandably, is that if there are two competing interpretations, one promoting injustice and the other not, we must favour the construction that advances the cause of justice.”
Kludze JSC in Asare v The Attorney-General expressed the purposive construction rule as follows :
“I agree that we must adopt a purposive construction of the constitutional provisions. That means that we do not construe words in the abstract but within the context in which they are used. Language is a tool for expressing the wishes of the speaker, author or writer. Therefore, regardless of the theoretical classification of the methodology of construction, the fundamental rule is for the court to construe every enactment with the purpose of effectuating the true intent of the law –making , in this case the intent of the framers of the 1992 Constitution. All other canons of construction have the ultimate purpose of achieving this goal. I do not think the mere recourse to dictionaries of the English language will resolve the issues which confront us or render ay easier the task we are called upon to perform.”
WHAT ARE THE OTHER AIDS TO INTERPRETATION OF GENERAL STATATUTES?
Acts must be read as a whole . The court will therefore look at:
1. The long title of the Act to ascertain the object of the Act.
2. Punctuation and headings to a section or group of sections-but only to determine the purpose , not the scope of the section
3. Schedules listing repeals and setting out transitional arrangements
The court can also consider a number of extrinsic factors. These include dictionaries, reports of committees of the Law Commission, and judicial precedent. Since the case of Pepper v hart (1992), the court has been able to refer to reports of debates or proceedings in Parliament. Lastly, there may be a dictionary column to a statue where various words used in the statute may be defined.
There are also a number of presumptions that the court will take into account in ascertaining the intentions of Parliament. These include :
4. A presumption against retrospective effect of legislation
5. A presumption against alteration of the law.