THE LAW OF INTERPRETATION

Table of Contents
Preliminary Issues of Interpretation...............................................................................24
Interpretation Defined......................................................................................................24
Chatney v Brazilian Submarine Telegraph Co. [1891] 1 QB 79...........................24
The Meaning of Language...............................................................................................26
What Is The Ordinary Meaning of Language?.............................................................26
Halsbury 4th Edn Vol 12 Para 1463.......................................................................28
Anim Addo Alias Biamah v. Mensah [1993-94]...................................................28
Addai v. Donkor (1992) SC unreported, per Adade JSC......................................28
Leader v. Dufley (1883) 13 Ap Cases 294. per Lord Halsbury L C...................29
Robertson v. French [1808] 4 East [email protected]
Shore v. Wilson [1842] 9 Cl& Fin 355@ 525 per Coleridge J.............................29
Grey v. Pearson[1857] 6 HLc61 @106 per Lord Wensleydale............................30
Cross under “The basic rules stated” @ Page 49..................................................30
Plain or Primary Meaning............................................................................................31
Re C & Anor (Minors) (Parents) [1993] 3 AllER 313@ 317-318 per Butler-Sloss
LJ :.........................................................................................................................31
AG v Prince Ernest Augustus of Hanover [1957] AC 436...................................32
Literal or Grammatical Meaning..................................................................................33
Cross on “The different kinds of Meaning” @ 66.................................................33
Adler v. George [1964] 2 QB 7.............................................................................33
Wilshire v. Barrett [1965] 1 QB 312.....................................................................33
Secondary Meaning......................................................................................................34
Cross on “The different kinds of meaning”@ p. 65..............................................34
Barnard v. Gorman [1941] AC 378.......................................................................34
Ababio v The Republic. [1972] 1 GLR 347.........................................................35
Fringe Meaning............................................................................................................36
Corkery v. Carpenter (1950) 2 AER 745...............................................................36
Daly v Canon [1954] 1 AllER 315........................................................................36
Customs & Excise Commissioners v Savoy Hotel Ltd [1966] 2 AllER 299........36
Technical Meaning.......................................................................................................36
Unwin v Hanson [1981] 2 QB 115........................................................................37
Sallah v Attorney-General.....................................................................................37
Scope of Language.......................................................................................................38
Re C And Anor (Minors) (Parent; Residence Order.............................................38
Effect of Language.......................................................................................................38
Object of Interpretation & the Intention of Authors of Docs, Statutes & National
Constitutions....................................................................................................................39
Tuffour v. AG per Sowah JSC..............................................................................39
The Republic v Tommy Thompson per Acquah JSC............................................39
Biney v Biney [1974]1 GLR 442..........................................................................40
Prempeh v. Agyapong [1993-94] I GLR 255 SC..................................................41

1
 In Re Atta (Dec’d) Kwako v. Tawiah [2001-2002] SCGLR 461 per Adzoe JSC.42
Hilbers v. Parkinson (1883) 25 Ch. D 200............................................................42
Statutes.........................................................................................................................43
Bennion: Statutory Interpretation 4th ed @ 405 wherein it is noted:.....................43
Viscountess Rhondda’s case (1922) AC 339 @ 397 per Wensbury.....................43
Corocraft v. Pan American Airways Inc. (1969) 1 QB 616..................................43
Per Donaldson J at the trial court @638...................................................................43
Sam v. Comptroller of Customs Excise. (1971) GLR...........................................44
Salomon and Co., Ltd. v. Salomon [1897] A.C....................................................45
Constitutions.................................................................................................................45
Home Building & Loan Association v. Blundell (1934) 290 US 398 @ 453.......45
Tuffour v. A-G (1980) Glr 634@ 648 per Sowah JSC.........................................46
Republic v Tommy Thompson [1996-97] SC GLR 484.......................................46
Asare v Attorney-General [2003-2004] SC GLR 823...........................................46
Cross on ‘Ordinary meaning’ and ‘purpose’.........................................................48
The subjective intended meaning.................................................................................48
Robertson v. French (1803) 4 East 130 per Lord Ellenborough CJ......................48
Maunsell v. Olins (1975) AC 373;........................................................................48
Sam v. Comptroller of Customs @ Excise [1971] GLR 289@ 307;....................49
Tufuor v. A-G (Supra);..........................................................................................49
Sallah v. A-G (supra).............................................................................................49
Kuenyehia v. Archer Esp @ 606...........................................................................50
Addai v. Donkor: [Unreported] SC 2-03-92..........................................................51
Maunsell v. Olins (1975) AC 373.........................................................................52
In Re Amarteifio (Dec’d); Amarteifio v. Amarteifio [1982-83] GLR 1137.........54
In Re Dadzie (Dec’d); Dadzie v. Addison [Unreported].......................................55
NPP v. GBC [1993-94] GLR 254..........................................................................55
Quaynor v Humphrey-Bonsu [Unreported] 14-2-2000 CA..................................55
Barker v Wilson [1980] 1 WLR 884.....................................................................58
Derby & Co Ltd v Weldon [1]WLR 652...............................................................58
Royal College of Nursing of UK v. DHSS (1981) 1 AER 545.............................58
Gammans v. Ekins (1950) 2 AllER 140................................................................59
Regents of The University of California v Bakke, US SC 1972...........................59
In Re Amarteifio (decd.); Amarteifio v. Amarteifio [1982-83] GLR 1137.........60
Intention in the Sense of the Objective Meaning of the Language Used in the DSC. .60
Cross on “the intention of Parliament @ 26-27....................................................61
Monnypenny v Monnypenny (1861) 9 HLC 114 @ 146 per Lord Wensleydale: 62
Great Western Railway v. Bristol Corporation (1918) 87 LJ Ch 414 per Lord
Shaw:.....................................................................................................................62
IRC v Raphael (1935) AC 96 per Lord Wright.....................................................62
Bekker No. v. Total South Africa (PTY LTD) (1990) 3 SA 159 per Kriegler J.. 63
Mannai Investment Co. Ltd v. Eagle Star Life Assurance Society Ltd [1997] AC
749 @ 775.............................................................................................................63
Quainoo v. New Zealand Breweries Ltd (1991) 1 NZLR 165. (CA)....................65
Black-Clawson Ltd v Papierwerke A. G. [1975] AC 591.....................................65
Intention in the Sense of MSE of Language of DSC.......................................................68
2
 Cross on The Purposive Approach........................................................................68
A-G v. Prince Augustus Of Hanover [1957] AC 436 [Supra].............................68
Mansell v. Olins [1975] AC 373 @ 385. [supra]..................................................68
In Re Amarteifio (Dec’d) Amarteifio v. Amarteifio. [supra]...............................69
In Re Dadzie (Dec’d) Dadzie v. Addison..............................................................69
Glynn v. Margetson & Co [1893] AC 351 per Lord Halsbury L.C......................69
Antaios Cia Naviera Sa v Salen Rederierna AB [1985] AC 191 per Lord Diplock
...............................................................................................................................70
MFI Properties Ltd v DICC Group pension Trust Ltd [1987] 1LR 230...............70
Jodrey’s Estate v The Province of Nova Scotia & AG of British Columbia [1980]
2 SCR 744..............................................................................................................70
R v Z (Da) Richard v Zaccheus [1992] 2 SCR 1025.............................................70
Thomson v Canada (Minister of Agriculture) [1992] 1 SCR 385.........................71
Eshun v Poku [1989-90] 2 GLR 572.....................................................................71
Nothman v. Barnet London Borough Council [1978] 1 W.L.R. 220, C.A...........71
Appiah v. Biani [1991] 1 GLR 155. (BUTA 282)................................................72
In Re Armah (Dec’d) Armah v. Armah [1991] 1 GLR 140 (HC); [1991] 2 GLR
53 CA.....................................................................................................................72
In Re Sackey (Dec’d) Ansaba v. Imbeah [1992] 1 GLR 214................................73
Badu v. Sah [2000] 2 GLR per Owusu Ansah J.A................................................73
Tuffuor v. A-G [1980] Glr 637@ 647 -648 Per Sowah JSC.................................73
NMC v Attorney-General [2000] SC GLR 1........................................................74
Asare v. A-G per Kludze JSC [supra]...................................................................74
Amuzu v Oklikah [1998-99] SCGLR 141.............................................................74
How Is Intention Ascertained Under Mopa?................................................................77
GTP v. Ankujeah [2000] Vol 2 GLR....................................................................78
In relation to Documents...........................................................................................81
Halsburys 4th Edn Vol 12 at Para 1460;.................................................................81
Biney v. Biney [1974] I GLR 318 CA [supra]......................................................81
Akim Akroso Stool v. Akim Manso Stool [1989-90]1 GLR 100 CA...................81
Wilkinson v. Gaston (1846) 9 Q.B. 137................................................................82
In Re Atta (Dec’d) Kwako v. Tawiah (Supra) at 468............................................82
In relation to Statutes................................................................................................82
Halsbury 4th Edn Vol 44 @ Para 856; Cross (P. 26);............................................82
Westminster Bank Ltd v Zang [1966] AC 182 HL @ 222...................................82
Anyidoho v. Markham (1905) Renner 319, (See Buta 12)...................................82
In Relation to Constitutions......................................................................................82
Kuenyehia v Archer [1993-94] 2 GLR 525 @ 562 Per Francois JSC (Buta P. 11)
...............................................................................................................................82
Re Jebb; Ward Smith v. Jebb [1966] Ch. 666 per Lord Denning: “Armchair Rule”
...............................................................................................................................83
Perrin v. Morgan [1943] AC 399..........................................................................83
In Re Atta (Dec’d) Kwako v. Tawiah [2001-2002] SCGLR 461..........................84
Reardon Smith Line Ltd v. Hansen-Tangen (1976) 1 WLR 389 PER Lord
Wilberforce............................................................................................................85
IRC v. Raphael [1935] AC 96 [Supra]..................................................................85
3
 The Hannah Blumenthal [1983] 1 AC 854 per Lord Diplock...............................85
Kuenyehia v. Archer (Supra).................................................................................86
Agbevor v. A-G [2000] SCGLR 403....................................................................86
When to Resort to Interpretation...............................................................................86
Croxford v. Universal Insurance Company [1930] 2 QB 253 @ 281 Per Scott L.J.
...............................................................................................................................87
Patu-Styles v. Amo-Lamptey [1984-86] Glr 644 @ 691 Per Taylor JSC.............87
Ormond Investment Co Ltd v. Beltx [1982] AC 143............................................87
Duport Steel Ltd v. Sirs (1981) 1 AllER 529........................................................87
R. v Maikankan [1971]2 GLR 473........................................................................90
Nana Yiadom I v.Nana Amaniampong [1981] 1 GLR 3......................................90
Republic v. Special Tribunal, Ex Parte Akosa [1980] GLR 592:.........................91
Gbedemah v. Awoonor-Williams..........................................................................91
Republic v. Adu-Boahen . [1992-93] GBR 684....................................................91
Agyekum v. Boadi [2000] SCGLR 282................................................................91
Aduamoa II v. Adu Twum II [2000] SCGLR 165................................................92
Difficulties of Interpretation/Conditions of Doubt Which Necessitate Interpretation....93
Ambiguity of Words.....................................................................................................93
Doe d. Hiscocks v. Hiscocks (1839) 5 M& W 363;..............................................94
Great Western Railway v. Bristol Corporation (Supra) @ 429.............................94
In Re Atta (Dec’d) Kwako v. Tawiah [2001-2002]SCGLR..................................94
Semantic ambiguity..................................................................................................94
Essilfie v. Anafo [1992]2 GLR 654 SC.................................................................95
Syntactic Ambiguity.................................................................................................97
Royscod v. Rogerson (1991) 3 AllER 294............................................................97
Vagueness of Words.....................................................................................................97
The Generic Character of Natural Words.................................................................97
Warley Caravans Ltd v. Wakelin (1966) LGR 534...............................................98
Greenwood v. Whelan [1967] 1 QB 396...............................................................98
Appiah v Biani.......................................................................................................98
Open Textured Nature of Words...............................................................................98
Readiness of Words and Language to Derive Colour from their Surroundings..........98
Capacity of Words to Evoke Emotional Response......................................................99
Bakker v. Wilson (Supra);.....................................................................................99
Garmans v. Ekins (Supra);....................................................................................99
Dyson Holding Ltd v. Fox (See Cross Pp 51-53)..................................................99
Conditions Relating to Imperfections in the Making of Legal Documents and Rules
.................................................................................................................................100
Republic v. High Court Accra; Ex Parte Adjei [1984-86] 2 GLR 511 CA.........100
Sasu v. Amua Sekyi [1987-88] 1GLR 506 CA. (Buta 273)................................101
General Cold Industry Ltd v. Standard Bank of Ghana Ltd [1982-83] GLR 360
.............................................................................................................................103
Najat Metal Enterprise v. Hanson [1982-83] GLR 81:.......................................104
Events after the Making Or Enacting of Documents Or Rules which lead to Doubts
....................................................................................................................................105
In Re Amarteifio..................................................................................................105
4
Canons/Rules of Interpretation.........................................................................................106
Approach to solving Interpretative problems................................................................106
Essilfie v. Anafo [1992] 2 GLR 654 SC..............................................................106
Chandris v. Isbrandsten Moller Company Ltd [1951] 1 KB 240........................107
Maunsell v. Olins (1975) [supra].........................................................................108
Basic Rules....................................................................................................................108
Aids to Interpretation.....................................................................................................109
Presumptions..................................................................................................................110
Special Binding Rules....................................................................................................110
Interpretation Act, 1960, CA 4...................................................................................110
Role of The Interpretation Act 1960 CA 4 in Construing Legislation in Ghana per
Buta.........................................................................................................................111
NPP v. Attorney-General [CIBA Case] [1996-97] SC GLR 729;.......................111
Barclays Bank of Ghana Ltd v. Ghana Cable Company Ltd [1998] SCGLR 1..111
Validity in Interpretation;...........................................................................................112
Interpretations of (i) Non-Statutory Documents, (ii) Statutes, (iii) National Constitutions
.......................................................................................................................................113
Non-Statutory Documents..........................................................................................113
Shore v Wilson [1842] 9 Cl & FIRN 355............................................................113
Kwamin v. Kuffuor [1914] 2 Ren. 808, P.C.......................................................114
Kano v. Kalla Etc,..............................................................................................114
Zabrama v. Segbedzi [1991] 2 GLR 221 CA......................................................114
In Re Kodie Stool Case.......................................................................................114
Statutes and Constitutions..........................................................................................114
Barker v. Wilson; Dyson v. Forks,.....................................................................115
Baake v. Regents of University Of California; Garman v. Ekins [supra]...........115
Tuffour v. A-G [1980] GLR 637 @ 647.............................................................115
Republic v. High Court Accra, Ex Parte Adjei [1984-86] 2 Glr 511..................115
New Patriotic Party v Attorney-General [1993-94] 2 GLR 35...........................115
Kuenyehia v. Archer [1993-94] 525 per dicta of Francois J (Buta 300).............115
Republic v. Tommy Thompson per Acquah JJSC..............................................116
Some Definitional and Terminological Issues of Interpretation....................................116
Context.......................................................................................................................117
Cross....................................................................................................................117
A-G v Prince Augustus of Hanover [supra]........................................................117
The Legal Basis for Interpretation in Ghana.................................................................118
Republic v. Maikankan [1971] 2 G.L.R. 473......................................................118
Republic v. Special Tribunal Ex Parte Akosah [1980] GLR 592.......................118
Yiadom I v. Amaniampong;................................................................................119
Agyekum v. Boadi [2000] SCGLR 292..............................................................119
Aduamoa II v. Adu Twum II [2000] SCGLR 165..............................................120
NPP v. NDC [2000] SCGLR 461........................................................................122
Yeboah v. J.H. Mensah [1998] SCGLR 492.......................................................122
Edusei v. Attorney-General. [1996-97] SCGLR 1..............................................123
Sam (No 2) v. A-G [2000] SCGLR 205..............................................................123
The Basic Rules of the Interpretation of Non-Statutory Documents.........................124
5
Basic Rules under the Purposive Approach...................................................................125
Monypenny v. Monypenny (1861) 9 H.L. Cas...................................................125
Simpson v. Foxon [1907] P. 54 per Sir Gorell Barnes P.....................................125
Lloyd v. Lloyd (1837) 2 My. & Cr. 192..............................................................125
Rule 1: The Interpretation must be near the Intention of the Author(s) as the Law
would Permit..............................................................................................................126
Halsbury 4th Edn Vol 12 @ 1459.......................................................................126
Kell v. Charmer [1856] 23 BEAV. 195...............................................................126
Biney v. Biney [1974] 1 GLR 318;.....................................................................127
Impraim v. Baffoe [1980] GLR 520....................................................................127
Prempeh v. Agyepong [1993] 1GLR 255 SC......................................................127
In Re Amarteifio [Supra];....................................................................................127
In Re Dadzie (Dec’d) Dadzie v. Addison [Supra]...............................................127
In Re Atta (Dec’d), Kwako v. Tawiah................................................................128
Magor v. St Melons.............................................................................................128
Halsbury 4th Edn Vol 12 @ para 1471.................................................................128
In Re Amarteifio;.................................................................................................128
Impraim v. Baffoe [Supra]..................................................................................128
Rule 2: The Meaning of the Document or part thereof is to be gathered from the
Document itself..........................................................................................................128
Halsbury 4th Edn Vol 12 @ para 1460.................................................................128
Shore v. Wilson [Supra],.....................................................................................129
Moneypenny v. Moneypenny [Supra],................................................................129
Biney V. Biney[Supra];.......................................................................................129
Akim Akroso Stool v. Akim Manso Stool: CA...................................................129
Alan Sugar Products Ltd v. Ghana Export Company Ltd [1982-83] GLR 922.. 130
Monta v. Paterson Simons Ghana Ltd [1974] 2 GLR 162..................................130
Admission of Extrinsic Evidence............................................................................131
Halsbury 4TH Ed Vol 12 par 1490........................................................................131
Takyi v. Baah CA 5TH Feb 1998 [unrepd]...........................................................132
Atta (decd), Kwako v Tawiah (2001-2002)SCGLR 461.....................................132
Quaye v. Quarcoo.[1991]2GLR 437...................................................................132
Doe D. Hiscocks v. Hiscocks [1831] 5 M& W 363 [supra]................................132
Great Western Railway v. Bristol Corporation [1918] 87 LJ Ch 424.................132
Baldwin & Francis Ltd v. Patents Appeals Tribunal [1959] AC 663.................133
Halsbury 4th ed vol 12 para 1495.........................................................................134
Shore v. Wilson...................................................................................................134
Quaynor v. Humprey Bonsu (Supra);..................................................................134
Drummond v. A-G of Ireland [1849] 2 HLC 837 @ 863....................................134
Lord Waterpark v. Fennell (1859) 7 HLC 650 @ 678........................................134
Grey v. Pearson (1857) 6 HLC 61@ 106............................................................134
Drummond v. A-G of Ireland [1849] 2 HLC 837 @ 863....................................135
Shore v Wilson [1839, 1842]...............................................................................135
Re Gouk [1957] 1 AER 469................................................................................136
Re Ofner [1909] 1 Ch 60.....................................................................................136
In re Ray [1916] 1 Ch 461...................................................................................136
6
Rule 3: The Document Must be Read as a Whole.....................................................137
Halsbury 4th Ed V.12 @1469...............................................................................137
In re Jodrell, Jodrell v. Seale [1890] 44 Ch 590..................................................137
Wigsell v. Corporation of School for Indigent Blind (1880) 43 LT 218............138
Boateng v. Volta Aluminium Co Ltd [1984-86] 1 GLR 433..............................138
Nartey Tokoli v. Valco........................................................................................140
Akufo v. Valco [2003-04]SC GLR [supra]........................................................140
Watson v. Haggit [1928] AC 127........................................................................141
Tea Trade Properties Ltd v. C I N [1990] 1 EGLR 155, (Lewison p 158)..........141
Whitbread v. Smith [1854] 3 De G M& G 727...................................................141
Jacobs v. Batavia Trust Ltd [1924] 2 Ch 329......................................................141
Skips A/S Nordheim v. Syrian Petroleum Co. [1984] QB 599...........................141
Cf Hamilton and CO v. Mackie & Sons [1889] 5 TLR 577................................141
Rule 4. Words and Phrases in Doc are at First Instance to be given their Ordinary
Meaning......................................................................................................................142
Halsbury 4th ed vol 12 para 1463.........................................................................142
Shore v. Wilson (supra) per Coleridge J @ 525 and 527....................................142
Robertson v. French [1803] 4 EAST 130 @ 135................................................142
Leader v. Duffley [1883] 13 AC 294 @ 391 per Lord Halsbury LC :................142
Re Amarteifio v Amarteifio,................................................................................143
Anim Addo v. Mensah (supra),...........................................................................143
Addai v. Donkor .................................................................................................143
A-G v. Prince Augustus of Hanover....................................................................143
When Ordinary Meaning is Plain or Absurd..........................................................143
Halsbury 4th edn vol 12, 1463..............................................................................144
Hume v. Rundell (1824) 2 Sim & St 174@177;.................................................144
Abbot v. Middleton [1858] 7 HLc 68@69;.........................................................145
Bathurst v. Errington (1877) 2 AC 698@ 709 (Hl).............................................145
Re Wilberforce (Dec’d) Wilberforce v. Wilberforce (HC Cape Coast) 15799...145
Addai v. Donkor,.................................................................................................146
Anim Addo case..................................................................................................146
Re Amarteifio......................................................................................................146
Re Dadzie............................................................................................................146
Anima Shawan v Onwuta [1972] 1 AllNLR 363................................................146
The Technical Meaning Rule..................................................................................146
Halsbury 4th Edn Vol 12 para. 1466....................................................................146
Shore v. Wilson @ 525 Per Lord Coleridge........................................................147
Roddy v. Fitzgerald (1858) 6 Hlc 823@ 877 Per Lord Wensleydale.................147
Monta v Paterson Simons (Ghana Ltd) [1974] 2 GLR 162.................................147
Biney v. Biney.....................................................................................................147
Sydall v. Castings Ltd [1967]1 QB 302..............................................................147
Re Bostock’s Settlement (Supra).........................................................................148
Arbenser v. Hesse [1981] GLR 411....................................................................148
Rule 5. The Plain or Ordinary Meaning may be Modified:......................................149
Grey v. Pearson (1843-60) AllER 21..................................................................149
Ex parte Walton. In re Levy [1881] 17 Ch D 746...............................................149
7
 Instances of application of this rule........................................................................150
Wallis v. Smith (1882) 21 Ch d 243....................................................................150
Feist v Société IBD [1934] AC 161....................................................................150
Impraim v. Baffoe [1980] GLR 520....................................................................151
Rule 6. The Court has Limited Powers.....................................................................152
The Necessarily Implied Construction....................................................................152
Correction of Errors by Construction vrs Rectification..........................................153
East v Pantiles (Plant Hire Ltd) [1982] 263 EG:.................................................153
Wilberforce v. Wilberforce (Supra)....................................................................153
North Secular Properties Ltd v Internal System Organisation Ltd: Ch D Oct 26,
1984.....................................................................................................................153
In Re Butlin’s Settlement Trust [1976] Ch 251...................................................154
Halsbury 4th Edn Vol 12 1502.............................................................................154
Gwyn v Neath Canal Company [1865] LR 3 Exch 209 @ 215:.........................154
Wilson v Wilson [1854] 5 HLC 40.....................................................................155
Nittan (UK ltd) v. Soleat Steel Fabrication Ltd [1881] 1 Lloyds report 633......156
Re Daniels Settlement [1875] 1 Ch D 375..........................................................156
Re Whitrick [1957] 1 WlR 3884.........................................................................156
Re Bacharach [1959] Ch 249..............................................................................156
Glynn v. Margetson & Co [1839] AC 351 @ 357..............................................157
Sze Hai Tong Bank v. Wrangler Cycle co ltd [1957] AC 579............................157
Centerploy Ltd v. Matlodge Ltd [1974] Ch 1......................................................157
The Rule in Doe d Leicester...................................................................................157
Halsbury 4th ed vol 12 para 1405;......................................................................157
Doe d Leicester v. Biggs [1809] 2 Taunt 109 @ 113:.........................................157
Bateson v. Gosling [1871] LR 7 Cp 9 @ 12;.....................................................158
Forbes v Git [1922] 1 AC 256 @ 259.................................................................158
Saunderson v Piper [1839] 5 Bing Nc 425;.........................................................158
Durham City Estates v. Fellicetti [1990] 1 Eglr 143 Ca......................................158
Re Hammond [1938] 3 AllER 308......................................................................159
Halsbury 1503, Lewison 250 -253......................................................................159
Robertson v. French.............................................................................................159
Joyce v Realm Marine Insurance [1872] LR 7 QB @ 580;................................159
The Brabant [1967] 1 QB 588.............................................................................159
The Falsa Demonstratio Rule..................................................................................160
Adamastos Shipping Ltd v Anglo Saxon Shipping Ltd [1959] AC 133.............160
Morrell v. Fisher [1849] 4 Exchq 591.................................................................160
False Label Rule.....................................................................................................160
Pawsey v Armstrong [1881] 18 Ch 698..............................................................160
Ferguson v. Dawson (John and Partners) (Contractors) [1976] 1 WLR 1213....160
Street v. Mountford [1985] AC 809 per Lord Templeman:................................161
Mukazell v. Elf (Ca) Unreported.........................................................................161
Buchmann v. May [1978] 2 AER 993.................................................................161
Antoniades v. Villiers [1988] 2 AER 309 @ 315................................................162
Deed Or Document Might be Void for Uncertainty...............................................162
Halsbury 4th Edn Vol 12 1508.............................................................................162
8
 Lord Cheyney’s Case [1591] 5 Co Report, 68 A;...............................................162
South East Railway Co v. Associated Portland Cement Manufacturers [1910] 1
Ch 12 Ca..............................................................................................................162
Pallant v. Morgan [1953] Ch 43; [1952] 2 AllER 951........................................162
The Power of Rectification.....................................................................................162
Lovell & Christmas Ltd V. Wall [1911] 104 LT 85,...........................................162
North East Railway v. Lord Hastings [1900] AC 260.........................................162
Murray v. Parker [1854] 19 Beav 305 @ 308.....................................................163
Frederick E Rose (London) v Pim [1953] 2 QB 450...........................................163
Shipley Udc v. Bradford Corporation [1936] Ch 375 @ 396.............................163
Fredson v. Rothschild [1941] 1 AER 430...........................................................163
Roberts v. Leicester County Council [1961] 1 Ch 555.......................................163
Gerrard v. Frankel [1862] 30 Beav 445...............................................................164
Solle v. Butcher [1950] 1 KB 671.......................................................................164
Basic Rules For The Interpretation of Statutes.................................................................165
Janet Daniels: Statute Law in Ghana [1972] 4 RGL @ 113...............................165
Buta @ 9..............................................................................................................165
Issah v. The Republic [13 4 2000] CA [unreported]...........................................166
Classification of Statutes...............................................................................................166
The Historical Background to The Interpretation of Statutes [The MOPA].................168
The Doctrine of Equitable Construction: The Mischief Rule....................................168
Heydon’s Case.....................................................................................................169
The Literal Rule..........................................................................................................169
Amalgamated Society of Engineers v Adelaide (1920) 28 CLR 129 @ 161 Per
Higgins J..............................................................................................................169
Chief Justice Tindall in Sussex Peerage Case (1844) 11 Cl& Fin 85 @ 143......170
The Golden Rule........................................................................................................171
Becke v. Smith (1836) per Parke B [Later Lord Wensleydale in Grey v Pearson]
.............................................................................................................................171
The Modern Purposive Approach in the Interpretation of Statues................................171
The Basic Rules under MOPA:..................................................................................173
Rule 1: Interpretation to be as Near as Possible to the Legislative Purpose..............173
Halsbury 4th ed 44 para 856;...............................................................................173
Viscountess Rhonda’s Claim [1922] Ac 339 @ 397;..........................................173
A-G of Canada v. Hallet & Carey Ltd [1952] AC 427.......................................173
Edinburgh Street Tramways Co. v Torbain [1877] 3 AC 58..............................174
Adler v George [Supra],......................................................................................175
Wilsher v. Barret [1965] 1 Qb 312;.....................................................................175
Barnard v. Gorman [1941] Ac 378......................................................................175
Ababio v The Republic [1972] 1 GLR 347.........................................................175
Rule 2. The meaning of the statute is to be sought for from the document itself......175
Halsbury 4th Ed Vol 44 Para 856.........................................................................175
Black-Clawson Case [Supra]...............................................................................175
Westminster Bank Ltd v. Zang [1966] Ac 182...................................................176
Rule 3: Statute or part thereof must be construed as a whole....................................176
A-G v Prince Augustus of Hanover [1957] AC 436...........................................176
9
 Colquhoun v.Brooks [1889] 14 AC 493..............................................................176
Takyi v Ghassoub [87-88] 2 GLR SC.................................................................176
Ababio v The Republic [1972] 1 GLR 347.........................................................177
GTP v. Ankujeah [2000] Vol 2 GLR..................................................................177
Gt Campbell Associates Ltd v. Hugh Carson Ltd [1979] 99 DLR 3rd Ed 529....178
Baffour v. Addae Hc Kumasi, 17/11 Unreported................................................178
Glover v Glover: CA 5/2/98 (Unreported) Per Wood Ja.....................................178
Gallant v Canada Employment and Immigration Com. [1985] 2 FC 508 CA....178
Hamid v Okata [1989-90] 2 GLR 420-429.........................................................178
IRC v Hinchy [1960] AC 748.............................................................................179
Ghana Consolidated Diamond Ltd v. Boahene [1987-88] 1 GLR 87 CA...........180
Rule 4: Primacy of the Ordinary Meaning Rule.........................................................180
Pinner v Everett [1969] 3 AllER 257, [ 1 WLR 1266]........................................180
Re Halls’ Settlement [1954] 1 WLR 1185.........................................................181
GTP v. Ankujeah.................................................................................................181
Kuenyehia v. Archer [1993-94] 2 GLR 525........................................................181
In Re C (A Minor) [Supra]..................................................................................182
Context....................................................................................................................182
A-G v. Prince Augustus Of Hanover...................................................................182
Nankoja v. Mbage [1989-90] 1 GLR 354...........................................................182
Mandla v. Dowell Lee [1983] 1 AllER 1062......................................................183
The Longford [1889] 14 PD 34...........................................................................183
Royal College of Nursing Of Uk V. DHSS [1981] AC 100...............................184
Garmans v. Ekins [Supra];..................................................................................184
Dyson Holding Ltd v. Forbes..............................................................................184
The Two Stage Approach To Statutory Interpretation...........................................184
Warburton v. Loveland [1832] 2 D& CL 480.....................................................185
Countess of Rothes v. The Kirkcaldy & Dysart Waterworks Com’ner [1882] AC
694.......................................................................................................................185
IRC v Hinchy [1960] AC 748.............................................................................186
Essilfie v. Anarfo per Archer J [1992] 2 GLR 654;............................................186
GTP v Akunjeah [Supra].....................................................................................186
Quaynor v Humphrey Bonsu [unreported]..........................................................186
Abrahams v. Cavey [1967] 3 AllER 179.............................................................186
Mills v Cooper [1967] 2 QB 459.........................................................................187
Mandla v. Dowell Lee [Supra]............................................................................187
Technical Construction...........................................................................................187
Unwind v. Hanson [1891] 2 QB 115..................................................................187
Jenner v Allen West & Co. Ltd [1959] 2 AllER 115..........................................187
Blankley v. Godly [1952] 1 AllER 436...............................................................187
Fisher v Bell [1961] 1 QB 394...........................................................................187
R v. Slater [1881] 8 QB 267................................................................................187
Rule No 5: The Secondary Meaning Rule.....................................................................188
Maunsell v. Olins [1975] Ac 373........................................................................188
Sam v. Comptroller of Customs & Excise [1971] 1 GLR 289............................188
Cross p 88 and 92................................................................................................188
10
 A-G’s Reference (No.1 of 1988) [1989] 2 AllER 1............................................189
Cross @ 83 & 87.................................................................................................190
Wills v. Boyley [1983]1 AC 57 (Cross p 86)......................................................190
Darke IX v. Darke IV [1984-86] 1 GLR 481......................................................190
Duport Steels Ltd v. Sirs [1980] 1 AllER 529 @ 551.........................................191
Barnard v Gorman,..............................................................................................191
Wilshire v Barret.................................................................................................191
Ababio v The Republic [1972] 1GLR 347..........................................................191
CFAO v Zacca [1974] GLR 366 CA...................................................................191
Rule 6: Necessarily Implied Construction..................................................................193
Power to Read in Words Necessarily Implied Construction..................................193
Chorlton v Lings (1868) LR 4 CP 374................................................................193
Salomon v Salomon [1897] AC 22.....................................................................193
Adler v. George...................................................................................................194
Wilshire v Barret;................................................................................................194
Barnard v. Gorman..............................................................................................194
Wills v Boyley [Supra] (Cross P 86-87)..............................................................194
Luke v IRC [1963]AC 557..................................................................................194
The Power of Rectification of Statutory Language................................................195
Adler v. George...................................................................................................195
Sasu v. Amua –Sekyi...........................................................................................196
Maxwell on Interpretation 12th ed @ 228............................................................197
Sutherland Publishing Ltd v Caxton Publishing Co Ltd [1938] Ch 174.............198
Adding Words to a Statute......................................................................................198
Cross : 94-96........................................................................................................198
Buta: 35-62..........................................................................................................198
Western Bank Ltd v. Schindler [1977] Ch 1 (Cross 94-95)................................198
Johnson v. Moreton [1980] AC 37 (Cross 96);...................................................199
Najat Metal Enterprise Ltd v. Hanson [82-83] GLR 664 (Buta 35 & 62);.........199
Najat Metal Enterprises Limited. v. Hanson And Another [1982-83] Glr 81-86.............199
Sasu v. Amua-Sekyi............................................................................................199
Substitution of Words.............................................................................................200
Sutherland Publishing Company Ltd v Caxton [1938] Ch 174...........................200
Cross: 96-97.........................................................................................................200
Federal Steam Navigation Co Ltd v. Department of Trade & Industry [1974] 2
AllER 97..............................................................................................................200
Ribeiro v. Ribeiro [89-90] 1 GLR 109 SC..........................................................201
Republic v. Yebbi & Avalifo [2000] SCGLR 149..............................................203
General Cold Industry Limited. v. Standard Bank Ghana Limited [1982-83] GLR
360-384................................................................................................................204
Ignoring Statutory Words.......................................................................................206
McMonagle v Westminster City Council [1990] 1 AllER 993...........................206
R v Registrar General, ex parte Smith [1990] 2 AllER 170................................206
Cross: 98-99.........................................................................................................207
Criticisms of the Power of the Courts to Correct Errors by Construction.................207
Sasu v Amua-Sekyi.............................................................................................207
11
 Western Bank Ltd v. Schindler...........................................................................208
GTP v. Ankujeah.................................................................................................208
Other Limitations under the Power of Rectification..................................................208
The statutory purpose must be plain.......................................................................208
Western Bank Ltd v. Schindler...........................................................................208
Sutherland Publishing Co Ltd v. Caxton Publishing Co Ltd...............................208
Jones v. Wrothman Park Ltd [1970] AC 74........................................................209
There must be a traceable or demonstrable error, gap or flaw in a statutory
provision.................................................................................................................209
Jones v. Wrothman Park Estates Ltd...................................................................210
Adusah v A-G [1981] GLR 228 (Buta 59)..........................................................210
Adams v. Tandoh [1984-86] GLR 561. (Buta 65)..............................................211
GTP v. Ankujeah.................................................................................................211
Without rectification the statutory provision must be manifestly absurd or otherwise
incapable of effecting legislative purpose...............................................................211
Cross: 99-102.......................................................................................................211
Federal Steam Navigation Co Ltd v Department of Trade and Industry............211
There must be an obvious correction:.....................................................................211
Jones v Wrothman Park Estates Ltd....................................................................212
Sasu v. Amua-Sekyi;...........................................................................................212
Ex Parte Adjei......................................................................................................212
Where there are no such obvious corrections:........................................................212
R v Northampton Borough Council ex parte Whitelyn Ltd [1986] 85 LGR 249212
Mekkaoui v Minister of Internal Affairs [1981] I GLR 664...............................212
Revenue and Penal Statues............................................................................................213
Halsbury 4th Ed Vol 44 Para 910& 912...............................................................213
Fisher v. Bell [1911] 1 Qb 394............................................................................213
Tenant v Smith [1872] LR 4 BC 184..................................................................214
Reed International Ltd v. IRC [1974] Ch 351.....................................................214
Aids to Interpretation of Documents and Statutes............................................................215
Maunsell v. Olins [1975] 1 AllER 16..................................................................215
The Parts of a Non-Statutory Document as Aids to Construction.................................216
Orr v. Mitchell [1983] AC 238............................................................................216
Traditional Deeds of Conveyance..............................................................................216
The Non-Operative Parts........................................................................................216
Street v. Mountford [1985] AC 809....................................................................217
Clayton’s Case [1585] 5 COLE Rep 1A.............................................................217
Anderson v. Weston [1840] 6 BING NC 296.....................................................217
Reffell v. Reffell [1866] LR 1 P& B 139............................................................217
Shore v Wilson....................................................................................................218
Halsbury 4th Edn Vol 12 -1496............................................................................218
The Parties:.............................................................................................................218
Frankland v Nicholson [1805] 3 M& X 259;.....................................................218
Fung Ping Shan v. Tong Shun [1918] AC 403...................................................218
Nittan (Uk Ltd) v. Solent Steel Foundation Ltd [1981] 1 LR 633......................219
Shore v. Wilson...................................................................................................219
12
 The Recitals............................................................................................................219
Akuffo v Valco....................................................................................................219
Orr v. Mitchell.....................................................................................................219
The Karen Oltman [1976] 2 Lloyds Report 708.................................................219
Mackenzie v Duke Of Devonshire [1896] AC 400 per Lord WATSON............220
In re Moon, Ex parte Dawes [1886] 17 QBD 275..............................................220
Walsh v. Travenion [1850] 15 QB 733...............................................................221
Operative parts clear, Recitals unclear................................................................221
Dawes v. Tredwell [1881] 18 CH D 354.............................................................221
Holliday v. Overton [1852] 14 BEAV 467;........................................................221
Anderson v Anderson [1895] 1QB 749...............................................................221
Operative part Unclear but Recitals Clear:..........................................................222
Leggott v. Barrett [1980] 15 CH 306 per Brett LJ..............................................222
Halsbury 4th Ed Vol 12 para. 1511......................................................................222
Re Coghlan [1894] 3 Ch 76;................................................................................222
Crouch v. Crouch [1912] 1 KB 378;...................................................................222
Operative parts and Recitals both clear but inconsistent:....................................222
Young v. Smith [1865] LR 1 Echq 180...............................................................222
Operative Parts........................................................................................................222
Cofie v Shahin [1992-93] GBR Part 2 @ 675.....................................................223
Nartey v Mechanical Lloyd Assembly Plant Limited [1987-88] 2 GLR 314-369..........223
Parcels & Maps/Plans Annexed..............................................................................223
Truckell v. Stock.................................................................................................224
Exceptions and Reservations Clause......................................................................224
Halsbury 4th Ed Vol 12 1529...............................................................................225
Duke Of Sutherland v. Heathcote [1892] 1 Ch 475 @ 481.................................225
Re Dance’s Way [1962] 1 Ch 490;......................................................................225
Pearce v. Watts [1875] Lr 20 Eq 492..................................................................225
Halsbury 4th Ed Vol 12 Para 1472 Ff;.................................................................225
Savill Brothers Ltd v. Bethel [1902] 2 Ch 523 @ 537........................................225
Neil v. Duke Of Devonshire [1883] 8 AC 135....................................................225
Webb v. Plummer [1819] 2 B& ALD 746 @ 751...............................................225
The Habendum........................................................................................................226
Halsbury’s 4th Edn Vol 12 para.1534..................................................................226
Relationship of Premises and Habendum...............................................................226
Spyre v. Topham [1802] 3 EAST 115.................................................................226
Spencer V Registrar of Titles [1906] AC 503 @ 517.........................................227
Halsbury 12 1534; Kerr V. Kerr [1854] 493 @ 497;.........................................227
Cofie v. Shahin , NRCD 175 Ss 14(2) 13(2)......................................................227
Definition/ Interpretation Clauses..................................................................................227
Lloyd v. Lloyd [1837] 2 MY & CR 192.............................................................229
Kell v Charmer [1856] 23 BEAV 195.................................................................229
R v. Calder & Boyars Ltd [1961] 1 QB 151........................................................229
Dilworth v Commissioner Of Stamps [1899] AC 99;.........................................230
Deeble v Robinson [1954] 1 QB 77;...................................................................230
Republic v. Yebi & Avalifo [2000] GLR............................................................230
13
 Republic v Dey [Unreported]..............................................................................230
Republic v. Stool Lands Boundaries Settlement Commissioner; Ex Parte
Mamponsu Stool..................................................................................................230
Cocoa Marketing Company v Ansah per Woode JA.........................................230
Brikom Investment Ltd v Cford [1981] 1 WLR 863...........................................230
The Proviso Clause.................................................................................................230
West Derby Union V Metropolitan Life Assurance Company [1897] AC 647@
652.......................................................................................................................232
Repugnant Provisos................................................................................................232
Forbes v Git [1922] 1 AC 256 @ 259.................................................................233
Williams v Hathaway [1877] 6 Ch D 544 @ 549...............................................233
Schedules and Attachments as Aids to Construction..............................................233
Halsbury 4th Edn Vol 12 1523; Eastwood v. Ashton..........................................234
Wallington v. Townsend [1939]2 AllER 225......................................................234
Punctuation as Aids to Interpretation............................................................................235
Sanford v. Raikes [1816] 1 MER 646.................................................................235
Gordon v.Gordon [1871] LR 5 HL 254...............................................................235
Re Stell [1979] CH 218.......................................................................................236
Marshall v. Cottingham [1981] 3 AllER 8 per Sir Robert Megarry V-C............236
Titles/Headings as Aids to Interpretation......................................................................238
Tetteh Akufo v Valco, CA; Valco v Tetteh Akufo [2003-2004] SCGLR...........238
Boateng v. Valco [1984-86] 1 GLR 733.............................................................239
Marginal Notes/Side Notes as Aids to Interpretation....................................................239
National Farmers Union Mutual Insurance Society Ltd v. Dawson [1941] 2 KB
424.......................................................................................................................240
Gerrard v Lewis [1882] 10 QBD 90....................................................................240
Parts of a Statute as Aids to Construction.....................................................................241
Interpretation Act, 1960 (CA 4) [As Amended]..................................................241
Enacting Or Operative Parts of a Statute....................................................................242
The Sections........................................................................................................242
Definition/ Interpretation Sections................................................................................242
The Functional Constructional Rule.......................................................................243
Halsbury 4th Ed Vol 44 1390 [845]......................................................................243
R v. Calder And Boyers Ltd [1961] 1 QB 151 @ 168........................................243
In re Wykes decd; Riddington v Spencer [1961] CH 229 @ 244 and 245........244
R v. Britton [1967] 2 Qb 51.................................................................................244
Togbe Konda v. Togbe Dompre [1978] GLR 354@ 356....................................244
Republic v. High Court Accra, Ex Parte Dake [1992] 2 GLR 688 SC...............245
Cross 119-120......................................................................................................246
Ankrah v Ofori [1974] 1 GLR 185-194.............................................................246
Rodger v. Harrison [1893] 1 Q.B. 161, C.A........................................................246
Dilworth v. Commrs of Stamps [1899] AC 99....................................................246
Deeble v. Robinson [1954] 1 Qb 77 @ 81;.........................................................247
Rep v Yevi & Avalifo.........................................................................................247
Republic v. Stool Lands Boundaries Settlement Commissioner, Ex Parte
Mampongsu Stool [Supra]...................................................................................247
14
 In Re Asante, (Dec’d) Asante v Owusu [1993-94] 2 GLR 71............................248
Brikom Investment Ltd v. Seaford. [1981] 1 WLR 883......................................248
Thomas v. Marshall [1953] AC 543@ 556.........................................................248
The School Board for London v Jackson [1881] 7 QBD 59 @ 504...................248
Wyre Forest District Council v Secretary of State for Environment [1900] 2 WLR
517.......................................................................................................................249
Brown v Anderson [1965] 1 WLR 528...............................................................249
Schedules in Statutes..................................................................................................250
Kuenyehia v Archer [1993-4] 2 GLR 525...........................................................250
IRC v Gittus [1920] 1 KB 563 @ 576 CA..........................................................251
IRC v Littlewoods Mail Order Stones Ltd [1963] AC 135 HOL........................252
Ababio v The Republic........................................................................................252
City of Victoria v British Columbia Rly Co [1910] 13 WLR 336 CA................252
Provisos in Statutes....................................................................................................252
Hosnall v Bruce [1873] LR 8 CP 378 @ 385....................................................253
Jennings v Kelly [1940] AC 206 @ 229.............................................................253
Thompson v Dibdin [1912] AC 533 @ 544 per Lord Asburn............................253
Mullins v Treasurer of Surrey [1880] 5 QB 170 @ 173,....................................254
The Guardians of the Poor of West Derby Union v Metropolitan Life Assurance
Society.................................................................................................................254
Eastbourne Corporation v Fortes Ltd [1959] 2 QB 92 @ 107............................255
Repugnant provisos.................................................................................................255
Chelsea Waterworks [1731] Fitz 195..................................................................255
Rhonda UDC v Taff Vale Rly Co. [1909] AC 253 @ 258.................................255
Stamp Duties Commissioner v Alan Cavaye Atwill [1973] AC 206 @ 229......255
Savings.......................................................................................................................256
Ealing London BC v Race relations Board [1972] AC 342................................256
Re Williams ; Jones v Williams [1887] 36 CD 573............................................257
Repugnant savings..................................................................................................257
Non- Enacting or descriptive parts of statute as aids to interpretation.............................258
R V. Hare [1934] 1 kb 354..................................................................................259
Re Woking Udc [1914] 1 CH 300.......................................................................259
R v. Bates [1952] 2 AllER 842............................................................................260
Tommy Thompson Books Ltd v. The Republic [1995-96] 1 GLR 221..............261
Republic v. High Court Accra; Ex Parte Adjei [1984-86] 2 GLR 511 (Buta 92).
.............................................................................................................................261
Re Vexacious Actions Act 1886; Re Boaler [1915] 1 KB 21.............................262
DPP v. Schildkamp [1971] AC 1........................................................................262
Long-titles as aids to interpretation............................................................................264
Jeremiah Ambler & sons ltd v Bradford Corporation [1902] 2 CH 585.............264
Hudson v US Borax & Chemical Corporation [1970] 11 Dominion LR , 3rd ED @
345.......................................................................................................................265
R v Bates [1952] 2 All ER 842 @ 844 @ CROSS 127.......................................265
R v Galvin [1987] 2 QB 862 @ 867....................................................................265
R v Whitley [1979] 1 All ER 959 CROS @ 130.................................................265
Black-Clawson [1975] AC 591...........................................................................265
15
Preamble- As Aids to Interpretation..........................................................................266
Republic v Jackson [1982-3] GLR 86,................................................................267
Mason v. Armitage 1806 13 vex 26 at 36,..........................................................267
Powell v. Campton Park Ltd. [1899]AC 143 @157............................................267
A.G v. Prince Augustus of Hanover....................................................................267
Yin Kwan v Eastern Invets Co.Ltd.(1944) 1 ALL E.R. 213...............................268
AG v Prince Augustus.........................................................................................268
Short Title...................................................................................................................269
Vacher and Sons Ltd v London Society of Compositors (1913) A.C 107..........269
Legal status of short title as aid in Ghana...............................................................269
Usher & Sons Ltd v London Society of Compositer [1913] AC 107.................269
R v Galvin (`1987) 2. Q.B 812............................................................................269
R v Wheatley (1971) 1 AllER 954 @ 957...........................................................270
Committee for The C’wealth Of Canada v Canada (1991) SCR.139.................270
R v Galvin (1987) Q.B. 862 at 869.....................................................................270
Punctuation.................................................................................................................271
Duke of Devonshire v O’ Connor (1890) 24 Q.B.D. 464...................................271
Esso Petroleum Co Ltd v Min. Of Defence (1990) 1All ER 163........................271
DPP v Shildkamp 1971 AC 1..............................................................................271
Alexander v. Makenzie 1947 AC 155.................................................................271
Tommy Thompson Books v. The Rep.1995-96 1GLR 227................................272
Rep v Judicial Committee of Central Regional Hse of Chiefs: Ex p Supi Mark
Aaba, Micheal Conduah......................................................................................272
Re Associated Protected Ltd v Mason [1970] 13 Dominion LR, 3 rd ed 643. . .274
Houston v Burns [1918] AC 337 @ 348.............................................................274
Slaney v King [1970] 1 All ER 343 @ 441.........................................................274
Marshal v Cottingham [1981] 3 All ER 8 @ 12..................................................274
Hounlow v Law Society [1981] AC 124 @ 198................................................274
Luby v Newcastle Upon - Lyme Corporation [1964] 3 All ER 169, CROSS 134
.............................................................................................................................274
Allnut London Pty v Newton [1981] 2 All ER @ 292........................................274
Headings.....................................................................................................................274
R v Hare [1934] 1 KB 354 @ 355.......................................................................275
Esso Petrol v Ministry of Defence [1980] 1 All ER @ 16..................................275
Inglis v Robertson [1898] AC 616 @ 630...........................................................275
AG of Canada v Jackson [1946] 2 DLR 481 @ 486...........................................275
Legal status of headings in Ghana today................................................................275
Smith v Smith [1965] GLR 730 , BUTA @ 91- NO...........................................276
Bilson v Apaloo [1981] GLR 24 @ 64 per Adade JSC – YES...........................276
Osei v Siribuor [1984-6] 1 GLR 588 SC – YES.................................................277
Gatco & Chempharan v Pharmadex Gh Ltd-unreported CA [1999] Vol 2.......277
Tommy Thompson v The Republic.....................................................................277
Re Peters and District of Chilliwack [1987] 43 DLR (4TH ed @ 523)................277
Dickson v BBC [1979] 2 All ER 112..................................................................278
R v Zundel [1992] 95 DLR 112..........................................................................278
DPP v Schildkamp...............................................................................................278
16
 R v Stevenson & McLean [1980] 57 CCC 2nd ed 526.........................................279
Law Society of Upper Canada v Skapinka [1984] 9 DLR 4TH ed 161................279
Marginal Notes...........................................................................................................279
Chandler v DPP [1964] AC 763..........................................................................279
Re Woking UDC supra........................................................................................279
Ababio v The RepubLIC [1972] 1 GLR 347-354...............................................280
Bilson v Apaloo...................................................................................................280
Smith v Smith......................................................................................................280
Osei v Siribour.....................................................................................................280
Tommy Thompson v The Republic.....................................................................280
Gatco v Pharmadex Gh Ltd.................................................................................280
R v High Court Accra exparte Adjei...................................................................280
DPP v Schildcamp @ 28 per Upjohn J................................................................280
Harbury Investment v Westminster City Council [1986] 1 WLR 1232 @ 1242 280
R v Moore [1988] 41 CCC 3rd ed @ 289.............................................................280
Tudor Branch Holding Ltd v City Bank NA [1991] 4 All ER 1, CROSS 132. . .280
R v Galvin [1986] QB 682 , CROSS@ 133........................................................280
Rules of Langauge & Presumptions..................................................................................282
The Linguistic Canons of Construction (LCC) - (Rules of Language).............................283
Expressio Unius Rule (implied exclusion rule).............................................................284
AG of Trinidad and Tobago v McLeod [1984] 1 All ER 694.............................284
Aspen v Austin[ 1844] 1QB 671.........................................................................285
Wills v United Counties Bank Ltd [1911] 1 CH 69............................................285
Impraim v. Baffoe [1980] GLR 520-526............................................................285
Rep v City of Winnepeg......................................................................................286
Intro Pty UK Ltd v Saubel [1983] 2 All ER 495, BUTA @ 96-7.......................286
GIHOC v Vicenta Publications [1971] 2 GLR 24, BUTA @ 95........................286
Aldrich v AG [1968] PD 281..............................................................................287
Oppan v Frans & Co Ltd [1984-6] 1 GLR 281...................................................287
CFAO v Zacca [1972] GLR 366.........................................................................288
Assibey v Ayisi [1974] 2GLR 315 CA,..............................................................290
Arma v Arma [1975] 2 GLR 21.........................................................................290
Patu
Styles v Amoo-Lamptey [1984-86] 2 GLR 644.................................................290
Kwakye v AG [1981] GLR 144..........................................................................290
AG v Tagoe [1984-86]........................................................................................290
Boateng v Valco..................................................................................................291
Akuffo v Valco*..................................................................................................291
Valco v Akuffo –.................................................................................................291
Coltman v Bibby Tankers Ltd [1988] 1 AC 276 @ 301-2..................................291
Colquchon v Brookes [1988] 21 QBD 61 per Lopes LJ-....................................291
Dean v Wiesengrun [1955] 2 QB 120.................................................................291
CFAO v Zacca.....................................................................................................291
Republic v Military Tribunaal exparte Ofosu Amarh[1973] 2 GLR 445...........291
GPHA v Issoufu [1993-4] 1 GLR 24..................................................................291
Dean v Wisengrun...............................................................................................291
17
 C Maurice & Co Ltd v Minister of Labour [1968] 1 WLR.................................291
Prescod (Central Ltd) v Minister of Labour [1969] 1 WLR 89..........................291
Turgon v Dominion Bank [1930] SER 67...........................................................291
Ejusdem Generis (Limited Class) Rule.........................................................................292
Lydon v Stanbridge [1857] 2 H & N 45..............................................................292
Sun Fire Office v Hart [1887] 12 App Cases 848...............................................292
Jebeille v Norwick Union Fire Insurance Soc Ltd [1964] GLR . BUTA @ 109 293
Republic v Saffour II [1980] GLR 193, BUTA 110...........................................293
Republic v High Court Accra ex parte Ploetner [1984-6] 2 GLR.......................295
The rationale for the Ejusdem Generis Rule.......................................................296
Brown C Haven Pty Ltd v Pool Corporation [1958] CH 574 @ 610 per Roma J
.............................................................................................................................296
Quazi v Quazi [1980] AC 744 at CROSS 135....................................................296
Chandris v Isbrandstein Moller Co Ltd [1951] KB 240......................................297
Re Stockpot; Rugged Industrial & Reformatory Schools [1898] 2 CH 267 –...297
Shaw v Ruddin [1858] 9 IR CLR 214.................................................................297
Scales v Pickering [1828] 4 Bing 448.................................................................297
Re Wellstead’s Wills Trust [1949] CH 296........................................................298
National Bank of Greece (Canada)* v Katsikonouris [1990] 74 DLR 197 @ 199
.............................................................................................................................298
Tilman & Co v SS Knutsford [1908] 2 KB 385..................................................298
Quazi v Quazi......................................................................................................298
SS Manghild v Mcintyre Bros Ltd [1923] KB 321.............................................298
R v Stanleford; R v Jordan [1997] AC 699.........................................................298
Republic v Ghana Cargo Handling Corporation ex parte Moses [1980] GLR 206
.............................................................................................................................299
Okwan v Amankwa II [1991] 1 GLR 123-135 CA.............................................299
CHRAJ v AG [1998-9] SCGLR 871-.................................................................300
Agyekum v Boadi [2000] SCGLR 280...............................................................301
Alexander v Tredgar Iron & Coal Co [1944] KB 380.........................................302
Lake McQUARIE Shire Council v Abes [1977] 1 NSWLR 126........................302
Parkes v Sec of State of the Environment [1979] 1 All ER 111,........................302
AG v Seccombe [1911] 2 KB 688.......................................................................302
Foscolo Mango & Co v Stagline Ltd [1931] 2 KB 48........................................302
Grini v Grini [1969] 5 DLR 3rd ed @ 460...........................................................303
R v Payne [1860] LR 1 CCR 27..........................................................................303
Arc Bishop of Canterbury’s Case [1596] 2 Coal Report 46 A............................303
The circumstances in which the rule may not be applied...........................................303
A-G v Abdulla [1960] EA 672............................................................................303
US v Alpers [1950] 338 US 680..........................................................................303
Skinner & Co v. Shew & Co [1893]1 ch 413 ca.................................................304
Brampton Jersey Enterprise Ltd V. Ontario Milk Control Board [1966] 1 Dlr 2nd
Ed @ 130.............................................................................................................304
The Noscitur a Sociis Rule (Associated Words Rule)...................................................304
Bourne v. Norwich Crematorium [1967] 1 WLR 691........................................304
Illustrations of the application of the rule...............................................................305
18
 THE FIRST SCENARIO...........................................................................................305
Republic v. Minister of Interior; Ex Parte Bombelli [1984-86] I GLR 204........306
Muir v. Keay [1875] Lr 10 Qb 594.....................................................................308
Abrahams v. Cavey [1968] 1 Qb 479..................................................................308
B. To Determine The Meaning Of Neutral Words..............................................308
Lee-Verhst (Investments Ltd ) v Harwood Trust [1973] 1 QB 204 @217 (BUTA
119)......................................................................................................................309
Bromley Lbc v. Greater London Council [1983] 1 AC 768 @ 841....................309
Republic v. Minister Of Interior; Ex Parte Bombelli..........................................309
Great Western Railway Company v. Swindon Etc Railway Company.[1884] 9
App Cas 787 @ 807.............................................................................................309
Graphic Corporation v. Baiden [unreported].......................................................309
R v Two Young Men and Kootney [1979] 101 DLR 3RD ED 598 @ 608..........309
Letang v Cooper [1964] 2 Aer 99. (Buta 121-123).............................................309
The defendant appealed:-...........................................................................................310
Coltman V. Bibby Tankers Ltd [1988] Ac 276...................................................311
Alternative Explanations.....................................................................................311
IRC v. Parker [1966] AC 141 @ 161..................................................................311
External Aids to Construction...........................................................................................312
External aids applicable exclusively or largely to the interpretation of documents......313
The Contra Proferentum Rule........................................................................................313
Meill V. Duke Of Devonshire [1882] 8 AC 135................................................313
Parkinson v Barclays Bank Ltd [1951] 1kb 368 CA...........................................314
Patching V. Dubbins [1853] Kay 1.....................................................................314
Roger v. Comptoir d’escompte de paris [1869] lr 2 pc 393 @ 406....................314
Webb V. Plummer [1819] B& Ald 746...............................................................314
Lee v. Railway Executive [1949] 2 Aer 581.......................................................314
Burton V. English [Supra]...................................................................................314
Hollins V. Derby J Ltd [1963] 1 Qb 844.............................................................314
Burton V. English [Supra]...................................................................................314
Falsa Demonstratio Rule................................................................................................315
Eastwood v. Ashton [1915] Ac 900....................................................................315
Re Brocket [1908] 1 Ch 185................................................................................316
Wilberforce v. Wilberforce.................................................................................316
Adamastos Shipping Ltd v. Anglo-Saxon Shipping Ltd [1959] Ac 133.............316
Finbow v. Air Ministry [1963] 1 Wlr 697...........................................................316
Magee V. Lavell [1874] Lr 9 Cp 107..................................................................316
Re Bright Smith [1886] 31 Ch D 314..................................................................316
National Society For The Prevention Of Cruelty To Children V. Scottish National
Society For The Prevention Of Cruelty To Children [1915] Ac 207..................316
Cowen V. Trufitt Ltd [Supra]..............................................................................317
The Expression Eorum Rule..........................................................................................317
Surey V Cole [1627] Latch 44 And 225..............................................................317
Nicolene V. Simonds [1953] 1 Qb 543...............................................................317
Stuckeley V. Butler [1614] Hob 168...................................................................318
Ellis V. Noakes [1932] 2 Ch 98...........................................................................318
19
Some external aids applicable exclusively or largely to interpretation of statutes........319
Legislative History.....................................................................................................319
Pre-Enacting History...............................................................................................319
Yovuyibor v Attorney- General [1993-94] 2 GLR 343.......................................319
Gtp v. Ankujeah...................................................................................................320
Re A Solicitor [1961] Ch 491..............................................................................321
Atkinson v USA Govt [1971] AC 187 Hl...........................................................321
Bank of England v. Vagliano Bros [1891] Ac 107 @ 144..................................321
Williamson V. Rider [1963] 1 Qb 89..................................................................322
Yorkshire Insurance Ltd V. Wisket Shipping Co Ltd [1962] 2 Qb 330..............322
Enacting History.....................................................................................................322
Pre-Parliamentary Materials...................................................................................322
Pepper v. Hart [1993] 1 AllER 42 @ 65.............................................................322
R v. Jefferson [1994] 1 AllER 720......................................................................323
Pepper v. Hart [Supra].........................................................................................324
R v. Jefferson [Supra]..........................................................................................324
Duke V. Gec Reliance Ltd [1988] 2 Wlr 359......................................................324
Parliamentary Materials..........................................................................................325
Davies v. Johnson [1979] Ac 264 @ 345............................................................325
South Australia v The Commonwealth [1941] Clr 379.......................................325
Hilder v Dexter [1902] 474 @ 477-478..............................................................326
Recent Trends in the Use of Parliamentary Material as Aids to Construction.......327
Sillery V. R [1981] 35 ALR 227.........................................................................327
Pepper V. Hart [1993] 1 AER 42. (Cross 18-18; 156)........................................327
R v. Warwickshire County Council; Ex Parte Johnson [1993] 1 AllER 299......328
Steele Ford And Newton (A Firm) v. Crown Prosecution Service [1993] 2 AllER
769.......................................................................................................................328
Reports of Parliamentary Committees....................................................................328
International Treaties, Agreements And Conventions [ITAC]...............................328
KLM v. Farmex [1989-90] 2 Glr 623 SC...........................................................329
Quazi v. Quazi [1980] Ac 744 @ 808.................................................................329
Salomon v. Customs And Excise C’sioners [1967] 2 Qb 116 CA......................329
National Corn Growers Association V. Canada Import Tribunal [1990] 74 Dlr 4TH
ED 449 @ 482 SC...............................................................................................329
Salomon v. Customs And Excise C’sioners [SUPRA].......................................329
Fink V. Gwello [Unreported]..............................................................................329
Fothgerhill v. Monarch Airlines Ltd [1981] AC 251 @ 272...............................330
Fothgerhill v. Monarch Airlines Ltd [1981] AC 251 @ 272...............................330
Salmon v. Excise C’sioners [SUPRA]................................................................330
Fothgerhill v. Monarch Airlines Ltd [1981] AC 251 @ 272...............................330
Vienna Conventions............................................................................................330
Post Enacting History.................................................................................................330
Kerkness V John Hudson And Co Ltd [1955] Ac 696........................................331
Ormond Investments Co V. Belts [1928] Ac 143...............................................331
Enactments In Pari Materia........................................................................................331
In pari materia..........................................................................................................331
20
 Re Samuel [1935] AC 514..................................................................................331
R v Price [1897] LR 6 QB 411 and 416..............................................................331
Cape Brandy Syndicate V. Irc [1921] 2 KB 403 @ 414.....................................332
Ormond Investment Trust V. B [1828] AC 143 @ 156......................................332
Philips V. Parnaby [1934] 2 KB 299...................................................................332
Northinhampshire County Council Case [1986] 1 AER 199 (CROSS 150).......332
Woode V. C’sioner Of Police Of The Metropolis [1986] 1 WLR 796...............332
Cassanova Case [1806] LR 1 EC 268 @ 272......................................................332
Benjillo v Republic : CA [1997-98] 2 GLR........................................................332
Subsequent Acts Not In Pari Materia......................................................................333
Subsequent Acts of Explanation Or Parliamentary Exposition..............................333
Butler v. Baker (1591) 3 COLE REPORTS 25 A...............................................333
The Directive Principles of State Policy....................................................................334
Their Use As Aids...................................................................................................334
NPP v. IGP (The Public Order Law) [1993-94] 2 GLR 459 SC.........................336
NPP v. A-G (31st Dec Case) [1993-94] 2 Glr......................................................338
NPP v. A-G (CIBA Case) [1996-97] SCGLR 729:.............................................339
External Aids Applicable to Interpretation of both Documents and Statutes................340
Textbooks and Other Literary Professional Or Academic Publications....................340
Shore v. Wilson...................................................................................................340
Dictionaries................................................................................................................340
Marquis Camden V. Irc [1914] 1 Kb 641............................................................341
Practice.......................................................................................................................341
Historical Setting........................................................................................................342
A-G For Northern Ireland V. Gallagher [1963] Ac 349 @ 366..........................342
Maxwell Pp 47-49; Craies 125-128; Halsbury Vol 12 Para 898-899; Cross 143-
144.......................................................................................................................342
Holme V. Guy [1877] 5 Ch D 901 @ 905...........................................................342
River Wear Commissioner V. Adamson [1877] 2 Ap Cas 743 @ 763...............342
Chandler v DPP [1964] Ac 763 @ 791...............................................................342
Contemporanio Exposito (Contemporary Exposition)...............................................343
Documents..............................................................................................................343
Odgers Pp 122-125; Lewison 63-66; Halsbury 4th Ed Vol 12 Para 1496-1499.. 343
A-G Of Ireland v. Drummond [1842] 1 Dr And War 353 @ 358.......................343
Lord Hastings V. Northeast Railway Company [1899] 1 Ch 656......................343
Chad v. Tilsed [1821] 2 Brod And Bing 403 @ 406...........................................343
North East Railway v. Lord Hastings [1900] Ac 268 @ 269..............................343
Watchman v A-G Of East Africa Protectorate [1919] Ac 533............................344
Schuler A-G v Wickman Machine Tools Sales Ltd [1974] Ac 235...................344
Wilson v. Maynard Shipping Consultants Ad Ltd [1978] Qb 665.....................344
Halsbury 12th Ed 1499.........................................................................................344
Chad V. Tilsed [Supra]........................................................................................344
CE In Relation To Statutes.....................................................................................344
Sharp V. Wakefield [1889] 22 Qbd 239 @ 241..................................................344
Thompson v. Nixon [1966] 1 Qb 103 @ 109 110...............................................345
Macrowlands Ltd V. Bernie Inns Ltd [1985] 3 Aer 473 (Cross 147).................345
21
 Nottinghamshire County Council V Secretary Of State For Environment [1986]
AC 240.................................................................................................................345
Re Regulation And Control Of Aeronautics In Canada [1932] AC 54..............345
Dyson Holdings Ltd V. Fox................................................................................346
Gamans V. Aikins...............................................................................................346
Ut res magis valeat quam pereat rule.............................................................................346
Documents..............................................................................................................346
Langston v. Langston [1834] 2 Cl & Fin 194....................................................346
Re Baden’s [1969] 2 Ch 388...............................................................................346
Pollock v Stacy [1847] 9 Qb 9031......................................................................346
Akim Akroso Stool v Akim Manso Stool...........................................................346
Statutes....................................................................................................................347
Noakes v. Doncaster Amalgamated Collieries Ltd [1940] Ac 1014 @ 1022.....347
A-G of Gambia v. Jobe [1984] 3 WLR 174........................................................347
Republic v. High Court Accra; Ex Parte Adjei [1984-86] 2 Glr 511..................347
Presumptions.....................................................................................................................348
Presumptions relating to Interpretation of Documents...........................................351
Presumption Of Consistent Expression In Meaning................................................351
Re Birks [1900] 1 Ch 417....................................................................................351
Tea Trade Properties Ltd V Cin Properties Ltd [1990] 1 Eglr 155.....................351
Prestcold (Central Ltd) V. Minister Of Labour [1969] I Wlr 89.........................351
Car Sales (Harrow Ltd) V. Wallace [1955] 1 Wlr 936........................................351
Presumption Against Redundant Words Or Surplusage.........................................351
Re Strand Music Hall Company Ltd [1865] 35 Beav 153..................................351
Sa Maritime Et Commerciale Of Geneva V. Anglo-Iranian Oil Company Ltd
[1955] 1 Wlr 492.................................................................................................352
Norwich Union Life Insurance Society V. British Railway Board [1987] 283 Eg
486.......................................................................................................................352
Tea Trade Properties Ltd V. Sim Properties Ltd [Supra]....................................352
The Presumption Against Unreasonable Results.........................................................352
Tillmans And Cole V. Ss Knotsford Ltd [1908] 2 Kb 385.................................352
Schuller (Lag ) V. Wickman Machine Tools Sales Ltd [1974] Ac 235 (Cross
165)......................................................................................................................352
Glowfields Properties Ltd V. Morley [No 2] [1989] 2 Eglr 118 Ca...................352
Data Stream International Ltd V. Oakeep Ltd [1986] 1 Wlr 404........................352
Presumption of Non-Knowledge by Illiterate of Contents of Document Executed by
Him................................................................................................................................353
Amankwanor V. Asare [1966] Glr 598 Sc..........................................................354
Bank Of West Africa Ltd V. Appenteng [1972] 1 Glr 153 Ca............................354
Boakyem v. Ansah [1963] 2 Glr 233 @ 225-256................................................354
Kano v. Kala [1977] 2 Glr 267............................................................................354
Nartey v Mechanical Lloyd [1987-88] 2 Glr 314 SC..........................................354
Zabrama v. Segbedze [1991] 2 GLR 221 CA.....................................................355
Re Kodie Stool; Adowaa v. Osei [1998-99] SCGLR 23.....................................356
Republic v. High Court Kumasi; Ex Parte Atumfuwaa [2000] SC GLR 72.......357
Owusu v. Kuma [1984-86] 2 Glr 29 CA.............................................................358
22
 Zambrama v Segbegdzi Per Kpegah Ja...............................................................359
Nartey v. Mechanical Lloyd [Supra]...................................................................359
Republic V. High Court Kumasi; Ex Parte Atumfuwaa......................................359
Statutes...........................................................................................................................360
Presumption of Perfection.......................................................................................361
Commissioner For Income Tax v. Pemsel [1891] AC........................................361
Sasu v. Amua-Sekyi [1989-90] 1 GLR 297........................................................361
Republic V. High Court Accra; Ex Parte Adjei..................................................361
GTP v. Ankujeah.................................................................................................362
Presumptions Against Tautology............................................................................362
Hill V. William Hill [1949] AC 530 @ 546 HL.................................................362
AG’S REF [NO 1] OF 1975 [1975] QB 773@ 778............................................362
Langungu V Olubadan-In-Council (1947) 12 Waca 233 @ 236.......................362
Sasu V. Amuah-Sekyi.........................................................................................362
NMC V. AG [2000] SCGLR 1 @ 22 Per Atuguba Jsc.......................................363
Mbeah v. Ababio [2000] SCGLR 259@ 266 PER ATUGUBA JSC..................363
Presumption of Coherence (Presumption Against Internal Conflicts)...................363
JA Mackeigan V. Royal Commission (Marshall Enquiry) [1989] 61 DLR 4TH ED
688.......................................................................................................................363
Tabernacle Permanent Building Society V. Knight [1892] AC 298 @ 302 HL. 364
Interpretation To Avoid Conflict.........................................................................364
Re Rycroft’s Settlement [1962] Ch 263 265.......................................................364
Institute Of Patent Agents V. Lockwood [1894] AC 347 AT 360......................364
NPP v. Rawlings [1993-94] 2 GLR 193 @ 212-213...........................................365
Paramouncy of Some Forms of Legislation Over Others...................................366
NPP V. A-G (31ST DECEMBER CASE)............................................................366
Friends Of Oldman River Society V.Canada [Min Of Transport] [1992] 1 Scr 3.
.............................................................................................................................366
Implied Exceptions Rule [Generalia Specialibus Maxim]..................................366
Kidston V. Empire Marine Insurance Co [1866] Lr 1 Cb 535 @ 546................366
Nartey v.Adade And Others................................................................................366
Implied Repeals...................................................................................................366
Wood V.Riley [1867] Lr 3 Cp 26 At 37..............................................................366
Bourne V. Stanbridge [1965] 1 Wlr 189.............................................................366
Npp v Rawlings [Supra]......................................................................................367
Presumption of Consistent Expression...................................................................367
IRC V. KENMARE [1956] CH 483 AT 503......................................................367
Hamilton V. National Coal Board [1960] Ac 633 At 641...................................367
Tuffuor v.A-G [1980] Glr 637 Sc........................................................................367
Bilson v.Apaloo [1981] Glr 24 SC......................................................................367
Different Words Have Different Meanings.........................................................367
Gibson V. Skibs As Marina And Others [1966] 2 Aer 476 At 478.....................367
R V. Barnier [1977] 1 Scr At 673........................................................................367
A-G’S REFERENCE NO 1 OF 1975 [1975] QB 773 AT 778...........................368
Departure From A Fixed Pattern Of Expression.................................................368
Kirkpatrick V. Mapleridge [1986] 2 Scr 124......................................................368
23
 Republic V. Terkpebiawe Divisional Council; Ex Parte Korle [1972] 1 Glr 199
.............................................................................................................................368
Dickson V. Bbc [1979] 2 Aer 112.......................................................................369
R V. Allen [1872] Lr 1ccr 367 @ 374.................................................................370
Maddox V. Storer [1963] 1 Qb 451.....................................................................370
Irc v Hinchy [1960] Ac 748 @ 766....................................................................370
A-G V. Bradlaugh [1884] 14 Qbd 667 @ 684....................................................370
The Presumption Of Compliance With Constitutional Law And Values..................370
Constitutionally Valid Interpretations.....................................................................370
Mckay v. The Queen [1965] Scr 798 @ 803 And 804........................................370
Interpretations That Respect Constitutional Values...............................................371
R V. Zundel [1992] 2 Scr 731 @ 771..................................................................371
Presumption Of Compliance With International Law................................................371
Bloxham V. Favre [1883] 8 Pb 101 @ 104.........................................................371
Salomon V. Custom And Excise Commissioners [1967]2 Qb 116 @ 143-144 Ca.
.............................................................................................................................371
Breen V. Breen [1964] P 144..............................................................................371
R V. Jameson [1896] 2 Qb 425...........................................................................372
Chung Chi Cheung V. The King [1939] Ac 160 @ 167-178..............................372
Presumption Against Unclear Changes In Existing Law...........................................372
National Assistance Board V. Wilkinson [1952] 2 Qb 648................................372
Presumption Against Unclear Changes In The Common Law...............................373
Leache v. R [1912] Ac 305...............................................................................373
R V. Owens [1859] 28 Ljqb 316.........................................................................373
Ahenkorah V. Ofe [1957] 3 WALR 145 CA......................................................373
Ohene Mensah V. Subin Chambers Ltd [1982-83] GLR 601.............................373
Re Seaford [1968] P 63 @ 68..............................................................................374
Ex Parte Schtracks [1964] 1 Qb 191...................................................................375
London Permanent Benefit Building Society V. De Baer [1968] 2 Wlr 462......375
Sales-Matic Ltd V. Hincliffe [1963] 1 Qb 248....................................................375
Black-Clawson Case [Supra]...............................................................................375
George Wimpey And Co Ltd V. Boac [1955] Ac 169 @ 192............................375
Aikins v Aikins [1979] Glr 233 [Buta 147].........................................................375
Assibey v Ayisi [1973] 1 Glr 102........................................................................376
5. I agree that the general rule in the construction of statutes is that there is a
presumption against changes in the common law. I also agree as stated in Maxwell on
Interpretation of Statutes (12th ed.), p. 251 that "Statutes which encroach on the rights
of the subject, whether as regards person or property, are subject to strict construction in
the same way as penal Acts.".........................................................................................376
Asibey v. Ayisi (Cf)............................................................................................377
Gabby V Palmer [1916] 85 Lj Kb 1240 @ 1244................................................377
The Presumption Against Unclear Changes In Statute Law...................................377
Benett v Chapelle [1966] Ch 391.......................................................................377
R V. West Yorkshire Coroner; Ex Parte Smith [1982] 3 Aer 1098....................378
Presumption Against Interference With Vested Rights..........................................378
The Gustavson Drilling Case [1977] 1 SCR 271................................................378
24
 Allen v. Thorn Electrical Industries Ltd [1968] 1 Qb 487..................................378
West v Gwynne [1911] 2 Ch 1............................................................................378
Defining Or Recognising Or Determining Vested Or Accrued Rights..................379
Scott v. College Of Physicians And Surgeons Of Saskatchewan [1992] 95 Dlr 4th
ed 706..................................................................................................................379
Abbot v Minister Of Lands [1895] Ac 425 @ 431..............................................379
The Gustavson Drilling Case [Supra]..................................................................379
Director Of Public Works V. Ho Po Sang [1961] Ac 901 [Buta 181, 182]........380
Cf Cfao V. Zacca [Glr]........................................................................................380
Suggested Approaches To Defining Accrued Rights.............................................380
Gpha V. Issoufu [1991] 1 Glr 500 Ca.................................................................381
Nana Hyeaman II v Osei [1982-83] Glr 495......................................................381
Hartnell V. Minister Of Housing [1965] Ac 1134 Sc.........................................381
Rep v. Com’ner for Chief’cy Affairs; Ex Parte Nii Adja Kwao II [1981] GLR
263-274................................................................................................................382
Rebutting The Presumption........................................................................................383
Venne V. Quebec [1989] 1 Scr 880.....................................................................383
Bellechase Hospital Corp V. Pillote [1975] 2 Scr 454........................................383
Wright v. Hill (1860) 6 H & N 227 @ 232.........................................................383
The Presumptions Regarding The Jurisdictions of The Court...............................384
Presumption Against Creating Or Enlargening Existing Jurisdictions Of The
Court.............................................................................................................................384
Smith v.Brown [1871] Lr 6 Qb 729....................................................................384
Azorbli v. Ankrah [1984-86] 1 Glr 561 Ca. [Buta 155]......................................384
Spokesman (Publications) Ltd. v. Attorney-General [1974] 1 GLR 88-93........385
Criminal Jurisdiction of Regional Tribunals............................................................387
Jonathan Dey v. The Republic Ca [12th Feb 1998 Unreported]..........................388
Republic v Yevi And Avalifor [2000] SCGLR 149 SC......................................388
Ghassoub v. Bibiani Wood Complex Ltd [1984-86] 1 Glr 271 Ca [Buta 159-160]
.............................................................................................................................389
Opan v. Frans And Co [1984-86] 1 Glr 281 Ca [Buta 159-160].........................389
Republic v Court Of Appeal, Accra; Ex Parte Sidi [1987-88] 2 GLR 170-188..389
Kwaframoah III v Sakrakyie II [1996-97] SCGLR.............................................391
Re Heatstar Properties Ltd [1996] 1 WLR 993...................................................391
Presumptions Against Retrospectivity...........................................................................391
The Presumption Against Ousting Existing Jurisdiction Of The Courts And Tribunals
.......................................................................................................................................391
Ouster Clauses...................................................................................................................392

25
Course Outline

1. PRELIMINARY ISSUES OF INTERPRETATION

(a) Meaning of Interpretation.
(b) Object of Interpretation and the Intention of author(s) of Document,
Statute or National Constitution. Herein also of the Modern
Purposive Approach to Interpretation.
(c) When to resort to Interpretation.
(d) Difficulties of Interpretation/Conditions of doubt which necessitate
Interpretation
(e) Canons/Rules of lnterpretation—Basic rules, Aids, Presumptions and
Special binding statutory rules (eg in CA 4).
(f) Validity in Interpretation: Objectivity, Justification and Evaluative
standards in Interpretation.
(g) Interpretation of (i) Non-statutory Documents, (ii) Statutes and (iii)
National Constitutions compared/contrasted.
(h) Some definitional and terminological issues of Interpretation.
(i) Legal basis for Interpretation in Ghana.

2. BASIC RULES OF INTERPRETATiON OF NON-STATUTORY

DOCUMENTS

I. Definition/Types of Documents

II. Object of Interpretation of non-statutory Documents. Intention or

purpose or author (s) and the object of Interpretation of non-statutory
documents under the Modem Purposive Approach — including
unilateral non-statutory documents (eg a Will) and
bilateral/multilateral non-statutory documents (eg contracts).

III. Basic rules under the Modem Purposive Approach to Interpretation of

non-statutory documents — including unilateral non-statutory
Documents (eg a Will) and bilateral/multilateral non-statutory
Documents (eg contracts):

(a) Interpretation must be as near o the intention or purpose of

author(s) as the law would permit.

(b) Interpretation of document or particular part of it/Intention or

purpose of author(s) to be sought for in the document itself or in
elements of it’s proper context.

(c) Document to be construed as a whole.

(d) Ordinary or plain meaning rule: Words or phrases etc to be taken

at first instance in their Ordinary or plain meaning in context.
Technical words to have their technical meaning

26
(e) Ordinary or plain meaning may be modified in favour of some
secondary or less usual meaning so as to avoid absurdity and
inconsistency, etc with the intention or purpose of the author(s).

(I) Courts have power in appropriate circumstances to correct

mistakes (i) by Construction or (ii) by Rectification.

27
Wednesday, October 12, 2005

Recommended text:
Bimpong-Buta: The Law of Interpretation in Ghana.
Cross on Statutory Interpretation (3rd edn.): Bell & Engle.
Driedger: Construction of Statutes (on the purposive approach).
Note: the notes override all the materials.

28
What Is Interpretation?
It deals with the meaning of words, scope and application as well as their legal effect. It is
important because it leads to stability and predictability of the law.

Tuesday, October 25, 2005

Preliminary Issues of Interpretation

(a) The Meaning of Interpretation

 Interpretation Defined
 The Meaning of Language
 The Scope of Language
 The Legal Effect of Language

Interpretation Defined
The meaning of Interpretation:
 The word interpretation is used in several different senses by scholars in various
fields of human studies and endeavour as for example in literary criticism, theology,
etc. However in law and specifically in relation to the interpretation of non-statutory
documents, statutes and national constitutions, (DSC) interpretation is broadly
defined as a process of ascertaining the meaning of language used in a provision
of a DSC or part thereof and the determination subject to any rule of law, of the
scope and legal effect of the provision.

 The same idea is often rendered in simpler and more practical terms when the
subject (interpretation) is defined as the process by which the courts determine the
meaning of a provision of a DSC or part thereof for the purpose of applying it to a
situation before them or for the purpose of applying it to a particular set of facts:
Cross On Statutory Interpretation 3rd Edition, Page 2, 22, 34 and 63.
 Benion, Statutory Interpretation 4th Edn Page 336-337.

The above definition is supported by a respectable number of authorities on the subject.

Kim Lewison: Interpretation Of Contracts 3ed @ P 17 where the learned authors
defined the interpretation of a contract thus:
“the interpretation of a written contract involves the ascertainment of the words used
by the parties and the determination subject to any rule of law, of the legal effect of
those words”.
Twinning & Miers : How To Do Things With Rules 3 rd Edn Chapter 4 @ 181 where it
is noted that strictly speaking, interpretation in law refers to
“ the clarification of the general scope and meaning of a rule”.

Chatney v Brazilian Submarine Telegraph Co. [1891] 1 QB 79

29
Here the issue before the court was whether the construction of the power of attorney
granted in Brazil in the Portugese language to a broker resident in London to trade in
shares was to be governed by Brazilian or English law: Lord Esher held @83 that the
business sense of all business men has come to the conclusion that if a contract is made in
one country to be carried out between the parties in another country, either in whole or in
part, unless there appears something to the contrary ,it is to be concluded that the parties
must have intended that it should be carried out wholly according to the law of that other
country.
At page 85 Lindley LJ held that:
“The expression, “construction,” [interpretation] as applied to a document, at all events as
used by English lawyers, includes two things: first the meaning of the words, and
secondly, their legal effect, or the effect which is to be given to them. The meaning of the
words I take to be a question of fact in all cases, whether we are dealing with a poem or a
legal document. The effect of the words is a question of law.”
Thus when you are dealing with what takes place in England, which is transfer or sale of
shares, recourse must be had to the English law.
The definition in the Chatney cases (supra) is significantly adopted by the learned authors
of Odgers On Construction Of Deeds And Statutes @ P 233.
 There are two critical points worth emphasizing from the foregoing definitions,
namely,
o first that interpretation in law is invariably not concerned with the meaning
simpliciter of the provision of a DSC (as suggested in a number of authorities
e.g. V.C.R.A.C. Crabbe: Understanding Statutes @ PAGE 52) but rather
meaning in relation to a particular context, or a particular situation before the
court. Hence the emphasis on the scope and legal effect of the language used. To
this end, most of the authorities on the subject commonly divide questions of
interpretation into two categories, to wit, or namely:
 (a) those which arise from the terms of a DSC alone before any set of
facts have been presented for its application; and
 (b) those which arise in the application of the words to a particular set of
facts. The learned authors of Cross (Statutory Interpretation 3 rd Edn )
throw invaluable light on the two categories at page 2 as follows:

“ questions of interpretation can be divided into two broad categories, namely those which
arise from the terms of the statute alone, before any set of facts have been presented for its
application, and those which arise in the application of the words of a statute to a
particular set of facts. The first category is exemplified by cases where the ordinary
meaning of the words used is uncertain whether because of faulty grammar, ambiguous
wording or some other failure to express clearly what is meant. To the second category,
belong cases where it is unclear whether or how the words in question apply to a particular
set of facts. Acts often use broad terms such as “fair”, “reasonable” or “dishonest”, whose
ordinary meaning is clear enough, but whose application to particular circumstances is left
to the discretion of the interpreter”.

30
On these questions of interpretation see also W Wilson, Questions on Interpretation
(1987) Statute Law Review @ 140.
 Secondly, it is to be noted that the meaning, scope and effect (MSE) of language
as used in the context are all in practice often subject to other rules of law. E.g. the
definition section in a statute might restrict the meaning of a word. Thus the
position in the Chatney Case (Supra) that the meaning of language is a question of
fact in all cases is not very accurate. Similarly, scope and effect of language used in
a provision might be subject to other rules of law such as the presumption against
retroactivity or retrospectivity or the constitutional provision on retrospectivity in
article 107 (of the 1992 Constitution) which dictate that where a provision is open
to two interpretations one of which is retrospective in effect, and the other not, the
latter interpretation is to be preferred.

31
The Meaning of Language

Qr. What is the meaning of “meaning”?

The meaning of language (in ordinary legal parlance or etc) remains a most difficult
concept to define even though it has engaged the best attentions of scholars over a long
period of time. This is clear from the writings of Hobbes, Aristotle, etc. Suffice it to note
that several senses or kinds of meaning come into play in the process of interpretation.
Thus for example:
 legal meaning,
 ordinary meaning,
 assigned meaning,
 secondary meaning,
 fringe meaning,
 ulterior meaning, etc etc.
It is consequently important that the concept of meaning is appreciated right at the outset.
There is no doubt however that the most dominant sense of meaning in contemporary
interpretation is the ordinary meaning of language i.e. the meaning that normal speakers of
a particular language would give to words and phrases in a particular linguistic
community.
It is often said that several other senses of meaning encountered in interpretation are
invariably variants of the ordinary meaning. An understanding of the nature, complexity
of the concept of ‘ordinary meaning’ is therefore critical to the concept of meaning in
interpretation. From the literature, both scholarly and judgments of the court, the concept
of ordinary meaning is central to all discussions of meaning.
Read Glanville William’s Article: Language And The Law:61 Law Quarterly Review @
71, 179, 293 and 384.
See Also “Semantics Of Judging” In 54 South California Law Review 151.
Marshall & Summer: The Argument From Ordinary Meaning In Statutory Interpretation.
[1992] 43 NILQR (Northern Ireland Law Quarterly) 213.

What Is The Ordinary Meaning of Language?

The dominant contemporary position views the meaning of ‘meaning of ordinary

language’ largely in terms of the effect that is conventionally (immediately and directly)
signaled or evoked by the specific language when read in the proper context from the
view point of the typical member of the linguistic community or audience to which the
language is addressed. It is this effect that constitutes ordinary meaning of the language
used.
R.M. Martin: The Meaning Of Language (Mit Press 1987 esp Chap 9 @ 92-93).
32
Wednesday, October 26, 2005

The Concept of Ordinary Meaning & How it bears on the Law of Interpretation
Hence the meaning of a sentence “it is raining” would be the effect that is conventionally
evoked or signaled to the typical member of the linguistic community. Similarly, the
meaning of a sentence “Ama is a witch” would be the effect that is signaled to a typical
member of the linguistic community.
Virtually the same conception of meaning of ordinary language is expressed by those
scholars who define the meaning of ordinary language in terms of the combined impact of
the connotations or denotations conventionally associated with the words when used by a
typical member of the audience to which it is addressed. For such a definition see R.
Dickerson: The Interpretation And Application Of Language Chapt 4.
The denotation of a word is of course a thing or class of things to which it refers. For
example in the sentence “hope is a dog” the denotation of ‘dog’ would be the class of
things to which the word ‘dog’ conventionally refers in the linguistic community.

The connotation of a word on the other hand is the idea that it suggests again, to a typical
member of the particular linguistic community.
Undoubtedly however, the earlier definition of the meaning of ordinary language simply
in terms of the conventional effect of the language used on a typical member of the
linguistic community offers a better and simpler understanding of the meaning of
language- words, phrases, whole sentences and all.
The definition of language or the definition of the meaning of language in terms of its
conventional effects on a typical member of the linguistic community to which it is
addressed is particularly popular with the proponents of the so-called “speech act theory
of meaning” who take the position that language is essentially a tool for doing things and
therefore explain what bits of language mean in terms of what they are conventionally
used to do i.e. their effect on a typical member of the linguistic community to which it is
addressed rather than the intention of the speaker in uttering that language.
This definition of the meaning of ordinary language therefore draws a critical distinction
between sentence meaning and speaker’s meaning. Thus a statement for example from x
to h that “it is raining” would be the effect conventionally evoked on a typical member of
the linguistic community, not on the intention of x in uttering the sentence (for example to
get h to take his umbrella).
The foregoing definition of meaning in ordinary language, to be meaningful, also requires
some common standards or understanding between x and h from the viewpoint of the
linguistic community. It entails inter alia, common standards regarding grammar (syntax),
semantics (meaning of words) in a particular society. And the definition also further
entails that the meaning of words or the meaning of ordinary language is always situated
in the context in which the language is used. And context of ordinary language here will
very often include the intention, or object or purpose for which the speaker utters the
language or utters the statement if that could be ascertained.
33
Thus the definition of ordinary meaning is made up of:
 The conventional meaning to a reasonable member of the particular linguistic
society
 The sentence meaning as opposed to the speaker’s meaning or intention
 The conventions of use of language in context in that particular society.

How Ordinary Language In This Sense Is Reflected In Legal Parlance

The meaning of ordinary language or the conception of the meaning of ordinary language
in terms of the effect that the specific language evokes or signals from the viewpoint of
the typical member of the linguistic community bears importantly on the meaning of
ordinary language when it is used in the law of interpretation today. Here it is to be noted
that the dominant or preferred approach to meaning in the law of interpretation today
insists that words, phrases, sentences etc. are at first instance to be construed in their
ordinary or popular meaning in context (i.e. the meaning they typically bear from the
viewpoint of a typical member of the community) unless there is some compelling reason
why they should not be so construed.
NB! In relation to documents for e.g. see:

Halsbury 4th Edn Vol 12 Para 1463.

The words of a written instrument must in general be taken in their ordinary sense
[Robert v French], ie, in their plain, ordinary and popular sense, notwithstanding the fact
that such a construction may appear not to carry out the purpose which it might otherwise
be supposed the parties intended to carry out [Grey v Pearson] ;
But if the provision and expressions are contradictory, and there are grounds, appearing on
the face of the instrument, affording proof of the real intentions of the parties, that
intention will prevail against the obvious and ordinary meaning of the words:
[Lloyd v Lloyd per Cottenham LC: “if the parties have themselves furnished a key to
the meaning of the words used, it is not material by what expression they convey their
intention” ] and where the literal {in the sense of ordinary or primary} construction would
lead to an absurd result, the literal construction will be abandoned. So too, considerations
of inconvenience may be admitted when the construction of the document is ambiguous.
If, however the intention is clearly and unequivocally expressed, then, however capricious
it may be, the court is bound by it, unless it is plainly controlled by other parts of the
document: [Hume v Rundell, Bathurst v Errington.]
The rule is that in construing all written instruments, the grammatical and ordinary sense
of the words is to be adhered to, unless that would lead to some absurdity, or some
repugnance 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 and
inconsistency, but no farther: [Grey v Pearson, Roddy v Fitzgerald, Abbott v
Middleton, all per Lord Wensleydale: the golden rule of construction, IRC v
Raphael]

34
The instrument must be construed according to its literal import, unless there is something
in the subject or context which shows that this cannot be the meaning of the words:
[Wallis v Smith]
Odgers: Construction Of Deeds And Statutes 5th Edn At Pp 33-43.

Anim Addo Alias Biamah v. Mensah [1993-94]

The children of the late Anim-Addo brought an action in the High Court Accra (see Anim-
Addo v Mensah [1992] 2 GLR 44) seeking a [p.10] declaration that the devises "to the
descendants of Abena Asantewaa " or to Abena Asantewaa and "her descendants" are null
and void as offending the rule against perpetuities
Held: The cardinal rule in the construction of a will is that effect must be given to the
intention of the testator as expressed in the will. In Hagan v Ackon (supra) the testator
expressly stated that the house was to be used "as family house according to Fanti
Customary law." The court was only giving effect to the intention of the testator in
applying Fanti customary law in construing the will. I do not think this case is authority
for the proposition that in the construction of wills in Ghana, customary law can be
imported.

Addai v. Donkor (1992) SC unreported, per Adade JSC

Here the testator by his will devised his freehold house to his niece for life and after her
death, to the “surviving children” of the niece. The trial High Court construed the word
“children” to be descendants. On appeal, the Supreme Court rejected that construction and
per Adade JSC said:

“When a person chooses a particular language to express himself, he must be presumed to

mean what the or decided to use the English language. From the language of exhibit B
[the will]….. it almost certainly appears that exhibit B was prepared by a lawyer, who
must be deemed to know the difference between children and descendants...Children must
be taken to mean what it means in the English language, viz, ‘sons and daughters of any
person’.

Leader v. Dufley (1883) 13 Ap Cases 294. per Lord Halsbury L C

“It was in accordance with reason and common sense that whatever the instrument, it must
receive a construction according to the plain meaning of the words and sentences therein
contained.”

Robertson v. French [1808] 4 East 130@135

Where Lord Ellenborough noted of the interpretation of a policy of insurance thus:

"It (sc. a written instrument) is to be construed according to its sense and meaning as
collected in the first place from the terms used in it, which terms are themselves to be
understood in their plain and popular sense, unless they have generally in respect to the
subject matter, as by the known usage of a trade, or the like, acquired a peculiar sense of
the same words; or unless the context evidently points out that they must in a particular

35
instance, and in order to effectuate the intention of the parties to that contract, be
understood in some other special and peculiar sense."

Shore v. Wilson [1842] 9 Cl& Fin 355@ 525 per Coleridge J

The question for decision of the court turned upon the construction of the foundation
deeds and admissibility of evidence in respect of charities by Lady Sarah Hewley founded
in 1704 & 1707 to determine the intentions of the foundess;
Issues:
a. What did Lady Hewley in her mean by poor “poor and godly preachers for the time
being of Christ’s holy gospel”, and “godly persons” in her trusts deeds?
b. Was extrinsic evidence admissible to show the existence of a religious party by
whom that phraseology was used, and the manner in which it was used, and that
she was a member of that party?

Held:
Per Justice Maule:
1) In ascertaining the meaning of any particular terms in an instrument, the first rule is
that they are to be taken in their plain and ordinary meaning, unless from the
context it should appear that the party had used them in a different sense; the first
step therefore would be, whether it appears upon the face of the instrument itself
that the writer has used the terms in any particular or extraordinary sense, for if that
should be the case then the instrument must be construed according to the
particular sense, whether more or less extensive than the primary meaning of the
words themselves. But if no such intention appears upon the face of the writing, it
then becomes the duty of the court to construe the words according to their plain,
general, ordinary meaning, subject to certain qualifications.
a. First, if the words used be technical terms of law, the court must take them
according to their strict legal acceptation, although in general and ordinary use
they may have acquired a more extensive or a more limited sense and
b. Second, whether they are technical terms of law or words of ordinary use, the
court may give them a more enlarged or more limited construction, whenever it
is found that they cannot otherwise be applied at all

Per Justice Coleridge

2) Where language is used in a deed which in its primary meaning is unambiguous,
and in which that meaning is not excluded by the context, and is sensible with
reference to the extrinsic circumstances in which the writer was placed at the time
of writing, such primary meaning must be taken, conclusively, to be that in which
the writer used it; such meaning in that case conclusively states the writer’s
intention, and no evidence is receivable to show that in fact the writer used it in any
other sense, or had any other intention.
a. If the language be technical or scientific, and it is used in a matter relating to the
art or science to which it belongs, its technical or scientific meaning must be
considered its primary meaning.
b. By primary meaning is not meant the etymological meaning, but that which the
ordinary usage of society affixes to it
36
 ……………..this rule thus explained implies that it is not allowable in the case
to advice any evidence however strong to prove an unexpressed intention
varying from that which the words used permit. This may be open no doubt to
the remark that though we profess to be exploring the intention of the writer we
may be led in many cases to decide contrary to what can scarcely be doubted to
have been the intention……. The answer is that interpreters have to deal with
the written expression of the writer’s intention and the courts have to carry into
effect what he has written, not what he has surmised”.

Grey v. Pearson[1857] 6 HLc61 @106 per Lord Wensleydale

“In construing all written instruments, the grammatical or ordinary sense of the word is to
be adhered to unless that will lead to some absurdity or some repugnance or inconsistency
with the rest of the instrument in which case the grammatical and ordinary sense of the
word may be modified so as to avoid that absurdity and inconsistency, but no further:”

Cross under “The basic rules stated” @ Page 49

The judge must give effect to the grammatical and ordinary or, where appropriate, the
technical meaning of the words in the general context of the statute; he must also
determine the extent of general words with reference to that context.

The reliance on ordinary meaning in the law of interpretation also entails that a lot of
attention is to be paid to the conventions of language in a particular linguistic community
and that words are interpreted in their context.
It is also important to emphasize at this juncture that the critical distinction drawn in the
definition of meaning of ordinary language between speaker’s meaning and sentence
meaning is also very much reflected in the law where the courts in practice endeavour to
interprete provisions of DSCs, in their ordinary meaning at first instance unless there is a
compelling reason in the context why not. Indeed as will shortly be evident, the courts
often interpret provisions of DSCs objectively even though they often speak of the object
of interpretation in terms of the intention of the author or authors of a DSC. As several
scholars have pointed out, a speaker’s meaning approach is most unacceptable in law
especially when it suggests that it is not possible to interpret DSCs where the speaker’s
subjective intention cannot be discovered. In practice, the courts interprete DSCs all the
time even in circumstances where the subjective intention of the author or authors cannot
be discovered.
Note! In interpretation we interprete sentence meaning in context to arrive at the speaker’s
meaning. The sentence meaning of course is the ordinary meaning in context (the context
of the particular linguistic community). When the sentence meaning is clear, that is taken
to be the speaker’s meaning. (Intended meaning).

2005-11-01

It is also important to understand that the distinction between speaker’s meaning and
sentence meaning also bears critically on the sense in which it is often said that the object
37
of all interpretation is to arrive at the intention of the author or authors of a DSC.
Although the courts often emphasise intention, what they look for in practice is to give the
language or provision of a DSC its ordinary meaning in context and to depart from the
ordinary meaning only when it leads to absurdity. In other words, where the ordinary
meaning is plain in context, it is presumed to be the intention of the author or authors of
the DSC. Here the sentence meaning simply carries or prevails.
The distinction between speaker’s meaning and sentence meaning is also importantly
reflected in the basic rules of interpretation which insists that the language of a DSC
should be given its ordinary meaning in context at first instance unless there is a good
reason to the contrary. Finally, the reliance on sentence meaning at first instance largely
reflects what the courts do in practice namely, they proceed by construing the sentence
meaning or the meaning of the provision before them in context, not the speaker’s
subjective meaning and would depart from the sentence meaning only where it leads to
absurdity.

Different Senses Or Kinds of Meaning

Perhaps what we need to add at this juncture is that the concept of ordinary meaning in
terms of how it is conventionally understood (i.e. language) by a typical member of the
linguistic community also offers a good starting point for understanding several other
different senses of meaning in the law of interpretation. These, as already noted, are often
only variants or extensions of ordinary meaning. They include for example, the plain
meaning, the natural meaning, literal meaning, secondary meaning, technical meaning,
fringe meaning, legal meaning etc.

1. The Legal Meaning

This is the meaning (of a provision of a DSC) that is arrived at on a proper application of
the rules of interpretation in a particular legal system. Where it is plain in context, the
ordinary meaning will invariably lie at the heart of the legal meaning. However, the
ordinary meaning might be rejected where it leads to absurdity in context in favour of
other types of meaning.

Plain or Primary Meaning

This is often used synonymously with ordinary meaning i.e the meaning that would be
attached to the words or phrases by a normal speaker of the particular linguistic
community. In practice, the courts have often insisted that words and phrases should at
first instance be construed in their ordinary plain or primary meaning most appropriate in
the context of their use. The difficulty however, is that several words have more than one
ordinary plain or primary meaning and it is often not easy choosing which of these
ordinary plain or primary meaning is most appropriate in a particular context.

Re C & Anor (Minors) (Parents) [1993] 3 AllER 313@ 317-318 per Butler-Sloss LJ :
Where she illustrates this difficulty with a simple word like ‘parent’- (See Cross p 63)
Here the issue before the court was whether the appellant, the father of two little girls,
qualified to be a “parent” of the children who have been freed for adoption by an order of
38
the court? The court had to determine whether the natural and ordinary meaning of a
“parent” in the Children Act 1989 included a natural parent whose child has been freed for
adoption:
Held: Butler-Sloss LJ held @ 317 that:
1. The term “parent” must be given its natural and ordinary meaning. It does not
follow, however, that that meaning will always include the natural parents.
2. The natural and ordinary meaning of a word is not fixed but changes according to
the context in which it is used.
3. Thus the meaning of “parent” in a school prospectus will include a person with de
facto parental responsibility even if not a natural parent, but exclude a natural parent
who has no contact with the child. On the other hand, the meaning of “parent” in a
work on genetics will be the biological parents, including a father who has no more
connection than the initial act of fertilization.”
It is important to repeat however that interpretation is properly speaking, concerned not
with the ordinary or plain meaning of a word simpliciter, but the ordinary or plain
meaning of the context of its application.

AG v Prince Ernest Augustus of Hanover [1957] AC 436

Here a great great grandson succeeded to the throne of Hanover in 1837 and sought a
declaration that he was a British subject by virtue of the Statute of 1705. The issue before
the court was whether the words of the statute: “..it is just and highly reasonable, that they,
in Your Majesty’s Life Time (whom God long preserved) should be naturalized….natural
born Subjects of England. …..Duchess Dowager of Hanover, and the issue of her body,
and all persons lineally descending from Her, born or hereafter to be born, be and shall be
….deemed…natural-born subjects of this Kingdom,” are capable of suffering a limitation
of time which might have been expressed by adding to them such words as: “..in Your
Majesty’s Life Time.”

The A-G contended that the enacting words were general and that general words are more
susceptible to control by context than specific words. It is the meaning of the qualifying
words by reference to the time of birth which the court had to ascertain.

Held:
1) Per Lord Somervell:
a. A question of construction arises when one side submits that a particular
provision of an Act covers the facts of the case and the other side submits that it
does not. Or it may be agreed that it applies, but the difference arises as to its
application.
b. The title and the general scope of the act constitute the background of the
contest. When the court comes to the act itself, the compelling rule is that the
whole or any part of the Act may be referred to and relied on.
c. The key to the opening of every law is the reason and spirit of the law-it is the
“animus imponentis,” the intention of the law-maker, expressed in the law itself,
39
 taken as whole. Hence, to arrive at the true meaning of any particular phrase in a
statute, that particular phrase is not to be viewed, detached from its context in
the statute: it is to be viewed in connection with its whole context-meaning by
this as well the title and preamble as the purview or enacting part of the statute:
[Brett v Brett per Sir John Nicholl]
d. The word “unambiguous” must mean unambiguous in their context.
e. Subsequent legislation, if it proceeded upon an erroneous construction of
previous legislation, cannot alter that previous legislation: but if there be any
ambiguity in the earlier legislation then the subsequent legislation may fix the
proper interpretation which is to be put upon the earlier: [Cape Brandy Syndicate
v Inland Revenue Comnrs, Ormond Investment Co ltd v Betts per Lord
Buckmaaster]

2) Per Viscount Simonds:

a. For words, and particularly general words, cannot be read in isolation: their
colour and content are derived from their context. So it is the right and duty of
the court to examine every word of a statute in its context, and context is here
used in its widest sense as including not only other enacting provisions of the
same statute, but its preamble, the existing state of the law, other statutes in pari
materia, and the mischief which the court can by those and other legitimate
means discern the statue was intended to remedy.
b. It must be difficult to say that any terms are clear and unambiguous until they
have been studied in their context. Thus the elementary rule is that no one should
profess to understand any part of a statute or any other document before he had
read the whole of it. Until he has done so he is not entitled to say that it or any
party of it is clear and unambiguous.
c. The preamble cannot be made use of to control the enactments themselves where
they are expressed in clear and unambiguous terms. Thus the context of the
preamble is not to influence the meaning otherwise ascribing to the enacting part
unless there is a compelling reason for it.

3) Per Lord Normand:

a. The Act must be construed as it would have been construed immediately after it
became law.
b. In order to discover the intention of Parliament, the court should read the whole
of the Act, inform itself of the legal context of the Act and of the factual context,
such as the mischief to be remedied and those circumstances which Parliament
had in view.
c. When there is a preamble, it is generally in its recitals that the mischief to be
remedied and the scope of the Act are described. It is therefore permissible to
have recourse to it as an aid to construing the enacting provisions. The preamble
must convey a clear and definite meaning in comparison with relatively obscure
or indefinite enacting words for it to legitimately prevail.
40
From above the court concluded that looking at the Act from the point of view of 1705,
there was no such manifest absurdity in the construction as would entitle the court to
reject it. There was nothing capable of controlling and limiting the plain and ordinary
meaning of the material words of the enacting provisions.

Literal or Grammatical Meaning

These expressions are often used as synonyms for ordinary, plain, or natural meaning. As
Cross rightly points out, the expression literal or grammatical meaning, especially when
applied to the construction of Statutes, are often used pejoratively to refer to “the meaning
which results from giving to each word an ordinary meaning without reference to the
context or applying the provision to a particular situation without any regard to the
purpose or consequences.

Cross on “The different kinds of Meaning” @ 66.

‘Ordinary’ and ‘Primary’ meaning are often used as synonyms for ‘literal’ or
‘grammatical’ meaning of words, as in the phrase ‘literal rule’. But, when applied to the
construction of statutes, ‘literal’ is often used pejoratively. Then it is the meaning which
results from giving to each word an ordinary meaning without much reference to the
context and applying the provision to a particular situation without any regard to its
purpose.

Adler v. George [1964] 2 QB 7

The defendant-appellant was convicted of an offence contrary to an Official Act which
provided that : “No person in the vicinity of any prohibited place shall obstruct,
knowingly mislead……”. The defendant appealed on grounds that he had obtained access
to and was in fact on the Air force station and therefore he could not be in the vicinity of
the station and hence committed no offence.

Held per Lord Parker CJ:

1. The defendant referred to the natural meaning of vicinity as being the state of being
near a space.
2. It would be extraordinary, I would venture to think it would be absurd, if an
indictable offence was thereby created when the obstruction took place outside the
precints of the station, albeit in the vicinity, and no offence at all was created if the
obstruction occurred on the station itself.
3. The context of the Act demands that the words should be construed to mean “in or
in the vicinity of.” There may be many contexts in which ‘vicinity’ must be
confined to its literal meaning of ‘near in space’ but under this context the words
would be construed in their implied meaning. Appeal is dismissed.

Wilshire v. Barrett [1965] 1 QB 312.

Here the court had to construe section 6(4) of the English Road Traffic Act of 1960 under
which a police officer was empowered to arrest without warrant “a person committing an
offence” under the influence of alcohol. Its’ plain meaning required that somebody
41
arrested under the law will have committed the offence. But what if the person appeared
drunk and driving in a zigzag manner, will the police have authority under the law to
arrest him on suspicion that he has committed the offence when he is really not drunk.
Held:
1. The question is what point must he decide with certainty that the person is in fact
drunk. If the arrested person turns out not drunk, as in this case, the police officer
opens himself up for action for damages for unlawful arrest.
2. To avoid this absurdity in the literal interpretation of the words, it was held that the
words “a person committing an offence” under the law had to be given its
secondary meaning as “a person apparently committing an offence under the
section”.
3. Thus the courts had to read in words into the statute to avoid the absurdity.

Secondary Meaning
This expression is used in contradistinction to the ordinary or primary meaning of words
or phrases. The distinction here is between the usual and the less usual or unusual meaning
of words and phrases in the particular linguistic community. Many words and phrases
have more than one meaning yet certain meanings are clearly unusual or secondary and
the context might suggest whether the usual or less usual meaning (the secondary
meaning) is intended.

The distinction between the ordinary plain or natural meaning on one hand, and the less
usual or unusual (secondary meaning) on the other, is very important in the law of
interpretation because the courts have often been compelled from time to time to opt for
the secondary meaning of words and phrases on account of the inconvenience, injustice or
absurdity that might arise when these words are given their primary or ordinary meaning.

Cross on “The different kinds of meaning”@ p. 65

The distinction between primary and secondary meaning turns on that between usual and
less usual meanings. Many words and phrases have more than one usual meaning since
allowance has to be made for a lot of different contexts. But a time comes when it is
permissible to say that, though a word is capable of bearing such and such meaning, that
meaning is unusual, ie secondary.

Barnard v. Gorman [1941] AC 378

The Customs Act provided that: “Every person who shall ...harbour, keep,... shall for each
offence forfeit...; and the offender may either be detained or proceeded against by
summons”. During rummaging of a ship, Gorman, a ship steward onboard was charged
with concealing cigar without paying customs duty and not declaring contrary to the law
and was detained and prosecuted but action dismissed on grounds of probable doubt of the
commission of the offence. Thereafter Gorman brought the action claiming damages for
false imprisonment and malicious prosecution. The issue before the court was whether the
Customs law authorized the officials to detain persons whom they believed on reasonable
grounds to have committed an “offence” under the law, or whether, though acting on

42
reasonable grounds, they are liable in damages if the complainant has not actually
committed the offence.

Issue whether the word “offender” as used in the law means a person who has committed
one of the specified offences or whether it means a person who is suspected of having
committed one.

Held
Per Viscount Simon LC:
1) We must not give the statutory words a wider meaning merely because on a narrower
construction the words might leave a loophole for frauds against the revenue.
2) If, on the proper construction of the section, that is the result, it is not for judges to
attempt to cure it. That is the business of parliament.
3) Our duty is to take the words as they stand and to give them their true construction,
having regard to the language of the whole section and of the whole Act as relevant,
always preferring the natural meaning of the word involved, but none the less always
giving the word its appropriate construction according to the context.

Per Lord Romer:

4) That the ordinary meaning of the word “offender” is a person who has in fact offended
must be conceded,
5) But the context in which a word is found may be, and very often is, strong enough to
show that it is intended to bear other than its ordinary meaning, and such a context is in
my opinion to be found in the present case.
6) For to give the word its ordinary meaning and that the offender may be proceeded by
summons will be nonsensical. Thus the word “offender” must bear a secondary
meaning of “an apparent offender”

Cross on Statutory Interpretation said that Barnard v Gorman was a case in which the
wording of the statute cried out for the application of a secondary meaning.

Ababio v The Republic. [1972] 1 GLR 347

The appellant was before the events which led to his prosecution the chief of Kaase,
within the Kumasi Traditional Council and a member of the said council but was
convicted in Kumasi, of the offence of failing to attend meetings of the traditional council,
contrary to N.L.C.D. 112, the particulars charged as follows: "Nana Owusu Yaw Ababio
as Kaasehene on the 22nd day of August, 1968 at Kumasi in the Ashanti Circuit and
within the jurisdiction of this court, without reasonable excuse failed to attend a meeting
of the Kumasi Traditional Council to which he had been summoned."

N.L.C.D. 112 provided inter alia that "any person" who "without reasonable excuse . . .
fails to attend meetings of the Traditional Council" shall be guilty of an offence.

Issue: what did the legislature mean by ‘any person’ in the statute.
Held: Per Mensa Boison J

43
1) The first is the cardinal rule that where the words are plain their literal and simple
meaning is to be adopted.
2) But the rule is subject to the qualification that the more literal construction ought not to
prevail, if it is opposed to the intentions of the Legislature, as apparent by the statute;
3) and if the words are sufficiently flexible to admit of some other construction by which
that intention will be better effectuated." Per Lord Selborne L.C. in Caledonian Rly.
Co. v. North British Rly. Co.

4) The second which is equally a leading rule is that a statute must be read as a whole to
give effect to the intention of the framers of the law.

5) So it was that in construing some clauses in the case of Canada Sugar Refining Co. v.
R. Lord Davey said, "Every clause of a statute should be construed with reference to
the context and the other clauses of the Act, so as, so far as possible, to make a
consistent enactment of the whole statute or series of statutes relating to the subject-
matter."

6) Now there is no difficulty as to the plain meaning of "any person" in the statute, but in
the context of the whole statute, an examination of the relevant enactments is
necessary.

7) Although notes and references placed at the sides of enactments do not form a part of
it, they are a convenient indication of the scope of any such part of the enactment

Wednesday, November 02, 2005

Fringe Meaning
This often raises the question of how far words extend in meaning in ordinary usage as
well as in law. Fringe meanings also raise the related issue of whether and when any limit
should be placed on the generality of general words, thus how far words extend in
ordinary language as well as in law. (Cross p. 65). In practice, the problem of fringe
meaning often arises when we have to decide or determine whether in a particular context,
words or phrases are applicable to situations outside their core meaning. (Cross pp. 75-
81).

Corkery v. Carpenter (1950) 2 AER 745.

This discusses the issue of whether a ‘bicycle’ is a carriage. The appellant was arrested
and charged with, “being drunk in charge of a bicycle on a highway..” contrary to law, and
while in police cells he coursed damage to the cells. He was convicted for both offences
and he appealed on grounds that a “bicycle” is not a “carriage” within the meaning of the
criminal law and therefore had not committed any criminal offence.

Held: Per Lord Goddard CJ:

1. The word “carriage is wide enough to include a bicycle for this purpose.
44
 2. Bearing in mind that the object of the Act is the protection of the public and the
preservation of public order, a “carriage” can include any vehicle capable of
carrying a person or goods.

Daly v Canon [1954] 1 AllER 315

This deals with the question whether gold fish is an article.

Customs & Excise Commissioners v Savoy Hotel Ltd [1966] 2 AllER 299
This deals with the question of whether orange juice pressed from fresh oranges is a
manufactured beverage.

Guests in a group of London hotels who ordered orange juice were served with juice of an
orange, freshly pressed and unsweetened. The issue before the court was whether the
orange juice served at the hotels were: “manufactured beverages, including fruit juices”
within the meaning of the Purchase Tax Act and therefore charegeable goods.

Held: per Sachs J:

1. A portion of fresh natural juice pressed from a single orange for a particular person
ordering it cannot in common sense be called a “manufactured beverage”.
2. Pure extracted juice can never from a “manufactured beverage” any more than milk
extracted from a cow.
3. Thus the description “including fruit juice” must be construed in the context of the
words which precede it, hence orange juice was not charegeable goods.

It has to be noted however that as with other situations, whether or not a fringe meaning
would apply would depend on the context, but in many instances the answer must, in Lord
Parker’s words be treated as a matter of common sense [Smart v Allan (1963) 1 QB 291,
in the court had to decide whether scrapped car left on the road with a rusted engine, flat
three tyres and one missing, no gear box or electrical accessories and car could not move
by it’s own power, was any ‘mechanically propelled vehicle’.]

Technical Meaning
This expression is often used in contradistinction to the ordinary or plain meaning of a
word or phrase. Specifically, it refers to some specialized meaning given to an expression
in the context of a particular trade, business or transaction. (This means the linguistic
community here would be very limited). The classic definition of technical meaning was
given in:

Unwin v Hanson [1981] 2 QB 115

The words to be construed in that case related to the cutting of trees in the country. At p.
119 Lord Esher, M.R. concluded that in the circumstances "lopping" and "topping" were
used in language which everybody conversant with the cutting of trees in the country
knows and understands. To hold otherwise, the Master of the Rolls said, would be "mere
pedantry".The question before the court was whether the power conferred on the court by

45
Highway Act 1835 to direct trees near the highway to be ‘pruned or lopped’ extended to
‘topping’ or was limited to directions to cut off lateral branches.

Held per Lord Esher:

1. That the powers of the justices did not extend that far. Evidence had been called on the
difference between lopping and topping, but was said to be unnecessary because every
countryman was familiar with the distinction.
2. If the Act is directed to dealing with matters affecting everybody generally, the words
used have the meaning attached to them in the common and ordinary use of language.
3. If the Act is one passed with reference to a particular trade, business or transaction, and
words are used which everybody conversant with that trade, business or transaction
knows and understands to have a particular meaning in it, then the words are to be
construed as having that particular meaning though it may differ from the common or
ordinary meaning of the words.
4. For instance, the ‘waist’ or the ‘skin’ are well-known terms as applied to a ship, and
nobody would think of their meaning the waist or the skin of a person when they are
used in an Act of Parliament dealing with ships.

Sallah v Attorney-General
Thus in Sallah v Attorney-General, where the plaintiff brought an action against the state
for unlawful termination of appointment, the A-G as defendant, urged the court to
construe the words, “establish”, in the 1969 Constitution affecting the plaintiff, in its
technical meaning based on the Kelsonite theory.
1. The court by majority dismissed the technical meaning interpretation sought to be
placed on the phrase “in any office established”.
2. The court held that unless the words are specifically defined in the Constitution,
3. The words of the constitution must be given their ordinary meaning as properly and
generally understood by literate persons and that the technical meaning urged on the
court was irrelevant having regards to the facts of the case and the plain meaning of
the word “establish”

Here it is to be emphasized that words often have legal technical meanings which are very
different from their ordinary meaning. (see Law and Language by Glanville Williams).

Finally, it has to be noted that even though ordinary meaning of language and its variants
are largely favoured in interpretation, in practice attempts are often made by legal
scholars, jurisprudence, draftsmen, etc, but especially legal positivists and formalists to
reduce meaning of words into specific positive criteria which they consider to govern the
correct application of these words and phrases etc.

A typical example here is from the so-called “Criterial theory of meaning” (very popular
amongst logical positivists) which assert that the meaning of any word is the criteria i.e.
the necessary and sufficient conditions which govern the correct application of that word
or phrase. On this see M. S. Moore, Semantics of Judging @ 173.

46
Here the meaning of a word “bachelor” for example, is seen as a conjunction of two
conditions, each individually necessary and only together jointly sufficient. That is, the
person in question is (a) unmarried, and (b) a man.

Another example can be given of the word “recklessness” in criminal law which for the
proponent of the criteria theory of meaning would consist of (1) awareness of a risk (2) a
decision to take the risk nevertheless.

Though the positivist or criteria approaches to meaning might prove very useful in certain
situations, it often turns out to be problematic in relation to general words and often
creates difficulties of interpretation. Beside, general words like “equal,” fairness” etc. etc.
have often proved problematic when attempts are made to reduce them to specific criteria.
(See NPP v. GBC over “fair coverage”).

Scope of Language
The scope of a word or phrase or sentence refers to the precise circumstances which it
covers and is consequently not necessarily the same as its meaning although the two are
invariably closely related. See Twining & Miers @ 179.

The scope of language in practice is also often influenced by or subject to other applicable
rules of law. It is consequently not simply a matter of fact. For example, the definition
clause in a document might limit the scope of a word hence while we may be generally
agreed as to the general meaning of “law student” for example, the regulations of the
Ghana School of Law (GSL) might define “law student” in a particular context as a
reference to a student who has paid his school fees.

However the distinction between the meaning and scope of language often does not hold
serious difficulties in practice given that the meaning of words, phrases etc is often
determined having regard to the context of their use, which context, invariably points to
the precise circumstances intended to be covered.

Re C And Anor (Minors) (Parent; Residence Order.

This case dealt with the meaning of the word “parent”.
1. The term “parent” must be given its natural and ordinary meaning. It does not follow,
however, that that meaning will always include the natural parents.
2. The natural and ordinary meaning of a word is not fixed but changes according to the
context in which it is used. Thus the meaning of “parent” in a school prospectus will
include a person with de facto parental responsibility even if not a natural parent, but
exclude a natural parent who has no contact with the child.
3. On the other hand, the meaning of “parent” in a work on genetics will be the biological
parents, including a father who has no more connection than the initial act of
fertilization.”

47
The emphasis on scope in our definition of interpretation is consequently only useful as a
way of highlighting the important point that interpretation in law is not concerned with the
meaning of language simpliciter, but as well, with the precise circumstances they cover.

Effect of Language
The effect of a word, phrase or sentence on the other hand, speaks basically to its
consequences or more precisely, its impact on external matters such as conduct, attitudes
and events. In practice, issues relating to the effect of language will often arise only after
its meaning has been determined- such as when we deal with such matters as “casus
omissus” (cases of omission) and issues relating to time, and the circumstances of an Act
of Parliament for instance. See Twining And Miers @ 206; V.C.R.A.C. Crabbe
Understanding Statutes @ 52.

The effect of language in law is also subject to any applicable rule of law. Thus, even
though we might be agreed as to the meaning of a particular provision of a statute or
constitution etc, we might still be divided in our opinion regarding its temporal effect
(time) i.e. whether it was intended to operate retrospectively (retroactively) or not. See for
example Article 20 (6) of the 1992 Constitution.
Nii Kpobi Tetteh Tsuru III v. Ghana Civil Aviation Authority 7 th May 2003
(Unreported) Per Anthony Abada J. Nii Tetteh Oprempeh III (Chief Of Shiashi) v. AG
@ Anor 20th April 1999 (Unreported) Per Gyamerah Tawiah J.

Object of Interpretation & the Intention of Authors of Docs, Statutes & National
Constitutions
(Herein also of The Modern Purposive Approach to Interpretation (MOPA)

Tuffour v. AG per Sowah JSC

It was provided by article 127 (8) of the Constitution, 1979, that:

(8) Subject to the provisions of clause (9) of this article, a Justice of the Superior Court of
Judicature holding office as such immediately before the coming into force of this
Constitution shall be deemed to have been appointed as from the coming into force of
this Constitution to hold office as such under this Constitution.
The plaintiff filed a writ before the Court of Appeal sitting as the Supreme Court for a
declaration that on the coming into force of the Constitution, Justice Apaloo was deemed
to have been appointed Chief Justice and as such became president and a member of the
Supreme Court and therefore his purported vetting and rejection by Parliament were in
contravention of the Constitution.
Held: Court to construe the meaning of “shall be deemed”

Held: per Sowah JSC

1. A written Constitution such as ours is not an ordinary Act of Parliament. It embodies
the will of a people. It also mirrors their history. Account, therefore, needs to be taken
of it as a landmark in a people's search for progress. It contains within it their
aspirations and their hopes for a better and fuller life.
48
2. The Constitution has its letter of the law. Equally, the Constitution has its spirit. It is
the fountain-head for the authority which each of the three arms of government
possesses and exercises. It is a source of strength. It is a source of power. The
executive, the legislature and the judiciary are created by the Constitution. Their
authority is derived from the Constitution.

3. Its language, therefore, must be considered as if it were a living organism capable of

growth and development Indeed, it is a living organism capable of growth and
development, as the body politic of Ghana itself is capable of growth and development.
A broad and liberal spirit is required for its interpretation. It does not admit of a narrow
interpretation. A doctrinaire approach to interpretation would not do. We must take
account of its principles and bring that consideration to bear, in bringing it into
conformity with the needs of the time.

The Republic v Tommy Thompson per Acquah JSC

Here the accused was before the court charged with publishing defamatory against the
then 1st lady of Ghana, Mrs Rawlings. On a preliminary objection raised by the accused,
the issue put before the SC was whether sections 112 and 117 (1) (h) of the Criminal code
Act 29 was inconsistent with or in contravention of the Spirit and Letter of Art 21 (1)(a)
and 162(1) and (4) of the ’92 Constitution of Ghana.

Section 112—Negligent and Intentional Libel.

(1) Whoever is guilty of negligent libel shall be liable to a fine not exceeding ¢400,000.
(2) Whoever is guilty of intentional libel shall be guilty of misdemeanour.
Section 117—When Publication of Defamatory Matter is Absolutely Privilege.
(1) The publication of defamatory matter is absolutely privileged, and no person shall
under any circumstances be liable to punishment under this Code in respect thereof, in any
of the following cases, namely—.
(h) if the matter is true, and if it is found that it was for the public benefit that the matter
should be published.

Article 21—General Fundamental Freedoms.

(1) All persons shall have the right to—
(a) freedom of speech and expression, which shall include freedom of the press and other
media;
Article 162—Freedom and Responsibility of Media.
(1) Freedom and independence of the media are hereby guaranteed.
(4) Editors and publishers of newspapers and other institutions of the mass media shall
not be subject to control or interference by Government, nor shall they be penalized or
harassed for their editorial opinions and views, or the content of their publications.

It was the contention of the accused that the law of criminal libel as defined together with
the defences available in Act 29 constitute an unreasonable limitation on the freedom and
independence of the media and are not reasonable required by Art 164.

49
Held per Acquah JSC:
1. For a national constitution is a reflection of that nation’s history and an embodiment
of the noble aspirations of its framers.
2. Accordingly… what is required of us is originality in the interpretation of our
constitution, paying particular attention to its language, and construing the words in
such a way as to advance the intention of the framers-intention nurtured on our
particular history and social circumstance.”

Several views have been expressed by various courts, scholars, etc as to the object of
interpretation, when defined as a process of determining the USE of language for the
purpose of its application. However by far the most dominant position on the matter, and
that which is overwhelmingly favoured in Ghana, is simply that the object of
interpretation of a DSC is simply to ascertain the intention of the author(s) of a DSC and
to give effect to it. The literature on the subject is no doubt full of examples of these
sometimes confusing assertions from judges, text writers, legal scholars, etc.

See: Buta @26

Biney v Biney [1974]1 GLR 442

Biney, the settlor, was the father of the plaintiff and the grandfather of the defendants. By
a deed of settlement dated 1901, he conveyed his freehold land measuring 100 ft. by 100
ft. with buildings thereon to three persons as life tenants and thereafter to his four children
as remaindermen, "their heirs and assigns" forever. The plaintiff was the sole survivor
of the remaindermen. The issue before the court was the interpretation of "their heirs and
assigns".

Held: The object of interpretation of deeds and the basic relevant rules of interpretation or
construction of deeds are:

(1) The object of all interpretation of a written instrument is to discover the

intention of the author, the written declaration of whose mind it is always
considered to be. Consequently, the construction must be as near to the minds
and apparent intention of the parties as is possible, and as the law will permit.
(2) Halsbury's Laws of England (3rd ed.): "as far as it may stand with the rules of
law, it is honourable for all judges to judge according to the intention of the
parties, and so they ought to do."

(3) The second basic rule is that the intention must be gathered from the written
instrument itself.

As Coleridge J. stated in Shore v. Wilson:

(4) "This rule thus explained implies that it is not allowable in the case supposed to
adduce any evidence, however strong, to prove an unexpressed intention
varying from that which the words used import.

50
 (5) This may be open to doubt to the remark, that, although we profess to be
exploring the intention of the writer, we may be led in many cases to decide
contrary to what can scarcely be doubted to have been the intention, rejecting
evidence which may be most satisfactory in the particular instance to prove it.

(6) The answer is, that interpreters have to deal with the written expression of the
writer's intention, and Courts of Law to carry into effect what he has written, not
what it may be surmised, on however probable grounds, that he intended only to
have written."

(7) In the third place, technical words of limitation will have their strict legal effect:
see British Bata Shoe Co., Ltd. v. Roura & Forgas Ltd. (1964)GLR 190 SC per
Adumua-Bossman J.S.C.

(8) Applying these basic rules to the deed of settlement in question, we find that the
intention of the donor was clearly expressed in the preamble: "Whereas the said
Joseph Peter Oconnor Biney (of Cape Coast) is desirous to make a settlement of
the said land in favour of . . ." (the named beneficiaries).

(9) In the second place, extrinsic evidence is not allowed to be adduced to vary or
alter a deed which otherwise contains the clearly expressed wishes and
intentions of its maker.

(10) Summary: The deed of settlement had to be interpreted in the light of three basic
rules of construction, namely:

(i) the construction must be as near to the mind and intention of the
author as the law would permit;
(ii) (ii) the intention must be gathered from the written expression of
the author's intention; and
(iii) Technical words of limitation in a document relied on must have
their strict legal effect according to the law in which they are used.
The words 'their heirs and assigns' in the Deed of Gift are clearly
words of limitation.

Language: If I may borrow the above-quoted words of Coleridge J. in Shore v. Wilson

(supra) as interpreters of this deed of settlement, we have "to deal with the written
expression of the writer's intention ... and to carry into effect what he has written." On the
strength of the binding authorities cited in support of his construction of exhibit A, the
learned judge in my view was clearly right in giving the technical words of limitation used
in the deed "their heirs and assigns," their true meaning.

Prempeh v. Agyapong [1993-94] I GLR 255 SC

The testator, a lawyer, lived with the appellant as his girlfriend in the house in dispute.
After his death, the appellant claimed the house as her personal property. The respondent,
51
the customary successor of the testator, therefore brought an action against her for, inter
alia, a declaration that the house formed part of the estate of the testator. It is however
being suggested by the appellant that the intentions of the testator, as gleaned from his
inchoate will dictated to his clerk, should be honoured as a valid samansiw.
Held:
1. The cardinal principle in the construction of wills was that, they should be so
construed as to give effect to the intention of the testator, since the whole essence of
a will, in any case, was the declaration of the wishes and intention of the testator.
2. Intention is the soul of the an instrument

In Re Atta (Dec’d) Kwako v. Tawiah [2001-2002] SCGLR 461 per Adzoe JSC
In the will of the deceased testator, Agya Atta, he devised his house and farms to his wife,
children and others including the defendant-appellant but provided in the will under clause
13 the following:

“Kwadwo Kwako is to inherit me on my death and all the properties which I have not
devised must go to him”
The plaintiff-respondent, not mentioned as a beneficiary but claiming to be entitled to the
residuary estate, took out originating summons at the HC for an interpretation of said
Clause 13. He claimed clause 13 was meant to be for the customary successor as himself.
The HC called for evidence from the lawyer who drafted the will to tell the court what his
instructions were in respect of clause 13 and accordingly sort to derive the intention of the
testator from this extrinsic evidence and rule that Kwako took the residue in his personal
capacity. On appeal, the CA reversed the decision on grounds that the Kwako took the
residue in his capacity as customary successor.

The issue for the SC was the proper construction of clause 13 of the will.

Held allowing the appeal per Adzoe JSC delivering the unanimous judgment noted:

1. “when the Courts set out to construe a will, what they do is to look for the intention of
the testator as expressed by him in the actual words used by him, having regard to the
other provisions of the Will. The intention which the will itself declares either
expressly or by necessary implication is what the courts would act upon”. This is the
“Golden Rule”

2. The several rules of construction have a common aim, “namely, to direct the court
towards an objective standard of construction and to exclude evidence which seeks to
provide what is supposed to be the actual intention of the testator”

3. The rule is this, “that extrinsic evidence of a testator’s declarations of intention as to

the meaning to be put on the language used in his will is not admissible as direct
evidence of his testamentary intention.”
52
4. Thus in Doe d. Hiscocks v Hiscocks, the testator Simon Hiscocks devised his estates
to “my grandson John Hiscocks, eldest son of the said John Hiscocks.” But John’s first
wife had a son called Simon and his second wife had a first son called John Hiscocks
the defendant. Evidence of the instructions given by the testator for his will and
declaration was rejected. It was held the evidence of the testator’s instructions for his
will and of his declarations after its execution which suggested that he meant the gift
for “Simon” and not “John” was not admissible to show which of the two grandsons
was intended by the description in the will.

5. It was stated therein that the object in all cases is to discover the intention of the
testator by reading the will as he had written it and collecting his intention from his
words. If his intention cannot be made to appear by the writing, explained by
circumstances, there is no will.

6. Exceptions are in equivocation, also called latent ambiguity, and circumstantial

evidence under the arm-chair rule. But the evidence is admitted not to gather what the
testator intended, but strictly for the purpose of identifying the person or object he
reasonably deemed to have had in mind.

Hilbers v. Parkinson (1883) 25 Ch. D 200.

Statutes
With respect to statutory interpretation, number of authorities that posit the intention
include of the legislature as the object of interpretation include:

Bennion: Statutory Interpretation 4th ed @ 405 wherein it is noted:

“the sole object of statutory interpretation is to arrive at the legislature’s intention”.

Viscountess Rhondda’s case (1922) AC 339 @ 397 per Wensbury

Letters patent were granted on June 1918, conferring on the late Lord Rhonda and the
heirs male of his body the dignity of a viscount and in default of such issue, the heirs male
of his daughter, the claimant. The case for the petitioner was that immediately before the
passing of the Sex Disqualification Act of 1919, she, Lady Rhonda, would have been
entitled but for her sex, to receive a writ of summons and to take her seat in the House of
Lords accordingly; that the incapacity to receive the writ was a disqualification to exercise
a public function; and that this qualification was removed by the passing of that Act. Lady
Rhonda therefore had the burden to prove to the 24 member Committee of Privileges that
she was entitled to the writ, but for the disqualification, and that the Act had removed that
disqualification
What right does the common law attach to the peerage in respect of sitting and voting? Is
it a right to do so absolutely or is it the right to do so being a man?

Held: Issue: The issue is the construction of the phrase: exercise any public function” in
the Act.
53
Per Earl of Donoughmore as Chairman:
1. The words of the statute are to be construed so as to ascertain the mind of the
legislature from the natural and grammatical meaning of the words which it has
used, and in so construing them the existing state of the law, the mischief to be
remedied, and the defects to be amended, may legitimately be looked at together
with the general scheme of the Act.
Per Lord Wrenbury:
2. In construing the Act, however, it must, of course, be borne in mind that complete
generality is not necessarily to be attributed to general word.
3. The dominant purpose in construing a statute is to ascertain the intent of the
legislature, and this may be done in any one of three ways.
4. First, by considering the cause and necessity of the Act.
5. Secondly, by comparing one part of the Act with another; and,
6. Thirdly (and this is the most indefinite) sometimes by foreign (meaning extraneous)
aids “so far as they can justly be considered to throw light upon the subject.

[Language: My Lords, when with the guidance of these authorities I apply my mind to the
Act here in question, I cannot….]

Corocraft v. Pan American Airways Inc. (1969) 1 QB 616

The plaintiffs, as consignees of a carton of jewellery valued at £1194 was carried by the
defendant airline from New York to London. The air waybill was completed but left the
dimensions and volume space blank. The carton was stolen by the defendant’s staff in
London. The original French version of the Warsaw Convention limited thee liability to
£19, but the English translated version made the liability unlimited.
The issue for the court was which of two versions of the Warsaw Convention on air
carriage governed the case.

Held:
Per Donaldson J at the trial court @638
1. The duty of the court is to ascertain and give effect to the will of parliament as
expressed in its enactment.
2. In the performance of this duty the judges do not act as computers into which are
fed the statutes and the rules for the construction of statutes and from whom issue
forth the mathematically correct answer.
3. The interpretation of statutes is a craft as much as a science and the judges, as
craftsmen, select and apply the appropriate rules as the tools of their trade. They are
not legislators, but finishers, refiners and polishers of legislation which comes to
them in a state requiring varying degrees of further processing.
Per Denning MR @655
4. The literal meaning of words is never allowed to prevail where it would produce
manifest absurdity or consequences which can never have been intended by the
legislature.

54
 5. It is the age-old conflict which exists between the most eminent of judges: whether
to give the words a literal or liberal interpretation. I take my stand on a liberal
interpretation, remembering that “The letter killeth, but the Spirit gives life.”

Sam v. Comptroller of Customs Excise. (1971) GLR

APPEAL from a judgment of the district magistrate's court grade I in which the appellant's
vehicle was ordered to be forfeited since it had been used in the conveyance of
uncustomed goods contrary to Customs law.

Held per Taylor J as he then was:

(1) it is the duty of a court, in interpreting an enactment, to give effect to the intention of
the legislature. Therefore, where words in an enactment are clear and unambiguous no
question of interpretation arises; but where the ordinary meaning of the words used
leads to a manifest absurdity or repugnance a court may alter the words of the
enactment, but only to the extent of avoiding the absurdity or repugnance.
(2) The words "made use of" in section 203 of Cap. 167 were ambiguous because the
further question of who made use of the vehicle could not be answered by the context.
(3) The legislature only intended that the forfeiture of a means of conveyance be directed
at the owner, his servants or agent and all persons having a proprietary interest who
make use of the means of conveyance negligently or knowingly against the customs
laws.
(4) If it can be shown that the owner of a vehicle, or his agent, servant or assignee made
use of a vehicle in the conveyance of contraband goods not knowing that the goods
were contraband then the vehicle is not caught by the penalty provision of section 203
of Cap.
(5) In instant case the crucial matter calling for consideration is the meaning of the first
part of section 203 of Cap. 167. The relevant part of the section, already quoted in
extenso, is as follows: "Save as provided in section 170 and subject to the provisions of
section 169, all aircraft, ships and carriages, together with all animals and things made
use of in the importation, attempted importation, landing, removal, conveyance,
exportation or attempted exportation, of any uncustomed, prohibited or restricted
goods, or any goods liable to forfeiture under the customs laws shall be forfeited, . . .”
(6) It would seem clear therefore that in order to interpret these provisions of the customs
laws as indeed any other statute it is not amiss to advert to what the legislature had in
contemplation
(7) In order to arrive at the meaning of this provision, it is in my view necessary that one
must have recourse to the intention of the legislature.
(8) This is a fundamental rule and it is stated in the very first sentence in Maxwell on
Interpretation of Statutes (11th ed.):
a. "A statute is the will of the legislature, and the fundamental rule of
interpretation, to which all others are subordinate, is that a statute is to be
expounded 'according to the intent of them that made it'."
(9) This rule as thus formulated in Maxwell was quoted with approval by Evershed M.R.
in Ernest (Prince) of Hanover v. Attorney-General

55
(10) No doubt Lord Denning L.J. (as he then was) had this in mind when in Magor and
St. Mellons R.D.C. v. Newport Corporation [1950] 2 All E.R. 1226,C.A. he said in a
dissenting judgment:
a. "We sit here to find out 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 than by opening it up to destructive analysis."
(11) Now this statement of Denning L.J. (as he then was) was disapproved in very
scathing language when the case went on appeal to the House of Lords. Lord Simonds
exclaimed indignantly while affirming the decision of the Court of Appeal in [19521
A.C. 189 H.L.:
a. "[T]he general proposition that it is the duty of the court to find out the intention
of Parliament ... cannot by any means be supported. The duty of the court is to
interpret the words that the legislature has used; those words may be ambiguous,
but, even if they are, the power and duty of the court to travel outside them on a
voyage of discovery are strictly limited . . .
b. The court, having discovered the intention of Parliament must proceed to fill in
the gaps. What the legislature has not written, the court must write. The
proposition, cannot be supported. It appears to me to be a naked usurpation of
the legislative function under the thin disguise of interpretation."
(12) I think it is clear from a consideration of the principles governing the interpretation
of English statutes that the courts do indeed modify the language of statutes in certain
circumstances, as Parke B. did in Becke v. Smith (supra), and to assert the contrary as
Lord Simonds would seem to have asserted in the Magor and St. Mellons R. D. C. v.
Newport Corporation case (supra) is to run counter to a thousand instances:

Salomon and Co., Ltd. v. Salomon [1897] A.C

(13) Lord Watson, threw light on this problem in the case of Salomon and Co., Ltd. v.
Salomon [1897] A.C. 22 at p. 38, H.L., when he said:
a. Intention of the Legislature’ is a common but very slippery phrase, which,
popularly understood, may signify anything from intention embodied in positive
enactment to speculative opinion as to what the Legislature probably would have
meant, although there has been an omission to enact it.
b. In a Court of law or Equity, what the Legislature intended to be done or not to be
done can only he legitimately ascertained from that which it has chosen to enact,
either in express words or by reasonable and necessary implication.”
(14) Apparently one can alter the words of a statute but this is a serious matter and it
must be for only very cogent and limited reasons indeed

[Language: I now proceed to interpret the provision of the said section in accordance with
these principles, well aware of the proposition that where words are clear and
unambiguous no question of interpretation at all arises. In this case the words "made use
of" appearing in the section seem ambiguous. As I have already pointed out words take
their meaning from their context and in isolation they are meaningless

56
(15) Our legislature is a subordinate not sovereign institution and it bends to the
supremacy of our Constitution as our courts must bow as well to our Constitution when
construing any enactment of our legislature.

Constitutions

Home Building & Loan Association v. Blundell (1934) 290 US 398 @ 453
wherein it was noted: “the whole aim of construction as applied to the provisions of a
constitution is… to ascertain and give effect to the intent of the framers”.

Tuffour v. A-G (1980) Glr 634@ 648 per Sowah JSC

( as he then was) : “and so we must take cognizance of the age old fundamental principle
of constitutional construction which gives intent of the framers of this organic law. Every
word has an effect. Every part must be given effect to”.

Republic v Tommy Thompson [1996-97] SC GLR 484

“Notwithstanding the invaluable scholarship in foreign decisions, what is required of us is
originality in the interpretation of our constitution, paying attention to its language, and
construing the words in such a way as to advance the intention of the framers. Intent
nurtured on the peculiar history and social circumstances”.

It is important to understand right at the outset, that the theses that posits intention as the
object of interpretation implies that the goal of all interpretation properly so called is to
ascertain and and give effect to the intention of the author(s) of the DSC. In effect for the
proponents of this thesis, the best interpretation is one that reflects or effectuates the
intention of the author(s) of the DSC. The thesis is consequently only an elliptical
statement by the proponent of their preferred theory or approach to interpretation. It is
therefore not stone-written but one which itself requires interpretation relative to other
theories or views about the proper object of interpretation.

More importantly, it must be emphasized that the thesis that the object of interpretation is
intention, is one of the biggest sources of conceptual confusion and has often stood in the
way of a proper, adequate understanding.
It has inter alia often posed fundamental questions as for e.g.
1. What is meant by intention in the context. Is it a reference to the subjective mental
state of the author(s) of a DSC as to the meaning of the language used by them? Or,
is it a reference to the objective meaning attributed to the language of a DSC? Or, is
it a reference to the aim, object, or purpose, etc of the author(s) of the DSC?
2. How is such an intention to be ascertained?
3. What is the relationship if any between intention and meaning in interpretation.
Needless to add that a proper understanding of some of these issues is a key to
conceptual clarity on the subject.

57
The situation is in practice also worsened by the evolution of several theories and
approaches which sometimes espouse varied and conflicting positions on some of these
issues while still positing the intention of the author(s) of the DSC as the object of
Interpretation. These include the so-called mechanical purposive, creative, objective
approaches to interpretation. As was recently announced in its judgment in:

Asare v The Attorney-General all these approaches eventually all accept intention as the
object of interpretation.

Thus the focus of the discussion henceforth would be to clarify some of these thorny
issues regarding the definition of ( fill in) and thereby to explore the nature and the
relationship if any between meaning and intention in the law of Interpretation.

Asare v Attorney-General [2003-2004] SC GLR 823

The plaintiff invoked the original jurisdiction of the court for a declaration that the
purported swearing-in of the Speaker of Parliament as the President of Ghana in the
absence of the President and the Vice President was inconsistent with or in contravention
of the provisions of the constitution and therefore unconstitutional, void and of no effect.
The issue turned on the words: “unable to perform the functions of his office”, and its was
the contention of applicant that the action creates a situation of possible conflict and
confusion when a President is performing his functions out of Ghana while there is an
acting president discharging some of those functions within Ghana.

Held: per Prof Kludze JSC at 846 in dismissing the application:

1. I agree that we must adopt a purposive construction of the constitutional provisions.
2. That means that we do not construe words in the abstract but within the context in
which they are used.
3. Language is a tool for expressing the wishes of the speaker, author or writer.
4. 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 lawmaker, in this case the intent of
the framers of the 1992 Constitution.
5. All other canons of construction have the ultimate purpose of achieving this goal
6. One of the canons of construction is expressum facit cessare tacitum.
7. It means that “when a thing is expressly stated, it ends speculation as to whether
something inconsistent may be applied.
8. It also means that express enactment shuts the door to further implication and
speculation: see Whiteman v Sadler [1910] Ac 514 @517.
9. Therefore, even if we adopt the so-called literal interpretation, or the purposive
construction which is otherwise known as the “mischief rule”, the result is the same.

The burden of our discussion would ultimately be to establish 3 main positions as ff:

a. That although intention in a sense of a subjective mental state regarding the meaning of
the language used (subjective intended meaning) might make sense in some cases (e.g.
58
 in relation to interpretation of unilateral documents). It is not acceptable as the object
of interpretation of all DSCs on account inter alia of the fact that it entails a speaker’s
meaning approach to interpretation which has several worrying lapses and which
cannot provide the basis of a coherent theory of interpretation.

b. That though intention in the sense of the objective meaning of the language used
(objective intended meaning) appears more meaningful relative to (a), it is still not
acceptable as the meaning of intention as the object of interpretation in all cases; for
reasons inter alia that it does not afford a useful understanding of the role of intention
as the objects of interpretation since (fill in) … becomes a mere synonym for the
objective meaning of the language used. The point in emphasizing intention as the
object of interpretation is thereby clearly lost and it is here to be added that although
under the objective meaning approach, the objective, purpose etc of the author(s) of the
DSC must be taken into account at arriving at the objective meaning of the language
used, it is not considered by only one of several factors to be taken into account in
arriving at the objective meaning.

c. That the best understanding of intention is in the sense of a meaning which reflects or
effectuates the aims, objects or purpose of the authors of a DSC (purposive meaning)
in using the language therein. Unlike the objective meaning approach, the purpose
meaning approach not only takes account of subjective factors in interpreting the
language of a DSC, but also considers the purpose as the most critical or overriding
factor in the context which interpretation must in all cases strive to achieve. This
approach provides the seed kernel of the now dominant Modern Purposive Approach to
Interpretation (MOPA).

REFERENCES
1. W. TWINING & MIERS (3RD ed) p. 203-216
2. Anne De Moor: Intention in the law of contract Elusive or Illusory (1990) 106
LQR 639.
3. J. Landis: A Note on Statutory Interpretation (1930) 43 Harvard Law Review
886.
4. Radin: Statutory Interpretation, (1930) 43 HCR 863
5. Douglas Payne: The Intention of the Legislature in the Interpretation of Statute
(1956) Current Legal Problems @ 96.
6. G. MacCallum: Legislative Intent (75) 4 LJ 754-756
7. Reed Dickerson: The Interpretation and Application of Statutes Chps 7 -8
8. Cross- Statutory Interpretation 3rd ed p 32-31.
9. Larry Simon: The Authority of the Framers of the Constitution: Can originalist
interpretation be justified (1985) 73 California Law Review 1482.
10.Brest: The Misconceived Quest for the Original Understanding (1980) 60
Boston University LR 204.

Cross on ‘Ordinary meaning’ and ‘purpose’

Thus, an ‘ordinary meaning’ or ‘grammatical meaning’ does not imply that the judge
attributes a meaning to the words of a statute independently of their context or of the
59
purpose of the statute, but rather that he adopts a meaning which is appropriate in relation
to the immediately obvious and unresearched context and purpose in and for which they
are used. By enabling citizens (and their advisers) to rely on ordinary meanings unless
notice is given to the contrary, the legislature contributes to the legal certainty and
predictability for citizens and to a greater transparency in its own decisions, both of which
are important values in a democratic society.

Tuesday, November 08, 2005

The subjective intended meaning.

The implication of this thesis is that the best interpretation is one that reflects the
subjective intention of the author or authors as to the meaning of the language used by
them. although intention defined in such subjective terms might be workable or make
sense in a number of situations, (for example in a case of some unilateral documents), it
cannot properly be held to be the object of interpretation in all cases. This is largely
because intention thus defined, entails a speaker’s meaning approach to interpretation,
which approach is riddled with several conceptual and practical difficulties.

First, the subjective understanding of intention does not reflect the way the meaning of
language is determined in practice both in ordinary and legal parlance. As previously
noted, the courts in practice proceed on the basis that the language of a DSC is to be
construed at first instance, in its ordinary meaning in context unless there is a compelling
reason to the contrary. And the ordinary meaning here is often largely determined by the
objective conventions of language in the particular linguistic community. The subjective
intention of the speaker if known, is taken into account as part of the context. But the
courts do not simply begin by looking out for the subjective intention of the speaker and to
give effect to it.

Robertson v. French (1803) 4 East 130 per Lord Ellenborough CJ

It (sc. a written instrument) is to be construed according to its sense and meaning as
collected in the first place from the terms used in it, which terms are themselves to be
understood in their plain and popular sense, unless they have generally in respect to the
subject matter, as by the known usage of a trade, or the like, acquired a peculiar sense of
the same words; or unless the context evidently points out that they must in a particular
instance, and in order to effectuate the intention of the parties to that contract, be
understood in some other special and peculiar sense

Maunsell v. Olins (1975) AC 373;

Whether one meaning or the other should be selected would partly depend on the semantic
level appropriate to the subject matter of the statute. What is the audience addressed?

60
In Maunsell v. Olins Lord Simon of Glaisdale, after observing that the two statutory
situations, one dealing with ordinary people in their everyday lives, and the other dealing
with technical branches of the law, were two extreme situations observed that
"statutory language, like all other language, is capable of an almost infinite gradation of
"register"- i. e., it will be used at the semantic level appropriate to the subject matter and
to the audience addressed (the man in the street, lawyers, merchants, etc). It is the duty of
a court of construction to tune in to such register and so to interpret the statutory language
as to give it the primary meaning which is appropriate in that register (unless it is clear
that some other meaning must be given in order to avoid injustice, anomaly, absurdity or
contradiction). In other words, statutory language must always be given presumptively the
most natural and ordinary meaning which is appropriate in the circumstances

1. Construing the words in their strict etymological sense, in the circumstances of

cases of this sort, is unproductive and therefore inappropriate.
2. I ought, instead, as an informed legal interpreter, guided by the rules, principles,
presumptions and canons which govern statutory interpretation, to give the words
their meaning in the context in which they are used.
3. Not all the criteria are relevant. For instance, the cannons of construction relating to
"retrospectivity" and "vested interests" have nothing to do with the matter before us
and, therefore, I do not resort to them.
4. Instead, I have selected these that are applicable to the matter before this Court,
mindful in so doing that these guides to construction are merely aids and that they
have no hierarchy or binding force. ]
5. They are, as Lord Reid observed in Maunsell v. Olins (2) at p. 382,
a. "our servants, not our masters. They are guides to construction, presumptions
or pointers. Not infrequently one "rule" points in one direction, another in a
different direction. In each case we must look at all relevant circumstances
and decide, as a matter of judgment, what weight to attach to any particular
rule. "
6. We should also bear in mind that "the canons of construction ... constitute a code of
communication between the draftsman and the court of construction. Observing the
code on his side, the draftsman will use language in such a way that its meaning
represents what Parliament means to say; and it is only by observance of the code
by the court on its own side that a divergence can be avoided between its
interpretation of what the words mean from what Parliament meant to say." Per
Lord Simon of Glaisdale in Maunsell v. Olins, (2) at p. 391.)

Sam v. Comptroller of Customs @ Excise [1971] GLR 289@ 307;

1. In order to arrive at the meaning of this provision, it is in my view necessary that
one must have recourse to the intention of the legislature.
2. This is a fundamental rule and it is stated in the very first sentence in Maxwell on
Interpretation of Statutes (11th ed.):

61
 3. "A statute is the will of the legislature, and the fundamental rule of interpretation, to
which all others are subordinate, is that a statute is to be expounded 'according to
the intent of them that made it'."
4. There, Parke B. quoting Burton J. in Warburton v. Loveland (1828) Hud. & Bro.
623 observed in the course of delivering the judgment of the Exchequer of Pleas:
5. "It is a very useful rule, in the construction of a statute, to adhere to the ordinary
meaning of the words used, and to the grammatical construction, unless that 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."

Tufuor v. A-G (Supra);

Sallah v. A-G (supra)

Kuenyehia v. Archer Esp @ 606

On 23 and February 1993 the Chief Justice administered the oath of allegiance and the
judicial oath to justices of the Supreme Court and the Court of Appeal respectively who
continued in office after the coming into force of the Constitution, 1992. Subsequently the
plaintiffs, all high officers of the Ghana Bar Association acting upon the mandate of the
association, filed suit in the Supreme Court for declarations inter alia that by the combined
effect of article 156(1), (2) and (3), section 4 of the Schedule I and Schedule II of the
Constitution, 1992, the President was the proper person to administer the oath of
allegiance and judicial oath to judges of the superior courts who continued in office after
the coming into force of the Constitution, 1992 and that the purported administration of
the oaths to those justices by the Chief Justice was null and void.

Held:
1. The language of section 4 of Schedule 1 of the Constitution, 1992 was very plain and
would consequently be construed in its ordinary or natural sense, unless such a
construction led to some ambiguity or absurdity. Thus construed, it was evident from
section 4(1), which clearly referred to justices of the Supreme Court and Court of
Appeal "holding office immediately before the coming into force of this Constitution",
that the section was intended to cover continuing judges only.
2. A constitutional instrument is a document sun generis to be interpreted according to
principles suitable to its peculiar character and not necessarily according to the
ordinary rules and presumptions of statutory interpretation. It appears that the
overwhelming imperatives are the spirit and objectives of the Constitution itself,
keeping an eye always on the aspirations of the future and not overlooking the receding
footsteps of the past. It allows for a liberal and generous interpretation rather than a
narrow legalistic one.
3. In interpreting the relevant provisions of the Constitution, 1992 we must be very
careful to avoid importing into the written document what does not appear therein. For
there could be no difficulty, if an extension was intended as a desired result, for it to be
explicity expressed, in precise terms. Rules of construction do not permit a passage
62
 which has a clear meaning, to be complicated or obfuscated by any interpretation,
however well intentioned
4. Of the principles to be borne in mind, we may turn with profit to our domestic
constitutional case of Tuffuor v Attorney-General [1980] GLR 637, CA sitting as SC.
There the court said, a written [p.563] Constitution embodies the will of a people. Its
spirit, mirrors the people's history, aspirations and hopes for the future, and is
accordingly a pivoting landmark in their search for progress. It continued at 647-648:
5. "Its language, therefore, must be considered as if it were a living organism capable of
growth and development... A broad and liberal spirit is required for its interpretation. It
does not admit of a narrow interpretation. A doctrinaire approach to interpretation
would not do. We must take account of its principles and bring that consideration to
bear, in bringing it into conformity with the needs of the time.
6. And so we must take cognisance of the age-old fundamental principle of constitutional
construction which gives effect to the intent of the framers of this organic law. Every
word has an effect. Every part must be given effect.
7. Guided by these principles I shall presently endeavour to interpret the relevant articles
mentioned in this case by applying certain relevant cannons of construction known to
the law.

8. The first principle of interpretation is to give words in a statute their ordinary meaning;
if this yields a reasonable result the matter ends there, if not then one goes on to apply
other cannons of statutory interpretation.

9. According to Halsbury's Laws of England (3rd ed), Vol 36, p 391, para 585: "If there is
nothing to modify, nothing to alter, nothing to qualify the language which a statute
contains, the words and sentences must be construed in their ordinary and natural
meaning."

10.It is not competent to any court to proceed upon an assumption that Parliament has
made a mistake, there being a strong presumption that Parliament does not make
mistakes. If blunders are found in legislature, and it is not the function of the court to
repair them.

11.Thus, while terms can be introduced into a statute to give effect to its clear intention by
remedying more defects of language and to rectify misprints or mismemers no
provision which is not in the statute can otherwise be implied to remedy an omission.

12.Broadly the general method of interpreting statutes or constitutions is to give words

their ordinary meaning and if the ordinary meaning makes sense of the passage then
the intention as deduced therefrom, must be given effect.

13.It is only when the construction leads to absurdity or is ambiguous, that one is required
to look elsewhere or to resort to the application of certain other principles of
interpretation in order to ascertain the true meaning and intention of the legislature.

14.As Tindal CJ said in the Sussex peerage Case (1844) 11 Cl & Fin 85, at p 143, HL:
63
 a. “. . . the only rule of construction of Acts of Parliament is, that they should be
construed according to the intent of the Parliament which passed the Act. If the
words of the statute are in themselves precise and unambiguous, then no more
can be necessary than to expound those words in their natural and ordinary
sense. The words themselves alone do, in such case, best declare the intention of
the lawgiver."

15.Another important cannon of construction which would later be seen to be applicable

to this case is the one which requires that every word in a statute has a meaning and
must be interpreted to give effect to it: see Halsbury's Laws of England:
a. "A statute must, if possible, be construed in the sense which makes it operative,
and nothing short of impossibility so to construe it should allow a court to
declare a statute unworkable . . . It is not permissible to treat a statutory
provision as void for mere uncertainty . . . It may be presumed that words are not
used in a statute without a meaning and are not tautologuous or superflous, and
so effect must be given, if possible, to all the words used, for the legislature is
deemed not to waste its words or say anything in vain."
16.In the same vein, Canada. Sugar Relining Co Ltd v R [1898] AC 73 5 at 741 it was
stated by Lord Davey that:
a. "Every clause of a statute should be construed with reference to the context and
the other clauses of the Act, so as, so far as possible, to make a consistent
enactment of the whole statute or series of statutes relating to the subject-
matter."
17.I shall examine the words in article 156 of the Constitution, 1992 and interpret them by
giving them their ordinary meaning. As stated in the headnote of Tuffour v Attorney
General (supra), holding (5):

a. "(5) The duty of the court in interpreting the provisions of article 127 (8) and (9)
was to take the words as they stood and to give them their true construction
having regard to the language of the provisions of the Constitution, always
preferring the natural meaning of the words involved, but nonetheless giving the
words their appropriate construction according to the context."

Addai v. Donkor: [Unreported] SC 2-03-92

Here the testator in his will devised his freehold house to his niece for life and the
remainder to the “surviving Children” of the niece. The issue was what did the testator
mean by “children” The trial HC construed “children” to mean descendants.

Held on appeal to SC per Adade JSC:

1. When a person chooses a particular language to express himself, he must be
presumed to mean what the words he has used normally mean in that language.

64
 2. Here the testator decided to use the English language. The will, from the language
was most certainly prepared by a lawyer who must be deemed to know the
difference between “children” and “descendants”.
3. Children must be taken to mean what it means in the English language, viz, ‘sons
and daughters of any person’.
4. The SC therefore held that “children’ meant the sons and daughters of the said niece
and not the grandchildren of the niece nor members of her extended customary
family

Maunsell v. Olins (1975) AC 373

Maunsell had, in an oral agreement, leased his large farm land with buildings and a
farm cottage to one Beer who subsequently sub-leased the cottage to Olins. Thereafter by
a tenancy agreement between Maunsell as landlord and Beer as tenants, the tenant
covenanted as:

“..will reside in the farm house and will use the farm for agricultural purposes only and
will not assign underlet or part with possession of the farm or any part thereof except the
two cottages which may be sublet on monthly tenancies.”

The appellant, Olins, were already in occupation under the sub-tenancy and were
protected under the Rent Act . On the death of Mr Beer, the landlord, Maunsell terminated
the head tenancy and then served the appellant, the sub-tenant, a notice to quit, upon her
refusal to quit, action proceeding were commenced for possession. Her defence was that
she was protected under the Rent Act. The Rent Act provided that:
“Where a dwelling-house-(a) forms part of premises which have been let as a whole on a
superior letting but do not constitute a dwelling-house let on a protected tenancy….”
The issue for the court was whether the ‘cottage’ formed part of the ‘premises’ of the
farm.
Held:
Per Lord Reid @382
1. Then rules of construction are relied on. They are not rules in the ordinary sense of
having some binding force. They are our servants, not our masters.
2. They are aids to construction, presumptions or pointers. Not infrequently one ‘rule’
points in one direction, another in a different direction. In each case we must look at
all relevant circumstances and decide as a matter of judgment what weight to attach
to any particular ‘rule’.

3. I fully accept that a word should be given its ordinary meaning unless there is
sufficient reason to give it in the particular case a secondary or limited meaning.
Here the difficult word is ‘premises’

4. The case for the respondent is that it should be given a limited meaning, and the
question, as I see it, is whether there is sufficient reason for doing that.

65
 5. Finally, I think this a typical case for the application of the ‘rule’ that a court, in
doubt between two constructions of a statutory provision, should lean towards that
construction which involves the least alteration of the common law.

Per Lord Simon:

6. It is sometimes put that, in statutes dealing with ordinary people in their everyday
lives, the language is presumed to be used in its primary ordinary sense, unless this
stultifies the purpose of the statute, or otherwise produces some injustice, absurdity,
anomaly or contradiction,
7. in which case some secondary ordinary sense may be preferred, so as to obviate the
injustice, absurdity, anomaly or construction, or fulfill the purpose of the statute:
while,
8. in statutes dealing with technical matters, words which are capable of both bearing
an ordinary meaning and being terms of art in the technical matter of the legislation
will presumably bear their primary meaning as such terms of art (or, if they must
necessarily be modified, some secondary meaning as terms of art)

9. If these are the two alternatives, the Rent Act deals with legal technicalities of
leasehold tenure on which ordinary citizens consult their lawyers, rather than with
everyday affairs:

10.so that ‘premises’ must be construed presumably in the primary sense which it bears
as a term of art (ie.; the subject matter of the habendum clause of a lease. )

11.Statutory language, like all language, is capable of an almost infinite gradation of

‘register’-ie.

12.It will be used at the semantic level appropriate to the subject matter and to the
audience addressed (the man in the street, lawyers, merchants, etc.)

13.It is the duty of a court of construction to tune in to such register and so to interpret
the statutory language as to give to it the primary meaning which is appropriate in
that register (unless it is clear that some other meaning must be given in order to
carry out the statutory purpose or to avoid injustice, anomaly, absurdity or
contradiction).

14.In other words, statutory language must always be given presumptively the most
natural and ordinary meaning which is appropriate in the circumstances.

Indeed the speaker’s meaning approach also falsely implies for example, that the
subjective intention or meaning intended by the author(s) is discoverable at all times and
that without it, there could be no interpretation of DSCs.

In respect of the interpretation of Wills for example, it implies that the provisions of a
Will will be meaningless in the absence of the actual subjective intention of the testator;
66
while in the case of statutory interpretation, it implies the actual subjective legislative
intent is a prerequisite for interpretation. Yet we know that the testator’s intention or the
legislature’s intent in this subjective sense, is hardly discoverable-especially in the case of
generic words like ‘fair’, ‘reasonable’, etc. but we construe such DSCs all the time.

Grey comments on this serious lapse in the approach to interpretation, that sets so much
store by the subjective intention of the author or authors in his book The Nature And
Sources Of Law (2nd ed) @ pp 172-173 as follows:
“Interpretation is generally spoken of as if its chief function was to discover what the
intention of the legislature really was. But when the legislature has a real intention one
way or another on the point, it is not once in a hundred times that any doubt arises as to
what its intention was. If that were all a judge had to do with a statute, interpretation of
statutes, instead of being one of the most difficult of a judge’s duties, will be extremely
easy. The fact is that the difficulties of so-called interpretation arise when the legislature
had no intention at all.

In his Laws Empire, @ p 315, Ronald Dworkin also cautions against the use of this crude
speaker’s meaning approach in statutory interpretation as follows;

“Having a thought and choosing words to represent that thought are not two separate
activities. Nor are people free to mean anything they like by the words they use, so the
question “what did he mean by those words?” is not purely the question of what he had in
mind when he spoke”.

Likewise, Michael Moore in his article Semantics of Judging (supra) @ 248 commenced
on the irreducibility of the meaning of a sentence to any set of intentions of a particular
speaker. He observes

“The meaning of a sentence is a function of the conventions of language and while the
conventions may be a function of the intentions with which a people speak, those
conventions cannot be the function of the intentions of one speaker alone. A speaker
cannot literally arrogate to himself Humpty Dumpty’s power to make words in what he
pleases although he can mean what he pleases by them.

However the point has to be made that the problem being highlighted here, is quite distinct
from criticisms leveled against the speaker’s meaning approach on the ground that the
subjective intention of a speaker is not discoverable and that the emphasis on subjective
intention is futile since the subjective intention could only be ascertained through
objective criteria or its external manifestation.

It has to be said right away, that the argument that the emphasis on subjective intention is
futile because it is not discoverable except from external criteria, is clearly not a valid
argument. We do discover subjective intention of people from external sources in several
other areas of the law- such as with criminal intention, recklessness, etc- so that it is not
clear why interpretation should be different. It is certainly possible to discover the

67
subjective intention of the author(s) of a document from external sources such as text,
accompanying memoranda etc. in appropriate cases.

The difficulty with the speaker’s meaning theory is then not so much the difficulty of
ascertaining such a subjective intention but rather the more fundamental difficulty relating
to its adequacy as a basis of a coherent approach to questions of meaning in interpretation
especially in cases where this subjective intention cannot be ascertained.

Secondly, the speaker’s meaning theory falsely assumes that once the subjective intention
is ascertained, it would provide answers or would be helpful in solving all interpretive
problems facing the court in a particular case. this is not often the case in practice. Indeed,
as Dickerson points out in his Interpretation and application of Statutes, once the
subjective intention is determined from external sources, it often ceases to be helpful in
solving further problems. The authorities abound with several examples of this.

In Re Amarteifio (Dec’d); Amarteifio v. Amarteifio [1982-83] GLR 1137

By his will, the testator directed that the balance of rents accruing from his house be
distributed equally between the devisees under his will but not until his wife, R. A., had
been paid twenty pounds of such rents annually. Counsel for the plaintiffs contended that
the testator must have intended R. A. to receive twenty pounds only of the accruing rents
at all times. He further contended that clause 6 of the will had been misinterpreted by the
defendants to mean that since rent at the date of the will was one hundred pounds per
annum, R. A. was to be entitled to twenty per cent of the rents accruing at all times from
the property. In the instant proceedings by an originating summons to determine the true
meaning of the clause;

Held:
1. A will should be read together as a whole to realize the true intention of the testator
and the court must do what was right by giving the will its real meaning.
2. Accordingly, where the literal sense of the words would create an absurd situation
they might be properly discarded and modified.
3. It would have been ludicrous to have accepted that the testator could have intended
that only twenty pounds should be paid annually to his wife irrespective of rent
appreciation.
4. The court would have done an injustice if it did not give the words of clause 6 of the
will an import which would give effect and not defeat the intention of the testator.
5. Therefore the defendants were to receive twenty per cent of the annual rents now
and at all times. Dictum of Lord St. Leonard in Gray v. Pearson (1857) 10 E.R.
1231 cited, thus

6. ". . . if I give to the words their simple meaning according to grammar and
according to their plain prima facie import, I defeat the intention, I hold that I am
bound by every rule, both of law and equity, to see whether I cannot give to them,
by natural construction, an import which will effectuate and not defeat the
intention."

68
 7. Accordingly, where the literal sense of words creates an absurd situation they may
be properly discarded or modified.

8. A will should be read together as a whole to realise the true intention of the testator.

9. It would be ludicrous to accept that the testator who at clause 8 of his will directs
that all documents pertaining to his house at Kokompe should be handed over to his
wife, Rosina, and who at clause 12 (f) gives the said wife, Rosina, a bigger share of
the said house, could have intended that only £20 annually should be paid to Rosina
irrespective of any rent appreciation. I would conclude that the court would be
doing an injustice if it did not give the words of clause 6, an import which would
give effect and not defeat the intention of the testator.

In Re Dadzie (Dec’d); Dadzie v. Addison [Unreported]

NPP v. GBC [1993-94] GLR 254

Quaynor v Humphrey-Bonsu [Unreported] 14-2-2000 CA

This was a case in which a testator, Bart-Plange, had devised properties to his favourite
daughter and made no provison for the 1st and 3rd plaintiffs. The 1st plaintiff, Beatrice
Quaynor bore him four out of the seven children, was the wife of the testator. The three
other surviving children of a different woman, were Mrs. Humphrey Bonsu, etc. The
action was instituted against Mrs. Bonsu as 1st defendant The 3rd plaintiff, a cripple and
mentally retarded child from birth, was also not catered for. Hence this action by the
plaintiffs whereby they sought an order to make provision under the Will.

It was the defence case that the 1st plaintiff was never married to the deceased, and only
lived in concubinage with him and so was qualified as a dependant within the meaning of
section 13 of the Wills Act, 1971 (Act 360). It was also contended that since both the 2nd
and 3rd plaintiffs were over 18 years at the time deceased died, they did not qualify as a
“child” under S. 13(1) of the Wills Act….
Held:
Per Benin JA: [Strict constructionist]
1. Unfortunately, both 2nd and 3rd plaintiffs were more than 18 years old at the time
the testator died. And so by S. 13(1) of the Act they do not qualify as dependants,
however much pain or grief one has for them, especially the 3rd plaintiff. I say this
without relish, but that is what the legislation says, there is no ambiguity about it.
2. The rule is that if the language of a statute is clear, it must be enforced however
harsh the result may appear to be. As Tindal C.J. put it in the case of Warburton v.
Loveland (1831)2 D & Cl. (H.L.) 480 :
3. “Where the language of an Act is clear and explicit we must give effect to it
whatever may be the consequences, for in that case the words of the statute speak
the intention of the legislature.”
4. The law maker clearly intended the natural age of a child to prevail. I believe this
case brings to the fore the urgent need to amend this law so that certain

69
 handicapped and dependant children, however old they may be, will benefit form
their parent’s estate.
5. But so long as the law stands, the court is bound to give effect to it notwithstanding
the apparent hardship it may cause; so the case of Quaye v. Quarcoo (1991)2 GLR
437 was rightly decided by the High Court.
Per Twumasi JA, as he then was :[Objective Interpretation]:
6. The claim of the 3rd plaintiff provided the clearest archetype of the moral
dimension in exercise of judicial discretion. This plaintiff suffers mental and
physical disability from birth yet strict compliance with the letter of section 13 (1)
of the Will Act 1972 (Act 360) disqualifies him from applying for a reasonable
provision because the statute covers children under 18 years of age which he had
passed at the date of the will.
7. “Unfortunately, the Act makes no provision for a child who though above the age of
18 years, is by reason of physical or mental disability, incapable of maintaining
himself or herself.
8. Nor does the Act make any provision directed towards alleviating the hardship of a
child who is above the age of 18. In these circumstance the court is powerless, and
it cannot make any order of relief”
9. I have found the construction placed on that subsection by the learned author of
“The Law of Wills” to be too draconian and harsh with the greatest respect to the
author.
10.Clearly he adopted the literal approach of statutory construction. But I conceive it to
be a solemn duty of a court to construe a statue in such a way as would accord with
commonsense and justice. Thus in the English case Re Margon-Wilson’s Will Trust
1968 Ch 268 at 282 Upgoed-Thomas J said:
11.“If the court is to avoid a statutory result that flouts common sense and justice it
must do so not by disregarding the statute or overriding it, but by interpreting it in
accordance with the judicially presumed parliamentary concern for commonsense
and justice.
12.The…. in Ghana the Supreme Court in a recent published case Essilfie v. Anafo;
Archer CJ (as he then was) presiding, adopted the commonsense approach to the
construction of statutes and emphatically stated that the legislature would not intend
what is unreasonable. The policy-rationale behind the age limitation to children
under section 13(1) of the Wills Acts, 1971 (Act 360) proceeds on the
understanding that at 18 a normal child would have been capable of maintaining
himself or herself by his or her own effort.
13.The 3rd plaintiff did not fulfil this condition so the age limitation cannot be applied
to him.”

Thirdly, the thesis that the object of interpretation is to ascertain and give effect to the
subjective intention of the author or authors of a DSC, runs into serious difficulties when
applied in relation to composite bodies such as the legislature or parliament (in the case of
statutes), or the framers of a national constitution like the constitutional commission or the
consultative assembly which drew up the 1992 constitution of Ghana.

70
It has here been argued for example, that while one might speak meaningfully and
properly say of an individual concerning the general and particular effect of a document
he has drafted and signed that he intended to dispose of his properties in a particular way
(for example in a Will), one cannot use the word ‘intention’ in the same sense in relation
to a composite body like the legislature. The key difficulties here are said to include for
example;
 Determining whose subjective intention constitutes the intention of the legislature.
Is it that of all members of the legislature present when the Bill was voted for; or is
it that of the majority who voted for the Bill?; or is that of the promoters or Drafters
of the Bill? And could several individuals have one single or subjective intention?
(See Cross 3rd ed pp 23-33); (Twining and Miers pp 202-211).

Hence Radin has for example noted in his famous work on the subject that it is unrealistic
to talk about legislative intention in this subjective sense because the notion of the
intention of the legislature is fictional. There is no single person to call the legislator
whose mind would constitute the legislative intent. Radin does not also think that it is
realistic to talk of the ‘intent’ of a large heterogeous body like the legislature. That would
be an exercise in futility.
See:
Radin: Statutory Interpretation (1930) 43 Harvard Law Review 863 @ 873;
compare with J London: A note of statutory interpretation (1930) 43 Harvard Law Review
886.

Similarly Payne has observed that undoubtedly, the legislature being a composite body
cannot have a single intention. See Payne at 97 to 98; while Bimpong Buta has also
expressed the view that “if by intention of the legislature for example, we mean the
intention of the majority of the promoters etc, we would in a number of cases, have to
contend with the multiplicity of intentions which might even be contradictory”. See Buta
@ 7-8.

Virtually the same arguments have been made against the view that promotes the intention
of the constitutional framers as the object of constitutional interpretation. See Larry
Simons (supra); see also Breast (supra).

All these difficulties led the master of the subject like Cross to conclude @ p. 24 of his
Statutory Interpretation (3rd ed) that the expression “legislative intention” as used by
judges etc, in relation to composite bodies, is meaningless unless it is recognized for what
it is, an expression used by analogy but in no way synonymously with the intention of an
individual concerning the general and particular effect of a document he prepares or signs.

Recently, there appears to have been some re-thinking on the subject. In his extremely
perceptive comments on the subject, Reid Dickerson has observed that several of the
aforementioned criticisms of the concept of subjective intention in relation to composite
bodies like the legislature are misplaced because there exists such a thing as the actual or
subjective intention of a composite body and that this is constituted by the general
consensus of the group regarding its general objectives in enacting particular legislation,
71
even though the views of members or participants in the process might vary in many
details. See: Reid Dickerson: Interpretation and Application of Statutes esp @ pp 72-74.
remarkably, these views are now acknowledged by scholars like Bennion in the 4 th edition
(2002) of his Statutory Interpretation @ 408.

Thus the real difficulty with the subjective intended meaning thesis in relation to
composite bodies will at the end of the day, not be so much the difficulty of determining
the actual intention of a composite body, but rather that such an intention might in several
cases not be discoverable at all on account of the inadequacy of the materials for
determining same. And even where discovered, might not solve many of the problems of
interpretation that might arise in relation to the particular legislature.

Fourthly, the subjective intended meaning thesis has been attacked by several scholars for
the reason that especially in relation to statutes and constitutions, it stills the meaning of
words in time. The meaning and effect that the word has, if this approach is right, is what
the speaker had in mind when he spoke and that will be the only meaning and effect for all
times.

Wednesday, November 09, 2005

In his Laws Empire, Ronald Dworkin points out in support of the criticism of the
subjective speaker’s meaning approach, that it assumes a canonical moment at which a
statute is born and as all and the only meaning it will have.
The view therefore runs into difficulties with the passage of time when the provisions
have to be applied to changing circumstances. Dworkin notes :

“The speaker’s meaning theory begins in the idea I said was the root of its troubles: that
legislation is an act of communication to be understood on a simple model of speaker and
audience, so that the commanding question in legislative interpretation is what a particular
speaker or group meant in some canonical act of utterance. Hence the catalogue of
mysteries I began by reviewing. Who is the speaker? When did he speak? What mental
state supplied his meaning? These mysteries are spawned by a single domineering
assumption: that their solutions must converge on a particular moment of history, the
moment at which the statute’s meaning is fixed once and for all, the moment at which the
true statute is born. That assumption has a sequel: that as time passes and the statute must
be applied in changed circumstances, judges are faced with a choice between enforcing
the original statute with the meaning it has always had, or amending it covertly to bring it
up to date. That is the dilemma old statutes are always supposed to present: judges must
choose it is said, between the dead and the legitimate hand of the past, and the distinctly
illicit charm of progress”.

In practice and indeed contrary to the implications of the speaker’s meaning view, the
courts often adopt an updating or ambulatory approach in statutes and constitutional
interpretation etc. and has often given language the contemporary meaning that takes
account of changing circumstances.
72
Barker v Wilson [1980] 1 WLR 884
Here application was made on behalf of a police officer Wilson, investigating a crime of
theft over 12-13 year period against Barker, to be at liberty inspect and take copies of
entries in the bankers’ books relating to the account of Barker with Barclays Bank. The
defence contended that the definition of “bankers’ books” in section 9 of the Banker’s
book Evidence Act 1879, did not include modern day microfilm and cheques. The trial
court adopted “robust common sense” to conclude that the section included microfilm,
which is the modern form process of producing bankers’ records. Barker appealed:

Held: Per Bridge LJ:

1. That it is a matter of common sense that microfilm is covered by section 9 of the
Act.
2. The Bankers’ Books Evidence Act 1879 was enacted with the practice of bankers in
1879 in mind. It must be construed in 1980 in relation to the practice of bankers as
we now understand it.
3. …..to include any form of permanent recored kept by the bank of transactions
relating to the bank’s business, made by any of the methods which modern
technology makes available, including, in particular, microfilm.

Derby & Co Ltd v Weldon [1]WLR 652

Here reference in order 24 of the old rules of the supreme court of England (to a
document) was held to include computer database).

The courts regularly apply a statutory provision to new developments in technology or

society which come within its original purpose and wording.

Royal College of Nursing of UK v. DHSS (1981) 1 AER 545.

Here the abortion act 1967 permitted the termination of pregnancy by a registered medical
practitioner in certain circumstances. At the time, only surgical and intra-amniotic
methods existed for termination of a pregnancy, and both required the continuous
presence of a doctor. However, since 1971, a new extra-amniotic method had become
current, which involved inducing the abortion over a long period of up to 30 hours by the
administration of a drug, prostaglandin. The Department of Health and Social Security
advised that as long as a doctor approved and initiated the process, a nurse could lawfully
continue it. The Royal College of Nursing sought a declaration that the advice was wrong
in law and that the Act did not protect the nurse in the application of extra-amniotic
methods.

Held:
The question to be answered was after all the steps have been taken by the nurse in
accordance with the doctor’s instructions, has the pregnancy been terminated by the
doctor, or by the nurse or by the doctor and the nurse. The 1967 law provided defence for
any one liable under the law “when a pregnancy is terminated by a registered medical
practitioner.”
73
(1) In interpreting an Act of Parliament it is proper, and indeed necessary, to have
regard to the state of affairs existing at the time. It is a fair that parliament’s policy
or intention, is directed to that state of affairs.
(2) When new state of affairs or a fresh set of facts bearing on policy comes into
existence, the courts have to consider whether they fall within the parliamentary
intention. They will be held to do so if they fall within the same genus of facts or if
there can be detected a clear purpose in the legislation which can only be fulfilled if
the extension is made.
(3) The courts should be less willing to extend expressed meanings if it is clear that the
act in question was designed to be restrictive or circumscribed in its operation rather
than liberal or permissive.
(4) They will be much less willing to do so where the new subject matter is different in
kind or dimension from that for which the legislation was passed.
(5) In any event there is one course which the courts cannot take under the law: they
cannot fill gaps; they cannot by asking the question, ‘what would parliament have
done in this current case, not being one in contemplation, if the facts had been
before it?; attempt themselves to supply the answer, if the answer is not to be found
in the terms of the Act itself.
(6) From the above the House of Lords held that the new method came within the
purpose of the act, designed to liberalize legal abortions.

Gammans v. Ekins (1950) 2 AllER 140.

By the Rent and Mortgage Act, it was provided that: ‘the expression ‘tenant’ includes the
widow of a tenant……. who was residing with him at the time of his death, or where a
tenant…… leaves no widow, or is a woman, such member of the tenant’s family so
residing as aforesaid as may be decided in default of agreement by the county court.’

The court held that the tenant’s ‘common law husband’ who had had no children by her
was not a member of her family within the meaning of the subsection in spite of a
prolonged residence with her

But in 25 years later Dyson Holdings Ltd v Fox (1976) QB 503, the same court held that
a tenant’s childless ‘common law wife’ who had been residing with him for a long time
when he died in 1961 was a member of his family. Bridge LJ held that:

‘If the language can change its meaning to accord with changing social attitudes, then a
decision on the meaning of a word in a statute before such a change should not continue to
bind thereafter, at all events in a case where the courts have constantly affirmed that the
word is to be understood in its ordinary accepted meaning”

The updating approach is also widely favoured in constitutional interpretation today.

See: Larry Simon (Supra), Brest (Supra); See Also

Regents of The University of California v Bakke, US SC 1972

74
The Medical School of the University of California at Davis (hereinafter Davis) had two
admissions programs for the entering class of 100 students - the regular admissions
program and the special admissions program. Under the regular procedure, candidates
whose overall under-graduate grade point averages fell below 2.5 on a scale of 4.0 were
summarily rejected. A separate committee, a majority of whom were members of minority
groups, operated the special admissions program. Respondent, a white male, applied to
Davis in 1973 and 1974, in both years being considered only under the general admissions
program.. After his second rejection, respondent filed this action in state court for
mandatory, injunctive, and declaratory relief to compel his admission to Davis, alleging
that the special admissions program operated to exclude him on the basis of his race in
violation of the Equal Protection Clause of the Fourteenth Amendment The trial court
found that the special program operated as a racial quota, because minority applicants in
that program were rated only against one another, and 16 places in the class of 100 were
reserved for them.
Held:
1. Racial classifications call for strict judicial scrutiny. Nonetheless, the purpose of
overcoming substantial, chronic minority underrepresentation in the medical profession is
sufficiently important to justify petitioner's remedial use of race. Thus, the judgment
below must be reversed in that it prohibits race from being used as a factor in university
admissions.

2. The language of 601, 78 Stat. 252, like that of the Equal Protection Clause, is majestic
in its sweep:

3. "No person in the United States shall, on the ground of race, color, or national origin, be
excluded from participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance."

4. The concept of "discrimination," like the phrase "equal protection of the laws," is
susceptible of varying interpretations, for as Mr. Justice Holmes declared,

5. "[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought
and may vary greatly in color and content according to the circumstances and the time in
which it is used."

Towne v. Eisner, 245 U.S. 418, 425 (1918). We must, therefore, seek whatever aid is
available in determining the precise meaning of the statute before us.

-Comments On This Case By Ronald Dworkin In His Article Titled “What Did Bakke
Really Decide?” In Ronald Dworkin: Matter Of Principle @ 304.

It has to be noted however that the updating approach might not be favoured or might be
inappropriate in certain situations of interpretation of documents-particularly unilateral
documents like Wills. Here, the subjective intention of the author(s) might often be
considered critical in its interpretation in preference to an updating approach.

75
As will soon be evident however, this is no reason to stick to the subjective intention
approach as the meaning of intention as the ultimate object of interpretation since virtually
the same results that would ensue from the application of the subjective meaning approach
would be achieved on an application of the purposive approach. There is therefore little
reason to hang on to the subjective meaning approach in spite of its obvious lapses.

Even so, it is to be pointed out that the courts are often compelled even in the case of
unilateral documents etc, to ignore the actual or the subjective mental state in order to
update the intention of the author or authors to reach a sensible result in interpretation.

In Re Amarteifio (decd.); Amarteifio v. Amarteifio [1982-83] GLR 1137

A will should be read together as a whole to realize the true intention of the testator and
the court must do what was right by giving the will its real meaning. Accordingly, where
the literal sense of the words would create an absurd situation they might be properly
discarded and modified.

Lord St. Leonard in Gray v. Pearson (1857) 10 E.R. said that:

". . . if I give to the words their simple meaning according to grammar and according to
their plain prima facie import, I defeat the intention, I hold that I am bound by every rule,
both of law and equity, to see whether I cannot give to them, by natural construction, an
import which will effectuate and not defeat the intention."

Accordingly, where the literal sense of words creates an absurd situation they may be
properly discarded or modified.

In sum, it should be evident from all the foregoing lapses that the definition of intention
as the object of interpretation in terms of the subjective or actual mental state of the author
or authors regarding the meaning of language used by them cannot afford a basis of a
coherent and adequate approach to interpretation of DSCs and therefore has to be rejected
in favour of other understandings of intention.

Intention in the Sense of the Objective Meaning of the Language Used in the DSC
Intention as the object of interpretation, is often also defined in terms of or as equivalent
to the objective meaning of the language used in the DSC in the particular context, i.e.
what the author(s) would objectively have been understood to mean in the particular
context by the language of the DSC. This objective meaning is to be determined from a
host of external sources and sometimes subjective factors if they can be ascertained in the
context. For the proponents of this view, the best interpretation is simply one that reflects
the objective meaning of the language used.

It is also important to add that proponents of this view of intention in effect presume that
the author(s) have said or put down exactly what they intended to say so that the objective
meaning of the language they have used expresses their intention.

The key point here however is that the intention of the author(s) of a DSC, is to be
objectively determined and might or might not factor in any subjective factors even
76
though in practice subjective factors where ascertainable would be taken in account both
in law and in ordinary parlance.

Indeed it has been said that the distinction between interpretation based on the subjective
intention of the author(s) on the one hand and the intention attributed to the author(s) on
the basis of the objective words used is in reality less clear cut “because in ordinary
language, when in doubt, we must do our best to make sense of what the author said in the
context appropriate to his speaking. We will require some knowledge of the author or
what he was trying to say in the particular circumstances.”

In effect, even under the objective meaning approach, we invariably often have to consult
subjective factors. Perhaps what has to be emphasized is that for the proponents of the
objective meaning thesis, even where the rules of interpretation require that subjective
factors be taken into account, these subjective factors (such as personal circumstances,
purpose of the author, etc) are taken into account only as some of the factors that
constitute the context of interpretation and not as conclusive or overriding factors. In other
words, for proponents of the objective meaning approach, subjective factors, even if taken
into account, are not inherently more important than the other contextual factors.

Cross on “the intention of Parliament @ 26-27

The intention to be attributed to the legislator is to be determined from the objective words
used, rather than from any subjective intentions which were not expressed in the text. In
ordinary language when in doubt, we must do our best to make sense of what the author
said in the context appropriate to his speaking, which requires some knowledge of the
author and what he was trying to say.
Thus one has to distinction between the subjective intentions of individual legislators or
the drafter and the objective intention which can be attributed to the words used, read in
the context of the purpose of the statute and various admissible materials.

Arguments based on ‘ordinary meaning’ or ‘purpose’ typically focus on the objective

meaning which can be attributed to a provision in the context of the usages of ordinary
language, how the provision fits into the rest of the law, or how the words relate to a
declared purpose.

Dreidger 4th ed pp 198-199.

As would soon be evident, this perhaps is the critical distinguishing factor between the
objective meaning approach and the purposive approach which not only takes account of
subjective factors as part of the context, but considers them as critical and overriding.

Tuesday, November 15, 2005

There exists several examples of this definition of intention as the objective meaning
attributed to the language of the DSC in the literature. Here the courts, lawyers, etc have
been at pains to point out rather than the subjective intention meaning.
77
In respect of interpretation of documents see for example:
Lewison: Interpretation of contracts (3rd ed) @ 22. where it is noted that:

“for the purpose of construction of contracts, the intention of the parties is the meaning of
the words they have used. There is no intention independent of meaning.”

See also Odgers: Construction of Deeds and Statutes (5th edn) @ 27 wherein it is noted
that in the construction of deeds the real question is:

“what does the deed mean? it must be noticed that this is not necessarily the same as what
did the parties intend when they executed the document. They are presumed to have
intended to say what they have in fact said, so that the words as they stand must be
construed. The question is not what did the parties intend to say-that is precluded by the
presumption that they have said what they intended to say. The question to be solved is
what have they said? What is the meaning to be attached to the expression they have
used?”

Monnypenny v Monnypenny (1861) 9 HLC 114 @ 146 per Lord Wensleydale:

1. “the question is not what the parties to a deed have intended to do by entering into
the deed,
2. but the meaning of the words used in the deed; a most important distinction in all
cases of construction the disregard of which often leads to erroneous conclusions.”

Great Western Railway v. Bristol Corporation (1918) 87 LJ Ch 414 per Lord Shaw:
1. “… one hears much use of the word intention, but courts of law when out on the
work of interpretation are not engaged upon the task or study of what the parties
intended to do;
2. but of what the language which they employ show that they did.
3. In other words, they are not constructing a contract on the lines of what may be
thought to have been what the parties intended, but they are construing the words
and expressions used by the parties themselves. What do these mean?
4. That when ascertained is the meaning to be given effect to, the meaning of the
contract to which the parties are bound.
5. The suggestion of an intention of parties different from the meaning conveyed by
the words employed is not part of interpretation, but is mere confusion”.

IRC v Raphael (1935) AC 96 per Lord Wright

A testator provided in his will for his children, the following clause that, if his child
should not have any child who should attain a vested interest then the child’s portion
should ”be dealt with as if such child had died in my life lifetime without leaving any
child living at my death.” The son as a beneficiary of the residual estate, also provided in a
settlement almost the same contents as in the will of his father. The son died without an

78
issue and intestate. The issue was whether the son had forfeited his interest under the
father’s will so that it was property passing on his death.

Held per Lord Wright:

(1) It must be remembered at the outset that the court, while it seeks to give effect to
the intention of the parties, must give effect to that intention as expressed, that is, it
must ascertain the meaning of the words actually used. There is often an ambiguity
in the use of the word “intention” in cases of this character.
(2) The word is constantly used as meaning motive, purpose, desire, as a state of mind,
and not as meaning intention as expressed.
(3) The words actually used must no doubt be construed with reference to the facts
known to the parties and in contemplation of which the parties must be deemed to
have used them: such facts may be proved by extrinsic evidence or appear in
recitals:
(4) again the meaning of the words used must be ascertained by considering the whole
context of the document and so as to harmonize as far as possible all the parts:
(5) particular words may appear to have been used in a special sense, which may be
technical or trade sense, or in a special meaning adopted by the parties themselves
as shown by the whole document.
(6) Terms may be implied by custom and on similar grounds.
(7) But allowing for these and other rules of the same kind, the principle of the
common law has been to adopt an objective standard of construction and to exclude
general evidence of actual intention of the parties
(8) The power of equity can generally obviate any hardship or injustice by reforming
the contract, in proper cases and on proper evidence that there has been a real
intention and a real mistake in expressing that intention, which can be established
generally by extrinsic evidence. The court will thus rewrite the clauses in order to
give effect to the real intentions. But that is not construction, but rectification.

However, as already noted, several of the proponents of the view of intention in the sense
of the objective meaning attributed to the terms of the document concede that subjective
intention of the party or parties- e.g. their subjective circumstances, purpose, etc may be
taken into account as part of the context in determining intention as expressed even
though, they do not often consider this as a critical or overriding factor.

Bekker No. v. Total South Africa (PTY LTD) (1990) 3 SA 159 per Kriegler J.
wherein he noted:

“the interpretation of a written document is not an exercise in the arcane. It is a logical

process in which the interpreter seeks to ascertain the intention of the draftsman as
embodied in the instrument. The mutual intention of the parties to a bilateral contract is of
course an abstraction. The primary method to find out what the abstraction was is to ask:
“what did the parties say?” this does not mean picking away at words like a guinea fowl
down a row of maize seed. One looks at the words used with common sense and
perspective”.
79
Mannai Investment Co. Ltd v. Eagle Star Life Assurance Society Ltd [1997] AC 749
@ 775.
The appellant was tenant under two 10-year leases of offices in Jermyn Street, each of
which contained in clause 7(13) a right to terminate at the end of the third year in the
following terms:
 
"The tenant may by serving not less than six months' notice in writing on the Landlord or
its Solicitors such notice to expire on the third anniversary of the term commencement
date determine this Lease and upon the expiry of such notice this Lease shall cease and
determine and have no further effect. . ."

After the grant of the leases the market rents of offices in the West End fell sharply. On 24
June 1994 the tenant served on the landlord two notices, each of which read as follows:
"Pursuant to Clause 7(13) of the Lease we as Tenant hereby give notice to you to
determine the lease on 12 January 1995." It is agreed that the third anniversary of the
commencement date was actually 13 January 1995.

Held per Lord Hoffman:

1. The question is whether notwithstanding this mistake the notices were effective to
terminate the leases. The Court of Appeal held that the notice was ineffective on the
simple ground that "12 January" could not mean "13 January."
2. The clause does not require the tenant to use any particular form of words. He must
use words which unambiguously convey a particular meaning, namely an intention
to terminate the lease on 13 January.

(1) I propose to begin by examining the way we interpret utterances in everyday life. It is a
matter of constant experience that people can convey their meaning unambiguously
although they have used the wrong words.
(2) We start with an assumption that people will use words and grammar in a conventional
way but quite often it becomes obvious that, for one reason or another, they are not
doing so and we adjust our interpretation of what they are saying accordingly.
(3) We do so in order to make sense of their utterance: so that the different parts of the
sentence fit together in a coherent way and also to enable the sentence to fit the
background of facts which plays an indispensable part in the way we interpret what
anyone is saying.
(4) In ordinary life it is said that we are concerned with what the speaker meant to say. He
may subjectively have intended to say something different from what he actually said
and it may be possible, by the kind of reasoning which described, to divine what his
subjective intentions were. But the law is not concerned with subjective intentions.
(5) All that matters is the objective meaning of the words which he has used. It is of course
true that the law is not concerned with the speaker's subjective intentions. But the
notion that the law's concern is therefore with the "meaning of his words" conceals an
important ambiguity.

80
(6) The ambiguity lies in a failure to distinguish between the meanings of words and the
question of what would be understood as the meaning of a person who uses words.
(7) It is of course true that the law is not concerned with the speaker’s subjective intentions
but the notion that the laws concerned is therefore with the “meaning of words”
conceals an important ambiguity.
(8) The ambiguity lies in the failure to distinguish between the meaning of words and the
question of what would be understood as the meaning of a person who uses words.
(9) The meaning of words as they would appear in a dictionary and the effect of their
syntactical arrangement as would appear in the grammar, is part of the material which
we use to understand a speaker’s utterance.
(10) But it is only a part; another part is our knowledge of the background against which
the utterance was made.
(11) It is that background which enables us not only to choose the intended meaning
when a word has more than one dictionary meaning, but also to understand a speaker’s
meaning, often without ambiguity when he used the wrong words.
(12) When, therefore, lawyers say that they are concerned, not with subjective meaning
but with the meaning of the language which the speaker has used, what they mean is
that they are concerned with what he would objectively have been understood to mean.
(13) This involves examining not only the words and the grammar but the background as
well.
(14) There was no need to resort to subjective meaning: the notice would objectively
have been understood to mean that the landlord wanted to terminate the tenancy on the
day on which he was entitled to do so.
(15) If compliance had to be judged by applying the ordinary techniques for interpreting
communications, there was strict compliance. The notice clearly and unambiguously
communicated the required message.
(16) To say that compliance must be strict does not explain why some other technique of
interpretation is being used or what it is. A variation of this explanation is to say that
the language of the notice must be strictly construed.
(17) But what does it mean to say that a document must be "strictly" construed, as
opposed to the normal process of ascertaining the intentions of the author? The
expression does not explain itself. If it operates merely by way of intensification, so
that the intention must be clear, unambiguous, incapable of misleading, then I think
that the notice in this case satisfied the test at that level
(18) It is, I think, to be found in an old rule about the admissibility of extrinsic evidence
to construe legal documents. In its pure form, the rule was said to be that if the words
of the document were capable of referring unambiguously to a person or thing,
(19) no extrinsic evidence was admissible to show that the author was using them to
refer to something or someone else.
(20) A variation on this rule was In re Fish [1894] 2 Ch. 83 in which the testator left his
residuary estate to his "niece Eliza." He had no niece called Eliza but his wife had an
illegitimate grandniece called Eliza, to whom the evidence of their relationship showed
that he must have intended to refer, and also, as it happened, a legitimate grandniece
called Eliza.

81
(21) The Court of Appeal said that the estate went to the legitimate grandniece and that
evidence of the relationship between the testator and the illegitimate grandniece was
inadmissible.
(22) Lindley L.J. said, at p. 85:  ". . . where the person most nearly answering the
description is the legitimate grandniece of the testator's wife . . . no evidence can be
admitted to prove that her illegitimate grandniece was intended."
(23) On the other hand, if there was no one to whom the description accurately applied,
there was said to be a "latent ambiguity" and evidence of background facts which
showed what the testator must have meant, notwithstanding that he had used the wrong
words, was admitted.

Quainoo v. New Zealand Breweries Ltd (1991) 1 NZLR 165. (CA).

“Often the words the parties use have only one meaning, and then there is unlikely to be
occasion to look outside the contract itself. But where the words are susceptible of more
than one meaning, even if one of them be an unusual meaning, the court is entitled to look,
indeed it must look, at the surrounding circumstances in order to ascertain from them if it
can, what the intention was.
This is quite different from listening to the parties’ version of what they each meant. A
contract must be construed objectively but not in disregard of its factual context and
purpose.

Similarly, it has been said that if possible, a Will has to be interpreted according to its
terms viewed in the light of the general circumstances surrounding the testator in order to
effectuate his intention. These authorities then insist that they cannot disturb the plain
meaning of the words and that the meaning of the testator must as much as it is possible,
be obtained from the four corners of the instrument.
Thomas Atkinson: Law of Wills (Horn Book Series P 807).

Several authorities in statutory interpretation also define legislative intention when posited
as the object of interpretation in terms of the objective meaning manifested by the
language used by the legislature. Thus Ronald Dworkin for example notes in his essay
Political Judges And The Rule Of Law that the question of the legislative intention in
statutory interpretation is not about the historical or subjective intention of the legislatures
but rather concern the meaning of words used by the legislature in a particular context.
Dworkin: Matter of Principle (3rd Edn @ Pp 9, 18-23).

Cross at p26 also defines legislative intention here in terms of

“the objective intention which can be attributed to the words used, read in the context of
the purpose of the statute.. (see cross p. 26).
Cross is also of the view that:

“ when the question is whether parliament did or not intend a particular result, the
intention of Parliament is what the words mean to a normal speaker of Parliament. (Cross
p. 28).

82
Black-Clawson Ltd v Papierwerke A. G. [1975] AC 591
The respondents, a German company, were sued by the appellants in Germany in respect
of dishounored bills of exchange. The action was dismissed as being time-barred without
any inquiry into the merits. The Germany period of limitation is shorter than in England
and the appellants now seek to raise the same question in England. The main issue in the
case was whether a Section 8 of the Foreign Judgments [Reciprocal Enforcement] Act
1933, entitles the respondents to rely on the German judgment as conclusive on the merits.

Held:
Per Lord Reid:
1. In this case it is unusually important to consider as aids to construction all other
material which the law allows us to look at.
“We often say that we are looking for the intention of Parliament, but that is not quite
accurate. We are seeking the meaning of the words which Parliament used. We are
seeking not what Parliament meant, but the true meaning of what they said”.
2. In the comparatively few cases where the words of a statutory provision are only
capable of having one meaning, that is the end of the matter and no further inquiry is
permissible. But certainly did not apply to the section 8. One must first read the words
in the context of the Act read as a whole, but one is entitled to go beyond that.
3. The general rule in construing any document is that one should put oneself “in the
shoes” of the maker or makers and take into account relevant facts known to them
when the document was made.
4. The same must be applied to Acts of Parliament subject to one qualification. An Act is
addressed to all the lieges and it would seem wrong to take into account anything that
was not public knowledge at the time. That may be common knowledge at the time or
it may be some published information which Parliament can be presumed to have had
in mind.

Per Lord Simon of Glaisdale

5. Courts of construction interpret statutes with a view to ascertaining the intention of
Parliament expressed therein.
6. But as in interpretation of all written material, what is to be ascertained is the meaning
of what Parliament has said and not what Parliament meant to say.
7. Interpretation cannot be concerned wholly with what the promulgator of the written
instrument meant by it. Interpretation must also be frequently concerned with the
reasonable expectation of those who may be affected thereby.
8. This is clearly seen in interpretation of contracts where it has long been accepted that
the concern of the court is not so much with the subject-matter of the consent between
the parties (which may, indeed, exceptionally , be entirely absent) as with the
reasonable expectation of the promise. So too in statutory construction, the court is not
solely concerned with what the citizens , through their parliamentary representatives,
meant to say; it is also concerned with the reasonable expectation of those citizens who
are affected by the statute, and whose understanding of the meaning of what was said is
therefore relevant.
9. The sovereignty of Parliament runs in tandem with the rule objective law.

83
10.It is rare indeed that a statute can be properly interpreted without knowing what was
the legislative objective.
11.At the very least, ascertainment of the statutory objective can immediately eliminate
many of the possible meanings that the language of the Act might bear; and if an
ambiguity still remains, consideration of the statutory objective is one of the means of
resolving it.
12.The statutory objective is primarily to be collected from the provisions of the statute
itself.
13.Therefore the long title need not only be resorted to in case of ambiguity,, but it is the
plainest of all the guides to the general objectives of a statute.
14.But it will not always help as to particular provisions. Therefore consideration of the
legislative objective is available and required, not only to place a court of construction
in the shoes of the draftsman, but also to resolve any ambiguity: see Maunsell v Olins.
15.There is a presumption against a change in terminological usage. Thus it is a sound rule
of construction to give the same meaning to the same words occurring in different parts
of an Act of Parliament.

The situation also appears to be no different in the context of constitutional interpretation.

Hence several scholars have equated the intention of the framers with the meaning of the
constitutional language objectively determined. Hence a number of these scholars
although they assert the intention of the framers as the authoritative source of meaning of
constitutional provisions, have also often maintained that the judge or judges in
constitutional interpretation can only come to a reasonable understanding of the intent of
the framers by following the plain language of the constitutional provision and by taking
account of the proceedings as well as the social and legal context etc surrounding its
adoption.

Moneghan: Our Perfect Constitution. 1981 56 Nyu Law Review 353.

It should be evident from the foregoing that the key difficulty with the definition of
intention in terms of the objective meaning of the language used in a particular context is
essentially that it tends to treat intention as the object of interpretation as a synonym for
the objectively determined meaning of the language of the DSC in context and
consequently, discounts or sometimes even denies altogether the critical sense in which
intention of the authors of a DSC is properly posited as the object of interpretation,
namely, as a standard conclusive, critical, or overriding factor in the determination of the
MSE of the language used.

In other words, by treating intention as synonymous with objective meaning, intention

ceases to be a standard or overriding factor in the determination of the MSE of the
language used, since it is only one of several factors of the context. Intention thus defined,
then ceases to be the object of interpretation.
Undoubtedly, when it is for example said of intention, that it is the soul of a document, or
that statutory interpretation has to effect the will or intention of the legislature etc, the
point cannot simply be that the interpreter must objectively determine the meaning of the
84
language used, using the appropriate rules of interpretation in the legal system. The
emphasis on intention is to afford a certain standard critical or overriding factor in the
interpretive process.

Intention thus properly defined, is not merely to be taken into account at all stages of the
interpretive process, but more importantly, provides a critical standard for resolving
conflicts, ambiguities, absurdities, etc in the interpretive process.

It is this role of intention as a critical or overriding factor for interpreting issues that is lost
when intention is objectively defined as objective meaning attributed to the language used.
And here, it has to be mentioned that the objective definition of intention evolved largely
in denial of the warring thesis that the object of interpretation is to give effect to the
subjective intention of the author(s). The point of the objective meaning approach is
therefore to insist that interpretation of DSCs should be based largely on the text or
objective words used. In stating this position however, the proponents moved to the other
extreme which appeared to discount the critical rational underlying intention as the object
of interpretation.

Without doubt, we have to ensure that we do not here throw the baby away with the
bathwater. There is of course no doubt that when one is confronted with an interpretive
problem in practice and the question is asked as to what the intention of the author(s) was
on a particular occasion, the answer (even if the subjective intention approach proves
inadequate) could simply not be the objective meaning of the language used.

The right answer apparently lies somewhere between the two opposing approaches. This
is what is provided in the third view of intention in terms of the meaning of a DSC which
effectuates the aim(s), object(s) purpose(s) of the author(s) of a DSC.

Wednesday, November 16, 2005

Intention in the Sense of MSE of Language of DSC

Which Effectuates the Object(s) Or Purpose(s) of the Author(s):

Herein also of the Modern Purposive Approach to Interpretation

The implication here is that the best interpretation is one that reflects the purpose(s) of the
author(s) of a DSC in making the DSC or part thereof. This approach, as will soon be
shown is without doubt the dominant definition of intention in Ghana today i.e. where
intention is posited as the object of interpretation.

Purpose in this context could refer to either the immediate actual or direct purpose(s) of
the author(s) in enacting a DSC or part thereof or the general or ulterior purpose(s) in the
sense of the broadly defined policy consideration or goals underlying the making of a
DSC or part thereof.

85
It has to be noted right at the outset that the view of intention as purpose and its place as
the overriding factor in interpretation has deep historical roots (see for example Heydon’s
Case) but has been consistently updated over the years.

Cross on The Purposive Approach

Driedger: Construction Of Statutes, 3rd Ed Chp 2 Esp Pp 37-38.

Under this approach the purpose(s) of the author(s) if ascertained, is considered a regular
part of interpretation and could be relied on at all stages of the interpretive process, not
just those in which there is ambiguity or absurdity. Account is to be taken of the purpose
of the DSC or part thereof even in determining whether or not the language of the DSC is
clear in the first instance and not only at the latter stage.

Driedger Pp 38-39; Cross: Pp 54-59.

A-G v. Prince Augustus Of Hanover [1957] AC 436 [Supra]

Per Cross: The significance of the speeches in the Hanover case lies in their recognition
of the fact that the purpose is something to be taken into account in arriving at the
ordinary meaning of a provision and not, as the words of Tindal CJ in the Sussex Peerage
Case suggest, merely something considered

1. ‘if any doubt arises from the terms employed by the legislature’.
2. The purpose of the statute is also very relevant in the resolution of doubt where the
courts are confronted with a choice between ordinary meanings, or a choice
between the primary and secondary meaning of a word.
3. Thus the purpose is material at two stages of the judge’s deliberations-first when he
requires whether the words are ‘in themselves precise and unambiguous’, and
second when, having answered that question in the negative, he seeks o resolve the
doubts arising from the terms employed by the legislature.
4. Certainly in relation to the first case, and quite often in relation to the second, the
judge will rely on an obvious or unresearched understanding of the purpose of the
statute.

Mansell v. Olins [1975] AC 373 @ 385. [supra]

More importantly, intention as purpose offers a critical standard or overriding factor for
resolving interpretive disputes. E.g. ambiguities, absurdities, etc and it is respectfully
submitted that this understanding of intention offers a basis for a more comprehensive
approach to interpretation which avoids most of the pitfalls associated with the subjective
and objective meaning approaches discussed above.
There are again several examples of the use of intention in the sense of purpose in the
literature on interpretation of documents. Here the courts have increasingly come to accept
central or critical importance of the intention of the author(s) in the sense of purpose and
as between competing interpretations have often selected the meaning etc which best
serves the purpose of the document.
86
The reliance on intention in the sense of purpose is most pronounced in interpretation of
wills or in the interpretation of unilateral documents like wills. In the interpretation of
wills, the courts have often held that however strong or appealing the argument for more
objective standards might be in the case of contracts etc, the words of a will should as
much as possible be given the meaning that the testator could be held to have given them
in the particular context having regard to its purpose and that the court must put itself in a
testator’s armchair so as to see what he knew, liked, disliked, etc at the time he made his
will and thereby to arrive at an interpretation that will best reflect his purpose or his object
of purpose.

In Re Amarteifio (Dec’d) Amarteifio v. Amarteifio. [supra]

In Re Dadzie (Dec’d) Dadzie v. Addison.

In the interpretation of commercial contracts etc, the courts now often consider the
commercial purpose of the contract as overriding.

Glynn v. Margetson & Co [1893] AC 351 per Lord Halsbury L.C.

Here the question arose as to the construction to be put on a bill of lading by which the
shippers agreed to carry oranges of the respondents. The oranges were shipped at Malaga
and the bill of lading was in these terms: ‘Shipped in good order and condition’ ‘in and
upon the good steamship called the Zena, now lying in the port of Malaga , and bound for
Liverpool. Eight third cases oranges’ ‘with liberty to proceed to and stay at any port or
ports in any rotation in the Mediterranean,….’.

The port to which the vessel proceeded after she left Malaga was not in the direction of
Liverpool, but in the contrary direction, taking her farther away from her contracted
destination. Due to delay over the long voyage, the cargo of oranges were damaged, her
the action. The shipowner justifies his voyage by the last provision as terms of the
contract.

Held per Lord Halsbury LC:

1. In construing this document, which is a contract of carriage between the parties, one
must in the first instance look at the whole of the instrument and not at one part of it
only.
2. Looking at the whole of the instrument and seeing what one must regard as it main
purpose, one must reject words, indeed whole provisions if they are inconsistent
with what one assumes to be the main purpose of the contract.
3. Thus the main purpose of the contract was to take on board at one port and to
deliver at another port a perishable cargo.
4. Citing Robertson v French [1803] 4 East per Lord Ellenborough: that one part
of a document [formal part] may be relied upon as controlling and cutting down the
generality of the words in the other parts [ordinary parts].

87
 5. That the rule which applies to all instruments is that an instrument is to be construed
according to its sense and meaning as collected in the first place from the terms
used in it, which terms are themselves to be understood in their plain, ordinary and
popular sense unless they have generally in respect to the subject-matter, as by the
known usage of trade or the like, acquired a peculiar sense distinct from the popular
sense of the same words, or unless the context evidently points out that they must,
in particular instance and in order to effectuate the immediate intention of the
parties to that contract, be understood in some other special and peculiar sense.
6. That consideration must be given to whether mercantile men when they do business
in this form do not recollect that a business sense will be given to business
documents, and that therefore they are not under peril of leaving it absolutely to the
ship-owner himself to do what he will with the cargo.
Therefore the contract must not be construed so as to defeat the main object and intent of
the contract, which was to carry the oranges from Malaga to Liverpool; that the liberty
must be restricted to ports which were in the course of the voyage.

Antaios Cia Naviera Sa v Salen Rederierna AB [1985] AC 191 per Lord Diplock
wherein he notes :

“while deprecating the extension of the use of the intention (purposive construction) from
the interpretation of statutes to the interpretation of private contracts… I take this
opportunity of restating that if a detailed semantic and syntactical analysis of words in a
commercial contract is going to lead to a conclusion that flouts business common sense, it
must be made to yield to business common sense”.

MFI Properties Ltd v DICC Group pension Trust Ltd [1987] 1LR 230
in which Lloyd L.J described the problem of construction as

“designed to separate the purposive sheep from the literalist goats”.

There are also several examples of the use of intention in the sense of purpose in statutory
interpretation. Lord Denning, one of the foremost proponents of the purposive approach
to interpretation provides an instructive example of this sense of intention at page 98 of
his Closing Chapter as follows (see Buta 277)

“the judges always say they look for the intention of the legislature. That is the same thing
as looking for its purpose. They do it in this way: they go by the words of the section. If
they are clear and cover the situation in hand, there is no need to go further. But if they are
unclear or ambiguous or doubtful, the judges do not stop at the words of the section. They
call for help in every direction open to them. They look at the statute as a whole. Look at
the social conditions which gave rise to it. They look at the mischief which it was passed
to remedy. They look at the factual matrix. They use every legitimate aim”.

88
Jodrey’s Estate v The Province of Nova Scotia & AG of British Columbia [1980] 2
SCR 744
Per Dickson J notes @ 807:
“the correct approach applicable to statutory interpretation generally, is to construe the
legislation with reasonable regards to its objects and purpose and to give it such
interpretation as best ensures the attainment of such object and purpose”.

R v Z (Da) Richard v Zaccheus [1992] 2 SCR 1025

@ 1042 per Lamere CJ

“In interpreting an Act, the express words used by Parliament must be interpreted not only
in their ordinary sense but also in the context of the scheme or purpose of the legislature..
The court of appeal properly proceeded on this basis when it stated that the best approach
to the interpretation of words in a statute is to place upon them the meaning that best fits
the object of the statute …”.

Thomson v Canada (Minister of Agriculture) [1992] 1 SCR 385

wherein it was noted @ 416 “a judge’s fundamental consideration in statutory

interpretation is the purpose of legislation.”

The purposive approach as previously noted, is undoubtedly the dominant approach to

statutory interpretation in Ghana and has featured in a number of local authorities. See
BUTA PP 279 ff.

Eshun v Poku [1989-90] 2 GLR 572

Here Article 9 of the constitution of the National Association of Hoteliers provided
that the national officers of the association “shall be elected at the annual general meeting
by a secret ballot of the members present and voting”. However the candidates were return
unopposed at such a meeting and declared duly elected without elections. The issue was
were they elected in contravention of their own constitution.

Held per Lutterodt LJ as he then was:

1. In the interpretation of statutes, we give the statute its ordinary meaning.
2. This no doubt is the right procedure if it leads to no absurdity; otherwise, reading
the bare words, giving them their grammatical, literal meaning would kill the spirit
of the law rather than give life. The modern approach is to apply the purposive
approach as expatiated by Lord Denning M.R. in the case of:

Nothman v. Barnet London Borough Council [1978] 1 W.L.R. 220, C.A.

3. In this case the Employment Board adopted the literal meaning of words to exclude
a female teacher from continuing in employment until age 65, on the basis that she

89
 was a woman. In that case the employment appeal tribunal had felt themselves
helpless and bound by a legislation they nevertheless considered unjust and absurd.
4. They stuck to the literal grammatical meaning of the statute. Lord Denning M.R.'s
view on their approach to interpretation of statutes (after he has quoted what the
tribunal had said) was at 228:
a. “I have read the passage at large because I wish to repudiate it. It sounds to
me like a voice from the past. I heard many such words 25 years ago. It is
the voice of the strict constructionist . . .
5. It is the voice of those who adopt the strict literal and grammatical construction of
the words, heedless of the consequences. Faced with glaring injustice, the judges
are, it is said, impotent, incapable and sterile. Not so with us in this court.
6. The literal method is now completely out of date. It has been replaced by the
approach which Lord Diplock described as the ‘purposive approach’ . . .
7. In all cases now, in the interpretation of statutes, we adopt such a construction as
will 'promote the general legislative purpose' underlying the provision. It is no
longer necessary for the judges to wring their hands and say:
8. 'There is nothing we can do about it.'
9. Whenever the strict interpretation of a statute gives rise to an absurd and injust
situation, the judges can and should use their good sense to remedy it by reading
words in, if necessary, so as to do what parliament would have done, had they had
the situation in mind.”
10.While this case dealt with an Act of Parliament there is not doubt that the principle
can be applied to the interpretation of the constitution of an association whenever
any issue arises on the interpretation of any of its provisions.
11.So His Lordship said it would be absurd to hold that the proper construction of
article 9 (d) is that the association must go through the rituals of a secret ballot
where a candidate is returned unopposed.
12.On the contrary, the correct interpretation to be placed on this article of the
constitution is that where a candidate is returned unopposed, he shall be declared
elected by a simple majority.

Appiah v. Biani [1991] 1 GLR 155. (BUTA 282).

The deceased died leaving an uncompleted building as one of his possessions. When his
widow, the plaintiff sought to have that building vested in her and their children, the
defendant, the deceased mother, opposed it. Consequently, the plaintiff issued an
originating summons for the determination, inter alia, of the issues whether upon the true
construction of section 4 of the Intestate Succession Law, 1985 (PNDCL 111) an
uncompleted house was a house and whether deceased's should devolve on the plaintiff
and their children.
Held per Lutterrodt: .
1. Actually the problem raised here is simply not what is meant by a house but
whether an uncompleted house is a house.
2. This leads us to the vexed question of interpretation of statutes.
3. I have no decided case to help me on this issue of whether or not an uncompleted
house is a house but by using the general principle of interpretation of statutes, I
hope to resolve the issue.
90
 4. The general principle which I would bow to is that we give the words their ordinary
meaning. And where they are plain and obvious the interpretation of the law raises
no problem.
5. But then the real problem is where an absurdity or ambiguity arises. In such cases,
it is a wrong principle to limit one's self to the bare reading of the words, giving
each word the mechanical or grammatical meaning.
6. The solution would lie rather in going into the mischief which gave birth to the
statute or what right it did try to confer. If we do not adopt this approach but the
strict constructionist approach we shall find the letter of the law not giving life
though it exists for the living but find that it kills. When we look at the spirit of the
law, however, we find out that it gives life.
7. Denning LJ (as he then was) has so ably put these thoughts that I have expressed in
the case of Seaford Court Estates Ltd v Asher [1949] 2 KB 481 at 498-499, CA that
I would reproduce the relevant passage here:
8. "Whenever a statute comes up for consideration it must be remembered that it is not
within human powers to foresee the manifold sets of facts which may arise, and,
even if it were, it is not possible to provide for them in terms free from all
ambiguity………. when a defect appears a judge cannot simply fold his hands and
blame the draftsman.
9. He must set to work on the constructive task of finding the intention of Parliament,
and he must do this not only from the language of the statute, but also from a
consideration of the social conditions which gave rise to it, and of the mischief
which it was passed to remedy, and then he must supplement the written word as to
give `force and life' to the intention of the legislature: . .”
10.I intend to use the purposive approach for the interpretation of the word as used in
this legislation.
11.Now if I adopt the strict grammatical, literal and lifeless interpretation I would find
myself saying that because a house has been interpreted in the Chambers's Short
Dictionary as "a building for dwelling in, a dwelling place" an uncompleted
building would not be a house.
12.However, in adopting the purposive approach, it becomes obvious that an
uncompleted house is a house within the meaning and intendment of the law.

In Re Armah (Dec’d) Armah v. Armah [1991] 1 GLR 140 (HC); [1991] 2 GLR 53
CA.
The deceased who was married to the defendant under the Marriage Ordinance, Cap. 127
(1951 Rev.) died intestate in 1980. In June 1986 the plaintiff, the son of the deceased,
applied for letter of administration in respect of the deceased's estate. The defendant, his
lawful widow, resisted the application and caveated. The issue which fell for
determination was whether Cap. 127 or the Intestate Succession Law, 1985 (P.N.D.C.L.
111) was applicable to the action since, even though the deceased had died in 1980, the
action was commenced in 1986, i.e. after the promulgation of P.N.D.C.L. 111. The court
found on the evidence that the relationship between the parties was very acrimonious.
Held: Lutterodt J.
The modern trend in the interpretation of statutes is not the strict literal and grammatical
interpretation, but what has come to be known as the “purposive approach.” The latter
91
gives life while the former kills. I am, after reading those English authorities, more
attracted to the modern method of interpreting statutes than the literal interpretation. And
therefore, I would, in interpreting this section, apply the purposive approach. I would ask
why the need for this new legislation. Was the old law inadequate? If yes, what was this
new Law intended to remedy? In so doing, I have looked at the memorandum for guidance

Since it was clear from the memorandum on P.N.D.C.L. 111 that the object of section
21(2) was to give expression to the concern of the courts which had constantly lamented
their impotence to remedy the customary law which they had often considered to be
unjust, the legislature would not in the circumstances limit their concern to only cases
physically pending before the courts. Accordingly, a liberal construction would be offered
for section 21(2) of P.N.D.C.L. 111 and it would be interpreted to include cases which
were commenced after the promulgation of P.N.D.C.L. 111 as also pending before the
courts, especially since it should be borne in mind that at that time the old laws had been
repealed.

In Re Sackey (Dec’d) Ansaba v. Imbeah [1992] 1 GLR 214

The deceased, Amos Ekow Sackey died 1981 and was survived by a wife, the first
plaintiff and nine or ten children, eight of whom he had by the first plaintiff. The second
defendant was appointed the deceased’s customary successor. The first defendant belongs
to the deceased’s Twidan family and the second plaintiff is one of the children the
deceased had by the first plaintiff. The plaintiffs claimed, against the defendants, an order
that the distribution of the estate of Amos Ekow Sackey (deceased) was caught by the
Intestate Succession Law, 1985 (P.N.D.C.L. 111

The questions that arose were these: (i) Did P.N.D.C.L. 111 affect intestate estates which
were not distributed at the time this Law came into force? (ii) Was the estate of the
deceased distributed at the time P.N.D.C.L. 111 came into force?
. The transitional provisions are contained in section 21 (1) which relevantly provide:
“21.(1) Notwithstanding the provisions of section 1 of this Law or any other enactment the
provisions of this Law shall be applicable in the settlement of any claim or adjudication
pending before the Court or a Chief or Head of Family under customary law at the
commencement of this Law in respect of the administration or distribution of the estate of
an intestate who died before such commencement . . .”

Held per Benin J [‘Strict Constructionist’]:

1. It has been said very often that so long as the estate was not distributed when the Law
came into force, its transitional provisions would apply The fact that the estate had not
been distributed does not mean that a claim or adjudication was pending.
2. By a "claim" it is to be understood in the sense that somebody interested in the estate
had instituted an action before a court, a chief or the head of family. "Action" includes
a complaint, issue of a writ or summons or call for arbitration aimed at administering
or distributing the estate.
3. By "adjudication" is meant that such action was pending and a decision was yet to be
taken on it. It is clear that as at 1985 there was no claim, action or adjudication
pending before any court in respect of the estate of Amos Sackey.
92
4. So long as the family took over the house and appointed a successor to be in charge of
it for and on behalf of the family, distribution thereof, even if it was required, was
complete.
5. The plaintiffs’ claim is therefore misconceived. The property became family property
upon the death intestate of Amos Sackey; the only right available to the surviving wife
and children is the right of occupancy for their life only. They could not claim this
house for themselves since at the time of death the estate devolved solely under
customary law.

Badu v. Sah [2000] 2 GLR per Owusu Ansah J.A.

The purposive analysis is also considered paramount in constitutional interpretation.

See Brest (Supra).

Tuffuor v. A-G [1980] Glr 637@ 647 -648 Per Sowah JSC
1. There the court said, a written Constitution embodies the will of a people. Its spirit,
mirrors the people's history, aspirations and hopes for the future, and is accordingly
a pivoting landmark in their search for progress.
2. Its language, therefore, must be considered as if it were a living organism capable of
growth and development...
3. A broad and liberal spirit is required for its interpretation. It does not admit of a
narrow interpretation. A doctrinaire approach to interpretation would not do. We
must take account of its principles and bring that consideration to bear, in bringing
it into conformity with the needs of the time.
4. And so we must take cognisance of the age-old fundamental principle of
constitutional construction which gives effect to the intent of the framers of this
organic law. Every word has an effect. Every part must be given effect.

NMC v Attorney-General [2000] SC GLR 1

Action by the National Media Commission invoking the jurisdiction of the SC for a
declaration that on a true and proper interpretation of the Constitution, specifically Art 168
& 195(1), the power to appoint the chairmen and members of the bodies governing the
state-owned media including the CEO was vested in the NMC, the plaintiffs, acting in
consultation with the President and not the President either acting alone or in consultation
with any other body

Held: Per Acquah JSC:

1. 1.We are dealing with our National Constitution and not an ordinary Act of
Parliament.
2. It is document that expresses our sovereign will and embodies our soul. In
interpreting the constitution care must be taken to ensure that all the provisions
work together as parts of a functional whole.
3. The parts must fit together logically to from a rational, internally consistent
framework. And because the framework has a purpose, these are also to work
together dynamically, each contributing something towards accomplishing the
intended goal.
93
 4. Per Atuguba JSC: Whether on the application of traditional common law rules of
construction or on the broader, purposive and non-technical approach advocated for
the construction of a Constitution, the plaintiffs’ action succeeds.

This is known in interpretation as the purposive approach.

Asare v. A-G per Kludze JSC [supra]

who perceptively espouses purposive analysis.

Amuzu v Oklikah [1998-99] SCGLR 141

It is provided by section 24(1) of the Land Registry Act, 1962 (Act 122), that:

“24.1 Subject to sub-section 2 of this section an instrument other than

(a) a will,or
(b) a judge’s certificate;
first executed after the commencement of this Act shall be of no effect until it is
registered.”

In this case the CA per Brobbey JA lamented that section 24 of Act 122 facilitates fraud
and was therefore hash and unconscionable and required the legislature to review it. At the
SC per Aikins JSC, at page 158 held that:

1. It is incumbent upon this court to so interpret it as to avoid any absurdity, injustice

and hardship, and not to desperately put its hands up and do a hand’s turn but
simply seek consolation in legislative amendment.
2. After all we construe the words of the section according to the ordinary canon of
construction, that is to say, by giving them the ordinary meaning in the English
language as applied to such a subject-matter, unless some gross and manifest
absurdity or injustice or hardship would thereby be produced.
3. The more literal construction of section 24(1) ought not to prevail, if it is opposed to
the intentions of the legislature as apparent by Act 122, and “if the words are
sufficiently flexible to admit of some other construction by which that intention will
be better effectuated,”..”

From a study of the relevant text and case law authorities, it is evident that the purposive
approach to interpretation is constituted by a number of key propositions which include
the following:
(1) All DSCs are presumed to have a purpose(s) and that it is possible for the courts to
discover or adequately reconstruct this purpose(s) through interpretation.
(2) The purpose(s) of a DSC or part thereof should be taken into account in every case
and at all stages of interpretation including the determination of ordinary meaning.
(3) Other things being equal, interpretations that are consistent with or promote the
purpose of the author(s) of a DSC should be preferred and interpretation that defeats
or undermines the purpose(s) of the author(s) should be avoided. Driedzer @ 195.

94
In practice the purpose(s) of a DSC is established either directly or indirectly. The direct
approach involves reliance on express descriptions of purpose found in the text of the dsc
itself, history of the dsc, or in academic or other sources for example preambles, purpose
statement, hansard etc etc. while the indirect approach relies on inferences drawn by
interpreters based on the reading of the dsc in context (including the scheme of the DSC,
material conditions existing when it was made, subsequent amendments etc) and in the
light of the beliefs, values etc prevalent at the time of the making of the DSC or part
thereof.

Hence even in the absence of relevant express descriptions or purpose issuing from the
DSC or any authoritative source, the interpreter could still make plausible inferences as to
the purpose of the DSC on the basis of assumptions not only about the particular speaker,
but equally about the world: how things work; which effects flow from which causes;
which effects are desirable; what makes sense; and the values etc prevailing in a particular
society. Driedger refers to these assumptions relied on in establishing or making plausible
inferences as to the purpose etc of a DSC or part thereof as “the norms of plausibility”.
See Driedger 4th edn@ 212.

Here suppose for example that the legislature enacts laws for a vehicle driving about
60mph in the vicinity of a basic school. Even with no additional information, one might
plausibly conclude that: it was to protect kids from dangers (b) it was based on our
knowledge of children (c) it reflects our value of respect for human life. These
assumptions make it possible to assume for example that the legislature passed the law
because it did not like drivers of vehicles.

And clearly, although the methods are to some extent speculative, a proper consideration
of the norms of plausibility, which like the conventions of language are widely shared by
members of the community, could ensure that the court or interpreter attributes to the DSC
in most cases only purposes that are rational and appropriate in the circumstances. Hence
the courts in practice rely on these assumptions or norms to infer or reconstruct the
purpose(s) of a DSC.

The principal strength of the approach that defines intention when posited as the object of
interpretation in terms of the purpose(s) of the author(s) lies in the fact that it has most of
the pluses of the other approaches or definitions of intention as the object of interpretation
but avoids most of their weaknesses.

Unlike the subjective intention thesis for example, the purposive approach does not suffer
from the limitation that it inter alia proffers a faulty speaker’s meaning approach to
interpretation or that it does not reflect the way the meaning of language is determined in
practice or that it stills the meaning of words in time. Clearly, under the purposive
approach, meaning of the language of DSCs can be updated to reflect interpretations that
reflect the purposes of the author or authors in the circumstances.

Besides, under the purposive approach, unlike the objective meaning approach, the
purpose of the DSC is not just one of several factors of the context to be taken into
95
account in interpretation but affords a standard for resolving interpretive issues. The
purposive approach is in practice a more useful guide to solving interpretive problems.

The purposive approach is however not without its own limitations and has been attacked
by several scholars.

Friday, November 18, 2005

It has for instance been argued by critics that it is wrong to assume always that every DSC
or part thereof has some underlying purpose(s) which could be ascertained to aid its
interpretation. It is here contended that a statute for example, may not have a discernable
purpose beyond what the statute itself expressly reveals and immediately effectuates and
that in such a circumstance, its interpretation cannot realistically turn on the purpose(s) of
the statute or legislation. On this kind of attack on purposive approach.
Radin: A Short Way With Statutes 1942, 56 Harvard Law Review 388 @ 423.

Furthermore, it has often been contended by critics that even where the purpose(s) are
clearly indicated, in for example a preamble or purpose clause, or from some external
indicator or source, it is often stated at such a broad level of generality that they tend to be
vague which often destroys most of their usefulness in solving specific interpretive
problems. Besides, it is said that there are often a multiplicity of purposes which may even
be conflicting or may not reflect a neat and logical hierarchy. The court or interpreter is
then called upon to rank and balance these purposes one way or the other since DSCs
often do not set out instructions for doing these.

It is also often contended that when a court or interpreter is in such circumstances

compelled to presume the relevant purpose(s) of a DSC beyond what is expressly or
impliedly revealed, there is always the danger of the court or interpreter attributing to the
DSC a purpose of its own contriving or search for the actual purpose so relentlessly that it
goes beyond the limits of appropriate available evidence. With the interpretation of
statutes and constitutions in particular, it is said that there is always the danger of the court
or interpreter inventing “fictitious and fanciful” purposes and thereby indulging
unacceptable judicial law making.

As Dickerson notes at page 195 of his Interpretation And Application Of Statutes, in

such circumstances, the concept of legislative purpose for example, despite its frequent
usefulness,

“provides a strong temptation to perform the bootstrap operation of formulating a

legislative purpose with one eye on the situation to which it is to be applied”.
Dickerson Chapt 8 P. 95-102.
Radin: The Short Way With Legislation (Supra).

Finally, it has also been argued that even where the purpose or purposes of the author(s) is
known, the link with the meaning of the language used in the DSC might not be evident.
96
Hence scholars like Gerald MaCullum Have consequently emphasized the need to
always distinguish questions about the purpose or object of legislation for example, from
questions about the meaning of statutory language. See his article Legislative Intent, 75
Yale Law Journal, 754 @755-758.

However, the foregoing criticisms of the purposive approach appear to a large extent, to
be misplaced. As already noted, even in cases where the purpose(s) of a DSC is not
expressly indicated in a preamble, purpose statement or some legitimate external source,
etc, the court or interpreter could still infer or reconstruct same from the text in its
immediate context, taking account of the norms of plausibility including inter alia,
assumptions about how the world works, about cause and effect, about the values
prevalent in a particular society, etc. consideredly , this enterprise does involve some
amount of speculation and there is no doubt that purposive analysis gives judges
considerable freedom in formulating descriptions of the purpose(s) of author(s) of a DSC
etc and to balance these purposes, but there is no doubt that when the task of interpretation
is pursued within the limits set out by the norms of plausibility; the appropriate limits of
judicial activism and or judicial legislation one can have quite sensible control over the
amount of speculation and judicial legislation entailed in purposive analysis. It is to be
added that contrary to the criticisms, the purpose of a DSC is easily discernible in most
cases.

Clearly also, scholars like Maccullum misunderstand the sense in which it is said that
purpose is related to meaning. The argument of the proponents of purposive analysis is
certainly not that without purpose we cannot understand language. It is rather that, like in
ordinary parlance, our understanding of language is best guided by the purpose(s) with
which the speaker uttered the language.

Besides, there is no argument that when their strengths and lapses are balanced, the
purposive approach stands tall relative to the subjective and objective approaches which
prove overly inadequate in the face of real interpretive difficulties for reasons already
discussed. Driedger summarises these concerns in the context of statutory interpretation
at pp. 63-64 of his Constructon Of Statutes 3 rd edn, as follows: “by making interpretive
outcomes depend on the purposes of legislation, courts do not avoid the problem of
indeterminacy. Legislative purpose is as much an interpretive construct as the ordinary
meaning of words. There is no avoiding the creative dimension of interpretation, nor is
there any reason to do so. Constructing meaning out of the conventions of language and
the norms of plausibility that judges share with other members of the community
including the legislature is what interpretation consists of. There is no other way”.

In sum, it should be evident from the foregoing analysis that in spite of its few limitations,
there appears to be no realistic alternative to the purposive understanding of intention
when posited as the objective of interpretation. As previously noted, the whole point of
insisting on intention as purposely defined is to ensure that the court or interpreter of the
DSC is not engaged in mechanical or literalistic interpretation of DSCs but interpret DSCs
in a way that gives effect to the purpose(s) of the author(s).

97
Again as previously indicated, the purposive approach is the dominant approach to
interpretation in Ghana and underlies what is frequently referred to in this country as the
modern purposive approach (MOPA). See Asare v. A-G per Kludze JSC.

How Is Intention Ascertained Under Mopa?

The authorities as noted above are overwhelming that the object of interpretation is to
arrive at the meaning that reflects the intention of the author(s) of a DSC or part thereof.
However under the dominant MOPA, (Modern Purposive Approach) intention is in the
context defined in terms of the purpose(s) or the meaning that reflects the purpose(s) of
the author(s) in enacting the DSC or part thereof.

It is important nevertheless that we note, and authorities have always insisted, that the
intention of the author(s) of a DSC even under the MOPA is at first instance to be
ascertained from the language used in the text of the DSC itself when read in context and
not by reading the intention into the DSC.
The intention, it is said, is as expressed in the DSC. There are consequently very strict
rules regarding the use of evidence outside the text of the DSC in interpretation.
Put differently, under the MOPA, the intention is to be ascertained from the language of
the DSC read in context and in the light of surrounding circumstances including the object
of the DSC or part thereof.

It is important to emphasize here however that the relevant context here in ascertaining
intention at first instance is ordinarily the internal context of the subject provision which
consists of the immediate internal context which is comprised of the provision in which
the words to be interpreted appears and any adjacent and closely related provision as well
as the DSC as a whole which refers to the complete DSC as amended and any
incorporated materials. In the case of an ACT or statute, it includes the scheme of the
ACT and the components used to structure the Act such as the titles, preambles and
heading. See DRIEDGER @ 261.

On the authorities where the meaning of the language of the DSC is plain in the internal
context, that will constitute the intention of the author(s) and there will be no need to look
elsewhere. It is only when this meaning results in absurdity, ambiguity, etc that there is
ordinarily the need to refer to the external context.

GTP v. Ankujeah [2000] Vol 2 GLR.

Following the restructuring of the defendant appellant Company in 1994, the plaintiff
respondents were declared redundant and paid severance benefits in accordance with the
prevailing collective agreement. Each respondent therefore became entitled to
“Two months consolidated basic pay for each year of service, effective 1st January, 1961
to the date of redundancy”,
However, contending that the awards were void, unlawful and of no legal effect, in that
they violated the clear, mandatory provisions of the Labour (Amendment) Decree, 1969
NLCD.342, the respondents, claimed, inter alia, payments of each plaintiff’s severance

98
compensation with effect from the date each plaintiff commenced work with the defendant
company as employed up to 31st December, 1990.
The principal question is whether article 36 of the collective agreement, under which the
respondents were paid their severance benefits, is inconsistent with par.34 (2) of
NLCD.157 as substituted by NLCD. 342.

Held Per Justice Woode. & Twumasi

What then is the proper construction to be placed on the law in question i.e. par.34 (2) of
the Labour Amendment Decree 1969 NRCD.342?”
1. It is trite learning that to obtain the true meaning of any enactment, or indeed any
document, it must be read as a whole. The principle or rule of statutory interpretation
insists that statutes must be looked at as a whole. This is the holistic approach. It
requires that every paragraph or sub-paragraph of a statute is to be construed with
reference to the other parts or paragraphs of the statute in order to make a consistent
and homogenous enactment of the whole statute. This option requires that individual
words or phrases or sentences, which may occur in the statute, must not be construed in
isolation.
2. The next face is the golden rule of interpretation stated in the celebrated English case
of Becke vrs: Smith by Parke ‘B’:
3. “It is a very useful rule in the construction of a statute, to adhere to the ordinary
meaning of the words used, and to the grammatical construction, unless that 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 to no further.”
4. The golden rule was applied by our Court of Appeal in the case of Ghana Muslims
Representative Council vrs: Salifu (1975) 2 GLR.246 in the construction of the
legislative object of Act.106.
5. Thus the settled law is this: the primary rule of construction of statutes, to which the
others, namely the golden rule, and the mischief rule are subordinate is that the words
must given their natural literal, ordinary or dictionary meaning or where necessary
their technical meaning and in the context which they have been used and the plain
meaning of the enactment given effect to, even though the result may be found to be
unpalatable.
6. The Supreme Court used the rule in Essilfie vrs: Anafo (1992) to interpret the word
“action” and whether “action” included an “appeal” within the purview of the Supreme
Court Rules 1970
7. The issue was whether a party whose appeal had been struck out for failure to file a
statement of case within time could be granted extension of time to file the statement.
Lastly in another recent case.

8. It is only where an application of the plain or ordinary meaning rule leads to an

absurdity, inconsistency or repugnancy that the secondary construction rule would be
invoked.
9. Two local cases would settle this matter beyond controversy. Sam v Comptroller of
Customs and Excise, Taylor, J. (as he then was) held as follows: — It is the duty of a
court in interpreting an enactment, to give effect to the intention of the legislature.
99
 Therefore, where words in an enactment are clear and unambiguous no question of
interpretation arises, but where the ordinary meaning of the words used leads to a
manifest absurdity or repugnancy, a court may alter the words of the enactment, but
only to the extent of avoiding the absurdity or repugnancy.
10.Again, in the case of:

Kuenyehia vrs: Archer at 132,

Bamford Addo JSC supporting the majority decision stated that:--
Broadly, the general method of interpreting statutes or constitutions is to give words
their ordinary meaning and if the ordinary meaning makes sense of the passage then
the intention as deduced from, must be given effect. It is only when the construction
leads to absurdity or is ambiguous that one is required to look elsewhere or to resort to
application of certain other principles of interpretation in order to ascertain the true
meaning and intention of the legislature.

11.On the question as to the power of the court to incorporate into the body of an
enactment words or phrases of its own for the purpose of advancing the perceived
legislative intention so as to avoid injustice, Taylor, J.S.C in Sam vrs: Comptroller of
Customs and Excise stated that:
“Apparently one can alter the words of a statute but this is a serious matter and it must
be for only very cogent and limited reasons indeed. The introduction of words into an
Act of Parliament is open to serious objections, and should only be resorted to for the
most cogent reasons, so as to avoid a repugnancy of construction or something which
is opposed to good sense.
12.In applying the first primary rule to the law in question, I find the meaning so plain and
obvious it does not admit of any other construction.
13.I concede that in our jurisdiction, legislative history may also be used in interpreting
statutes. But it is a guide only that is an aid as stated by Francois, JSC. in his opinion in
Ali-Jiagge vrs: Inspector General of Police unreported SC suit No. 16/81 26th
March, 1990 namely:
“A cardinal aid to the ascertainment of legislative intent is through the study of the
history of the particular enactment.”
14.However, it is plain from the legal texturiters that these aids and guides, which are
clearly distinguishable from the primary or basic rules of interpretation are merely
guides. They are therefore truly our hand maids not our masters.
15.Thus, Benniou rationalises that “subject to relevant legal rules, a court considering an
enactment is master of its own procedure and therefore has the power, indeed the duty
to consider such aspects of legislative history of the enactment as may be necessary to
arrive at its meaning”. [s.208 titled “Legislative history as a guide to construction at
page 438 of “Statutory Interpretation”
16.Again, Bimpong-Buta cautions, and understandably so, that “these aids and guides are
not to be applied automatically: they merely help the courts in determining the true
meaning to be placed on the statutory words or expressions.
17.They are therefore our servants not our masters. In other words, if resort to these
guides or aids may in themselves create absurdity or unreasonableness the courts are to
avoid them altogether.”
100
18.It seems to me then that these aids or guides, described by Benion as “interpretative
criteria” becomes useful when for example, the application of the meaning of the
enactment is somewhat obscure and the legislative history would help unravel it.
19.The converse then is that when the meaning is plain and obvious or certain, indeed
when an application of the first primary rule of construction leads to a just
interpretation, no need arises to resort to these guides.
20.In much the same way that reading glasses are not meant for those whose eyesight is
good, but for those with weak or impaired eyesight, legislative or pre-enactment
history becomes useful when the meaning of the enactment is shrounded in obscurity.
In applying the first primary rule to the law in question, I find the meaning so plain and
obvious it does not admit of any other construction.
21.Assuming there was a clear omission on the part of the legislature, and the law did not
make provision for those who suffer total loss of employment, I nevertheless do not
think it was right for the learned trial judge to supply all such necessary words in order
to bring them into its ambit. What the learned trial judge did in my view, amounted to a
clear usurpation of legislative power.
22.The legal position is that at common law, courts are empowered to “alter, or effect an
emendation of words in a statute by adding to these, even to ignore the express words
altogether”
23.But this power is very limited in scope. So, as pointed out by Buta, the purpose is to
avoid “unintelligibility unreasonableness or absurdity.”
24.Cross thinks likewise in his book “Interpretation of Statutes” 3rd Edn page 93 he deals
with the subject under the heading: “Reading words in an out of a statute”: He also
states:-
The judge may read words which he considers necessarily implied by words which
are already in the statute and he has a limited power to add to, alter or ignore
statutory words in order to prevent a provision from being unintelligible,
unworkable, absurd or totally unreasonable, with the rest of the statute.
25.Words may be necessarily implied by other words when their express statement merely
clarifies a secondary meaning of these other words.
26.Further at page 99 the learned author delimits the power as such:
The power to add to, alter or ignore statutory words is an extremely limited one.
Generally speaking it can only be exercised where there has been a demonstrable
mistake on the part of the drafter or where the consequence of applying the words in
their ordinary or discernible secondary meaning would be utterly unreasonable.
27.Also writing under the heading “Omission” (Maxwell on Interpretation” page 241), the
learned author states:
An omission which the context shows with reasonable certainty to have been
unintended may be supplied at least in enactments which are construed beneficially,
as distinguished from strictly”
28.We learn from him that, the modification may be done only where the enactment itself
had, in the first place received, a beneficial and not a strict construction, as have been
done in this instant case.
29.Lord Reids spells out at some instances in which the rule applies in the Federal Steam
Navigation Co., Ltd. vrs: Department of Trade and Industry case. He opined:

101
 Cases where it has properly been held that a word can be struck out of a deed or
statute and another substituted can as far as I am aware be grouped under three
heads: where without such substitution the provision is unintelligible of absurd or
totally unreasonable, where it is unworkable: and where it is totally irreconcilable
with the plain intention shown by the rest of the deed or statute.
30.I therefore think that in the construction of statutes, we need to draw a clear distinction
between cases where a law has clearly and deliberately not provided for any given
situation or set of circumstances. In these cases, alterations or emendations of the
statute either by the addition of or the taking out of words would not be permitted.
31.My thinking is that it is not the duty of the courts to supply words in order to rectify
such anomalies.
32.And those other cases where an unintended omission results in the situation identified
by the authorities—namely unintelligibility, absurdity, unworkability or
unreasonableness and the like or in the case of an enactment which has been
beneficially construed, a reasonable certainty exists from the context that the omission
was unintentional.
33.I think that in the latter class of cases, alterations or emendations of the statute either
by the addition of or the taking out of words may be allowed.
34.My view is that so long as the ordinary meaning of that enactment is plain on the face
and can be ascertained, the best a court can do in the circumstances is to draw attention
to the injustice in the hope that it would be corrected by the lawmakers.

The rationale underlying this approach to ascertaining intention is evident. The courts
proceed on the presumption that the author(s) of a DSC have clearly stated or said all that
they intended to say so that the meaning of the language used in the text if plain, expresses
the intention of the author(s). In other words, the courts at first instance proceeds on the
basis of the presumption of intention i.e. the meaning of the text if plain, reflects the
intention of the author(s).
Halsbury 4th Edn, Vol. 44 Para 857 wherein it is stated that

“if the words of a statute are clear and unambiguous, they themselves indicate what must
be taken to have been the intention of Parliament and there is no need to look elsewhere to
discover the intention or their meaning”.

The position is broadly much the same with respect to statutes and constitutions.

In relation to Documents

Halsburys 4th Edn Vol 12 at Para 1460;

Biney v. Biney [1974] I GLR 318 CA [supra]

Akim Akroso Stool v. Akim Manso Stool [1989-90]1 GLR 100 CA.

102
The plaintiffs, the Akim Akroso stool and others, sued the defendants, the Akim Manso
stool and others, for (i) a declaration of title to a piece of land; (ii) an order for
cancellation on grounds of fraud of a conveyance executed on 6 April 1948 between the
Akim Manso stool and others on the one part and one Mensah and others on the other
part; and (iii) recovery of possession of the land described in the said [p.101] conveyance.
In support of the alleged fraud, the plaintiffs pleaded that the word “family” described in
the conveyance as the vendors never in fact existed nor could they have been represented
in the execution of the conveyance. In their statement of defence, the defendants raised the
plea of estoppel founded on various judgments obtained against the plaintiffs in previous
litigation between the parties. The parties to the document impugned were the Akim
Manso stool and the Akuapim company

Held: . The whole exercise is as to what construction is to be placed on the word “family”
as contained in the conveyance.

1. In any case what the word in a document mean can only be derived from the document
itself. The intention of the parties must be gathered from the written instruments. The
function of the court is to ascertain what the parties meant by the words which they
have used.

2. The court is to declare the meaning of what is within the instrument and not what was
intended to have been written so as to give effect to the intention expressed.

3. It is not permissible to guess at the intention of the parties and substitute the presumed
intention for the intention.

4. The interpretation of a written document is generally speaking a matter of law for the
court.

5. And if the intention of the parties can be ascertained from the written instrument, the
court will give effect to that intention notwithstanding ambiguities in the words used or
defects in the operation of the instrument.

6. This is expressed by the maxim ut res magis valeat quam pereat: a deed shall never be
void where the words may be applied to any intent to make it good or carry out and
effectuate to the fullest extent the intention of the parties.

7. Hence where words are capable of two meanings the object with which they were
inserted may be looked at in order to arrive at the sense in which they were used.

8. And where one interpretation is consistent with what appears to have been the intention
of the parties and another repugnant to it the court will give effect to the apparent
intention, provided it can do so without violating any of the established rules of
construction.

103
9. Similarly the court leans to an interpretation which will effectuate rather than one
which invalidates an instrument:

Wilkinson v. Gaston (1846) 9 Q.B. 137

In Re Atta (Dec’d) Kwako v. Tawiah (Supra) at 468

In relation to Statutes

Halsbury 4th Edn Vol 44 @ Para 856; Cross (P. 26);

Westminster Bank Ltd v Zang [1966] AC 182 HL @ 222.

Here Tilley gave £1000 cash in return for cheque from the defendant gambler. The cheque
was issued in his name; payable to “J. Tilley or order.” Tilley paid the cheque together
with other cheques into his company account with the plaintiff bank without indorsing the
back of the cheque. The cheque subsequently bounced and Tilley solicitors asked the bank
to return to them for legal action which they subsequently initiated but lost. Then the
cheque was returned to the bank and the bank took action against the defendants. Section
2 of of the Bills of Exchange Act stated as ff:
“A banker who gives value for, or has a lien on, a cheque payable to order which the
holder delivers to him for “collection” without indorsing it, has such (if any) rights as he
would have had if, upon delivery, the holder had indorsed it in blank”

The issue before the court was whether the holder of the cheque had delivered the cheque
to the bank and by that what did the legislature mean by the word “collection” in section
2. It was argued that collection meant collection for payment not the payee’s account
when the payee is named on the cheque, and as the bank-appellant received the cheque
unendorsed to pay into the company account, the bank could not rely on section 2 for
protection.

Held: Was the cheque delivered to the bank for “collection”

Per Lord Reid:
1. But no principle of interpretation of statutes is more firmly settled than the rule that
the court must deduce the intention of Parliament from the words used in the Act.
2. If those words are in any way ambiguous-if they are reasonably capable of more
than one meaning-or if the provision in question is contradicted by or is
incompatible with any other provision in the Act, then the court may depart from
the natural meaning of the words in question.
3. But beyond that we cannot go.

Anyidoho v. Markham (1905) Renner 319, (See Buta 12).

104
In Relation to Constitutions

Kuenyehia v Archer [1993-94] 2 GLR 525 @ 562 Per Francois JSC (Buta P. 11)
1. In interpreting the relevant provisions of the Constitution, 1992, we must be very
careful to avoid importing into the written document what does not appear therein.
2. For there could be no difficulty, if an extension was intended as a desired result, for
it to be explicity expressed, in precise terms.
3. Rules of construction do not permit a passage which has a clear meaning, to be
complicated or obfuscated by any interpretation, however well intentioned. To
borrow from Adegbenro v Akintola, the Constitution "must be interpreted according
to the wording of its own limitations and not be limitations which that wording does
not import." That case dealt with the Nigerian Constitution

Tuesday, November 22, 2005

Furthermore, in determining or ascertaining intention (even in the purposive sense) the

courts in practice resort to varying evidentiary standards as well as sources, especially
having determined that there is ambiguity etc and in trying to resolve same, depending on
whether they are dealing with (i)
Unilateral documents like wills, (ii) bilateral /multi-lateral documents like contracts or
(iii) with a statute or a national constitution.
In interpreting a unilateral document like a will for example, the courts have invariably
applied evidentiary standards which are relatively more subjective in the sense that they
take into account the totality of the actual circumstances of the testator himself, including
its object or purpose etc. in order to arrive at the meaning that reflects its intention. The
court is said to look at the Will as the testator did, sitting in his armchair. See Denning:
The Discipline Of The Law Chapter 3.

Re Jebb; Ward Smith v. Jebb [1966] Ch. 666 per Lord Denning: “Armchair Rule”
The testator, Jebb made a will when he was 86years and died a year later. He had a son
and a daughter who had no child of her own but had adopted a child in the lifetime of her
father and lived with the father till his death. The will of the testator provided for the
adopted child. But the will was made in 1947 and the adoption Act in 1926 had to be
applied which provided thus:
“the expression ‘child’., ‘children’ and ‘issue’ where used in any disposition…shall not,
unless the contrary intention appears, include an adopted child or children or the issue on
an adopted child.”
The issue for the court was whether by the Act of 1926 wich affected the will of 1947 and
not the Act of 1950 which provided for a ‘child’ to include an adopted child, the adopted
child was entitled to the bequest or not.
Held: per Lord Denning MR:

105
 1. In construing this will, we have to look at it as the testator did, sitting in his
armchair, with all the circumstances known to him at the time.
2. Then we have to ask ourselves: “what did he intend?” We ought not to answer this
question by reference to any technical rules of law.
3. Those technical rules have only too often led the courts astray in the construction of
wills. Eschewing technical rules, we look to see simply what the testator Intended.
4. Looking at this will in the light of the surrounding circumstances it seems to me
quite plain that when the testator spoke of the “child or children of my daughter”,
his intention was to refer to the adopted child.

Perrin v. Morgan [1943] AC 399

A testatrix by her will drawn without legal assistance, directed that “all moneys of which I
die possessed of shall be shared by “my nephews and nieces now living.” At her death
her estate consisted of investments, cash at banks, dividends received or accrued, rents due
prior to her death, income tax repayments, freeholds, etc. The issue before the court was
what construction was to given the word “money” as stated in the will of the testator.

Held:
Per Viscount Simon LC:
1. My Lords, the fundamental rule in construing the language of a will is to put on the
words used the meaning which, having regard to the terms of the will of the will,
the testator intended. The question is not, of course, what the testator meant to do
when he made his will, but what the written words he uses mean in the particular
case-what are the “expresses “intentions” of the testator.
2. The court is entitled to be credited with a knowledge of the ordinary use of the
English language, and has a duty to apply such knowledge. The court would
therefore be contravening its paramount duty if it rejected the current use of the
word in these days in order to apply the sense which was current in 1808.
3. But that is the issue for a separate rule. It is rather to treat the testator, in the case of
ambiguity, as having used the word in the sense which the court adjudges to be the
more ordinary use of the word in the English language at the time at which the
testator use it.

Per Lord Russell:

4. On the language of this particular will, construed in the light of the relevant
circumstances, the words “ all moneys of which I die possessed of “, should be
construed as including the whole of the residuary personal estate of the testatrix.
This result is arrived at on the context of the document. Context has always
prevailed against the now abused rule of “the strict meaning of money”.
The meaning of the word when used by a testator is not restricted by any hard and
fast rule, but depends on the context in which it occurs, properly construed in the
light of all the relevant facts. In other words, given such a sufficient context, the
word ‘money’ may include more that what has been called the strict meaning.

Per Lord Romer:

106
 5. My Lords, I take it to be cardinal rule of construction that a will should be so
construed as to give effect to the intention of the testator, such intention being
gathered from the language of the will read in the light of the circumstances in
which the will was made. To understand the language employed the court is
entitled, to use a familiar expression, to sit in the testator’s armchair. When seated
there, however, the court is not entitled to make a fresh will for the testator merely
because it strongly suspects that the testator did not mean what he has plainly said.
6. The rules of construction should be regarded as a dictionary by which all parties,
including the courts, are bound, but the court should not have recourse to this
dictionary to construe a word or a phrase until it has ascertained from an
examination of the language of the whole will, when read in the light of the
circumstances, whether or not the testator has indicated his intention of using the
word or phrase in other than its dictionary meaning-whether or not, in other words,
to use another familiar expression, the testator has been his own dictionary.

In Re Atta (Dec’d) Kwako v. Tawiah [2001-2002] SCGLR 461

Isaac Ottie alias Agya Atta died on 10th August, 1982. He hailed from Kenkase, Kwabre
No. 3 in Ashanti. He left behind a Will dated 26th January, 1982. In the Will he devised
houses and farms to his wife, children and other persons. Among the devisees was one
Kwadwo Kwako, the appellant herein. The testator in clause 7 of will devised six rooms in
House No. 54 Block 12 to the appellant. Then in clause 13 of the will the testator declared
that:
"Kwadwo Kwako is to inherit me on my death and all the properties which I have not
devised must go to him"
In Plaintiff/Respondent’s opinion the devise to the appellant in clause 13 of the Will was
made to him in his capacity as customary successor and therefore the appellant must be
deemed to take such properties in trust for his immediate family. The question he posed
for determination as follows:—
"Whether or not having regard to the devises in the last will of Isaac Ottie, alias Agya Atta
(decd) dated 26th January, 1982, more particularly the devises made in clauses 7 and 13 of
the said Will the late Testator Isaac Ottie by clause 13 of the said will devised his Residual
Estate to Kwadwo Kwako personally forever or the devise was made to Kwadwo Kwako
in his capacity as the customary successor who is to hold the properties in trust for his
immediate family".

Held: per Adzoe JSC:

1. Annan J, as he then was, hit the mark when he said that " policy of the court is to give
effect to the last wishes of the deceased and to uphold them unless there are overriding
legal obstacles in the way” – vide, Mensah (decd): Barnich v. Mensah (1978)
2. In accordance with this basic principle, when the courts set out to construe a Will what
they do is to look for the intention of the testator as expressed by him in the actual
words used by him, having regard to all the other provisions in the will.
3. The intention which the will itself declares either expressly or by necessary implication
is what the courts would act upon.
107
4. The rule which enjoins the courts to rely on the language of the testator is normally
called the golden rule. There are other rules, indeed many rules, of construction which
the courts often rely on for guidance.
5. These several rules have a common aim namely, to direct the court towards an
objective standard of construction and to exclude evidence which seeks to provide
what is supposed to be the actual intention of the testator.

Where Adzoe JSC refers to the armchair principle.

In respect of the interpretation of bilateral and multilateral documents (e.g. a contract)

however, although the authorities similarly postulate that the object is to ascertain the
intention of the authors as expressed in the document itself, in practice the courts resort to
evidentiary standards that are relatively more objective in ascertaining the intention of the
parties. Here, the courts it is said, are concerned to ascertain the intention of hypothetical
reasonable parties placed in the same position as the actual parties and contracting in the
same words used by the actual parties.
See: Lewison (3rd Ed Pp 19, 26-31);
Denning: Discipline Of The Law (Chapt 4);
Andy Moore, Intention In The Law Of Contract: Illusive Or Illusory?

Reardon Smith Line Ltd v. Hansen-Tangen (1976) 1 WLR 389 PER Lord
Wilberforce
wherein he notes “when one speaks of the intention of the parties to a contract one speaks
objectively- the parties cannot themselves give direct evidence of what their intention
was- and what must be ascertained is what is to be taken as the intention which reasonable
people would have had if placed in the situation of the parties”. See also:

IRC v. Raphael [1935] AC 96 [Supra]

The Hannah Blumenthal [1983] 1 AC 854 per Lord Diplock.

Finally, it is to be noted that the intention of the author(s) of a statute or national

constitution is often ascertained in largely the same manner as unilateral documents. This
is because statutes and national constitutions are considered unilateral documents in the
sense that they are invariably the work of a composite body like Parliament or
constitutional assembly.
As with documents, the courts in ascertaining the intention of the framers proceed in the
first instance on the presumption of intention i.e. that the meaning of the language used if
plain in context, represents the intention of the framers. The courts will then resort to other
meanings only when there is absurdity, ambiguity, etc. See:

108
Kuenyehia v. Archer (Supra).

Agbevor v. A-G [2000] SCGLR 403.

However in the case of statutes and national constitutions, the courts do not necessarily
dwell on the actual or historical intention of the framers but often reconstruct this intention
in order to arrive at a meaning that fits contemporary circumstances. The courts it is said
use an updating approach.
Hence in Agbevor v Attorney-General, the plaintiff sought from the SC, a declaration
that his removal from the Judicial Service as a judicial officer by the President on the
recommendation of the Judicial Council that he displayed a degree of incompetence in the
discharge of his duties was contrary to Art 151(1) of the Constitution.
Article 151—Removal of Judicial Officers.
(1) A person holding a judicial office may be removed from office by the Chief Justice on
grounds only of stated misbehaviour, incompetence or inability to perform his functions
arising from infirmity of body or mind and upon a resolution supported by the votes of not
less than two-thirds of all the members of the Judicial Council.
(2) For the purpose of clause (1) of this article, the judicial officer shall be entitled to be
heard in his defence by himself or by a lawyer or other expert of his choice.
Held by the SC per Sophia Akuffo that
1. “The language of article 151 is so crystal clear and entirely unambiguous that there
can be absolutely no justification for reading any words or meaning into it.
Consequently, to the extent that any portion of the Judicial Service Act, 1960(CA
10) or the Judicial Service Regulations, 1963 (LI 319), give any power of removal
or discipline of a judicial officer to any person other than the Chief Justice,
2. those provisions must, pursuant to article 11(6), be read with such modifications,
adaptations, qualifications and exceptions as are necessary to bring them in
conformity with the Constitution.”

When to Resort to Interpretation

In a certain broad sense, DSCs are routinely interpreted or construed by a wide range of
people or persons- like judges, magistrates, clerks, parliamentarians, civil servants ,
officials in local government, students etc etc. when they have to decide on the meaning
and scope of the provisions of a DSC or part thereof in order to apply them in the course
of the discharge of their responsibilities etc.
Often these provisions are quite plain in meaning and can be routinely interpreted or
construed without posing any interpretive difficulties.
On the other hand, the authorities tend to suggest that stricto senso, the need for
interpretation properly so-called or for judicial interpretation arises only when the
provision of a DSC is ambiguous or vague, or there is a dispute as to its true meaning and
effect. It is then and only then that the need for interpretation in the true sense arises. See
1. Craies On Statute Law (7th Ed @ 64-65)

109
2. Cross On Statutory Interpretation (3RD Ed @ P. 2 where it is noted that “in a more
specific sense, interpretation is required where a doubt or dispute arises about the
meaning of a statutory provision”.

Croxford v. Universal Insurance Company [1930] 2 QB 253 @ 281 Per Scott L.J.
Wherein he noted
“where the words of an act are clear, there is no room for applying any of the principles of
interpretation which are merely presumptions in cases of ambiguity in the statute”.

Patu-Styles v. Amo-Lamptey [1984-86] Glr 644 @ 691 Per Taylor JSC

Mr. Tsikata, counsel for the defendant-appellants, drew attention to its true nature, as a
review-turned-appeal, by virtue of the provisions of section 5 of the transitional provisions
of the Constitution, 1979. The said section 5 said:
"5. Any review pending before the full bench of the Court of Appeal immediately before
the coming into force of this Constitution shall, subject to section 3 of this Schedule, be
deemed to be an appeal pending before the Supreme Court." This case has been argued at
length on the merits and on the technical objection raised by the plaintiff-respondent as to
its competence. The question that arose was whether in the circumstances of the case and
having regard to the language of section 5 of the transitional provisions, there was a
review “pending” before the full bench of the Court of Appeal when the Constitution,
1979 came into effect.

Held:
Per Adade:
1. This statement can be baffling in its sweep, until one reads the whole of the report
in the light of the statute law as it then was, seeing that passages taken out of
context can, in many cases, be grossly misleading.

Per Taylor:
2. It is two common law canons of interpretation, the first is that subordinate
legislation is invalid if inconsistent with any provision of its parent enactment, a
doctrine which was to receive the imprimatur of the House of Lords when the case
ascended that court as Minister of Health v. R; Ex parte Yaffe [1931] A.C. 494

3. The second principle is the old one adverted to by Parke B in Becke v. Smith (1836)
150 E.R. 724 at 726 which I quoted in Sam v. Comptroller of Customs and Excise
thus:

4. "It is a very useful rule, in the construction of a statute, to adhere to the ordinary
meaning of the words used, and to the grammatical construction, unless that 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."

110
It is to be added that the authorities are also dominantly to the effect that the doubts,
ambiguities and disputes that necessitate judicial interpretation must be real not frivolous
or imagined. The proper test as to whether or not the provisions of the DSC are clear and
unambiguous is as BUTA rightly notes at page 23 of his book
“whether the words excite real doubt in the minds of a particular court as to their legal
meaning. By real doubt we mean substantial and not merely conjectural or fanciful doubts.

Ormond Investment Co Ltd v. Beltx [1982] AC 143

1. Where it was noted by Lord Buckmaster that the ambiguity of the kind that would
necessitate interpretation is that which rendered a word or phrase “fairly and equally open
to diverse meaning”.

Duport Steel Ltd v. Sirs (1981) 1 AllER 529

The appellants were the trade union leaders in dispute with the British Steel Corporation
[BSC] over pay increases. The BSC which ran the public sector of the steel industry,
maintained that they could not offer the pay rise unless it was funded by the government.
In effort to influence the government and gain public support, the trade union called for a
national strike involving all the steel companies including the private steel companies.
Whereupon the private steel companies took action seeking an injunction against the
appellants to restrain them from inducing their staff to join the strike. At the trial the
appellants claimed immunity under the trade union laws that their action was “done by a
person in contemplation of or furtherance of a trade dispute’. But the private sector staff
had no dispute with their employees, the plaintiffs.
Lord Denning granting the injunction on appeal, the trade union appealed to the House of
Lords.
Held per Lord Diplock
1. The meaning of the words used in the Act for which the doer is entitled to immunity
from the law of tort is intrinsically repugnant to the practice of law or the
administration of justice.
2. It involves granting to the trade unions a power which has no limits than their own
self-restraint, to inflict by means which are contrary to the general law, untold harm
to industries, the general public, etc., so long as those in whom the control of the
trade union is vested honestly believe that to do so may assist it, albeit in a minor
way, in achieving its objectives in the dispute.
3. The constitution is firmly based on the separation of powers: Parliament makes the
laws, the judiciary interprets them. When parliament legislates, the role of the
judiciary is confined to ascertaining from the words that parliament has approved as
expressing its intention what that intention was, and to giving effect to it.
4. Where the meaning of the statutory words is plain and unambiguous it is not for the
judges to invent fancied ambiguities as an excuse for failing to give effect to its
plain meaning because they themselves consider that the consequences of doing so
would be inexpedient, or even unjust or immoral.

111
5. In controversial matters such as are involved in industrial relations there is room for
differences of opinion as to what is expedient, what is just and what is morally
justifiable.
6. Under the constitution it is Parliament’s opinion on these matters that is paramount.
7. And so for a judge to ask the question ‘Can parliament really have intended that the
acts that were done in this particular case should have the benefit of the immunity’,
is to risk straying beyond his constitutional role as interpreter of the enacted law and
assume a power to decide at his discretion whether or not to apply the general law
to a particular case.
8. The legitimate questions for a judge in his role as interpreter of the enacted law are:
“how has parliament, by the words that it has used in the statute to express its
intentions, defined the category of acts that are entitled to the immunity? Do the
acts does in this particular case fall within that description?’
Per Lord Edmund-Davies:
For as Holt CJ said in 1701, “.. an Act of parliament can do no wrong, though it may
do several things that look pretty odd..”
9. This I regard as the inevitable outcome of the statutory provision. That this outcome
is unpalatable to many has already been made clear.
10.What should be equally clear is that the provision is not the work of the judges but
of Parliament, and it is to parliament alone that those who find this state of the law
insupportable may now appeal
Per Lord Scarman:
11.My basic criticism of the judgments of the Court of Appeal is that in their desire to
do justice, the court failed to justice according to law. When one is considering law
in the hands of the judges, law means the body of rules and guidelines within which
society requires its judges to administer justice. In developed societies limits on the
width of discretionary power granted to judges are invariably set, beyond which the
judges may not go.
12.Justices in such societies is not left to the unguided, even if experienced, sage sitting
under the spreading oak tree.
13.But in the field of statute law the judge must be obedient to the will of Parliament as
expressed in its enactments. In this field Parliament makes and unmakes the law,
the judge’s duty is to interpret and apply the law, not to change it to meet the
judge’s idea of what justice requires.
14.Interpretation does, of course, imply in the interpreter a power of choice where
differing constructions are possible. But our law requires the judge to choose the
construction which in his judgment best meets the legislative purpose of the
enactment.
15.If the result be unjust but inevitable, the judge may say so and invite Parliament to
reconsider its provision. But he must no deny the statute.

112
 16.Unpalatable statute law may not be disregarded or rejected, merely because it is
unpalatable. Only if a just result can be achieved without violating the legislative
purpose of the statute may the judge select the construction which best suits his idea
of what justice requires.
17.Further in our system stare decisis rule applies as firmly to statute law as it does to
the formulation of common law and equitable principles. In this case the Court of
appeal failed to construe or apply the statute in the way in which the House of Lords
had plainly said it was to be construed and applied.
18.This failure was recognized significantly and courageously by counsel for the
respondents. Within these limits, which cannot be said in a free society possessing
elective legislative institutions to be narrow or constrained, judges have a genuine
creative role.
19.But the constitution’s separation of powers or more accurately separation of
functions, must be observed if judicial independence is not to be put at risk
20.For, if people and parliament come to think that the judicial power is to be confined
by nothing other than the judge’s sense of what is right (or, as Selden put it in 1927
in ‘Table talk of John Selden’, by the length of the Chancellor’s foot), confidence in
the judicial system will be replace by fear of it becoming uncertain and arbitrary in
its application. Society will then be ready for parliament to cut the power of the
judges.
21.Their power to do justice will become more restricted by law than it need be, or is
today.
22.If the law is unacceptable, the remedy lie with Parliament, not judges.
23.And if Parliament is minded to amend the statute, I would suggest that, instead of
seeking to close what Lord Wilberforce aptly called ‘open-ended expressions’ in
MacShane case, the draftsman should be bold and tackle his problems head on. If he
has to put a limitation or clear guidelines in the statute, let him do so.
24.‘Open-ended expressions’ will bring the judges, inevitably, to exercise discretion
which may well be misunderstood by many and which can damage confidence in
the administration of justice.
25.Appeal allowed, injunction discharged.

Very much the same principles apply in respect of the application of:
Articles: 130 (1) and (2) of the 1992 Constitution
[106 (1) and (2) of the 69 constitution and 118 (1) and (2) of the 79 Constitution].
Article 130 (1), gives the supreme court exclusive jurisdiction in the interpretation of the
constitution whiles 130 (2) directs lower courts and tribunals to refer all matters relating to
the interpretation of the constitution to the supreme court.

113
The authorities have noted overwhelmingly that the need for reference to the supreme
court for interpretation arises only when there are real or genuine doubts regarding the
meaning of a constitutional provision which needs to be resolved by interpretation.
See the locus classicus :

R. v Maikankan [1971]2 GLR 473

Per Edmund Bannerman CJ
1. “ a lower court is not bound to refer to the supreme court every submission alleging as
an issue the determination of a question of interpretation of the constitution.. if in the
opinion of the lower court the answer to a question is clear and unambiguous on the face
of the provisions or laws of Ghana, no reference need be made since no question of
interpretation arises… to interprete the provisions of article 106 (2) of [the 1969]
constitution in any other way may entail and encourage references to the supreme court of
frivolous submissions some of which may be intended to stultify proceedings and the due
process of law”.

Nana Yiadom I v. Nana Amaniampong [1981] 1 GLR 3

@ 8 Dictum Of Apaloo CJ.
ACTION for a declaration that the first defendant had disqualified himself from office as a
paramount chief and for interpretation of certain provisions of the Constitution, 1979,
wherein an objection was raised as to the jurisdiction of the court to entertain the claim.
Held per curiam:

1. “Where the issue sought to be decided is clear and is not resolvable by interpretation,
we will firmly resist any invitation to pronounce on the meaning of constitutional
provisions. It would, we think, be a waste of mental effort and a thoroughly pointless
exercise.

Republic v. Special Tribunal, Ex Parte Akosa [1980] GLR 592:

APPEAL from the decision of the High Court, Accra, dismissing the applicant's
application for an order of certiorari to quash his conviction and sentence and order for
confiscation of property entered by the special tribunal in the exercise of its jurisdiction
under A.F.R.C.D. 23.
The legal question raised by the "cross-appeal" is whether or not an issue of enforcement
or interpretation within the meaning of article 118 of the Constitution, 1979, has been
raised by this litigation.
1. Wherein the court stated the conditions under which reference to the Supreme
Court for interpretation might be made to include the ff:
(a) where the words of the provision are imprecise or unclear or ambiguous. Put in
another way, it arises if one party invites the court to declare that the words of the
article have a double-meaning or are obscure or else mean something different from
or more than what they say;
(b) where rival meanings have been placed by the litigants on the words of any
provision of the Constitution;
114
 (c) where there is a conflict in the meaning and effect of two or more articles of the
Constitution, and the question is raised as to which provision shall prevail;

(d) where on the face of the provisions, there is a conflict between the operation of
particular institutions set up under the Constitution, and thereby raising problems of
enforcement and of interpretation.

2. On the other hand, there is no case of "enforcement or interpretation" where the

language of the article of the Constitution is clear, precise and unambiguous. In
such an eventuality, the aggrieved party may appeal in the usual way to a higher
court against what he may consider to be an erroneous construction of those words;
and he should certainly not invoke the Supreme Court's original jurisdiction under
article 118.
3. Again, where the submission made relates to no more than a proper application of
the provisions of the Constitution to the facts in issue, this is a matter for the trial
court to deal with; and no case for interpretation arises.”

Gbedemah v. Awoonor-Williams

Here the full Court of Appeal sitting as the Supreme Court made the following pertinent
pronouncement per Azu Crabbe J.A

“In our view, unless the words of a statute are imprecise and ambiguous the court does not
apply the rules and presumptions of construction. The words of article 71 (2) (b) (ii) and
(d) are plain, and they mean what they say, and are to be expounded in their ordinary and
natural sense. Until the primary, or popular or literal meaning of those words is disputed,
the interpretation of the words is unnecessary.

Republic v. Adu-Boahen . [1992-93] GBR 684.

It has also been held that there is no need for reference where a question of law has
already been determined by the Supreme Court.

Agyekum v. Boadi [2000] SCGLR 282.

Here the plaintiff Air-force officer Group Captain Agyekum, sued Ex WO1 Adjei Boadi
claiming recovery of possession of his residence confiscated to the state un AFRC and
later deconfiscated by order of the President in 1997. The defendant refused to vacate the
premises on grounds that the order of the President was in violation of section 35 of the
transitional provisions of the ’92 Constitution and that only the CHRAJ was vested with
the power to deal with or investigate issues related to confiscated assets. Issue before the
SC was whether the order of the Prseident contravened section 35 of the transitional
provisions.
Held per Acquah JSC:

115
In the case of CHRAJ (No1) v Attorney-General [1998-99] SCGLR 871, the SC held
that the constitutionality of the exercise of such power was vested in the President. Thus
even though any lower court is empowered under Art 130 to refer a question of law to the
SC, where that question has already been determined by the Court , no reference would
arise for that court is bound under Art 129 (3) to follow the decision of the SC.

A most useful authority regarding the scope and effect of Article 130(2) [of the
constitution] is the case of:

Aduamoa II v. Adu Twum II [2000] SCGLR 165.

Here the plaintiffs were seeking a declaration, inter alia, that the defendant, admittedly a
chief, is not qualified to be a chief under Article 175 of the 1992 Constitution; an order to
destool him and to account for all stool properties:
The Supreme Court held per Acquah JSC [as he then was] that:
(1) the original jurisdiction vested in the SC under article 2(1) and 130 (1 and 2 ) of the
1992 constitution to interpret and enforce the provisions of the Constitution is a
special jurisdiction meant to be invoked in suits raising genuine or real issues of
interpretation of a provision of the constitution or the enforcement of a constitution
or a question whether an enactment was made ultra vires Parliament, or any other
authority or person by law or under the constitution.
(2) That since the constitution is the fundamental and supreme law of the land, all courts
and tribunals were duty bound to apply the provisions of the constitution, where clear,
in the adjudication of disputes before them.
(3) Hence the special jurisdiction was not meant to usurp or to be resorted to in place of
the jurisdiction of a lower court so that where the said jurisdiction had been invoked in
an action which properly fell within a particular course of action at the lower court,
the supreme court will refuse to assume jurisdiction in that action, notwithstanding the
fact that it has been presented as an interpretation or enforcement action or both.
(4) That the jurisdiction of ordinary courts and tribunals to apply the provisions of the
constitution where clear was not taken away merely by a party’s reference to or a
reliance on a provision of the constitution.

Finally, it is to be emphasized that under the MOPA the determination of whether or not
the provision of a DSC is plain or contains real doubts which calls for interpretation can
only be made after taking full account of the relevant context. In other words, it is only
after a provision has been construed in the relevant context which under the MOPA
importantly includes the purpose(s) of the author(s) in enacting same that one can
conclude that it is plain or not.

Wednesday, November 23, 2005

116
Difficulties of Interpretation/Conditions of Doubt Which Necessitate Interpretation

The main difficulties/conditions which give rise to real doubts, ambiguities etc, which
necessitate interpretation include:

(1) Conditions relating to the use of natural language as the medium of communication in
legal documents.

(2) Conditions relating to the nature and use of rules in the regulation and control of
society.

(3) Conditions relating to imperfections in drafting of legal documents, enactments, etc for
the regulation and control of society.

(4) The conditions relating to the events after drafting of documents, enactment of rules
etc for the regulation and control of society as well as the peculiar circumstances of a
particular case.

Use of Natural Language as Medium of Communication in Legal Documents

Enactments, etc.

Natural language is undoubtedly the most important medium of communication in human

society today, particularly so far as regulation and control of society is concerned. The
laws of modern society are consequently largely expressed through the medium of natural
language. Unfortunately as several scholars have pointed out, natural language is often an
imperfect medium. As Thornton notes, in his Legislative Drafting 4th Edn @ P. 2 :

“despite the riches of the immense vocabulary of the English language, it has the
tremendous potential for vagueness, ambiguity, nonsense, imprecision, inaccuracy and
indeed all the horrors recognized by the legislative drafter. Great thinkers and writers have
long been aware of the imperfections of language and the frustrations resultant from its
use”.

Twinning and Miers also rightly note in How To Do Things With Rules @ p. 209 that
some of the most important conditions of doubt in interpretation are associated with
language and “arise either from the faulty use of language in formulating rules such as
inappropriate vagueness or inadvertent ambiguity or from inescapable indeterminacy of
language”.

Specifically, these difficulties associated with the use of natural language are often
engendered by problems associated with the nature and meaning of words which are the
units or building blocks of natural language. These problems can be conveniently
categorized into:

(i) ambiguity of words,

(ii) vagueness of words,
117
 (iii) open textured nature of natural words,
(iv) instability of words.

Ambiguity of Words
One of the biggest problems associated with natural language which often creates
difficulties of interpretation is the ambiguity of natural words.

A word is said to be ambiguous when it has more than one meaning in the context i.e.
where it has more than one sense or reference in the context of its use. For example, the
use of the word ‘bore’ in a statement “our parents bore us”.

The legal authorities in practice distinguish between different kinds of ambiguity such as:
 Latent and patent ambiguities.
 Between general and relative ambiguity
 Between semantic, syntactic and contextual ambiguity.

Patent Ambiguity: is described as a kind of ambiguity which is apparent or appears

from the language of the instrument or document whereas Latent Ambiguity only
becomes apparent when the language is applied to a factual situation.

As pointed out by Lewison @ p. 196 of his Interpretation of Contracts, Patent

Ambiguity may therefore arise because the instrument itself may be self contradictory
but fail to choose between them or because it may lack an essential definition of key
terms.
See Lewison On Contracts @ 194 Ff;

The Locus Classicus:

Doe d. Hiscocks v. Hiscocks (1839) 5 M& W 363;

Here the testator devised lands to his son John H for life and after his death to the
testator’s grandson “John H the eldest son of the said John H” for life and on his decease
to the first son of the grandson John H, etc. But John H eldest son was Simon. The action
was for ejectment orders brought on the demise of the testator, Simon Hiscocks against
John Hiscocks.

Great Western Railway v. Bristol Corporation (Supra) @ 429

Per Lord Wrenbury.
Per Lord Shaw:
1. " ... one hears much use made of the word "intention," but courts of law
when on the work of interpretation are not engaged upon the task or study of
what parties intended to do, but of what the language which they employed
showed that they did; in other words, they are not constructing a contract on
the lines of what may be thought to have been what the parties intended, but
they are construing the words and expressions used by the parties
themselves.
118
 2. What do these mean? That when ascertained is the meaning to be given
effect to, the meaning of the contract by which the parties are bound. The
suggestion of an intention of the parties different from the meaning conveyed
by the words employed is no part of interpretation, but is mere confusion”

The point of the categorization of the ambiguities into patent and latent ambiguities has
traditionally been that additional extrinsic evidence was admissible to resolve a latent
ambiguity but not a patent ambiguity. See Lewison 197-198 And The Great Western
Railway Case (Supra).

This traditional distinction and its implication for admissibility of extrinsic evidence has
however been severely criticized in recent times. See Lewison 197-198;

In Re Atta (Dec’d) Kwako v. Tawiah [2001-2002]SCGLR.

The evidently more useful categorization of ambiguities in the modern authorities is the
categorization into semantic, syntactic and contextual ambiguities.

Semantic ambiguity: Is meant ambiguity caused by the fact that one word may have
several meanings. Hence this kind of ambiguity often arises from the word itself and not
necessarily from association with other words. For example, words like ‘issue’, ‘action’,
‘right’, ‘accident’, ‘agent’, etc. In practice this kind of ambiguity is often dissolved by the
context in which the word is used.

Essilfie v. Anafo [1992]2 GLR 654 SC.

The Supreme Court Rules, 1970 (C.I. 13), rr.13(1) and (2) and 66(1) provide as follows:
66. (1) Where a party to an action before the Court fails to comply with any provisions of
these Rules or with the terms of any orders or directions given or with any rule of practice
or procedure directed or determined by the Court, the failure to so comply shall be a bar to
the further prosecution of the action unless the Court considers that the non-compliance
was not wilful and that in the interests of justice the non-compliance should be waived.”
The issue here was whether “action” in the Court Rules included “appeals”.

Held:
Per Archer C.J.
1. There is a canon of construction which states that if a word has a well-known legal
meaning, then that legal meaning must be applied.

2. It is also a settled canon of construction that a statute ought to be so construed that,

if it can be prevented, no clause, sentence, or word shall be superfluous, void or
insignificant: see R. v. Bishop of Oxford, per Cockburn C.J. The word "action" is
significant but not restrictive in its meaning. It must be construed in accordance
with settled principles of construction.

119
3. Lord Blackburn in the case of Countess of Rothes v. Kirkcaldy and Dysart
Waterwork Commissioners H.L.:

"I quite agree that no Court is entitled to depart from the intention of the
legislature as appearing from the words of the Act, because it is thought
unreasonable. But when two constructions are open, the Court may adopt the
more reasonable of the two."

4. Maxwell on the Interpretation of Statutes (3rd ed), p.319:

a. “. . . the principle of construction is laid down in these terms: 'Where the
language of a statute, in its ordinary meaning and grammatical construction,
leads to a manifest contradiction of the apparent purpose of the enactment, or
to some inconvenience or absurdity, hardship, or injustice, presumably not
intended, a construction may be put upon it which modifies the meaning of
the words, and even the structure of the sentence;
b. and for that proposition several authorities are cited. In Salmon v. Duncombe,
Lord Hobhouse in delivering the judgment of the Privy Council says: ‘It is,
however, a very serious in matter to hold that when the main object of a
statute is clear it shall be reduced to a nullity, by the draftsman's unskilfulness
or ignorance of the law.’ ”

5. Maxwell on Statutes, in the following statement: “. . in order to arrive at the real

meaning of a statute, it is always necessary to get an exact conception of the aim,
scope, and object of the whole Act.”

6. In the instant case, the word sought to be interpreted is "action" in rule 66 of C.I.
13.Furthermore, there is another one important and crucial rule of construction that
must be applied to rule 66 of C.I. 13, that is the maxim ut res magis valeat quam
pereat (it is better for a thing to have effect than to be made void).

Per Adade J.S.C.

7. Admittedly, there are several rules of statutory interpretation: the mischief rule; the
natural meaning or strict interpretation rule; the purposive rule; the ejusdem generis
rule; statutory presumption rule; noscitur a sociis rule; the general or liberal rule;
the scheme of the Act rule; and so on.

8. All these rules are no more than mere tools in the hands of the interpreter.

9. They may be employed individually or in combination. But whichever rule or

combination one selects, the objective is always the same; to ascertain the meaning
of a particular section, word or phrase in an enactment in a given situation of fact.
Very often the meaning one arrives at may depend on the rule chosen.

10.For instance, a strict interpretation may yield one result; a liberal interpretation may
yield another result; and a "scheme-of-the-Act" interpretation may yield yet another
result.
120
11.In the instant case, the word sought to be interpreted is "action" in rule 66 of C.I.
13.

Per Bamford-Addo J.S.C.

12.A correct interpretation of rule 66 of C.I. 13 would provide the answer whether the
legislature intended that rule to apply to all proceedings before this court or not.
There are various canons of interpretation which I intend to apply in this exercise.
13.The literal rule provides that words in a statute must be given their ordinary literal
meaning unless this would result in contradiction, inconsistency, absurdity or
injustice in which case the mischief rule should be applied.
14.The mischief rule says that the mischief sought to be remedied must be ascertained
to enable a proper interpretation to be put on words to accord with the true intention
of the legislature. It is the duty of the courts to give effect to the intention of the
legislature but their main source of information is the wording of the statute and if it
is not clear the courts would be aided by the rules of interpretation.

15.In Becke v. Smith (1836) Parke B. said of the literal rule thus:
a. “It is a very useful rule in the construction of a statute, to adhere to the
ordinary meaning of the words used, and to the grammatical construction,
unless that is at variance with the intention of the legislature, to be collected
from the statute itself, or leads to any manifest absurdity or repugnance,
b. in which case the language may be varied or modified, so as to avoid such
inconvenience, but no further.”
16.Another pertinent presumption unfortunately overlooked by the learned judge is the
presumption against the construction of statutes so as to oust established
jurisdiction, or else restrict the jurisdiction, of the superior courts."

17.Thus in giving words their reasonable and beneficial interpretation, words may even
be strained where necessary to prevent injustice or supposed injustice which could
not even have been contemplated by the legislature, even if it means adding words
already used in the statute to fill a gap.
18.This procedure is called "rectification" in the sense that it seeks to bring out a clear
intention on the part of the legislature with regard to the added words.

19.This principle was applied in the case of Eddis v. Chichester Constable [1969] 2
All E.R. 912, C.A. Lord Denning M.R. said at 917 when adding the words "or its
value" after the word “property” in the statute that:

20."I know this means that we in this court are filling in a gap left by the legislature—a
course which was frowned on some years ago. But I would rather the courts fill in a
gap than wait for Parliament to do it. Goodness knows when they would get down
to it! I would apply the principle which I stated in Seaford Court Estates, Ltd. v.
Asher:
21.“. . . A judge should ask himself the question how, if the makers of the Act had
themselves come across this ruck in the texture of it, they would have straightened

121
 it out? He must then do as they would have done. A judge must not alter the
material of which the Act is woven, but he can and should iron out the creases.’ ”

Syntactic Ambiguity: arises usually from the grammatical relationship or ordering of

words they are chosen and arranged by the drafter. This kind of ambiguity may arise from
combining words which are ambiguous when taken separately, in such a way that the
meaning of the words taken together is ambiguous.

Royscod v. Rogerson (1991) 3 AllER 294.

See Also Bennion: Statutory Interpretation 2nd Ed 323 -325.

Contextual Ambiguity: is the kind of ambiguity which arises when there is a conflict
between a provision and its internal or external context.

Syntactic and Contextual Ambiguities: are often resolvable either by a consideration of

the purpose of the provision or by the application of some canon of construction for
example a presumption etc.

It should however be emphasized here that on the authorities, a provision is not properly
considered ambiguous simply because it has different meanings in different contexts.
Likewise, the authorities have held that the fact that the meaning of a word is doubtful or
that it presents difficulties of interpretation per se, does not make it ambiguous.
To be ambiguous, it must have a multiplicity of meanings or senses in the context of its
use.

Vagueness of Words
Most words in daily use are said to be vague or inexact in meaning because they often
only have a core of settled meaning which is easily ascertained but beyond that they have
fringe meanings which are often indeterminate or blurred.
In practice, sources of vagueness or inexactness in meaning are numerous and
include:
i. What is referred to as the generic character of natural words
ii. Open textured nature of natural words
iii. The readiness of natural words to derive colour from their surrounding context and
the capacity of natural words to evoke emotional response.

The Generic Character of Natural Words

Natural words commonly denote classes of things and events etc and are often bound
together by distinctive common features common to all objects within that class. Each
object within that class would commonly possess the common distinctive features as well
as a number of non-distinctive features. In practice however, the identification of the
essential distinctive features of a word often leave copious room for argument and thereby
creates problems of vagueness.
See Thornton: Legislative Drafting @ P 8.

122
Specifically, the problem is one of determining what distinctive features or conditions
must be present for a proper use of a word or whether or not a given condition is a
distinctive feature of the word at all.

This problem of vagueness often arises even in respect of the most familiar words such as
a ‘motor car’ for example. As Thornton notes

“the motor car is so much a fact of contemporary life that one could imagine that the
common features are patently obvious, but perhaps they are not.
Is the possession of four-wheels a distinctive feature? At what seating capacity does a
motor vehicle cease to be a motor car and become a bus? Is a petrol or diesel powered
engine an essential element? Need the vehicle be in working order?”

Similar problems could arise in respect of popular words like ‘shop’ the distinctive feature
of which is generally thought to be some kind of structure containing goods for sale. This
popular image is however not supported in a number of cases.

Warley Caravans Ltd v. Wakelin (1966) LGR 534

In this case an open site used for the business of selling caravans was set to be a shop.
Compare that with:

Greenwood v. Whelan [1967] 1 QB 396

In this case, a market place stall constructed of a tabular steel framework of upright
support and horizontal bearings bolted together with among others electric lights and an
illuminated sign was held not to be a shop.

Appiah v Biani
Whether an uncompleted structure at lintel level is a house.

Another kind of vagueness which creates problems in interpretation and which is worthy
of note here is what is sometimes referred to as Degree Vagueness. Examples are
expressions like “it’s red”, “it’s bald”, or “is middle aged”. As M.S. Moore rightly
observes in Semantics of Judging, these predicates are vague in the sense that “the class of
things to which they might apply can be ordered along a continuum along which there are
no natural breaking points”. Thus ordinary usage does not for e.g. fit any line that
separates red from pink; or that separates middle age from youth or bald from not bald.
Any of these forms of vagueness mentioned above can in practice create problems of
interpretation especially in respect of their application in the penumbra area.

Open Textured Nature of Words

Another characteristic of words closely derived from the generic character of words and
the problem of Degree Vagueness which also creates difficulties of interpretation is the
open textured nature of natural words. By this is meant the possibility of vagueness of
these words or natural words in the sense that in new situations which might not have

123
materialized at the time these words were used, there could be doubts as to their
applicability.

In his Concept Of Law, H.L.A. Hart comments on problems of inherent vagueness arising
from the open textured nature of natural words and was of the view that natural languages
such as the English language are so irreducibly open textured and have meanings that
change with circumstances, time etc. so that even where there is a core meaning which is
clear, there are always problems of fringe meaning.

Friday, November 25, 2005

Hart’s discusses the problem especially in relation to the use of general rules and
standards in social control and regulation. He notes at page 123 of his Concept Of Law
that in all fields of experience, not only that of rules, there is a limit inherent in the nature
of language to the guidance which general language can provide. There will indeed be
plain cases constantly recurring in similar contexts to which general expressions are
clearly applicable; but there would be several others to which they are not. Queries: if
anything is a vehicle, the motor car is one, but there would also be cases where it is not
clear whether they apply or not. “Does vehicle used here include bicycles, airplanes or
roller skates?”

Hart further notes @ 124 -125 that whatever devices, precedent or legislation is chosen
for communication of standards, these however smoothly they work, in a great mass of
ordinary cases, will at some point where their application is required, prove indeterminate;
they would have what has been termed “open texture”.

Readiness of Words and Language to Derive Colour from their Surroundings

Another major source of vagueness of words is their readiness to derive colour from their
surroundings so that a word which might have a clear meaning standing by itself might
have its meaning blurred when used in association with others. The colour will vary
according to the circumstances of their use, the context, the general purpose of the
communication etc.
Thus in practice the surroundings of a word are particularly relevant to its meaning,
especially its fringe meaning.

Capacity of Words to Evoke Emotional Response

Emotional factors may also contribute to the vagueness of words. Some phrases evoke
emotional responses or have an emotional impact which contributes to the uncertainty in
their meaning. E.g. words like ‘immoral’, ‘decent’, ‘racial discrimination’, ‘fair’,
‘equal(ity)’, ‘reasonable’, etc.

It might be worthwhile to mention here the technique of deliberate vagueness which

involve the deliberate choice of such words like ‘fair’, ‘reasonable’ etc by a drafter of a
124
DSC instead of more specific or particular words or provisions laying down precise
standards or rules. Words such as ‘reasonable’ ‘fair’ etc are in effect often used by the
legislature to deliberately delegate discretion to the courts as they deal with particular
cases.

Another source of doubt is instability of words. This has to do with the difficulties
associated with changes in meaning of language etc in keeping with social, scientific and
technological changes etc arising with the passage of time. This has often led to
specialization or narrowing in meaning of words or sometimes extensions in meaning and
consequentially, fluidity and instability of language. See Thornton Pp 12-13. See:

Bakker v. Wilson (Supra);

Garmans v. Ekins (Supra);

Dyson Holding Ltd v. Fox (See Cross Pp 51-53).

Conditions relating to the nature and use of rules in the regulation and control of
society
The problems associated with the nature and use of natural language to one side.

Another big source of confusion in interpretation has to do with the use of rules
particularly in statutes and national constitutions.

Rule in this context could be broadly defined as a general norm mandating or regulating
conduct or action in a given situation. A rule in this sense is normative or prescriptive in
the sense that it is concerned with what ought or may or can be done in relation to
behaviour etc. See Twining And Miers P. 131.
Rule thus broadly defined may include precepts, principles, guiding standards and several
types of maxims etc. This then clearly distinguishes ‘rule’ as used here from the narrow
concept of ‘rule’ favoured by scholars like Ronald Dworkin. (See Taking Rights Seriously
(1977) @ P. 22 Ff).

For our present purposes it is enough to state that the use of rules in this broad sense
particularly in statutes and national constitutions is one of the most important sources of
difficulties in interpretation. In practice these rules are hardly perfect for reasons inter alia,
that as humans legislators etc, are often unable to anticipate in advance all the
contingencies or factual situations to which these rules might apply; and often, their aims
and purposes in enacting these rules are often unclear. The rules themselves are said to be
in a sense ‘open textured’. In his Concept Of Law, H.L.A. Hart comments on these
difficulties at pages 125-126 as follows:

“it is a feature [these problems of rules] of the human predicament [and so of the
legislative one] that we labour under two connected handicaps whenever we seek to
regulate, unambiguously, and in advance some sphere of conduct by means of general
standards to be used without further official direction on particular occasions. The first
125
handicap is our relative ignorance of fact; the second is our relative indeterminacy of aim.
If the world in which we live were characterized only by a finite number of features, and
these together with all the modes in which they could combine were known to us, then
provisions could be made in advance for every possibility. We could make rules the
application of which to particular cases never called for a further choice… plainly this
world is not our world; human legislators can have no such knowledge of all the possible
combinations of circumstances which the future may bring…(read on to p 126).

Conditions Relating to Imperfections in the Making of Legal Documents and Rules

The conditions that necessitate interpretation are sometimes traceable to imperfections in
the making and drafting of documents. Twining And Miers list several instances of these
avoidable defects and perils of drafting to include poor organization; style of drafting
inappropriate to the instrument; inappropriate choice of words; inappropriate vagueness;
superfluous words used, undue prolixity, obscurity; internal inconsistencies etc etc.

There are several instances of errors of draftsmen in relation to DSCs in Ghana. See:

Republic v. High Court Accra; Ex Parte Adjei [1984-86] 2 GLR 511 CA.
Ref; Buta @ 2
Section 19 of P.N.D.C.L. 42 not merely provided for the membership of the court; it went
further by providing that:
"19. The Supreme Court as continued in existence by the Proclamation is hereby re-
constituted with a membership of—
(a) the Chief Justice who shall be the president thereof; and
(b) not less than four other justices of the Supreme Court;
but for the determination of a particular cause or matter, the Chief justice may request
such other justices of the Court of Appeal as he may deem fit to sit in the Supreme Court
for such period as the Chief Justice may specify or until the request is withdrawn.”

In the instant application before the Supreme Court for certiorari to quash a reviewed
order granted by the High Court, for want of jurisdiction, counsel for the applicant
objected to the jurisdiction of the Supreme Court (as constituted) to hear the application.
His objection was founded on the ground that by the provision in article 115 (1) of the
Constitution, 1979, as amended by section 19 of P.N.D.C.L. 42, for a duly constituted
Supreme Court, there should be a Chief Justice and not less than four other justices of the
Supreme Court and it was only when that criterion had been met, that a Supreme Court
would be duly constituted to which justices of the Court of Appeal could be invited by the
Chief Justice to sit as provided by P.N.D.C.L. 42, s. 19. Since the complement of justices
of the Supreme Court had fallen below the prescribed number (only three at post at the
time of the application) the Supreme Court had ceased to exist and consequently any
addition to its membership by the Chief Justice from the justices of the Court of Appeal
could not cure the defect.

Held:
Per Sowah JSC:
126
1. The burden of the objection was that though the Supreme Court exists it is not
functional by reason of an infirmity in its membership.
2. It can be seen that under the law now in force the jurisdiction conferred on the
Supreme Court may lawfully be exercised by any five justices of the Supreme Court or
the Court of Appeal or both for its day to day business.
3. The narrow rules of construction applicable in the cases of contracts, wills, statutes and
ordinary legislation may or may not be adequate when it comes to the interpretation of
a Constitution or law intended to govern the body politic.
4. In the instant case, the court is interpreting provisions relating to an organ of State,
namely the judiciary. Our interpretation should therefore match the hopes and
aspirations of our society and our predominant consideration is to make the
administration of justice work.

Per Adade J.S.C.

5. Thus by P.N.D.C.L. 42 the justices of the Supreme Court together with the justices of
the Court of Appeal (always with the Chief Justice himself) constitute one pool, from
which "the required number of justices for a duly constituted Supreme Court …” may
be drawn for the despatch of the business of the Supreme Court.
6. By widening the field of selection to include justices of the Court of Appeal, article
115 (1) as amended by P.N.D.C.L. 42, s. 19 has rendered the word "thereof" at the end
of article 115 (2) otiose, useless. As originally drafted, "thereof” meant "of the
Supreme Court."
7. Now that the selection may be made from the justices of the Court of Appeal also, "not
less than five justices "thereof" can only sensibly mean “not less than five justices of
both the Supreme Court and the Court of Appeal." The selection can no longer be
limited to justices of the Supreme Court alone. This is the interpretation that can make
section 19 of P.N.D.C.L. 42 effectual.

8. Any other interpretation will make section 19 inoperable. But we must interpret ut res
magis valeat quam pereat. A statute must be interpreted to give effect to all its parts,
unless such an interpretation will lead to an absurdity.

9. Here, to give effect to section 19 of P.N.D.C.L. 42 it will be absurd to give "thereof” in

article 115 (2) of the Constitution, 1979 its original meaning, for it will be ludicrous to
say that although section 19 of P.N.D.C.L. 42 allows the use of justices of the Court of
Appeal, the selection must, by article 115 [p.523] (2), be limited to justices of the
Supreme Court only.

10. It is patent, looking at the regime of P.N.D.C.L. 42 that "thereof” was left in place
through the carelessness of the draftsman. It is the duty of a draftsman, when given
policy changes to put into legislative form, to ensure that the required amendments,
when effected, will run and be compatible with the remaining sections of the law he is
amending. If there should be any incongruities, it is his duty to effect consequential
amendments.

Per Francois JSC:

127
11.In this context, I respectfully adopt the general law thus expressed in Halsbury's Laws
of England (3rd ed.), Vol. 36 at p. 413, para. 628: "Unless they do so by express words
or necessary implication, statutes should not be construed so as to take away the
jurisdiction of superior courts."

Per Taylor JSC

12.I think in his dictum in Director of Public Prosecutions v. Schildkamp [1971] A.C. 1,
H.L., to be referred to presently, Lord Reid refuted the view that side notes are of the
enactment. In my opinion so long as they are not utilised to contradict or control the
unambiguous language of the enactment, [p.539] side notes can be considered at least
for the purpose of finding out whether they reveal any doubt as to the meaning of an
enactment. This Lord Reid in Director of Public Prosecutions v. Schildkamp (supra) at
10, H.L. in apparent modification of his 1964 view in the Chandler case (supra) said:

13.“…it may be more realistic to accept the Act as printed as being the product of the
whole legislative process, and to give due weight to every thing found in the printed
Act ... In such a case it is not very meaningful to say that the words of the Act represent
the intention of Parliament but the punctuation, cross-headings and side-notes do not."

Sasu v. Amua Sekyi [1987-88] 1GLR 506 CA. (Buta 273).

An application for leave to appeal to the Supreme Court was dismissed by the Court of
Appeal. The applicant then brought the instant application for an order of the Court of
Appeal staying execution of the judgment of the circuit court pending the hearing and
determination of his alleged appeal to the Supreme Court. Counsel for the respondent
raised a preliminary point that the applicant was estopped from pursuing his application
because since he did not obtain prior leave of the Court of Appeal, as a matter of law he
had not lodged an appeal to the Supreme Court as would entitle him to maintain an
application for stay of execution under the Courts (Amendment) Law, 1987 (P.N.D.C.L.
191), s. 3 (2).

The wording of the provision of the new section 10 (3) of Act 372, were as follows:

"10 (3) (a) Except as otherwise provided by this Act or any other law, an appeal shall lie
as of right from a judgment, decree or order of the High Court of Justice to the Court of
Appeal in any cause or matter determined by the High Court;

(b) Notwithstanding the provisions of paragraph (a) of this subsection, where a decision of
the High Court confirms the decision appealed against from a lower court, an appeal from
the High Court may lie to the Court of Appeal with the leave of the High Court which may
on its own motion or on an oral application by the aggrieved party decide whether or not
to grant the leave to appeal, and where the High Court refuses to grant the leave to appeal
the aggrieved party may apply to the Court of Appeal for such leave."
Held: Per Taylor JSC:
1. In my respectful opinion a close study of the provisions of section 10 (3) (b) of Act 372
and a perusal of its wording demonstrates that the draftsman has negligently led the

128
 legislature into an obvious error; I however have a grave suspicion that the error is
typographical.

2. It is now, I apprehend, a recognised legal position in the interpretation of statutes that

words and expressions in an enactment are not to be taken in isolation but that their
true meaning and purport must be ascertained by considering their context. This
principle regulating the construction of statutes is well expressed in the remarks of
Viscount Simonds in Attorney-General v. Prince Ernest Augustus of Hanover
H.L., where he said:

3. “…words, and particularly general words, cannot be read in isolation: their colour and
content are derived from their context. So it is that I conceive it to be my right and
duty to examine every word of a statute in its context, and I use 'context' in its widest
sense . . . as including not only other enacting provisions of the same statute, but its
preamble, the existing state of the law, other statutes in pari materia and the mischief
which I can, by those and other legitimate means, discern the statute was intended to
remedy."

4. With this principle as a guide I propose to examine as meticulously as I can, the

provisions of section 3 (2) of Act 372 as inserted by P.N.D.C.L. 191.

5. On this analysis and comparative study and guided by the dictum of Viscount
Simonds in the Prince Ernest of Hanover case (supra), I think the provision of
section 3 (2) pruned of the typographical omissions which were manifestly made by
the typist but were unwittingly ignored by the draftsman and mistakenly acquiesced in
by the legislature should rather read as follows to reflect the apparently true legislative
intent:

6. "Where a decision of the Court of Appeal confirms the decision appealed against from
a lower court, an appeal from the Court of Appeal shall lie against such decision of the
Court of Appeal with the leave 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. . .”

7. I have arrived at this conclusion by considering the content and consequently the
wording of section 3 (2) not in isolation but within the context of the whole of
P.N.D.C.L. 191. And I have carried out this exercise by examining all the other words
of P.N.D.C.L. 191.
8. I have furthermore looked at the previous state of the law and the objectives of the law
with the mischief it was designed to remedy.
9. The exercise has necessitated filling in gaps by adding words to the provisions to make
sensible reading in order to give effect to the intention of the legislature. I suppose the
legal question posed by this apparent meddling with enacted words in order to discover
what the legislature intended to enact is: do the principles and canons of interpretation
permit this license with legislation?
129
10.Lord Reid, espoused the modern liberal trend when in Federal Steam Navigation Co.
Ltd. v. Department of Trade and Industry [1974] 2 All E.R. 97 at 100, H.L., he
said:

11."Cases where it has properly been held that a word can be struck out of . . . statute and
another substituted can as far as I am aware be grouped under three heads: where
without such substitution the provision is unintelligible or absurd or totally
unreasonable; where it is unworkable; and where it is totally irreconcilable with the
plain intention shewn by the rest of the ... statute.”

12.Sir Rupert Cross, Vinerian Professor of English law in the University of Oxford and an
eminent jurist of great ability, in his book on Statutory Interpretation (1976 ed.) at 43
after reviewing the authorities and inspired by Lord Reid's exposition in the Federal
Steam Navigation case (supra), formulated the following rule of statutory interpretation
gathered from the authorities which permits the modification of its language by
deleting words or adding words to the provisions of an enactment. He stated the rule
thus:

13."3. The judge may read in words which he considers to be necessarily implied by
words which are already in the statute and he has a limited power to add to, alter or
ignore statutory words in order to prevent a provision from being unintelligible or
absurd or totally unreasonable, unworkable or totally irreconcilable with the rest of the
statute."

General Cold Industry Ltd v. Standard Bank of Ghana Ltd [1982-83] GLR 360
(Buta Pp 4, 60 -62).
The plaintiffs who are a limited liability company are called "General Cold Industry Ltd."
By an AFRC amended decree the name of a company "General Cold Co., Ltd." was
added to a schedule and thus the bank accounts, if any, of the said company were frozen.
All shares, debentures, securities and proprietary rights of the said company called in the
Decree "General Cold Co., Ltd." which were held in or for and on behalf of the company
by any person were transferred to the State. This Decree was made retrospective with
effect from 20 August 1979, but the date of its Gazette notification was 21 September
1979.
Issue whether "General Cold Co., Ltd." could be construed to mean "General Cold
Industry Ltd." which the decree meant to effect.

Held per Taylor J as he then was:

1. The submission of Counsel for the Attorney-General as I understand it is that I must
substitute for "Company" the word "Industry" and then the enactment will cover the
plaintiffs.
2. If I put this kind of construction on the words, I would be supposing that the legislature
has made a mistake. The legislature with all the State apparatus at its disposal is
130
 alleged to have made a mistake or its draftsman has made a mistake. What prevents it
from correcting its own errors?

3. The law is that if the legislature has made a mistake where there is no ambiguity in the
expression used, the remedy is in an amending Act. The legislature ought to know that
that is the law and I must keep that in mind when construing these enactments. As Lord
Blackburn said in the Privy Council in Young & Co. v. Royal Leamington Spa
Corporation (1883): "we ought in general, in construing an Act of Parliament, to
assume that the legislature knows the existing state of the law."

4. It was not competent to read words into an Act of Parliament without reason, and the
reason must itself be found in the Act itself. This view is consistent with authority and
in Vickers, Sons & Maxim Ltd. v. Evans, the Lord Chancellor, Lord Loreburn
expressed the same sentiments when he warned,"... we are not entitled to read words
into an Act of Parliament unless clear reason for it is to be found within the four
corners of the Act itself."

5. I have not been shown any reason contained in L.I. 1216 or AFRCD 31 why I must
substitute for "Company" the word "Industry." If I did so, I will not be heeding the
warning given by Lord Loreburn over 70 years ago. I will be legislating and not
interpreting.
6. I think I must not also lose sight of the fact that this is a penal legislation. It seeks to
confiscate the assets of citizens. I will not subscribe to the view that it must be
construed strictly because I think the modern tendency is to construe all legislation
amply and beneficially for the purpose of giving effect to the intention of the
legislature as is revealed in the enactment.

7. Nevertheless, I think, for penal legislation, there is a rule of long standing which was
succinctly expressed by Wright J. in London County Council v. Aylesbury Dairy
Company Ltd. [1898] 1 Q.B. 106 at p. 109. He there said:
8. "I have certainly always understood the rule to be that where there is an enactment
which may entail penal consequences, you ought not to do violence to its language in
order to bring people within it, but ought rather to take care that no one is brought
within it who is not brought within it in express language."

9. I think a close reading of Sam v. Comptroller of Customs and Excise (supra) does
reveal that I was at pains to demonstrate that the intention of the legislature must be
discovered from the enactment itself. It is only if that intention is discovered in the
enactment itself, but the words give rise to absurdity or repugnancy or something
opposed to good sense, that the words may be altered to give effect to the legislative
intention so discovered. The exercise postulate a position where there is ambiguity and
where the legislative intent is indeed discoverable by reading the enactment.

10.If there is in point of fact no ambiguity then no question of construction arises and the
interpreter merely construes the words in their ordinary meaning following the rule
enunciated almost 400 years ago by the Barons of the Exchequer in Heydon's Case
131
Compare with:

Najat Metal Enterprise v. Hanson [1982-83] GLR 81:

The only issue is whether the Najat Company which was confiscated is the same as the
Najat Metal Enterprises Ltd. The defendants caused a search to be made at the Registrar-
General's Department and the result shows that there was no Najat Company, the nearest
to that name is the plaintiff-company. There is no other company registered in the country
whose name is even similar to the name "Najat Company" except the plaintiff. The people
who were directed to take over the company never had any doubt about the identity of the
company they were to take over.

Held:
Per Cecilia Koranteng-Addow J.
1. It seems quite clear to me that the plaintiff was intended but obviously a mistake
has been made. If the mistake is a mere misnomer, then I would say that the
plaintiff has no cause to complain but if the mistake is such that it raises doubts
about the identity of the company intended the name "Najat Company" cannot be
construed to refer to the plaintiff's company.
2. The test which was applied in Davies v. Elsby Brothers Ltd. (supra) is applicable to
this case. Devlin L.J. said:
3. "In English law as a general principle the question is not what the writer of the
document intended or meant but what a reasonable man reading the document
would understand it to mean; and that, I think, is the test which ought to be applied
as a general rule in cases of misnomer”
4. I am satisfied that the name Najat Company as appearing in exhibit 2 can only be
referable to the plaintiff and no other company. Any other interpretation would not
give effect to the expressed intention of the maker of the document.

Events after the Making Or Enacting of Documents Or Rules which lead to Doubts

This has to do with our inability as humans to anticipate in advance changing

circumstances etc in future. Some of these might have to do with:
1. Changes in the factual context of the rules
2. Changes in the mores or prevailing values
3. Changes in the meaning of words over time
4. Social, economic and technological changes.

In Re Amarteifio
Paucity authoritive

Canons/Rules of Interpretation
Basic Rules, Aids, Presumptions and Special Binding Statutory Rules (eg. CA 4).

132
Approach to solving Interpretative problems
1.Identify the issues involved in the problem question.
2. ordinary meaning primacy (whether one relied on the ordinary meaning concept or not)
3. decide to depart or not (whether the decision to depart was correct or not)
4. kind of departure (how and where one is departing).
5. conclusion.

Tuesday, November 29, 2005

By canons or rules of interpretation we refer to the body of rules used in ascertaining the
MSC of language used in the DSC. It is also to be emphasized here that ‘rule’ in the
context is used in the very broad sense of a general norm mandating or guiding conduct or
activity in a given situation and will consequently encompass inter alia, various precepts,
principles, maxims, etc of interpretation. Rule in this sense is therefore clearly
distinguishable from the narrow definition of the term as appears in the works of scholars
like Ronald Dworkin.

In the interpretation of DSCs the courts in practice adopt various approaches, theories etc
which engender distinct precepts, principles, etc. The result of interpretation in a particular
case is then invariably a reflection of the preferred approach to interpretation as well as the
consequential precepts, principles, maxims, etc engendered by that approach. Thus a
person who adopts a purposive approach to interpretation will of necessity adopt rules
which might differ from those adopted by one who favours a mechanical approach, even if
the two approaches share some common rules.
This position is clearly reflected in the view of:

Essilfie v. Anafo [1992] 2 GLR 654 SC

In the instant case, the word sought to be interpreted is "action" in rule 66 of C.I. 13.

Adade JSC said;

“Admittedly, there are several rules of statutory interpretation: the mischief rule; the
natural meaning or strict interpretation rule; the purposive rule; the ejusdem generis rule;
statutory presumption rule; noscitur a sociis rule; the general or liberal rule; the scheme of
the Act rule; and so on.

All these rules are no more than mere tools in the hands of the interpreter. They may be
employed individually or in combination. But whichever rule or combination one selects,
the objective is always the same; to ascertain the meaning of a particular section, word or
phrase in an enactment in a given situation of fact. Very often the meaning one arrives at
may depend on the rule chosen. For instance, a strict interpretation may yield one result; a
liberal interpretation may yield another result; and a "scheme-of-the-Act" interpretation
may yield yet another result.”

Our interest for now is to consider the nature, categorization and functions of the various
canons or rules of interpretation engendered under the MOPA to interpretation.
133
One key issue that arises in practice in respect of these rules has been whether they are to
be conceived as binding precepts or as CROSS puts it, “merely as principles or traditions
of good practice amongst judges and interpreters”. See CROSS @ p. 39.

There is also the problem of proper categorization as different writers and scholars often
adopt different categorization or division of the rules on the basis of their perception of
their nature and function in the interpretive process.

On the issue of whether the issues are binding precepts or simply guides, the authorities
are now overwhelming that the rules of interpretation are not binding or compelling rules
in the Dworkinian sense but are more like principles or guides to meaning scope and
effect of the language of DSCs. See (1) Lewison: Interpretation Of Contracts pp 70-71,
155-156 where it is made clear that “a rule of construction is a presumption rather than a
rule of law; and accordingly will only be applied in the absence of a contrary intention.

Chandris v. Isbrandsten Moller Company Ltd [1951] 1 KB 240

A voyage charterparty to which the US Carriage of Goods by Sea Act applied stipulated
that the cargo was to consist of lawful merchandise , “excluding ‘acids, explosives, arms,
ammunition or other dangerous cargo”, and contained a demurrage clause. The master of
the vessel consented to the shipment of turpentine with the knowledge of its nature and
character, but did not thereby waive any of the rights or remedies of the owner in respect
of the shipment, nor had he any authority from the owner to do so. On reaching Liverpool
from the USA, after loading for two days, because of the dangerous nature of the
turpentine, she was ordered out of the dock to unload into barges with the result that the
unloading took longer than would otherwise have taken. On a calim by the shipowners for
demurrage and damages for detention at Liverpool port, the question for the court was
whether turpentine was a dangerous cargo within the meaning of the law of the
Charterparty.

Held per Devlin J:

1. A rule of construction cannot be more than a guide to enable the court to arrive at
the true meaning of the parties.
2. The ejusdem generis rule means that there is implied into the language which the
parties have used words of restriction which are not there. It cannot be right to
approach a document with the presumption that there should be such an implication.
3. To apply the rule automatically in that way would be to make it the master and not
the servant of the purpose for which it was designed-namely, to ascertain the
meaning of the parties from the words they have used.
4. The so-called rule is, in short, really only a recognition of the fact that parties with
their minds concerned with the particular objects about which they are contracting
are apt to use words, phrases or clauses which, taken literally, are wider than they
intended.
5. Under the description of ejusdem generis the principle is applied to words only.
6. But it is not different from the principle which restricts the meaning of clauses if
literally they are inconsistent with the main object of the contract, as in Glynn v
Margetson
134
7. The same principle is put to work when it is sought to apply such clauses to events
not contemplated by the contract and frustrating events, though literally covered by
the wide language of the suspension clauses, are not within them.
8. Thus the principle that if the general words have an unrestricted meaning, the
enumerated items are surplusage, is of little value in ascertaing the intention of
parties to commercial documents.
9. Therefore the presumption against surplusage is not applicable to commercial
documents. Thus a ‘cargo of wheat and/or maize “and /or other lawful
merchandise” cannot imply that the merchandise has to be similar to wheat or
maize.

135
Maunsell v. Olins (1975) [supra]
where he notes (see Buta @ 78)
“the rules of construction are relied on. They are not rules in the ordinary sense of having
some binding force. They are servants not our masters. They are aids to construction,
presumption or pointers. Not infrequently, one rule points in one direction, another in a
different direction. In each case, you must look at all the relevant circumstances and
decide as a matter of judgment what weight to give to each particular rule.

Be that as it may, a close study of the various rules or canons of interpretation even under
the MOPA clearly reveals that even as guides, a number of the rules are considered more
fundamental or relatively more binding than others in the interpretive process and that the
various rules also perform varying roles in the process. From this standpoint, [how
binding and the functions it performs] the rules of interpretation under the MOPA have
been usefully categorized into:
a) Basic rules
b) Aids
c) Presumptions
d) Special rules

Basic Rules
These are the most fundamental of the rules of interpretation under the MOPA and have a
near or almost binding status even if not binding in the Dworkinian Sense. These rules are
mostly grounded in the common law.

These rules are described as basic also because they apply the most basic principles or
steps that the court or interpreter has to follow in the interpretive process. They are given a
lot of weight and are consequently to be departed from only in the most Compelling
Circumstances.
Properly applied and in the appropriate order, these rules at one stage or the other should
offer a solution to the interpretive problem or issue under the MOPA.

Examples of these rules under the MOPA are found in Cross @ p 49. In the case of
documents, see the course outline. Among these are key background basic rules that
define the nature and scope of the interpretive process under the MOPA, example,
interpretation must reflect the intention of the author(s), it must be based on the text of the
DSC itself, and the DSC must be read as a whole.

The actual process starts with the:

i. ordinary meaning rule failing which

ii. one can proceed to the secondary meaning rules, failing which
iii. one goes to the necessarily implied rule, and ultimately,
iv. the power of rectification of the courts.

136
Applicable to documents, statutes and constitutions

Finally it has to be added that these basic rules are in practice supplemented or employed
at all stages of the interpretive process together with other relatively less binding rules or
principles or guides. (Aids/Presumptions) as well as other special statutory rules such as
the Interpretation Act 1960 CA 4 where these are applicable or appropriate.

137
In other words, these aids, presumptions etc are deployed simultaneously with all the basic
rules in the interpretive process. These aids and presumptions are therefore to repeat, not
to be deployed in isolation from the basic rules. The point to be made here could be
captured pictorially thus:

Objective of Interpretation MSC reflecting Purpose

Aids Basic Rules Presumptions

Special Rules

Objective of Interpretation MSC reflecting Purpose

Aids Basic Rules Presumptions

Special Rules

Wednesday, November 30, 2005

Aids to Interpretation

These are the less binding rules, maxims, principles etc which serve as guides to the
meaning of the language of the DSC or the intention of the author(s) when deployed
alongside the Basic Rules. These Aids like the basic rules are largely grounded in the
common law and might be conflicting.

Examples here can be given of the:

(i) ut res magis valeat quam pereat rule: ie: it is better that a thing should have effect than
be made void.
(ii)The linguistic canons of construction also known as the Rules of Language e.g.
i. expressio unius est exclusion alterius rule: ie: the express mention of one
or more things of a particular class may be regarded as silently or
inferentially excluding all other members of that class.
ii. ejusdem generis rule: ie: where in a statute or a document there are
general words following particular and specific words, the general word or

138
 words must have their meaning restricted or confined to the meaning as
conveyed by the specific words.
iii. Noscitur a sociis: literal meaning: it is recognized by its associates: ie:
where a general word is preceded by or comes after specific words and an
issue arises as to the meaning of the general word, the general word will
take its colour or meaning from those which surround it. The meaning of
the word would be restricted to a sense analogous to the specific words.
It is an aspect of the ejusdem generic rule.

139
Presumptions
These are in a sense special aids to interpretation which essentially afford a prima facie
indication of the principle and values etc underlying the drafting of a particular provision
or the intention(s) of the author(s) of the DSC, particularly as regards the meaning, scope
and effect to be given to the provision.

The critical distinction between presumptions and the other aids or guides is that unlike
the other aids, presumptions embody particular assumptions, inferences, conclusions etc
likely to be drawn by the court or interpreter as to the working of a DSC in the absence of
good reasons for reaching a different inference, conclusion, etc.

The core idea here, as in all other uses of the concept of presumption, is that of the burden
of proof. The burden is therefore on the party against whom the presumption worked to
rebut it.

In effect, presumptions would in practice for example encompass general principles or

positions of law, taken for granted or assumed by the court to have been taken for granted
by the drafter of a DSC and upon which the courts will therefore found a prima facie
approach to the interpretation of the DSC.

Again in practice, presumptions would encompass assumptions, inferences etc made not
only as to how DSCs are drafted [example presumption of perfect expression by the
legislature, presumption against tautology and the presumption that the legislature does
not make mistakes and the presumption of consistent expression]. Or, conclusions and
inferences as to the basic values and principles that inform the legal system [for example
presumption of compliance with constitutional norms and values, presumptions of
compliance with human rights, and presumptions of compliance with international law.

Special Binding Rules

These are invariably special binding statutory or constitutional rule etc that bear on
interpretation of DSCs even under the MOPA. Examples article 107(b) of the 1992
Constitution.

Interpretation Act, 1960, CA 4

In Ghana, these statutory binding rules are likely found in the Interpretation Act CA 4.
See for example section 8 on the effect of repeals and revocation. See also section 19(1)
for the rule that bars parliamentary debates as an aid to interpretation. See also section 2-4
on the use of headings, marginal notes etc in interpretation. See also section 23(4) of CA 4
for example which bindingly provides that in an enactment ‘year’ means calendar year.

It is important to add here however that on account of section 1, the provisions of CA 4

need not always be binding and are to sometimes apply only when a contrary intention
does not appear in the Act. If such an intention appears it will prevail over the position in

140
CA 4. It is then presumed that drafters etc are aware of the provisions of CA 4 and that
they intend to comply with them unless the contrary appears in the enactment.

141
Role of The Interpretation Act 1960 CA 4 in Construing Legislation in Ghana per
Buta

NPP v. Attorney-General [CIBA Case] [1996-97] SC GLR 729;

Here the plaintiff, NPP was seeking a declaration that the Council for Indegenous
Business Associations Law, 1993, PNDCL 312 was inconsistent with or in contravention
with the provisions of the constitution with respect to the right of citizens to freely
associate. On preliminary objection raised by the A-G that the NPP had no capacity to
bring the bring the action under Art 2(10 since the NPP was not a natural person.

1. The majority decision was of the view that since the Interpretation Act , 1960, CA4
had defined a “person” to include artificial persons under section 32, the objection
was unfounded.
2. In contra, Kpegah, JSC was of the view that the word “persons” as used in the
constitution offered itself to two meanings, a natural and legal person, and was
therefore ambiguous.
3. In that respect he was of the view that it is the context in which the word “person”
was used which must determine the sense in which it is used, and not simpliciter the
interpretation in section 32 of CA4 because section 32 is used subject to section1 of
CA 4 and that section 32 applies unless the context otherwise decides.
4. To him the issue was whether in Art 2(1) the context permits both meanings to be
imported into the word.

Barclays Bank of Ghana Ltd v. Ghana Cable Company Ltd [1998] SCGLR 1.
This was an appeal by the Bank against the unanimous judgment of the CA setting aside
the HC ruling refusing to vacate a summary judgment entered against the defendants. It
was the contention of the defendants at the CA that the judgment delivered five years
earlier was in error because the defendants had not been served with the writ of summons.
At the SC the issue turned on service by post. In critising Taylor J, as he then was, in the
case of Dakar Ltd v Industrial Chemical and Pharmaceutical Co. Ltd [1981] GLR 453 for
resorting to the Interpretation Act when the Companies Act Act179 specifically dealt with
that issue.

At page 15, Acquah JSC, as he then was said:

1. “ Indeed, the Interpretation Act, 1960 (CA4), is not to be resorted to in determining

the meaning or scope of a word in an enactment where either the meaning or scope
of that word is apparent from the context of that enactment, or the enactment
contains its own interpretation provision specifying the meaning or scope of that
word.
2. Thus section 1 of CA 4 reads: “1. Each provision of this Act applies to every
enactment…. except in so far as the contrary intention would appear in the
enactment.”
3. And a contrary intention would appear where, as stated earlier on, the meaning is
evident from how the word had been used in that enactment or where the enactment
has a provision explaining the meaning of that word.”
142
 4. Therefore since Act 179 explains the service by post, it will be wrong and contrary
to s1 of CA 4 to resort to CA 4 provisions.

It is however to be emphasized that the categorization of the rules of interpretation is not

stone written and that the rules could be differently categorized or described depending on
the perspectives of the particular judge, writer or interpreter regarding the nature and
function of these rules. See for example Bennion: Statutory Interpretation @ 380 where he
categorises the rules in two; binding rules, principles of legal and public policy;
presumptions of legislative intention, the linguistic canons of construction etc.

143
Validity in Interpretation;
Objectivity, Justification and Evaluative Standards in Interpretation
This topic touches on some of the most fundamental issues in the law of interpretation.
Specifically it deals with questions regarding the validity as well as the bases for
evaluating our interpretive approaches, theories, and answers to interpretive issues.

Questions of objectivity inter alia relate to fundamental issues of whether a particular

approach or interpretive claim is true or false, good or bad, just or unjust; and whether or
not there exists some objective criteria by which an approach, theory or some interpretive
claim can be said to be superior to others.

Questions of justification here refer to the process of giving reasons or the substantive
reasons given to support various methods or approaches as well as our interpretive claims
[for example, rules, principles , assumptions etc applied in interpretation].

The enterprise of ascertaining the objective validity or justifying interpretive claims or

approaches etc ultimately reduced to questions relating to the evaluative standards that we
apply that is, the basic criteria for evaluating arguments we put forward in support of our
preferred approaches methodologies or claims in interpretation.

It is also to be emphasized here that these evaluative standards are invariably grounded in
concerns of political morality, theories of knowledge, theories of language etc that could
not be dealt with in detail here.

It should suffice to note for example that the dominant view today on questions of
objectivity, justification, or evaluative standards in interpretation appears to be that
ultimately these questions or issues turn on the values and convictions on which one’s
interpretive claims are founded. Dworkin for example notes that if these premises [the
values and convictions] we use to support our claims about objectivity or validity are
challenged we ultimately have to rest on convictions or values for which we have no
further argument.

Indeed Dworkin adds that in his view, the whole issue of objectivity which dominates
contemporary theory of interpretation is a kind of fake and he suggests that we should
ultimately “account to ourselves for our own convictions and values as best as we can,
standing ready to abandon those that do not survive reflective inspection. See Dworkin:
Matter Of Principle Pp 1710172.

In effect, the dominant position today is that there are no intrinsically right legal answers
to questions of proper methodology or approaches or rules etc of interpretation and
consequentially any principle, rule or assumption in interpretation. Invariably, the
standards for evaluating our preferred approaches and the justifications thereof would
derive from the external perspectives of political and moral theory etc.

144
In most liberal democratic societies, these values and convictions often find expression in
concepts that have to do with:
a. The rule of law (the effectivity, consistency and stability of the legal system)
b. Justice,
c. human rights (e.g. freedom and equality)
d. Efficiency (of the economic and social system)
e. Other basic political and moral institutions and structures which support liberal
democratic governance or good governance.

In Ghana, most of these basic values are fortunately reflected in the provisions of the
1992 constitution which was adopted by the majority of the people of Ghana in a
referendum so that it could be said that there is some consensus on these values in our
society.

Finally it is to be added that the importance or weight that is likely to be attached to any
of these values in evaluating an approach or interpretive claim will also depend on the
subject matter of interpretation i.e. whether we are interpreting the language of a private
document, a statute or even a constitution.

Interpretations of (i) Non-Statutory Documents, (ii) Statutes, (iii) National Constitutions

Non-Statutory Documents
As previously noted the object of interpretation of all written instruments is to determine
the meaning, scope and effect (MSE) of the language used therein which best reflects the
intention of the author(s) of a DSC. Accordingly interpretation of DSCs at several broad
levels share a number of common rules- basic rules, aids, presumptions etc. e.g. the
primacy of the ordinary meaning rule and the rule that the document must be construed as
a whole. Thus as regards interpretation of non-statutory documents and statutes, the
learned authors of Halsbury’s Laws Of England 4th Ed Vol 44 note:

“the canons of construction with regard to statutes do not in effect differ from those
applicable to other documents”.

There are however significant differences in detail in the application of the rules
between for example:

i. Non statutory documents and statutes on one hand and a national constitution on the
other.
ii. Between non statutory documents on one hand, and statutes and national
constitutions on the other.
iii. Between ordinary statutes on the one hand and national constitutions on the other
etc. and even between different types of non statutory documents or statutes or
national constitutions, there might still be differences in the application of the rules.

145
Without doubt, the interpretation of non-statutory documents often raise quite distinct
issues from the interpretation of statutes and national constitutions on the other.

Documents often involve a single party (example as in the case of wills) or agreements
between two or more persons and or bodies. The effect of most documents might in this
respect often be private and limited as compared to the average statute or national
constitution.
It has to be noted here that in the interpretation of documents, the courts in practice often
seek to interpret the document as at the date when it was made and therefore avoid an
updating interpretation except in the most compelling of cases.

Shore v Wilson [1842] 9 Cl & FIRN 355

See also Lewison Pp 114-116.

Furthermore, there are a number of presumptions applicable in the interpretation of non

statutory documents which might not be applicable in statutes and national constitutions,
for example, the presumption of non-knowledge of an illiterate of the contents of a
document executed by him.

146
Kwamin v. Kuffuor [1914] 2 Ren. 808, P.C.
In that case Lord Kinnear reading the advice of the Privy Council said,

1. "when a person of full age signs a contract in his own language his own signature
raises a presumption of liability so strong that it requires very distinct and explicit
averments indeed in order to subvert it.
2. But there is no presumption that a native of Ashanti, who does not understand
English, and cannot read or write, has appreciated the meaning and effect of an
English legal instrument, because he is alleged to have set his mark to it by way of
signature.
3. That raises a question of fact, to be decided like other such questions upon
evidence."
4. Earlier in that opinion the learned Lord had said,
5. "The question is whether his [i.e., the illiterate person's] knowledge is proved, and
the respondent cannot be required to prove a negative." And again "the possibilities
of misunderstanding are so obvious as to render it imperative on the appellant, who
alleges his [i.e., the illiterate person's intelligent consent to a contract expressed in a
language which he did not understand, to prove that it was clearly explained to him.

Kano v. Kalla Etc,

Zabrama v. Segbedzi [1991] 2 GLR 221 CA.

The plaintiff, an illiterate, brought an action against the defendant to redeem a house he
alleged he had pledged to the defendant nine years earlier for the sum of ¢200. The
defendant however denied that claim. His defence was that the plaintiff sold the house to
him for the stated amount. In support of his case, he tendered the document they had
executed to evidence the sale. The defendant's evidence was corroborated by the letter-
writer who wrote the document for the parties. He testified that he interpreted the
document in the Twi language to the plaintiff before the parties executed it.
Held:
(1) The principle was firmly established by a stream of decided cases that where an
illiterate executed a document which compromised his interest and that document was
being cited against him by a party to it or his privy, there was no presumption in favour
of the proponent of the document, and against the illiterate person, that the latter
appreciated and had an intelligent knowledge of the contents of the document.
(2) The party seeking to rely on the document must lead evidence in proof that the
document was actually read and interpreted to the illiterate who understood it before
signing same.
(3) Being a question of fact, the presence or otherwise of an interpretation clause on a
document was one of the factors a court should take into account in determining
whether the document in question was fully understood by the illiterate. The presence
of an interpretation clause in a document was not conclusive of that fact, neither was it
a sine qua non. It was still possible for an illiterate to lead evidence outside the

147
 document to show that despite the said interpretation clause, he was not made fully
aware of the contents of the document to which he made his mark.
Kwamin v Kuffour applied

In Re Kodie Stool Case.

Statutes and Constitutions

Interpretation of statutes and constitutions on the other hand, often involve more directly,
issues of societal and individual rights and liberties which affect the generality of the
populace, and which therefore often raise very fundamental issues of politics and morality.

In interpreting statutes and national constitutions the courts often adopt an updating
approach contrary to the dominant approach in the interpretation of non-statutory
documents.

Barker v. Wilson; Dyson v. Forks,

Baake v. Regents of University Of California; Garman v. Ekins [supra]

Needless to mention that several of the presumptions applicable in the interpretation of

statutes [and sometimes even national constitutions] do not apply in the case of non
statutory documents e.g. the presumption of perfect knowledge, the presumption of perfect
expression, the presumption that the legislature does not make mistakes etc.

Finally, there are quite significant differences between approaches, theories, and canons
etc, applicable in interpretation of non statutory documents and statutes on the one hand,
and the interpretation of national constitutions on the other.

Although the interpretation of statutes and national constitutions often share some
common canons, the authorities are replete with suggestions that the national constitution
being the fundamental law of the land, is both a legal and political document and that its
interpretation involves a deeper approach which might not be applicable in the
interpretation of ordinary statutes. See:

Tuffour v. A-G [1980] GLR 637 @ 647.

Republic v. High Court Accra, Ex Parte Adjei [1984-86] 2 Glr 511

Held Per Sowah JSC:
The narrow rules of construction applicable in the cases of contracts, wills, statutes and
ordinary legislation may or may not be adequate when it comes to the interpretation of a
Constitution or law intended to govern the body politic. In the instant case, the court is
interpreting provisions relating to an organ of state, namely the judiciary. Our
interpretation should therefore match the hopes and aspirations of our society and our
predominant consideration is to make the administration of justice work.

New Patriotic Party v Attorney-General [1993-94] 2 GLR 35

148
The plaintiff claiming that the 31 st Dec celebration would be unconstitutional, brought an
action under article 2(1) of the Constitution 1992 against the Attorney-General for a
declaration that the public celebration of the coup d'etat of 31 December out of public
funds was inconsistent with or in contravention of the letter and spirit of the Constitution,
1992 particularly articles 3(3)-(7), 35(1) and 41(f) and an order compelling the
government to cancel the preparations for the celebration and refrain from carrying out the
celebration with public funds.

Held: Per Hayfron-Benjamin JSC

1. My duty therefore was to discover the "intent and meaning" of the presentations
made to us in the present case with respect to our Constitution, 1992 and apply "a
broad and liberal spirit" in its interpretation.
2. There is no benefit in these modern times in applying a strict interpretation of
modern democratic Constitutions. So to do would mean that we forget that
Constitutions are made by men for the governance of men.
3. The Constitution, 1992 is therefore the sum total of our hopes, disappointments,
experiences, aspirations and expectations as a nation. If we therefore forget the
historical development of our Constitution, 1992 then we fail to recognise that "it is
a living organism capable of growth

Kuenyehia v. Archer [1993-94] 525 per dicta of Francois J (Buta 300).

149
Republic v. Tommy Thompson per Acquah JJSC
See also views expressed in the Memorandum to the Interpretation Bill submitted to
Parliament intended to replace the old CA 4 especially at pp 3-4 where it is noted thus:

1. “the constitution is thus not an ordinary law. It is a legal document as well as a

political testament. It embodies the soul of our people in a sense that the ordinary
law cannot achieve.
2. It is organic in its conception and thus allows for the growth and progressive
development of its own peculiar conventions… by that process, the construction
and interpretation of the constitution will not be tied down by the Interpretation Act
but will take account of the cultural, economic, political and social developments of
the country… a constitution is a sacred document. It must of necessity deal with the
facts of the situation abnormal or usual. It will grow with the development of the
nation and face challenging changes and new circumstances.
3. It must be allowed to germinate and develop its own peculiar conventions and
construction not hampered by the niceties of language that will impede its singular
progress.

In musical terms the interpretation and interpretation of the constitution should involve the
interplay of forces that produce a melody and not the highlighting of several notes. Ghana
is an expanding society. Those who deal with the constitution must appreciate that
concept”.

The upshot of all the foregoing is evident. In practice one has to be wary of applying
principles and authorities suitable to interpretation in one case [example document or
statute or constitution] insensitively to other situation. Each case has to be considered on
merits taking account of its perculiarities.

Some Definitional and Terminological Issues of Interpretation

The discussions will consider the meaning of some key terms and concepts which are
either vital to our understanding of the subject or which we shall frequently encounter in
the course of our study. Specifically we shall consider the following:
i. Interpretation versus construction
ii. The context of a DSC.

Interpretation Versus Construction

Conflicting positions have been expressed in the literature on the subject regarding the
meaning of ‘interpretation’ vis a vis ‘construction’.
(These are discussed in BUTA @ 6-7).

150
However the dominant position today seems to be that there is no need to distinguish
between the two words. In other words, it is considered that the two words mean the same
thing and could be used interchangeably. (Buta p 7). This appears to be the dominant
position in Ghana today. In support of this see e.g. The Interpretation Act Ca 4, Section
19. Section 19 appears under the heading “ Interpretation” yet its provisions provide for
the use of textbooks and other words “as an aid to the “construction” of an enactment. See
also section 27 of CA 4 which provides that any enactment made after the passing of CA 4
should be construed as imperative. Note also that whereas in order 54(a) rr 1& 2 of the
now repealed LN 140 A, the word ‘construction’ is used relating to the determination by a
court of the legal or equitable right of a person under a deed or statute, article 130(1) of
the 92 constitution employs the word interpretation where the opinion of the Supreme
Court is to be sought on a meaning of a constitutional provision etc. [see Buta p. 7,
footnote 7].

Context
This is one of the most frequently employed terms in interpretation. Here, meaning of the
text of a DSC is held to always depend on the context in which it is used. The context of a
DSC consists broadly of the surroundings or setting of the text or the inter-related
conditions in which the words or phrases etc exist or occur which can throw light on their
meaning scope and effect.

Hence, Dreidger defines the context of a text @ p 260 of his Construction of Statutes 4 th
Ed as referring to:

“ anything that contributes to a text meaning other than the text itself”.

Cross
And for Cross at page 56,
“the context of a statutory provision as including the whole of the statute in which it is
contained, title and preamble, if any, as well as the enacting parts; the place occupied by
the provision within the statute; other statutes on the same subject, the circumstances in
which the statute was passed and its purpose.”

As several authorities have pointed out, words in isolation are virtually meaningless so
that the meaning of a word, phrase, etc depends importantly on the context in which it is
used and the context is to be taken account of at all stages of the interpretive process.

A-G v Prince Augustus of Hanover [supra]

Viscount Simonds
“..words and particularly general words cannot be read in isolation, their colour and
content are derive from their context.”

It is in practice conventional to categorise the elements of the context of the text of a DSC
into (1) the internal context (2) the external context.

151
The internal context, it is said, requires the interpreter to situate the disputed words
within the clause or provision or section of which they are part and in relation to the rest
of the DSC. Thus it encompasses inter alia, as much of the surrounding text as it is needed
to make sense of the words being read. [Driedger P. 21 Cross P 50].

The internal context can be further divided into:

a) The immediate internal context which is comprised of the provision in which the
words to be interpreted appear and any adjacent and closely related provisions.
[Driedger 4th Ed 261].
b) THE DSC as a whole which refers to the complete DSC as amended or any
incorporated material etc. In the case of an Act, it includes the scheme of the Act
and the components used to situate the Act such as titles, preambles and headings.
[Driedger p. 261].

The external context refers broadly to the setting in which the provision was made or
enacted, its historical background or the setting in which it operates from time to time.
[Driedger 457].

For Cross, the external context involves determining the meaning of the provisions from
inter alia, ordinary linguistic usage [including any special technical meanings], from the
purpose for which the provision was made or passed and from its position within the
general scheme of the DSC and the common law rules on principles.
Cross at page 150.: The external context of a statute includes its place within the general
scheme of statutory and common law rules and principles. In particular this context
includes statutes on the same subject [known as statutes in pari materia].

The date of a dsc may consequently be a relevant part of its external context for the
purpose of its interpretation, as are the social, historical, cultural circumstances at the
time. [Cross Pp 51-55; Driedger Chpt 18].

Needless to point out, the details of the relevant context will vary from case to case, and
will also depend on whether one is dealing with a document, statute, or national
constitution for example.

The Legal Basis for Interpretation in Ghana.

The focus here is the true legal basis for the assumption by the courts and tribunals in
Ghana of jurisdiction to interpret or construe DSCs.

As Buta rightly points out at page 14 of his book, any court or tribunal in this country is
empowered to determine the true legal effect of a provision in a statute or document in the
course of the exercise of its powers or jurisdiction as conferred by the 1992 constitution,
the courts Act 1993 Act 459 (as amended), or any other enactment.

However as previously noted, the 1992 constitution in article 130(1), vests the Supreme
Court with exclusive jurisdiction in matters of interpretation of the constitution where
152
there are real or genuine doubts regarding the MSE of a constitutional provision or part
thereof. See

Republic v. Maikankan [1971] 2 G.L.R. 473

Here the Supreme Court gave useful guidelines on when an issue of interpretation of the
Constitution under Article 106 of the Constitution [1969] may be referred to the Supreme
Court; per Bannerman C.J. in that case:

1. “We wish to comment that a lower court is not bound to refer to the Supreme Court
every submission alleging as an issue the determination of a question of
interpretation of the Constitution or of any other matter contained in article 106 (1)
(a) or (b).
2. If in the opinion of the lower court the answer to a submission is clear and
unambiguous on the face of the provisions of the Constitution or laws of Ghana, no
reference need be made since no question of interpretation arises and a person who
disagrees with or is aggrieved by the ruling of the lower court has his remedy by the
normal way of appeal, if he so chooses.

3. To interpret the provisions of article 106 (2) of the Constitution in any other way
may entail and encourage references to the Supreme Court of frivolous submissions,
some of which may be intended to stultify proceedings or the due process of law
and may lead to delays such as may in fact amount to denial of justice.”

Republic v. Special Tribunal Ex Parte Akosah [1980] GLR 592

Anin J.A. delivered the judgment of the court. In1980, the appellant filed in the Accra
High Court a motion ex parte for leave to apply for an order of certiorari to quash the
conviction and sentence of three years' penal labour and order of confiscation of his
nineteen vehicles entered and passed against him by the respondent tribunal in its
judgment, in a case entitled Republic v. James Clifford Akosah Jnr.
It was contended that the respondent tribunal acted without jurisdiction and in breach of
the rules of natural justice and that its procedure was contrary to the due process of law.
More particularly, it was first submitted that the special tribunal was an inferior tribunal
with a limited jurisdiction defined by the Armed Forces Revolutionary Council (Special
Tribunal and Other Matters) Decree, 1979 (A.F.R.C.D. 23). Section 3 (1) (a) of this
Decree empowered it:

"to take over and complete the trial of all cases pending before all the special courts
immediately before the coming into force of the Constitution of the Third Republic of
Ghana in respect of all the offences charged or which could have been charged. . . "
The applicant disclosed that there was no trial of any case involving either himself or his
company (Akosah Agencies Co., Ltd.) pending on the stated date, i.e. the eve of 24
September 1979 either before any special court or the Armed Forces Revolutionary
Council. However, the respondent tribunal purported to try, convict and sentence him for
matters already investigated.
Respondent raised preliminary objections that the application raises a matter of question
of law (namely, whether in view of the provisions referred to above the High Court has
153
jurisdiction to entertain the application) and that in the event the High Court should stay
the present proceedings and refer the said question of law to the Supreme Court for
determination.

Held: Per Anin JA

1. In Gbedemah v Awoonor-Williams, the full Court of Appeal sitting as the Supreme
Court in its ruling made the following pertinent pronouncement per Azu Crabbe J.A.
(as stated in (1969) 2 G. &. G. 438 at pp.

“In our view, unless the words of a statute are imprecise and ambiguous the court does
not apply the rules and presumptions of construction.

2. The words of article 71 are plain, and they mean what they say, and are to be
expounded in their ordinary and natural sense. Until the primary or popular or literal
meaning of those words is disputed, the interpretation of the words is unnecessary.

3. In this case the plaintiff is not asking the court to declare that the words of the article ...
mean something different from or more than what they say. Just to ask the court to say
that the words of the provisions of the Constitution mean what they say is not asking
the court to interpret the Constitution. In our opinion, the contention that the plaintiff's
claim raises an issue of the interpretation of the Constitution is, with all due respect,
untenable.

4. Summary of the Case Law on Enforcement or Interpretation

That an issue of enforcement or interpretation of a provision of the Constitution arises in

any of the following eventualities:

(a) where the words of the provision are imprecise or unclear or ambiguous. Put in
another way, it arises if one party invites the court to declare that the words of
the article have a double-meaning or are obscure or else mean something
different from or more than what they say;
(b) where rival meanings have been placed by the litigants on the words of any
provision of the Constitution;
(c) where there is a conflict in the meaning and effect of two or more articles of the
Constitution, and the question is raised as to which provision shall prevail;
(d) where on the face of the provisions, there is a conflict between the operation of
particular institutions set up under the Constitution, and thereby raising problems
of enforcement and of interpretation.

On the other hand, there is no case of "enforcement or interpretation" where the language
of the article of the Constitution is clear, precise and unambiguous. In such an eventuality,
the aggrieved party may appeal in the usual way to a higher court against what he may
consider to be an erroneous construction of those words; and he should certainly not
invoke the Supreme Court's original jurisdiction. Again, where the submission made
relates to no more than a proper application of the provisions of the Constitution to the
154
facts in issue, this is a matter for the trial court to deal with; and no case for interpretation
arises.

Yiadom I v. Amaniampong;

Agyekum v. Boadi [2000] SCGLR 292

From the Circuit Court, Accra, for the determination of the following issues by the SC:

1. Whether or not the deconfiscation order directed by the President of the 4th Republic
through the Confiscated Assets Committee in respect of the said house was in
contravention of the letter and spirit of the 1992 Constitution particularly Article 35(1)
and (2) of the Transitional Provisions of the said Constitution.
2. Whether or not section 3 of PNDCL 325 was in contravention of Article 35(2) of that
transitional provisions of the 1992 Constitution.

Held per Acquah JSC:

1. Let us point out here that the provisions of the Transitional Provisions are properly
referred to as ‘sections and not articles.’
2. It is true that Article 130(2) of the 1992 Constitution empowers any Court to refer a
question of law to this Court, but where that question had already been determined by
this Court, then no reference arises, as the Court which intends to refer that question of
law is bound by Article 129(3) of the 1992 Constitution to follow the decision of this
Court on that question of law. The Article reads:
“129(3) The Supreme Court may, while treating its own previous decisions as normally
binding, depart from a previous decision when it appears to it right to do so; and all
other courts shall be bound to follow the decisions of the Supreme Court on question of
law”

Aduamoa II v. Adu Twum II [2000] SCGLR 165.

Now as bourne out by their writ of summons, , the plaintiffs claiming to be citizens of
Ghana and hailing from Kade, invoked the original jurisdiction of the SC under articles 2
and 130(1)(a) of the 1992 Constitution against the chief, for a declaration that the
defendant was not qualified to be a chief by virtue of his convcition by the National Public
Tribunal on a charge of defruading by false pretences, an order to destool him, to remove
him from his palace, and finally account for all stool properties. The defendant, it was
admitted, was then the chief of Kade. Obviously the effect of the reliefs was to seek his
destoolment.

Held: Per Acquah JSC [as he then was]

1. My Lords, the original jurisdiction vested in the Supreme Court by articles 2(1) and
130(1) of the 1992 Constitution to interpret and enforce the provisions of the
Constitution, is a special jurisdiction meant to be invoked in suits raising genuine or
real issues of
— the interpretation of a provision of the Constitution or

155
 — the enforcement of a provision of the Constitution, or
— a question whether an enactment was made ultra vires Parliament, or any other
authority or person by law or under the constitution.
2. This special jurisdiction is not meant to usurp, or to be resorted to in place of, any of
the jurisdictions of a lower court. In other words, where our said jurisdiction has been
invoked in an action which properly falls within a particular course of action at a lower
court, this court shall refuse to assume jurisdiction in that action, notwithstanding the
fact that it has been presented as an interpretation and/or enforcement suit.
3. Now where the main thrust of the action is not one of enforcement and/or
interpretation, and that the issue of interpretation, if it arises, is ancillary to the
determination of the claims of the parties, the proper procedure is for that suit to be
filed at the court or tribunal which has jurisdiction over the claims of the parties.
4. And if that court in the course of determining the claims, takes the view that the said
issue is one of interpretation, that court can refer that issue to the Supreme Court, under
article 130(2) of the 1992 Constitution. Article 130 reads:

"130(1) Subject to the jurisdiction of the High Court in the enforcement of the
Fundamental Human Rights and Freedoms as provided in article 33 of this
Constitution, the Supreme Court shall have exclusive original jurisdiction in —
(a) all matters relating to the enforcement or interpretation of this Constitution; and
(b) all matters arising as to whether an enactment was made in excess of the powers
conferred on Parliament or any other authority or person by law or under this
constitution.
(2) Where an issue that relates to a matter or question referred to in clause (1) of
this article arises in any proceedings in a court other than the Supreme Court, that
court shall stay the proceedings and refer the question of law involved to the
Supreme Court for determination; and the Court in which the question arose shall
dispose of the case in accordance with the decision of the Supreme Court"

5. Article 130(2) therefore empowers any court below, to refer to the Supreme Court for
determination any issue relating to Article 130(1) thereof.

6. Now it is very important to understand and appreciate that the 1992 Constitution is the
fundamental and supreme law of the land, the provisions of which no other law is
permitted to contradict as stated in Article 1(2).

7. Accordingly all courts, tribunals and indeed all-adjudicating authorities in Ghana are
obliged to apply the provisions of the Constitution in the adjudication of disputes
before them. Thus in a land suit by an alien plaintiff for declaration of title to a portion
of stool land, the court before whom the suit is pending, is obliged to apply the
provisions of chapter 21 of the 1992 Constitution (dealing with lands and Natural
Resources) to the determination of the claim.

8. It is only where in the determination of such a claim before the lower court, an issue of
interpretation or that of the validity of a law vis-à-vis the provisions of the Constitution
156
 arises, that the lower Court is obliged to stay proceedings and refer the said
constitutional issue to the Supreme Court for determination. Short of that, the lower
court is within its rights to study the relevant provisions of the Constitution and apply
them to the resolution of the claims.

9. When then does a real or genuine issue of interpretation or enforcement of a provision

of the Constitution arise for determination by the Supreme Court either in the exercise
of its original jurisdiction under article 130(1)(a) or in its reference jurisdiction under
article 130(2) of the 1992 Constitution?

10.In Tait vrs. Ghana Airways Corporation (supra) at page 528, the court said:
“…unless the words of an article of the Constitution are imprecise and ambiguous, an
issue of interpretation does not arise, where the language of the constitution is not only
plain but admits of but one meaning, the task of interpretation can hardly be said to
arise.

The mere fact that a party invokes in support of his case, a provision of the
Constitution which is couched in plain unambiguous language, does not turn an action
the true nature of which is one of wrongful dismissal into one relating to the
interpretation of a provision of the Constitution within the meaning of article 106(1)
(a)”.

In the Republic vrs. Special Tribunal, ex parte Akosah (supra), the court after
examining the relevant authorities on the subject came to the conclusion that an issue
of enforcement or interpretation of a provision of the Constitution arises in any of the
following eventualities [supra]

11.In summary then, whereas the original jurisdiction to interpret and enforce the
provisions of the 1992 Constitution is vested solely in the Supreme Court, every court
and tribunal is duty-bound or vested with jurisdiction to apply the provisions of the
Constitution in the adjudication of disputes before it. And this jurisdiction is not taken
away merely by a party's reference to or reliance on a provision of the Constitution. If
the language of that provision is clear, precise and unambiguous, no interpretation
arises and the court is to give effect to that provision.

It is also important to add here that the interpretive jurisdiction of the Supreme Court
under article 130 is to be distinguished from the [Supreme] court’s jurisdiction to enforce
the constitution under article 2(1) and article 130 as well. This latter jurisdiction could be
exercised whether or not there is a genuine problem of interpretation. On the enforcement
jurisdiction of the court see the ff cases:

NPP v. NDC [2000] SCGLR 461.

Yeboah v. J.H. Mensah [1998] SCGLR 492

157
Here the plaintiff sort to invoke the original juirisdiction of the SC under Art 2 and 130 of
the constitution for a declaration that the defendant was not qualified to be elected as an
MP under Art 94. The defendant raised a preliminary objection as to the jurisdiction of the
SC to entertain the action claiming that the action was election petition determinable only
by the HC under Art 99 and Section 16 and 20 of PNDCL 284
It was the contention of the plaintiff that he had not satisfied Art 94

Article 94—Qualifications and Eligibility.

(1) Subject to the provisions of this article, a person shall not be qualified to be a member
of Parliament unless—
(a) he is a citizen of Ghana, has attained the age of twenty-one years and is a registered
voter;

(b) he is resident in the constituency for which he stands as a candidate for election to
Parliament or has resided there for a total period of not less than five years out of the ten
years immediately preceding the election for which he stands, or he hails from that
constituency;

Article 99—Determination of Membership.

(1) The High Court shall have jurisdiction to hear and determine any question whether—
(a) a person has been validly elected as a member of Parliament or the seat of a member
has become vacant; or
(b) a person has been validly elected as a Speaker of Parliament or, having been so
elected, has vacated the office of Speaker.
(2) A person aggrieved by the determination of the High Court under this article may
appeal to the Court of Appeal.

Representation of The People Law, 1992 (PNDCL 284).

Section 16—Methods of Questioning Election.
(1) The validity of an election to Parliament may be questioned only by a petition brought
under this Part.
(2) Every election petition shall be presented before the High Court for hearing.

Held:
1. The HC was the proper forum and not the SC, for the Constitution has
provided for a specific remedy at the HC for determining challenges to the
validity of a person’s election to Parliament.
2. Because if it was the intention of the framers of the constitution to let the
general enforcement jurisdiction of the SC to be resorted on violation of
every provision, they would not have provided specific matters like Art
99.

158
Edusei v. Attorney-General. [1996-97] SCGLR 1
Action by plaintiff invoking the original jurisdiction of the SC for a declaration that
certain provision of the Passport and Travel Certificates Decree, 1967 (NLCD155)
contravenes Art 17 and 21 and that as a citizen by birth, he had the right to enter and leave
Ghana and fortiori to a passport to enable him exercise that right. The defendants counted
that the SC had no jurisdiction to determine the claim because fundamental human rights
are within the exclusive jurisdiction of the HC under Art 33 and 130.Appeal dismissed
that the SC had no original jurisdiction on fundamental human rights
.
On application for Review under Edusei v Attorney-General [1998-99]SCGLR 753,
held per Bamford-Addo JSc that the case did not call for interpretation of the Constitution
as to invest the SC with appropriate jurisdiction under Art 130, but rather enforcement of
human rights which the constitution provides remedy at the HC as first court of instance.

Sam (No 2) v. A-G [2000] SCGLR 205

The plaintiff invoked the original jurisdiction of the Supreme Court under Article 2(1) of
the Constitution 1992 which Article says:

"Article 2(1) A person who alleges that—

a) an enactment or anything contained in or done under the authority of that or other
enactment or
b) any act or omission of any person is inconsistent with or is in contravention of a
provision of this Constitution, may bring an action in the Supreme Court for a declaration
to that effect." (Emphasis mine)

The Plaintiff's case is that an enactment namely S. 15 of PNDCL 326 which provides an
indemnity to the state and officers against Court proceedings, is inconsistent with Article
140(1) and Article 293(1)(2) and (3) of the Constitution.

S.15 of PNDCL 326 states that:

"No action shall be brought and no court shall entertain any proceedings against the state,
the Committee or any member or officer of the Committee in respect of any act or
omission arising out of disposal of any state interest made or under consideration under
this law"

According to the Plaintiff the effect of the said S.15 is that a person who has any claims
against the state or its employees under law PNDCL 326 is barred from going to court to
obtain relief and it also ousts the jurisdiction of the High Court by prohibiting any court
including the High Court, from entertaining actions against the state or its employees in
respect of matters referred to in the said S.15.

Held per ACQUAH J.S.C:

(1) “I have no doubt that the preliminary objection based on the alleged lack of capacity in
the plaintiff is wholly unmeritorious.

159
(2) I have had the occasion in J. H. Mensah vrs. The Attorney-General (1996-97) GSCLR
to explain why the restraints imposed by the American Supreme Court on itself in the
exercise of its jurisdiction in judicial review cannot apply to the Ghana Supreme Court.

(3) We derive our jurisdiction expressly from articles 130 (1) and 2 (1) in the 1992
Constitution of Ghana, while the American Supreme Court's jurisdiction was inferred
from the nature of judicial function.”

160
The Basic Rules of the Interpretation of Non-Statutory Documents

Definition/ The Different Types of Documents)

Our focus here is the examination of the basic rules for the interpretation of non-statutory
documents. A document has been broadly defined as “some writing which furnishes
information about something”. See Odgers: Construction Of Deeds And Statutes @ p 1.

‘Writing’ here includes print and every mode in which words or figures can be impressed
upon materials. See Interpretation Act: CA 4 section 32(1) where ‘writing’ and
expressions giving rise to writing is said to include printing, lithography, typewriting,
photographs and other modes of representing and reproducing words and figures in visible
form. See the Stamps Act 1965 Act 311 section 53.

Hence, it has been suggested for example, that a legend chalked on a brick wall or a
writing tattooed on a sailor’s back may be described as ‘document’. (See Odgers p. 1).

Documents thus broadly defined, will strictly speaking, encompass even statutes and
national constitutions. However, we shall use the term ‘document’ here to specifically
refer only to non-statutory documents i.e. documents other than statutes and national
constitutions.

Non-statutory documents in this sense will include all sorts of written commercial
contracts, Wills, insurance policies, guarantees, conveyances, etc etc.
It has also to be noted right at the onset, that they are in practice so many distinct types of
non-statutory documents some of which have engendered special or additional rules of
interpretation. Our interest here however is with non-statutory documents generally i.e.
basic rules applicable to non-statutory documents.
In practice, non-statutory documents are sometimes usefully categorized into:
 Unilateral documents such as Wills
 Bi-lateral and multi-lateral documents such as a contract.

One special kind of document also worthy of mention here is the Deed which is generally
defined at common law as a special document which must be in writing, signed, sealed
and delivered by the parties with a view to conferring an interest, right or property, or
creating binding obligations on the parties. See Buta @ p. 10.
In effect, while all Deeds are documents, not all documents are Deeds. On requirement of
a Deed generally, see ODGERS pp 1-13 and Halsbury’s 4th Edn Vol 12.

Though Deeds were used very much in the past, their use in recent times is significantly
reduced and indeed mostly restricted to special documents such as conveyances of land
etc. it is to be noted here however that section 40(2) of the Conveyancing DECREE 1973
NRCD 175 dispenses with the need for a seal in the case of conveyances or transactions
between individuals in Ghana today. See Da Rocha and Lodoh, Ghana Land Law And
Conveyancing 2ND EDN @ 35 & 402.
161
Furthermore reading together of sections 140 and 144 (1) of the Companies Code Of 1963
(Act 179) appears to suggest that sealing is not required where a person duly authorized
signs a conveyance on behalf of a company registered under Act 179.

Finally, it is to be added here that a number of statutes in Ghana today require certain
specific transactions to be in writing. These include:
 NRCD 175, Section 1
 Mortgages Decree 1972, NRCD 96 Section 3(1)
 Mortgages (Amendment Decree) 1979 AFRCD 37 Section 1

Basic Rules under the Purposive Approach

As previously explained under preliminary issues, the proper and ultimate object of the
interpretation of a DSC is to determine the MSE of the DSC or part thereof that reflects or
effectuates the intention of the author(s) of the DSC. It was also explained that under the
dominant and preferred MOPA, intention is best understood in the sense of purpose.

Hence the basic rules of interpretation of non-statutory documents forwarded here are
those derived from the MOPA and therefore aimed at interpretation of non-statutory
documents that reflects the purpose of the author(s).

Specifically, the Basic Rules put forward by the authorities for the interpretation of non-
statutory documents under the MOPA are as follows:

1) Interpretation must be as near to the intention of the author(s) as the law

would permit

2) Interpretation of the document or particular part of it /intention or purpose

of author(s) to be sought for in the document itself on in elements of its
proper context.

3) Document to be construed as a whole

4) Ordinary or plain meaning rule: words or phrases etc are to be taken at
first instance in their ordinary or plain meaning in context. Technical words
are to have their technical meaning. [The primacy of the ordinary meaning
rule].

5) Ordinary or plain meaning may be modified in favour of some secondary or

less usual meaning so as to avoid absurdity and inconsistency, etc with the
intention or purpose of the author(s).
6) Courts have power in appropriate circumstances to correct mistakes by
a. Construction, or
b. Rectification.

(NB! These rules override what is stated in Buta).

162
Monypenny v. Monypenny (1861) 9 H.L. Cas.
Lord Wensleydale in Monypenny v. Monypenny (1861) 9 H.L. Cas. 114 at p. 146 gave
the warning that:
 "the question is not what the parties to a deed may have intended to do by entering into
that deed, but what is the meaning of the words used in that deed."

Simpson v. Foxon [1907] P. 54 per Sir Gorell Barnes P

In the case of Simpson v. Foxon [1907] P. 54 at p. 57, Sir Gorell Barnes P., enumerated
the same principle in different language. He said:

 "But what a man intends and the expression of his intention are two different things.
He is bound, and those who take after him are bound, by his expressed intention. If that
expressed intention is unfortunately different from what he really desires, so much the
worse for those who wish the actual intention to prevail."

This somewhat ex cathedra statement of the law is qualified by the equally well-known
rule, that where the words used are unclear and ambiguous, the intention must prevail.

Lloyd v. Lloyd (1837) 2 My. & Cr. 192

For the latter proposition, Lord Cottenham said in Lloyd v. Lloyd (1837) 2 My. & Cr.
192 at p. 202 as follows:

 "If the provisions are clearly expressed and there is nothing to enable the Court to put
upon them a construction different from what the words import, no doubt the words
must prevail; but if the provisions and expressions be contradictory, and if there be
grounds, appearing upon the face of the instrument, affording proof of the real
intention of the parties, then that intention will prevail against the obvious and ordinary
meaning of the words."

Rule 1: The Interpretation must be near the Intention of the Author(s) as the Law
would Permit.

It is clearly the most basic of the basic rules for the interpretation of non-statutory
documents under the MOPA, that the court or interpreter has to strive to arrive at an
interpretation that reflects or effectuates the intention of the author(s) or the document or
part thereof. Under the MOPA as already noted, intention means purpose.

This fundamental rule is often rendered in the latin maxim “animus est hominus est anima
scripti” which means “intention is the soul of an instrument”.

Halsbury 4th Edn Vol 12 @ 1459.

The object of all interpretation of a written instrument is to discover the real intention of
the author, the written declaration of whose mind it is always considered to be.

163
Consequently, the construction must be as near to the minds and apparent intention of the
parties as is possible, and as the law will permit

See Buta @ 25-27.

Kell v. Charmer [1856] 23 BEAV. 195.

Here the testator John George Fearn, by his will expressed himself as follows:
“ I give and bequeath to my son William the sum of i.x.x. To my son Robert Charles the
sum of o.x.x.” &c.

The letters “i.x.x” and “o.x.x.” were written in pencil in the original will, but were
included in the probate. The testator,in his lifetime, had carried on the business of a
jeweler, and in the course of his business, used certain private marks or symbols to denote
prices or sums of money and according to such system, the letters i.x.x and o.x.x
represented the sums of £100 and £200 respectivley.

The court was called to decide whether extrinsic evidence was admissible to show the
meaning of the letters “i.x.x” and “o.x.x”. The Master of Rolls, Sir John Romilly held that
extrinsic evidence was admissible to explain the meaning of those letters.

This was a case in which in a will the testator used symbols and it was held to be
decipherable and therefore one could read the soul into it.

164
Biney v. Biney [1974] 1 GLR 318;
The deed of settlement, exhibit A, had to be interpreted in the light of three basic rules of
construction, namely:
(i) the construction must be as near to the mind and intention of the author as the law
would permit;
(ii) the intention must be gathered from the written expression of the author's intention;
and

(iii) local authorities had firmly established that in pre-1974 conveyancing, technical
words of limitation in a document relied on as constituting a transaction known and
recognised by English law must have their strict legal effect according to the English
pre-1881 conveyancing law.

(iv) Applying these rules it was clear that the settlement used terminology peculiar to
English law; that the creation of only life interest for the settlor's “proper” successors
according to customary law clearly showed an intention that his self-acquired property
should not devolve according to the matrilineal rules of succession;

Impraim v. Baffoe [1980] GLR 520

By his will dated 28 May 1937, T.M. the testator, directed that on his death, his dwelling
house referred to as "Jehova Villa" should be occupied by certain named members of his
family and their children as a family house. As a result of this intermeddling by the
defendant, the plaintiff by an originating summons requested the court to determine the
interest of the wider family in the house left by T.M. Other issues that came up for
determination were (i) the meaning of "children" as contained in the will, and (ii) the
liabilities of the intermeddling head of family.
Held:
1. As a general rule, the expression "children" meant immediate descendants
and did not include grandchildren. It might however appear on the
construction of a particular will that the testator used the word "children"
in a wider sense so as to include grandchildren and remoter issues, and
this might appear in the context of the will itself.
2. In the instant will under consideration, the testator obviously, a man of a
respectable level of education and a minister of religion, excluded his
family and devised the property to a "devisee family" and decreed that the
houses should never be sold. In such a context the word children could
only make sense and give expression of his intention if it was construed to
include remoter issues of the specified beneficiaries.

Prempeh v. Agyepong [1993] 1GLR 255 SC

1. The maxim is, animus hominis est anima scripti (intention is the soul of an
instrument). In fact, the whole essence of a will is the declaration of the wishes
(intentions) of the testator.
2. One cannot pass a document as a will or samansiw if it does not contain the
intentions (wishes) of the maker.
165
 3. The cardinal principle in the construction of wills was that, they should be so
construed as to give effect to the intention of the testator, since the whole essence of
a will, in any case, was the declaration of the wishes and intention of the testator.
4. In Ghana there were two forms of wills, one under the Wills Act, 1971 (Act 360)
and the other under customary law. Since the ingredients required to establish any
of those two forms of wills were different, it was incumbent on the court to
determine the intention of the testator as to which of those two wills he
contemplated to adopt.

In Re Amarteifio [Supra];

In Re Dadzie (Dec’d) Dadzie v. Addison [Supra].

166
In Re Atta (Dec’d), Kwako v. Tawiah
1. My understanding is that a Will is a very special and solemn legal document in
which a person declares his wishes as to how his property should be distributed,
disposed of or managed after his death; and the greatest respect due to a deceased
person is, in my opinion, to give effect to his "last Will and testament" unless there
are compelling reasons militating against doing so.
2. Annan J, as he then was, hit the mark when he said that " policy of the court is to
give effect to the last wishes of the deceased and to uphold them unless there are
overriding legal obstacles in the way” – vide, Mensah (decd): Barnich v. Mensah
(1978) 1 GLR 226.
3. In accordance with this basic principle, when the courts set out to construe a Will
what they do is to look for the intention of the testator as expressed by him in the
actual words used by him, having regard to all the other provisions in the will. The
intention which the will itself declares either expressly or by necessary implication
is what the courts would act upon
4. As Buta points out in page 25 of his book, this rule means in effect, that the court
must in all cases strive to discover the true intention of the author(s) and to give
effect to same. And in effect, the intention so discovered, must prevail over any
other meaning including even the ordinary meaning where the two are in conflict.

Magor v. St Melons

The intention would also be given effect to notwithstanding any ambiguities in the
document. See

Halsbury 4th Edn Vol 12 @ para 1471

If the intention of the parties can be determined from the written instrument, the court will
give effect to that intention notwithstanding ambiguities in the words used or defects in
the operation of the instrument. This is expresses by the maxim that instruments should be
construed ut res magis valeat quam pereat, or by the wholly English paraphrase: “a deed
shall never be void where the words may be applied to any intent to make it good”

In Re Amarteifio;

Impraim v. Baffoe [Supra].

They reinforce the same point.

NB! It is however worth recalling here [under intention] that where the ordinary
meaning of a text or document is plain in the context, it is presumed to be the intention
of the author(s).

Rule 2: The Meaning of the Document or part thereof is to be gathered from the
Document itself.

167
Tuesday, December 13, 2005
This rule is simply that the meaning of the language of the document or part thereof is as a
rule, to be gathered. It is also a fundamental rule in the interpretation of documents under
the MOPA that the meaning of the language used by the party or parties in the document
or part thereof is to be gathered from the document itself, i.e. from the expressions used by
the party or parties in the document and not from what one may guess was intended by
the party or parties.

The learned editors of Halsbury 4th edn vol 12 summarised the position @ paragraph 1460
as follows:

Halsbury 4th Edn Vol 12 @ para 1460

The intention must be gathered from the written instrument read in the light of such
extrinsic evidence as is admissible for the purpose of construction. The function of the
court is to ascertain what the parties meant by the words they have used, to declare the
meaning of what is written in the instrument, not what was intended to have been written;
to give effect to the intention as expressed, the expressed meaning being, for the purpose
of interpretation, equivalent to the intention. It is not permissible to guess at the intention
of the parties and substitute the presumed for the expressed intention.

See Odgers, pp 28-31, Buta pp 27-28.

Shore v. Wilson [Supra],

Moneypenny v. Moneypenny [Supra],

Biney V. Biney[Supra];

Akim Akroso Stool v. Akim Manso Stool: CA

The plaintiffs, the Akim Akroso stool and others, sued the defendants, the Akim Manso
stool and others, for (i) a declaration of title to a piece of land; (ii) an order for
cancellation on grounds of fraud of a conveyance executed in 1948 between the Akim
Manso stool and others on the one part and one Mensah and others on the other part; and
(iii) recovery of possession of the land described in the said conveyance. In support of the
alleged fraud, the plaintiffs pleaded that the “family” described in the conveyance as the
vendors never in fact existed nor could they have been represented in the execution of the
conveyance.
The whole issue was as to what construction was to be placed on the word “family” as
contained in the conveyance.

Held: per Ampiah JA

1. The 1948 conveyance was only to document the customary sale which was held to be
valid.
In any case what the word in a document mean can only be derived from the document
itself. The intention of the parties must be gathered from the written instruments. The
function of the court is to ascertain what the parties meant by the words which they

168
 have used: see Thames and Mersey Marine Insurance Co. Ltd. v. Hamilton, Fraser
and Co. (1887) 12 A.C. 484, H.L.

2. The court is to declare the meaning of what is within the instrument and not what was
intended to have been written so as to give effect to the intention expressed: see Shore
v. Wilson (1842) 8 E.R. 450, H.L.
3. It is not permissible to guess at the intention of the parties and substitute the presumed
intention for the intention: see Smith v. Lucas (1881) 18 Ch.D. 531.

4. The interpretation of a written document is generally speaking a matter of law for the
court: see Macbeath v. Haldimond (1786) 1 Tern. Rep. 172. And if the intention of
the parties can be ascertained from the written instrument, the court will give effect to
that intention notwithstanding ambiguities in the words used or defects in the operation
of the instrument. This is expressed by the maxim ut res magis valeat quam pereat:
a deed shall never be void where the words may be applied to any intent to make it
good or carry out and effectuate to the fullest extent the intention of the parties.

5. Hence where words are capable of two meanings the object with which they were
inserted may be looked at in order to arrive at the sense in which they were used: see
Hart v. Standard Marine Insurance Co. (1889) 22 Q.B.D 499, C.A.
6. And where one interpretation is consistent with what appears to have been the intention
of the parties and another repugnant to it the court will give effect to the apparent
intention, provided it can do so without violating any of the established rules of
construction.

7. Similarly the court leans to an interpretation which will effectuate rather than one
which invalidates an instrument: see Wilkinson v. Gaston (1846) 9 Q.B. 137.

8. The plaintiffs were not parties to the conveyance complained of. Their intention or
presumed intention cannot be substituted for the clear intention of the parties who have
accepted the document as binding on them. The plaintiffs being outsiders they cannot
complain.

9. Besides this document, there was customary grant of the land by the lawful stool, i.e.
the Manso stool. So that even if the conveyance was held void that alone could not
invalidate the judgments. Perhaps we need remind ourselves that “ . . . documents
which are prepared after the alienation by customary law serve merely as documentary
evidence of the transaction, they do not alter the nature of the transaction: see Ollennu,
Customary Land Law in Ghana at 301-302 and also Cofie v. Otoo [1959] G.L.R. 300.
[Note for Conveyancing]

Alan Sugar Products Ltd v. Ghana Export Company Ltd [1982-83] GLR 922.
The NIB loaned ¢300,000 on a mortgage to a co-operative society engaged in vegetable
marketing. On the failure of that society to repay the loan, the NIB foreclosed the
169
mortgage. The property consisted of 200 acres of irrigated land, an irrigation system and
buildings. By an indenture of assignment, NIB sold 50 acres of the property to AS Ltd., a
company engaged in sugar-cane production, for the unexpired term of the society's lease.
After protracted negotiation, NIB agreed to assign the remaining 150 acres together with
the exclusive use of the irrigation facilities to GE Ltd. (a company engaged in large scale
vegetable production for the export market) AS Ltd. claiming that the agreement between
NIB and GE Ltd. denied them the use of the irrigation facilities for their crops. AS Ltd.
subsequently installed a pump to boost the flow of water into the irrigation system but that
was removed by GE Ltd. AS Ltd. contending that the irrigation system was installed to
ensure the better husbandry of the whole of the 200 acres of irrigated land and that there
was a general understanding between all the parties that a sale of any portion of the land
automatically carried with it pro tanto the use of the irrigation facilities, therefore brought
an action against GE Ltd. to enforce their rights.

Held:
1. Where parties have reduced into writing their intentions they are bound by their written
word and the use of extraneous material as aids to interpretation can only be resorted to
in extreme cases of genuine doubt. Thus in Bristol Tramways, etc., Carriage Co., Ltd.
v. Fiat Motors Ltd. [1910] 2 K.B. 831 Farwell L.J. said that where a formal document
had been executed showing the terms of a contract no antecedent or subsequent
negotiations are admissible to construe such a contract. As was stated by Lord
Wilberforce in Prenn v. Simmonds (supra) at p. 240, H.L.: "It is only the final
document which records a consensus."

2. It is no function of the court to rewrite an agreement for the parties by inserting terms
that would have been beneficial but were overlooked especially when such an
interpolation would amount to an interference with a third party's bargain.Asona
Building Co Ltd v. Akers Mek Verksted [1977] 2 GLR 90 CA;

Thus where, as in the instant case, a formal document had been executed showing the
terms of the contract, no antecedent or subsequent negotiations were admissible to
construe such a contract.

Monta v. Paterson Simons Ghana Ltd [1974] 2 GLR 162.

By a deed commencing from 1 December 1960, the plaintiff leased certain premises to the
defendants for a term of fifteen years. However, the deed contained a clause whereby the
defendants had the option to terminate the lease "at the expiration of " the first ten years of
the term, provided they gave six months' written notice of their intention to determine the
lease. On 14 May 1970, the defendants served a written notice on the plaintiff signifying
their intention to determine the lease as from 1 December 1970, being the expiration date
of the ten-year term. On an originating summons taken out by the plaintiff to determine
whether the notice was good, he contended that on a proper construction of the clause, the
notice could only be given to take effect, at the earliest, six months after the expiration of
the ten-year term.

Held:
170
 1. It is a rule of construction that where legal terms or words of well-known legal
import are used by lawyers, especially by conveyancers, they will have their
technical legal import: see Odgers' Construction of Deeds and Statutes (5th ed.).
2. And in Re Sassoon; sub nom. Inland Revenue Commissioners v. Raphael [1935]
H.L., Lord Wright was of the opinion that this rule applies even if by a mistake of
the draftsman there is a manifest failure to fulfil the intention of the testator.

As previously noted, the rationale underlying the insistence on ascertaining the intention
or MSE of language used from the document itself at first instance is the fact that the
courts proceed on the basis that the author(s) of a DSC have clearly stated or said all that
they intended to say in the document so that the meaning of the language or expression
they have used, if plain, expresses their intention. See Halsbury 4 th Edn Vol 44 @ Para
857.

Thus it is only where construction of the words used by the party or parties in the ordinary
meaning etc leads to absurdity, ambiguity, inconsistency, repugnance etc that recourse
could be had to external sources and even so, within limits defined by law.

One obvious consequence of the foregoing position is that extrinsic evidence [oral or
written] is not admissible to explain the meaning and application of the language used in
the document save in those limited circumstances defined in law and for limited purposes
only.
Specifically, where intention of the party or parties have been reduced into writing, this in
general, is not permissible to admit extrinsic evidence either to contradict, vary, or add to
the terms of the document or show the intention of the party or parties except where the
law permits this. Halsbury 4th Edn Vol 40 Para 1478-1501; Odgers Chapt 4, 76-79;
Lewison, Pp 196-203.

Admission of Extrinsic Evidence

In practice some of the limited circumstances in which extrinsic evidence might be
admissible in interpretation will include the ff:

1) Exclusive Extrinsic Evidence admissible to explain Latent Not Patent Ambiguity

As previously noted, patent ambiguity is one which appears from the language of the
instrument itself and the latent ambiguity or equivocation only becomes apparent when the
language is applied to the factual situation. Hence as Lewison points out in page 196,
patent ambiguity may arise because the document is self contradictory or because it
expresses alternative intentions without choosing between them.

In respect of patent ambiguities, extrinsic evidence is as a rule, not admissible to

contradict, vary, or add to the terms of the document save in very limited circumstances
such as to throw light on the circumstances surrounding the making of the document; to
show that the transaction is effected by fraud, illegality, misrepresentation; where the
court is to grant a discretionary remedy such as rectification or rescission on the ground of

171
mistake etc; to prove date of delivery of a Deed or execution of a written instrument. See
for the details, Halsbury 4th Ed Vol 12 Para 1479.

Extrinsic evidence is however not admissible to establish the intention of the author(s) in a
case of a patent ambiguity. Such evidence is only admissible in a case of latent
ambiguities. See

Halsbury 4TH Ed Vol 12 par 1490.

The object of interpretation is to ascertain the intention of the parties to the instrument as
expressed by the words they have used; and, since the words are the sole guide to the
intention, extrinsic evidence of that intention is not admissible, save in the case of a latent
ambiguity which cannot otherwise be resolved.

Takyi v. Baah CA 5TH Feb 1998 [unrepd].

Atta (decd), Kwako v Tawiah (2001-2002)SCGLR 461.

Per Adzoe JSC:
1. The intention which the will itself declares either expressly or by necessary
implication is what the courts would act upon. The rule which enjoins the courts to
rely on the language of the testator is normally called the golden rule.
2. There are other rules, indeed many rules, of construction which the courts often rely
on for guidance. These several rules have a common aim namely, to direct the court
towards an objective standard of construction and to exclude evidence which seeks
to provide what is supposed to be the actual intention of the testator.
3. The rule is generally stated as being this, that extrinsic evidence of a testator's
declarations of intention as to the meaning to be put on the language used in his will
is not admissible as direct evidence of his testamentary intention. Under this rule
evidence of instructions given by the testator for his Will and of any declarations
made by him as to what he intended to do by the Will is not admissible as direct
evidence of his testamentary intention.
4. Thus in the case of Doe D. Hiscocks v. Hiscocks (1839) 5 M & W 363 it was held
that evidence of the testator's instructions for his Will and of his declarations after
its execution which suggested that he meant the gift for "Simon" and not "John"
was not admissible.
5. But instructions given for the Will are admissible in two situations accepted as
exceptions to the general rule. Such instructions may be admissible in cases of
equivocation, and as circumstantial evidence under the arm-chair principle.
6. An equivocation, sometimes also called a latent ambiguity, arises if the name or
description of the devisee or the property mentioned in the will turns out to fit two
or more persons or things and applies unambiguously to all of them; and under the
arm-chair principle the instructions are admissible as contemporaneous evidence
that is explanatory of the meaning which the testator attributed to a word or a name.
7. In either case the instructions are not admitted for the purpose of gathering what the
testator intended to do, but strictly for the purpose of identifying the person or
object he is reasonably deemed to have had in mind.

172
Quaye v. Quarcoo.[1991]2GLR 437

Doe D. Hiscocks v. Hiscocks [1831] 5 M& W 363 [supra]

Great Western Railway v. Bristol Corporation [1918] 87 LJ Ch 424

And here it has to be added that although the rules regarding the admissibility of extrinsic
evidence to resolve ambiguities based on the distinction between patent and latent
ambiguities has been severely criticized in the literature [see for example, LEWISON pp
185-198] the rule still persists and in Ghana has recently received the blessing of the court
in the case of Takyi v Baah and on appeal as In re Atta, Kwako v Tawiah

In either case the instructions are not admitted for the purpose of gathering what the
testator intended to do, but strictly for the purpose of identifying the person or object he is
reasonably deemed to have had in mind.

2. Other Instances of Admission of Extrinsic Evidence

Questions of ambiguities aside, there are other specific circumstances in which extrinsic
evidence may be admissible in practice to establish the intention of parties to a document
or to explain the meaning and application of language used in a document. These include:

a) Documents in Foreign Language: the courts have held that extrinsic evidence may be
given to prove the meaning of a document written in foreign language. See Odgers pp
39 and 44, Halsbury Vol 12 para 1493. The object of interpretation here is basically to
translate for the use by the court, the terms used by the parties to show for example;
who the parties to the instrument are, the circumstances under which the document was
executed etc, in order to aid the court in ascertaining the meaning of a document or part
thereof. See Shore V. Wilson (supra) per Parke B.

b) Technical or scientific terms: technical terms of art etc are primarily to be construed
in their technical meaning. Hence extrinsic evidence may be admissible to inform the
court of their meaning. The court may also take judicial notice of the meaning of such
terms.

Odgers, pp 44-46;
Halsbury 4th ed vol 12 1494
Technical words are primarily to be taken in their technical sense and where the words
are technical terms of science or art, the evidence of experts, or of books dealing with
the subject, is admissible to inform the court of their meaning. If however there is no
dispute or the matter is simple, the court will take judicial notice of the meaning of
technical terms of a scientific or technological nature, using any reliable means for
informing itself. The court requires no evidence as to technical legal terms.

Shore v. Wilson @ 512 @ 515.

173
The first general rule is that all instruments in writing are to be construed by the court, and
the meaning of the terms employed is to be ascertained and fixed by reference to the
whole instrument, but to nothing beyond it, unless specially referred to in the instrument
itself. But the rule is subject to many exceptions, including the exception that if the terms
are technical terms of art, their meaning must be ascertained by the evidence of persons
skilled in the art to which they refer.

Baldwin & Francis Ltd v. Patents Appeals Tribunal [1959] AC 663

The appellants were owners of a patent with the complete specification of which was
entitled:
“improvements in and relating to earth leakage protection systems for electric motors,
cables and other apparatus” Then the respondents applied for another patent specified as
follows: “improvements in or relating to protective systems for polyphase AC loads.” The
purpose of the invention was similar to that of the appellants. The appellants gave notice
of opposition contending that the specification could not fairly describe the invention
without a reference and that the specification ought to warn that in so doing they ran a
substantial risk of infringing the prior patent mentioned in the reference and that the
respondents had failed to so warn as by law required. The issue was whether there was a
substantial risk that the respondents’ patent infringed some other patent and to decide this,
it was necessary to determine what the right construction of the specification was.

Held:
1. The documents dealt with technical matters of science, and technical terms were
used. Where technical words were used in a document they were prima facie used
in a technical sense and evidence could, and indeed must, be given to enable the
court to understand the meaning of the language used.
2. If the court finds that there is genuine dispute and real doubt about any technical
matter, then the court cannot proceed farther without evidence.
Per Lord Denning:
3. The one thing that the court ought not to do is to refuse jurisdiction in a case
because it does not understand the technical terms employed in it. Scientists and
engineers are entitled to have their rights enforced and their wrongs redressed as
well as anyone else: and the court must possess itself of whatever information is
necessary for the purpose….. And no one ever calls the author of a dictionary to
give evidence. All that happens is that the court is equipping itself for its task by
taking judicial notice of all such things as it ought to know in order to do its work
properly.

c) Trade usages and terms: Likewise extrinsic evidence may be admissible to show the
meaning of a term in reference to a particular trade or business. See Odgers pp 46-48.
See Browne v. Byrne [1854] 3 E & B 703@ 714. In this case extrinsic evidence was
admitted in order to arrive at the meaning of a mercantile contract. See also Myers v.
Sarl [1860] EL & EL 306 @ 318 per Hill J where it was made clear that the
admissibility of extrinsic evidence here does not depend on whether or not the
language to be construed is ambiguous, but rather, “whether or not the expression has,
with reference to the subject matter of the contract acquired a perculiar meaning”.
174
d) Local or class use: extrinsic evidence may be admissible to show that a phrase or
word has a special meaning in a particular district or among a particular class; and that
the party or parties using it, resided in such a district or belonged to such a class. See
Halsbury 4th ed vol 12 para 1495. see also Shore v. Wilson. See also Clayton v.
Gregson [1936] 5 Ad & El 302, where in a mining lease, the word ‘level’ was
construed in the particular sense in which it was used by miners in the neigbourhood.

The extrinsic evidence here must refer to the general use of the word or phrase and must
support the inference that the party or parties used the term in the document in a suggested
sense. It must however be direct evidence that in the particular case, the party or parties
intended to use the word or phrase in some sense different from its normal or ordinary
meaning. Shore v. Wilson @ 566,

Halsbury 4th ed vol 12 para 1495

Shore v. Wilson

Quaynor v. Humprey Bonsu (Supra);

Drummond v. A-G of Ireland [1849] 2 HLC 837 @ 863.

e) Ancient documents: extrinsic evidence may also be admitted of the meaning of words
or phrases used in an ancient document where the words or phrases have acquired
meaning different from what they bore when originally employed. Evidence will be
admitted of the meaning of the words at the date of the instrument by reference to
historical and other works. See Halsbury 4th ed Vol. 12 1486, Odgers p 48, Shore v.
Wilson per Tindal CJ; Drummond v. A_G of Ireland (supra) @ 863.

f) Identification of parties, objects etc: extrinsic evidence may also be admissible to

identify the persons or objects to which the expression used in the document apply. See
Halsbury 12 1497, Odgers p 48, Shore v. Wilson;

Lord Waterpark v. Fennell (1859) 7 HLC 650 @ 678.

g) Other relevant surrounding circumstances: extrinsic evidence of other surrounding

circumstances necessary to explain the words or phrases used in the instrument or
document may be admissible. Such evidence may be used or may be admissible to
identify documents referred to in the document which is the subject of interpretation; to
show the circumstances of the parties from which their relative positions may be
inferred, or to show the extent of property intended to pass by a certain description. See
Odgers p 48, Halsbury 12th ed para 1490, Shore v. Wilson.

Grey v. Pearson (1857) 6 HLC 61@ 106.

(This case is the genesis of the golden rule of interpretation per Lord Wensleydale).
175
Drummond v. A-G of Ireland [1849] 2 HLC 837 @ 863.
In the year 1710 certain members of Protestant Dissenting Congregations setup a
charitable trust with rules for the benefit of “Protestant Dissenters”. The issue for
consideration of the court in 1849, that is over 100 years later, was whether Unitarian
Protestants Dissenters” were within the trusts of the deed and the admissibility of evidence
to ascertain the settlor’s meaning of the words, “Protestant Dissenters”.
Held:
1. The evidence was admissible in this case for the purpose of showing the circumstances
in which the party was when making the instrument.
2. You admit it as you admit evidence in construing a will, not to modify the expressions
of the will, not to affix a sense upon the will which it does not bear, not to tell you what
the meaning of the will is, but to tell you what were the circumstances in which the
testator was when he used those expressions, for the purpose of enabling you to
ascertain what meaning he affixed to the expressions that he used, and for no other
purpose.
3. There was nothing further done in this case, and it is clear that the evidence was
admissible.
4. In construing such an instrument you may look to the usage to see in what sense the
words were used at that time; you may look to contemporaneous documents, as well as
to Acts of parliament to see in what sense the words were used in the age in which the
deeds were executed.
5. But to admit evidence to show the sense in which words were used by particular
individuals is contrary to sound principle

Shore v Wilson [1839, 1842]

Issue: What was Lady Hewley’s intention as expressed in the deeds of 1704 and 1707?
Per Tindal Lord CJ:
1. The true interpretation of every instrument being manifestly that which will make the
instrument speak the intention of the party at the time it was made, except where any
doubts arises upon the true sense and meaning of the words themselves, or any
difficulty as to their application under the surrounding circumstances, the sense and
meaning of the language may be investigated and ascertained by evidence dehors the
instrument itself; for both reason and common sense agree that by no other means can
the language of the instrument be made to speak the real mind of the party.
2. Such investigation does of necessity take place:
 in the interpretation of instruments written in a foreign language;
 in the case of ancient instruments, where, by the lapse of time and change of
manners, the words have acquired in the present age a different meaning from that
which they bore when originally employed;
 in cases where terms of art or science occur;
 in mercantile contracts, which in many instances use a peculiar language employed
by those only who are conversant in trade and commence;
 and in other instances in which the words, besides their general common meaning,
have acquired, by custom or otherwise, a well-known peculiar idiomatic meaning in
the particular country in which the party using them was dwelling, or in the
particular society of which he formed a member, and in which he passed his life.
176
3. In all these cases evidence is admitted to expound the real meaning of the language
used in the instrument, in order to enable the court to construe the instrument and to
carry such real meaning into effect.
4. Admissibility of evidence is to be strictly limited to the above cases and that in no case
whatever is it permitted to explain the language of a deed by evidence of the private
views, the secret intentions, or the known principles of the party to the instrument,
whether religious, political, or otherwise, any more than the by express parol
declarations made by the party himself, which are universally excluded; for the
admitting of such evidence would in effect cause the secret undeclared intention of the
party to control and predominate over the open intention expressed in the deed..
5. But the evidence admissible is evidence which the Judge or court furnish to themselves
by reading, research and reflection, not that which they receive from the mouth of
witnesses.

Re Gouk [1957] 1 AER 469

By her will a testatrix after giving pecuniary legacies gave ‘all the remainder of which I
am possessed to my sister [F.E.A]..and thereafter to her issue”.
The question for the court was: What is the legal effect of the gift beginning with the
words ‘and thereafter”;
Held:
1. There is no reference to death, though perhaps many people might think that
it must mean ‘after the death of the sister”.
2. The numerous class of persons who, in wills and otherwise, speak as if the
office of the language were to conceal their thoughts, have no right to
complain of being taken to mean what their language expresses.
3. Accordingly the sister takes absolutely.

Re Ofner [1909] 1 Ch 60
The testator appointed Alfred Ofner one of his executors and gave him a legacy of 200l
and gave “to my grandnephew Robert Ofner” 100l and to another “grandnephew Curt
Ofner” 100l. The testator had no grandnephew or other relative of the name of “Robert”
Ofner, but he had four grandnephews, Alfred Ofner and Curt Ofner, who were, who were
correctly so described in the will, Richard Ofner, a brother of Alfred Ofner, and Botho
Ofner. It was proposed to put in evidence a memorandum in the testator’s handwriting that
had been given by him to his solicitors as instructions for his will, in which the following
words occurred: “to my grandnephew Dr Alfred Ofner…200l…to his brother Robert
Ofner 100l.”
Issue whether the evidence was admissibly to ascertain the identify of the beneficiary.
Held: Per Farwell LJ
1. In construing a will the court has to ascertain not what the testator actually
intended as distinguished from what his words have expressed, but what is the
meaning of the words he has used.
2. As Wingram on Extrinsic Evidence puts it, any evidence is admissible which, in
its nature and effect, simply explains what the testator has written, and no
177
 evidence can be admissible which, in its nature and effect, is applicable for
purpose of showing what he really intended.
3. You do not use the evidence for any other purpose than that to identify the person
or object who has been misdescribed.
4. One cannot suppose that the testator intended to make a gift to a non-existing
person.
5. The courts have a right to ascertain all the facts which were known to the testator
at the time he made the will, ie to place themselves in the testator’s position, in
order to ascertain whether there exists any person or thing to which the description
can be reasonably and with sufficient certainty applied., the presumption
necessarily being that the testator intended some existing matter or person:
Bernasconi v Atkinson [10 Hare 348]
6. Therefore extrinsic evidence is admissible to determine whether the testator meant
“Richard” when he wrote “Robert”
7. But you first have to prove that there is no person answering to the description of
the words used according to their strict tenor, and then you are perfectly entitled to
do invite the court to look at any document, substantially contemporaneous, of an
important character which shows who the person or thing was the testator had in
mind and intended by the description.

In re Ray [1916] 1 Ch 461

A testator gave a house, No. 83 Cambridge Road, “to my great nephew, Frederick
Johnson”. In an earlier part of her will she had given another house to ”my great nephew
Richard Johnson”. She had no relations in the name of “Johnson” but had a niece
Elizabeth Johnstone who had 3 sons, Robert William Johnstone, Joseph Francomb
Johnstone (known as “Frank”) and Richard Johnstone.
Issue: Whether direct evidence was admissible of the intention of the testatrix as to who
was to take under a gift of “No. 83 Cmabridge Road to my great nephew Federick
Johnson.”
Held:
1. The general rule of construction of wills is that extrinsic evidence of a testator’s
intention is only admissible to identify the subject-matter or the person with the
description in the will where that description is equivocal, that is equally applicable
to two or more subject-matters or two or more persons claiming to take.
2. There is no doubt about the rule when the description is perfectly applicable to two
or more persons such as to ‘my nephew John Smith,” and there are two or more
nephews called John smith, that is admitted.
3. But then arises the question whether the evidence as to intention is admissible when
the description in the will is equally applicable to two or more persons but
imperfectly descriptive of each them. As for instance two sons of Elizabeth
Johnstone, each with the Christian name of Frederick., would the fact that the

178
 surname was misspelt prevent the court from receiving evidence as to which of the
two the description was meant to apply to?
4. Here extrinsic evidence was admissible to show the intention of the testatrix, that
Joseph Francomb Johnstone was the person to take No. 83, Cambridge Road.
5. The law is that if part of the description applies to no subject or object it may be
rejected, leaving the remainder an equivocal description: as a devise to John
Thomas smith, there being two John Smiths and no Thomas Smith (Doe v
Hiscocks)
6. But what is left must be enough to describe with the legal certainty either of the
competing persons or things, if the other does not exist.
7. The only case in which evidence of this kind can be received is where the
description of the legatee or of the thing bequeathed, is equally applicable in all its
parts to two persons or to two things.
8. The word used is ‘equally’ not ‘completely’

Rule 3: The Document Must be Read as a Whole

This basic rule is to the effect that a document or written instrument is to be read as a
whole in order to extract the meaning of any particular part or parts or expressions used.
This rule is often said to be an enlargement of the general proposition that individual
words or phrases take their meaning from the context in which they are found.

Halsbury 4th Ed V.12 @1469.

It is a rule of construction applicable to all written instruments that the instrument must be
construed as a whole in order to ascertain the true meaning of its several clauses and the
words of each clause must be so interpreted as to bring them into harmony with the other
provisions of the instrument, if that interpretation does no violence to the meaning of
which they naturally susceptible. The best construction of deeds is to make one part of the
deed expound the other, and so to make all the parts agree. Effect must, as far as possible,
be given to every word and every clause.

Odgers 55-Lewison, 156-167; Buta 33 ff. See also

In re Jodrell, Jodrell v. Seale [1890] 44 Ch 590

The testator, Sir Edward Repps Jodrell, gave his general estate to his executors and his
residuary estate to be equally divided among such of “his relatives thereinbefore named”
as by virtue of the provisions of his will should become entitled to a vested “transmissible
interest” in any part of his property. The persons described as the testator’s nieces were his
wife’s nieces, not his own; and some of the poersons described as his cousins were
illegitimate relatives:
Issue by originating summons, whether persons named in the will as “my cousins” but
who were not cousins legally, could take under the residuary clause as “relatives”;
whether the words “hereinbefore named” limited the gift of residue to persons who were
179
named, or whether their children, and who were referred to as such could take; as to what
the words “vested transmissible interest” meant.

Held @ 605 per Lord Halsbury LC

1. I am called upon to express an opinion on what is the meaning of this written
instrument, and I repudiate entirely the notion of laying down any canon of
construction which is to extend beyond the particular instrument that I am called upon
to give an interpretation. I do not know what the interpretation meant except by the
words that he has used.
2. I am prepared to look at the instrument such as it is; to see the language that is used in
it; to look at the whole of the document, and not part of it; and having looked at the
whole of the document, to see (if I can) through the instrument what was the mind of
the testator.
3. Those are general principles for the construction of all instruments-and to that extent it
may be said that they are canons of construction.
4. In the absence of any other explanation, a person who has used the phrase or word in
the sense which has hitherto been attached to it by the law, there is no reason to go out
of what is called the ordinary and prima facie meaning of such expression
5. If you find that that is the nomenclature used by the testator, taking his will as the
dictionary from which you are to find the meaning of the terms that he has used, that is
all which the law requires. The circumstances of the case which the testator was
dealing in order that you may put yourself as much as you can into the position, and
diving so into the mind of the person who has made the instrument which you are
endeavouring to construe, then you have all the legitimate materials from which you
can deduce what was the meaning of the testator.
6. Now is it unreasonable in construing the whole of an instrument, and looking to the
state of mind of the testator at that time, and assuming him to be aware of the meaning
which he had used, and to the fact that he contemplated at that time a division which
was impossible in the vents that had happened, to give such a construction to this
instrument as would completely frustrate the intentions of the testator as exhibited by
the language which he himself has used, or by reason of some supposed overwhelming
necessity to attach a peculiar technical meaning to words and with a sufficient context
may bear a meaning which will give full effect to every part of the testator’s complete
testamentary disposition? It will be reasonable so to do.

Wigsell v. Corporation of School for Indigent Blind (1880) 43 LT 218.

Boateng v. Volta Aluminium Co Ltd [1984-86] 1 GLR 433

Master and servant contract of employment, conditions of service containing four
termination clauses, viz; Clause 1 giving employer option of giving a month's notice or a
month's salary in lieu of notice. This option unavailable to employer in clauses 2 and 3.
Employee contending that his employment could be terminated involuntarily for cause
after a month's notice and since there was no such option of payment of a month's salary
in lieu of notice and the termination of his employment was not in accordance with the
conditions of service agreed between them, it was unlawful.
180
Held: Per annan JA
1. In attempting to construe the termination provisions, regard should be had to all the
four termination clauses. That is the language used and all the provisions in the
termination clauses should be looked at as a whole and every clause must be compared
with the other and one entire sense made out of them.
2. It is only by doing this that the true meaning and the intention of the parties could be
discovered. This method of construction was adopted by Lord Halsbury LC in In re
Jodrell; Jodrell v Seale (1890) 44 ChD 590 where the learned Lord said at 605:
3. "I am called upon to express an opinion on what is the meaning of this written
instrument ... For myself, I am prepared to look at the instrument such as it is; to see
the language that is used in it; to look at the whole of the document, and not to part of
it; and, having looked at the whole of the document, to see (if I can) through the
instrument what was the mind of the testator."

4. The same view seemed to have been expressed by Huddleston B in Wigsell v The
Corporation of the School for the Indigent Blind (1880) 43 LT 218 where he said at
219:

5. "In construing covenants, the fulfilment of the evident intention and meaning of the
parties to them must be looked at, not confining oneself within the narrow limits of a
literal interpretation, but taking a more liberal and extended view, and contemplating at
once the whole scope and object of the deed in which they are contained."

6. Having therefore considered the clauses as a whole and taking a liberal and extended
view of the language used, I can safely say that those clauses were designed to
accomplish or achieve one particular object, namely to protect both the employer and
the employee.

7. An inference would not only do that which was the highest equity, namely make an
equality between parties who stood in the same relation, but would also effectuate the
real object and intention of the parties.

8. Thus in Hilbers v Parkinson (1884) 25 ChD 200 at 203-204 Pearson J said: "I
conceive that all deeds are to be construed, not only strictly according to their words,
but, so far as is possible without infringing any rule of law, in such a way as to
effectuate the intention of the parties."

9. The contention of learned counsel for the appellant that any inference that the company
could also pay a month's salary in lieu of notice would offend against the maxim,
expressio unius est exclusio alterius was not tenable in view of the fact that such an
inference would rather bring all the clauses into harmony with one another.

10.I must observe that great caution is necessary in dealing with this maxim for it is not of
universal application. Its application depends upon the intention of the parties as

181
 discoverable upon the face of the document or of the transaction; and the nature of the
agreement in this case was such that the maxim cannot properly be applied.

11.The maxim has been described as "a valuable servant but a dangerous master" by
Lopes LJ in Colquhoun v Brooks (1888) and, care ought to be exercised in resorting
to it..

a. In Colquhoun v Brooks (1888); Court called to decide whether the

contention of the surveyor of taxes that the respondent was laible to be
assessed on a certain sum, though he had not actually received it, nor had it
actually come within the UK. The issue is construction of tax schedule
imposes income tax : For and in respect of annual profits or gains arising or
accruing to any person residing in the UK from any kind of property
whatever, whether situate in the UK or elsewhere, and for..”

b. Quoting Lord Blackburn Lord Herschell said when any enactments for a
purpose can bear two interpretations, it is reasonable to put that construction
upon them which will produce the purpose of the legislature.

c. His Lordship held that it is beyond dispute, that the court are entitled and
indeed bound when construing the terms of any provision found in a statute
to consider any other other parts of the Act which throw light upon the
intention of the legislature and,

d. Which may serve to show that the particular provision ought not to be
construed as it would be if considered alone and apart from the rest of the
Act.

e. Counsel for respondent submitted that if the court seeks the aid to be derived
from other provision of the Income tax, it will be led to the conclusion that
the view taken by the appellant is erroneous.

Nartey Tokoli v. Valco

Akufo v. Valco [2003-04]SC GLR [supra]

The CBA between the appellant company and the employees provided the following:

Article 13-Leaving the Service of the Company

(a) If the company terminates the service of a regular employee other than in
case of summary dismissal, the company shall give to the employee at least
14 days notice to expire not later than the last day of current month of pay to
the employee…….that would have accrued to him during the period of
notice.
(b) Similarly an employee wishing to resign from the company should give…..
(c) Notwithstanding the above, a month’s notice will be given by either party
…..
182
Article-15-Redundancy
(a) In the event of redundancy, the company shall notify the union in advance as far
as possible…
(b) ….
(e)Employee to be declared redundant will be given two months notice or paid in
lieu.

The plaintiffs argued that Art 15(e) should be read together with art 13(a) and (b) and that
the logical outcome of that would be to construe the amount to be “paid in lieu”, under
15(e0, as meaning the sum of money which would have accrued to the plaintiffs during
the period of notice. They contended that reading the labour agreement as whole, the
phrase “leaving the service of the company” in art 13 meant the same as termination of
employment, and that redundancy in art 159e) was a form of termination of employment.
Council for the respondent company contend that articles 15(e) and 139a) are distinct and
different and deal with entirely different situations, namely ‘redundancy’ and ‘leaving the
service of the company’
Held:
a) The well established rule of interpretation is that a document, like the labour
agreement, should be construed as a whole in order to obtain its full meaning and
effect. Thus the language used and all the provisions in the termination clauses should
be looked at as a whole and very clause must be compared with the other and one
entire sense made out of them. That it was only in so doing that the true meaning and
intention of the parties could be discovered: Boateng v Valco.
b) Thus Art 13 should be given the general meaning, which the heading suggests, that is,
the concept of leaving the service.
c) Where however, provision has been made for specific purposes in a document, effect
must be given to those purposes or situations. Art 13 & 15 could be read together if
they dealt with the same or similar matter.
d) Where the two articles deal with entirely different situations, it will be doing violence
to the rules of interpretation to insist that the two should be read together.
e) If the parties had intended such result they would have so indicated.
f) It is trite law that the rules of construction of statutes are generally the same as those
for the construction of deeds and other documents.
g) It is settled canon of construction that variations in language of statutory provisions do
not always point to a change of intent: Bilson v Apaloo; NPP v NDC
h) Counsel for the respondent claimed that if article 13(a) were intended to apply to the
other sections, it would have been so stated as was done to article 11.
i) This is based on the principle of expressio unius exclusion alterius. But a literal
application of that principle would mean that those sections not expressly excluded are
to be considered as having been intended to apply.
j) Such an argument would be correct, but would defeat the very case intended to favour
the respondent.
k) Hence the view that the principle can be a faithful servant but a dangerous master.
l) Hence Bimpong-Buta in his book “The Law of Interpretation in Ghana (Exposition &
Critique) comments that a religious adherence to the application of the maxim (of
183
 expressio unius exclusion aiterius) in construing provisions in a statute or document
might lead to the creation of absurdity, injustice or inconsistency in the operation of a
statute.

It is also important to emphasize that this rule of construction does not mean that the same
word or expression must be given the same meaning in all parts of the instrument. See
Odgers p 57.

Watson v. Haggit [1928] AC 127.

There is no rule of general application that the same meaning ought to be given an
expression in every part of the document in which it appears; a difficulty or ambiguity
may be solved by resorting to such device, but it is only in such cases that it is necessary ,
or permissible to do so.

Tea Trade Properties Ltd v. C I N [1990] 1 EGLR 155, (Lewison p 158).

In cases of ambiguity however, a presumption of consistent meaning may be helpful and

where the draftsman uses different words in different parts of the document, the converse
presumption applies.

The authorities have also held that where a single transaction is carried into effect by
several instruments they are to be treated as one instrument and must be read together for
the purpose of ascertaining the true intention of the parties. This is so whether the
instruments are actually contemporaneous (i.e. executed at the same time) or within so
short an interval that they can reasonably be held to represent a single transaction.

Whitbread v. Smith [1854] 3 De G M& G 727.

Jacobs v. Batavia Trust Ltd [1924] 2 Ch 329.

It has also been held that where parties incorporate terms into a contract the incorporated
terms must be construed as if they had been written out in full in the contract and
accordingly must be construed in the context of the contract into which they have been
incorporated. The court may then read the incorporated clause with such modifications as
are necessary to make them apply to the contract into which they are incorporated. See
Lewison 39-45.

Skips A/S Nordheim v. Syrian Petroleum Co. [1984] QB 599.

Cf Hamilton and CO v. Mackie & Sons [1889] 5 TLR 577.

Finally, it is to be added that a corollary to the rule that the document must be read as a
whole is that effect must be given to each part of the document. In practice this means that
in general each part of the document is to be taken as having been deliberately inserted
having regard to the other parts of the document.

184
Nb! The First 3 Rules Above Are Known As The Background Rules.

Rule 4. Words and Phrases in Doc are at First Instance to be given their Ordinary
Meaning
Or where Appropriate, their Technical Meaning in Context.

NB! This rule is very important under the MOPA. Even though the authorities
overwhelmingly insist that the object of interpretation of all documents is to discover and
give effect to the intention of the author(s), the authorities are also very settled that in the
search for interpretation that reflects the intention of the author(s) the words and phrases
used in the document are in the first instance, to be construed in their ordinary or plain
meaning unless there is something in the context which shows that this cannot be the
intended meaning of the words or phrases used. In other words, the ordinary or plain
meaning of the language used in the document is always to be adhered to unless this
meaning results in some absurdity, repugnancy, inconsistency, with the intention of the
party or parties. Technical expressions etc can also be given their technical meaning in
context. See Odgers p 36-43.

Halsbury 4th ed vol 12 para 1463.

The words of a written instrument must in general be taken in their ordinary sense
notwithstanding the fact that such a construction may appear not to carry out the purpose
which it might otherwise be supposed the parties intended to carry out, but if the
provisions and expressions are contradictory, and there are grounds, appearing on the face
of the instrument, affording proof of the real intention of the parties, that intention will
prevail against the obvious and ordinary meaning of the words;, and where the literal (in
the sense of ordinary or primary) construction will lead to an absurd result, and the words
are capable of being interpreted so as to avoid this result, the literal construction will be
abandoned.

Shore v. Wilson (supra) per Coleridge J @ 525 and 527.

Per Justice Coleridge
3) Where language is used in a deed which in its primary meaning is unambiguous,
and in which that meaning is not excluded by the context, and is sensible with
reference to the extrinsic circumstances in which the writer was placed at the time
of writing, such primary meaning must be taken, conclusively, to be that in which
the writer used it; such meaning in that case conclusively states the writer’s
intention, and no evidence is receivable to show that in fact the writer used it in any
other sense, or had any other intention.
a. If the language be technical or scientific, and it is used in a matter relating to the
art or science to which it belongs, its technical or scientific meaning must be
considered its primary meaning.
b. But in proportion as we are removed from the period in which an author writes,
we become less certain of the meaning of the words he uses; we are not sure that
at period the primary meaning of the words was the same as now, for by the

185
 primary meaning is not meant the etymological meaning, but that which the
ordinary usage of society affixes to it.
c. When therefore we are called onto construe deeds of the years 1704 and 1707,
we are not only at liberty, but are bound, to inquire what at that time was the
meaning of the phrases used in them; not taking for granted , because they bear a
certain clear meaning now, that they did so then; and we are also bound to
inquire whether at that time they bore any technical or scientific sense; and if so,
we must judge from the context whether in the particular instance they were
used in that sense.
d. So long as we limit our reception of evidence to what is legitimate for these
inquiries, we do not break any legal rule, for we are not seeking to show an
intention not expressed, but trying to ascertain the meaning of that which has
been written.

Robertson v. French [1803] 4 EAST 130 @ 135.

Leader v. Duffley [1883] 13 AC 294 @ 391 per Lord Halsbury LC :

wherein he noted that the modern view which was “in accordance with reason and
common sense was that whatever the instrument, it must receive a construction according
to the plain meaning of the words and sentences therein contained.

Re Amarteifio v Amarteifio,

Anim Addo v. Mensah (supra),

Addai v. Donkor .

In applying the ordinary meaning rule, the courts proceed on the assumption that the
author(s) have clearly expressed their intention in the language used; so that the ordinary
meaning if plain represents their intention. And it only when it is established that the
ordinary meaning does not reflect the intention of the parties and might lead to
ambiguities, absurdities, etc that there is a warrant to depart.

The ordinary meaning of a word or phrase here is not necessarily its etymological or
dictionary meaning etc but rather its popular meaning in the sense of the meaning given to
it by ordinary usage of a particular linguistic community. The ordinary meaning may
therefore vary from time to time and from place to place.

Furthermore, the relevant ordinary meaning is always to be determined having regard to

the specific context of the use of the word or phrase-including particularly the purpose of
the author(s).

A-G v. Prince Augustus of Hanover.

Per Viscount Simonds:
1. For words, and particularly general words, cannot be read in isolation: their colour
and content are derived from their context. So it is the right and duty of the court to

186
 examine every word of a statute in its context, and context is here used in its widest
sense as including not only other enacting provisions of the same statute,
2. but its preamble, the existing state of the law, other statutes in pari materia, and the
mischief which the court can by those and other legitimate means discern the statue
was intended to remedy.

In practice several words might have more than one ordinary meaning which often creates
difficulties of interpretation. The context will often help to determine the appropriate
interpretation in the particular case.

The context of a provision or document here encompasses all the parts of the text itself,
including punctuations, headings, marginal notes, etc often referred to as the Internal
Context as well as sources outside these relevant internal parts for its interpretation- such
as the historical circumstances in which the document was made. These constitute the
external context.

It is also important to repeat that under the MOPA, the context of a document includes the
intention in the sense of purpose of the author(s).

Tuesday, January 24, 2006

When Ordinary Meaning is Plain or Absurd

As noted above, effect has to be given to the ordinary meaning in context if plain because
it reflects the intention of the author(s); but if the ordinary meaning results in absurdity it
might provide a basis for departure from same.
It is however important to emphasize here that since under the MOPA the purpose is an
important part of the context, and indeed since the object of interpretation is to arrive at
ordinary meaning that reflects this purpose the ordinary meaning of a document or part of
it cannot be said to be plain outside the purpose of the document. Hence “plain” here is
not only in terms of semantic or syntactic ambiguities etc, but also in terms of whether or
not the consequences of interpreting the document in its ordinary meaning sits with the
purpose of the author(s).
Thus under the MOPA language could be said to be plain in meaning if and only if it sits
with the purpose. The corollary of this position is that where the ordinary meaning sits
with the purpose there is no basis of departure in the name of ambiguity or absurdity.

Essilfie v. Anafo per Archer?

Cited Maxwell on the Interpretation of Statutes (3rd ed), p.319:
1. “. . . the principle of construction is laid down in these terms: 'Where the language
of a statute, in its ordinary meaning and grammatical construction, leads to a
manifest contradiction of the apparent purpose of the enactment, or to some
inconvenience or absurdity, hardship, or injustice, presumably not intended, a
construction may be put upon it which modifies the meaning of the words, and even
the structure of the sentence”
187
 2. Where the language of a document is plain and accords with the purpose, no court
or judge has the power to depart from that plain or ordinary meaning for the reason
that he finds it subjectively absurd or ambiguous.
3. Hence the fact that a court or lawyer or individual finds the particular provision
absurd is of itself not enough. It is only absurdity that results in inconsistency etc
with the purpose of the author(s) that is relevant; else the ordinary meaning would
be given effect to even if capricious, harsh etc etc.

Halsbury 4th edn vol 12, 1463

The rule is that in construing all written instruments the grammatical and ordinary sense of
the words is to be adhered to, unless that would lead to some absurdity, or some
repugnance 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 and
inconsistency, but no farther: Grey v Pearson per Lord Wensleydale.

Hume v. Rundell (1824) 2 Sim & St 174@177;

The question for the court was whether it be the true construction of the settlement of a
testator that the trustees of the term for raising portions for younger children have
authority , until such portions become payable, to levy and raise annually for the
maintenance and education, sums not exceeding the interest of their portions
Held per Sir John Leach; VC
1. In the construction of all instruments it is the duty of the court not to confine itself to
the force of a particular expression, but to collect the intention from the whole
instrument taken together. But a court is not authorized to deviate from the force of a
particular expression, unless it finds , in other parts of the instrument, expressions
which manifest that the author of the instrument could not have the intention which the
literal force of a particular expression would impute to him.
2. However capricious may be the intention which is clearly and unequivocally
expressed, every court is bound by it, unless it be plainly controlled by other parts of
the instrument.
3. Therefore in this case it cannot but be considered as unreasonable that the plaintiff be
without any provision for her maintenance and education during the life of her
stepmother. That will be difficult to believe that was the intention of the testator and if
the court could act upon conjecture, it would declare against such intention.
4. But such intention being clearly and unequivocally expressed in the clause of
maintenance, and there being no expression in any other part of the settlement which
manifest a different intention in this respect, the court is bound to declare that the
trustees under the settlement have no authority, during the infancy of the plaintiff and
the life of the stepmother, to raise any provision fore the plaintiff’s maintenance.

Abbot v. Middleton [1858] 7 HLc 68@69;

Bathurst v. Errington (1877) 2 AC 698@ 709 (Hl).

In the will of the testator, Henry Errington, he provided that in case Rowland or John or
Charles should “become eldest son of Sir Thomas” then, and in such case…. In case such
188
person so becoming the eldest son of Sir Thomas Stanley was then dead without issue
male of his body.” Rowland and Charles died without issues, Willaims the eldest son of
Sir Thomas died unmarried. John, now the respondent Sir John Errignton is the only
surviving son of Sir Thomas.

Issue is what is the meaning of this clause? Is John entitled to inherent?

Held per Lord Cairns LC:

1. In construing the will of the testator, Henry Errington, which was made so long ago as
1814, it is necessary that we should put ourselves, as far as we can, in the position of
the testator, and interpret his expressions as to persons things with reference to that
degree of knowledge of those persons and things which, so far as we can discover, the
testator possessed.
2. The words “the eldest son” being impossible to read according to their primary and
literal meaning and the words “become the eldest son” being ambiguous and capable of
two significations, the rule laid down in Abbot v Middleton is applicable here: That
principle states:
3. Where by acting on one interpretation of the words used we rae driven to the
conclusion that the person using them is acting capriciously, without any intelligible
motive, contrary to the ordinary mode in which men in general act in similar cases,
there ,
4. if the language admits of two constructions, we may reasonably and properly adopt that
which avoids these anomalies, even though the construction adopted is not the most
obvious or the most grammatically accurate. But if the words used are unambiguous,
they cannot be departed from merely because they lead to consequences which we
consider capricious, or even harsh and unreasonable.

Re Wilberforce (Dec’d) Wilberforce v. Wilberforce (HC Cape Coast) 15799

Plaintiff, one of the sons of the deceased claimed that:
1. That the testator was unconscious at the time of the alleged execution of the will
2. That there are differences between the will and the instructions alleged to have been
given to the testator’s counsel.
3. That the nephews of the testator have been referred to as “sons” in the will
4. That the testator though literate has thumb-printed and not signed the will
5. That the testator has not signed each page of the will
6. That the will is fraudulent.

Held: per Heward Mills J, Mrs

1. Testamentary capacity is an essential prerequisite and must exist during the giving
of instructions as well as during execution of the will.
2. Where testamentary capacity exists at the time of instructions but intervened by
infirmity during execution, then the will must naturally give cause for suspicion
which requires further investigation, especially where as, in this case, close family
members with legitimate expectations have been excluded in the will.

189
3. Mere suspicions, however, are not sufficient to invalidate a will, for though physical
infirmity may have reduced the mental capacity of the testator, parole or
documentary evidence is admissible to validate the will if there is evidence to show
firstly that instructions were given whilst the testator was in good health and
4. Secondly, the will had been prepared in accordance with those instructions and that
at the time of execution, the testator understood he was signing a will for which he
had given instructions: Perera v Perera [1901] AC 354
5. The testator was mentally aware but physically weak. The will was read over to
him, he understood the contents, nodded his head and said “oyie” in fante. He was
too weak to sign, so his thumbprint was affixed and then witnessed.
6. The burden to prove lack of capacity is on the plaintiff, since the executors have
denied it, and the relevant period is at the time of execution. The initial burden is to
prove the fact of soundness or otherwise of mind before and up to the time the will
was executed.
7. There is no legal basis that where the will consists of more than one sheet, each
page must be signed by the testator. All that is required is that all the sheets should
be together at the time of execution and that there should be the animo testandi, that
is the signature should be placed in such a position so as to give effect to all the
dispositions. [Halsbury-3rd Edn Vol 39-877.
8. By s29s0 of Wills Act 360, all dispositions underneath, following or inserted after
the signature of the testator is of no effect. This means that the best and only
necessary position for a testator’s signature is at the end of the will.
9. It is a rule of construction that where there is consistency of intention between
instructions and the final will and the intention is conveyed by clear and
unambiguous words, then the duty of the court if to uphold the will and give
meaning to the true intent of the testator.
10.The court takes judicial notice of the fact that it is not uncommon by Ghanaian
custom and tradition that nephews and nieces should be affectionately referred to
as sons and daughters by their uncles and aunts.
11.The law is that inaccurate references to beneficiaries per se does not invalidate
bequests. To do so there must be evidence that a beneficiary adopted a false
character and this was done fraudulently to deceive the testator and that the deceit
was perpetrated with the motive of benefiting under the will. In re Posner [1953]
AllER 1123, testator described woman as his “wife” when the woman was at the
time married to someone else, unknown to the testator, but legacy was held as valid.
12.It is a rule of construction applicable to all written documents, including wills, that
if a term used to describe a subject matter is sufficient to ascertain that subject
matter with certainty but other terms add a description which is not true, these other
terms are not allowed to vitiate the gift.
13.Thus false description cannot vitiate a gift. Where the context of the will and the
circumstances of the case show unambiguously whom or what the testator meant,
the description is rejected and the intention of the testator is effected.
14.Thus the use of “sons” will not detract the validity of the will.
15.There is no presumptiuon of mental incapacity simply because a will is executed on
death bed.

190
Addai v. Donkor,

Anim Addo case

Re Amarteifio

Re Dadzie

Anima Shawan v Onwuta [1972] 1 AllNLR 363.

The Technical Meaning Rule

This basic rule also requires that in general technical words and expressions (whether they
are technical scientific or technical legal words etc) be construed in their technical
meaning unless there is something in the context or in the circumstances which show that
this cannot be the intended meaning of the words or phrases. NB intended meaning is not
referring to the state of mind necessarily but the meaning that accords with the purpose.

Halsbury 4th Edn Vol 12 para. 1466

Where technical words occur in a document, whether they are technical scientific or
technical legal terms, it is that they are used in their technical sense, and prima facie this is
the meaning which such words must bear; but paramount regard must be had to the
meaning and intention of the marker of the document, in preference to the technical
meaning. Hence the technical meaning of legal terms will give way to the popular
meaning or one of several popular meanings if an intention to this effect is manifest by a
consideration of the text of the entire instrument and such extrinsic evidence as is
admissible. Technical words of limitation, however, will have their strict legal effect.

Shore v. Wilson @ 525 Per Lord Coleridge.

If the language be technical or scientific, and it is used in a matter relating to the art or
science to which it belongs, its technical or scientific meaning must be considered its
primary meaning.

Roddy v. Fitzgerald (1858) 6 Hlc 823@ 877 Per Lord Wensleydale.

Monta v Paterson Simons (Ghana Ltd) [1974] 2 GLR 162

The plaintiff leased certain premises to the defendants for a term of fifteen years. The deed
contained a clause whereby the defendants had the option to terminate the lease "at the
expiration of " the first ten years of the term, provided they gave six months' written notice
of their intention to determine the lease. The plaintiff's stand is that the proviso imposes a
term of ten years certain, after which the option to determine may be exercised; that is to
say, the notice of six calendar months or more could only be given to take effect at the
earliest six months after 1 December 1970.
The defendants maintained the contrary. Their stand is a notice given six months before 1
December 1970, such that it terminates the lease on 1 December, is good as "determining
the demise at the expiration of the first ten years of the term."
Held per Mensa Boison

191
1. It is a rule of construction that where legal terms or words of well-known legal
import are used by lawyers, especially by conveyancers, they will have their
technical legal import: see Odgers' Construction of Deeds and Statutes (5th ed.) at p.
51. Inland Revenue Commissioners v. Raphael H.L., Lord Wright was of the
opinion that this rule applies even if by a mistake of the draftsman there is a manifest
failure to fulfill the intention of the testator.
2. A wholesome principle of interpretation is to construe the language used in the
particular document and although precedents are a useful guide, it seems to me in the
field of interpretation it may be said that there are no precedents strictly so-called as
each document is to be construed specifically. Our task therefore may not be
lightened, as urged by counsel, by what words ought to have been used but were not.

Biney v. Biney
Hence technical legal terms or words of well known technical import will prima facie
have their technical import. Therefore the words “their heirs and assigns” were technical
words of limitation and must bear their technical meaning in pre-1881 English
conveyancing law.
See Also Buta @ 30.
The technical meaning of words would however give way to the ordinary meaning if the
context so requires.
Buta 32-33.

Sydall v. Castings Ltd [1967]1 QB 302

The plaintiff as widow and administratrix brought the action against her deceased
husband’s company claiming that money held by the defendants under a scheme was held
in trust for her and her four children and grandchildren being the only legitimate relatives.
The defence argues that there is a Lorraine also a relation of the deceased husband and
that the money was held in trust for her, for under the scheme funds are for “dependants”
or “relations” and that only those named by the dead man in his will or letter to the
company qualify to benefit.. The issue for the court was whether Lorraine was a
“descendant” and therefore a “relation”: of the deceased?

Held: Per Lord Denning:

1. The key words are “relation” and “descendants”. They are not technical words, nor are
they terms of art. They should therefore be given their ordinary meaning. Counsel for
Plaintiff claims “relations” includes only legitimate relations and “descendants” means
only legitimate descendants.
2. If that be correct then Yvette is illegitimate and is therefore not a relation nor a
descendant. Thus in the eye of the law she is a daughter of nobody, she is related to
nobody. “ I have no doubt that such an argument would have been accepted in the
nineteenth century. The judges in those days used to think that if they allowed
illegitimate children to take a benefit they were encouraging immorality…
3. They visited the sins of the fathers upon the children-with vengeance. I think we
should throw away those harsh rules of the past. They are not rules of law. They are

192
 only guides to the construction of documents. They are out of date. We no longer
penalize the illegitimate child”
4. The natural and ordinary meaning of “relation” denote “persons connected by blood or
marriage”. Prima facie that is the meaning it bears.
5. Then we look to the definition of “relations” in the scheme. The function of a
definition like this is not to displace the natural and ordinary meaning of the original
words. It is only to supplement it, that is to say, to set out its limits, or to restrict or
extend them.

Halsbury 4th Ed Vol 12 1466;

Re Bostock’s Settlement (Supra).

Biney v Biney;

Arbenser v. Hesse [1981] GLR 411.

By paragraph 6 of his will, the testator devised his land: "I give and devise unto and to the
use of my daughters Mrs. Eleanora Laingoye Hesse, and Mrs. Joana Leytchoe Arbenser
and to their heirs being issues of their respective bodies as tenants in common... I direct
that failing any heir or heirs of both of my said daughters, being issues of their respective
bodies, the said land and premises, etc. shall descend to my nephews, ...and their heirs to
be held by them as family property."
The plaintiff contended that those words when properly construed, meant that all the heirs
took immediate interest with the devisees and that their interests vested in equal shares.
The plaintiff took out this action for the interpretation of the will of his deceased
grandfather. The defendants were the daughters of the testator and the plaintiff is the son
of the first defendant.

Held per Cecilia Koranteng - Addow J.

1. Technical words and expressions appearing in a will must be taken in their technical
sense unless the will shows a clear intention to use them in another sense and that sense
can be ascertained. Whether a term of art has been employed by the testator, it would
be construed in the ordinary meaning applied to that term of art. In re Cook; Beck v.
Grant [1948] the dispositive part of the testatrix's will consisted of a gift of "all my
personal estate" to her nephew and nieces. The greater bulk of her estate consisted of
realty.
2. It was held that "personal estate" is a term of art and construed in its ordinary meaning
could not mean "all my worldly goods" so as to include realty.
3. The words "and to their heirs being issues of their respective bodies as tenants in
common" should be construed according to the rules of construction. They are terms
of art so they should be given their technical meaning. In Forest v. Whiteway (1849) 3
Exch. 367 at p. 372 Parke B. said of a similar issue:
4. "The question is not what the testatrix meant to have done, but what is the meaning of
the words contained in the instrument. We must construe them according to the rules
of law; and in following those rules, we shall pursue a wise course, instead of
speculating on what the testatrix would have done, if she had understood the meaning
of the words."
193
Rule 5. The Plain or Ordinary Meaning may be Modified:
In favour of some secondary or other less usual meaning to Avoid absurdity,
inconsistency, repugnance, etc.

As previously noted, if the application of the words or phrases used in the document will
in their ordinary or plain meaning in context lead to some absurdity, repugnance or
inconsistency with the intention of the party or parties, then the ordinary or plain meaning
may be modified to avoid the absurdity, inconsistency etc and to reach an interpretation
that would effectuate and not defeat the intention of the author(s).

Grey v. Pearson (1843-60) AllER 21

By his will Richard Watson made certain trusts and provided therein the following:
‘and subject to the trust aforesaid, all the said premises hereinbefore devised shall be in
trust for my grandson Robert Watson and heirs of his body; but in case he shall die under
the age of twenty-one years and without issue”, then to Anne in like manner. Robert
Watson died without issue of his body but he did not die under the age of twenty-one. The
question for the court is, there being that condition, if he should “die under the age of
twenty-one years and without issue”, whether that “and” is to be read according to its
natural import, so as not to give the estate over unless he died both without issue and
under the age of 21 years, or whether, he having died without issue, the trust over was to
take effect, rejecting the words “under the age of twenty-one years”.

Held per Lord Wensleydale:

1. I have been long and deeply impressed with the wisdom of the rule, now, I believe,
universally adopted, at least in the courts of law in Westminster Hall, that In construing
wills, and indeed statutes, and all written instruments, the grammatical and ordinary
sense of the words is to be adhered to, unless that would lead to some absurdity, or
some repugnance 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 the
absurdity and inconsistency, but no further.
2. The expression that the rule of construction is to be the intention of the testator is apt to
lead into error, because that word is capable of being understood in two senses, viz.,
that which the testator intended to have done, and that which is the meaning of the
words which he has used.
3. The will has to be in writing and the only question is: what is the meaning of the words
used in that writing-to ascertain which, every part of it must be considered with the
help of those surrounding circumstances which are admissible in evidence to explain
the words and put the court as nearly as possible in the situation of the writer of the
instrument.
4. The words of the clause ought to be read in their ordinary sense. If the words were
quite clear, we could not alter them in order to carry into effect what might reasonably
be conjectured (but it would be conjecture only) to have been the design of the testator.
5. We are bound by decided cases for the purpose of securing as much certainty in the
administration of the law as the subject is capable of.

194
Ex parte Walton. In re Levy [1881] 17 Ch D 746
This case applied the decision in Grey v Pearson on per Jessel MR at 751:
Having these rules before us, I will now proceed to consider the object of the Bankruptcy
Act so far as it is dealt with by sect 23, and then I will consider whether a literal
construction of the words would be absurd or inconsistent with the object of the Act.

Odgers p 36 ff.
Halsbury 4th edn 12 @ 1463.
The instrument must be construed according to its literal import, unless there is something
in the subject or context which shows that this cannot be the meaning of the words.

In practice the modification (under basic rule number 5), involves giving the words some
secondary meaning or less usual meaning that they are capable of bearing in the context.

Instances of application of this rule

Wallis v. Smith (1882) 21 Ch d 243

The defendant, a civil engineer entered into a contract with the plaintiff landowner to
expend certain sums in the development of estates on the land under several provisions.
Clause 25 provided that “If the Defendant should commit a substantial breach of the
contract either in not proceeding with due diligence to carry out and complete the works,
…..then and in either of the said events the deposit money of £5000; whether expended
upon the estate or not was to be forfeited;…..the intention being that if default was made
by the Defendant as aforesaid he should forfeit and pay to the plaintiff by way of
liquidated damages the sum of £5000, and the agreement to be void….”
No part of the deposit or sum of £5000 was ever paid by the defendant and the dependant
expended nothing on the estate, and performed none of the acts stipulated for in the
agreement. The plaintiff accordingly brought the action claiming the £50000 as liquidated
damages or if the court considers it as a penalty, then damages. The question for the court
was whether the sum of £5000 mentioned in the agreement was in the nature of a penalty
or in the nature of liquidated damages, and what was the meaning of “substantial
damages”

Held:
Per Jessel MR:
1. There is the well-known doctrine that in the construction of written instruments you
may depart from the literal meaning of the words, if reading the words literally leads to
an absurdity.
2. The rules for the purpose of ascertaining what is the construction of the instrument and
in applying those rules, one must look to the whole contract.
Per Lindley:
3. There are certain rules of law which when they apply prevent the court from giving
effect to the language used by the parties themselves, in which they have expressed
what must be supposed to have been their intention at the time.

195
4. The object of the construction of the written document is to ascertain the intentions of
the parties
5. You are to ascertain the intention of the parties by what they said-that is plain enough-
but you are to ascertain the intention of the parties not only by what they said but what
the court sees to be the consequence, and by what the court may or may not consider to
be absurd or oppressive , or thought to be so in former times. Take for example a
covenant to pay £5000 if £500 was not paid by the day named, the parties meant what
they said; but effect has long ceased to be given to what was intended.

Feist v Société IBD [1934] AC 161

Feist v Société Intercommunale Belge D’Electricité [1934] AC 161
The plaintiff, Feist, was the holder of a bond issued by the Belgium company, the
defendant , which provided that payment and interest during the continuance of the
security was to at a rate per annum “in streling gold coin of the United Kingdom of or
equal to the standard of weight and fineness existing on the day of September, 1928….. in
accordance with the coupons attached thereto”

By originating summons the plaintiff claimed a declaration that upon the true construction
of the bond , the defendants warranted to the plaintiff as holder thereof that they would
discharge their obligations thereunder by tendering him payment of the principal and
interest due upon the bond gold coin of the UK to the appropriate amount of or equal to
the standard of weight and fineness existing at the time and that in the vent of breach he
was entitled to damages equivalent to sterling sufficient to purchase from the market the
amount of gold coin which ought to have been tendered in pursuance of the warranty.

Held per Russell

1. In construing the contract between the parties I consider first the state of affairs
existing at the date of the bond. The fact is gold coin was no longer in circulation.
Therefore neither party can have contemplated payment under the bond being actually
made in gold coin.
2. I next turn to see if from the contents of the document itself it is apparent that the
parties did not use the words of the gold clause in accordance with the literal meaning
which they would bear if considered apart from the rest of the document and the
circumstances which surrounded its execution. A consideration shows that the words
used must mean something other that what they say and therefore the words cannot
have been intended by the parties to carry their literal interpretation.
3. I therefore ask myself this question. If the words of the gold clause cannot have been
used by the parties in the sense which they literally bear, ought I to ignore them
altogether and attribute no meaning to them, or ought I, if I can discover it from the
document, to attribute some other meaning to them?
4. Clearly the latter course should be adopted if possible, for the parties must have
inserted these special words for some special purpose , and if that purpose can be
discerned by legitimate means, effect should be given to it.

196
5. My Lords, I am conscious that this construction strains the words of the document, and
that it fits awkwardly with some of its provisions. But I prefer this to the only
alternative of either attributing no meaning at all, or a meaning which from the other
parts of the document and the surrounding circumstances the parties cannot have
intended it to bear.

Re Amarteifio
Re Dadzie

Impraim v. Baffoe [1980] GLR 520

Held:
1. The clause of a will must be interpreted with reference to one another, and what the
testator meant by "family house" was made quite clear in the will when he said the
named beneficiaries and their children should use the property as "family property"
and not his own family of which the defendant claims to be head.
2. The defendant's claims as head of the testator's family affords him no benefit in the
enjoyment, immediate, future or contingent, of the property in dispute because the
property was not devised by the testator to the testator's family. Who then are the
members of the devisee family? What happens to the property when the last of the
surviving children dies without the power to alienate?
3. As a general rule, the expression "children" means immediate descendants and does
not include grandchildren. It may however appear on the construction of a particular
will that the testator used the word "Children" in a wider sense so as to include
grandchildren and remoter issues and this may appear in the context of the will
itself. In the will under consideration, the testator obviously a man of a respectable
level of education and a minister of religion excluded his family, and devised the
property to a devisee family and decreed that the house should never be sold. In
such a context the word "children" can only make sense and give expression of his
intention if it is construed to include remoter issues of the specified beneficiaries.

197
Rule 6. The Court has Limited Powers
To Infer or Imply words from or Correct Errors in the document in order to give
effect to the Intention of party or parties.
To read in words which it considers could be:

(1) Necessarily inferred or implied from the terms of the document and;
(2) To correct errors in the document by a process of :
(a) Construction or/and
(b) Rectification.

This basic rule is to the effect that in order to arrive at the meaning of a document, which
gives effect to the intention of the party or parties, the court, when it has come to the
conclusion that the ordinary meaning leads to absurdity etc, may:
 Read in words which it considers could be necessarily inferred or implied from the
terms of the document; and
 May correct errors in the document either by a process of construction or
rectification

The rule in effect offers 3 options:

I. The power to read in words necessarily implied by the express words of the
document;
II. Correct errors by a process of construction
III. Correct errors by rectification

See Odgers P 65-75; Lewison PP 227-256.

The Necessarily Implied Construction

It is to be pointed out right at the outset that this rule does not entail a radical modification
or alteration of the language of the document since what is to be read in is what is already
necessarily implied or inferred from the language of the document.
Implicit meaning has always been regarded as part of ordinary meaning of language and
has always been taken in account in the construction of documents etc. thus in practice
what the author(s) of a document intended to be done or not done is ascertained not only
from what he has expressly stated but as well, from what is necessarily and reasonably
implied from what he has said.
Perhaps what is important to emphasize here is that under the MOPA, the concept of
implied meaning is closely connected to the intention of the author(s). Indeed, as
BENNION explains @ 362 of his Statutory Interpretation, we speak of a person or body
implying something “when we wish to say that they intended to convey it by the words
they chose to use, even though it was not expressed in those words”.
Hence whether an implication should ultimately be found within the express words of a
document or not, will turn inter alia on whether it is necessary or proper to find the
implication in arriving at the legal meaning of the document, having regard to the
accepted guides for the ascertainment of the intention of the author(s).
198
Wednesday, January 25, 2006
Consequently it is for the court or the interpreter to determine in each case whether or not
a particular implication is necessary.
In addition, it is to be noted that strictly and properly conceived, an implication cannot
properly be found which goes against an express statement. The maxim here is
“expressum facit cessare tacitum” (express statements ends implication). Thus it is not
permissible to find implied meaning that contradicts the ordinary or plain meaning of
language used.
Indeed, often the meaning of words necessarily implied by the words in a document are
only an elaboration of their ordinary meaning or clarification of some secondary meaning
which the words are capable of bearing. Thus a proper application of the necessarily
implied rule of construction would in most cases end in some secondary meaning of the
words in the document without the question of implying further words. See Cross p 93.

Correction of Errors by Construction vrs Rectification

The distinction between correction of errors as a matter of construction and the equitable
remedy of rectification is critical to an understanding of this rule.
The power of courts to correct errors in documents by construction is strictly limited to
obvious drafting errors or mistakes in expression which might render the meaning of the
document ambiguous, absurd, repugnant etc or in some cases inconsistent with the
intention of the party or parties. Such errors are often easily detectable from consideration
of the document itself in the light of the objective circumstances- and the object of
correction here is not to vary or contradict the terms of the document but rather to express
the intention of the party or parties as expressed in the document more clearly. The
modern conception of this kind of correction of errors by construction is summarized by
Brightman LJ in:

East v Pantiles (Plant Hire Ltd) [1982] 263 EG:

as follows: “…the principle of rectification by construction is said to apply only to
obvious clerical blunders or grammatical mistakes.
I agree with that approach. Perhaps it might be summarized by saying that the principle
applies where a reader with sufficient experience of the sort of document in issue would
inevitably say to himself “of course x is a mistake for y”.

Wilberforce v. Wilberforce (Supra).

Description of “sons” can be corrected to read “nephews”
Correction of errors by rectification on the other hand concern more fundamental errors
than drafting errors or errors in expression simpliciter. Such fundamental errors largely
arise where the chosen words of the document (however clearly spelt out), do not carry
into effect the intention of the party or parties. Here, the courts have power in certain
circumstances to rectify the instrument in order to give effect to the real intention of the
parties. In respect of contracts for example, it has been said that the basis of rectification is
that the document signed or executed by the parties did not reflect their prior concluded
agreement. See Chesire & Fifoot: 11th ed Law of Contract on this @ 231-234.
199
The existence and nature of errors that necessitate rectification are invariably apparent
only from extrinsic evidence as to the actual intention of the parties. The effect of
rectification is essentially also to vary (as opposed to ascertaining or clarifying the
meaning simpliciter) of the terms of the document.
The distinction between correction of errors by construction and the equitable remedy of
rectification is excellently explained in the case of:

North Secular Properties Ltd v Internal System Organisation Ltd: Ch D Oct 26,
1984
(unreported) as follows:

“of course the court will not likely, as part of the construction process, tamper with the
actual words used, particularly in a commercial document such as a lease. On the other
hand, the law is not such an ass as to compel the court to hold the parties to the actual
words used when it is… clear from the document itself that such words were used only by
virtue of a draftsman’s blunder. Such a process of correction of obvious drafting errors in
the process of construction is of course distinct from the equitable doctrine of rectification.
The former (correction by construction) can only be adopted where the fact that a mistake
has been made and the nature of the mistake can be ascertained with certainty from a
consideration of the relevant instrument in the context of the objective circumstances
surrounding its execution. Rectification on the other hand, would be appropriate in many
other cases where the existence and nature of a mistake are apparent only from extrinsic
evidence of the actual intention of the parties”.

In Re Butlin’s Settlement Trust [1976] Ch 251.

The plaintiff settlor, Sir William Butlin brought the action seeking to rectify a voluntary
settlement made 28 years ago by introducing a power a power for a majority of the
trustees to make decisions binding upon the minority, which was his real intention. The
defendants were five trustees who opposed the action and put the defendant to proof of the
facts. Three of the trustees were children of the settlor’s wife who was herself a trustee
made a settlor before she married the settlor. The defendants would like the settlement to
contain a power entitling the majority of the trustees to bind the minority if such a power
can properly be added to the settlement. The issue centered on the interpretation of the
settlement and the trial court held that the power was exceptional and not general. The
settlor then proceeded to make a claim for rectification of the settlement to which the wife
opposed as a trustee.

Held: Brightman J:

(1) The issue is whether the court has the jurisdiction to rectify the settlement.
a. The court has power to rectify a settlement notwithstanding that it is a voluntary
settlement and not the result of a bargain, such as an ante-nuptial marriage
settlement.
b. Rectification is available not only in a case where particular words have been
added, omitted or wrongly written as the result of careless copying or the like.

200
 c. It is also available where the words of the document were purposely used but it
was mistakenly considered that they bore a different meaning from their correct
meaning as a matter of true construction. In such a case, which is the present
case, the court will rectify the wording of the document so that it expresses the
true intention.

The authorities are also largely agreed that the assertion by the courts of the power to
correct errors is ultimately only a reflection of the canon of construction by which the
courts seek to save a document rather than allow the intention of the parties to miscarry.
(ut res magis doctrine).

Correction of errors by construction

As noted above, this power is limited to correction of obvious drafting errors in
documents as part of the process of construction and in order to carry out the intention of
the party or parties. To that end, the court may supply words, reject words, or even
transpose them etc.

Halsbury 4th Edn Vol 12 1502

Since an instrument is to be construed according to the intention of the parties as
appearing from the whole of its contents, it follows that that intention must not be defeated
by too strict an adherence to the actual words, and any corrections may be made which ia
perusal of the document shows to be necessary. Thus wrong grammar and spelling may be
corrected; words that are merely meaningless or that are repugnant or that have obviously
been inserted or left in by mistake, or that are immaterial and surplusage, and even whole
provisions, may be rejected; words may be supplied, though more sparingly, when it is
clear from the instrument itself that they have been omitted by inadvertence, and words
and clauses may be transposed. Words will only be supplied or transposed so as to give
effect to the clear intentions of the parties.
.

Gwyn v Neath Canal Company [1865] LR 3 Exch 209 @ 215:

where Chief Baron Kelly, summed up the power of the court to correct errors by
construction in the ff terms:
“the result of all the authorities is that where the court of law can clearly collect from the
language within the four corners of the deed or instrument in writing the real intention of
the parties, they are bound to give effect to it by supplying anything necessarily to be
inferred from the terms used or by rejecting as superfluous whatever is repugnant to the
intention so discerned”. See also Odgers at 65.
It has however been held that a mistake will not be corrected by the court unless it is sure
both that a mistake has been made and what is required in order to give effect to the
intention of the parties.

In pratice, the power of the courts to correct errors by construction could be

exercised in a distinct number of ways including the ff:
201
1. Mistaken reference to a party or misnomer may be corrected:
2. Words omitted may be supplied
3. Words may also be transposed
4. Punctuation may be inserted or disregarded
5. Repugnant words, inconsistent clauses, words, etc may be rejected.

a) Mistaken reference to a party or misnomer may be corrected:

The court has jurisdiction here to correct a mistaken reference to a party or a misnomer.

Wilson v Wilson [1854] 5 HLC 40.

Mrs Wilson had instituted a suit to nullify her marriage to her husband, the respondent. To
stop the suit for a separation, articles of agreement were drawn up for the separation. The
seventh article provided that: “That if and so long as the said John W. H. Wilson shall
duly observe and perform the covenants and agreements herein contained, all… And that
he the said John W. H. Wilson, his heirs, executors, and administrators , and his and their
estates and effects, shall be indemnified therefrom, and from all the present debts and
liabilities of the said John W. H. Wilson, by the…” provided that if during her life any
repairs. Mrs Wilson instituted action to enforce the agreement and averred that the word
“John” had be clerical error been introduced into the indemnity clause in the seventh
article, and that the article was to indemnify the husband against the wife’s debt and not
against his own debts, and that the deed had been properly drawn according to that
intention. The appellant denied that there had been any clerical error, and counterclaimed
for the cancellation of the agreement on grounds that it had been obtained from him by
intimidation and duress.
Issue for the court was whether on the true construction of the agreement, “John” meant
“Mary” and whether the court can correct the error, if it be an error or could not execute
the agreement at all.

Held per Lord St. Leonards:

1. It is a great mistake if it is supposed that even a court of law cannot correct a mistake,
or error, on the face of an instrument: there is no magic in words.
2. If you find a clear mistake, and it admits of no other construction, a Court of law, as
well as a court of equity, without impugning any doctrine about correcting those things
which can only be shown by parol evidence to be mistakes-without, I say, going into
those cases at all, both courts of law and equity may correct an obvious mistake on the
face of an instrument without the slightest difficulty.
3. At law the introduction of words operating to destroy the whole instrument may be
rejected, and so here you may reject those words and may read it as really it is
intended to be.
4. Observe the absurdity of the argument about the intention, as expressed in this deed,
that a covenant entered into by a wife and her trustees to indemnify her husband
against his own debts, that is man being indemnified against his own debts.

202
5. Then has the court a power to rectify the error without doing any violence to the
words? Because I entirely reject any intention of putting violence upon words. We are
bound as a court of justice to put a rational construction upon words, and to give to
every word its proper sense.
6. The great object of all courts of justice, while of course they abstain from breaking in
upon any rule of law, is to see that justice is done between the parties in the execution
of contracts according to their real meaning.
7. It is clearly apparent by the context that “Mary” and not “John” was intended and this
will make that part compatible with the rest of the deed and give effect to what was
the clear intention of the parties.

Nittan (UK ltd) v. Soleat Steel Fabrication Ltd [1881] 1 Lloyds report 633.

b) Words omitted may be supplied: the courts may supply words erroneously omitted
particularly where the omitted words are part of a common form of wording.
Lewiston, Odgers, 67-69:

Re Daniels Settlement [1875] 1 Ch D 375.

Daniel executed a trust settlement to pay the income to his wife for life for her separate
use and after her decease “In trust for all and every the child and children of the said T
Daniel by the said A. M. his wife, begotten or to be begotten, who being a son or sons
have or hath already attained or shall hereafter live to attain the age of twenty-one years,
equally to be divided between or among them, share and share alike, tenants in common,
…..and if there shall be but one such child, the whole shall be in trust for such one or only
child, and his or her executors and administrators;…..” At the death of Mrs Daniel there
were eight daughters and three sons alive who had attained the age of twenty-one. The
issue was whether the beneficiaries included the daughters or only the three sons.
Held:
1. In construing an instrument, the court should not import into them by conjecture an
intention which they do not express.
2. If the operative part of an instrument is clear, effect must be given to it, but if it is
obscure and inconsistent, we may resort to any other part of the instrument to explain
it.
3. The operative part speaks first of “children” and then of a single “child, his or her
executors and administrators.” This shows that “child” means “son or daughters” Thus
was an omission to cover the daughters which can be implied and this is strengthened
by the recitals.

Re Whitrick [1957] 1 WlR 3884

c) Words may also be transposed:

203
The courts may even transpose words used in the document in order to effectuate the
intention of the parties.
Odgers p 69).

Re Bacharach [1959] Ch 249.

Re Whitrick (Supra).

d) Punctuation may be inserted or disregarded: The courts may also insert or disregard
punctuation in order to give effect to the clear intention of the party or parties. (Odgers
p 69).

Friday, January 27, 2006

e) Repugnant words, inconsistent clauses, words, etc may be rejected.
The court or interpreter is also empowered under this rule to reject repugnant words
as well as inconsistent words, clauses etc. the leading or dominant position here is what
is often referred to as the “main purpose rule”, namely that words and even clauses
may be rejected if they are inconsistent with the main object or purpose of the
document. See Lewison 248-249, Odgers 66-67.\
The rule is summarized by Lord Halsbury in Glynn v. Margetson & Co [1839] AC 351
@ 357 as follows:
1. “looking at the whole of the document, and seeing what one must regard… as its
main purpose, one must reject words, indeed whole provisions, if they are
inconsistent with what one assumes to be the main purpose of the contract”. See
also the opinion of Fry LJ when the same case (supra) came on appeal in [1882]
1 QB 337 at page 344: “
2. I think that principle of construction is not confined to this class of documents
but is applicable to all documents. This principle is applicable wherever specific
words are used to express the main object and intent of the instrument, and in
some other part general words are used which in their utmost generality would
be inconsistent with and destructive of the main object of the contract.
3. When the court in dealing with a contract or document of any kind finds that
difficulty, it always, so far as I know, follows this principle, that the general
words must be limited so that they shall be consistent with and shall not defeat
the main object of the contracting parties”.

Glynn v. Margetson & Co [1839] AC 351 @ 357

In the present case the words of the bill of lading are “now lying in the port of Malaga,
and bound for Liverpool” and then adds “ to call in any” and “with liberty to proceed and
stay at any port or ports in any rotation” A bill of lading is contract for the carriage of
goods on board a ship and the first thing which the shipper and the ship-owner must agree
upon is the voyage.

204
Issue is should the contract be construed such that general words of are to be read in their
widest signification, although the object of the contract has been defined by the words
which limit it to a particular voyage.
Held: Inter alia, that the court, acting on sound commercial instincts, will insist upon
limiting general words by the object of the contract as ascertained from the contract itself.

Sze Hai Tong Bank v. Wrangler Cycle co ltd [1957] AC 579.

Centerploy Ltd v. Matlodge Ltd [1974] Ch 1.

In practice the courts might also refer to one of several other special rules to resolve
repugnancies. It is to be noted that sometimes the courts find it impossible, after resorting
to the main purpose rule etc, to harmonize various expressions in the document. When this
is so, a repugnancy occurs and the courts are sometimes to employ or resort to certain
expedience and the rules of thumb, etc, to resolve such internal
inconsistencies/repugnancies.

The Rule in Doe d Leicester

The old rule often resorted to is a general rule that if two parts or clauses of a document
are repugnant and cannot be resolved by interpretation, the first shall prevail and the latter
rejected. In the case of a Will, the latter shall prevail.
Halsbury 4th ed vol 12 para 1405;
Odgers p. 72, Lewison pp 245-248.

Doe d Leicester v. Biggs [1809] 2 Taunt 109 @ 113:

per Lord Mansfield who noted that :
“The general rule is that if there be a repugnancy, the first words in the deed and the last
words in a Will shall prevail”.

Bateson v. Gosling [1871] LR 7 Cp 9 @ 12;

Forbes v Git [1922] 1 AC 256 @ 259.

Appellant is a building contractor and respondents are restaurant keepers and the building
owners. They enter a contract for alteration, construction and fitting up in the restaurant
with provision as ff: “now this agreement witnesseth that in consideration of the sum of
$3000 to be paid as follows: $1000 on the signing of this agreement, further sum of $1000
when it appears to the satisfaction of all of the parties hereto that materials have been
furnished and services performed to the extent of $2500, and the balance or sum of $1000
thirty days after the completion of this agreement, the party of the second part covenants,
promises and agrees to and with the parties of the first party that he will furnish the
materials hereinafter mentioned and will perform services as hereinafter set forth.” The
deed then details the work to be done leaving others “to be agreed upon between the
parties” Then in clause 3 it states “…in the event of the materials to be supplied and the
labour performed amounting in value to more than $3000 then the parties of the first part
will reimburse the party of the second part of such excess…” The work was largely
205
varied, added to and departed from, and a dispute arose as to the amount payable by the
building owners for the contractor was claiming $3830.36 as per clause 3 being the excess
of $7010.36 work done for which $3180 had been paid. The trial court held that the 3 rd
clause was repugnant to and inconsistent with the 1 st & 2nd clause and ought to be rejected,
but on appeal it was held that the clauses were to be read together and effect given to the
3rd clause.
On appeal to the Privy Council

Held per Lord Wrensbury:

3. The principle of law to be applied is that if in a deed an earlier clause is
followed by a later clause which destroys altogether the obligation created by the
earlier clause, the later clause is to be rejected as repugnant and the earlier clause
prevails.
4. In this case the two clauses cannot be reconciled and the earlier provision
in the deed prevails over the later. Thus if A covenants to pay $100 and the deed
subsequently provides that he shall not be liable under his covenant, that later provision
is to be rejected as repugnant and void, for it altogether destroys the covenant.
5. But if the later clause does not destroy but only qualifies the earlier, then
the two are to be read together and effect is to be given to the intention of the parties as
disclosed by the deed as a whole. Thus in the example above if the deed subsequently
provides that he shall be liable only at a future date, then the absolute covenant to pay
is controlled by the words qualifying the obligation in manner described.
6. There is no contract in the first clause to do the work for $3000. The
contract is that in consideration of $3000 he will do the work. It is necessary to read the
contract as a whole to see whether the $3000 is to be the contract price for the work or
is to be a payment for undertaking the obligation to do the work. In this particular case
if there was no 3rd clause it may well be that the $3000 would be the contract price, but
the contract has to read as a whole with the 3rd clause.

It has to be added however that this is strictly a rule of thumb which is to be applied when
all else fails.

Differences between words and figures

It has also been held that where there is a difference between written words and figures,
the written words as a general rule prevail and that in such a case, evidence is not
admissible to show that there was an omission from the written words.

Saunderson v Piper [1839] 5 Bing Nc 425;

Durham City Estates v. Fellicetti [1990] 1 Eglr 143 Ca.

It has however been held in some cases that this rule is to be confined to commercial
documents.

Re Hammond [1938] 3 AllER 308.

206
Differences between written and printed clauses
Furthermore, it has been held that where an instrument is in printed form (especially
where forming part of a standard form) with written or typed addition or alteration, the
written or typed additions or alterations are in cases of reasonable doubt as to the meaning
of the whole, entitled to have greater effect attributed to them because they are taken as
intended to qualify the printed form; or as selected by the parties themselves to express
their intended meaning whereas the printed words only provide a general formula to be
adopted to their case or other cases.
The courts have however insisted that the written clauses and the printed clauses are to be
construed as a whole.

Halsbury 1503, Lewison 250 -253

In the case of a difference between written words and figures, the written words as a
general rule prevail, and in such a case evidence is not admissible to show that there was
an omission from the written words [Saunderson v Pipers]. But in Re Hammond,
Hammond v Treharne, where there was a legacy of “the sum of one hundred pounds
(£500)”, Simmons J regarded the rule that the words prevail as a rule confined to
commercial documents, and applied the rule of last resort for resolving repugnancies in
wills, namely that the later in order prevails over the earlier, hence holding that the legacy
was one of £500.

Robertson v. French
Per Lord Ellenborough CJ:
Where an instrument is in a printed form with written additions or alterations, the written
words (subject always to be governed in point of construction by the language and terms
with which they are accompanied) are entitled, in case of reasonable doubt as to the
meaning of the whole, to have a greater effect attributed to them than the printed words,
because the written words are taken as being intended to qualify the printed form, and
because they are the terms selected by the parties themselves for the expression of their
meaning, whereas the printed words are a general formula adapted equally to their case
and that of all other contracting parties on similar occasions and subjects. [Also;:
Halsbury, 4th Edn Vol 12 para 1503]

Joyce v Realm Marine Insurance [1872] LR 7 QB @ 580;

The Brabant [1967] 1 QB 588.

However several authorities have noted that this principle of construction appears to be
based on an assumption regarding the ability of the courts to distinguish between general
terms not chosen by the parties and those they have specially negotiated. It has been
argued that while this might be easy with some documents, e.g. mercantile contracts, it
might be extremely difficult in the case of several Conveyancing documents in which
most of the terms are taken from standard precedents and not specially negotiated by the
parties. Here the basis of the principle is undermined. See LEWISON 252.

207
The Falsa Demonstratio Rule
When the courts are unable to harmonise expressions in the document by a process of
construction, they sometimes also resort to another principle of construction enshrined in
the Latin Maxim “falsa demonstratio non noquet cum de corpore constant” meaning,
“a false description does not vitiate when there is no doubt, which person or thing is
meant”.
The maxim is then essentially to the effect that where the words of description in the
document apply in part correctly and in part incorrectly to some subject matter etc, the
incorrect parts will be rejected and the correct part read as if it stood alone. This maxim
will often apply where some insignificant error occurs in the description of the subject
matter or person or thing intended.

Adamastos Shipping Ltd v Anglo Saxon Shipping Ltd [1959] AC 133

Morrell v. Fisher [1849] 4 Exchq 591.

(This topic will be treated under Aids to Interpretation).

False Label Rule

This rule is to the effect that the nature of the relationship between a party or parties to the
document is to be determined by substance of the obligations they have entered into.
Hence if their relationship is described by the labels inconsistent with the substance or if
the parties incorrectly state what they believe to be the effect in law of their agreement or
relationship, the false statement or label will be rejected.
Hence it has been held for example, that while the parties to a contract are free to enter
contracts which they please- they are not competent to determine the nature of the
relationship created by the terms of the contract into which they have freely entered. The
meaning of the contract in the sense of determining the substance of the obligations into
which the parties have entered remains a question of construction and the legal effect is to
be ascertained as a matter of law.

Pawsey v Armstrong [1881] 18 Ch 698

Here Pawsey was a salaried clerk of the firm of Nicholay, Graham & Armstrong and that
on dissoluation of the firm , Armstrong requested plaintiff to continue to work with him to
be taken into partnership in that business in the proportion of 1/4 :3/4 between Pawsey and
Armstrong. Pawsey now claims dissolution of the Parnership[ and an account of the
assets. Pawsey said that it was agreed that he was to be a partner on certain terms.
Armstrong said “I did not agree that he should become a partner; on the contrary, I would
not agree to his being a partner, but I did agree that he should share with me profit and
loss.”
Held:
There are certain legal relations which are entered into by agreeing to certain conditions,
and when those conditions are agreed to, it is quite idle for people to superadd, or to
attempt to superadd, a stipulation that the necessary legal consequences of those
conditions shall not follow from the arrangement.

208
Thus what they had agreed to, namely, to share the profit and loss of this business,
constituted between them the relation of partners, for the claim that the two were no to be
partners cannot be alter the legal relation which they have entered into by making that
contract.

Ferguson v. Dawson (John and Partners) (Contractors) [1976] 1 WLR 1213.

This case is on the question of whether a building labourer was an employee or an
independent contractor. The action was one for breach of statutory duty; crucially the
obligation was owed to employees. The worker concerned had been engaged on the
understanding that he was to be working on the “lump”, but he was held to be an
employee.
Held: The parties cannot transfer a statute-imposed duty of care for safety of workmen
from an employer to the workman himself merely because the parties agree, in effect, that
the workmen shall be deemed to be self-employed, where the true essence of the contract
is, otherwise, a contract of service

Street v. Mountford [1985] AC 809 per Lord Templeman:

wherein he noted “the House of Lords has not held I think, that assertions in a document
that it is a license should be ignored. It has been held that the true legal nature of a
transaction is not to be altered by the description the parties choose give it. A cat does not
become a dog because the parties have agreed to call it a dog. But in deciding whether an
animal is a cat or a dog, the parties’ agreement that it is a dog may not be entirely
irrelevant”.

Mukazell v. Elf (Ca) Unreported.

It has also been held that this principle or approach does not apply with the same force
where the contract contains a written statement of some fact which will in turn have
particular legal consequences.

Buchmann v. May [1978] 2 AER 993.

Action by Buckman for claim of possession of a furnished dwelling house leased on
tenancy to May. The Rent Act provided that ‘A tenancy under which a dwelling-house…is
let as a separate dwelling is a protected tenancy for purposes of this Act..’ and that ‘A
tenant is not a protected tenancy if….the purpose of the tenancy is to confer on the tenant
the right to occupy the dwelling-house for a holiday..’
The tenancy agreement entered between the parties provided that: “It is hereby agreed and
declared that the letting hereby made is solely for the purpose of the tenant’s holiday in
the London area.’ May claims she was told the agreement was the usual one haven
executed the previous agreement and that her attention was not drawn to the critical clause
on holiday letting and she did sign the agreement but without reading it, even though to
her it was not for holiday letting. May now claims it was not a holiday letting and that she
has an ordinary protected tenancy, for if not a holiday letting, the tenancy will be
protected from possession.

209
The issue was whether by the purpose of May’s tenancy to confer on her the right to
occupy the dwelling-house for a holiday, so that she lost the protection of the Rent Act?
Held per Sir John Pennycuick
1. Where parties to an instrument express their purpose in entering into the transaction
effected by it, or the purposes which, in the case of a tenancy agreement, the demised
property is to be used, this expression of purpose is at least prima facie evidence of
their true purpose and as such can only be displaced by evidence that the expressed
purpose does not represent the true purpose, that is the express purpose does not
correspond to the true purpose, whether the express purpose is a deliberate sham or
merely a false label in the sense of a mistake in expression of intention.
2. Here there is no claim based on misrepresentation and no claim for rectification. The
provision must stand as evidence of the purpose of the parties and the burden is he
who denies it to establish that the provision does not correspond to the true purpose
of the parties. It is for the tenant to establish that the provision has been inserted as a
sham or false label for the purpose of depriving the tenant of statutory protection
under the law.
3. In considering whether a house is let as a separate dwelling, where there is a written
lease, you ascertain the purpose of the parties from the terms of the lease and you do
not go beyond the terms of the lease to ascertain what is the purpose of the parties.
That is always so unless, except where the terms of the lease do not correspond to the
true intention of the parties.
4. Whatever Mrs May may, or may not have had in mind when she signed the
agreement cannot of itself displace the effect of the express provision within the
agreement. Her mere ignorance of her rights certainly could not do so.

Finally, it is to be added that labels or descriptions might in some border line cases, prove
important in determining the legal effect of the document.

Antoniades v. Villiers [1988] 2 AER 309 @ 315.

Deed Or Document Might be Void for Uncertainty

If after all methods of interpretation for resolving repugnancies or inconsistencies have
been exhausted a deed remains unintelligible, or there remains an uncertainty which is not
removable by election, either the whole document or the particular clause as the case may
be would be held void for uncertainty.
This power is however to be exercised with great reluctance and after all else has failed.

Halsbury 4th Edn Vol 12 1508.

If after every effort has been made to construe the deed by intrinsic evidence, with the
assistance of such extrinsic evidence as is admissible by the rules, including in the case of
a latent ambiguity direct evidence of intention, the deed is unintelligible, or there remains
an uncertainty which is not removable by election, either the whole deed or the particular
clause, as the case may require, will be held void for uncertainty. This is only done with

210
reluctance and in cases of ambiguity it is a settled canon of construction that a
construction which will make the clause valid is to be preferred to one which will make it
void.[Mills v Dunham [1891]1 Ch 576 at 590]

Lord Cheyney’s Case [1591] 5 Co Report, 68 A;

South East Railway Co v. Associated Portland Cement Manufacturers [1910] 1 Ch

12 Ca.

Pallant v. Morgan [1953] Ch 43; [1952] 2 AllER 951.

The courts will however not allow an agreement or document to fail on the ground of
uncertainty if to do so would amount to sanctioning a fraud.

The Power of Rectification

As previously noted, the court has a more radical power to correct or rectify a deed or
document when it is satisfied that it did not accurately reflect the intention of the parties as
evidenced by their prior concluded agreement.

Lovell & Christmas Ltd V. Wall [1911] 104 LT 85,

PER MR wherein he noted “ the essence of rectification is to bring the document which
was expressed and intended to be in pursuance of a prior agreement into harmony with
that prior agreement”.
It is important to bear in mind that mistake here is often as to the legal effect of the
document and not an obvious mistake in expression. The courts cannot therefore correct
such a mistake by a process of construction. It would only do so by rectification.

North East Railway v. Lord Hastings [1900] AC 260.

By a deed of 1854 Hastings granted to a railway company a way-lease and right to make
railways through his land for the term of 1000 years paying a rent on the coal carried over
“any part of the railways comprehended in” and the coal to be shipped from Port Blyth.
Over the years when coal “passed over” the Hastings land, no rent was paid or claimed for
coal carried over the railways, but not passing over the said lands. Later the railway
company made a fresh route by which they carried coal to be shipped from Port Byth
without passing over any of Lord Hastings’ lands. His successors in title by this action
claimed an account and payment in respect of coal conveyed over the land and shipped at
Port Blyth, whether the coal did or did not pass over any part of their lands. The defence
claimed they had not paid rent for over 40 years when coal did not carried pass over the
respondents’ land.

Held:
1. The words of a written instrument must be construed according to their natural
meaning, and that no account of acting by the parties can alter or qualify words
which are plain and unambiguous. The court has no right to construe the
covenant differently from the mode in which it should have construed it if the
controversy had arisen the day after the agreement had been executed.

211
 2. No principle has ever been more universally or rigorously insisted upon than that
written instruments, if they are plain and unambiguous, must be construed
according to the plain and unambiguous language of the instrument itself.

Per Lord Davey: The principle on which an instrument, in which some provisions when
read literally are not in harmony with the other provisions to be found in it, is to be
construed thus:
1. That the deed must be read as a whole in order to ascertain the true meaning of its
several clauses, and
2. that the words of each clause should be so interpreted as to bring them in harmony with
the other provisions of the deed if that interpretation does no violence to the meaning
of which they are naturally susceptible,
3. In other words, you may disregard the literal meaning of the words and give them
another meaning if the words are sufficiently flexible to bear that interpretation. [per
Selborne in Caledonian Ry Co. v. North British Ry Co. [6 App Cas 114]
4. Where no ambiguity exists, the in the absence of proof to the contrary, it must be
assumed that the parties knew and understood the language they were using, and that in
executing the agreement containing that clause they were truly expressing their
intentions., and are bound by the writing they have signed. Why the agreement was so
framed-what were the considerations which induced it-and why the claim was so long
allowed to sleep are mere matters of speculation; but one has no right to act upon
speculation to set aside a deed or agreement which is on the face of it clear and
definite.
5. Applying this rule of construction to this deed, I am disposed to construe the….
Conveyed over Hastings land, if the words will legitimately bear that construction.
NB! Strictly speaking, the power to correct errors by rectification is outside the law of
interpretation properly so called. It is however important to always bear in mind
circumstances under which the courts can correct errors by a process of construction as
opposed to rectification. It is also important to emphasize here that in the case of
contracts, rectification is often based on common mistake of both parties, not merely a
mistake by one of them. Hence if there is no prior concluded agreement there can be no
rectification.

Murray v. Parker [1854] 19 Beav 305 @ 308.

Frederick E Rose (London) v Pim [1953] 2 QB 450.

It has also been held that the concluded agreement on the basis of which a court could
order rectification need not be a legally binding contract. All that is required is that the
document was preceded by a prior agreement.
Odgers P 74,

Shipley Udc v. Bradford Corporation [1936] Ch 375 @ 396.

212
Rectification would be ordered upon convincing proof that the concluded agreement does
not represent commitment of the parties and the onus appears to be on the party who seeks
rectification.

Fredson v. Rothschild [1941] 1 AER 430.

Finally, it is to be noted that where mistake is unilateral, rectification would only be
granted in case of fraud or misrepresentation etc.

Roberts v. Leicester County Council [1961] 1 Ch 555.

The remedy for pure unilateral mistake is ordinarily rescission or cancellation, but then in
order to prevent injustice to the party whose intention is not accurately recorded, the
courts often take the middle course of decree, cancellation, with an option to the other
party to accept rectification instead.

Gerrard v. Frankel [1862] 30 Beav 445

Solle v. Butcher [1950] 1 KB 671.

Tuesday, January 31, 2006

213
Basic Rules For The Interpretation of Statutes
The focus of our discussion here is the examination of the basic rules for the interpretation
of statutes. Hence, it is important that we understand clearly at the outset the meaning of
the term ‘statute’ as well as the various classification of statutes.
The term ‘statute’ has no precise meaning in Ghanaian law. It could for our present
purposes however be defined broadly as any rule or law duly enacted by or under the
authority of parliament or under the legislative branch of government or state or by an
organ or agency of state authorized to make laws. Simply put, it is any form of legally
authorized legislation. Legislation here of course simply refers to any rule or law that has
the force of authority by virtue of their promulgation by or under the authority of
parliament or the legislative branch of the government or state etc. On this see:

Janet Daniels: Statute Law in Ghana [1972] 4 RGL @ 113.

Buta @ 9.

In practice, the term statute is often used interchangeably with ‘enactment’ ‘Act’, etc. The
broad term ‘statute’ is however to be preferred on account of the conflicting definitions of
the term ‘Act’ or ‘enactment’ in various local legislation.
The word ‘enactment’ can also be broadly defined as something (such as a Bill) which has
been made into law by a legally authorized body in a state or organization. See Websters
3rd Collegiate Dictionary. Specifically however, section 32(1) of CA 4 defines an
enactment to mean “an Act or statutory instrument or any provision of an Act or statutory
instrument; while Article 295 of the 1992 constitution defines enactment even more
broadly to encompass “An Act of Parliament, a Decree, or a Constitutional instrument or a
statutory instrument or any provision of an Act of Parliament, a Decree, a Law, or of a
constitutional or statutory instrument”.
An Act or Act of parliament on the other hand, has been defined by section 32(1) of CA 4
to mean
“the constitution, an Act of parliament or any legislative measure of an authority formerly
exercising power to make laws for the territory or any part of the territory comprised in
the republic…”
while section 32(2) of CA 4 further provides that in an enactment continued in force by
the constitution 1960, an Act of Parliament “includes an Ordinance, Order-in-Council,
Order, proclamation, rule, regulation or bye-law”.
One obviously remarkable thing about the above definition of an Act in section 32(1) of
CA 4 is the fact that it defines an Act to include the constitution. This appears problematic
especially to the extent that it subjects the interpretation of the constitution which is the
most fundamental law of the land to CA 4. The effect of this appears to be that CA 4
which is a subordinate law, is made a vehicle for the determination of the superior law of
the land. Hence it has been forcefully suggested that section 32(1) of CA 4 needs to be
amended urgently to ensure that constitutional interpretation in Ghana is not tied down by
CA 4. This would ensure that adequate account can be taken of the cultural, social,
214
economic and political circumstances of the country in interpretation. See MEMO to the
draft Interpretation Bill (by VCRAC Crabbe).
Significantly, article 295(1) of the 1992 constitution now defines an Act or Act of
Parliament simply as “an Act enacted by parliament and includes an Ordinance”. The
mode for the exercise of the legislative power of the parliament of Ghana is provided for
under article 106 of the 1992 constitution.
Perhaps the most important upshot of the following is that the term ‘statute’ as broadly
defined here would encompass not only primary legislation like Acts, Decrees, Laws, etc,
but as well subsidiary legislation made under the authority of parliament or the
constitution including statutory instruments and constitutional instruments.
Statutory instrument broadly defined under article 295 of the 1992 constitution means
“an instrument made whether directly or indirectly under a power conferred by an Act of
Parliament or a Decree or a Law”.
This broadly defined definition will evidently encompass any regulations, rules or orders
which constitute part of the law of Ghana by virtue of article 11(1)(c) and (7) of the 1992
constitution of Ghana and therefore qualify them as statutes or enactments.
And here, it is also worthy of mention that statutory instruments are basically of two
kinds, namely; (a) legislative instruments (b) executive instruments.
A legislative instrument is a statutory instrument that is largely legislative in character
(and often taken to parliament for approval) while an executive instrument is more of an
administrative or executive character in the sense that they are normally made by a
minister or some administrative agency under a power granted by a primary statute or
Act. See Issah v. The Republic [13 4 2000] CA unreported. This case deals with the
appointment of public prosecutors instrument 1976 (EI 4) made by the Attorney-General
in exercise of his powers under section 56 of Act 30 to appoint police officers of a certain
rank as prosecutors in criminal cases.

Issah v. The Republic [13 4 2000] CA [unreported]

Finally, the term ‘statute’ thus broadly defined, also includes constitutional instrument. A
constitutional instrument is defined in Article 295 of the 1992 constitution as an
instrument made under a power conferred by the constitution.
Buta: Lig 9-10;
Janet Daniels (Supra);
Bennion: Statutory Interpretation 2nd Ed Pp 99-179,
Memo To Proposed Interpretation Bill (Vcrac Crabbe) Pp 12 Ff;
Prefix To The Index To The Statutes In Force (By A-G’s Dept Legislative Drafting
Section),
Constitution 1992,
The Statutory Instruments Act 1959 Act 52,

215
Statutory Instruments Order 1960 Li 9,
Statutory Instruments Rules Li 39.

Classification of Statutes
Statutes are in practice classified in various ways, sometimes, according to the real or
supposed difference of the rules of interpretation to be applied. It is to be noted however,
that in reality, the rules that govern the interpretation and effect of the various categories
of statutes (especially the basic rules) do not vary much.
In practice, the main divisions in the classification of statutes have often been made in
reference to:
1. Public general Acts or private Acts.
2. Their subject matter: for example insurance law or criminal law or statute
3. Their object (for example, declaratory acts); codifying Acts; consolidating Acts,
remedial acts; enabling Acts;
4. By the methods by which the legislature seeks to achieve its object for example,
obligatory, permissive or mandatory, or imperative
5. Their duration (e.g. temporary Acts or statute and perpetual Acts or statute).
Craies On Statute Law 7th Ed @ 54-63; Bennion @ 102-106.

Public General Acts And Private Acts

A public general Act often relates to a matter of public policy or interest and is therefore
of importance to the public generally. A private Act on the other hand, is one for the
purpose of affecting or benefiting a particular person or body.
And as Cross rightly notes, although a number of the older authorities evince a tendency
to construe private Acts more strictly, this distinction is clearly of no importance to the
general law of interpretation today.

Codifying And Consolidating Statute

A codifying statute is one which purports to state or declare exhaustively the whole of the
existing law (both the common law as well as the statutory law) on a particular subject.
See Cross p 6 and Craies p 67.
A consolidating statute on the other hand is one which has the object of collecting within a
single statute, statutory provisions relating to a particular subject, making minor
amendments or improvements if any. A consolidating statute may therefore be regarded as
a statute which codifies the statute law on the subject and is in practice presumed not to
alter the statute laws consolidated to any substantial degree.

Declaratory Statutes
A declaratory statute declares what the law is on a particular subject in order to remove
doubts as to the common law of the subject or the meaning or effect of an existing statute.
216
The usual reason for passing declaratory statutes or Acts in most jurisdictions today is to
set aside what parliament deems to have been a judicial error on the statement of the
common law or the interpretation of a statute. Bennion page 105 and CRAIES 58-59. See
also Price v. Bradley (1885) 16 QBD 148. Here the Fisheries Act 1886 was enacted to
correct the wrong decision by the court that eels are freshwater fish within the meaning of
the FISHERIES ACT 1876.

Remedial Acts
Essentially remedial Acts are statutes to remedy some defect in the common law or in
statute law.

Enabling Acts Or Statutes

This is a statute which makes it lawful to do something which would otherwise be
unlawful. Examples here are statutes which allow compulsory acquisition of land for
public works or use or a statute which legalizes what would otherwise be a public
nuisance.

217
The Historical Background to The Interpretation of Statutes [The MOPA]
An appreciation of the historical development of the traditional common law rules of
statutory interpretation is critical to an understanding of the now dominant MOPA,
especially because that approach itself embodies several principles and ideas originally
expressed in the traditional or key common law rules or approaches to interpretation
namely,
I. The mischief rule
II. The literal rule
III. The golden rule

Indeed, the MOPA largely evolved in response to criticisms of these traditional

approaches.

Wednesday, November 23, 2022

In early times the courts did not follow any general principles or rules of interpretation. As
several scholars have pointed out, the science of statutory interpretation was so later
developed even as late as the first half of the C14th with the result that “the courts
themselves had no ordered ideas on the subject and were up to regard each case on its
merits without regard to any other case-still less to any general canons of interpretation”.

TFT Plucknett : “Statues And Their Interpretation In The First Half Of The C14th.

The foundations of the present system were largely laid by the courts in the C15th and
C16th.

The Doctrine of Equitable Construction: The Mischief Rule

Interpretation during the period, particularly in the 16 th Century appears on the authorities
to have been largely dominated by what was referred to as the doctrine of equitable
construction, the hallmark of which was the elevation of the spirit and intent of a statute
over its literal meaning. The so called mischief rule was clearly an expression of this
doctrine and it undoubtedly received its most famous formulation in the resolution of the
barons of exchequer in the Heydon’s Case (1584) 3 CO Report 7(a) as follows

“and it was resolved by them that for the sure and true interpretation of statutes in
general(be they penal or beneficial, restrictive or enlargening of the common law), for
things are to be discerned and considered.
1. what was the common law before the making of the Act
2. what was the mischief and defect for which the common law did not provide
3. what remedy the parliament had resolved and appointed to cure the disease of the
commonwealth.
218
4. the true reason for the remedy; and then the office of all judges is to make such
construction as shall suppress the mischief and advance the remedy and to suppress subtle
inventions and evasions for continuance of the mischief… and to add force and life to the
cure and remedy according to the true intent of the makers of the Act…”

Coke himself subsequently referred to the equitable approach in his INSTITUTES as

follows :

“equity is a construction made by the judges, that cases out of the letter of a statute, yet
being within the same mischief, or cause of the making of the same, shall be within the
same remedy that the statute provided; and the reason hereof is, for that the lawmakers
could not possibly set down all cases in express terms”. (fill in.)

See Cross, pp 11-13 and 19 ff.

In sum, under the doctrine of equitable construction, judges have jurisdiction to recast
legislation in effect in order to promote the (fill in) legislature or what the judges took to
be what was parliament’s true intent. But as scholars like cross note, the doctrine of
equitable construction was itself a product of the period preceding the complete
establishment of the sovereignty of parliament, with time, when meetings of parliament
were infrequent so that judicial rectification of statutes was a practical necessity. See
Cross @ 4.

The major criticism of this approach has traditionally been that in its emphasis on the
suppression of the mischief, and in effect adaptation of the remedy or purpose, it does not
make it clear to what extent the judge should consider the actual language with which the
specific remedy are communicated to the public. The rules thus encourage courts to
discount the actual statutory language in favour of the so called mischief to be suppressed.
Today, the mischief rule as expressed in HEYDON’S CASE is also said to be somewhat
outdated in its approach because it assumes that statute is subsidiary or supplemental to
the common law, whereas in modern conditions, many statutes make a fresh point of
departure rather than a mere addition to and codification of common law principles. Hence
it has been argued that the mischief rule did not encourage the view of the law as an
instrument of change. In this wise, a number of scholars have also observed that the
expression “mischief” has an archaic ring to it and could be misleading and has
consequently been held not to be suitable as a basis of interpretation in modern times.

Heydon’s Case
Coke in his “INSTITUTES”

The Literal Rule

With the acceptance of parliamentary sovereignty, especially in the wake of the glorious
revolution, the doctrine of equitable construction all but disappeared in favour of the
literal approach to interpretation. In the 18 th and 19th centuries, the words appearing in the
219
text of a legislation and the literal meaning of these words became the dominant ones; and
the approach paid little regard to the consequences of the result of interpretation.
In addition, the idea that the court might enlarge or narrow the working of the statute or
fill in gaps in the legislative scheme was rejected by the courts of the era.
See Cross p 12 ff.
R v. Harris (1836) 7 C& D 446, Jones v. Smart (1784) 1 Term Report 44.

Although there are several variants of the literal rule in the literature today, it was broadly
understood to embrace the ff propositions:
 The courts are obliged to give effect to the intentions of the legislature as revealed
by the literal meaning of the legislative text
 Where the literal meaning of the text is plain, the task of interpretation is done and
the court does not need to worry about the legislative purpose etc.
 Where the literal meaning is plain, this meaning governs regardless of the
consequences. See

Amalgamated Society of Engineers v Adelaide (1920) 28 CLR 129 @ 161 Per Higgins
J.
(See Buta 36).

Another oft quoted statement of the literal construction rule worthy of note here is that
of Chief Justice Tindall in the Sussex Peerage Case (1844) 11 Cl& Fin 85 @ 143. (see
Cross p 15).
“ the golden rule for the construction of Acts of parliament is that they should be
construed according to the intent of parliament which passed the Act. If the words of
the statute are in themselves precise and unambiguous, then no more can be necessary
than to expound those words in their natural and ordinary sense. The words in
themselves alone do in such case best declare the intention of the lawmaker. But if any
doubt arises from the terms employed by the legislature, it has always been a safe
means of collecting the intention, to call in aid the ground and cause of making the
statute and to have recourse to the preamble… a key to open the minds of the makers
of the Act and the mischief which they intend to redress”.

Chief Justice Tindall in Sussex Peerage Case (1844) 11 Cl& Fin 85 @ 143.

As Cross notes (p 15) this passage from Tindall CJ was long considered to be of
special interest because it stated what was traditionally considered to be the appropriate
relationship of the literal and mischief rule, namely, the mischief rule applied only
when the court found the statutory words were obscure or ambiguous.

Specifically, the passage from Tindall suggested that the effect of the literal
construction rule was to divide the process of interpretation into two stages. During the
first stage, the literal meaning of the text must be considered and established; and if
clear, effect was to be given to it no matter what the consequences. Interpretation was
largely to be based on the text of the provision and perhaps any closely related
provision, but certainly not the non-textual sources such as the legislative history or
220
 purpose etc. And iff the meaning established in the first stage was ambiguous or
otherwise unclear that it was necessary to advance to the second stage and to consider
the wider context including the purpose.

As will shortly be evident, the two stage approach to interpretation as suggested by

Tindall CJ has long been rejected by the authorities of the subject- including several
judicial decisions which otherwise favour the literal approach and especially by
proponents of the MOPA. These authorities have maintained that the context of the
statutory provision is to be taken into account at all stages of the interpretive process,
not only at the first stage. And under the MOPA, context at all stages will include the
purpose.

It is also worth mentioning here, that even during the era of strict literalism, (especially
the 18th Century) the courts tried to take some account of the consequences of
interpretation of statutes by developing several presumptions of legislative intention.
These presumptions largely focus on the negative consequences that might result from
the application of legislation such as interference with private life, curtailing of
freedoms, changes in the common law etc. And by presuming that the legislature
intended to avoid these negative consequences, the courts were able to ensure
acceptable outcomes without violating their perceived duty to defer to the legislative
will as expressed in the text.

As several authorities of the subject have pointed out, the literal construction rule itself
suffered from several key effects especially because it often resulted in consequences
which were sometimes unjust. The literal rule is also said to assume an unattainable
perfection in draftsmanship i.e. that the legislative draftsman will always choose words
that would precisely express his intention and which will leave little room for
differences of opinion as to the meaning of the language used. This however is not so
in practice. Besides, the draftsman, being human, is often unable to cover in advance
all the permutation of circumstances to which a provision might apply. And the court is
often compelled to be creative and purposive in interpretation in order to give effect to
the true intention of the legislature.
On account of the widespread criticism of extreme literalism, the approach was
increasingly rejected by some courts even in its hey day in favour of more refined
versions and sometimes even in favour of a more purposive approach.

The Golden Rule

Clearly or perhaps in response to the defects of the traditional mischief and literal rules,
the courts tried to develop the third approach to interpretation, the golden rule which in
some sense straddled the mischief and literal rule. Essentially, the golden rule was, as
Driedger (Construction of Statutes p 80) perceptively notes, an expression in the 19 th
Century of the judicial concern from consequences of interpretation of statutes which was
largely discounted, under strict literalism.

221
The golden rule as Cross also notes, allowed for account to be taken of the meaning of the
text at first instance but also permitted departure from the literal rule when the application
of the statutory words in their ordinary sense would be repugnant to or inconsistent with
some other provision in the statute or lead to some absurdity. The usual consequence of
applying the golden rule is then that the words in a statute are often ignored or words
which are not there are read in. (Cross p 15-16).

The golden rule is widely believed to have originated in the dictum of Parker CB in the
middle of the 18th Century in the case of Mitchell v Torue (1766) Park 227, @ 233 as
follows

“ in expounding Acts of Parliament, where words are express plain and clear, the words
ought to be understood according to their genuine and natural signification and import,
unless by such exposition, a contradiction or inconsistency would arise in the Act by
reason of some subsequent clause, from whence it might be inferred that the intention of
parliament was otherwise.

In Becke v. Smith (1836) 2 M& W 191@ 195, where Parke B also noted in the same
vein as follows: “it is a very useful rule in the construction of a statute to adhere to the
ordinary meaning of the words used, and to the grammatical construction unless that 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”.

Becke v. Smith (1836) per Parke B [Later Lord Wensleydale in Grey v Pearson]

However the classic formulation of the rule is no doubt that of Lord Wensleydale
(formerly Parke B) in Grey V. Pearson (1857) 6 Hlc 61 @ 106. (see Cross p 17).
Grey v. Pearson (1857) 6 Hlc 61 @ 106

Though quite popular, the precise scope and implication of the golden rule has long been a
matter of debate- particularly regarding the meaning of absurdity etc and the
circumstances in which the courts are justified in ignoring the ordinary meaning of the
words in a statute or add to same. The golden rule has therefore been criticized on the
grounds that it provides a purely negative standard by its reference to absurdity,
inconsistency etc without providing a clear means to test the existence of or measure the
qualities of these characteristics or concerns. For these reasons, the golden rule is said to
produce several uncertainties and that since decisions on absurdities etc are often on the
basis that one interpretation or the other is irreconcilable with the legislative purpose, the
golden rule is ultimately rendered a less explicit form of the mischief rule. Specifically,
the difficulty, as Driedger points out is basically one of how to define absurdity etc and
the judicial response to absurdity in a way that reflects parliamentary sovereignty while
giving scope to the court’s legitimate concern with the consequences of interpretation.
The MOPA seeks to give answers to some of these difficulties.

222
The Modern Purposive Approach in the Interpretation of Statues
As noted earlier, the MOPA is largely steeped in concepts and principles originally
expressed in the three traditional theories discussed above and was developed largely as a
modern day response to some of these traditional theories namely the mischief rule, the
literal rule, and the golden rule.
It may also be recalled here that the key proposition underlying the MOPA is that all
legislation is presumed to have a purpose which should be taken into account in every
case and at all stages of statutory interpretation so as to achieve a result that reflects and
effectuates the legislative purpose.
The MOPA in effect draws on the strengths of the traditional rules in its approach to
interpretation but at the same time tries to contain the defects of these approaches within a
framework of an interpretive enterprise that ultimately seeks to effectuate the legislative
purpose. As Cross puts it, the MOPA essentially “retains a focus of fidelity to the text as
well as the objectives aimed at by Parliament”. (Cross p 20).
Some significant differences from the traditional rules are however worth noting here. The
MOPA is for example, more limited than the approach under the traditional mischief rule
which sought inter alia to cure defects in the law, often discounting the actual text or
wording of the statute. Under the MOPA, the object of statutory interpretation is to as far
as possible, construe the text of the statute but in order to effectuate the legislative
purpose. The text therefore remains important though not the sole basis of interpretation as
under the traditional literal rule.
Too, under the traditional golden rule, the emphasis under the MOPA is not so much on
absurdities simpliciter, but rather on an interpretation that achieves the legislative purpose-
so that once the legislative purpose is achieved, wider notions of absurdity become
irrelevant. Thus the kind of absurdity that would warrant departure from the ordinary or
primary meaning of the statutory language is under the MOPA, clearly limited by the
legislative purpose. See CROSS 18-20.
The Basic Rules of Statutory Interpretation Under The MOPA
The basic rules of statutory interpretation under the MOPA are aimed at an interpretation
that ultimately effectuate the legislative purpose while taking necessary account of the
legislative text.
It is also to be added that the basic rules of statutory interpretation under the MOPA are
largely gleaned from dicta, several judicial decisions and text on the subject. And except
in some matters of detail, reflecting the nature sources and objects of statutes, these basic
rules are broadly the same as those for the construction of non statutory documents under
the MOPA. See Odgers p 237.
Finally, the basic rules of statutory interpretation under the MOPA discussed here, largely
reflect those stated by CROSS (one of the foremost proponents of the MOPA) at p 49 of
his Statutory Interpretation, which rules have largely been adopted in Ghana with slight
and insignificant modifications by BIMPONG- BUTA @ 37 of his work as follows:

223
The Basic Rules under MOPA:

(1) Rule 1: The Interpretation must be as near as possible to the Intention of the
Legislature (in the sense of its purpose) as the law would permit.
(2) Rule 2: Interpretation of the statute or particular part of it must ordinarily be sought
from the statute (text) itself.
(3) Rule 3: The statute or part of it is to be read as a whole with a view to determining
the true intention of the legislature.
(4) Rule 4: The judge must give effect to the ordinary or where appropriate the
technical meaning of the words in the general context of the statute; determine the
state of general words with reference to the context.
(5) Rule 5: If the judge considers that the application of the words in their ordinary
sense would produce a result which is contrary to the purpose of the statute, he may
apply them in any secondary meaning they are capable of bearing.
(6) Rule 6: The judge may read in words which he considers to be necessarily implied
by the words which are already in the statute; and he has a limited power to add to,
alter or ignore statutory words in order to prevent a provision from being
unintelligible, absurd or totally unreasonable, unworkable, or totally irreconcilable
with the rest of the statute.

Rule 1: Interpretation to be as Near as Possible to the Legislative Purpose

As in the case of documents, this is clearly the most basic rule of statutory interpretation
under the MOPA where the dominant purpose in construing statutes as several authorities
have pointed out is to ascertain the intention of the legislature as expressed in a statute
considered as a whole in its context.

Halsbury 4th ed 44 para 856;

Viscountess Rhonda’s Claim [1922] Ac 339 @ 397;

A-G of Canada v. Hallet & Carey Ltd [1952] AC 427

In exercise of statutory powers under Act of 1945, conferred on the Governor General in
Council under national emergency, which authorized him to do such things and to make
such orders and regulations as he might, by reason of the continued emergency arising out
of the war for the purpose of , inter alia, “Maintaining, controlling and regulating, supplies
and services, prices, …to ensure economic stability and an orderly transition to conditions
of peace; by his Order, sections of which read: “All oats and barley in commercial
positions in Canada, except such oats and barley as were acquired by the owners thereof
from the Canadian Wheat Board or producers thereof …are hereby vested in the Canadian
Wheat Board.”. It was the contention of the appellants that “oats and barley in commercial
positions” were defined as meaning oats and barley which were not the property of the
producer and were in stores in warehouses, etc. The respondent was an owner of barley
affected by this provision and had been holding 40000 bushels at the time. Respondent
challenged the authority of the Governor to make compulsory acquisition of private

224
property. The issue then was the construction of the language of the Act which itself
referred to an earlier Act.
Held: Per Lord Radcliffe at 449
1. It will be legitimate to interpret the provisions of the later Act in the light of those of
the earlier one, if a comparison of the two justified any sound deduction as to the
intention of Parliament as expressed in the words of the later Act.
2. There is no better way of approaching the interpretation of the Act than to endeavour to
appreciate the general object that it serves and to give its words their natural meaning
in the light of that object.
3. There are many so-called rules of construction that courts of law have resorted to in
their interpretation of statutes, but the paramount rule remains that every statute is to be
expounded according to its manifest or expressed intention.
4. If the Act of 1945 is approached in this way, it is very difficult to see what warrant
there is for introducing into it by way of interpretation an implied exclusion of any
power in any circumstances to acquire compulsory any piece of property. For, unless
compulsory acquisition is absolutely excluded from the range of things that the
Governor may do, any particular exercise of the power is a matter of his discretion and
cannot come within the control of the court.
5. This is an enactment framed for purposes of meeting an emergency that imperils the
national life, and the power of the executive to pursue these purposes, while the
national emergency continues, is conferred by Parliament without express reservation
and in the amplest terms that statutory language can employ.
6. The words that invest the Governor with the power are neither vague nor ambiguous:
Parliament has chosen to say explicitly that he shall do whatever things he may deem
necessary or advisable. That does not allow him to do whatever he may feel inclined,
for what he does must be capable of being related to one of the prescribed purposes,
and the court is entitled to read the Act in this way.
7. There is no rule of construction that general words are incapable of interfering with
private rights and that such rights can only be trenched upon where express power is
given to do so. The general words of the Defence of the Realm (Consolidation) Act
1914, of the UK were adequate to authorize the interment, without trial of Mr Zadig
[Rex v Halliday (1917) AC 260] or to authorize the deportation of British subjects and
deprivation of their citizenship, without trial [In re Japanese Reference (1947) AC 87]

It is to be recalled here that under the MOPA intention is defined in terms of the
legislative purpose and that this intention once discovered, will prevail over any other
meaning including even the ordinary meaning of the statutory language.
Odgers P 241.

Edinburgh Street Tramways Co. v Torbain [1877] 3 AC 58

There had been a system of tramways authorized by Parliament throughout Edinburgh and
partly constructed, in which it was carefully provided that all fares were to be equal with
no two classes or anything like that sort. The promoters of the tramway later obtained
from Parliament an Act to drop a part of their system because it would have been
225
inexpedient to execute, and compelled by law in stead to start and work omnibuses owned
by them. That became the object and purpose of the new legislature, which did not include
the power to increase their maximum fares upon their tramways. The Act then provided
thus “And the company may charge a sum not exceeding 2d per mile for first-class
passengers on those routes” and “any tramway route worked in connection therewith.”
Torbain, as a passenger, refused to pay a higher charge of 3d whereupon the action by the
company for the difference on grounds that they had stautory authority to charge higher
fares.
The issue before the court was whether the authorized a doubling of the fares on any
portion of the passengers on the tramways only-on those passengers who never go in an
omnibus?

Held per Lord Blackburn @ 68

1. I quite agree that in construing an Act of Parliament we are to see what is the intention
which the legislature has expressed by the words; but then the words again are to be
understood by looking at the subject-matter they are speaking of and the object of the
legislature, and the words used with reference to that may convey an intention quite
different from what the self-same set of words used in reference to another set of
circumstances and another object would or might have produced.
2. In the present case I think, as soon as we see what is the object of the legislature and
what they were talking about, there comes to be no difficulty at all.
3. When we are construing an Act brought in for another purpose and dealing with
another subject matter, I think it is not too much to say that the words to convince us
that they had such an intention must be very clear indeed.

Adler v George [Supra],

Wilsher v. Barret [1965] 1 Qb 312;

Barnard v. Gorman [1941] Ac 378.

See Buta @ 49-50

Ababio v The Republic [1972] 1 GLR 347

Held:
1. Learned state attorney further contended contrariwise that there was nothing to
restrict the ordinary meaning of "any person" to chiefs mentioned in the
Schedule, and to restrict its meaning to persons in the Schedule, he submitted,
makes nonsense of the provision, as it will not then impose the liability on even
a chief who is a member of a traditional council so long as he was not mentioned
in the First Schedule.
2. On the submissions it seems to me that two competing principles of construction
must be resolved, though each is but the other side of the same coin.
3. The first is the cardinal rule that where the words are plain their literal and
simple meaning is to be adopted. But the rule is subject to the qualification that

226
 4. "The more literal construction ought not to prevail, if it is opposed to the
intentions of the Legislature, as apparent by the statute; and if the words are
sufficiently flexible to admit of some other construction by which that intention
will be better effectuated." Per Lord Selborne L.C. in Caledonian Rly. Co. v.
North British Rly. Co.
5. The second which is equally a leading rule is that a statute must be read as a
whole to give effect to the intention of the framers of the law. So it was that in
construing some clauses under the English Employers' Liability Act, 1880 (43 &
44 Vict., c. 42), in the case of Canada Sugar Refining Co. v. R. [1898] A. C. 735
at p. 741, P. C. Lord Davey said, "Every clause of a statute should be construed
with reference to the context and the other clauses of the Act, so as, so far as
possible, to make a consistent enactment of the whole statute or series of
statutes relating to the subject-matter."

Rule 2. The meaning of the statute is to be sought for from the document itself
It is also a fundamental rule in the interpretation of statutes that the intention of the
legislature must be sought for from the text of the statute itself read in context and not
from what one may guess was the intention of the legislature.
This rule obviously sits logically on a basic premise under the MOPA that the object of
interpretation is to ascertain the meaning scope and effect of the language used by the
legislature in the manner that effectuates the legislative purpose.

Halsbury 4th Ed Vol 44 Para 856.

Black-Clawson Case [Supra]

@ 613 per Lord Reid. (see page 26 of Cross):
We often say that we are looking for the intention of Parliament, but that is not quite
accurate. We are seeking the meaning of the words which Parliament used. We are
seeking not what Parliament meant, but the true meaning of what they said

The remark is somewhat cryptic, says Cross, but it does point to the fact that the intention
to be attributed to the legislator is to be determined from the objective words used, rather
than from any subjective intentions which were not expressed in the text.

Westminster Bank Ltd v. Zang [1966] Ac 182.

Per Lord Reid:
But no principle of interpretation of statutes is more firmly settled than the rule that the
court must deduce the intention of Parliament from the words used in the Act. If those
words are in any way ambiguous-if they are reasonably capable of more than one
meaning-or if the provision in question is contradicted by or is incompatible with any
other provision in the Act, then the court may depart from the natural meaning of the
words in question. But beyond that we cannot go.

227
In effect it is only where the ordinary meaning of the statutory text leads to ambiguity etc,
or some absurdity that there is basis for departure.
Clearly again, one consequence of the foregoing is that extrinsic material (materials other
than the text of the statute read in context) will not be admissible in interpretation save in
limited circumstances and for limited purposes allowed by the law of interpretation in the
particular legal system. See for example the provisions of section 19 of CA 4.

Rule 3: Statute or part thereof must be construed as a whole

This basic rule is to the effect that to determine the true meaning and legal effect of any
legislation, its provision must be read as a whole and a construction made of all the parts
together. In other words, each provision or part thereof must be read both in its immediate
context and in the context of the legislature as a whole in order to arrive at the meaning
consistent with the legislative purpose. (See Buta 69).
This rule is again pointedly stated by Lord Viscount Simons in:

A-G v Prince Augustus of Hanover [1957] AC 436

@ 463 HL held that:
It must be difficult to say that any terms are clear and unambiguous until they have
been studied in their context. Thus the elementary rule is that no one should profess
to understand any part of a statute or any other document before he had read the
whole of it. Until he has done so he is not entitled to say that it or any party of it is
clear and unambiguous.

Colquhoun v.Brooks [1889] 14 AC 493

@ 506 HL : The issue for the court was whether Mr Brooks resident and domiciled in UK,
but a partner in an Australian firm was liable to be assessed for tax in respect of portions
of profit not remitted to him in the UK but retained in Australia.
Held: Per Lord Herschell: The issue is the interpretation of the phrase ‘arising or accruing
to’ in the tax Act.
It is beyond dispute that we are entitled and indeed bound when construing the
terms of any provision found in a statute to consider any other parts of the Act
which throw light upon the intention of the legislature and which may serve to shew
that the particular provision ought not to be construed as it would be if considered
alone and apart from the rest of the Act.

Takyi v Ghassoub [87-88] 2 GLR SC.

The plaintiff-appellant sued the defendants in July 1983, for the return of his caterpillar
and damages for its wrongful seizure. The defendants denied liability and counterclaimed
for money owed them by the plaintiff. The court gave judgment for the plaintiffs' on the
seizure of his caterpillar, and dismissed the defendants' counterclaim. The defendants
applied to the High Court to stay the proceedings but the application was dismissed by the
court. Five days later the defendants filed a fresh application to the Court of Appeal for a
228
stay of the proceedings in the High Court, ie the proceedings on "the question of damages
and costs." The Court of Appeal granted the application, and stayed the proceedings in
the High Court "pending the hearing and determination of the appeal" against the
judgment. The plaintiff now appealed to the Supreme Court against the ruling of the Court
of Appeal on grounds that the Court of Appeal had no supervisory jurisdiction over the
High Court and could not order a stay of proceedings in that court and therefore the order
was given without jurisdiction, it was void and should be vacated. ). The defence argues
that Rule 2 amends rule 27 of the Supreme Court Rules, 1962 (L.I. 218) by substituting
the following new rule:
“27. (1) An appeal shall not operate as a stay of execution of proceedings under the
judgment or decision appealed from except where the Court below the Court [of Appeal]
otherwise orders —..” Mr Hayfron-Benjamin says that there is an obvious mistake in Rule
1, and that “of” should read “or”; if so corrected the said rule will read: "An appeal shall
not operate as a stay of execution or proceedings", This, he says, gives the Court of
Appeal power to stay execution or, to stay proceedings.

Held per Adade JSC:

1. The question that I pose for myself in looking at the above order is: What was the
jurisdiction being exercised by the Court of Appeal when it made the order: original,
appellate, or supervisory? The Court of Appeal has no original jurisdiction. The
matter it dealt with had not gone to it on appeal; so the court could not have exercised
an appellate jurisdiction either. It seems, then, that the Court of Appeal entertained the
application and ruled on it in purported exercise of a supervisory jurisdiction, which
also it does not have.
2. It is a canon of construction of statutes that the legislature must be presumed to intend
what they have written, and to have used the desired words and language. We cannot
presume that a word is wrong unless its presence makes a whole phrase absurd or
meaningless. If the clause, read with the word complained of, can be interpreted (even
by stretching it) to make some sense, it is not the province of the court to alter the
language of the legislature. The court should not assume a mistake in an Act of
Parliament. And in Vickers, Sons & Maxim Ltd. v. Evans [1910] A.C 444, H.L Lord
Lordchum L.C commented at 445:
"The appellants' contention involves reading words into this clause. The clause does
not contain them; and we are not entitled to read words into an Act of Parliament
unless clear reason for it is to be found within the four corners of the Act . . .”
3. Where a doubt arises in the construction of part of a section of a statute, it is necessary
to read the section as a whole, or in appropriate cases, the statute itself, for assistance.
Here in construing execution of proceedings may under the judgement . . . sought from
sub-rules 2 and 3 of L.I. 1002, both of which speak of staying "proceedings for
execution of the judgment or decision."
4. But Mr. Hayfron-Benjamin, for the defendant-respondents, says that the instant appeal
itself is incompetent, it having been brought without leave as required by P.N.D.C.L.
191. I do not need, in the circumstances of this case, to decide whether this particular
appeal needed leave or not. Having come to the conclusion that the Court of Appeal
gave the ruling without jurisdiction this court is bound ex debito justitiae to vacate it,
no matter how, and in what shape or form the appeal has come to us.
229
Ababio v The Republic [1972] 1 GLR 347
The second which is equally a leading rule is that a statute must be read as a whole to give
effect to the intention of the framers of the law.

GTP v. Ankujeah [2000] Vol 2 GLR.

Held:
What then is the proper construction to be placed on the law in question i.e. par.34 (2) of
the Labour Amendment Decree 1969 NRCD.342?”
1. It is trite learning that to obtain the true meaning of any enactment, or indeed
any document, it must be read as a whole. The principle or rule of statutory
interpretation insists that statutes must be looked at as a whole. This is the
holistic approach.
2. It requires that every paragraph or sub-paragraph of a statute is to be construed
with reference to the other parts or paragraphs of the statute in order to make a
consistent and homogenous enactment of the whole statute.
3. This option requires that individual words or phrases or sentences, which may
occur in the statute, must not be construed in isolation.

And here it has to be importantly added that the Act or statute as a whole includes any
amendments that have been made before the relevant facts arose.

Gt Campbell Associates Ltd v. Hugh Carson Ltd [1979] 99 DLR 3rd Ed 529
@ 539 Ontariao CA per Holuden wherein he quoted
“…amendments to a statute are to be construed with the original Act to which they relate
as constituting one law and as part of a coherent system of legislation; the provisions of
the amendatory and amended Acts are to be harmonized, if possible, so as to give effect to
it…”

Baffour v. Addae Hc Kumasi, 17/11 Unreported.

Per Peasare J. In this case it was held essentially that the provisions of LI 11007 should be
read to harmonize with the main Act which was LN 140A.
In addition, where the provision to be interpreted appears in the regulation, it is to be read
in the context of both the regulation and the enabling Act as a whole.

Glover v Glover: CA 5/2/98 (Unreported) Per Wood Ja.

However where the provisions to be interpreted appears in the enabling Act, the
regulations are often ignored for the reason that the regulations which are a subordinate
form of legislation are made after the enabling Act has been passed and often have a
limited value in interpreting the provisions of the enabling Act.
Yet in appropriate circumstances where the Act and the regulations are closely merged to
form an integrated scheme, provisions of both are to be interpreted in the light of the

230
overall scheme; in which case, the regulation might possibly affect the interpretation of
the enabling Act.
Driedger p 246; Bennion, 2nd ed pp 522-525;

Gallant v Canada Employment and Immigration Com. [1985] 2 FC 508 CA.

Hamid v Okata [1989-90] 2 GLR 420-429

The issue this court is called upon to determine is whether or not a rent officer is clothed
with jurisdiction to hear and make recommendations to a rent magistrate in cases of
ejectment from and recovery of possession of premises. Act 220, s. 5 (1) (b) provides as
follows:
"5. (1) Subject to other provisions of this Act, the appropriate Rent Officer may discharge
all, or any of the following functions: —. . .(b) shall investigate, in such manner as he may
think fit, complaints by a landlord against a tenant in respect of arrears of rent, and
complaints by a landlord, tenant or person interested in the premises against any other
person in respect of any other matter mentioned in this Act and shall make a determination
thereon.”

Held: To give meaning to the above specific provision and, more particularly, to
determine the scope and ambit of "any other matter mentioned in the Act", the Act
together with the regulations made thereunder must be looked at and read as a whole.

Buta-72-73
The basic rule that statutes are to be construed as a whole is largely grounded in certain
assumptions that the courts make about the way legislation is drafted, namely that
language is used consistently; tautology is avoided; and the provisions of an Act fit to
form a coherent and workable scheme-such that guidance with regard to the meaning of a
particular word or phrase may be found in the same section or other sections of the same
Act.
The rule consequently becomes inapplicable where these assumptions do not hold.

IRC v Hinchy [1960] AC 748

@ 766 [CROSS 113].
The Income Tax Act 1952 provided under Section 25 (3) that:
“A person who neglects or refuses to deliver, within the time limited in any notice served
on him, or willfully makes delay in delivering, a true and correct list,
declaration…..shall…forfeit the sum of £20 and treble the tax which he ought to be
charged under this Act….” Hinchy had filed his returns declaring his income and claim
for allowances for the income tax year and set therein £18 6s as the bank interest, when in
fact his correct income was £51 5s 9d for that year of assessment. But the assessment was
made after the correct amount had been discovered. The tax commissioners claimed it was
their sole and unfettered discretion to determine what they thought would be a proper
penalty in each case and to reduce the penalty imposed by the court accordingly and that
they had exercised that discretion unchallenged in court for so long.
231
The whole question, therefore, is what penalty is attached to his default by the words: “the
tax which he ought to be charged under this Act”
Held per Lord Reid
1. It is no doubt true that every Act should be read as a whole, but that is, I think, because
one assumes that in drafting one clause of a Bill the draftsman had in mind the
language and substance of other clauses, and attributes to parliament a comprehension
of the whole Act.
2. But where, as here, quite incongruous provisions are lumped together and it is
impossible to suppose that anyone, draftsman or Parliament, ever considered one of
these sections in light of another, I think that it would be just as misleading to base
conclusions on the different language of different sections as it is to base conclusions
on the different language of sections in different Acts. As an example of incongruity I
need only refer to the admitted fact that the penalty in sections dealing with fraud is
less than the penalty under sections for errors which may only be due to mistake.
3. If one of the returns which he makes is inaccurate is the penalty treble the whole tax
which he ought to be charged or can something be read in, so as to base the penalty on
something less than the whole tax which he ought to be charged under the Act?
4. In difficult and extravagant results of this kind we should search for an interpretation
which would yield a more just result.
5. What we must look for is the intention of Parliament, and I also find it difficult to
believe that Parliament ever really intended the consequences which flow from this
contention.
6. But we can only take the intention of Parliament from the words which they have used
in the Act, and therefore the question is whether these words are capable of a more
limited construction.
7. If not then we must apply them as they stand, however unreasonable or unjust the
consequences, and however strongly we may suspect that this was not the real intention
of Parliament.
8. I agree that if it is possible to infer a secondary meaning to the words, that should be
done. One is entitled and indeed bound to assume that Parliament intends to act
reasonably, and therefore to prefer a reasonable interpretation of a statutory provision
if there is any choice. But I regret that I am unable to agree that there is any choice.
9. The Act is a consolidating Act, and one must presume that such an Act makes no
substantial change in the previous law unless forced by the words of the Act to a
contrary conclusion.
10.Therefore in interpreting a consolidating Act, it is proper to look at the earlier
provisions which it consolidated. Hence those words that did not have a limited
meaning before 1952, still do not have a limited meaning now when they are
reproduced in the consolidating Act of 1952.
11.It is so contrary to the practice of Parliament to commit in effect unlimited discretion to
a branch of the executive as to the amount of penalties to be imposed on persons guilty
of no more than negligence, but this was done, and it is idle to speculate whether
232
 Parliament, or indeed any member of Parliament, understood the full effect of the
enactment.

This case involved the English Income Tax Act 1952 which consolidated a large number
of enactments passed between 1918 and 1951 and as Cross rightly notes @ PAGE 114, it
is a practical impossibility to read a huge and incongruous Act occupying some 1037
pages as a whole.

Ghana Consolidated Diamond Ltd v. Boahene [1987-88] 1 GLR 87 CA.

[Buta 72-73]:
Held: "Disposal" has not been defined in the Act, but its meaning can be found from the
reading of the Act as a whole. Section 11 of Act 123 states, under the marginal
heading, "Disposition of Stool lands" that the words "dispose", connotes any dealing with
the land or the rights therein whether the land is for sale or leasing, etc.

Rule 4: Primacy of the Ordinary Meaning Rule

Words or phrases in statue are in the first instance to be given their Ordinary
Meaning or where appropriate, their Technical Meaning in Context
As with documents, although the authorities overwhelmingly insist that the object of
statutory interpretation is to discover and to give effect to the legislative intention in the
sense of the legislative purpose, the authorities at the same time also insist that the
legislative intention is in the first instance to be sought for in the ordinary meaning of the
statutory language in context unless there is something in the context or surrounding
circumstances that show that this cannot be the intended meaning of the statutory
language.
This rule is often referred to as Primacy of The Ordinary Meaning Rule and is to some
extent, a reformulation of the traditional literal or plain meaning rule but with some key
modifications under the MOPA. The learned editors of Halsbury 4th ed vol 44 para 863
state the position as follows :
“if there is nothing to modify, alter or qualify the language which a statute contains, the
words and sentences must be construed in their ordinary and natural meaning”.

Pinner v Everett [1969] 3 AllER 257, [ 1 WLR 1266]

This an appeal by Pinner against his conviction for failing to supply a specimen of his
blood and urine for a laboratory test contrary to s.3 of the Road Safety Act 1967. Pinner
had been stopped by the police for a dirty rear number plate and in the course of
conversation the police smelled alcohol and requested for a breath test which was positive
and confirmed at the police station. The s.3 authorizes a constable to require: “any person
driving or attempting to drive a motor vehicle” to take such a test if the constable “has
reasonable cause -9a0 to suspect him of having alcohol in his body”
Then they requested for samples of his blood and urine for the laboratory to which he
declined and he was convicted of failing without reasonable excuse to provide the
233
specimen. Pinner appealed to the House of Lords. The issue before the court was whether
the appellant was “driving or attempting to drive” when the constable requested him to
provide a specimen of his breath.
Held per Lord Reid:
1. In determining the meaning of any word or phrase in a statute the first question to ask
always is what is the natural or ordinary meaning of the word or phrase in its context
in the statute? It is only when that meaning leads to some result which cannot
reasonably be supposed to have been the intention of the legislature, that it is proper to
look at some other possible meaning of the word or phrase.
2. We have been warned again and again that it is wrong and dangerous to proceed by
substituting some other words for the words of the statute
3. The second point of the law certified by the Divisional Court in this case is: “whether
the requirement [of a breath test] can only be made of a person who, though no longer
driving can in general terms be described as the driver” I decline to answer that
question. It asks me to choose between two phrases “actually driving” and “the driver”,
neither of which is to be found in the Act. It is in effect substituting “the driver” for the
statutory words “person driving or attempting to drive” The two are not the same.
Per Lord Upjohn:
4. My Lords, it is clear that the opening words of s.2 cannot be given a literal meaning,
for no one supposes that it is possible for a police constable to require a person to
provide a specimen for a breath test while that person is actually driving a motor
vehicle in motion on a public road.
For the duration of the conversation which lasted for 20 minutes when Pinner had obeyed
all instructions by law for an unilluminated plate, the police had failed to prove that at the
time that the appellant was drivng or attempting to drive they had reasonable grounds for
supposing that he had alcohol in his body; the suspicion arose after he had ceased to drive.
Appeal allowed!!

Re Halls’ Settlement [1954] 1 WLR 1185

where Upjohn J noted that: “the only safe canon of construction is to give words their
natural meaning unless the context requires otherwise”.
Hence, as with documents, the courts in effect presume that the ordinary meaning of the
language used where plain or clear in context represents the intention of the legislature
unless there is reason to find to the contrary. The insistence on the ordinary meaning is
consequently rooted, as TWUMASI JA puts it in:

GTP v. Ankujeah
Held Per Justice Woode. & Twumasi
What then is the proper construction to be placed on the law in question i.e. par.34 (2) of
the Labour Amendment Decree 1969 NRCD.342?”
1. It is a very useful rule in the construction of a statute, to adhere to the ordinary
meaning of the words used, and to the grammatical construction, unless that is at
variance with the intention of the legislature, to be collected from the statute
234
 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 to
no further.”

Kuenyehia v. Archer [1993-94] 2 GLR 525

Bamford Addo JSC supporting the majority decision stated that:--
Broadly, the general method of interpreting statutes or constitutions is to give words
their ordinary meaning and if the ordinary meaning makes sense of the passage then
the intention as deduced from, must be given effect. It is only when the construction
leads to absurdity or is ambiguous that one is required to look elsewhere or to resort to
application of certain other principles of interpretation in order to ascertain the true
meaning and intention of the legislature.

Friday 10th February 2006

The ordinary meaning of a word or phrase here, is the meaning that would be attached to
that word or phrase by the normal speaker of the language used in the particular linguistic
community. Thus in this case the English language. As with documents, words and
phrases used in statutes often have more than one meaning and difficulties often arise in
determining the most appropriate meaning in the particular context.
Cross 3rd ed @ 63-64).

In Re C (A Minor) [Supra].
“The term “parent” must be given its natural and ordinary meaning. It does not follow,
however, that that meaning will always include the natural parents. The natural and
ordinary meaning of a word is not fixed but changes according to the context in which it is
used. As previously noted, the ordinary meaning often changes over time and difficulties
might arise in determining in the particular context whether to give a word or phrase its
ordinary meaning at the time of its enactment or some other meaning it has subsequently
acquired.

Context
Again, as previously noted, statutory words and phrases are in practice not deployed in a
vacuum but take their meaning and colour from their context or setting. Hence the rule
that the ordinary meaning of a word or phrase used in the statute must be ascertained
having regard to its context.
And the context of a statutory provision, as previously noted, will be broadly defined here
to include not only the text but also any surrounding circumstances which bear on the
meaning of the statutory provision and which might legitimately be admitted for the
purpose of its interpretation. In other words, it would include both the internal and
external context as appropriate.
Cross 3rd ed pp 36 & 50.
Driedger pp 93-417; Bennion, 2nd ed @ 429;

235
A-G v. Prince Augustus Of Hanover
For words, and particularly general words, cannot be read in isolation: their colour and
content are derived from their context. So it is the right and duty of the court to examine
every word of a statute in its context, and context is here used in its widest sense as
including not only other enacting provisions of the same statute, but its preamble, the
existing state of the law, other statutes in pari materia, and the mischief which the court
can by those and other legitimate means discern the statue was intended to remedy.

Nankoja v. Mbage [1989-90] 1 GLR 354.

Counsel for the plaintiff submitted that section 37 (1) (f) of the Courts Act, 1971 had
given the district court grade II jurisdiction in matters concerning paternity and custody of
children, but the Maintenance of Children Decree, s3 has conferred jurisdiction on the
family tribunal in such matters and therefore the district court no longer has jurisdiction to
hear such matters; and having heard the suit on such matters the proceedings are null and
void.
Held:
1. Lord Simonds, normally a strict constructionist, stated in the case of Attorney-
General v. Ernest Augustus (Prince) of Hanover that:
2. " . . . I conceive it to be my right and duty to examine every word of a statute in its
context, and I use 'context' in its widest sense, which I have already indicated as
including not only other enacting provisions of the same statute, but its preamble, the
existing state of the law, other statutes in pari material, and the mischief which I can,
by those and other legitimate means, discern the statute was intended to remedy."
3. Again the late S. Namasivayam, a Ceylonese and first Parliamentary Counsel,
Government of Ghana, 1960-1965, has said in his book entitled The Drafting of
Legislation that, "Bills in Ghana are prefaced by a Memorandum . . . In Ghana some
significance is given to the memorandum under section 19 of the Interpretation Act,
1960 (C.A. 4)."
4. The clear principle in the interpretation of statutes is that where the provisions of a
later statute either wholly or in part were so inconsistent with or repugnant to the
provisions of an earlier one to the extent that the two could not stand together the later
would be read as having so impliedly repealed the earlier one,
5. Republic v. High Court, Accra; Ex parte Adjei: S.C. holding that section 19 of
P.N.D.C.L. 42 has impliedly amended article 115 (2) of the Constitution, 1979 in
respect of the composition of the Supreme Court
6. And since the suit was instituted and heard by the District Court, Grade II, Atebubu in
1987 after the coming into operation of S.M.C.D. 133 in 1977 (ten years after) that
court had no jurisdiction to entertain the matter and the subsequent proceedings are
null and void, and have no effect:

It is also important to point out here that intention in the sense of the legislative purpose is
under the MOPA a critical aspect of its context and bears on its interpretation both as to
whether the words or phrases are clear or unambiguous in the first instance; and if they
are, in determining their true meaning or resolving any doubts and ambiguities. Hence the
purpose of the statute is relevant in the resolution of doubts when the courts have for
example, confronted with the choice between ordinary meanings or a choice between the
236
primary and secondary meanings etc of a word. See A-G V Prince Augustus Of HanoveR
where the courts inter alia acknowledged that purpose is something to be taken into
account in arriving at the ordinary meaning of statutory provisions.

Mandla v. Dowell Lee [1983] 1 AllER 1062

(Cross 58). Here the court was called to interpret the meaning of “ethnic” in the definition
of a racial group against whom discrimination was unlawful. The refusal to permit Sikhs
to wear long hair under a turban in a school was argued not to be discriminatory since the
Sikhs were not a race separate from other Punjabis. However the court held that there was
no discrimination by reference to “colour, race, nationality or ethnic, but only by reference
to religion.
Held:
The House of Lords: that “ethnic” was not limited to strictly racial or biological
characteristics but was used to include other characteristics commonly thought of as being
associated with a common racial origin and making a group distinct. The House Lords
then showed how this interpretation fitted the purpose of the Act and the International
Convention on the Elimination of All Forms of Racial D.

It is also to be noted that on the authorities the date of a statue may also be a very
important part of this context and might bear importantly on its construction for the simple
reason that the meaning of a word or phrase may or may not change over the passage of
time.
On the old authorities, the material time was held to be that at which the word was used.
In other words, words were taken to be used in the sense they bore at the time the statute
was enacted.

The Longford [1889] 14 PD 34

[Cross @ 51]
Here the private Act of William IV’s reign provided that “no action in any of His
Majesty’s courts of law” should be brought against certain shipowners without a month’s
notice. The question was whether the word “action” was apt to cover an Admiralty action
in rem

Held per Lord Esher @ 38

The first point to be borne in mind is that the Act must be construed as if one were
interpreting it the day after it was passed. The word “action” mentioned in the section was
not applicable, when the Act was passed, to the procedure of the Admiralty courts.
Admiralty actions were then called “suits” or “causes”; moreover, the Admiralty Court
was not called and was not one of His Majesty’s courts of law.

Modern authorities however turn towards the proposition that the rules stated in cases like
The Longford do not constitute the rule of general application and is only appropriate to
the interpretation of Acts intended to apply only to a particular grievance current at the
time of its enactment i.e. a statute remedying a problem specific to a particular time. The
authorities now insist that the better approach today, is the updating or ambulatory
approach under which an Act of Parliament is considered to be always speaking rather
237
than an historical approach. Thus the courts as previously noted regularly apply old
statutory provisions to new developments in technology etc and to take account of current
social conditions etc.
Cross p 52-53.

Royal College of Nursing Of Uk V. DHSS [1981] AC 100.

Held:
1. In interpreting an Act of Parliament it is proper, and indeed necessary, to have
regard to the state of affairs existing at the time.
2. It is a fair that parliament’s policy or intention, is directed to that state of affairs.
When new state of affairs or a fresh set of facts bearing on policy comes into
existence, the courts have to consider whether they fall within the parliamentary
intention.
3. They will be held to do so if they fall within the same genus of facts or if there
can be detected a clear purpose in the legislation which can only be fulfilled if
the extension is made.

Garmans v. Ekins [Supra];

Dyson Holding Ltd v. Forbes.

It has to be emphatically repeated here, that under the MOPA the context including the
legislative purpose is to be taken into account at all stages of the statutory interpretation
process. And in this, the MOPA takes a clear departure from the position of some of the
earlier authorities (especially the classical literalist approach) which considers the context
in the broad sense as relevant only at the second stage of the interpretation process i.e. to
resolve doubts but not at the first stage when it is to be determined whether or not the
language is doubtful in the first instance. See Tindall CJ in The Sussex Peerage Case
(supra).

Of the several modern authorities which emphases the relevance of context in the broad
sense at both stages of the interpretive process, particular note has to be taken of A-G v.
Prince Augustus Of Hanover especially the dictum of Viscount Simonds @ 463 wherein
he notes

“… it must often be difficult to say that any language is clear and unambiguous until they
have been read in their context… the elementary rule must be observed that no one
should profess to understand any part of a statute… before he has read the whole of it.
Until he has done so, he is not entitled to say that it or any part of it is clear and
unambiguous”.

In this connection, we must also pay attention to the comments of Cross @ 55 wherein he
notes that the Hanover Case is of special importance for inter alia the broad views taken
by the house of lords, notably Viscount Simonds And Lord Somerville concerning the
context of a statute, namely that

238
“account may be taken of the general context, including the purpose of the statute and its
long title etc, in determining the meaning of the statutory provision before the court in the
first instance and not merely at a latter stage, should it become necessary to do so, on
account of the ambiguity in the provision”.

The Two Stage Approach To Statutory Interpretation

Perhaps to approach fully the complexity of modern interpretation, especially modern

statutory interpretation under the purposive approach (MOPA) and particularly the
relevance of the context of the statutory provision in the process, it must always be borne
in mind that notionally statutory interpretation involves a two-stage approach-
 the first at which one determines whether or not the words are clear in meaning; and
 the second at which having determined the words not to be clear in meaning, the
courts set out to resolve any doubts etc.

In his Statutory Interpretation (2nd Ed) Bennion outlines the two stages as follows:

“in interpreting an enactment, a two-stage approach is necessary. It is simply not a matter

of deciding what doubtful words mean. It must first be decided on an informed basis,
whether or not there is a real doubt about the legal meaning of the enactment. If there is,
the interpreter moves on to the second stage of resolving the doubt. The experienced
interpreter combines the two stages, but notionally they are separate”.

In his Statutory Interpretation, Rupert Cross likewise suggests that there are two stages in
statutory interpretation that is, in the judges deliberations when seeking interpretation of
statutory provisions. The first when he inquires whether the words are in themselves
precise and unambiguous and the second, “when having answered that question in the
negative, he seeks to resolve the doubts arising from the terms employed by the
legislature”.
(Cross pp 57-58).

An important upshot of the plain meaning rule as explained above, is that, as in the case of
interpretation of documents under the MOPA, if the meaning of the words or phrases in a
statute is plain or clear considered in the relevant context, effect must be given to it
regardless of the consequences, that is, even if it was subjectively considered by a
particular judge or court to be absurd, harsh, unfair, etc.
Needless to repeat, under the MOPA, a statutory provision could be said to be clear or
plain or unambiguous only when it clearly expresses the legislative purpose and is not
open to alternative interpretation.

Bennion expresses this position @ 338 of his Statutory Interpretation (section 158) when
he perceptively observes that:

239
“one limited ground on which the literalist dicta can be justified is where the court is
satisfied on an informed interpretation [i.e. one which inter alia takes account of the
legislative purpose] that the literalist meaning reproduces the actual intention of the
legislature. If the result of a literal construction appears absurd or mischievous, the court
must ask itself whether parliament really meant that. There is always a presumption that
parliament does not intend to do anything that will produce an absurdity but if the court
thinks that what it considers to be absurd was really and truly contemplated by parliament
and was deliberately intended then the court must defer to that”.

Warburton v. Loveland [1832] 2 D& CL 480

@ 489 HL wherein it is noted by Tindall CJ “where the language of an Act is clear and
explicit, one must give effect to it, whatever may be the consequences, for in that case the
words of the statute speak the intention of the legislature”.

Countess of Rothes v. The Kirkcaldy & Dysart Waterworks Com’ner [1882] AC 694
The Act in question authorized the commissioners to impound the waters of an affluent of
the Lothrie Burn in ar reservoir and to carry a supply of water to towns to Kirkcaldy and
Dysart. It required them to make compensation to Lady Rothes in the event of flood, in
these words: “The commissioners shall be bound to make good to the said Countess of
Rothes, and her heirs and successors, from time to time, all damages which may be
occasioned to her or them, by reason of or in consequence of any bursting, or flood, or
escape of water from any reservoir, aqueduct….which may be constructed or laid by the
commissioners…” Then there was a very unsual fall of rain and Lady Rothes brought the
action for damages. The issue was the interpretation of the word “flood”, did it from the
Act offer a alternative construction.

Held:
per Lord Blackburn:
I quite agree that no Court is entitled to depart from the intention of the legislature as
appearing from the words of the Act, because it is thought to be unreasonable. But when
two constructions are open, the court may adopt the more reasonable of the two.

IRC v Hinchy [1960] AC 748

@ 767 per Lord Reid.
What we must look for is the intention of Parliament, and I also find it difficult to believe
that Parliament ever really intended the consequences which flow from this contention.But
we can only take the intention of Parliament from the words which they have used in the
Act, and therefore the question is whether these words are capable of a more limited
construction

Essilfie v. Anarfo per Archer J [1992] 2 GLR 654;

GTP v Akunjeah [Supra].

240
Quaynor v Humphrey Bonsu [unreported].

It is also important to bear in mind that the position being canvassed here is, at least under
the MOPA, to be distinguished from the classical literalist position which operated if at
all, with the limited concept of “context” which did not factor in purpose or its intended
consequences of the statute, especially at the first stage of the interpretive process. Under
the MOPA, “context” as previously noted importantly includes the legislative purpose.

Furthermore, it is to be added that although the courts presume in statutory interpretation

that the legislature does not intend absurd illogical harsh results etc, these presumptions
are rebuttable and indeed taken to have been rebutted when it is clearly established that
the legislature intended the particular meaning or result even if absurd, harsh, illogical,
harsh etc. And in that case, the meaning so determined clearly represents the will of the
legislature and not to give effect to it will amount to a clear usurpation of the legislative
function.

Abrahams v. Cavey [1967] 3 AllER 179

[Cross 69] Here a Labour Congress was in progress and a service for the day had been
publicized and attended by political leaders. While divine services was being celebrated,
the appellant interrupted by shouting “Oh you hypocrites, how can you use thw word of
God to justify your policies?”. It was a protest against the government members’ active
support for the US policies in Vietnam. The appellants were convicted for acts against the
recognized standards of propriety. The criminal law provided that “Any person who shall
be guilty of riotous, violent or indecent behaviour ..in any place of religious worship duly
certified….shall on conviction thereof.. be liable to a penalty.”
On appeal, the issue was whether their behaviour amounted to indecent behavior within
the meaning of the statute.
Held per Lord Parker CJ:
1. “Indecent” has a number of meanings, both dictionary meanings and
meanings that can be ascertained from the cases; but the true meaning in
any particular statute must naturally depend on the context.
2. It is quite clear here that indecency is not referring to anything in the
nature of tending to corrupt or deprave; it is quite clearly used without any
sexual connotation whatsoever, but it is used in the context or riotous,
violent or indecent behaviour, to put it quite generally, within the genus of
creating a disturbance in a sacred place.

Mills v Cooper [1967] 2 QB 459

(this dealt with the meaning of the word ‘gypsy’) (Cross p 70).

Mandla v. Dowell Lee [Supra].

Technical Construction

241
As previously noted, the plain meaning rule also enjoins the interpreter to construe
technical words in their technical meaning in the context of the statute. Hence it has been
held that where a word or phrase has acquired the technical meaning in relation to a
certain expertise-such as certain areas of trade, business, science or technology-and is used
in a context dealing with that expertise, it is to be given its technical meaning unless the
contrary intention appears. The classic statement of this rule is that of Lord Esher in

Unwind v. Hanson [1891] 2 QB 115

@ 119 (BUTA 43). “If the Act is directed to dealing with matters affecting everybody
generally, the words used have the meaning attached to them in the common and ordinary
use of language. If the Act is one passed with reference to a particular trade, business or
transaction, and words are used which everybody conversant with that trade, business or
transaction knows and understands to have a particular meaning in it, then the words are to
be construed as having that particular meaning though it may differ from the common or
ordinary meaning of the words”.

Likewise where a word or phrase has acquired a technical meaning in a certain branch of
the law, [technical legal term] and is used in the context dealing with that branch it is to be
given that meaning unless the contrary intention appears.

Jenner v Allen West & Co. Ltd [1959] 2 AllER 115

The plaintiff was awarded damages under the Fatal Accidents Acts in respect of the
defendants, breach of statutory duty and negligence at common law, whereby the
plaintiff’s husband met his death by falling from the roof where he was working as
plumber. The issue was construction of the words “crawling boards” which the defendant
was said to have failed to use or whether the executives informed the workforce of or
enforced the regulations as to their use.

Held, citing Unwin v Hanson, that crawling boards in the safety Regulations refereed to
boards with battens on them, not to plain boards, the former meaning being the meaning
of the term according to usage in the relevant trades.

Blankley v. Godly [1952] 1 AllER 436.

Fisher v Bell [1961] 1 QB 394

(CROSS 73);

R v. Slater [1881] 8 QB 267.

In this case it was argued that the term “indictment” as used in section 7 of the Corrupt
Practices Prevention Act 1863 applied to any form of criminal proceedings. This
contention was rejected by the court with Denman J noting at p 272 that:
“it always requires the strong compulsion of other words in an Act to induce the court to
alter the well known meaning of a legal rule”.

242
Rule No 5: The Secondary Meaning Rule
If the words will produce a result contrary to the purpose of the statute they may be given
a secondary meaning. This basic rule is to the effect that although generally speaking the
ordinary or natural meaning of a statutory provision must be resorted to at first instance in
determining the meaning of the words or phrases used, where resort to such construction
would lead to a result which is contrary to the purpose of the statute, the words or phrases
could be construed in any secondary meaning they are capable of bearing.
See [1969] 1 WLR 1266 @ 1273 Per Lord Reid.

Maunsell v. Olins [1975] Ac 373

@ 391 Per Lord Simon of Glainsdale wherein he notes (Cross P 32)
“…the language is presumed to be used in its ordinary primary sense, unless this stultifies
the purpose of the statute or otherwise produces some injustice, absurdity, anomaly or
contradiction, in which case, some secondary ordinary sense may be preferred”.

The same proposition is pronounced @ 307 in:

Sam v. Comptroller of Customs & Excise [1971] 1 GLR 289.

Held per Taylor Jas he then was:
1. It is the duty of a court, in interpreting an enactment, to give effect to the
intention of the legislature. Therefore, where words in an enactment are clear
and unambiguous no question of interpretation arises; but where the ordinary
meaning of the words used leads to a manifest absurdity or repugnance a court
may alter the words of the enactment, but only to the extent of avoiding the
absurdity or repugnance.
2. The words "made use of " in section 203 of Cap. 167 were ambiguous because
the further question of who made use of the vehicle could not be answered by
the context.

This basic rule as Buta rightly notes @ p 47 of his LIG is essentially a reformulation of
the old golden rule of statutory interpretation. It is significant however that the
formulation of the rule under the MOPA allows for departure from the ordinary meaning
only where it does not accord with the purpose of the statute (see Cross p 49 r 2 ) and
therefore seeks to avoid the use of such terms as “irreconcilability” , “absurdity”,
“repugnancy” etc as much as possible.
As noted above, the court or interpreter is empowered by this basic rule to depart from the
ordinary meaning of the words and phrases used in order to avoid a result that is contrary
to the legislative purpose. Legislative purpose here, is to be defined in a broad sense to
encompass not only the specific or express purpose of the statute under consideration, but
also the general purposes of the law in the particular area of social activity and to which
the purpose and the provisions of the statute are presumed to have been intended to fit
coherently.

Cross p 88 and 92

243
There are suggestions in a number of authorities that the purpose of the statute here, has to
be defined not only in terms of the expressed purpose(s) of the statute but also the values
implicit in or presumed to underline these purposes.

Furthermore, since the legislature is presumed not to intend results that are absurd, unjust,
irreconciliable, repugnant etc, it is often considered that the courts are also empowered
unless there are compelling reasons to the contrary, to construe statutes in a way that avoid
any absurd, illogical, repugnant, irreconcilable result etc.

Indeed, in practice, judicial dicta and formulations of this basic rule refer not only to
results of interpretation that are not in accord with the legislative purpose, but also results
that are absurd, repugnant etc. See Maunsell v Olins; Sam v Comptroller Of Customs

And this has raised the basic question as to the kind of circumstances that would warrant
departure from ordinary or primary meaning of a statutory provision. These questions
include questions such as:
a. Whether the term absurdity is for example a legal term of art
b. Whether absurdity here means something other than anomaly, illogicality,
irreconcilability, repugnancy, or inconsistency with the rest of the statute etc
c. How these concepts relate to the legislative purpose in the construction of statutes.

Here it has to be noted, that a critical study of the relevant judicial authorities on the
matter suggest that in practice, the word “absurdity” is used, especially under the MOPA
in a wide sense to encompass “all the conditions which permit a judge to depart from the
primary meaning of statutory words” and that ultimately it is only inconsistency with the
purpose of the legislature that justifies departure from the primary meaning rule. (See
Cross p 92).

In effect, under the MOPA, interpretation that tend to defeat the purpose of legislation
viewed in terms of the legislative purpose are in practice often labeled “absurd” and
rejected on that account. But then, as Cross notes @ p 92 of his Statutory Interpretation,
the difficulty with the use of the term “absurd” is that if often fails to make clear that it is
only inconsistency with the legislative purpose that warrants departure from the primary
meaning rule; and that beyond the purpose of the statute, “absurdity” or any of its
derivatives like inconsistency etc, would not matter. Hence the preference under the
MOPA is for the statement of the secondary meaning rule in terms of consequences that
are inconsistent with the purpose of the statute rather than in terms of consequences that
are absurd.

Finally, to repeat the point made earlier under our discussion of the plain meaning, once
statutory provision is held to be clear or plain in meaning in the sense that it accords with
the legislative purpose, there is no room for departure from the primary meaning in terms
of this basic rule.

Again as previously noted, the expression “secondary meaning” is in this context used in
contradistinction to the ordinary or plain meaning of the word or phrase. The distinction
244
here as Cross notes, is between the usual and less usual meaning of a word or phrase
(Cross p 65).
It is also to be added that several words have more than one usual meaning and invariably
the context might help determine which secondary meaning is appropriate or intended.
A secondary meaning as Cross notes at p 85, may be wider than the ordinary meaning or
narrower.

A-G’s Reference (No.1 of 1988) [1989] 2 AllER 1.

The Company Securities (Insider Dealing)Act provided that in a section that “where an
individual has information which he knowingly obtained (directly or indirectly) from
another individual who (i) is connected with a particular company …” The respondent had
enquired and obtained sensitive company information from an employee which he used to
purchase shares from the company which was sold out. On conviction counsel for the
reposdent contended that there was no evidence that the respondent “obtained”
information from the connected individual, but that he merely received it, since the proper
construction of the word “obtained” in the Act connoted active conduct on the part of the
respondent.
Held:
1. The first task in these circumstances is to discover the ordinary meaning of the word
“obtained.” As Lord Diplock observed in Black-Clawson International Ltd v
Papierwerke WA AG:”…the court must give effect to what the words of the statute
would be reasonably understood to mean by those whose conduct it regulates.”
2. This being a penal enactment, the principle is that any ambiguity should be resolved in
favour of the defence. But this principle of construction is of limited application as
stated in Halsbury’s Laws (4th Edn, para 910) it-

“means no more than that if, after the ordinary rules of construction have first been
applied, as they must be, there remains any doubt or ambiguity, the person against whom
the penalty is sought to be enforced is entitled to the benefit of the doubt”
3. Therefore the “obtained” in the Act has not restricted to the narrower of “acquired by
purpose and effort”, but had a wider meaning which the context of the case.

Cross @ 83 & 87
In seeking thus to give effect to “the intention of the provision”, a secondary meaning may
be chosen in preference to the ordinary meaning of a word.

Wills v. Boyley [1983]1 AC 57 (Cross p 86).

Darke IX v. Darke IV [1984-86] 1 GLR 481

The matter was pending before the ordinary bench of the Court of Appeal, when the
Constitution, 1979 came into force on 4 September 1979. On 21 December 1981 the
matter was listed before the Supreme Court as a substantive appeal but the Supreme Court
ordered the Court of Appeal to deal with the matter on the ground that it was a matter
245
immediately pending before the Court of Appeal as provided for under the Constitution,
1979. Now section 4 of the transitional provisions provides:
"4. All proceedings pending before any court immediately before the coming into force of
this Constitution may be proceeded with and completed in that court notwithstanding
anything to the contrary contained in this Constitution."
Arguments pressed on this court that in the circumstances of this case the phrase "in that
court" (appearing in section 4 of the transitional provisions) is referable to the ordinary
bench of the Court of Appeal and not the new Court of Appeal created by the
Constitution.

Held: per Taylor JSC

1. The expression "that court" is a compendious way of embracing all the instances. Of
course if only section 4 of the transitional provisions is looked at in isolation without
considering the whole Constitution and article 137 (2) thereof in particular, then the
literal and primary meaning of "that court" is obvious: The old court must continue to
deal with cases previously before it although it has ceased to exist and its outstanding
function consequentially transferred to a successor court.

2. This absurdity can be avoided by considering the whole Constitution and praying in aid
what Jervis C.J. called the golden rule in Mattison v. Hart (1854), a classical
formulation of which is to be found in the well-known dictum of Lord Wensleydale in
Grey v. Pearson (1857):

3. “. . . in construing wills and indeed statutes, and all written instruments, the
grammatical and ordinary sense of the words is to be adhered to, unless that would lead
to some absurdity, or some repugnance 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 and inconsistency, but no farther."
4. Even if there is no absurdity the modern rule of construction is to have regard to the
tenor of the whole context. As Sir John Nicholl put it long ago in Brett v. Brett
(1826):
5. ". . . to arrive at the true meaning of any particular phrase in a statute, that particular
phrase is not to be viewed detached from its context in the statute; it is to be viewed in
connexion with its whole context."
6. And the reason for this was succinctly stated by Lord Reid in Barnard v. Gorman
[1941] H.L.:
7. “. . . the context in which a word is found may be, and very often is, strong enough to
show that it is intended to bear other than its ordinary meaning . . ."
8. As my brother Adade J.S.C. has so aptly put it just now at 489, ante:
9. “... notionally there is nothing before the court with respect to which the court may
exercise any discretion at all. The court's jurisdiction is to be invoked to handle
appeals; it is not to be invoked to handle nothing. So if there is no appeal pending,
properly so-called, then the court has no jurisdiction to do anything."

On the authorities it is only where a secondary meaning which the words are capable of
bearing exists that there can be any question of the court abandoning the primary meaning
246
because it produces an absurd result- in the sense of a result inconsistent with the
legislative purpose.
Where the words used in a statute are clearly not capable of any such secondary meaning
in the context, the court is enjoined to stick to the apparent ordinary meaning of the words
unless the circumstances are such that that the court can invoke its powers under the basic
rule that allows it to read in words etc, or rectify the statutory language.

And here can one can hardly improve upon Cross’s statement of the legal position @ p 83
of his book wherein he observes:
“It must be emphasized at the outset that it is only when a secondary meaning is available
that there can be any question of the courts abandoning a primary meaning because it
produces a result which they believe is contrary to the purpose of the Act. No judge can
decline to apply a statutory provision because it seems to him to lead to absurd results nor
can he, for this or any other reason, give words the meaning they will not bear”.

Duport Steels Ltd v. Sirs [1980] 1 AllER 529 @ 551.

Barnard v Gorman,
Issue whether the word “offender” as used in the law means a person who has committed
one of the specified offences or whether it means a person who is suspected of having
committed one.
Held
Per Viscount Simon LC:
7) We must not give the statutory words a wider meaning merely because on a narrower
construction the words might leave a loophole for frauds against the revenue.
8) If, on the proper construction of the section, that is the result, it is not for judges to
attempt to cure it. That is the business of parliament.
9) Our duty is to take the words as they stand and to give them their true construction,
having regard to the language of the whole section and of the whole Act as relevant,
always preferring the natural meaning of the word involved, but none the less always
giving the word its appropriate construction according to the context.
Per Lord Romer:
10) That the ordinary meaning of the word “offender” is a person who has in fact
offended must be conceded,
11) But the context in which a word is found may be, and very often is, strong enough
to show that it is intended to bear other than its ordinary meaning, and such a context is
in my opinion to be found in the present case.
12) For to give the word its ordinary meaning and that the offender may be proceeded
by summons will be nonsensical. Thus the word “offender” must bear a secondary
meaning of “an apparent offender”

Wilshire v Barret

Ababio v The Republic [1972] 1GLR 347

CFAO v Zacca [1974] GLR 366 CA

247
That on 15 August 1969 when judgment was delivered by the former Court of Appeal, the
applicants had a matter pending before that court, and this is covered by section 13 (1) of
the Transitional Provisions. Section 13 provides as follows:
"(1) Subject to the provisions of this section, legal proceedings pending immediately
before the coming into force of this Constitution before any Court, including civil
proceedings by or against the Government, shall not be affected by the coming into force
of this Constitution and may be continued accordingly. In support of his argument counsel
cited the decision in Awoonor Renner v. Thensu (1930) 1 W.A.C.A. held that the word
"pending" in section 14 (3) of the West African Court of Appeal Order-in-Council must be
given a wide meaning, and that it included every matter in which any proceeding could by
any possibility be taken
Held:
1. It was the manifest intention of the Constitution, 1969, arts. 105 and 106 to
provide within defined limits a further forum of appeal. In construing these
articles the court should therefore lean towards that interpretation which will
give effect to such intention.
2. Although a court is prima facie bound to read words of an Act according to their
ordinary meaning in the language, if there are other circumstances which
show that words must have been used by the legislature in a sense larger
than their ordinary meaning, the court is bound to read them in that sense.
3. If the precise language of an enactment is clear and unambiguous it is the duty of
the court to enforce it, though the result may be unjust, arbitrary or inconvenient.
4. It is not the duty of the court to make the law reasonable, but to expound it as it
stands. As Tindal C.J. said in Warburton v. Loveland, H.L.,
5. "Where the language of an Act is clear and explicit, we must give effect to it
whatever may be the consequence; for in that case the words of the statute speak
the intention of the Legislature."
6. It is only when there are alternative methods of construction that notions of
injustice may be allowed to influence the interpretation. Here in this case I can
see no other alternative construction in the language of section 13 than that
under the Constitution only a pending application for review under paragraph 7
(2) of the Courts Decree, 1966, is recognised as conferring a right of appeal, and
it is the inescapable duty of this court to give effect to the clear language used by
section 13.
7. Mr Franklin has urged upon the court to apply the maxim expressio unius est
exclusio alterius and to hold that a right to apply for review does not amount to
"legal proceedings pending" within the meaning of section 13 (1).
8. This Latin maxim simply means that the expression of one person or thing
implies the exclusion of other persons or things of the same class, but which are
not mentioned. The maxim, it has often been said, must be applied with some
degree of circumspection.
9. Thus, in Colquhoun v. Brooks (1887) 19 Q.B.D. 400, Wills J. said:
10.“I may observe that the method of construction summarised in the maxim
'Expressio unius exclusio atterius’ is one that certainly requires to be watched ...
The failure to make the 'expressio' complete very often arises from accident,

248
 very often from the fact that it never struck the draftsman that the thing supposed
to be excluded needed specific mention of any kind.”
11.When that case reached the Court of Appeal, Lopes L.J. held:“The maxim
‘Expressio unius exclusio alterius,’ has been pressed upon us. I agree with what
is said in the Court below by Wills, J., about this maxim. It is often a valuable
servant, but a dangerous master to follow in the construction of statutes or
documents.
12.The exclusio is often the result of inadvertence or accident, and the maxim ought
not to be applied, when its application, having regard to the subject-matter to
which it is to be applied, leads to inconsistency or injustice.”
13.As is stated in Maxwell on Interpretation of Statutes (11th ed.)
14.“. the fundamental rule of interpretation, to which all others are subordinate, is
that a statute is to be expounded 'according to the intent of them that made it.'
15.If the words of the statute are in themselves precise and unambiguous no more is
necessary than to expound those words in their natural and ordinary sense, the
words themselves in such case best declaring the intention of the legislature.
16.The object of all interpretation of a statute is to determine what intention is
conveyed, either expressly or impliedly, by the language used, so far as is
necessary for determining whether the particular case or state of facts presented
to the interpreter falls within it.
17.'If there is one rule of construction for statutes and other documents, it is that
you must not imply anything in them which is inconsistent with the words
expressly used'.”

Rule 6: Necessarily Implied Construction

This basic rule stipulates essentially that a judge or interpreter may read into a statute
words it considered to be necessarily implied by the words which are already in the statute
and that he has a limited power to add to, alter, or ignore statutory words in order t\
prevent a provision from being absurd etc in the sense that it is not consistent with the
legislative purpose.
As with the secondary meaning rule discussed above, this basic rule speaks to one more
circumstance in which in which the court or interpreter may justifiably depart from
ordinary meaning of statutory words under the MOPA. And again, as under the secondary
meaning rule, the words (fill in)

There are basically two aspects of this rule:

a) The power of the judge or interpreter to read in words not necessarily implied in
the statute in order to avoid absurdity etc and to give effect to the true intention or
legislative purpose of the legislature. (Necessarily implied interpretation).

b) The power of the judge or interpreter to alter, substitute or even ignore statutory
words in order to prevent statutory words from being absurd and thereby to give
effect to the intention of the legislature (Rectification of statutory of language).

249
Power to Read in Words Necessarily Implied Construction
As in the case of documents implicit meanings plays an important part in statutory
interpretation and have always been taken account when construing statutes. As Bennion
notes @ 365 of his Statutory Interpretation (2nd ed) the legislature is always presumed to
intend the literal meaning of the express words of an enactment is to be treated as
elaborated by taking into account all implications which, in accordance with recognized
guides with legislative intention it is proper to treat the legislature as having intended.
Bennion adds at page 361-362 as follows:

“… The interpreter of legislation needs to accept that it is a fact of Language indeed a fact
of life that every statement consists not only of what is expressed but what is implied.
Neither portion of which is more important than the other though there would be room for
argument about the content of what is implied, the implication may arise from the
language used from the context as from the application of some external rule. They are of
equal forms whatever their derivation”.

Chorlton v Lings (1868) LR 4 CP 374

@ 387 per Wills J wherein it was noted that the legal meaning of an enactment includes,
“what is necessarily or properly implied”.

Salomon v Salomon [1897] AC 22

Per Lord Halsbury LC at 29
1. I am wholly unable to follow the proposition that this was contrary to the true intent
and meaning of the Companies Act. I can only find the true intent and meaning of the
Act from the Act itself; and the Act appears to me to give a company a legal existence
with rights and liabilities of its own, whatever may have been the ideas or schemes of
those who brought it into existence.

Per Lord Watson at 38

2. Intention of the Legislature is a common but slippery but phrase, which, popularly
understood, may signify anything from intention embodied in positive enactment to
speculative opinion as to what the Legislature probably would have meant, although
there has been an omission to enact it.

3. In a court of law or equity, what the legislature intended to be done or not to be done
can only be legitimately ascertained from that which it has chosen to enact, either in
express words or by reasonable and necessary implication.

4. What the legislature intended to be done or not done could only be legitimately
ascertained from that which it has chosen to enact either in express words or by
reasonable and necessary implication.

250
As indicated in our discussion of the basic rule for the interpretation of documents in the
concept of the MOPA, the concept of implied meaning is closely related to the concept of
intention or purpose in the sense that what can be implied or not will ultimately turn on
the legislative intention or purpose. (Bennion 362 and 367).

And further that strictly and properly conceived, an implication cannot be found which
goes against an express statement, so that it is not permissible to find an implied meaning
that contradicts the ordinary or plain meaning of the language used.
Indeed, in most cases, the meaning or words necessarily implied by the statutory words
must of necessity only be an elaboration of their ordinary meaning or some clarification of
some secondary meaning that they are capable of bearing. Hence Cross notes @ 93 of his
Statutory Interpretation that words may be said to be necessarily implied by other words
“when their express statement merely clarifies a secondary meaning of those other
words”.

The difficulty in practice however in most cases is determining whether in a particular

case the court is given statutory words a secondary meaning or rather reading in words
necessarily implied by them.

A number of instances of necessary implication illustrate this point.

Adler v. George

Wilshire v Barret;
Held:
1. The question is what point must he decide with certainty that the person is
in fact drunk. If the arrested person turns out not drunk, as in this case, the
police officer opens himself up for action for damages for unlawful arrest.
2. To avoid this absurdity in the literal interpretation of the words, it was
held that the words “a person committing an offence” under the law had to
be given its secondary meaning as “ a person apparently committing an
offence under the section”.
3. Thus the courts had to read in words into the statute to avoid the absurdity.

Barnard v. Gorman

Wills v Boyley [Supra] (Cross P 86-87).

Luke v IRC [1963]AC 557

The company purchased the residence of its’ managing director and leased it out to him as
a tenant under certain terms included repair works etc. The action was in respect of
income tax assessment on the appellant relating to his emoluments as managing director,
being described as “benefits in kinds” being expenditure incurred by the company on the
upkeep and repair of the residence. The incomer tax Act provided inter alia that “”where a
body corporate incurs expense in or in connection with the provision , for any of its
directors……and, apart from this section, the expenses would not be chargeable to income
tax as income of the director.” The issue was whether such expenditure was chargeable to
251
the resident managing director as his tax and the construction turned on the word
“provision” whether it included repair and upkeep.
Held per Lord Reid:
1. To read the word “provision” as limited to the provision of the house when the director
enters into occupation would in many cases defeat the obvious intention of the section.
For if a company takes a lease of a house and then permits the director to live in the
house such a limitation would exclude the rent paid by the company from the scope of
the section, although living in a house for which the company pays the rent is an
obvious benefit.
2. How, then, are we to resolve the difficulty? To apply the words literally is to defeat the
obvious intention of the legislation and to produce a wholly unreasonable result.
3. To achieve the obvious intention and produce a reasonable result we must do some
violence to the words. This not a new problem, though our standard of drafting is such
that it rarely emerges.
4. The general principle is well settled. It is only where the words are absolutely
incapable of a construction which will accord with the apparent intention of the
provision and will avoid a wholly unreasonable result, that the words of the enactment
must prevail.
5. If it is right that, in order to avoid imputing to Parliament an intention to produce an
unreasonable result, we are entitled, and indeed bound, to discard the ordinary meaning
of any provision and adopt some other possible meaning which will avoid that result,
then what I am looking for in examining the obscure provision at the end of the section
is not its ordinary meaning (if it has one) but some possible meaning which will
produce a reasonable result.
6. I think that the interpretation which I have given is a possible interpretation and does
produce a reasonable, and therefore I adopt it.

Clearly then, on a proper application, the necessarily implied construction rule should in
most cases end in some secondary meaning of the statutory words and phrases without a
question of implying further words. The difficulty in practice in many cases is determining
whether or not in a particular case the court is given statutory words a secondary meaning
or rather reading in words to prevent results contrary to the legislative purpose. (Cross 93).
(PAGE 94-105 OF CROSS)

The Power of Rectification of Statutory Language

This rule deals with the power of the judge to alter, to add to, or ignore statutory language
in order to prevent a provision from being absurd in the sense that it does not accord with
the legislative purpose.
This rule is consequently more fundamental than the necessarily implied rule in the sense
that it involves the exercise of powers beyond just giving statutory words a secondary
meaning or adding words etc, necessarily implied by the statutory language. However, as
noted earlier, it is not always easy in practice to determine whether in a particular case the
court is only giving statutory words their secondary meaning, reading in words implied or
actually rectifying the statutory language.
252
Adler v. George
The defendant-appellant was convicted of an offence contrary to an Official Act which
provided that : “No person in the vicinity of any prohibited place shall obstruct,
knowingly mislead……”. The defendant appealed on grounds that he had obtained access
to and was in fact on the Air force station and therefore he could not be in the vicinity of
the station and hence committed no offence.

Held per Lord Parker CJ:

4. The defendant referred to the natural meaning of vicinity as being the state of being
near a space.
5. It would be extraordinary, I would venture to think it would be absurd, if an
indictable offence was thereby created when the obstruction took place outside the
precints of the station, albeit in the vicinity, and no offence at all was created if the
obstruction occurred on the station itself.
6. The context of the Act demands that the words should be construed to mean “in
or in the vicinity of” There may be many contexts in which ‘vicinity’ must be
confined to its literal meaning of ‘near in space’ but under this context the words
would be construed in their implied meaning. Appeal is dismissed.

In practice also, the power of rectification of statutory language is often used for the
purpose inter alia, of correcting errors of expression in the statutory language; to fill in
gaps in legislation to correct legislative oversight etc, which make the statutory provision
absurd and thereby ensure that the legislative purpose is achieved. See Dreidger @ 114-
123.

Sasu v. Amua –Sekyi.

An application for leave to appeal to the SC was dismissed by the Court of Appeal. The
applicant then brought the instant application for an order of the Court of Appeal staying
execution of the judgment of the circuit court pending the hearing and determination of his
alleged appeal to the Supreme Court. Counsel for the respondent raised a preliminary
point that the applicant was estopped from pursuing his application because since he did
not obtain prior leave of the Court of Appeal, as a matter of law he had not lodged an
appeal to the Supreme Court as would entitle him to maintain an application for stay of
execution under the Courts (Amendment) Law, 1987 (P.N.D.C.L. 191), s. 3 (2).
Held, dismissing the application: Per Taylor LJ:
(1) it was a recognised legal principle regulating the construction of statutes that the true
meaning and purport of words and expressions in an enactment were not to be taken
in isolation but should be ascertained by considering their context.
(2) This principle regulating the construction of statutes is well expressed in the remarks
of Viscount Simonds in Attorney-General v. Prince Ernest Augustus of Hanover;
H.L., where he said:
(3) “…words, and particularly general words, cannot be read in isolation: their colour
and content are derived from their context. So it is that I conceive it to be my right
and duty to examine every word of a statute in its context, and I use 'context' in its
widest sense . . . as including not only other enacting provisions of the same statute,
253
 but its preamble, the existing state of the law, other statutes in pari materia and the
mischief which I can, by those and other legitimate means, discern the statute was
intended to remedy."
(4) The Courts (Amendment) [p.507] Law, 1987 (P.N.D.C.L. 191) as was obvious from
its title and content deliberately set out to amend specific provisions of the Courts
Act, 1971 (Act 372) and by implication some provisions of the Constitution, 1979
which had been specifically saved by the PNDC.
(5) It was apparent that what was meant by the several use of the word "leave" was
unclear and thus the whole section needed to be modified.
(6) And since it was clear from a comparison of sections 3 (2) and 10 (3) (b) as
substituted by P.N.D.C.L. 191, which dealt with the appellate jurisdiction from the
High Court to the Court of Appeal, that typographical omissions had manifestly
been made by the typist and unwittingly ignored by the draftsman and acquiesced in
by the legislature, the court would fill the gaps by adding the missing words to the
provisions of section 3 (2) to make it sensible and in order to give effect to the
intention of the legislature that an appeal from a judgment of the Court of Appeal
confirming that of a lower court had to be "with the leave of the Court of Appeal."
Dicta of Viscount Simonds in Attorney-General v. Prince Ernest Augustus of
Hanover [1957] and of Lord Reid in Federal Steam Navigation Co. Ltd. v.
Department of Trade and Industry [1974]
(7) I have arrived at this conclusion by considering the content and consequently the
wording of section 3 (2) not in isolation but within the context of the whole of
P.N.D.C.L. 191. And I have carried out this exercise by examining all the other
words of P.N.D.C.L. 191. I have furthermore looked at the previous state of the law
and the objectives of the law with the mischief it was designed to remedy.
(8) The exercise has necessitated filling in gaps by adding words to the provisions to
make sensible reading in order to give effect to the intention of the legislature. I
suppose the legal question posed by this apparent meddling with enacted words in
order to discover what the legislature intended to enact is: do the principles and
canons of interpretation permit this license with legislation?
(9) Lord Reid, espoused the modern liberal trend when in Federal Steam Navigation
Co. Ltd. v. Department of Trade and Industry [1974], H.L., he said:
(10) "Cases where it has properly been held that a word can be struck out of . . . statute
and another substituted can as far as I am aware be grouped under three heads: where
without such substitution the provision is unintelligible or absurd or totally
unreasonable; where it is unworkable; and where it is totally irreconcilable with the
plain intention shewn by the rest of the ... statute.”
(11) Sir Rupert Cross, Vinerian Professor of English law in the University of Oxford and
an eminent jurist of great ability, in his book on Statutory Interpretation (1976 ed)
after reviewing the authorities and inspired by Lord Reid's exposition in the Federal
Steam Navigation case (supra), formulated the following rule of statutory
interpretation gathered from the authorities which permits the modification of its
language by deleting words or adding words to the provisions of an enactment. He
stated the rule thus:
(12) "The judge may read in words which he considers to be necessarily implied by words
which are already in the statute and he has a limited power to add to, alter or ignore
254
 statutory words in order to prevent a provision from being unintelligible or absurd or
totally unreasonable, unworkable or totally irreconcilable with the rest of the statute."

Maxwell on Interpretation 12th ed @ 228.

255
Sutherland Publishing Ltd v Caxton Publishing Co Ltd [1938] Ch 174
The appellants claim an infringement of their copyright and conversion of infringing
copies. The dispute arose as to the quantum of damages to be awarded. The issue then
turned on the construction of the provision of the copyright law, whether it covered both
infringement and conversion or the damages were alternatives: “An action in respect of
infringement of copyright shall not be commenced after the expiration of three years next
after infringement”

Held per Mackinnon LJ at 201 in a dissenting opinion [Cross at 96]:

1. When the purpose of an enactment is clear, it is often legitimate, because it is
necessary, to put a strained interpretation upon some words which have been
inadvertently used, and of which the plain meaning will defeat the obvious intention of
the legislature.
2. It may even be necessary, and therefore legitimate to substitute for an inept word or
word(s) that which such intention requires.
3. The most striking example of this I think, is one passage in the Carriage of Goods By
Sea Act 1924 where to prevent a result so nonsensical that the legislature cannot have
intended it, it has been held necessary and legitimate to substitute the word “and” for
the word “or”.
4. The violence of this operation has, I think, been minimized by saying that in this place
the word “or” must be taken to mean “and”.
5. This is a cowardly invasion. In truth one word is substituted for another for “or can
never mean “and”.

The authorities abound with examples of the exercise of this power of rectification by the
courts in adding words to statutory language; substituting words for those in the statute,
and sometimes even ignoring statutory words.

Adding Words to a Statute

Cross : 94-96

Buta: 35-62

Western Bank Ltd v. Schindler [1977] Ch 1 (Cross 94-95)

The mortgagor obtained a mortgage from the mortgagees and procured a house with
conditions of repayment of principal loan with interest. The mortgage provided that: “(A)
The statutory power of sale and of appointing a receiver conferred on mortgagees by the
Law of property Act 1925 shall apply to this security but without the restrictions contained
therein as to giving notice or otherwise….” The mortgagees issued an originating
summons claiming possession of the property, payment of interest in advance etc base on
common law right which they enjoyed by virtue of their legal estate: for they could allege
no default, non arrears. The mortgagor resists the claim that in the absence of a default the
claim must fail. He argues that an interpretation that a mortgagee could be prevented from
taking possession when there was a default or arrears, but could not be so prevented if
256
there were neither default nor arrears is absurd. Parliament could not have intended so
foolish a result.

Held per Scarman LJ:

1. Three courses are open to the court. The first is to treat the section as having a “casus
omissus” which only parliament can fill. The second is to treat the section as excluding
the common law right to possession from mortgages of dwelling houses. The third is to
treat the section as giving the court a discretion to delay making an order in all cases
where, upon whatever ground, a mortgagee is seeking possession of a mortgaged
dwelling house.
2. Judicial legislation is not an option open to an English judge. Our courts are not
required, as are for instance, Swiss courts, to declare and insert into legislation rules
which the judge would have put there, had he been the legislator.
3. But our courts do have the duty of giving effect to the intention of parliament, if it be
possible, even though the process requires a strained construction of the language used
or the insertion of some words in order to do so [Luke v IRC]. The line between
judicial legislation, which our law does not permit, and judicial interpretation in a way
best designed to give effect to the intention of parliament is not an easy one to draw.
4. Suffice it to say that before our courts can imply words into a statute, the statutory
intention must be plain and the insertion not too big, or too much at variance with the
language in fact used by the legislature.
5. The courts will strain against having to take the first of the three courses mentioned
above; that is, to say leaving unfilled the “casus omissus”.
6. In this case, is there an acceptable reading which would enable us to give effect to
parliament’s intention within the principles herein stated.

Johnson v. Moreton [1980] AC 37 (Cross 96);

Najat Metal Enterprise Ltd v. Hanson [82-83] GLR 664 (Buta 35 & 62);

Najat Metal Enterprises Limited. v. Hanson And Another [1982-83] Glr 81-86
The only issue is whether the Najat Company which was confiscated is the same as the
Najat Metal Enterprises Ltd. The defendants caused a search to be made at the Registrar-
General's Department and the result shows that there was no Najat Company, the nearest
to that name is the plaintiff-company. There is no other company registered in the country
whose name is even similar to the name "Najat Company" except the plaintiff.
Held:
1. The test which was applied in Davies v. Elsby Brothers Ltd.is applicable to this case.
Devlin L.J. said:
2. "In English law as a general principle the question is not what the writer of the
document intended or meant but what a reasonable man reading the document would
understand it to mean; and that, I think, is the test which ought to be applied as a
general rule in cases of misnomer - which may embrace a number of other situations
apart from misnomer on a writ, for example, mistake as to identity in the making of a
contract. I think that the test must be: how would a reasonable person receiving the

257
 document take it? If, in all the circumstances of the case and looking at the document
as a whole, he would say to himself `
3. Of course it must mean me, but they have got my name wrong' then there is a case of
mere misnomer. If, on the other hand, he would say: `I cannot tell from the document
itself whether they mean me or not and I shall have to make inquiries,' there it seems
to me that one is getting beyond the realm of misnomer."
4. It was only as a result of this case that it became necessary to make the search at the
Registrar-General's Department. I am satisfied that the name Najat Company as
appearing in exhibit 2 can only be referable to the plaintiff and no other company.
Any other interpretation would not give effect to the expressed intention of the maker
of the document.

Sasu v. Amua-Sekyi

258
Substitution of Words

Sutherland Publishing Company Ltd v Caxton [1938] Ch 174

Cross: 96-97

Federal Steam Navigation Co Ltd v. Department of Trade & Industry [1974] 2

AllER 97
House of Lords: 3:2 decision.
A British ship on the high seas discharged a mixture of oil and water into the sea in an
area that was a prohibited sea area under the Oil in Navigable waters Act 1955.The owner
of the ship and the master were both prosecuted and convicted of the offence under s(1) of
the 1955 Act. The section provided that “the owner or master should be guilty of the
offence”. They therefore appealed on grounds they could not both be charged with and
convicted of the offence. The respondents argued that the “or” should be read to mean
“and” and therefore both owner and master were liable, but the appellants contented that
the words of the statute were perfectly plain and there was no sufficient reason for putting
other words in their place.

Held:
Per Lord Reid in dissenting view
1. There are many cases where an ordinary English word or phrase is capable of having
more than one meaning, either in ordinary or technical usage. Then, on well recognized
principles of construction it is right, in some circumstances, to reject the more natural
meaning and adopt a secondary meaning of that word or phrase
2. But that would not help the respondents. ‘or’ can never mean ‘and’. The dictionaries
have been searched in vain for any trace of any usage by which ‘or’ has a conjunctive
meaning. It is true that in some authorities it has been stated that ‘or’ can be held or
construed to mean ‘and’. In my judgment that is quite wrong.
3. There is, however, another principle of construction. In very limited classes of
circumstances, it has been held proper to strike out a word from a statute or other
writing and to substitute one or more other words for the word struck out. That is
something much more drastic than giving a secondary meaning to a word as a matter of
construction.
4. Cases where it has properly been held that a word can be struck out of a deed or statute
and another substituted be grouped under three heads:
a. Where without such substitution the provision is unintelligible or absurd or
totally unreasonable;
b. Where it is unworkable ; and
c. Where it is totally irreconcilable with the plain intention shown by the rest of the
deed or statute.
5. I do not say that in all such cases it is proper to strike out a word and substitute another.
What I do say is that I cannot discover or recall any case outside these three classes
where such substitution would be permissible.

Per Lord Wilberforce

259
6. To say that what we have to decide is whether ‘or’ is conjunctive or disjunctive
or ,putting it more bluntly, whether ‘or’ means ‘and’ appears to me, with respect, to be
a dangerous simplification.
7. It is the meaning of the phrase as a whole that concerns us
8. In logic there is no rule which requires that ‘or’ should carry an exclusive force.
Whether it does so depends on the context. So one must ask what, in a legal context, is
the meaning of an assertion that ‘A or B’ is to be guilty of an offence?
9. The law is supposed to be certain: the subject is entitled, and presumably bound , to
know what laws, particularly what criminal laws apply to him. To say that a law which
fails to satisfy these demands is void for uncertainty , is certainly a last resort, but if
that conclusion is to be avoided, some intelligible meaning must be found by supplying
or substituting, words within the limits of what courts may legitimately do.
10.Ton substitute ‘and’ for ‘or’ is a strong and exceptional interference with a legislative
text, and in a penal statute one must be even more convinced of its necessity. It is
surgery rather than therapeutics.
11.It is pointed out that the combination ‘owner or master’ appears in other places in the
Act and its is said, first, that it must bear the same meaning throughout and, secondly,
that in some places at least, it must carry the normal alternative, exclusionary sense.
The short answer to this is that we are not construing ‘or’ or even ‘owner or master’,
but the whole phrase in which these words appear.
12.Whether the words bear the same, or different meaning in other phrase-contexts, can
only be decided by an analysis of the latter. For may part some of these contexts
require ‘or’ to be read as ‘and’ just as firmly as does s1.
Per Lord Salmon
13.There is certainly no doubt that generally it is assumed that ‘ot’ is intended to be used
disjunctively and the word ‘and’ conjunctively. Nevertheless it is equally well settled
that if so to construe those words leads to an intelligible or absurd result, the courts will
read the word ‘or’ conjunctively and ‘and’ disjunctively as the case may be; or to put
it another way, substitute the one word for the other.
14.This principle has been applied time and time again even in penal statutes: se ex. R v
Oakes [1959] 2 AllER 92.
15.It would be repugnant to our law that the question whether A or B is guilty of an
offence should depend on the whim of the prosecutor.
16.It is only very rarely that words can be read into a statute, and then only if it is
necessary to do so for the purpose of making the statute comply with the obvious
intention of parliament.

Ribeiro v. Ribeiro [89-90] 1 GLR 109 SC

It is provided by the Matrimonial Causes Act, 1971 (Act 367), ss 20 (1), 26 (1) and 28 (1)
and (2) that:

"20.(1) The court may order either party to the marriage to pay to the other party such
sum of money or convey to the other party such movable or immovable property as
settlement of property rights or in lieu thereof or as part of financial provision as the court
thinks just and equitable."

260
While proceedings were pending in the High Court to determine what provision, if any,
should be made for the wife, the husband purported to convey the house on Ring Road to
one of his concubines (his new wife) by whom he had four children. The High Court
found the conveyance to have been made with intent to defeat the provision that might be
made for the wife and rescinded it. It awarded the wife ¢150,000 and ordered that the
property be conveyed to her as part of financial provision.
On appeal by husband. He now appears to have accepted the award of ¢150,000 made to
the wife and seeks to challenge only the order vesting the Ring Road property in her. The
building which the High Court ordered to be conveyed to the petitioner is house No C
153/5, Ring Road, Accra. It has been called Haulage House because the Ghana Road
Haulage Association have offices there.
These questions arise, namely:
(a) whether the disposition was made with intent to defeat the, provision that might be
made for the wife;
(b) if it was, whether the trial judge had power to rescind it; and
(c) whether he had power to vest the property in the wife.
The crucial matters for decision are: (a) whether the judge's powers admit of any arbitrary
settlement of property upon a spouse who has no vestige of a title to it, purely on the basis
that the court thinks it "just and equitable"

Held:
Judgment of Amua-Sekyi Jsc
1. That not only is there power to vest immovable property as settlement of property
rights, or in lieu thereof, but also as part of financial provision.
2. The question may be asked, "why choose the Haulage House?"
3. My answer is that having a discretion to exercise, it was for the trial judge to
exercise it in the best way he could. On Review per Adade JSC
4. Judgment of Adade JSC: I agree that the appeal should be dismissed.
5. Judgment of Ofori-Boateng J.A.: I also agree.
6. Judgment of Francois Jsc
7. How did the question of `substantial financial contribution' come in? ... It was not a
case of a wife-petitioner wanting to have a share in the properties of her husband,
after divorce, in which case she would be compelled to establish that she made
`substantial financial contribution' towards their acquisition."
8. The question ultimately put by the Court of Appeal relating to the correctness of the
High Court's decision in awarding Haulage House to the wife, can admit of only
one answer, an emphatic No!
9. Judgment Of Wuaku Jsc
10.I understand section 20 (1) of Act 367 to mean that the court may order either party
to the marriage (after a decree for divorce) to pay as settlement such sum of money
as the court thinks just and equitable as financial provision. And, if a party has no
such sum of money, then the court may order a party to convey movable or
immovable property as a charge for the financial provision.
11.The court may also, if the party has funds but not sufficient to meet the financial
provision, in lieu thereof, order the party to convey movable or immovable property
that will be charged with for the financial provision. The practice is to order a lump
261
 sum of money to be paid especially where the husband (as in the present case) has
sufficient assets out of which a lump sum can be paid.
12.The wife will then be able to invest it and use the income to live on or buy her own
house: see Watchtel v Watchtel (supra).
13.In my opinion it would be wrong to construe section 20 (1) to mean that the court
may order either party to the marriage to convey movable or immovable property to
the other party so as to give title to the beneficiary independent of financial
provision. The rule of construction to be applied to section 20 (1) in my view is the
cardinal rule that words are to be construed in their natural and grammatical sense.
The word "or" in the section must be read as disjunctive and not as "and." In In Re
Diplock; Wintle v Diplock [1941] Ch 253 at 260-261, CA "or" was similarly used
and Sir Wilfred Greene MR had this to say:
14."The word 'or' is prima facie, and in the absence of some restraining context, to be
read as disjunctive, and if a testator wishes to give his trustees a discretion to apply
his property either to charitable or benevolent objects, I do not myself know what
word in English language he can more suitably use than the word 'or."'
15.Section 20 (1) begins with order for payment of money followed by other
provisions enumerated leading to a common result or intended as common remedy,
to wit, financial provision. The rule of ejusdem generis must apply and that it is
payment of money that is primarily contemplated under the section. Section 20 (1)
must be read in conjunction with section 43, the interpretation clause which defines
financial provision.
16.And the words, "as the court thinks just and equitable" must be similarly construed.
It does not give the court general power to make any order whenever it thinks right
so to do. A subsection of the Companies Act, 1962 which provides for winding up,
provided that the court may make an order whenever it thinks it just and equitable.
17.Commenting upon those words, Lord Macnaghten said in Thames and Mersey
Marine Insurance Co Ltd v Hamilton, Freser & Co (1887) 12 App Cas 484 at 502
HL:
18.". . . those general words have always been held to be restricted to cases ejusdem
generis with those previously mentioned and not to give the court a general power
to make an order whenever it thinks right to do so":
19.The wife is not claiming any beneficial interest in the matrimonial home, but
claiming properties which on the admitted facts the husband is the sole legal owner
of. Accordingly, before the Haulage House could be conveyed to her, she must
prove substantial financial contribution or title, an issue which I will come to later
20.It would be different if the wife claims an interest in the property and was able to
establish her title. Then section 21 (1) of Act 367 will come into play. This is what
section 21 (1) says:
21."(1) When a decree of divorce or nullity is granted, if the court is satisfied that
either party to the marriage holds title to movable or immovable property part or all
of which rightfully belongs to the other the court shall order transfer or conveyance
of the interest to the party entitled to it upon such terms as the court thinks just and
equitable."
22.This section shows clearly that the court cannot under section 20 (1) order a party to
convey title. To do so the party must establish title to the part or all the property.
262
 To repeat myself, in order that the Haulage House shall be transferred to the wife
absolutely she must prove title or substantial financial contribution; this she failed
to do. The order for transfer or to convey to her the Haulage House was made
without jurisdiction.

Application to SC for Review:

Adade JSC

1. In this application for review, counsel for the applicant, apart from arguing the
earlier issues above, raises two new matters of interest on which I shall seek to
comment later in this opinion. These are:

(a) that the court cannot order a transfer of a house "as part of financial
provision" (section 20 (1) without first ascertaining the "quantum of the
actual amount of the [financial] provision", and the market value of the house
intended to form part of this provision, and
(b) Under our section 20 (1) the claim which goes to court for financial provision
is one for money. The court decides to give the money; but the section gives
the court a discretion to make the award wholly in money, or partly in money
and partly in non-money (ie money value) viz "such movable or immovable
property ... as the court thinks just and equitable."
2. Further, in place of, or in addition to the house, the High Court may give movable
property too, eg one of, say, the husband's four cars. Section 20 (1) gives the court
power to do this. In such a situation, if the wife should remarry, could the husband
ask for the return of the car or its value under section 28 of Act 367? I do not see
that any court will make such an order.
3. Incidentally, although section 20 (1) of Act 367 speaks of the conveyance of such
"movable or immovable property ... as part of financial provision", I believe that in
appropriate circumstances, a [p.142] transfer of "movable and immovable property"
will not be illegal, eg a house and a piano and a car; or a house together with all the
furniture therein contained. It seems the intention in section 20 (1) was not to limit
the court to one or the other only. It is a case where the "or' should properly be read
as "and/or."

Republic v. Yebbi & Avalifo [2000] SCGLR 149

Constable Yebbi and Cpl. Avalifo were arraigned before the Regional Tribunal on charges
of conspiracy to steal and stealing ¢100,000,000.00 contrary to section 23(1) and 124(1)
respectively of the Criminal Code 1960 (Act 29). The money was said to belong to the
NNDC), a political party registered under the Political Parties Registration Law 1992,
(PNDCL 281). The trial Regional Tribunal referred the following issues to this court
under Article 130(2) of the 1992 Constitution:
i. Whether on a true and proper interpretation of Article 143(1) Parliament had power to
provide that a Regional Tribunal had jurisdiction in all criminal matters.
ii. Whether section 24(1) of the Court's Act 1993 (Act 459) is inconsistent with the said
Article 143(1) of the 1992 Constitution and to the extent of such inconsistency void;
263
iii. Whether or not the stealing of monies belonging to a political party is a crime against
the state or public interest.

Held per Acquah JSC

2. Article 143(1) empowers Regional Tribunals to try "such offences against the state and
the public interest" as Parliament may by law prescribe. Is the word 'and' coming in
between 'state' and 'public interest' in the provision, to be read as disjunctive or
conjunctive? In other words does it mean that any such offence should be against both
the state and the public interest;- or is it enough if the offence is either against the state
or against public interest?
3. Generally the word 'and' is conjunctive and 'or' disjunctive. But to carry out the
intention of the legislature it may be necessary to read 'and' in place of the disjunction
'or' and vice versa: Anisminic Ltd. vrs. Foreign Compensation Commission
4. Thus in R. vrs. Newbound, Winn J held that the expression "local and public
authorities in section 4(2) of the Prevention of Corruption Act 1961 did not "mean
authorities which are both local and public …[but] authorities which are either local or
public.
5. In the instant case, we are not dealing with an ordinary Act of parliament but a national
Constitution. And unless there are compelling reasons for interpreting the word 'and' in
Article 143(1) as being only conjunctive, it would be more desirable to interpret it
liberally to encompass both conjunctive and disjunctive. Thus Regional Tribunals can
try such offences against both the state and the public interest, or against the state or
against the public interest. The ‘and’ is therefore to be read as "and/or".
6. It is significant to note that the word used in defining public interest is 'includes' and
not ‘means’.
The word 'means' when used in defining a word usually implies that the meaning of the
word is restricted to the scope indicated in the definition section. On the other hand, the
word 'includes' is often used "in order to enlarge the meaning of word or phrases
occurring in the body of the statute; and when it is so used these words or phrase must
be considered as comprehending not only such things which the interpretation clause
declares that they shall include". Per Lord Watson in Dilworth vrs. Commissioner of
Stamps
7. In Robinson vrs. Barton-Eccles Local Board (1883) 8 App Cas 798 it was held that
the word in respect of which 'includes' is used bears both its extended statutory
meaning and its ordinary, popular and natural sense whenever that would be
applicable.
8. It follows therefore that the word 'includes' used in defining public interest in Article
295(1) does not restrict the meaning of public interest to the scope indicated in the
definition
9. Article 55(1) of the 1992 Constitution provides that "Every political party shall have a
national character, and membership shall not be based on ethnic, religious, regional or
other sectional divisions".
10.But in the instant case, the alleged theft of the money is not in the interest of only the
members of the NDC, but also the entire Ghanaian public who are by law entitled to
inspect and take copies of the audited accounts of the NDC. It cannot therefore be
264
 denied that under our law governing the establishment and running of political parties,
the theft of money belonging to a political party is an offence against the public
interest.
11.Accordingly we answer the issues posed for our determination as follows:
i. On a true and proper interpretation of Article 143(1), Parliament had NO power to
provide that a Regional Tribunal had jurisdiction in all criminal matters.
ii. Accordingly that part of section 24(1), which reads that "a Regional Tribunal shall
have concurrent original jurisdiction with the High Court in all criminal matters"
is inconsistent with the said Article 143(1) of the 1992 Constitution and to the
extent of such inconsistency, void.
The remaining part of section 24(1), (a)(b)(c) are consistent with Article 143(1).
iii. The stealing of monies belonging to a political party is a crime against public
interest.

General Cold Industry Limited. v. Standard Bank Ghana Limited [1982-83] GLR
360-384
The plaintiffs who are a limited liability company are called "General Cold Industry Ltd."
The name is very important and its very words are crucial to the determination of the issue
which arises in this case. By this amendment the name of a company "General Cold Co.,
Ltd." was added to the schedule and thus the bank accounts, if any, of the said company
were frozen.

Held: per Taylor J [as he then was]

1. The submission of Counsel for the Attorney-General as I understand it is that I must
substitute for "Company" the word "Industry" and then the enactment will cover the
plaintiffs.
2. If I put this kind of construction on the words, I would be supposing that the
legislature has made a mistake. Counsel, however, retorted that it was not the mistake
of the legislature but that of the draftsman.
3. Accepting that it is the mistake not of the legislature but of the draftsman, what is the
legal consequence? Grove J. in Richards v. McBride (1881) faced with this kind of
presumption that the legislature or the draftsman may have made a mistake said:
4. ". . . No one could put such a construction on the words unless by supposing they
were a mistake. But we cannot assume a mistake in an Act of Parliament. If we did
so, we should render many Acts uncertain, by putting different constructions on them
according to our individual conjectures. The draftsman of this Act may have made a
mistake. If so, the remedy is for the legislature to amend it.
5. But we must construe Acts of Parliament as they are, without regard to consequences,
except in those cases where the words used are so ambiguous that they may be
[p.380] construed in two senses, and even then we must not regard what happened in
Parliament, but look to what is within the four corners of the Act . . ."
6. The legislature with all the State apparatus at its disposal is alleged to have made a
mistake or its draftsman has made a mistake. What prevents it from correcting its
own errors?

265
7. The law is that if the legislature has made a mistake where there is no ambiguity in
the expression used, the remedy is in an amending Act. The legislature ought to know
that that is the law and I must keep that in mind when construing these enactments.
8. As Lord Blackburn said in the Privy Council in Young & Co. v. Royal Leamington
Spa Corporation (1883): "we ought in general, in construing an Act of
Parliament, to assume that the legislature knows the existing state of the law."
9. The proposition that if there is in effect a mistake then legally the remedy lies in an
amending Act finds support in the famous view of Lord Simonds in Magor & St.
Mellons R.D.C. v. Newport Corporation [1951], H.L.
10. It would be recalled in that case that Lord Denning at the Court of Appeal in [1950]
had said of the duty of the court interpreting statutes:
11. "We sit here to find out 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 than by
opening it up to destructive analysis."
12. Lord Simonds criticised this dictum very vehemently and ended up by observing, "If
a gap is disclosed the remedy lies in an amending Act."
13. What Lord Simonds was driving at is that it was not competent to read words into an
Act of Parliament without reason, and the reason must itself be found in the Act
itself.
14. This view is consistent with authority and in Vickers, Sons & Maxim Ltd. v. Evans
[1910], the Lord Chancellor, Lord Loreburn expressed the same sentiments when he
warned,
15. "... we are not entitled to read words into an Act of Parliament unless clear reason for
it is to be found within the four corners of the Act itself."
16. I have not been shown any reason contained in L.I. 1216 or AFRCD 31 why I must
substitute for "Company" the word "Industry."
17. If I did so, I will not be heeding the warning given by Lord Loreburn over 70 years
ago. I will be legislating and not interpreting.
18. I think I must not also lose sight of the fact that this is a penal legislation.
19. It seeks to confiscate the assets of citizens. I will not subscribe to the view that it
must be construed strictly because I think the modern tendency is to construe all
legislation amply and beneficially for the purpose of giving effect to the intention of
the legislature as is revealed in the enactment.
20. Nevertheless, I think, for penal legislation, there is a rule of long standing which was
succinctly expressed by Wright J. in London County Council v. Aylesbury Dairy
Company Ltd. [1898] 1 Q.B. 106 . He there said:
21. "I have certainly always understood the rule to be that where there is an enactment
which may entail penal consequences, you ought not to do violence to its language in
order to bring people within it, but ought rather to take care that no one is brought
within it who is not brought within it in express language."
22. If there is in point of fact no ambiguity then no question of construction arises and the
interpreter merely construes the words in their ordinary meaning following the rule
enunciated almost 400 years ago by the Barons of the Exchequer in Heydon's Case
(1584) 3 Co. Rep. 79.

266
Ignoring Statutory Words

McMonagle v Westminster City Council [1990] 1 AllER 993

The law provided that “In this Schedule “sex encounter establishment” means-(a)
premises at which performances which are not unlawful are given by one or more
persons present..” the prosecution set out to prove that the appellant used the relevant
premises for which there was no licence, as a sex encounter establishment and the sole
issue was whether the prosecution had proved that the entertainment was “not unlawful”
The appellant argued that the activity described would be unlawful it was immoral.
Held per Lord Bridge
1. It seems to me manifestly absurd to suppose that the intention of the legislation was to
subject to licensing control only those establishments conducted in the least offensive
way and to leave those which pander more outrageously to the taste of the voyeur
immune from any control or legal restraint save such as might be imposed by the
possibility of conviction by a jury of a public indecency offence.
2. For these reasons I entertain no doubt in my mind that we should be giving effect to the
true intention of the legislature if we could avoid this absurdity by treating the phrase
‘which is not unlawful’ where it appears as mere surplusage.
3. The difficult question is whether in the circumstances the course I would choose, if it
is available, is a legitimate judicial exercise in construction or whether it must be left to
the laborious process of amending legislation to make sense of the statute.
4. The presumption that every word in a statute must be given some effective meaning is
a strong one, but the courts have on occasion been driven to disregard particular words
or phrases when, by giving effect to them, the operation of the statute would be
rendered insensible, absurd or ineffective to achieve its evident purpose.
5. The principle is stated by Brett J in Stone v Yeovil Corp [1876] 1CPD 691 at 701
where he said:
‘It is a canon of construction that, if it be possible, effect must be given to every word
of an Act of parliament or other document; but that if there be a word or a phrase
therein to which no sensible meaning can be given, it must be eliminated.’

6. Lord Hobhouse held in Salmon v Duncombe [1886] 11 App Cas 627 that “It is ,
however, a very serious matter to hold that when the main object of a statute is clear, it
shall be reduced to a nullity by the draftsman’s unskilfulness or ignorance of the law. It
may be necessary for a court of justice to come that conclusion, but their Lordships
hold that nothing can justify it except necessity or the absolute intractability of the
language used.’
7. So here, I am satisfied that the main object of the section is to require any premises, not
falling within the proviso, where live nude entertainment is provided to be licensed and
that in order to avoid frustration of that object, it is both necessary and legitimate that
the words ‘which are not unlawful’ should be treated as surplusage and as having been
introduced by incompetent draftsmanship .

267
R v Registrar General, ex parte Smith [1990] 2 AllER 170
It was provided by law that “Subject to subsections… the Registrar General shall on an
application made in the prescribed manner by an adopted person a record of whose birth is
kept by the Registrar General and who has attained the age of 18 years supply to that
person …..such information as is necessary to enable that person to obtain a certified copy
of the record of his birth.”
The applicant in a mental hospital and with a record of having attacked his adopted
mother, applied and the RG denied him the information on grounds of public policy for
fear that he could attack his own mother for giving him for adoption. Appeal on grounds
that the refusal by the RG was illegal.

Held per Watkins LJ

1. In our firm view, having regard to the potential menace to the safety in the future of
his natural mother and possibly others related to him, a public policy consideration
positively demands that we refuse to grant the relief sought by the applicant.
2. It is, we think, beyond belief that parliament contemplated that an adopted child’s
right to obtain a birth certificate should be absolute come what may. The public at
large, knowing the essentials of the facts, we consider would, we have no doubt, be
outraged if that were so.

Cross: 98-99

Criticisms of the Power of the Courts to Correct Errors by Construction

The power of the court to rectify statutory language has often engendered lots of criticisms
in practice-especially from literalists who contend that the exercise of the power amounted
to a clear usurpation of the functions of the legislature by the courts. Specifically, these
critics have maintained that it amounted to judicial legislation for a judge to add to, alter,
ignore statutory language etc under the guise of interpretation. In the view of some of
these critics or literalists, even if it were detected that there is a drafting error, gap or
oversight in legislation, the proper remedy did not lie in the court amending the statute but
in referring the matter to parliament.

This criticism is evidently grounded in the traditional understanding of the doctrines of

parliamentary sovereignty and separation of powers between the legislature and the courts.
For these critics, the authority to enact legislation in a modern constitutional democracy is
vested exclusively in the legislature and the duty of the court is simply to give effect to the
legislative will as expressed and written in the text.

The range of possible ordinary meaning that can be attributed to the text for them, creates
the limits within which interpretation must occur with the consequence that when the
courts ignore these limits, they exceed their interpretive role, and effectively usurp the
legislative function. (Cross 103).

In response to these criticisms, it has first to be noted that the limited power of
rectification given to the judge under this basic rule of the MOPA has been largely
268
necessitated by the inevitable imperfections of the modern law making process-especially
the drafting of legislation.

Sasu v Amua-Sekyi.

As a result of these imperfections, statutes often contain errors, gaps, etc, which the courts
must confront in the adjudication of cases in order to give effect to the legislative purpose
and in order to ensure the effectivity of the law.

Needless to add, the literalist argument that it is for parliament to pass corrective
legislation to rectify any error or flaws in the statute in all cases, even if it is impeccable as
constitutional theory, breaks down in practice because parliament is often too busy to
respond quickly enough when the law needs to be rectified. And it is in any case, also
impracticable for the courts to refer legislation to parliament any time they run into flaws
in the course of deciding cases.

Undoubtedly then, some limited amount of judicial legislation appears inevitable in

modern society.
More importantly, it is to be emphasized that, as previously noted, the object of the power
of rectification of statutory language given to the courts under this basic rule is, contrary
to the position of the critics, not to create new rules or legislation where parliament has
chosen none or has legislated otherwise but rather, to rectify defective statutory language
or provisions in order to bring them in line with the legislative purpose. In other words, it
is to give effect to the actual legislative purpose underlying the statutory provisions where
the plain or ordinary construction of the language of the statute leads to manifest absurdity
or construction contrary to the legislative purpose- by expressing what the legislature itself
had said or intended to achieve by the statutory provision more clearly or more
comprehensively.

In effect, the power of rectification is in practice, ultimately limited by the apparent

legislative purpose and has consequently not been evolved to amend legislation in order to
say what the courts think should have been the law or thinks the legislature would have
liked to say, if it had given the matter more thought.

See Driedger p 103.

Western Bank Ltd v. Schindler

Per Lord Scarman wherein he noted: “judicial legislation is not an option open to an
English judge… but our courts do have a duty of giving effect to the intention of
parliament, if it be possible, even though the process requires a strained construction of
the language used or the insertion of words in order to do so…the line between judicial
legislation which our law does not permit, and judicial interpretation in a way best
designed to give effect to the intention of parliament is not an easy one to draw. Suffice it
to say, that before our courts can imply words into a statute the statutory intention must be
plain…”
Cf
269
GTP v. Ankujeah

Other Limitations under the Power of Rectification

(1) The statutory purpose must be plain
(2) There must be a traceable or demonstrable error, gap or flaw in a statutory
provision
(3) Without rectification the statutory provision must be manifestly absurd or
otherwise incapable of effecting legislative purpose.
(4) There must be an obvious correction:

Besides, and in the light of the proper object of the exercise of the power of rectification
outlined above, and to ensure that the power is not abused, the authorities have insisted
that even under the MOPA, the power of rectification can be properly invoked only when
a number of important conditions have been satisfied. In other words, these conditions
define the proper limits of the exercise of the power of rectification and properly
employed reduce the risk of unwanted judicial legislation. Predictably, the authorities
have not spoken with one voice as to these limits. However, it is possible to glean a few
generally accepted limits as below:

The statutory purpose must be plain

the first and perhaps the most basic condition for the proper exercise of the power of
rectification of statutory language under the MOPA is that the intention of the legislature
and the purpose of the statute must be clear and plain. In other words, the purpose must be
easily and plainly ascertained from the provisions of the statute considered as a whole in
the relevant context or from other legitimate guides to the legislative intention or purpose.

Western Bank Ltd v. Schindler

[Per Lord Scarman].

Sutherland Publishing Co Ltd v. Caxton Publishing Co Ltd

[Per Mackinnon LJ].

Jones v. Wrothman Park Ltd [1970] AC 74

Freeholders of an estate on which stood about houses let them to tenants for 87 years at a
yearly rent, the tenant occupiers having paid for the building of their homes. Then
subsequently and unknown to the tenants, the freeholders granted concurrent leases to the
respondents, with which it had connections, of all the houses for 300 years, subject to the
existing the leases and at a peppercorn rent until the expiry of the tenants’ leases, and at a
rack rent thereafter. It was not a sham but real but it was device to discourage the tenants
from acquiring the freehold of their homes by exercising their rights under the Leasehold
Reform Act 1967 and the effect was to increase the price at which the tenants could
acquire the homes. The law provided that: ‘the price payable…on a conveyance…shall be
the amount which at the relevant time the house and premises, if sold in the open market
by a willing seller, might be expected to realize on the ..”

270
But it was the policy of the legislature under the Act of 1967 that the tenant should obtain
the freehold of his home at the ordinary market price and not at a price which had been
inflated by transaction such as the present. But clear words had not been provided in the
statute to preclude such transactions and accordingly it contains a gap.

Held per Lord Diplock

1. My Lords, I am not reluctant to adopt the a purposive construction where to apply the
literal meaning of the of the legislative language used would lead to results which
would clearly defeat the purposes of the Act.
2. But in doing so the task on which a court of justice is engaged remains one of
construction: even where this involves reading into the Act words which are not
expressly included in it.
3. But three conditions must be fulfilled in order to justify this course:
a. First, it should be possible to determine from a consideration of the provisions of
the Act read as a whole precisely what the mischief was that it was the purpose
of the Act to remedy;
b. Secondly, it should be apparent that the draftsman and Parliament had by
inadvertence overlooked , and so omitted t deal with, an eventuality that required
to be dealt with if the purpose of the Act was to be achieved; and
c. Thirdly, it is possible to state with certainty what were the additional words that
would have been inserted by the draftsman and approved by parliament had their
attention been drawn to the omission before the bill passed into law.
4. Unless this third condition is fulfilled any attempt by a court of justice to repair the
omission in the Act cannot be justified as an exercise of its jurisdiction to determine
what is the meaning of a written law which Parliament has passed.
5. Such an attempt crosses the boundary between construction and legislation. It becomes
usurpation of a function which under the constitution of this country is vested in the
legislature to the exclusion of the courts.
6. My Lords in the instant case I do not find it possible to state with any certainty what
words would have been inserted in the Act to fill the gap. What parliament would have
done is matter of speculation.

Indeed, As Driedger notes, in most cases, a mistake or gap could be said to exist in
legislation only in relation to some specific purpose identified by the court. It is also
important to bear in mind that the intention or purpose here, is the actual or apparent
intention or purpose of the legislature, not a “hypothetical reconstruction of the intentions
of the drafter or legislature”. (Cross 103).

There must be a traceable or demonstrable error, gap or flaw in a statutory

provision.
In other words, it must also be established that the draftsman wrongly expressed the
legislative intent or that the draftsman and parliament have by inadvertence overlooked
and so omitted to deal with an eventuality which requires to be dealt with if the purpose of
the statute was to be achieved.
Cross @ 99.
271
Jones v. Wrothman Park Estates Ltd.
In effect the courts must not rectify the statutory language if it is not clear that there is
such an error or flaw in the statute- or where such an error or flaw is Not Manifest.

Adusah v A-G [1981] GLR 228 (Buta 59)

The appellant in this case invoked the jurisdiction of this court conferred by the provisions
of article 198 (2) of the Constitution, 1979, appealing against the adverse findings of the
committee established under the Committee of Inquiry (Recent Disturbances in the Police
Force) Instrument, 1979 (E.I. 38). His complaint was against the decision recommending
that the appellant should be prosecuted in the courts for the offence of corruption of a
public officer. Counsel for the respondent raised the question of jurisdiction and argued
that the expression "said committee" should be dealt with in relation to section 3 (2) (a) of
A.F.R.C.D. 23. The report was a judicial act. Section 3 (2) of the Decree under discussion
states:

"(2) The committees of inquiry referred to in subsection (1) of this section are —
(a) all committees of inquiry established by the Armed Forces Revolutionary Council;
(b) all committees of inquiry established at any time whose reports were submitted by
such committees to the Government of the Armed Forces Revolutionary Council."
Issue was there an error, gap of flaw in the Decree?
Held per Charles Crabbe JSC
1. Section 3 (2) (a) deals with all committees established by the Armed Forces
Revolutionary Council. This definition, by necessary implication, excludes all
committees of inquiry not established by the Armed Forces Revolutionary Council.
This is based on the well known maxim of statutory interpretation, expressio unius est
exclusio alterius. The earlier examples of the application of the maxim can be found in
Hare v. Horton (1833) 110 E.R. 954 and R. v. Caledonian Railway (1850) 16 Q.B.
19.
2. Is there, then, an overlapping in the definitions? The answer is Yes! Yes, because
there would appear to be two provisions governing the same matter. The two
definitions are in the same section. And are they in conflict? The definition in
paragraph (a) is exclusive. The definition in paragraph (b) is inclusive.
3. In Salmon v. Duncombe the Privy Council ignored the last words of a section and
strained the grammar of the remainder of the section in order to achieve harmony. But
the committee could only do so because a literal reading of the section would reduce to
a nullity the main object of the statute as stated in the preamble and the title.
Parliament could not be taken to have gone through a useless exercise. But then that is
not the case here.
4. But more importantly, Richards v. McBride is authority for the proposition that it is
not for the courts to assume a mistake and then seek to correct the assumed mistake.
5. And in R. v. Wimbledon Justices; Ex parte Derwent, Lord Goddard C.J. said:
"although in construing an Act of Parliament the court must always try to give effect to
the intention of the Act and must look not only at the remedy provided but also at the
mischief aimed at, it cannot add words to a statute or read words into it which are not
there . . .”

272
6. The authorities are numerous. They are unanimous in this that "Judges may not wrest
the language of Parliament even to avoid an obvious mischief."
7. And in Magor & St. Mellons R.D.C. v. Newport Corporation, the House of Lords
held that a court has no power to fill in gaps disclosed in an Act. To do so would be to
usurp the functions of the legislature.
8. All these are in conformity with the earlier case of Gwynne v. Burnell, H.L. where
Lord Brougham said: "If we depart from the plain and obvious meaning on account of
such views we in truth do not construe the Act but alter it. We add words to it, or vary
the words in which its provisions are couched. We supply a defect which the
Legislature could easily have supplied, and are making the law, not interpreting it. This
becomes peculiarly improper in dealing with a modern statute, because the extreme
conciseness of the ancient statutes was the only ground for the sort of legislative
interpretation frequently put upon their words by the Judges. The prolixity of modern
statutes, so very remarkable of late, affords no ground to justify such a sort of
interpretation."
9. The moral of all these authorities, if a moral it can be called, is that where the meaning
is plain, then the consequences should be disregarded by the courts.

Adams v. Tandoh [1984-86] GLR 561. (Buta 65).

(1) the words of section 218 of the Companies Code, 1963 (Act 179) were precise and
unambiguous. In their ordinary and natural sense the legislature intended to give remedy
to only members and debentureholders and not to an outsider who was not the Registrar of
Companies. It was therefore quite plain that a director or an officer of the company who
was also not a shareholder as well, and consequently did not qualify to be a member of the
company concerned, was not entitled to seek any remedy under the section. In the instant
case, the appellant initiated the action solely on the basis that he was a member of the
company and therefore had to bring himself within the membership of the company by
cogent evidence. It was not enough to aver that he was a member especially as his
membership was challenged.

GTP v. Ankujeah.
1. I therefore think that in the construction of statutes, we need to draw a clear distinction
between cases where a law has clearly and deliberately not provided for any given
situation or set of circumstances. In these cases, alterations or emendations of the
statute either by the addition of or the taking out of words would not be permitted. My
thinking is that it is not the duty of the courts to supply words in order to rectify such
anomalies.
2. And those other cases where an unintended omission results in the situation identified
by the authorities—namely unintelligibility, absurdity, unworkability or
unreasonableness and the like or in the case of an enactment which has been
beneficially construed, a reasonable certainty exists from the context that the omission
was unintentional. I think that in the latter class of cases, alterations or emendations of
the statute either by the addition of or the taking out of words may be allowed.

273
3. My view is that so long as the ordinary meaning of that enactment is plain on the face
and can be ascertained, the best a court can do in the circumstances is to draw attention
to the injustice in the hope that it would be corrected by the lawmakers.

Without rectification the statutory provision must be manifestly absurd or otherwise

incapable of effecting legislative purpose:
it is not enough that the error or flaw in legislation is established. It must in addition be
shown that without the exercise of the power of rectification, that statutory provision
would be absurd etc and therefore incapable of effecting the legislative purpose.

Cross: 99-102.

Federal Steam Navigation Co Ltd v Department of Trade and Industry.

Cases where it has properly been held that a word can be struck out of a deed or statute
and another substituted be grouped under three heads:
a. Where without such substitution the provision is unintelligible or absurd or
totally unreasonable;
b. Where it is unworkable ; and
c. Where it is totally irreconcilable with the plain intention shown by the rest of the
deed or statute.

There must be an obvious correction:

The court would only exercise the power of rectification where there is an obvious
correction to the flaw or error in the statutory provision that would make it conform with
the legislative purpose.

Jones v Wrothman Park Estates Ltd

As Lord Diplock noted in Jones V. Wrothman Park Estates Ltd; it must for
example be possible to state with certainty what additional words would have been
inserted by the draftsman and approved by parliament had its attention been drawn to
the error, flaw etc. s

Sasu v. Amua-Sekyi;

Ex Parte Adjei.

Where there are no such obvious corrections:

The courts have been reluctant to rectify.

R v Northampton Borough Council ex parte Whitelyn Ltd [1986] 85 LGR 249

Mekkaoui v Minister of Internal Affairs [1981] I GLR 664.

The plaintiff, originally a citizen of Lebanon, was in September of 1979, arrested by the
police and kept in cells prior to his deportation on the ground that his naturalisation had
274
been revoked by the AFRC..It is thus in essence a case of an alleged Decree of the
erstwhile AFRC by which the plaintiff with 106 other persons was said to have been
denaturalised. The alleged Decree is the Ghana Nationality (Amendment) Decree, 1979
(A.F.R.C.D. 42). The real substance of the plaintiff's case is that there was no date of
commencement in the Decree signed by the chairman. Both parties agree that when the
chairman signed the Decree, its paragraph 2 was incomplete or blank in that the actual
date of commencement had been left out. The plaintiff therefore maintained that any date
of commencement [p.686] which appeared in the published and gazetted A.F.R.C.D. 42
was inserted after the Constitution, 1979, had come into force and when the AFRC had
ceased to exist

Held:
The sole question is, has he authority to so insert the date, 4 September 1979 the Decree
had been signed.
2) After an Act of Parliament has passed through the legislative process and has received
the assent of the President, no draftsman can then insert words which will receive the
force of law. No draftsman in the history of our law whether under a military regime
or a constitutional regime, has ever laid any claim to any such powers.
3) A court of law, it is well settled, has no authority to supply a casus omissus in an Act
of Parliament. This is no longer open to discussion. But if authority were needed, cite
Magor and St. Mellons Rural District Council v. Newport Corporation [1952] A.C.
189, C.A. and R. v. Wimbledon Justices; Ex parte Derwent [1953] 1 Q.B. 380, D.C.
4) The clerk to Parliament has no authority to make insertions in a bill after the bill had
passed through the third reading stage. Much less could he make an insertion after the
president had given his assent.
5) In construing statutes, there is always a presumption against absurdity. Therefore
statutes must be construed as far as possible to avoid absurdity. Odgers tells us in
Construction of Deeds and Statutes: "The presumption against absurdity, or the leaning
of the Court against a construction which would produce such, is only a branch of the
larger rule that a statute, like a deed, should be construed in a manner to give it validity
rather than invalidity — ut res magis valeat quam pereat."
6) Thus in Shannon Realties Ltd. v. Ville de St. Michel [1924] A.C. 185, P.C. Lord
Shaw observed: "Where the words of a statute are clear they must, of course, be
followed; in their Lordships' opinion, where alternative constructions are equally open,
that alternative is to be chosen which will be consistent with the smooth working of the
system which the statute purports to be regulating; and that alternative is to be rejected
which will introduce uncertainty, friction or confusion into the working of the system."
7) Or in Lord Wensleydale's language in Grey v. Pearson, that alternative should be
rejected which will "lead to some absurdity or some repugnancy or inconsistency . . ."
8) Every enactment is designed to effect a purpose. It may achieve its purpose once and
for all, within a certain time period. Or it may be the kind of law, which is applicable
continuously so long as it is not repealed.
9) The purpose for which a law is made can be gathered from the law itself. A.F.R.C.D.
42 set out to do just one thing: to let the persons named therein "cease to be citizens of
Ghana by naturalisation" with effect from 4 September 1979. The Decree did not set
out to do anything else.
275
10) In order to properly understand a provision in an enactment, it is necessary to read
all the subsections of that provision together.
11) As Abban J. remarked in Asamoah v. The Republic:
"It cannot be over-emphasised that in construing a section of an Act of Parliament, it is
always necessary to explain the meaning of the words by an examination of the purport
and effect of the other sections in the same Act."
12) Then citing Jennings v. Kelly, H.L., he quoted the dictum of Lord Wright:
"But in the present case, not only is the first part of the section deficient in express
definition, but the second part is complementary and necessary in order to ascertain the
full intention of the Legislature. The proper course is to apply the broad general rule of
construction, which is that a section or an enactment must be construed as a whole,
each portion throwing light, if need be, on the rest."
13) At common law unless a contrary intention is expressed in the Act, an Act of
Parliament comes into force from the first day of the session of Parliament in which it
is passed and before an official print is made. This rule is adverted to, by Lord Coke in
his Institutes: see Coke 4 Inst. 25, and was judicially recognised by the House of Lords
in Panter v. Attorney-General (1772) 6 Bro. P.C. 486. The effect of the rule is that an
Act of Parliament binds every subject of the realm even if it is not possible for the
subject to know its terms.
14) Acts of Parliament Act, 1960 (C.A. 7, Section 9 p[rovides thus, "Every Act shall be
published by the Government Printer as soon as may be after the President's assent has
been signified, . . ." The new commencement provision contained in section 11 thereof
is in the following terms:
"11. (1) Except so far as may be otherwise provided in an Act, the Act shall come
into operation at the commencement of the day following the day on which the
President's assent is signified.
(2) A provision in an Act regulating the coming into operation of the Act or any part
thereof shall have effect notwithstanding that the part of the Act containing the
provision has not come into operation."
15) I believe it is now trite law and there is no need to cite any authority to support it,
that in all statutes, the legislature or the lawgiver is presumed to have legislated with
reference to the existing state of the law. I think the decision of Lord Parker C.J. in
Fisher v. Bell [1961] 1 Q.B. 394 is an admirable illustration of this elementary
principle.

The Correction decided on by the court must not be too big or too much at variance with
the language used by the legislature.

Revenue and Penal Statues

Finally, it has to be noted that the courts have traditionally been reluctant to extend the
exercise of their power of rectification to revenue and penal statutes.
Revenue and penal statutes have often been traditionally construed strictly in the sense
that any doubt after the ordinary rules of construction have been applied, goes to the
benefit of the person against whom the penalty is sought or task is imposed. Hence,
276
traditionally, the ordinary meaning of a penal statute would not as a rule be extended on
the ground that there has been a slip or that the matter has been provided for or that the
case is so clearly within the mischief that it must have been intended to be included.

Halsbury 4th Ed Vol 44 Para 910& 912.

Fisher v. Bell [1911] 1 Qb 394

@ 399-400.

Tenant v Smith [1872] LR 4 BC 184.

Reed International Ltd v. IRC [1974] Ch 351

The Finance Act 1989 provides under s. 8 as follows:
’(1) Where any local authority, corporation, company, or body of persons formed …in the
United Kingdom propose to issue any loan capital, they shall, before the issue thereof,
deliver to the commissioners a statement of the amount proposed to be secured by the
issue…’ Now s.8(5) states:
‘In this section the expression ‘loan capital’ means any debenture stock, county stock,
corporation stock, municipal stock, or funded debt, by whatever name known, or any
capital raised by any local authority, corporation, company or body of persons or
established in the United Kingdom….’
The plaintiff., Reed, issued a summons against the IRC, seeking determination on the
question of stamp duty under s. 8 of the Act, whether their liability by a special resolution
of the company was a loan capital within the meaning of the law. The IRC claimed it was
a ‘funded debt’ or ‘capital raised’. Plaintiff claimed it was not ‘capital raised’ since no
new money or money’s worth will come into account of the company.

Held: Pennycuick VC
1. S. 8(5) contains a definition of the expression “loan capital” introduced by the word
“means” so that is a definition in the strict sense, in contradistinction to what is perhaps
more usual today, namely, a provision prefaced by the word “includes.” So as to
comprehend not only what is in truth the subject matter defined but other subject
matter as well.
2. In a taxing statute one must construe words according to ,their natural meaning in their
context. Duty is chargeable on any particular subject matter only if that subject matter
falls within the words of the statute so construed. There is no taxation by analogy or by
the substance of the matter, or anything of that kind.
3. On the other hand if the words admit of more than one meaning then one is entitled to
see which meaning is more likely to correspond with the intention of parliament.
4. “funded debt’ means any debt possessing the nature of capital, bearing interest and of
long or indefinite duration.

Cross justifies the traditional strict construction of revenue and penal statutes on the
ground that in these cases “the courts have the further function of ensuring that citizens
are only deprived of their liberty or their money by reasonably clear worded provision or
at least by provisions which though poorly framed, are susceptible of comparatively easy
rectification”. (Cross 100).
277
The position however appears to be quite different in Ghana today with respect to the
construction of Criminal Statutes on account of the provision of section 4 of the Criminal
Code 1960, ACT 29 which provides that the code shall not be construed strictly but
rather “amply and beneficially for giving effect to the purpose thereof”.

278
Aids to Interpretation of Documents and Statutes
By aids to interpretation here, we refer broadly to all the several rules or guides to the true
intention of the author(s) of a document or the legislature other than the basic rules and
presumptions, which may be employed in determining the meaning, scope and effect of a
document or statute or part thereof. As previously noted, these aids are in practice
employed in conjunction with or as supplement to the basic rules in the interpretation of
documents or statutes.

Specifically then, the aids to interpretation here, will include for example, several rules or
principles regarding the use of various parts of a document or statute (for example recitals,
parcel sections, marginal notes, headings, schedules etc) as guides to the intention of the
author(s); the rules regarding the circumstances in which information or materials from
external sources (e.g. parliamentary debates, commission reports, textbooks etc) can be
used as guides to the intention of the author(s) of a document or legislature; and the
various linguistic canons of construction (for example, the expressio unis rule and the
ejusdem generic rule etc).

In practice, these several aids often prove useful (when employed in conjunction with the
basic rules and presumptions) in:
1. In the detection of ambiguities and absurdities etc
2. In resolving any such ambiguities or absurdities
3. In supporting one preferred interpretive position or another

It is also important to point out right at the outset that the various aids are in practice of
less binding force than the basic rules and in some sense only complement the basic rules.
The several aids in practice also often point in different directions and are largely
incapable in any systematic hierarchy. Hence, they have often been described as mere
guides to intention (servants, not masters) which are in each case, to be weighted and
valued against other aids in order to arrive at a meaning most consistent with the intention
of the author(s) of a document or the legislature.
Cross pp 39, 43), Bennion 2nd Ed pp 377-387, Buta p 77.

And here, one can hardly improve on lord Reid’s remarks on the status of aids in
construction when he noted in:

Maunsell v. Olins [1975] 1 AllER 16

@ 18 as follows:

“the rules of construction are relied on. They are not rules in the ordinary sense of having
some binding force. They are our servants, not our masters. They are aids to construction,
presumptions or pointers. Not infrequently, one rule points in one direction, another in a
different direction. In each case, we must look at all the relevant circumstances and decide
as a matter of judgment what weight to attach to any rule”.

279
In practice, the aids to interpretation are often broadly divided into two categories namely:
(a) internal aids (b) external aids.

The Internal aids are basically the rules or principles that derive from or relate to the use
of the parts of a document itself as an aid to construction and include the linguistic canons
of construction while the external aids are aids other than the internal aids i.e. rules or
principles that derive from or relate to the use of information or materials from sources
outside the DSC itself as an aid to construction.

Internal Aids
The internal aids as already noted, consist of rules relating to the use of the various parts
of a document or statute itself, including the linguistic canons of construction, as aids to
construction.

Our discussion of internal aids to construction here will consequently proceed under three
main sub headings thus:
a) Rules relating to the use of parts of a non-statutory documents as aids to
construction
b) Rules relating to the use of parts of a statute as an aid to construction and;
c) The linguistic canons of construction

The Parts of a Non-Statutory Document as Aids to Construction

As already noted, under the dominant MOPA to interpretation of documents, the whole
context of a document is to be taken into account in its interpretation. Hence, all and every
part of the document (including the recitals, parcels, habendum, marginal notes, headings
etc, if any) will be considered relevant parts of the context for the purpose of the
interpretation of its provisions.
The only difficulty, if at all, is as to the weight to be given to a particular part relative to
the others, especially where they conflict with other parts or the purpose of the author(s).

Orr v. Mitchell [1983] AC 238.

It is to be added that in practice, the courts appear to have developed a number of rules
(sometimes quite confusing) as to the weight to be given to one part of a document
relative to the other parts in interpretation; the extent to which one part of the document
might bear on the interpretation of others; and as to how to resolve conflicts that might
arise between parts of a document in interpretation.

For the sake of convenience, our discussion of the rules of a part of a non-statutory
document as aids to construction (interpretation) will also proceed in two parts:
 Rules relating to the parts of a traditional deed of conveyance as an aid to
construction

280
  In addition, rules relating to the use of some miscellaneous parts of documents
generally (including traditional deeds of conveyance) as aids to construction-
as for example, the use of punctuation, marginal notes, definition clauses,
schedules, plans, maps, etc.

Here, it is also to be noted that though most of these miscellaneous parts also appear in
statutes, they sometimes pose distinct problems in issues of interpretation not only on
account of a number of historical factors, but also on account of the provisions of the
interpretation Act 1960 CA 4 for example, which apply only to statutes. The rules relating
to these parts in the context of statutes will therefore be considered separately.

Rules relating to Parts of a Traditional Deed of Conveyance as Aids to Interpretation

Traditional Deeds of Conveyance

The parts of traditional deed of conveyance are often usefully divided into:
a. Non-Operative parts
b. Operative parts

The non-operative parts normally consist of the commencement; the date, the parties and
the recitals.
On the other hand, the operative parts will normally consist of the consideration and the
receipt clause, vendor’s covenants for title; words of conveyance; parcels; exemptions and
reservations clause; habbendum; testimonum and attestation. [see the Green Book chpt 24
pp 403-409].

The Non-Operative Parts

The commencement: this is the very beginning of the conveyance and often indicates the
nature of the transaction covered by the instrument by expressions such as “This Lease…”
“This Assignment…”
And here it is to be added that section 42 of NRCD 175 provides that a conveyance may
be described at its commencement or otherwise as a conveyance, lease, assignment etc,
according to the nature of the transaction to be effected.

The description by the parties of the nature of the transaction may often offer some clue as
to the nature of their intendment and therefore the meanings of the expressions they have
used.

In practice however, the courts do not consider the descriptions or labels used by the
parties as conclusive, especially in construing ambiguous provisions of operating parts
etc- and will normally construe the provisions of the document as a whole in order to
determine its true meaning and effect. Manu v Emeruwah [1971] 1 GLR 442.

Indeed, as previously noted in respect of false labels, the authorities clearly indicate that as
a rule, the nature of the relationship between the parties and the nature of the document
would be determined by the substance of the obligations into which the parties have
281
entered with the consequence that where the party or parties describe the nature of their
relationship by a label inconsistent with the substance, or incorrectly state what they
believe to be the legal effect of their relationship, the false label will be rejected. See
LEWISON PP 242-245.

Street v. Mountford [1985] AC 809

It is however also important to add that the courts in practice place less weight on the non-
operative parts of a deed vis a vis the controlling or operative parts and would ordinarily
not allow the descriptions of the parties to control the provisions of the operative parts
which are otherwise clear.

Wednesday, November 23, 2022

The Date: the date of a conveyance is not an essential part of it. Hence even where a
conveyance is not dated or bears an impossible date like 31 st February, it is still good law
and takes effect from the date of execution; the legal presumption being that a conveyance
in the absence of an indication to the contrary, takes effect from the date on which it is
executed. Evidence is therefore admissible to prove the true date of execution See
LEWISON P 250-259;

Clayton’s Case [1585] 5 COLE Rep 1A.

In practice however, the date of conveyance is usually given. And the law presumes in the
absence of evidence to the contrary, that the date appearing on the instrument is the date
of its execution. In other words, where a conveyance or document bears a date, it is prima
facie taken to have been executed on that date. LEWISON P 258;

Anderson v. Weston [1840] 6 BING NC 296.

But the evidence is yet also admissible to show the true date of execution.. LEWISON
258. SEE Steele v. Mart [1825] 4 B& C 272.

Here evidence was admitted to show that a deed was wrongly dated. See

Reffell v. Reffell [1866] LR 1 P& B 139.

Here evidence was admitted to show that a Will was wrongly dated.

In practice, the date of execution usually appears after the commencement part of the
conveyance and is usually inserted by the transferor on the day of execution by the parties.
It has to be emphasized however that the date of execution is not necessarily the effective
date of conveyance i.e. the day on which the conveyance takes effect. The effective date
of a conveyance is usually stated in the operative part of a deed.
But again, the legal position appears to be that in the absence of an effective date, the date
of execution may be taken as the effective date, unless the effective date could otherwise
be established.

282
See DA ROCHA & LODOH. The date ordinarily does not raise any serious problems of
interpretation. The date must however prove in some cases an important aid to the
construction of the provisions of a deed or part thereof- as for example in the case of
ancient documents.

Shore v Wilson.

Thus as previously noted, evidence may be admitted of the meaning of the words or
expressions at the date of the instrument. Indeed the courts often adopt an historical
approach in the interpretation of most documents (as opposed to an updating or
ambulatory approach in the case of statutes). See:

Halsbury 4th Edn Vol 12 -1496.

The Parties:
Section 42 (b) of NRCD 175 states clearly that “the names of the parties to the
conveyance shall be written in full without abbreviations followed by the full residential
and postal address or, in the case of a body corporate, its registered office or principal
place of business”.

The capacity in which the parties execute the conveyance must also be indicated i.e. as
personal representatives or trustees etc.
It is however to be noted that it is permissible to describe a party by a reputed name.
Hence a party cannot escape liability in respect of a conveyance or contract which he has
signed merely because he used a name which is not his own. See:

Frankland v Nicholson [1805] 3 M& X 259;

Fung Ping Shan v. Tong Shun [1918] AC 403.

The vendor was at the date of this indenture the legal owner of the leasehold property
expressed to be thereby assigned to the purchaser: “Tong Shun, of Victoria, in the Colony
of Hong Kong, trader,” in consideration of $26,500 paid by the purchaser , the receipt
whereof the vendor acknowledged.The only question was as to the identity of this person.
The respondent referred to as the ‘uncle’ contends that he is the person in question, and
that the legal estate passed to him. The appellants, on the other hand, contend that the
person in question is a person who will be hereafter referred to as the ‘nephew’ and that
the legal estate passed to the nephew. The ‘uncle’ is also Tong Shun, but resident at
Chicago. The ‘nephew’ is also Tong Shun resident in Victoria.
Held per Lord Parker:
1. Parol evidence as to the identity of a party to a deed is always admissible, but in
considering such evidence it is of paramount importance to bear in mind the indicia of
identity afforded by the deed itself. In this case the indicia are as follows: the person to
be looked for is a person who
a. Is named Tong Shun;
b. Resides at Victoria in the Colony of Hong Kong
c. Is a trader
283
 d. Has paid the vendor $26,500, and
e. Enters into a covenant with the vendor by signing, sealing and delivering the
indenture itself.
2. A person who signs, seals, and delivers a deed of covenant cannot avoid liability under
the deed by signing a name which he represents as, but which is not in fact, his own,
nor can he saddle such liability on the person whose name he uses, unless he is the duly
constituted attorney of such person. Here the nephew was not the duly constituted
attorney of the unlce. And is therefore liable on the covenant, and to argue that while
the person who covenants is the nephew the property passes to the uncle would be to
contradict the deed, which clearly indicates that the property passes to the person who
enters into the covenant.
3. Inasmuch as the transaction was one entered into on the uncle’s behalf and with money
provided by him, the nephew held the legal estate in trust for the uncle, the party
beneficially interested.

The courts as previously noted, may also correct obvious misnomers as a matter of
construction. See:

Nittan (Uk Ltd) v. Solent Steel Foundation Ltd [1981] 1 LR 633

(LEWISON 265).
The parties section does not also ordinarily present serious difficulties of interpretation. It
is however to be noted that the description of the party or the capacity in which he acts
might in some cases serve as a useful aid to interpretation of the instrument-as for
example where a word or phrase is shown to have special meaning among a particular
class etc. Evidence of such a special meaning may then be given as well as evidence that
the person or persons using it belong to such a class.

Shore v. Wilson.

The Recitals
The primary function of recitals is to narrate the history leading to the making of the
instrument in question or to express in general terms the intention with which the
instrument was made. LEWISON 265.

Thus in their Ghana LAND LAW AND Conveyancing @ 405, DA ROCHA AND
LODOH identified two principal kinds of recitals namely (a) introductory recitals which
state the purpose of the instrument – example that a vendor has agreed to sell and the
purchaser to buy at an agreed price etc. (b) narrative recitals which relate the history of the
property conveyed or sets out facts upon which the vendor places his title etc.
It is to be noted however that in addition to these primary functions, recitals have other
important uses including the ff:
 Recitals may be used to record some fact(s) in order to obtain the benefit of the
presumption of truth in deeds- as for example under section 37(5) of NRCD 175.

284
  Recitals may also be used to set out the circumstances under which the deed or
instrument is to operate.
 Recitals can also operate as estoppel. Here recitals may for example estopp the
parties on whose behalf they are made, from disputing their accuracy. See NRCD
323: ESTOPPEL BY RECORD. A recital may however operate as an estoppel here
only where it is clear and unambiguous. See ODGERS 149; Heath v Crealock
[1874] LR 10 CH (APPEAL) 22.
 A recital may in some circumstances also be effective as a covenant in the absence
of an express covenant in the deed. ODGERS 152.

The recitals undoubtedly also form an important part of the context of a deed and can
therefore be relied on as an aid to construction under the dominant MOPA, particularly
pursuant to the rule that the provisions of the document or part thereof are to be construed
as a whole.

Akuffo v Valco.

Orr v. Mitchell

The Karen Oltman [1976] 2 Lloyds Report 708.

Hence, one has to be wary of any authorities which suggest otherwise, particularly any
technical rules which appear to preclude the use of recitals as aids to construction. See
LEWISON PP 266-267 & 271.

In practice though, recitals, like other un-operative parts of a deed or document, are held
to be subordinate to the operative parts and are consequently often given less weight.

Recitals are said to be the introductory or a narrative of what has led up to the necessity or
desirability of executing the deed. It is well-settled law that the recital does not control the
operative part of a deed where the operative part is clear.

Mackenzie v Duke Of Devonshire [1896] AC 400 per Lord WATSON.

In Mackenzie v. Duke of Devonshire [1896] A.C. 400 at p. 406, H.L. Lord Halsbury L.C.
said:

 "but I never in my life heard of the language of a deed which contained a perfectly
unambiguous provision being twisted from the natural ordinary meaning of the words
by a preliminary statement of what the maker of the deed intended should be the effect
and purpose of the whole deed when made."
In the same case, at p. 408 Lord Davey expressed his concurrence to that proposition as
follows:

 "I take it to be a settled principle of law that the operative words of a deed which are
expressed in clear and unambiguous language are not to be controlled, cut down, or
qualified by a recital or narrative of intention."
285
Specifically, the courts have also developed a number of technical rules regarding the
proper use of recitals as aids to the construction of the operative parts of a deed. These
rules are excellently summarized by LOPES J in: *

In re Moon, Ex parte Dawes [1886] 17 QBD 275

William filed for bankruptcy and Dawes is appointed official receiver of his estates. The
creditors agreed to Dawes being appointed trustee of a proposal to pay them by
installments to be secured by a deed of assignment of property of the debtor to Dawes.
After the recitals the operative part of the deed stated, inter alia, the ff: “….set forth in the
said schedule hereto, and all the estate, right, title, interest, claim, and demand of him the
said William Moon in, to, and upon the said properties, chattels, and effects, and all other
the estates (if any) of the said William Moon, upon the trusts and for the intents and
purposes….” The question arose whether a life interest in the income of a sum of money,
to which the debtor was entitled under the trusts of a post-nuptial settlement, not
mentioned in the schedule, was included in the deed. The proviso in the said settlement
provided that if William shall assign, etc, or shall become bankrupt , then he shall forfeit
the benefit.

Dawes applied for the order to strike out the proviso and the question was whether Dawes
was an incumbrancer or assignee of the life interest of the debtor under the settlement or
the proviso was for forfeiture was void against Dawes.
The recitals were clear but the operative part was ambiguous as to “estate” and “interest”
Held: per Esher MR
a) This is a deed of assignment or conveyance of property by way of security and the
issue is its construction.
b) It is to be construed by what appears on the face of it and nothing else.
c) You may of course look at the state of circumstances which existed at the time when it
was made, but in the present case that will not help.
d) The deed must be construed as it stands and by reference to nothing else.
e) Now there are 3 rules applicable to the construction of such an instrument.
i) If the recitals are clear and the operative part is ambiguous, the recitals govern
the construction.
ii) If the recitals are ambiguous and the operative part is clear, the operative part
must prevail.
iii) If both the recitals and the operative part are clear, but they are inconsistent with
each other, the operative part is to be preferred.
iv) In this case the recitals are perfectly clear and unambiguous, but the operative
part is ambiguous will be controlled by the recitals. Therefore the recitals must
prevail, and the life interest does not pass to the appellant.

On this principle, see:

Walsh v. Travenion [1850] 15 QB 733.

286
These rules basically speak to three main scenarios as follows:

Operative parts clear, Recitals unclear

The legal position where the operative part is clear, but the recital unclear, is that the
provision in the operative part (which is the controlling part) should prevail. In other
words, ambiguous recitals will not be permitted to throw doubt on the meaning of clear
operative parts. See ODGERS p 150 ff.

Dawes v. Tredwell [1881] 18 CH D 354

@ 358-359 wherein Jessel MR notes “the rule is that a recital does not control the
operative part of a deed, where the operative part is clear”.

Holliday v. Overton [1852] 14 BEAV 467;

IRC v Raphael [1935] AC 96

Held per Lord Wright at 135
1. It must be remembered at the outset that the court, while it seeks to give effect to the
intention of the parties, must give effect to that intention as expressed, that is, it must
ascertain the meaning of the words actually used. There is often an ambiguity in the
use of the word “intention” in cases of this character. The word is constantly used as
meaning motive, purpose, desire, as a state of mind, and not as meaning intention as
expressed.
2. The words actually used must no doubt be construed with reference to the facts known
to the parties and in contemplation of which the parties must be deemed to have used
them: such facts may be proved by extrinsic evidence or appear in recitals:

Odametey v. Clocuh [1989-90] 1 GLR 14

Per Taylor JSC @30-32
1.A recital did not control the operative part of a deed where the operative part was clear
and unambiguous.
2.The reference to the customary grant in the recital was in no way connected with any
provision in the disposition clause which plainly and unambiguously merely sought to
convey the vendor's beneficial estate to the purchaser.

It is however important to emphasize here that the foregoing position is not to be

understood as suggesting that the operative part is at first instance to be construed
separately (i.e. without reference to the recitals etc) and that where such a construction
yields a plain or clear meaning, the recitals will be of no effect. In other words, the
position is not to be understood as one to the effect that the recitals will only be of
relevance in interpretation where the operative part construed in isolation from the
recitals, is ambiguous. As noted by Viscount SIMOND in A-G v. Prince Augustus of
Hanover [Supra] one cannot pretend to understand the provision of a document as clear
or unclear unless one has read it in the context as a whole.

Anderson v Anderson [1895] 1QB 749

287
Held: But let us look at the words themselves and the recitals. The general rule no doubt
is, that the recitals cannot be referred to for the construction of the operative words of a
deed, unless there is something so ambiguous in the operative words that you must go
there to clear the matter up; but in the recitals in this case

Again, as previously noted the recitals constitute an important part of the context of the
document and must be consequently be taken in account in determining whether or not a
provision of the operative part is plain or clear in the first instance.

Thus, it is only where there are difficulties in determining the meaning of a provision of
the operative part when read in the context of the whole document on account of doubt etc
existing in the recital that the rule stated above will apply. In other words, the legal
position under the MOPA is simply that where difficulties arise in the interpretation of
otherwise clear operative provisions on account of conflicts, contradictions,
inconsistencies, etc which are suggested by the recitals, the courts will ignore the recital
and give effect to the plain language of the operative or controlling part of the deed.

Operative part Unclear but Recitals Clear:

The authorities are overwhelming that where the operative part of a deed is doubtfully
expressed, the recitals may govern the construction.

Leggott v. Barrett [1980] 15 CH 306 per Brett LJ.

Orr v. Mitchell

Instances where recitals might explain or assist the construction of an operative part
include:
 Where there is ambiguity in the operative part as to property affected;
 where operative parts contain general words and the recitals show the specific scope
intended in the particular case;
 where recitals show limitations of time that must be placed on the operative parts
etc.

Halsbury 4th Ed Vol 12 para. 1511.

Re Coghlan [1894] 3 Ch 76;

Crouch v. Crouch [1912] 1 KB 378;

Re Moon, Ex Parte Dawes

Operative parts and Recitals both clear but inconsistent:

In such a situation, the operative part, which is the controlling part, will obviously prevail.
LEWISON 272.

Re Moon, Ex Parte Dawes

288
Young v. Smith [1865] LR 1 Echq 180.

Operative Parts
As already indicated, these are the operative parts of the deed or instrument. They include
such parts as the receipt and the consideration clause; words of conveyance; parcels;
exceptions and reservations clause; provisos, habendum etc.

Each component of the operative part is important and must be construed not only in the
context of the other parts (operative and non-operative parts alike) but also having regard
to the document as a whole.

Cofie v Shahin [1992-93] GBR Part 2 @ 675.

Nartey v Mechanical Lloyd Assembly Plant Limited [1987-88] 2 GLR 314-369

In 1976 the plaintiff-appellant (hereafter referred to simply as the plaintiff) acquired a
piece of farm land at Frafraha measuring 9.12 acres. The land was demarcated for him, on
the instructions of the Frafraha Mantse, Nii Okpoti, by the family's surveyor and Nii
Okpoti's son. The elders who had been informed and were to have gone with the surveyor
"did not get time to go." The Mantse however later informed them that the grant to the
plaintiff had been made. There is no evidence that anyone objected.

It must also be added that in the even of a conflict between an operative and a non-
operative part, the courts tend to give greater weight to the operative part i.e. the operative
part will normally prevail. However in a number of instances the courts have developed
specific technical rules to govern the construction of the operative components, especially
in the event of conflicts.
Most operative parts do not present any special difficulties of interpretation or as to their
use as aids. Our focus would consequently be on those parts which present significant
problems or difficulties.

Parcels & Maps/Plans Annexed

The parcels consist basically of the description of the property to be conveyed. Extreme
care is therefore necessary in drafting the parcel.
Like other parts of a deed, the provisions of a parcel are to be construed as a whole having
regard to the other parts of the instrument both non-operative and operative parts. Again,
as previously noted, the courts can correct any obvious errors or defects in descriptions by
way of construction. Thus where appropriate, the courts may for example, resort to the
falsa demonstratio rule in dealing with false descriptions.

In consequence, where the description of a property is sufficiently clear and certain to put
beyond doubt what is intended to be passed by the deed, a subsequent erroneous addition
to the description will have no prejudicial effect. See GIBSON’S Conveyancing 21 st ed @
224. LEWISON @ 236 ff; ODGERS @ 177.

In practice, the property to be conveyed is often described in words and also by reference
to a plan or map. Where the plan or map is incorporated into the text of a deed, it is

289
without doubt an important internal part of the document and could aid the construction of
the parcel.

However, difficulties often arise regarding the relationship of the plan or map to the verbal
description, particularly where the two are at variance. Here, the question often arises
whether the plan/map is to control the verbal description or vice versa.

The authorities suggest that the determination of this issue turns largely on the
construction of the particular conveyance, especially the way the plan is introduced in the
conveyance, i.e. the Introducing words.

Where the introducing phrase is to the effect that the property is “more particularly
delineated” or described in the plan or map or uses some such like expression, the plan or
map will in the event of conflict, prevail over the verbal description.
Odgers 180-183
Lewison 292-295;
Da Rocha and Lodoh

Eastwood v Ashton [1915] AC 900 @92;

Wallington v. Townsend [1939] 2 AER 225

Botchway v. Okine [1987-88] 2 GLR 1 CA.

On the other hand, where the introducing phrase (introductory phrase) is to the effect that
the plan or map is for “purposes of identification only”, the verbal description will prevail
over the plan or map in the event of conflict not resolvable by interpretation or
construction.

Webb v. Nightingale [1957] 1 69 EG 330.

However it is still important to remember that even where the plan or map is for purposes
of identification only, it may still be looked at for the purpose of determining boundaries
etc so long as there is no conflict with the verbal description.

In some cases however, the plan may be neither dominant nor subordinate but is simply
part of the composite description and has therefore to be taken into account in construing
the document as a whole. Look at

Horne v. Struven [1902] AC 454

where the introductory phrase was “as will further appear by the diagram”.

It is also to be added that where it is possible to reconcile the verbal description and the
plan, or map, the court will not hesitate to do so. See

Truckell v. Stock [1957] 1 WLR 161.

290
In addition, a plan may be rejected by use of different methods or for different reasons
even though it may form part of the deed. Thus a plan may for example be rejected on the
basis of the application of the falsa demonstratio rule or on the basis of construction of the
deed as a whole. ODGERS P 182; Gregg v. Richards [1926] Ch 521.

Hence it has also been held that a plan drawn on a scale too small to ascertain the
boundaries or acreage or not drawn to scale at all, might or might not control the verbal
description. See

Fox v. Clarke [1874] LR 9 QB 565 @ 570-571.

Further to the foregoing, it is to be noted that in some circumstances a plan or map not
textually incorporated may be used to determine what is conveyed. Hence a plan bound in
or drawn on a conveyance may be referred to, to resolve ambiguity even though it is not
referred to in the body of the deed. GIBSON p 224; LEWISON 294;
Stanley Robinson: Drafting-Its Application to Conveyancing and Commercial Documents
[1980] P 100;

Leachman v. L& K Richardson Ltd [1999] 3 AllER 20.

It has however been suggested in a number of the authorities that the position may be
different if the plan or map is merely attached to the conveyance.

Wyse v Leahy [1975] IR 9 CL 384.

Exceptions and Reservations Clause

Exceptions here refer broadly to the interest or part of property or land retained by the
grantor of the property or land-such as right to mines or minerals etc; while reservations
here, refer broadly to some incorporeal rights over property or land granted over which the
grantor intends to have the benefit and which is therefore reserved to the grantor such as a
fishing right or sporting right or right of way. Generally the subject matter of a reservation
is an easement.

Essentially then, why an exception retains an interest in property granted away,

reservation creates new interest in the property.

Halsbury 4th Ed Vol 12 1529.

In practice, it is common where interests are excepted or reserved, to commence that part
of the parcel which deals with the matter by the words “excepting and reserving unto the
grantor…”

Specifically where the vendor or grantor wishes to except anything from the interest
conveyed or reserve any right to himself over the land conveyed, this has to be clearly and
unambiguously expressed in the conveyance, in order to be effective.

291
The exception to this rule is only where the vendor fails to expressly accept things which
exist in or over his land and which by law are vested in some other authority or person.
See Da Rocha and Lodoh @ 408, ODGERS @ 191-192;

Duke Of Sutherland v. Heathcote [1892] 1 Ch 475 @ 481.

In addition, while exceptions must invariably be made expressly, because a conveyance

without exceptions will not be construed to import the exceptions, reservations could be
implied. ODGERS P 192 FF.
It is also important to note here, that the distinction between exceptions and reservation
does not arise from the words used in the grant simpliciter, but from the nature of the
interest created. Hence the use of the word “except” and “reserved” does not determine the
matter conclusively such that in some circumstances what is for example described as a
reservation may in substance be an exception. See ODGERS P 191;

Re Dance’s Way [1962] 1 Ch 490;

Pearce v. Watts [1875] Lr 20 Eq 492.

The distinction between exceptions and reservation is often critical even from the
standpoint of the law relating to their interpretation. This is particularly on account of the
general rule that exceptions are in cases of doubt, to be construed against the grantor and
reservations against the grantee, as reservations often operate as a re-grant to the grantor.
See
Stanley Robinson [Supra] @ 101;
Odgers 190; Lewison 168 ff;

Halsbury 4th Ed Vol 12 Para 1472 Ff;

Savill Brothers Ltd v. Bethel [1902] 2 Ch 523 @ 537

Neil v. Duke Of Devonshire [1883] 8 AC 135.

The rule for the construction of exception against the grantor stems from the more general
rule that words of a deed executed for valuable consideration are to be construed as far as
properly may be, against the grantor. In other words, that where there is a grant and
exception out of it, the exception is taken as inserted for the benefit of the grantor and is
consequently to be construed in favour of the grantee. Halsbury 12th Edn 1427.

The rule that words are to be construed strongly against the grantor etc is however subject
to the general principle (under the MOPA) that the instrument must be construed in
accordance with the expressed intention.

Webb v. Plummer [1819] 2 B& ALD 746 @ 751.

The rule does not also come into operation until there is doubt and only where other rules
of construction have failed.

292
The Habendum
The object of the habendum is to define the extent of the interest taken by the transferee.
Hence any liabilities incidents etc subject to which the property is conveyed are ordinarily
mentioned in the habendum.

Halsbury’s 4th Edn Vol 12 para.1534.

But as da Rocha and Lodoh rightly note @ p 408, no particular words of limitation are
necessary in Ghana today to define the extent of such interest and property. This is by
virtue of section 13(2) and 13(2) of NRCD 175 by which the conveyance passes all the
interest and rights in the land which the transferor has power to convey, unless a contrary
intention is expressed in the conveyance or appears by necessary implication. It is to be
pointed out here however, that the parts of a deed before the habendum constitute what is
referred to as the premises of the deed. The office of the premise is basically to name the
grantor and grantee and to define the things to be granted etc. In addition, the
circumstances preliminary to, and leading up to the transaction are normally stated in the
recitals, also part of the premises. Specifically therefore, the true function of the premises
is to ascertain the properties and the parties affected but not to determine the actual estate
limited by the grantee.

Normally, it is in accordance with the words of limitation used in the habendum that the
interest of the grantee will be delimited. Ideally then, in the premises the grant should be
to the grantee without words of limitation; and if the estate is to be expressly limited, that
should be in the habendum.

Relationship of Premises and Habendum

In practice the habendum often proves a useful aid in the construction of the premises and
vice versa. And this is of course pursuant to the basic rule that all parts of the document
are to be construed as a whole.
A number of common law rules however govern the relationship between the premises
and habendum in a number of circumstances or in a number of scenarios as follows:
 Grantee in habendum only: although the grantee is usually named in the premises,
the naming of the grantee in the habendum only, will still be sufficient and the
grantee takes the estate limited thereby. See HALSBURY 12 1537; ODGERS 202;

Spyre v. Topham [1802] 3 EAST 115.

 Grantee named differently in premises and habendum: the rule is that if different
persons are mentioned as grantees in the premises and the habendum, he who is
mentioned only in the habendum cannot take an immediate estate in the land
granted though he may take the estate in remainder. Hence if a grantee A was
named in the premises and the habendum was to him and another (A & B) then only
the grantee mentioned in the premises i.e. A would take the immediate estate
293
 though the other B, might take by way of remainder any interest the habendum
could be construed as giving him. HALSBURY 12 1537. Where the premise was to
A and the habendum to B, the effect was similar; the habendum was void unless it
gave to B an interest in remainder. Halsbury 12 1537.
 Habendum cannot cut down the estate: the authorities are also clear that where an
estate has been limited in the premises, this must be treated as indicating the
intention of the grantor and that any subsequent limitation in the habendum ,
although it might enlarge the estate in the premises, or might qualify or explain it,
could not directly abridge it. Any subsequent limitation in the habendum so far as it
is repugnant to the estate in the premises or contrary to the rule of law, will be null
and void. HALSBURY 12 1536.

Spencer V Registrar of Titles [1906] AC 503 @ 517.

 Effect of specifying parcels in habendum: the position under the old law appeared
to be that parcels must be defined in the premises so that the mentioning of parcels
in the habendum which have not been expressly or impliedly mentioned in the
premises is of no effect. However this rule is today subject to the general principle
that the deed must be construed as a whole. Hence the mention of the parcels in the
habendum instead of the premises will not invalidate the grant. HALSBURY 12
1538. Where however parcels are mentioned both in the premises and the
habendum but the two are at variance, only the property mentioned in the premises
will pass. Hence it has been noted “ if a man grants Blackacre only in the premises
of a deed, and in the habendum Blackacre and Whiteacre, whiteacre will not pass by
the deed. HALSBURY 12 1538 FOOTNOTE 2.
 Habendum not essential: the authorities are also settled that the habendum is not
absolutely necessary; and that if there is none, the grantee takes the estate limited in
the premises. See Goodtitle D Dodwell v Gibbs [1826] 5 B & C 709 @ 717.

Hence a deed will still be effectual if the premises in addition to defining the parties and
the parcels define also the estate to be taken by the grantee or leave that to the
construction of law. See

Halsbury 12 1534; Kerr V. Kerr [1854] 493 @ 497;

Cofie v. Shahin , NRCD 175 Ss 14(2) 13(2).

Rules relating to the Use of Miscellaneous Parts of Documents Generally As Aids to

Construction.
The focus here, is the use of some parts commonly found in documents generally
(traditional deeds of conveyance included) as aid to construction. Parts to be considered
here include:
 Definitions and interpretation clauses [DOONAN PP 77 -78; ROBINSON PP 54-
61; LEWISON PP 108-110
 Punctuation [ DOONAN 150-153; ROBINSON 61; LEWISON 114]
 Marginal notes [ROBINSON 77-78; LEWISON 114 AND 253]
 Headings and titles
 Provisos [DOONAN 156 -165; ROBINSON
294
  Schedules, tables, diagrams, maps etc. [ DOONAN 65-67; ROBINSON 35-37, 53-
54].

Definition/ Interpretation Clauses

Definitions are basically devices used in drafting to regulate the meaning of words or
phrases, particularly where the accepted usage or ordinary meaning in a given linguistic
community is inadequate to carry out the intended message. See STANLEY ROBINSON
@ 54.

In practice where a number of definitions are used in a particular document, they are often
grouped together in an interpretation clause which may be placed either at the beginning
or the end of the document. In statutes however, definitions are invariably placed at the
end.

There are in practice several different types of definition which may be put to several
distinct uses, including particularly the avoidance of ambiguities or doubts regarding the
use of a word or phrase ; or to clarify the meaning of words or phrases or sometimes even
as labels to shorten documents by avoiding constant repetition of long names or terms etc.
Specifically different types of definitions and their uses include the ff:
 A Comprehensive Definition: such a definition provides a full statement of
everything that is taken as included in the word or phrase and therefore seeks to
provide a considerable degree of certainty in the meaning of the word. See section
18 of the Wills Act 1971 Act 360 which provides that “spouse” means “the wife or
husband of a deceased person”. SEE LLOYD V. LLOYD [SUPRA] or it could be
stated that “month” means “one calendar month”. Comprehensive definitions are
used basically to eliminate doubts etc as to the meaning of a word or term used in a
document - such as for example, where a word or phrase used in the document
may leave doubt in the mind of the reader as to its exact or intended scope. This
problem may often arise especially with words that may have more than one
popular meaning or is otherwise vague or ambiguous. SEE DOONA [SUPRA] @
78.

 Narrowing Or Exclusionary Definitions: This kind of definition is used to narrow

the meaning of an ordinary word or term so that things ordinarily included in its
meaning are excluded either by setting limits or by expressly excluding them, for
example a document may provide that “money” means “currency notes” or “notice”
means “notice in writing” or “animal” means “cattle and horse” or “company”
means “a public company as defined by the Companies Code”. Narrowing
definitions are invariably resorted to when the ordinary meaning of a term may be
of wider import than is required in the context of the document, yet a suitable
alternative which conveys the narrower intended meaning may not exist. In such a
circumstance, a narrowing definition may be used to restrict the word or term to the
particular meaning intended in the document. DOONAN p 81. A narrowing
definition may also restrict the meaning of a word or term to a particular time or
place, e.g. “conveyance” means “a conveyance made after 4th June 1997”.
295
 The Extending Or Enlargening Definition: This type of definition usually retains
the ordinary or conventional meaning of a word or phrase and then adds a meaning
it does not normally have-but which is not such as to give it an extraordinary
meaning. In other words, it extends the ordinary meaning of a word by a definition
so as to include something which is not included within its ordinary meaning yet is
not such as to give it an extraordinary meaning. See Doonan P 82; Driedger: The
Composition Of Legislation. The typical form of an extending definition is “t”
includes “x”. e..g “ in this document, “spouse” includes a “common law spouse”
etc. Thus a document for example may provide that “lease” includes “an agreement
for a lease”; or in this document “wife” includes “former wife”. See also the
definition of child in section 18 of Act 360 (Wills Act). The extending definition is
in practice resorted to where there is no suitable alternative word which will
accurately reflect both the ordinary meaning and the intended meaning.

 Extraordinary Definition / Definitions Which Gives Words An Extraordinary

Meaning: such a definition may be used to give a word or term a meaning which is
not attributable to it in ordinary usage, e.g. a document may provide that “in this
document “motor vehicle” means a bicycle or horse drawn carriage”; or “in this
document “house” means “caravan”. One needs to be very wary of the use of such
extraordinary definitions since they may sometimes result in confusion or mistakes
by a reader in construing the document. A lot of care is therefore required in the use
of such definitions.

 Referential Definitions: a referential definition can for example be used to attract a

meaning of a word or phrase already established in law, whether by statute or
otherwise. Example, a document may provide: “in this document “bank” has the
same meaning as in the banking law 1989” (repealed).

 Labeling Definitions: A labeling definition uses a word term or phrase to denote

some complex concept or a long and cumbersome expression. They are
consequently often used to avoid cumbersome and unnecessary repetitions and thus
promote the easier understanding of the document by inter alia, reducing the
quantity of words required to convey the intended meaning. With this kind of
definition, a draftsman may also abbreviate a group of words or terms by stipulating
that one word or phrase is to signify the longer group of words or phrases.

A labeling definition may therefore be used for e.g. to abbreviate the name of
corporations, official bodies, statutes etc and to define words and things etc. for
example a document may provide thus: “in this document (1) “tax Act” means the
Income Tax Act (Amendment Act) 1994 ACT 468. A document may also say “board”
means the “narcotics control board”; or “in this document, “convention” means the

296
 international convention for the prevention of cruelty to children”; or in this document
“sell” means “sell, offer for sale, etc”.

Even though the nature of definitions permits a draftsman to play humpty dumpty and
to make words mean what he says they mean, one has still to be wary of their use-
especially because their careless and arbitrary use might rather create doubts and other
difficulties of interpretation. Specifically, one must as much as possible try to avoid
redundant definitions. Hence a word or term does not need to be defined if it is
unambiguous in context- particularly if its ordinary meaning in context suffices to
convey the meaning intended. As DOONAN notes, a redundant definition serves no
purpose and may rather cause trouble by leading the reader of the document to suppose
that it has a purpose and to waste time looking for it. The redundant definition may
then be a source of uncertainty.

As a rule however, where the examination of a context reveals that the party or parties
to a document have varied the meaning of or attributed their own peculiar meaning to
word, it is the duty of the court to give effect to this meaning if it effectuates the
intention of the party or parties. In such a situation, it might be said that the parties
have themselves provided their own dictionary or the key to the meaning of words they
have used and this must be given effect to. See

Lloyd v. Lloyd [1837] 2 MY & CR 192

@ 202 per Lord COTTONHAM wherein he noted
“ if the provisions are clearly expressed and there is nothing to enable the court to put
upon them a construction different from what the words import, no doubt the words
must prevail; but if the provisions and expressions be contradictory, and if there be
grounds appearing from the face of the instrument, affording proof of the real intention
of the parties, then that intention will prevail against the obvious and ordinary meaning
of the words.

If the parties have themselves furnished a key to the meaning of the words used, it
is not material by what expression they convey their intention”.

Kell v Charmer [1856] 23 BEAV 195

It is also to be noted that in the construction of the definition or interpretation clauses,

the courts presume that the parties have been specially precise and careful in their
choice of language; hence the rule is that words in a definition or interpretation clause
are, unless there are compelling reasons to the contrary, to be interpreted according to
their ordinary or natural meaning. Specifically, the courts will as much as possible,
avoid situations where they have to redefine the provisions of a definition clause. See

R v. Calder & Boyars Ltd [1961] 1 QB 151

297
 @ 168 per Salmond LJ who noted that it would rarely be necessary and is often unwise
for the courts to improve upon or redefine a ‘definition’ in a definition or
interpretation clause.

It has also to be noted that where an interpretation clause provides that the word or
phrase shall mean what the interpretation clause says it shall mean, (e.g. “x means y”)
the word or phrase, unless there are compelling reasons to the contrary, is to be
restricted to apply to the scope indicated in the definition or interpretation clause. Here
the parties have provided a special key to their intention and this has to be used. Lloyd
v. Lloyd [Supra].

As previously noted the authorities are also overwhelming that an extending or

enlargening definition only extends the ordinary meaning of a word and therefore does
not take away its ordinary meaning. In effect, an enlargening definition in the form “t
includes x” only signifies that “t” means a combination of the ordinary meaning of “t”
and the ordinary meaning of “x”. Thus the mention of “x” does not affect the
application of “t” in its ordinary meaning.

Dilworth v Commissioner Of Stamps [1899] AC 99;

Deeble v Robinson [1954] 1 QB 77;

Republic v. Yebi & Avalifo [2000] GLR

Republic v Dey [Unreported].

Republic v. Stool Lands Boundaries Settlement Commissioner; Ex Parte Mamponsu

Stool.
(this had to do with whether or not a court had power to issue an injunction since
“injunction” was not listed in the powers of the court to give relief in the courts Act).

Cocoa Marketing Company v Ansah per Woode JA

(as she then was).

Needless to add, where a document contains an extending or enlarging definition, the

words used in connection with the term in its normal meaning, are by implication,
required to be modified as is necessary.

Brikom Investment Ltd v Cford [1981] 1 WLR 863.

However, the meaning in an interpretation clause may not be applied every time a word or
phrase appears-especially where there are compelling reasons to the effect that the
author(s) have misapplied their own definition or key. With the drafter being fallible,
might not even have used the word in the sense defined. In such circumstances, the words
are to be given their meaning in context which reflects the intention of the author(s).

298
It has to be added in respect of referential definitions that where the Act referred to in the
document is amended or repealed, the amendment or repeal does not affect the referential
definition in the document. See Bennion p 420.

The Proviso Clause

A proviso properly so-called is a formula (usually beginning with an expression like
“provided that…”) which is often placed at the end of a section or subsection of an Act,
clause or sub-clause of a document, a paragraph or sub-paragraph of a schedule, etc to
narrow down the effect of the preceding provisions; or to set out an exception, condition,
or qualification to the general principles or concept expressed in the preceding provision.
This kind of proviso is also often referred to as the excepting or qualifying proviso.

Specifically then, the effect of an excepting or qualifying proviso in a document is inter

alia, to except out of the preceding clause or paragraph of a document or to qualify
something provided therein which but for the proviso, would be within it. CRAIES 218.

Hence, the typical use of an excepting or qualifying proviso (i.e. proviso properly so
called) in a document is to place such a proviso after a clause or paragraph of general
application and then to make a special provision inconsistent with the clause or paragraph
or which qualifies it for a particular purpose.

An example of a typical excepting or qualifying proviso can be given here of a proviso in

a mortgage agreement expressing in a traditional way, the borrower’s right to have the
property re-vested in him on payment to the lender of all that is due under the mortgage as
follows:
“To hold the property to the use of the lender in fee simple… provided always that if the
borrower shall on the… day of … pay to the lender… the lender shall reconvey the land to
the borrower. (ROBINSON P 44).

Frequently also, an excepting or qualifying proviso is used to exclude a special case from
the operation of the general provision without making further provision for the special
case.

In all these senses, “provided that…” only performs the function of a conjunction meaning
“but”, or “except that” or “on condition that” or “nevertheless”.

It is however important to contrast the excepting or qualifying proviso with other kinds or
uses of the proviso in documents, the provisions of which do not detract from the general
application of the preceding clause etc but rather compliment or are coordinate to the
provisions of the preceding clause or paragraph. [THORNTON: legislative drafting pp 80-
81]. The use of such complementing or coordinating provisos have not surprisingly been
frequently condemned by skilled draftsman as an abuse of the proviso and a major source
of confusion in the construction of documents in which they appear.

299
A typical example of this kind of abuse is the inappropriate use of a proviso in practice to
introduce the several stages of consecutive operations or transactions in a document. An
example here could be given of a provision in a tenancy agreement as follows:

“The tenant shall pay rent of one million a month during the first three years of the
tenancy, PROVIDED that thereafter the first three years, the rent shall be increased by
50% to1.5 million a month”.
(*This is inappropriate because it does not set out an exception to the preceding clause).

Here the use of the proviso is merely a surplusage and could have simply been replaced by
the conjunction “and” or by the use of separate clauses.

Another anomalous use or abuse of the proviso in this connection is its use by draftsmen
to tack additional modifiers or clauses which cannot be woven into the framework of the
preceding provision or to thrust into the document they are drafting whatever they
conceive to be incapable of being directly expressed in connection with the rest of the
preceding clause. In other words, whatever the draftsman perceives as a disparity,
anomaly or inconsistency or a contradiction etc, is introduced with “provided always…”
when clearly what is intended is not a proviso properly so called.

An example of this kind of abuse of a proviso can be given of a contract for sale of goods
which deals with both acceptance of the goods by the buyer and as inter alia provisions on
liability for loss and expense, caused by a breach thrown in as follows:

“the buyer shall not be deemed to have accepted the goods or any part thereof until the
buyer has inspected the goods and ascertained that they are in accordance with this
agreement ‘Provided’ that the buyer may reject the goods or any part thereof which are
not in accordance with this agreement within a reasonable time after such inspection
‘Provided Always That’ if the buyer rejects the goods or any part thereof the seller
agrees to accept the return of the goods or part thereof and refund the price to the buyer
‘Provided Further That’ the seller shall be under no liability for any loss or expense
(including loss of profit) suffered by the buyer arising out of the breach by the seller of
this agreement”.
[See Doonan P 153]

Clearly, in this provision also, the provision on liability for a loss for e.g. is not a proviso
properly so called because it does not detract from the preceding clause. Its provisions
which are complimentary or coordinate could easily have been placed in separate
clause(s).

On account of these frequent abuses, several skilled draftsmen have argued that legal
documents could do without these problematic provisos and that it is more appropriate and
even clearer where an exception is intended to preface the provision with “except
that…” or where a condition is intended to preface the provision with the expression “on
condition that”; while complementing provisos could be placed in separate clauses or sub
clauses or by the use of “and” or some apt conjunction.
300
In spite of the foregoing criticisms and observations, several skilled draftsmen still
continue to use provisos of all kinds in documents and thereby continuing to create several
difficulties of interpretation.

In all cases however, it is important to first determine the nature and real function of the
provisos involved in order to determine properly what effect to give to it by way of
interpretation. This basic and critical point in the interpretation of provisos is perceptively
captured by Coode @ 380 of his Legislative Drafting as follows:

“nothing has inflicted more trouble on judges than the attempt to give construction to
provisos. The courts have generally assumed… that the proviso was a mode of enactment
by which the general operation of a statue or document was excluded in favour of some
case. There are therefore in their decisions, various distinctions propounded between near
exemptions or exceptions or salvoes (saving clauses) and proper provisos. But it is
admitted by all writers to be impossible to make any general application of the doctrines
laid down by the courts to the multitude of cases in which the formula of a proviso has
been adopted… and what common doctrines of interpretation can possibly be applied to
the enumerable provisos used in our statutes or documents only as a formula for heaping
together matters wholly unconnected…”

However that may be, it is still important to emphasise that a proviso properly so called
(i.e. an excepting or qualifying proviso) is an integral component of the clause or
paragraph in which it appears so that any reference to that clause or paragraph necessarily
includes any proviso to it.

Hence, the clause containing the proviso properly so called is as a rule, to be construed as
a whole with the proviso, each throwing light on the rest and vice versa with the
consequence that in practice the terms of a clause to which a provision is a proviso may be
of considerable aid to its construction and vice versa.

Furthermore, with respect to excepting or qualifying provisos, the courts appear to have
taken the provision that since the intention of the proviso is only to narrow the effect of
the preceding clause, the excepting or qualify proviso must as a rule not be construed as
enlargening the scope of the principal clause when it can properly be construed without
attributing to it that effect. Thus, one would normally construe such an excepting or
qualifying proviso to limit and define the main preceding clause.
See ODGERS 5TH ED 317;

West Derby Union V Metropolitan Life Assurance Company [1897] AC 647@ 652.

This is however not an inflexible rule, especially under the MOPA. A proviso might,
depending on its wording, and on the wording of the preceding clause, have the effect of
enlargening the scope of the preceding clause.

Repugnant Provisos
301
Where there is a repugnancy between the main preceding clause and those of a proviso, it
is treated basically as one of internal conflict in the document. The approach under the
MOPA is to first consider the meaning of the document as a whole, taking account of the
proviso etc, and thereby to arrive as much as possible at a sound interpretation or meaning
which effectuates the intention of the party or parties. However where the repugnancy is
not so resolved, the court must resort to one or other of several conflict resolution
strategies or rules of law or thumb developed for that purpose.

For example, it has been held that a covenant which taken by itself is clearly a personal
covenant, cannot be qualified by a proviso excluding personal liability. Such a proviso
will be rejected as clearly repugnant. However a proviso only limiting the personal
liability under the covenant without destroying it will be good. See

Forbes v Git [1922] 1 AC 256 @ 259.

Held per Lord Wrenbury:
1. The principle of law to be applied is that if in a deed an earlier clause is followed by a
later clause which destroys altogether the obligation created by the earlier clause, the
later clause is to be rejected as repugnant and the earlier clause prevails.
2. In this case the two clauses cannot be reconciled and the earlier provision in the deed
prevails over the later. Thus if A covenants to pay $100 and the deed subsequently
provides that he shall not be liable under his covenant, that later provision is to be
rejected as repugnant and void, for it altogether destroys the covenant.
3. But if the later clause does not destroy but only qualifies the earlier, then the two are to
be read together and effect is to be given to the intention of the parties as disclosed by
the deed as a whole. Thus in the example above if the deed subsequently provides that
he shall be liable only at a future date, then the absolute covenant to pay is controlled
by the words qualifying the obligation in manner described.

Williams v Hathaway [1877] 6 Ch D 544 @ 549.

It has however also been held that a proviso which is at first sight repugnant to the
principal clause may be reconciled with it, by varying the effect of that clause. Thus a
release to one or two partners with the proviso that the release shall not prejudice the
claims of the releaser against the other partner operates not as a release (in which case it
will be repugnant) but as a covenant not to sue.

Finally, it is to be added that the fore mentioned points of law relating to provisos properly
so called, i.e. excepting or qualifying provisos may not apply with regard to the
construction of complimenting and coordinating provisos. This is because though
framed in the form of provisos, complimenting or coordinate provisos may in essence be
an independent substantive clause. They will therefore have the effect of substantive
clauses and should be construed as such.

Hence in all cases, one has to look at the substance not the form, since that which is in the
form of a proviso may in substance be a fresh or independent substantive clause, adding to
the preceding provisions and not merely excepting or qualifying it.
302
Schedules and Attachments as Aids to Construction
Many documents, particularly those of some length, often have schedules and other
documents (tables, lists, graphs etc) appended to them. In traditional deeds and
instruments etc, these are in practice often inserted after the operational part but before the
execution by the parties, and normally in the same order in which they are mentioned in
the body of the document. This is to ensure that the signature of the parties and their
witnesses if any, in the attestation clause, control every part of the instrument or document
including the schedules and other attachments. See The Green Book p 40.

In practice, schedules and other attachments may be used in documents for inter alia, the
purposes of ensuring a clear presentation and more efficient communication of the
contents of the document. The general practice here is to use schedules etc to improve the
design and flow of the document by placing matters of principle and concepts in the
document while having lesser matters of detail and machinery to the schedule.

Schedules and attachments in effect enable a clear presentation of the main clauses of the
document uncluttered by materials of secondary and incidental importance. Specifically,
schedules and attachments could be used for the ff purposes:
a) To set out details into one or more clauses: the common use of a schedule or
attachment is to set out detailed provisions into a clause(s). This is often the case where
the details are not similar in nature to the contents to the clause(s); or a lengthy and
complex and will not be conveniently accommodated in the clause. Such materials
included lists, tables, charts, maps, diagrams, and other special forms etc. here tables
may for example be used to set out technical details etc in a document- especially
where the tables set out the data more clearly than words.
b) To include copies of other documents, instruments, texts etc. Here also materials may
be put in a schedule or attachment because they form a separate document instrument
or text etc which is relevant to the clause(s) but which cannot be conveniently
accommodated in the clause(s). These materials might include documents such as
treatises, contracts, by-laws, etc etc.
c) To set out examples: schedules and attachments may also be used for the purpose of
setting out examples relevant to the clause(s). Here a clause which confers rights may
be supplemented by provisions in the schedule which illustrate how these rights are to
be applied in practice. It is nevertheless important to remember that the schedule or
attachment must (like plans and maps previously discussed) in all cases, be connected
to the document by appropriate words i.e. the introducing or inducing words.
[ROBINSON P 35]. It is also worthwhile to indicate at the beginning of each schedule
or attachment the clause to which it relates for ease of reference and to avoid confusion
etc.

For purposes of interpretation, schedules and attachments to documents are considered

part of the document to which they are appended and may consequently be taken into
account in its interpretation. Hence in construing the body of the document, the provision
of the schedule may be looked at and vice versa.
303
However the real legal status of the scheduled materials and attachments and the weight to
be attached to them in the interpretation of the document to which they are appended must
in each case, be determined in the light of the words connecting them to the document if
any-the introducing or inducing words.
Here a lot will turn on whether the scheduled materials are incorporated or not into the
document and the nature and extent of the incorporation.

Scheduled materials incorporated into the text of the document.

The introducing or inducing words may, as is often the case, have the effect of
incorporating the scheduled materials and attachments into the text of the document and
thereby making the scheduled materials and attachments an integral part of the document.
The integrated scheduled materials and attachments will then be construed as if they
appeared in the main body of the document to which they are appended. And any conflicts
will then be considered a matter of internal inconsistency and resolved as a matter of
construction or that failing, by resort to any one of the several conflict resolution strategies
in the interpretation of documents.

With regard to scheduled plans and maps, it is to be recalled that the position is much the
same [the rule in Doe D Leicester]. The status and weight of scheduled materials will
again turn heavily on the connecting or introducing words. See

Refer to Notes In Relation to Parcels and Lands [Supra].

Halsbury 4th Edn Vol 12 1523; Eastwood v. Ashton

Wallington v. Townsend [1939]2 AllER 225.

Scheduled Materials and Attachments Not Incorporated

The materials and attachments set out in the schedule may in some cases be merely be
referred to in the body of the document without being incorporated or made part of the
text. (e.g. materials scheduled for convenience only). Such materials do not form part of
the text of the document even though they may be used where appropriate in interpreting
the provisions of a document. However, in the event of conflict the contents of the main
document will prevail over the scheduled materials.

Punctuation as Aids to Interpretation

Many draftsmen today use punctuation in documents in order to inter alia enhance clarity.
Common punctuation marks used in documents today include, full stops, commas, semi
colons, colons, quotation marks, question marks, parenthesis etc.

Paradoxically however, the authorities even do not as of today appear to be settled as to

the significance of such punctuation, in the interpretation of documents. One school of
thought (to be referred to as the traditional school takes the position that punctuation
marks are not to be used as aids and are therefore to be disregarded.

304
Sanford v. Raikes [1816] 1 MER 646
@ 656 per Grant MR wherein he notes

“ it is from the words and the context, not from the punctuation that the sense must be
collected”.

Gordon v.Gordon [1871] LR 5 HL 254

per Lord Wensbury who treated punctuation in a will he was construing as unimportant.

On the other hand, a number of cases have highlighted the significance of punctuation in
construing documents. See Houston V. Burns [1918] AC 337 per Lord Shaw wherein he
noted “punctuation is a rational part of English composition and is sometimes quite
significantly employed. I see no reason for depriving legal documents of such significance
as attaches to punctuation in other writings”.

It is however important to emphasise right at the outset that the traditional distrust
regarding the use of punctuation in construing documents has rather deep historical roots
as Doonan points out @ 150 of his DRAFTING punctuation was rarely used in old legal
documents so that it was not unusual to find a document which may run for several pages
without full stops, commas or other punctuation. This was largely for the reason that the
punctuation might be erroneously construed by the courts as affecting the meaning of the
words used when they were not intended to affect meaning.

Indeed historically, it was thought that the function of punctuation was basically only to
aid a speaker of written language as to such matters as to his breathing, and the length of
his pause and accent etc and that it had no implication for the meaning of the language
used.

Thornton comments on this historical function of punctuation @ 34 of his Legislative

Drafting as follows: “punctuation… developed because of the inability of written
language to indicate certain qualities of speech, for example, the pause or accent denoting
emphasis, or the rising inflection distinguishing a question from a statement. Punctuation
was thought to be a matter of significance only to the speaker of written language,
advising him as to his breathing and the length of his pauses. It is said for instance, that
when the Greeks began to punctuate their writings, their system of dots showed the proper
places for breathing and accent. Similarly, in anglo-saxon times, a system of light
punctuation was developed from the marking of liturgical chants and was designed to help
the public reading of a text”.

However the role of punctuation has undoubtedly changed significantly today through the
process of development from a mere guide to the length of pause etc, to an aid to inter alia
sentence structure and intended meaning. See Thornton @ 34.

Thus Thornton notes “punctuation is now recognized as a mechanical aid to make the
relationship of the parts of a sentence more readily apparent to the reader. It is a devise of
syntax-a means supplementary to word order, of suggesting the groupings of words in a
305
sentence and thus revealing its structural patterns. The purpose of punctuation is to
assist the reader to comprehend more quickly the intended meaning by providing the
signposts to sentence structure”.

JK Aitken in his Elements Of Drafting (9th Ed) makes similar comments on the modern
role of punctuation as follows: “in the English language which is a little inflected, the
meaning of a sentence is derived from the order and grouping of words. The grouping of
words and the pattern of a sentence can be made more evident to the reader by the use of
punctuation.

See also Megarry LC in 1959 LQR 31 wherein he notes “both punctuation and
arrangement may be of the highest importance in suggesting one interpretation and
concealing another… nobody in his right senses whiles trying to interprete an obscure
passage or prose would disregard punctuation, from commas and quotation marks to
brackets and full stops”.

In effect, punctuation is currently, largely considered one of the clues that can be relied on
by the competent language user in establishing the structure and meaning of the language
of a written document-so that the presence or absence of a particular punctuation could be
an important determinant of the meaning and effect of language used in the document.

In consequence of the dominant contemporary position regarding the status and function
of punctuation, there appears to be no basis whatsoever for refusing to consider
punctuation today, for whatever assistance it might provide, as an aid to the construction
of a document. The dominant trend of the modern authorities in Ghana and other common
law jurisdictions appear to accept punctuation as aids to construction of documents.

Re Stell [1979] CH 218.

It is also important to note that under the MOPA to interpretation of documents,

punctuation is clearly then accepted as forming an important part of a document (i.e. part
of its internal context) which would consequently be taken into account in arriving at the
meaning, scope and effect of language which reflects the intention of the author(s).

Be that as it may, punctuation is even under the MOPA regarded only as an aid and no
more.

Marshall v. Cottingham [1981] 3 AllER 8 per Sir Robert Megarry V-C

This summons, taken out by the receiver, raises questions about a receiver appointed by a
mortgagee. The plaintiff seeks payment of the balance in the receiver’s hands of the
proceeds of sale of premises. The debenture to a bank to secure money granted the bank
power to appoint a receiver in default of payment, inter alia, as follows:
‘The receiver shall be entitled to retain out of any money received by him, for his
remuneration, and in satisfaction of all costs, charges, and expenses incurred by him as
receiver, a commission at such rate, not exceeding five per centum on the gross amount of
all money received, as is specified in his appointment, and if no rate is so specified, then at
306
the rate of five per centum on the gross amount, or at such other rate as the court thinks fit
to allow, on application made by him for that purpose.’
Issues raised:
1. Whether in the absence of any rate specified in his appointment or in any order of the
court, the receiver is entitled, in the language of the section,
To retain ‘a commission’ at the rate of ‘five per centum’ on the gross amount of all
money received as his ‘remuneration’ and ‘in satisfaction of all costs, charges, and
expenses incurred by him as receiver’.

Plaintiff’s contention: ‘if no rate is so specified, then at the rate of five per centum on the
gross amount, or at such other rate as the court thinks fit to allow, on application made by
him for that purpose.’, omit the last comma, ie:
‘if no rate is so specified, then at the rate of five per centum on the gross amount, or at
such other rate as the court thinks fit to allow on application made by him for that
purpose.’ and it would be clear that there was an alternative:
The rate was either to be 5%, in which case there was to be no application to the court, or
else it was to be such other rate as was fixed on an application to the court. But the last
comma was there and produced a parenthetical effect: the rate was to be 5% (or such other
rate as the court allows) on application made by the receiver for that purpose.

For the receiver-defendant: grammatical sense must prevail over punctuation.

Held per Sir Robert Megarry V-C @ 12

1. The day is long past when the courts would pay no heed to punctuation in an Act of
Parliament: [See Hanlon v Law Society [1980]2 AllER 199 , [1981] AC124]
2. Nor do I say that a mere comma can have little force; indeed , I would be the last to
deny that its presence or absence may be highly significant: [see Re Steel (dec’d)
Public Trustee v Christian Aid Society [1978] 2 AllER 1026, [1979] Ch 218]
3. Yet throughout one must remember that punctuation is normally an aid, and no more
than an aid, towards revealing the meaning of phrases used, and the sense that they are
to convey when put in their setting.
4. Punctuation is the servant and not the master of substance and meaning.
5. Although a pair of commas may of course be used to enclose a parenthetic phrase,
there is no rule of grammar, usage or common sense that requires words so enclosed to
be treated as a parenthesis.
6. In the result the plaintiff’s submission fails and the receiver is right for the receiver
does not need to apply to the court if he is content with 5% of the gross proceeds. If he
wishes to obtain some other rate, he must apply to the court for that purpose.

Even so, the courts appear to be unwilling to put so much weight on punctuation as aids to
interpretation because of what they describe as the inherent unreliability of punctuation-
particularly because many of the conventions governing their use are fluid and unstable;
and often discretion is left to the individual writer to vary punctuation as a matter of style.
Moreover, even competent users of the language sometimes make mistakes as to their use.

307
Yet as with other aids under the MOPA, the weight put on punctuation will vary from case
to case and after due account has been take of the context etc.
Finally it has to be said that in practice, concerns as to the effect of punctuation on the
meaning of the language used in the document could be dealt with by an express provision
in the interpretation section of the document by stating, if it is desired, as follows:
“punctuation used in this document is to be ignored in determining the construction of its
provisions” or “ if any provision in this document is capable of being interpreted in one
way with regard to the punctuation and in another way, without regard to the punctuation,
the latter is to be preferred”.

On the other hand, if it is desired that the punctuation is to be taken into account the ff
clauses might be included: “punctuation are to be given full effect in the construction of
the document” or, “if any provision in this document is capable of being interpreted in one
way… the former is to be preferred”. See Doonan @ 152.

In the absence of any such provision, punctuation will of course be taken into account in
interpretation as part of the context of the document under the MOPA.

Another important upshot of the foregoing discussions is clearly that punctuation needs to
be carefully used and only when necessary since their careless and arbitrary use might
only create confusion and difficulties of interpretation.

Titles/Headings as Aids to Interpretation

In practice, many documents of some length often contain titles or headings of all kinds.
These titles or headings often relate to or appear over either the document as a whole or
some clause(s) or part(s) of the document. See for example, the conditions of service of a
big company such as VALCO as in the case of *Akuffo v. Valco [unreported].

Titles or headings (including sub-titles, sub-headings) are often intended to represent what
the drafter(s) or author(s) consider to be the subject matter or the essence or proper
purpose of the whole document or part(s) of it as the case may be. Hence in practice,
headings and titles typically serve as some sort of label or signpost to the clause(s) or
part(s) over which they appear. Consequently heading or title should as much as possible
be brief and descriptive and ought to indicate the scope of the clause(s) or part(s) to which
they refer.

Properly employed, headings and titles can also help reveal the overall scheme of a
document or provide a useful outline of the same. They are also said to make for ease of
reference where the various headings and titles, sub-headings and sub-titles are
conveniently identified and referred to.

The title or heading is undoubtedly a part of the document (even if it is not a critical part)
and is consequently to be taken into account in its interpretation-especially under the
MOPA which requires that the document be read as a whole, taken proper account of all

308
items of the relevant context in order to arrive at a meaning that reflects the intention of
the author(s).

Tetteh Akufo v Valco, CA; Valco v Tetteh Akufo [2003-2004] SCGLR

The CBA between the appellant company and the employees provided the following:
Article 13-Leaving the Service of the Company
(a) If the company terminates the service of a regular employee other than in
case of summary dismissal, the company shall give to the employee at least
14 days notice to expire not later than the last day of current month of pay to
the employee…….that would have accrued to him during the period of
notice.
(b) Similarly an employee wishing to resign from the company should give…..
(c) Notwithstanding the above, a month’s notice will be given by either party
…..

Article-15-Redundancy
(c) In the event of redundancy, the company shall notify the union in advance as far
as possible…
(d) ….
(e)Employee to be declared redundant will be given two months notice or paid in
lieu.

The plaintiffs argued that Art 15(e) should be read together with art 13(a) and (b) and that
the logical outcome of that would be to construe the amount to be “paid in lieu”, under
15(e0, as meaning the sum of money which would have accrued to the plaintiffs during
the period of notice. They contended that reading the labour agreement as whole, the
phrase “leaving the service of the company” in art 13 meant the same as termination of
employment, and that redundancy in art 159e) was a form of termination of employment.
Council for the respondent company contend that articles 15(e) and 139a) are distinct and
different and deal with entirely different situations, namely ‘redundancy’ and ‘leaving the
service of the company’
Held:
a. The well established rule of interpretation is that a document like the labour agreement
should be construed as a whole in order to obtain its full meaning and effect. Thus the
language used and all the provisions in the termination clauses should be looked at as a
whole and very clause must be compared with the other and one entire sense made out
of them. That it was only in so doing that the true meaning and intention of the parties
could be discovered: Boateng v Valco.
b. Thus Art 13 should be given the general meaning, which the heading suggests, that is,
the concept of leaving the service.
c. Where however, provision has been made for specific purposes in a document, effect
must be given to those purposes or situations. Art 13 & 15 could be read together if
they dealt with the same or similar matter.
d. Where the two articles deal with entirely different situations, it will be doing violence
to the rules of interpretation to insist that the two should be read together.
e. If the parties had intended such result they would have so indicated.
309
f. It is trite law that the rules of construction of statutes are generally the same as those
for the construction of deeds and other documents.
g. It is settled canon of construction that variations in language of statutory provisions do
not always point to a change of intent: Bilson v Apaloo; NPP v NDC

Boateng v. Valco [1984-86] 1 GLR 733.

However in the event of a conflict, the clauses of the body of the document (especially
those of the operative parts) will prevail over those of the titles or heading in the event of
an unresolvable conflict. In such a situation, the heading or title might be considered a
false label (see notes on false labels).

In effect, the court will take account of any titles, headings or sub-headings etc inserted by
the drafter(s) or author(s) in its interpretation of a document or part thereof. But then the
title or heading serves only as a guide to the intention of the author(s) and cannot be
conclusive as to the meaning scope and effect of a document or part of it. The full
meaning and effect of the language used will always be determined by the court as a
matter of law and or construction.

Marginal Notes/Side Notes as Aids to Interpretation

Marginal notes or side notes are short notations often found at the side of the clause(s) or
section(s) of a document or Act.
The object of a marginal note is often to give some concise indication of the contents of
the clause(s) to which it refers and thereby to enable a reader at a glance through such
notes, to understand the framework of the clause(s). Marginal notes also enable the reader
to direct his attention quickly to the portion(s) of the document to which he is looking for.
Hence marginal notes are often referred to as “finder’s aids”. See Thornton 4 TH ED 185;
Robinson 77 -78.

It is however again important to state right at the outset that in practice, marginal notes are
often only an approximation and may not cover all the details of matters falling within the
clause(s) to which they are attached.
In preparing marginal notes, drafters often only try to highlight in a word or two, the
primary matter dealt with in the clause in order to facilitate easy movement through the
document, not full understanding. To accomplish this purpose, drafters often rely on
conventional labels or highlight particular aspects of a section without attempting to be
accurate or comprehensive. Hence in practice, marginal notes are often brief and may be
inaccurate.

As part of the document, the marginal notes may be taken into account in interpretation of
documents under the MOPA- although not too much weight should be placed on it on
account of its inherent shortcomings indicated above.
But again, the weight to be put on a marginal note would vary from case to case.

310
Needless to add, in the event of an unresolvable conflict the provisions of the main body
would prevail over the marginal notes which are largely not considered an essential part of
the document. Hence the marginal note will for example not be allowed to throw doubt on
an otherwise clear operative part in construction. See Lewison at 114-253.

National Farmers Union Mutual Insurance Society Ltd v. Dawson [1941] 2 KB 424.
In this case involving an insurance policy containing the marginal notes, Viscount
Caldecote CJ rejected an argument based on the marginal note saying that, “it was an
unsafe guide to construction”.

Gerrard v Lewis [1882] 10 QBD 90.

311
Parts of a Statute as Aids to Construction
The parts of a statute are at common law, often usefully divided into:
a) enacting or operative parts-such as sections, schedules, provisos, savings, etc and
b) the non-enacting or descriptive parts such as titles, headings, marginal notes,
punctuation, etc.

As previously noted, the dominant MOPA to the interpretation of statutes dictates that all
the parts of a statute (both enacting and non-enacting parts) are to be taken into account in
its interpretation so long as they shed light on the legislative purpose or intended meanings
of the provision.

In practice however, although the courts appear to have little difficulty in taking account
of the enacting or operative parts of the statute (i.e. sections, schedules, provisos etc) as
aids to construction of other provisions of the same statute, a study of the authorities
reveal considerable distrust or doubts respecting the use of the non-enacting or descriptive
parts (such as headings, marginal notes etc) as aids to construction. This distrust or
tendency to discount the non enacting or descriptive parts as aids, contrary to the dictates
of the MOPA, is largely grounded in the historical distrust or sometimes rejection of most
of these non enacting or descriptive parts as aids at common law, mainly as a result of
certain anomalies in British parliamentary history and procedure which had the
consequence that descriptive parts were considered unamendable parts of a statute which
were not to be taken into account in their interpretation.

Paradoxically however, the provisions of our interpretation Act 1960 CA 4, concerning

the non-enacting or descriptive parts (particularly sections 2-4) largely reflects the
confused historical position at common law and thereby import the bulk of the confusion
at common law into our law, even though the anomalies of British parliamentary history
and procedure which gave rise to the historical common law position do not apply in
Ghana today.

The burden of our discussion here is consequently to consider the legal position in Ghana
today respecting the use of both enacting and non enacting parts of a statute as aids to its
construction and to evaluate same in terms of the now dominant MOPA.
(see sections 2 & 3 of the CA 4. see also section 4 (this is contrary to the MOPA).

Interpretation Act, 1960 (CA 4) [As Amended]

Section 1—Application.
Each provision of this Act applies to every enactment being—
(a) the Constitution, an Act (including this Act) of the Constituent Assembly or of the
Parliament of the Republic of Ghana.
(b) a legislative measure continued in force by the Constitution, or
(c) an instrument made (directly or indirectly) under any such enactment,
except insofar as the contrary intention appears in the enactment.

Operation of Enactments
312
Section 2—Long Title and Preamble.
The long title and the preamble form part of an Act intended to assist in explaining the
purport and object of the Act.
Section 3—Punctuation.
Punctuation forms part of an enactment and may be used as an aid to its construction.
Section 4—Headings and Marginal Notes.
An arrangement of sections or of similar divisions of an enactment placed at the front of
an enactment, an arrangement of sections or of similar divisions of an enactment placed at
the front of an enactment, titles placed at the head or beginning of any subdivision of an
enactment and notes and references placed at the side of any provision are intended for
convenience of reference only and do not form part of the enactment.[As amended by the
Interpretation (Amendment) Act, 1961 (Act 92) s.1]

Section 5—Descriptive Words.

Words in an enactment descriptive of another enactment are intended for convenience of
reference only and shall not be used as an aid to the construction of the enactment to
which they refer.The

Enacting Or Operative Parts of a Statute

They refer to the parts of a statute which creates the operative rules of law. In the words of
Bennion in his Statutory Interpretation (2ND ED) @ 407, the operative parts of a statute
consist of “those parts that constitutes parliament’s pronouncement of law”. See also
Cross p 123.

The enacting or operating sections of a statute as previously noted will normally comprise
of the interpretive sections or definitive sections, schedules, provisos and savings.

The Sections
Where as is usually the case today, an Act contains more than one enactment, it is divided
into sections. Each section is normally deemed to be a substantive enactment without the
need for enacting words other than the Acts initial enacting formula. (Bennion p 488).

Here it is to be recalled that the earliest statutes (i.e. before the Interpretation Act of 1850)
were not divided into sections, had no formal structure, and delivered their message in
whatever ways were deemed best. It was much later that by virtue of the Interpretation
Act 1850, sections were introduced into statutes and later as sections grew longer,
subsections etc were introduced. See Bennion 488.

The section is today the main operative component of a statute and is consequently the
primary indication of the legislature’s meaning and intention.
The sections and subsections collectively constitute the body of the Act or statute.

The sections of most modern statutes are very carefully crafted and arranged and often
have a unity of purpose or theme. Hence, the way sections are organized or arranged in a
statute may today serve a useful aid to its interpretation particularly, under the MOPA.
313
Thornton in pp 78-79; Bennion p 490.

In the light of the foregoing, the traditional view long held in cases such as R v Newark –
Upon Trench Inhabitants [1824] 3 B & C 59 @ 63 and 71 that the division of an Act
into sections is often arbitrary and ought not to be treated as furnishing a guide to its
construction is no longer valid today especially on account of the relatively more precise
drafting of today. Thus, the contents of one section might also prove useful in the
interpretation of other sections of the same statute considering that their provisions have to
be construed as a whole.

Definition/ Interpretation Sections

As previously indicated under documents, definitions are basically devices used in
drafting to regulate the meaning of words, particularly those who’s accepted usage or
ordinary meaning in a particular linguistic community is inadequate to convey the
intended message. Many modern statutes consequently have interpretation or definition
sections in which is declared the meaning certain words and expressions bear when used
in the statute. See e.g. the Wills Act 1971 Act 360 in section 18.

Interpretation sections basically perform the same functions in statues as in documents and
are often categorized in much the same terms such as:
1. Comprehensive definitions (see section 18 of Act 360 which defines “wife” or
2. narrowing or exclusionary definitions
3. Extending definitions (which take the form of “T includes X”).
4. referential definitions and labeling definitions

As in the case of documents, one has to be wary of the use of definitions in statutes-
especially because careless drafting might create doubts and other difficulties of
interpretation. Hence a definition ought to be used in the statute only in defining words
which are ambiguous or equivocal and not to give an artificial meaning to a word, the
ordinary meaning of which is plain. Thornton explains the rationale underlying this
position at p 145 of his Legislative Drafting 4TH ED thus:

“freedom to stipulate definitions at will is however largely theoretical because definitions

in legislation is only useful so long as it serves the essential purpose of determining and
communicating the legislation. To serve the purpose of easy communication, a definition
must follow customary usage as closely as possible. A definition which places a
completely forced and artificial meaning on a term is a bad definition”.

The Functional Constructional Rule

Under the common law, an enactment must be construed so that significance is given to
each component of the Act containing it according to its legislative function as such a
component. This may be called the functional construction rule

Halsbury 4th Ed Vol 44 1390 [845]

A statutory definition may be:
314
1. A clarifying definition, which clarifies the meaning of a common word or phrase by
stating that it does or dose not include specified matters;
2. A labeling definition, which uses a term as a label denoting a concept, perhaps
complex, thant can then be referred to merely by use of the label;
3. A Referential definition, which attracts a meaning already established in law, whether
by statute or otherwise
4. An Exclusionary definition, which excludes a meaning that otherwise would or might
be taken to be included in the term
5. An Enlarging definition, which adds a meaning that otherwise would or might not be
taken to be included in the term; or
6. A Comprehensive definition, which provides a full , that is exhaustive, statement of the
meaning of the term.

In the construction of an interpretation section in a statute, it is also presumed that

parliament had been especially precise and careful in its choice of language so that the
rule that words are to be construed according to their ordinary meaning carries special
weight; and the courts would as much as possible, avoid a situation where they have to
redefine the provisions of a definition section.

R v. Calder And Boyers Ltd [1961] 1 QB 151 @ 168.

315
In re Wykes decd; Riddington v Spencer [1961] CH 229 @ 244 and 245.
A testator provided in his will the ff:
“The remaining one part to the board of directors of E. Wytes (Leiscester) Limited to be
used at their discretion as a benevolent or welfare fund or for welfare purposes for the sole
benefit of the past, present and future employees of the company. I declare that my
executors are empowered to accept the receipt of the then acting secretary in full discharge
of the amount due.’
The issue was whether the objects of the will could be used exclusively for charitable
purposes but could nevertheless be used for purposes which are not charitable.
Held per Buckley J
1. It is well established that the language of a statute must primarily be construed
according to its natural meaning.
2. If the language is ambiguous the long title of the Act may be looked at to help resolve
the ambiguity; it may not be looked at to modify the interpretation of the plain
language.
3. The language in this section is clear and unambiguous, and its operation cannot be in
any way controlled by reference to the long title of the Act.
4. The intention of the legislature, like the intention of the a testator, is primarily to be
ascertained by reading the language employed,
5. And it is not for this court to corset that intention, if it be clearly expressed, into some
shape which accords better with the fashion of professional legal thought than the
natural meaning of the language employed.
6. More particularly, I think, this must be so when one is concerned with a definition
section, where one must presume that Parliament would be specially precise and
careful in its choice of language.
7. The section is clear, unambiguous and construed in its natural sense it produces no
absurdity or hardship.
8. A trust for the benefit of employees of a particular company, unless it be for the relief
of poverty, cannot be charitable in the eye of the law because such a trust lacks a
sufficient element of public benefit. [Oppenheim v tobacco Securities Trust Co. Ltd
[1951]AC 297]
9. On the other hand a trust to relieve the poverty of employees of a particular company
has been held to be charitable.[Gibson v South American Stores (Gath & Chaves)
Ltd [1950] Ch 177]

As in the case of non-statutory documents, where the interpretation section in a statute

provides that the word or phrase shall mean what the interpretation sections says it shall
mean, (x means y) the word or phrase is unless there are compelling reasons to the
contrary, to be applied or restricted to the meaning indicated in the interpretation section.
See
Maxwell @ 20;

R v. Britton [1967] 2 Qb 51

Togbe Konda v. Togbe Dompre [1978] GLR 354@ 356.

316
This dealt with the provisions of the Stool Lands Boundary Settlement Decree which
involved the definition of “boundary”.

317
Republic v. High Court Accra, Ex Parte Dake [1992] 2 GLR 688 SC
[especially the dissenting judgment of Edward Wiredu JSC and Kpegah JSC.]
The plaintiff's case is that before judgment was delivered a law had been passed which
took away the jurisdiction of the High Court in issues involving the determination of stool
land boundaries. Hence the contention that the High Court, Ho had no jurisdiction to
determine a matter involving the determination of the boundary between Peki and
Awudome.

Held:
1. The enactment in question is the Stool Lands Boundaries Settlement Decree, 1973
(N.R.C.D. 172). The relevant section in N.R.C.D. 172 as far as this case is concerned
in section 4. It provides:
2. "4. (1) The Commissioner shall have exclusive jurisdiction to determine the
boundaries of stool lands and to hear and determine questions or disputes relating
thereto.
3. (2) Where on or after the commencement of this Decree any proceedings are pending
or are brought in any Court and in either case it appears to the Court that the situation
of any stool land boundary is the real issue in dispute before the Court, the Court
shall decline jurisdiction over the determination of that issue; but where it appears to
the Court that the situation of the said boundary is only incidental to the
determination of the real issue, the Court shall order a stay of those proceedings until
the boundary shall have been finally determined as provided in this Decree and may
also make such incidental or consequential orders as the Court may deem just.
4. (3) In this section the reference to a Court shall include a reference to a judicial or
quasi judicial body."
5. Section 14 defines both "stool land" and "boundary" as follows: "'boundary' means
the line imaginary or otherwise which marks the confines of land in respect of which
a jurisdictional proprietary interest is vested in any Stool; . . .
6. 'stool land' includes any land or interest in, or right over, any land controlled by a
Stool or Skin, the head of a particular community or the captain of a company for the
benefit of the subjects of that Stool or the members of that community or [p.764]
company; and 'Stool' includes a Skin and the person or body of persons having
control over stool land."
7. The trial judge at the High Court, Ho, if he had adverted his mind to the provisions of
section 14 of N.R.C.D. 172 would have realized that the land which formed the
subject matter of the dispute was stool land as defined by N.R.C.D. 172.
8. It is my humble opinion that where, as in this case, a statute had defined words used
in the statute, it is to that statute that one must look for the meaning of those words.
The learned judge who dealt with the matter at the High Court, Ho defined "stool
land" in terms of the customary meaning applied to the term in the locality of the
parties which defined it in terms of ownership.
9. Commenting on the definitions set out in N.R.C.D. 172, as quoted in this judgment,
the Court of Appeal in Togbe Konda v. Togbe Dompre , C.A. stated per Annan J.A.:
10. "These definitions extend the customary law meaning of stool land for the purposes
of the Decree and cover the case where there is a land boundary dispute between
318
 distinct communities or traditional areas owing allegiance to specific stools where the
proprietary interest in the land is not vested in those stools. If the intention behind the
Decree was to limit the jurisdiction of the Stool Lands Boundaries Settlement
Commission to stool lands in the usual acceptation of the term in customary law there
would have been no need for the extended definition in the Decree."

11. The unlimited jurisdiction which the High Court undoubtedly possesses is given
subject to the Constitution and any other enactment. Where therefore an enactment
ousts the jurisdiction of the High Court in any particular matter and confers that
jurisdiction on some other institution or body, any attempt by the High Court to
assume jurisdiction in- spite of the clear ouster of its jurisdiction will amount to an
usurpation of jurisdiction.

12. Any proceedings or judgments emanating from the exercise of such usurped
jurisdiction is void and of no legal effect. Such a judgment would have been
pronounced without jurisdiction and a judgment pronounced without jurisdiction has
no effect in law:

Again, an extending definition in a statute only extends the meaning of a word but does
not take away its ordinary meaning. A definition in the form of “T includes X”
comprehends not only the ordinary meaning of “T” but as well as its extended meaning.
See Bennion 421; Maxwell 270, Craies 214;

Cross 119-120
When an interpretation section states that a word or phrase ‘means……’, any other
meaning is excluded, whereas the word ‘includes’ indicates an extension of the ordinary
meaning which continues to apply in appropriate cases.

Ankrah v Ofori [1974] 1 GLR 185-194

Counsel referred to section 4 of the Land Development (Protection of Purchasers), Act,
1960 (Act 2), which defines "conveyance" to include "a transfer of land by customary
law," and submitted that there is no evidence that the respondents acquired the disputed
land by customary law. When the attention of counsel was drawn to the words "or a
person claiming through him" appearing in section 1 (1) ,b) and (c), counsel submitted that
those words should be interpreted to mean a person who had himself acquired his land
from the purchaser by a "conveyance."
Held per Azu Crabbe, CJ
The Act itself does not contain an exhaustive definition of "conveyance," but the
interpretation clause, section 4, provides that the expression "includes a transfer of land by
customary law."
1. The first question then is, what is a conveyance? In Credland v. Potter (1874) 10
Ch.App. 8 at p. 12, Lord Cairns L.C. stated: "There is no magical meaning in the word
'conveyance'; it denotes an instrument which carries from one person to another an
interest in land."
2. And in Rodger v. Harrison [1893] 1 Q.B. 161, C.A. Lopes L.J. said at pp. 169-170:

319
3. "The term 'conveyance' is well known to conveyancers as meaning an instrument
which passes a freehold interest in real property. It may perhaps include other things,
but I think that in its ordinary use it implies that the document is under seal."
4. In the same case Kay L.J. also said at p. 172: "I think that, except so far as it is
extended by that clause [s. 3 of the Yorkshire Registries Act, [1884], the term
'conveyance' must have its ordinary meaning among conveyancers, viz., of a deed by
which a freehold interest in land is actually transferred from one person to another."
5. In my judgment, the word "conveyance" in subsection (1) (a) of section 1 must be
taken to bear its ordinary meaning, that is, an instrument in writing transferring title to
land, and does not include an agreement for sale.
6. Section 4 leaves this meaning untouched, but enlarges it to include something else.
7. What then is the meaning of the word "includes" in that section?
8. In attempting a definition of this word, I think I can do no better than quote the
following passage from the judgment of Lord Esher M.R. in Rodger v. Harrison
(supra) at p. 167:

Rodger v. Harrison [1893] 1 Q.B. 161, C.A

"The meaning of the word 'include' in such a definition as is given in this Act seems to
be this. The word interpreted has its ordinary meaning. That meaning it still has in the
Act. But then there are other meanings that the legislature wishes it to have in the Act.
So the definition is used to enlarge the meaning of the term beyond its ordinary
meaning and make it include matters which the ordinary meaning would not include.
But this enlargement of meaning is confined to the matters expressly mentioned in
such definition."
9. In delivering the opinion of their Lordships of the Judicial Committee of the Privy
Council in Dilworth v. Commissioner of Stamps [1899] A.C. 99, P.C. Lord Watson
said at pp. 105-106:

Dilworth v. Commrs of Stamps [1899] AC 99

"The word 'include' is very generally used in interpretation clauses in order to enlarge
the meaning of words or phrases occurring in the body of the statute; and when it is so
used these words or phrases must be construed as comprehending, not only such things
as they signify according to their natural import, but also those things which the
interpretation clause declares that they shall include. But the word 'include' is
susceptible of another construction, which may become imperative, if the context of
the Act is sufficient to shew that it was not merely employed for the purpose of adding
to the natural significance of the words or expressions defined. It may be equivalent to
'mean and include,' and in that case it may afford an exhaustive explanation of the
meaning which, for the purposes of the Act, must invariably be attached to these words
or expressions."
10.In my judgment, "conveyance" for the purposes of the Land Development (Protection
of Purchasers) Act, 1960 (Act 2), comprehends that which is a conveyance either in the
ordinary meaning among lawyers, or in the enlarged meaning given to the term by the
interpretation section of the Act.

Deeble v. Robinson [1954] 1 Qb 77 @ 81;

320
Rep v Yevi & Avalifo
1. Article 143(1) empowers Regional Tribunals to try "such offences against the state and
the public interest" as Parliament may by law prescribe. Is the word 'and' coming in
between 'state' and 'public interest' in the provision, to be read as disjunctive or
conjunctive? In other words does it mean that any such offence should be against both
the state and the public interest;- or is it enough if the offence is either against the state
or against public interest?
2. Generally the word 'and' is conjunctive and 'or' disjunctive. But to carry out the
intention of the legislature it may be necessary to read 'and' in place of the disjunction
'or' and vice versa: Anisminic Ltd. vrs. Foreign Compensation Commission (1969) 1
All ER 208 HL.

3. In the instant case, we are not dealing with an ordinary Act of parliament but a national
Constitution. And unless there are compelling reasons for interpreting the word 'and' in
Article 143(1) as being only conjunctive, it would be more desirable to interpret it
liberally to encompass both conjunctive and disjunctive.

4. Thus Regional Tribunals can try such offences against both the state and the public
interest, or against the state or against the public interest. The ‘and’ is therefore to be
read as "and/or".

5. Article 295(1) of the 1992 Constitution defines public interest as follows:

6. “public interest includes any right or advantage which enures or is intended to enure
to the benefit generally of the whole of the people of Ghana". (emphasis supplied)

7. It is significant to note that the word used in defining public interest is 'includes' and
not ‘means’.

8. The word 'means' when used in defining a word usually implies that the meaning of the
word is restricted to the scope indicated in the definition section. On the other hand, the
word 'includes' is often used

"in order to enlarge the meaning of word or phrases occurring in the body of the statute;
and when it is so used these words or phrase must be considered as comprehending not
only such things which the interpretation clause declares that they shall include". Per Lord
Watson in Dilworth vrs. Commissioner of Stamps (1899) AC 99 at 105.

Republic v. Stool Lands Boundaries Settlement Commissioner, Ex Parte

Mampongsu Stool [Supra].

In Re Asante, (Dec’d) Asante v Owusu [1993-94] 2 GLR 71

321
Decision of Amuah Sekyi, Hayfron-Bejamin, Ampiah JJSC (Dissenting In Part).
1. What, then, is the meaning of the word "child" in PNDCL 111?
2. The rule of interpretation is that words are to be construed in bonam partem,
that is they must be taken in their lawful and rightful sense. Thus, an
obligation to pay rates is one to pay only those that are lawfully levied: see R v
Windsor (Mayor) (1844) ;
3. and a covenant by a tenant to pay all parliamentary taxes is construed to include
only such as he may lawfully pay see Gaskell v King (1809).
4. In conformity with this rule, the words "spouse" and "child" in PNDCL 111
must be construed as lawful spouse and lawful child.

Where an enactment or statute contains an extending definition of a term, words used in

connection with the term in its normal meaning are, as is the case with non-statutory
documents, by implication also required to be modified as necessary. See BENNION 421;

Brikom Investment Ltd v. Seaford. [1981] 1 WLR 883

This case involved inter alia, the interpretation of section 32(5) of the English Housing
Act 1961 by which it was provided that “lease included an agreement for a lease”. It was
held that in the case of an agreement for a lease, the words “granted” and “grant” as used
in relation to a lease, were to be adapted accordingly.

An Enlarging definition in a statute may not always fall to be applied to its full extent.
See Bennion 420,

Thomas v. Marshall [1953] AC 543@ 556.

However, the authorities appear to be unanimous that an interpretation clause in an Act is

not necessarily to be applied every time a word defined in it appears in the Act.
The legal position here appears to be that whether the definition clause says so or not, a
definition only applies, where a contrary intention does not appear.
This is because a legislature is said to be always free to disapply a definition whether
expressly or by implication. However, the courts would not likely reach such a conclusion.

Hence it has been noted that an interpretation clause when it defines a word, in essence
“declares what the meaning of the word is to be or what may be included in it where the
circumstances require that it should bear that meaning or have that ambit.

In effect, an interpretation clause is therefore not to be taken as substituting one set of

words for another or strictly defining what the meaning of a term must be under all
circumstances; but rather to be viewed as declaring what must be comprehended in the
term where the circumstances require that it should be so comprehended. Thus, if a
defined expression is used in the context in which the definition would not do, it may be
interpreted according to its ordinary meaning. See CRAIES p 216; Strathern v. Padden
[1926] JC 9 @ 13.

322
Consequently also, where an interpretation clause gives an extended meaning to a word,
it does not follow as a matter of course that if the word is used more than once in the Act,
it is on each occasion used in the extended meaning. It of course may always be a matter
of argument whether or not the word is to apply as defined in the particular clause or in
its ordinary meaning. See

The School Board for London v Jackson [1881] 7 QBD 59 @ 504.

An order was made by a magistrate, upon a complaint by a member of the School Board
for London, against Caroline Jackson, a widow, requiring her to cause her child Ada
Jackson to attend the board school as defined by the Act, willing to receive the child, and
selected by the defendant the parent. On a summons for unlawfully neglecting without
reasonable excuse to comply the defendant claimed she was a poor widow and the child
was staying with here aunt. The magistrate dismissed the summons on ground that it was
not proved that the child was residing with and under the control of the defendant, her
mother. The Act stated: “Parent includes guardian and every person who is liable to
maintain or has the actual custody of any child”.

The issue was the construction of the word ‘parent’ in the interpretation clause.
Held per Lord Coleridge, CJ:
1. It was intended by the Education Act that the children of England should be educated,
and it was intended to impose the responsibility of sending them to school upon
definite persons where those definite persons exist. Primarily the person on whom it
imposes that responsibility is the parent.
2. The object being that children should be educated, parents are the first persons on
whom the order should be made.
3. The fact that the word ‘parent’ includes by the interpretation clause other persons,
guardians, persons liable to maintain, and persons who have the actual custody, if there
be any such, does not appear to prevent the operation of the word ‘parent’ in its
primary and obvious sense, where there is a person who comes under that description.,
ie the mother.
4. The extension of the meaning of the word was intended to meet cases where, for
instance, there is no parent: Pollock B concurred.

Here it has to be noted that draftsmen are human and therefore fallible and might in some
places in the Act, not use the words in the same sense that he has stipulated. The court
may again need to give the term its ordinary meaning in such circumstances. Bennion 417.

Furthermore, the authorities appear to suggest that where an Act contains a definition of a
term, there is a presumption that when the term is used in the document issued under or
for the purpose of the Act, its meaning in the document is intended to be that given by the
definition rather than its ordinary meaning. See Bennion 416.

Wyre Forest District Council v Secretary of State for Environment [1900] 2 WLR 517.

There are however some contentious suggestions in a number of the common law
authorities to the effect that the provision defining the meaning of a word in an Act or
323
statute does not necessarily govern that word when it appears in regulations made under
the Act in the absence of express provisions to that effect. See Maxwell P 27;

Brown v Anderson [1965] 1 WLR 528.

By section 253 (4) of the Road Traffic Act, 1960: “In this Act “…’motor cycle’ means a
mechanically propelled vehicle… with less than four wheels and the net weight of which
unladen does not exceed 8 cwt. ” It was against the law to drive a motor vehicle without a
supervisor under a provisional licence. The defendant was driving a three wheeled car
with a provisional licence but without a supervising qualified driver. He claimed he had
not offended the law since he was not driving a motor cycle within the meaning of s253
(4).
Held:
1) The bubble car for all purposes of the legislation was a motor cycle and it was
erroneous to conclude that it was thereby also a motor bicycle for purposes of the Act.
2) This is a situation in which the expression “motor cycle” may include a motor bicycle,
but the expression “motor bicycle” does not necessarily include all forms of motor
cycle.

But here, it is to be noted that under section 21 of our CA 4, a statutory instrument shall
be construed as one with the Act under which it is made.

Section 21—Construction of Statutory Instrument.

A statutory instrument shall be construed as one with the Act under which it is made.

Finally, it is to be added in respect of referential definitions that an amendment or repeal

of the Act referred to, does not affect the meaning of the referential definition, unless the
amending or repealing Act contains an indication to the contrary.

Schedules in Statutes
The sections of an ACT or statute to one side, the schedule is the other main operative
component of the Act or statute and is essentially, often an extension of the Act or section
of the Act or statute that induces it. As with documents the principal function of a
schedule in statute is inter alia to ensure the clearer presentation and more efficient
communication of the contents of the statute by placing matters of principle or concepts in
the section of the statute while lesser matters of machinery and detail are placed in the
schedule. The use of schedule thereby is to enable presentation of the main sections of the
statute uncluttered by materials of secondary or incidental importance see Thornton, LD
@ 400,

Hals , 44 @ para 822.

324
A Schedule to an Act is to be construed, by virtue of the functional constructional rule, as
an adjunct to to the main body of the Act but nevertheless a part of it. Any conflict
between the inducing section (or any other section of the Act) and the Schedule is to be
resolved without regard to the fact that some of the relevant words are contained in the
Schedule rather than in a section.

Specifically schedule could be used in statues also too;

a) set out details of lists etc ( see for eg schedule of the Narcotic Drugs (Control,
Enforcement and Sanctions) Law 1990, PPNDCL 236 , which has a long list of
drugs considered narcotics
b) to include other documents, forms, tests etc in a statute ( for eg the Bill of Laden
Act 1961, Act 42 which by s1 incorporates articles 1-8 of the International
Convention for the Unification of certain rules of law relating to Bills of Laden,
signed at Brussels August 24, 1924 as set out in the schedule to the Act and the
Oaths Decree which sets out Form of Oath to be sworn by the CJ , supreme court
judges etc in schedule 2. see Article in latest edition of Review of Ghana Law
c) to set out examples etc

Again as in the case of schedules to other document it is important that the schedule be
attached to the body of the statute by appropriate words to one of the sections ( connecting
or inducing words).

With statutes the inducing section/s are often specified in the margin at the head of the
schedule. Virtually the same principles apply in the use of schedule as aids to construction
of statutes as to documents.
For the purposes of interpretation the schedule is considered part of the statute to which it
is attached and may consequently be taken account of in its interpretation ie as part of the
internal context. Schedule may therefore be used as aids to the construction of the main
statute and vice versa:

Kuenyehia v Archer [1993-4] 2 GLR 525

On 23 and February 1993 the Chief Justice administered the oath of allegiance and the
judicial oath to justices of the Supreme Court and the Court of Appeal respectively who
continued in office after the coming into force of the Constitution, 1992. Subsequently the
plaintiffs, all high officers of the Ghana Bar Association acting upon the mandate of the
association, filed suit in the Supreme Court for declarations inter alia that by the combined
effect of article 156(1), (2) and (3), section 4 of the Schedule I and Schedule II of the
Constitution, 1992, the President was the proper person to administer the oath of
allegiance and judicial oath to judges of the superior courts who continued in office after
the coming into force of the Constitution, 1992 and that the purported administration fo
the oaths to those justices by the Chief Justice was null and void.
Held:
1. The language of section 4 of Schedule 1 of the Constitution, 1992 was very plain and
would consequently be construed in its ordinary or natural sense, unless such a
construction led to some ambiguity or absurdity. Thus construed, it was evident from
section 4(1), which clearly referred to justices of the Supreme Court and Court of
325
 Appeal "holding office immediately before the coming into force of this Constitution",
that the section was intended to cover continuing judges only.
2. A constitutional instrument is a document sun generis to be interpreted according to
principles suitable to its peculiar character and not necessarily according to the
ordinary rules and presumptions of statutory interpretation. It appears that the
overwhelming imperatives are the spirit and objectives of the Constitution itself,
keeping an eye always on the aspirations of the future and not overlooking the receding
footsteps of the past. It allows for a liberal and generous interpretation rather than a
narrow legalistic one.
3. In interpreting the relevant provisions of the Constitution, 1992 we must be very
careful to avoid importing into the written document what does not appear therein. For
there could be no difficulty, if an extension was intended as a desired result, for it to be
explicity expressed, in precise terms. Rules of construction do not permit a passage
which has a clear meaning, to be complicated or obfuscated by any interpretation,
however well intentioned

However, the true legal status of a schedule and the weight to be given to it as an aid to
construction will depend on the aim of the Act or statute particularly the enacting or
inducing words which will determine for instance whether or not the schedule is
incorporated or forms part of the Act. This point was succinctly noted by Dickson J in
Hood v Quebec City Catholic school Commission –“a schedule or appendix is part of the
statute but whether it forms part of the test of the law depends on the terms of the Act.

Schedule Material incorporated

Where the inducing words have the effect of incorporating schedule materials these
material are considered an integral part of the statute and is interpreted as if it appears in
the body of the Act itself.

And if there is any conflict between the incorporated material and the rest of the Act it
may be treated as a matter of internal conflict see

IRC v Gittus [1920] 1 KB 563 @ 576 CA

This involved a son being taxed in excess for taking under the will of his father. The tax
Act had in the Fourth Schedule the following headings:
Part 1; “Computation of Profits
Part II: Pre-war Standard
Part III: Capital
S40(2) provided that “The provisions contained in the Second Part of the Fourth Schedule
to this Act shall have effect with respect to the computation of the profits of a pre-war
trade year, and the provisions contained in the Third Part of the Fourth Schedule shall
have effect with respect to the ascertainment of capital for the purposes of this Part of this
Act”
Held:
13.There are two principles or rules of interpretation which ought to be applied to
the combination of Act and Schedule.

326
 14.If the Act says that the Schedule is to be used for a certain purpose and the
heading of the part of the schedule in question shows that, it is prima facie at any
rate devoted to that purpose, then you must read the Act and the Schedule as
though the schedule were operating for that purpose., and if you can satisfy the
language of the section without extending it beyond that purpose you ought to do
it.
15.But if in spite of that you find in the language of the schedule words and terms
that go clearly outside that purpose, then you must give effect to them and you
must not consider them as limited by the heading of that part of the Schedule or
by the purpose mentioned in the Act for which the schedule is prima facie to be
used.
16.You cannot refuse to give effect to clear words simply because prima facie they
seem to be limited by the heading of the schedule and the definition of the
purpose of the schedule contained in the Act.
Language: Those are the rules which I intend to apply to this case as well as I can

IRC v Littlewoods Mail Order Stones Ltd [1963] AC 135 HOL

Ababio v The Republic

As it may be seen from the clauses of the sub-paragraphs of paragraph 5A, the sanctions
relate to matters like recognition of the relationship under the overlord and obedience to
the reverted allegiance. The question then is would the mischief be met by restricting the
sanctions only to chiefs in the Schedule and not applying them to persons generally.
It appears to me that to extend paragraph 5A particularly as to paragraph 5A (2) (b) to
persons in general would be beyond what was necessary to foster the policy of N.L.C.D.
112. And although that interpretation is not so patent in 5A (2) (c), there is nothing
incongruous for "person" in 5A (2) (b) to have a different meaning from that in paragraph
5A (2) (c).

Schedule materials not incorporated

Even where they are not incorporated into the text of the statute, materials set out in the
schedule may be relied on in interpreting the Act as part of its internal context. However,
in the event of a conflict between the Act and these unincorporated material, the Act
prevails. See

City of Victoria v British Columbia Rly Co [1910] 13 WLR 336 CA

Finally it is to be added that suggestions in some authorities that schedule materials etc are
to be referred to only when the Act is ambiguous see Hal 44 @ 880, is no longer good law
especially under the MOPA. As part of the internal context of the statute the schedule
material will be looked at in considering whether or not there is ambiguity in the first
place. The weight to be attached to the schedule material is another matter.

327
Provisos in Statutes
Provisos of all forms continued to be used in most statutes although most skilled
draftsmen insist its use as an anachronism the use of which ought to be abolished. As with
documents provisos in statutes can be categorised into –
a) excepting or qualifying proviso ( or provisos properly so called)
b) complimenting or coordinating provisos

The excepting or qualifying proviso as previously noted basically operates to except out of
the preceding section or paragraph of a statute or to qualify something provided therein
which but for the proviso will be within it. see s8 of Stamps Act 1965, Act 311.

On the other hand a complimenting or coordinating proviso which is largely considered an

abuse of the proviso, does not detract from the general application of the preceding clause
but rather compliments or is coordinate with it. eg proviso of Statute of marriage

“after the issue of a certificate by the Registrar or the grant of a special license by the
Governor, the parties may if they think fit, contract the marriage before the registrar,
provided that before they are permitted to do so each of the parties may sign a written
declaration in the presence of the Registrar which he shall witness in the prescribed form”

As noted under documents, it is always important to determine the type and function of a
proviso in a particular statute in order to determine its proper role if any in interpretation.

There is no doubt however that the proviso forms an integral part of the enacting part of
the section in which it appears so that any reference to a section includes any proviso to
that section and vice versa. Hence a repeal of the section also repeals the proviso see
Bennion @ 494, see-

Hosnall v Bruce [1873] LR 8 CP 378 @ 385

Too, as with other documents the section containing the proviso is as a rule to be
construed as a whole with the proviso, each portion throwing light on the rest, so that it is
not possible to separate the principal section from the proviso see

Jennings v Kelly [1940] AC 206 @ 229

The dispute relates to the granting of a licence for the sale of intoxicating liquors in the
city of Belfast.
Held:
1. The function of a proviso is to include within the scope of the preceding words
something which prima facie would not fall within it, or
2. To exclude something which prima facie would so fall.
3. Although a proviso may well be incapable of putting upon preceding words a
construction which they cannot possible bear, it may without doubt operate to
explain which of two or more possible meanings is the right one to attribute to
them

328
 4. Where there is a proviso, the former part, which is described as the enacting part,
must be construed without reference to the proviso.
5. No doubt there may be cases in which the first part is so clear and unambiguous
as not to admit in regard to the matters which are there clear any reference to any
other part of the section;
6. The proviso may simply be an exception out of what is clearly defined in the
first part or it may be some qualification not inconsistent with what is expressed
in the first part.
7. But in the present case, not only is the first part of the section deficient in
express definition, but the second part is complementary and necessary in order
to ascertain the full intention of the legislature.
8. The proper course is to apply the broad general rule of construction which is that
a section or enactment must be construed as a whole, each portion throwing
light, if need be, on the rest.

Thus in practice the terms of the section or an enactment to which the provision is a
proviso is often of considerable aid to its construction while the proviso can also influence
the meaning of the section of the enactment see

Thompson v Dibdin [1912] AC 533 @ 544 per Lord Asburn

CROSS @ 21
The respondent, banister a baptized and confirmed member of the Church of England and
having been a widower was desirous to marry to the sister of his deceased wife, who was
also a baptized and confirmed member of the church. He believed that if solemnized in
Canada will be recognised in England. But upon informing the appellant, Rev Thomas,
who was a clerk of the Church, of his intention, he advised him that the law of the Church
will not permit them to receive holy communion. But by retrospective operation of the
Deceased Wife’s Sister’s Marriage Act of 1907, the marriage was valid. Upon refusal to
give them communion, the respondents promoted this criminal suit against the appellant
charging him with an offence against ecclesiastical law in refusing the sacrament to the
promoters without lawful authority and asking that he be canonically punished and
condemned in the costs of the suit.
The contention of the clergyman rests upon the first proviso to the section of the 1907 Act
which is as follows:
“Provided always that no clergyman in holy orders of the Church of England shall be
liable to any suit, penalty, or censure, whether civil or ecclesiastical , for anything done or
omitted to be done by him in the performance of the duties of his office…..” And
therefore he could not be charged with any offence:

Held:
1. The section must be read as a whole as the first section of “An Act to amend the
Law…..”
2. The proviso must be limited to the subject-matter of the enacting clause.
3. The settled rule of construction is that a proviso must prima facie be read and
considered in relation to the principal matter to which it is a proviso, that is a marriage
contract as in this case.
329
4. It is not a separate and independent enactment. It must be read in connection with what
precedes and what follows it, as in this case dealing with the objection ofnthe
clergyman to take any part in
5. The words are dependant on the principal enacting words, to which they are tacked as a
proviso.
6. They cannot be read as divorced from their context.

However, the courts appear to have taken a position that since the object of the excepting
or qualifying proviso is only to narrow the effect of the preceding section or provision, the
proviso must as a rule not be construed as enlarging the scope of the preceding section
when it can be fairly and properly construed without attributing to it that effect. In other
words, one would as a rule, construe a proviso to limit and define the main sections or
enactment unless there are compelling reasons to the contrary see Odgers @ 317 –
“unless of necessity, a proviso is never construed as enlarging the scope of the enacting
words. It must be construed as a reference to the preceding parts of the clause to which it
is appended and as subordinate to the main clause of the Act”

Mullins v Treasurer of Surrey [1880] 5 QB 170 @ 173,

where Lord Blush observed thus

“ where one finds a proviso to a section, the natural presumption is that, but for the
proviso, the enacting part of the section would have included the subject matter of the
proviso” see also

The Guardians of the Poor of West Derby Union v Metropolitan Life Assurance
Society
[1897] AC 647 @ 652
The appellant seek to read the provisions of the Poor Law Loans Act of 1871 as if they
conferred upon the Poor Law Board, now the Local Government Board, power to give
authority to a union which has borrowed money upon security extending over a term of
years to redeem as against a creditor who is unwilling. The issue was the construction to
be put on a proviso in the statute.

Held: What is the meaning of a proviso?

1. From seeing any reason for departing from the language of the Act if it were
capable of one or other of the two constructions, my inclination certainly would
be to put upon it the construction that would make it permissive, rather that the
construction that would make it compulsory.
2. I decline to read into any enactment words which are not to be found there, and
which would alter its operative effect because of provisions to be found in any
proviso.
3. Of course a proviso may be used to guide you in the selection of one or other of
two possible constructions of the words to be found in the enactment, and show
when there is doubt about its scope, when it may reasonably admit of doubt as to
its having this scope or that, which is the proper view to take of it;
330
 4. But to find in it an enacting provision which enables something to be done
which is not to be found in the enactment itself on any reasonable construction
of it, simply because otherwise the proviso would be meaningless and senseless,
would be in the highest degree dangerous
– per Lord Watson
5. I am perfectly clear that if the language of the enacting part of the statute does
not contain the provisions which are said to occur in it, you cannot derive these
provisions by implication from a proviso.
6. When one regards the natural history and object of provisos and the manner in
which they find their way into Acts of Parliament, I think your Lordships will
be adopting a very dangerous and certainly unusual course if you were to import
legislation from a proviso wholesale into the body of a statute,
7. Although I perfectly admit that there may be and are many cases in which the
terms of an intelligible proviso may throw considerable light on the ambiguous
import of statutory words.

But again one must be careful not to understand the foregoing as an inflexible rule to the
effect that a proviso cannot ever enlarge the scope of an enacting section ( see Hals 4ed,
44 @ para 481) this cannot be correct, particularly under the MOPA. Here the proviso,
being a part of the internal context, must be taken account of at all stages of determining
the true meaning and effect of enlarging section. And possibly, a proviso, depending on its
wording relative to the particular enacting section, might have the effect of enlarging the
scope of an enacting section see

Eastbourne Corporation v Fortes Ltd [1959] 2 QB 92 @ 107

Repugnant provisos
Sometimes there is a repugnancy between the main enacting section and the proviso. The
old rule regarding the construction of such a repugnant proviso in an Act, is that laid down
in the case of –

Chelsea Waterworks [1731] Fitz 195

namely that “where the proviso of an Act of parliament is directly repugnant to the
purview, the proviso shall stand and be a repeal of the purview as it speaks the last
intention of the makers”

The modern approach especially under the MOPA, is to consider the meaning of the
enactment as a whole, taking account of the proviso and thereby to arrive as much as
possible at a sound interpretation of the relevant provisions that would effectuate the
intention of the legislature see Criaes @ 220.

Finally, it must be added that the foregoing made in respect of excepting or qualifying
provisos do not necessarily apply to complimenting coordinating provisos which, though
framed in the form of proviso , are substantive clauses which have to be construed as such.
Thus it is the substance that matters and what may be is in form a proviso might, under
close scrutiny, be found to be in substance a fresh enactment which adds to and does not

331
merely qualify that which goes before. This is known as a false proviso. Hals 4ed, 44 -
1400 [@ 881 footnote 3.]

Rhonda UDC v Taff Vale Rly Co. [1909] AC 253 @ 258

Stamp Duties Commissioner v Alan Cavaye Atwill [1973] AC 206 @ 229

The Stamp Duty Act provided in s102 (2): ‘ All property which the deceased has disposed
of…. By a settlement containing any trust in respect of that property to take effect after his
death…..Provided that the property deemed to be include in the estate of the deceased
shall be the property which at the time of his death is subject to such trust’

Held: per Viscount Dilhourne.

5. The general function of proviso was to limit or qualify what preceded it.
6. However it is the substance and content of the enactment, not its form, which
has to be considered, and that which is expressed to be a proviso may itself add
to and not merely limit or qualify that which precedes it.: Jennings v Kelly
7. In the strict sense the use of the words “Provided that” in section 102 may also
be disregarded as inapt. The meaning of that provsion and the proviso would be
the same if instead of those words, there had appeared the word “and” or the
words “in which case” and to ascertain the true effect of the provision the second
part, that is to say the proviso, is complementary and necessary in order to
ascertain the full intention of the legislature.

Savings
A saving can be defined as a provision, the intention of which is to narrow the effect of
the enactment to which it refers so a to preserve some existing legal or statutory rule ,
right, privilege or obligation from its operation. See Hal @ 883

Specifically the function of the saving as Thornton puts it at 383 of LD is to

“preserve or save the law right, privilege or an obligation which would otherwise be
repealed or cease to have effect.”

Savings have no particular form but often begin with words like “nothing in this section
shall be construed as”

The necessity for savings have been said to be a consequence of change in the law,
whether caused by a new statute law or by a repeal or modification of the existing law.
Hence in practice, savings provisions are frequently included in legislation to establish
beyond doubt that the legislation is to be construed as additional and not in derogation of
the specified existing law, rights obligations etc. the possibility of repeal or alteration by
implication is thereby excluded. See Thornton @ 387.

The saving then basically resembles a proviso in its function of qualifying the main or
preceding provision except that it has no particular form and relates to an existing legal

332
rule, right etc unlike the proviso which is usually concerned with limiting the new
provision made by a section to which it is attached in any form considered appropriate.

It is however to be noted here that some savings are general and of standing effect. An
important example here is s8 of CA 4 relating to repeals. See Article 19, BA v AG.

As CROSS points out @ 122-3 of SI, a saving being like a proviso, is a qualification of
the generality of the main provisions and is therefore subject to similar principles of
interpretation. Hence a saving like a proviso, must be construed as a whole with the main
provision each throwing light on the other.
In practice however savings have said to be liable guides to the meaning of the provisions
to which they are attached and consequently one has to be cautious as to what weight to
place on the saving in a particular instance see

Ealing London BC v Race relations Board [1972] AC 342

@ 363per Lord Simmon of Glensdale @ Cross @ 123
“… considerable caution is need in construing a general st provision by reference to its st
exceptions. Saving clauses are often included by way of re-assurances, for avoidance of
doubt or from abundance of caution.

It is also important to note that since savings provisions are used to preserve what already
exist, they cannot be taken or construed to create new rights or obligations which did not
already exist. In other words, a saving is not taken to be intended to alter existing rights
and powers etc but only to preserve them see
- Hals 4th ed , voll 44 para 883
- Bennion @ 495
- Altonwoods Case [1600] 1 cole Report 40
- Butcher v Andersen [1868] LR 3 QB 335
- R v Brent Health Authority; exparte Francis [1985] 1 All ER 74

There is also some indication in the number of authorities that since a savings can only
preserve things which were actually existing at the time of its enactment, it cannot affect
transactions complete at the date of the repealing st see Hals 44 @ 883 see Bucther v
Henderson

Further it should be noted that one unsatisfactory feature of savings and the reason good
drafters often resist the addition of savings is that they may paradoxically throw doubt on
matters they intended to reserve but which were not included in the savings. This is often
the effect of the application of the expression unis rule.

Hence it has been said that where a enactment is subject to the express savings or right etc,
it may imply that the enactment is intended to advocate those rights not expressly
mentioned see

Re Williams ; Jones v Williams [1887] 36 CD 573

333
The implication of the foregoing is evident. The draftsman should always be careful to
ensure that his list of items intended to be saved is not exhaustive.

Repugnant savings
The old law appears to be that, a saving clause which is repugnant to the provision of the
main enactment is to be rejected and treated as void. The modern position however seems
to eschew this rule. The true principle in such cases today, it is argued, is to construe the
enacting parts together with the savings in order to arrive at the meaning and effect that
best effectuates the intention of the legislature. So that if the principal object of the Act
can be accomplished and can stand under the restriction of the saving clause, the saving
clause will not be held void for repugnancy see Craies 7 th ed @ 220.

334
Non- Enacting or descriptive parts of statute as aids to interpretation
As previously noted although the courts do not appear to have any serious difficulties in
accepting the enacting or operative parts of the st as aids to its constructing, the position
appears to be diff when it comes to the non enacting or descriptive parts such as headings,
titles marginal notes etc , in which case the authorities reveal considerable distrust and in
some cases total rejection of the use of these parts of the st as aids. this has in practice
engendered considerable confusion in the law of the subject especially in relation to the
MOPA.

In practice these dials and diff largely revolve around 2 main issues namely-
i) whether or not certain descriptive parts ( headings, marginal notes, punctuation etc) are
to be used as ads and where it is accepted that these des parts are to be used as aids
how much weight to be attached to it. In practice also the distrust or tendency to
discount or reject the use of descriptive parts of statutes as aids is often the result of –
a) certain dev and anomalies in British parliamentary history and procedure which
lead to the categorisation of these descriptive components of a statute into so
called amendable descriptive parts (ADP) which were accepted as aids and un-
amendable descriptive parts (UDP) which were held to be unacceptable as aids
to construction.
b) The difference in force between the substantive or enacting parts which create
the operative rules of law example (sections and provisos etc) and the merely
descriptive parts (headings titles marginal notes etc) see Dredger @ 252-3
c) In the specific context of Ghanaian law rather erratic provisions of CA 4
especially s2-5.

Historical common law distinction between ADP’s and UDP’s

Historically, a distinction was drawn at common law in respect of the descriptive
components of a statute between amendable descriptive parts (ADP) and the unamendable
descriptive parts (UDP) on the other. This distinction as previously noted, was itself
reflective of certain anomalies of British parliamentary history and procedure.
Specifically, the ADPs were defined as those descriptive components which were subject
to amendment by parliament and which were part of the bill submitted to Parliament (as
opposed to mere printing corrections) when the Bill was passing through parliament.
These ADPs included for example, the long title, preambles, and the short titles. See
CROSS pp 124-125; BENNION pp 484& 496.

The unamendable descriptive parts on the other hand, are those descriptive components
which were historically not subject to amendment (as opposed to mere printing
corrections) when the Bill for the Act was going through parliament. These parts include
marginal notes, headings, punctuations, etc. See Cross 124-125; Bennion 506.

Historically, Bills submitted to parliament at Westminster did not include all the
descriptive components. Some descriptive components such as titles, preambles, purpose
statements etc, (ADPs) were considered internal and included in the Bill to parliament and
335
might therefore be amended by parliament during the legislative process. Hence, these
were called amendable descriptive components (ADPs).

However, some components such as headings, marginal notes, punctuation etc, (the
UDPs) were subsequently added to the Bill by parliament by parliamentary clerks and
printers after it had received royal assent. Hence these components which were not present
when the Bill was examined by parliament and enacted into law were not considered
integral parts of the Bill. It is to be added that historically, even where these so called
UDPs were included in amendments in provisions submitted to parliament, they were not
separately amendable by the legislature. If changes to these features are desired, they are
treated purely as corrections to the printed text and are carried out by parliamentary clerks.
SEE DREIDGER P 251.

One consequence of the foregoing is that historically, the common law position was to the
effect that while ADPs were properly considered parts of the statute which may be taken
into account in interpretation, the UDPs were considered not part of the statute and were
to be totally disregarded or given little weight.

This position is clearly reflected in a number of the old authorities on the subject. See

R V. Hare [1934] 1 kb 354

@355 where AVERY J noted that headings and marginal notes are not to be used as aids
because they “are inserted after the Bill has become law”. See also

Re Woking Udc [1914] 1 CH 300

@ 322 where Philmore LJ referred to a general rule of law to the effect that marginal
notes must be disregarded in interpretation of statues “upon the principle that those notes
are inserted not under the authority of parliament, but by irresponsible persons”.

However as writers like Bennion point out, these views are today wholly incorrect and not
acceptable even under contemporary English law, considering that parliamentary
procedures even in England have evolved greatly to the point where most descriptive
components (ADPs and UDPs) were often put into the Bill by skilled draftsman prior to
their tabling before parliament and were often subject to the same level of scrutiny and
modification as the substantive provisions. This is much the same position in Ghana
today. (See the standing orders of Parliament).

In effect, in the UK, as in Ghana today, parliamentary practice has evolved to the point
where the anomalies in parliamentary practice which engendered the old common law
distinction between UDPs and ADPs no longer exist. Indeed, even a cursory glance at part
18 of the Standing Orders of the Parliament of Ghana of Nov 2000, entitled BILLS would
clearly reveal that descriptive parts of an Act like long titles, marginal notes etc, are all
taken seriously into account even at the consideration stage of the Bill by parliament. (See
for example paragraph 117, 129(a) and (e) of the Standing Orders).

336
Standing Orders of Parliament: Nov 2000
117: Intituling of Bills and their division into clauses
All Bills shall be distinguished by titles and shall be divided into successive clauses
consecutively numbered and to every clause there shall be annexed in the margin or at the
tp a short indication of its contents

129: Procedure at the Consideration Stage

(a) Mr. Speaker shall call the number of each clause and the clerk shall read the marginal
note opposite to each clause or notes on top of each clause, and if no amendment is
offered Mr. Speaker shall, after each clause has been called, put the question “That
clause…stand part of the Bill;
(e)the consideration of the Schedule (or Schedules) (if any) and the Long Title shall
follow the consideration of the clauses, including new clauses, and the procedure
prescribed in the Order shall, with the necessary modifications, be followed;

These descriptive parts are in effect all amendable by parliament as appropriate in Ghana.
The Act that comes out and all its parts are consequently the work of parliament or under
the authority of parliament. Consequently, there appears to be no basis whatsoever for the
continuous application of the common law distinction between ADPs and UDPs in Ghana
today.

Yet paradoxically, the old common law distinction remains alive in a considerable number
of cases or decisions or authorities on the subject. In Ghana, the legal position regarding
the status of the descriptive parts of a statute as aids is largely set out in the provisions of
CA 4, particularly sections 2-4 thereof. Unfortunately, these provisions of CA 4 are
themselves largely steeped in the old common law tradition and have consequently
contributed a great deal to the current confusion on the subject in this country.

Of additional interest here however, is section 19(2) of CA 4 which expressly provides

that the aids to construction mentioned in that section are “in addition to any other
accepted aid”.

Section 19—Use of Text-Books and Other Publications in Construction of

Enactments. [CA 4]
(1) For the purpose of ascertaining the mischief and defect which an enactment was made
to cure and as an aid to the construction of the enactment a court may have regard to any
text-book or other work of reference, to the report of any commission of inquiry into the
state of the law, to any memorandum published by authority in reference to the enactment
or to the Bill for the enactment and to any papers laid before the National Assembly in
reference to it, but not to the debates in the Assembly.

(2) The aids to construction referred to in this section are in addition to any other
accepted aid.

337
The significance of section 19(2) as perceptively noted by Buta in his book is that by the
use of the expression “any other accepted aid”, section 19(2) is in effect referring to other
common law aids applied by the courts in interpretation-so that the section empowered the
courts in Ghana to make use where appropriate of other accepted common law aids to
interpretation so long as these are not expressly limited or excluded by the provisions of
CA 4. And this needless to say, affords even more room for the introduction of more of
the confusion of the subject at English common law into Ghanaian law.

There is no doubt however that some of the provisions of CA 4 on the subject are clearly
out of step with the MOPA which inter alia requires that all parts of a statute be taken in
account in its interpretation and the only problem if any, is as to how much weight to give
or to put on one descriptive part or the other.

The difference in force between Substantive Parts and Descriptive parts

The historical common law distinction between ADPs and UDPs to one side, the distrust
regarding the use of the descriptive parts of a statute as aids to construction is often also
rationalized in terms of the difference in force between the substantive or enacting parts of
a statute (sections, provisos etc) on the one hand, and the non-enacting or descriptive parts
on the other.

Indeed today, a respectable number of authorities on the subject, even though they are
more willing to accept the use of the descriptive parts as aids, caution for this reason that
these descriptive parts should not be looked at unless the court is satisfied that the
provision to be interpreted is ambiguous or unclear or otherwise absurd.

In effect, these authorities suggest that descriptive parts such as headings and marginal
notes are not to be taken into account at the first stage of the interpretive process in
determining whether or not the provisions are plain or clear. The descriptive parts are not
to be relied on to contradict the clear meaning of a substantive provision or to create
ambiguities etc which would otherwise not exist. See

R v. Bates [1952] 2 AllER 842

@ 844 per DONOVAN J wherein he notes in reference to the use of long title as aids as
follows (Cross p 127)
“ in many cases the long title may supply the key to the meaning. The principle as I
understand it, is that where something is doubtful or ambiguous the long title may be
looked at to resolve the doubt or ambiguity, but in the absence of doubt or ambiguity, the
passage under construction must be taken to mean what it says, so that if the meaning be
clear, that meaning is not to be narrowed or restricted by reference to the long title”.

(NB! For the student of the MOPA, the long title is part of the context and must be taken
into account at all stages of the interpretive process and not only where there is
ambiguity).

Significantly, in discussing the judicial distrust for the use of descriptive parts as aids, @ p
124, the Learned authors of Cross on Statutory Interpretation, one of the foremost works
338
espousing the MOPA, remarked that although the courts can look at these descriptive parts
of the statute at both stages of the interpretive process, these descriptive parts are not to be
relied on by the courts to contradict otherwise clear or unambiguous enacting parts. (Cross
124-125). (NB! This statement is again not MOPA compliant. A-G V. Prince Augustus
of Hanover).

Tommy Thompson Books Ltd v. The Republic [1995-96] 1 GLR 221

Similarly, in Tommy Thompson Books Ltd V. The Republic [1995-96] 1 GLR 221, @
225-226, BENIN JA in commenting on the relevance of sub-divisions of an Act, heading,
marginal notes etc as aids, noted that “in each given case, the intent of the legislature must
be ascertained from the provisions themselves to begin with before recourse may be had to
other sources of interpretation. (NB! Under the MOPA, the ascertainment of intention
must take account not only of the provisions, but the aids such as the marginal notes etc).

Republic v. High Court Accra; Ex Parte Adjei [1984-86] 2 GLR 511 (Buta 92).
In the instant application before the Supreme Court for certiorari to quash a reviewed
order granted by the High Court, for want of jurisdiction, counsel for the applicant
objected to the jurisdiction of the Supreme Court (as constituted) to hear the application.
Held: Per Taylor JSC
1. I think in his dictum in Director of Public Prosecutions v. Schildkamp [1971], H.L.,
to be referred to presently, Lord Reid refuted the view that side notes are of the
enactment. In my opinion so long as they are not utilised to contradict or control the
unambiguous language of the enactment, [p.539] side notes can be considered at least
for the purpose of finding out whether they reveal any doubt as to the meaning of an
enactment.
2. This Lord Reid in Director of Public Prosecutions v. Schildkamp, HL. in apparent
modification of his 1964 view in the Chandler case (supra) said:
3. “…it may be more realistic to accept the Act as printed as being the product of the
whole legislative process, and to give due weight to every thing found in the printed
Act ... In such a case it is not very meaningful to say that the words of the Act
represent the intention of Parliament but the punctuation, cross-headings and side-
notes do not."

Be that as it may, there is no question that the tendency to discount these descriptive
parts as aids is clearly inconsistent with the MOPA which, as previously noted,
emphasizes the importance of context and the need to take account of all parts of the
statute (ADPs and UDPs) in interpretation, even though in the event of conflict the
operating part might necessarily carry more weight than the descriptive part. As Driedger,
another of the foremost proponents of the MOPA argues at 253 of his CONSTRUCTION
OF STATUTES, these descriptive components are clearly also a conspicuous feature of
the context of the statute which might provide assistance in discerning the structure, object
and purpose of the legislation-so that with the emphasis on purposive analysis today, such
descriptive features like preambles, long titles, purpose statement etc can be of particular
value in construction.

339
Consequently Driedger maintains that it should be acceptable for the courts to look at the
descriptive components of legislation in any case and at any stage of interpretation for
help in understanding the meaning and purpose of an enactment.

In Driedger’s further view, there is absolutely no need for formal restrictions on the use of
these descriptive features as aids though the weight to be attached to any one feature
might differ with the type of components, its functions and the circumstances of a
particular case. (DRIEDGER 253). But clearly in the event of an unresolvable conflict
between a substantive or enacting part and a descriptive part, more weight is to be given to
the substantive or enacting part.

This position (MOPA Compliant) is also clearly reflected in a number of modern

authorities on the subject.

Re Vexacious Actions Act 1886; Re Boaler [1915] 1 KB 21

@ 40 PER SCRUTTON LJ “ I do not understand on what principle of construction. I am
not to look at the words of the Act itself to help me understand its scope in order to
interpret the words parliament has used in the circumstances in which they are
legislating”.

DPP v. Schildkamp [1971] AC 1

The defendant was convicted of knowingly being party to the carrying on of business of a
company with intent to defraud creditors, contrary to a section of the Companies Act
1948. The company had not been wound up and on appeal the Ca held that the section
could only apply to acts does before or during a winding up, and therefore quashed the
conviction. The Act had crossheadings: “Offences antecedent to or in course of winding
Up” On appeal, the question was whether weight should be given to cross-headings, side-
notes and punctuations in construing an Act of Parliament:
Held:
Per Lord Reid:
18.No one disputed that in construing a provision in an Act of Parliament, one
begins by construing its words in their context of the whole Act.
19.And that there is a very strong presumption that a provision in a consolidation
Act does not alter the pre-existing law.
20.Taking a strict view, one can say punctuations, cross-headings and side-notes to
sections of an Act, should be disregarded because they are not the product of
anything done in parliament. I never heard of an attempt to move that any of
them should be altered or amended , and between the introduction of a Bill and
the presidential assent they can be and often are altered by officials of parliament
acting in conjunction with the draftsman.
21.But it may be more realistic to accept the Act as printed as being the product of
the whole legislative process and to give due weight to everything found in the
printed Act.
22.This is because in very many cases the provisions before the court was never
mentioned in debate in either House, and it may be that its wording was never
340
 closely scrutinized by any member of either House. In such case it is not very
meaningful to say that the words of the Act represent the intention of Parliament
but the punctuation, cross-headings and side-notes do not
23.But they cannot have equal weight with the words of the Act.
24.Punctuation can be of some assistance in construction
25.Cross-headings ought to indicate the scope of the sections which follow it but
there is always a possibility that the scope of one of these sections may have
been widened by amendment.
26.But a side-note is a poor guide to the scope of a section, for it can do no more
than indicate the main subject with which the section deals.
Per Viscount Dilhorne:
27.In Chandler v DPP Lord Reid said that side-notes to a section cannot be used as
an aid to construction. I agree with that.
28.A marginal or side-note is inserted by the draftsman as an indication, but not as a
definition, of the contents of the section.
29.The title to a Part of an Act and the cross-headings to a modern statute are no
more than guides to the contents of the Part or sections which follow and are not
meant to control the operation of the enacting words and it would be wrong to
permit them to do so.
Per Lord Upjohn
30.The task of the court is to ascertain the intention of Parliament; you cannot look
at a section, still less a sub-section, in isolation, to ascertain that intention.;
31.You must look at all the admissible surrounding circumstances before starting to
construe the Act.
32.The principle was stated by Lord Simonds in Attorney-General v Prince Ernest
Augustus of Hanover.
33.I look to the Companies Act 1948, as a whole and notice at first that from the
Long Title it is a consolidation Act.
34.Therefore bearing in mind that a consolidation Act is presumed not to alter the
law, it becomes material to trace this subsection to its original source.
35.In approaching this problem I have very much in mind the warning given by
Lord Simonds in the Hanover case against creating or imagining an ambiguity in
order to bring in the aid of the preamble,
36.But I hope, again to echo Lord Simonds words, I am doing no more than read
the whole statute before professing to understand any part of it.
37.When the court construing the statute is reading it through to understand it, it
must read the cross-headings as well as the body of the statute and that will
always be a useful pointer to the intention of parliament in enacting the
immediately following sections.
38.The real point is whether before a prosecution can be initiated in respect of
alleged fraudulent trading while the company was a going concern the company
must be in liquidation.
39.I would answer that question in the affirmative because the subsection is by
reason of its context in the statute so limited in its application.

341
Whether the cross-heading is no more than a pointer or label, or is helpful in assisting to
construe, or even in some cases to control, the meaning or ambit of those sections must
necessarily depend on the circumstances of each case, and I do not think it is possible to
lay down any rules”.

The upshot of the foregoing is clearly that the doubts expressed in some of the authorities
regarding the use of descriptive components as aids today, which doubts are no doubt
reflected in some of the provisions of our CA 4, are misleading and it is consequently
open to the Courts to minimize the significance of the old common law authorities as well
as confusing statutory provisions (like our CA 4) which are steeped in the old common
law.

Under the MOPA, the court or ordinary reader of legislation has no reason to disregard
descriptive components such as headings, marginal notes etc; and this reality, as scholars
like Driedger insist, must prevail over the technicalities of the legislative process as well
as the accidents of parliamentary history. (DRIEDGER 252).

Indeed, today and especially under the MOPA, knowledge of the technicalities of the
legislative process or parliamentary procedure can at best only be relevant in guiding the
interpreter as to the function of a particular component and as to what weight to put on it.
Bennion’s statement of this position is most revealing.

He notes “knowledge of relevant parliamentary procedure… will assist the interpreter to

give correct weight to each component of the Act, judged as an aid to construction. Some
components although part of the Act, carry little weight for this purpose: they are intended
for nothing more than quick guides to content. Other components (for example long title)
owe their presence in the Act wholly or mainly to procedural rules applicable to
parliamentary Bills and are to be regarded as such”.

In sum, no hard and fast rules can be laid down here. Each descriptive component is to be
considered in the light of its functions and the circumstances of a particular case.

342
Long-titles as aids to interpretation
The long-title of an Act appears at the beginning or end of an Act and its principal
function is to indicate or give a fairly full description of the general purposes of the Act.
The long-title usually begins with “An ACT to ...” “An Act respecting …” see long-title to
interpretation for CA 4.

In practice, a comprehensive long-title may not only serve a valuable purpose in assisting
to communicate the intended object and scope of the Act but also present the drafter, one
final opportunity to say in plain words what he or she is about.

Historically, statutes did not have long-title; and even when the practice was established to
have long-title in statute little significance was attached to these with the result that the ct
did not pay attention to them in interpretation even though they were considered ADP’s.
However the parliamentary procedure in many common law countries including Ghana
today require that all bills have long-title indicating the purpose and title of the Act. The
long-title has to be drafted wide enough to embrace the whole content of the bill and if the
bill is amended to accommodate changes in the contents of the bill before it was enacted.
In Ghana the relevant provisions of Standing Orders of Parliament 1995 in relating to
long-titles are found in para 117 and 118 see also para 129(e) of the SOP.

118: Subject matters of Bills

(1) Matters with no proper relation to each other shall not be provided for in the
same Bill.
(2) No Bill shall contain anything foreign to what its Long Title imports.

In effect in Ghana a long-title is today considered an integral part of an enactment which

is inserted by the drafter and considered by Parliament through the various stages of
enacting the bill as a law. The legal position regarding the use of the long-title as an aid to
inter in Ghana to day is spelt out in s4 of CA 4 – “the long-title … forms parts of the Act
intend…”

Although s2 of CA 4 does not explicitly state that the long-title cannot be used as an aid to
inter, by clearly providing that it could be used in explaining the purposes of the Act, s2 in
effect and by necessary implication makes the long-title a particular useful aid to inter
especially under the MOPA. This appears to be the legal position in Ghana today.

Section 2—Long Title and Preamble. [CA 4]

The long title and the preamble form part of an Act intended to assist in explaining the
purport and object of the Act.

CHRAJ v AG [1998-99] SCGLR 871

@ 882- in this case the provision of the long-title was considered a relevant aid to the
interpretation of the provisions of CHRAJ Act 1993.

This also appears to be the dominant position in other common law jurisdictions. See
343
Jeremiah Ambler & sons ltd v Bradford Corporation [1902] 2 CH 585
@ 594 per Roma J – “I agree with arguments on behalf of the pl in the present case that in
construing the Act the ct may and ought to look at the general scope of the Act as
expressed in the title.1

Hudon v US Borax & Chemical Corporation [1970] 11 Dominion LR , 3rd ED @ 345

The court was in this case concerned with the Saskatchewan vehicles Act (SVA). The ct in
this case was concerned with the SVA limiting the liability of the owners of drivers of
vehicle for gratuitous injuries or death occurring to passengers “ being carried in… or
entering … or alighting from the motor vehicles”. The issue was whether this provision
applies to injuries sustained in an accident that took place in a private parking lot. In
answering this question the ct took into account the lt of the Act which read “
An Act to regulate the operation of vehicles on highways” the question was w- it was held
that the pro was applicable only to injuries or death occurring on the highway. And
largely on account of the lt of the Act. Disbrey J –“the long-title of a statute is itself an
important part of an Act and should be taken into consideration in determining the scope
and purview of the Act.

However although lt are widely accepted and used as aids to construction, considerable
confusion still rages in the literature as to the extent to which lt can be used as an aid.
Particularly whether it can be used to control the meaning and scope of the enacting
provision of the statute which are otherwise clear in meaning. A number of the authorities
still insist that long-titles cannot be so used. See

R v Bates [1952] 2 All ER 842 @ 844 @ CROSS 127.

R v Galvin [1987] 2 QB 862 @ 867

Here appellant was convicted for breaching the official secret Act. Reference was made to
the long title of the Official Secrets Act:
“An Act to prevent the Disclosure of Official Documents and Information.” It was
contended that one was entitled to have regard to those words in construing the Act and
that the title makes it clear that the document or information which Parliament intended to
protect was that of an official nature.
Held:
3. One can have regard to the title of a statute to help solve an ambiguity in
the body of it, but it is not, open to a court to use the title to restrict what is
otherwise the plain meaning of the words of the statute simply because
they seem to be unduly wide.
4. In my judgment the words of these sections are not susceptible to the
interpretation which the appellant seeks to put upon them.

1
This case was considered in the CHRAJ case
344
 5. However desirable it might be for these sections to be construed in the
way the appellant invites me to construe them, it would be going beyond
my proper powers to do so.

These authorities however, only appear to reflect the historical distrust for the use of the
descriptive components as aids relative to the enacting components and are clearly
inconsistent with the MOPA. And as previously noted, there are to be disregarded in
favour of the approach that takes account of all parts of the relevant context in purposive
interpretation.

Significantly several of the modern auth approaches seem to favour the broader position
under the MOPA see

R v Whitley [1979] 1 All ER 959 CROS @ 130

Black-Clawson [1975] AC 591

@ 647 per Lord Simon of Glensdale –
“ in these days when the long-title can be amended in both houses, I can see no reason for
having recourse to it only in cases of ambiguity – it is the plainest of all guides to the
general objectives of statute, but it will not always help with particular provisions of a
statute”.

In sum the better view today appears that the long-title must always be considered along
with other elements of the legislative context at all stages of interpretation; except that the
weight to be attached to the long-title and how it should be used will depend on the cir of
each case see Dredger 208, Bennion @ 499

Preamble- As Aids to Interpretation

A preamble to a statute is a preliminary statement of the circumstances and the
consideration which made the passage of the statute desirable or the mischief that the
statute was designed to cure. Often, preambles not only recite facts and cir which the
legislature thought important but also principles and policies etc which it sought to
implement or the goals to which it aspire.

A pre often begins with words such as “whereas..” “albeit…” and often appears at the
beginning of the Act b/n the lt and the enacting provisions. Preambles may however also
be used to introduced particular sections or group of section see preamble to CA 4.

It is however to be noted that the pre is an optional component of modern legis and is used
only in exceptional cases today. The reason for this, as Thornton points out @ 197 of LD
is that information as to the purposes or objects of an Act is now usually provided to
members og the legislature and the public generally by annexing to the bill on its
publication, an explanatory memorandum setting out its objects and reasons see SOP
1995 para 116.

345
116: Explanatory memorandum on Bills
Every Bill shall be accompanied by an explanatory memorandum setting out in detail the
policy and principles of the Bill, the defects of the existing law, if any, the remedies
proposed to deal with those defects and the necessity for its introduction. The
memorandum shall be signed by the Minister or member introducing the Bill.

In addition there is the danger that rather than clarify matters, the pre will create doubt or
ambiguity. Hence in some cases the pre is not considered the best vehicle for the
declaration of the purpose or object of the legislature. And skilled draftsmen like Thornton
have consequently remarked that the pre is reserved for exceptional cases where the
explanation of certain facts provide a necessary setting for the proper understanding of the
Act. And their function here should only be to provide background info see Thornton
@197-8.

Historically, the pre like the lt was considered part of the bill as it passed through
parliament, and where appropriate could be amended or even added to during the passage
of the bill. It is therefore considered an important component of the Act when present. The
pre perform virtually the same function as the long-title in a statute; and the law regarding
its use as an aid to inter is virtually the same. In Ghana the legal position regarding the
use of preamble as an aid to inter is also set out in s2 of CA 4 –“ the pre form s part of an
Act intended to assist in explaining …” hence for reasons explained above in relation to
lts s2 in effect and by necessary implication makes the preamble also a vital aid to inter in
Ghana under the MOPA see

346
Republic v Jackson [1982-3] GLR 86,
BUTA @ 90-1
Labour—Industrial accident—Failure to report—Significance of phrase "at work at which
he was employed" contained in Act 328 s. 10 (1) (b)—Obligations imposed on employer
when accident in premises disabling employee from earning wages "at work at which he
was employed" for more than three days—Worker incapacitated from work for 21 days as
a result of accident at factory but paid full wages for the period; IssueWhether employer to
report accident to inspectorate—Primary aim of Act 328, s. 10—Employer's obligation to
report accident under stated conditions imperative.
Counsel for Jackson, then accused, raised a preliminary objection on the ground that on a
proper interpretation of section 10(1) (b), accused was bound to make a report to the
inspectorate only where the injured was disabled from earning his full wages for more
than three days. If therefore the injured person was fully paid, as in the instant case, no
offence was committed and there should not have been any charge.
Held:
1. I am of the opinion that the phrase "at work at which he was employed" has a very
strong operative import, considering the intent of the legislature as a whole and as
revealed in the preamble of the Act.
2. In my view, an occupier, within the meaning of the Act, is bound forthwith to report, in
a prescribed form, any accident that occurs in his factory, office or shop to the chief
inspector or the inspector for the district, where such [p.90] accident causes the death
of an employee, or where it disables an employee for more than three days from
earning his full wages at work, and it is apparent that the emphasis is on the phrase at
work

As with long-titles however even though the preamble is now widely accepted and used as
an aid to interpretation, a number of authorities still contentiously suggest that as a rule the
preamble may not be used to control and qualify enactment which are themselves precise
and unambiguous and that it is only where doubt exist as to the meaning of the particular
enactment that recourse may be had to the preamble so as to ascertain the reason for the
enactment and therefore the intention of parliament. See
Halsbury 4th ed vol 44 para 815. see also

Mason v. Armitage 1806 13 vex 26 at 36,

Powell v. Campton Park Ltd. [1899]AC 143 @157

As previously noted under long-title this position is clearly inconsistent with the MOPA to
the extent that it suggests that the preamble is irrelevant at the first stage of the interpretive
process, ie in determining when or not context is ambiguous.

Significantly as with long-title quite a number of more recent authorities realize the error
and appear more willingly to accept the preamble at all stages of the interpretive process
except that especially in the event of an irresolvable conflict the preamble is held not to

347
control the meaning attributable to an otherwise plain enacting part unless there is a
compelling reason to do so. See

A.G v. Prince Augustus of Hanover

This case basically establishes that a preamble may be looked at as part of the context of
an enactment but that minimal weight should be attached to them except in certain
compelling circus. In this case the prince sought a declaration that he was a British subject
by virtue of his lineal descent from the Electress Sophia of Hannover. The validity of the
claim turned on the construction of a statute of queen Anne’s reign (4 and 5.. which
enacted that-

“that the said princess Sophia Electress and duchess Dowager of Hanover and the issue of
her body and all persons linearly descending from her, burn or hereafter to be born should
be deemed natural born subjects of this Kingdom”.

It was held that this should be given its natural (wide) and literal meaning applying to all
descendants of the princess and not only those born in her lifetime and that the preamble
which stated the object of the Act are that they (the princes and her issue) in your
majesty’s lifetime (whom God long preserved) should be naturalized.” Could not control
the enacting words.

In Prince Ernest case the enacting words were reasonably capable of one construction and
not reasonably capable of another and could not be affected by a preamble which was
itself vague and ambiguous.

In his judgment (especially at pg. 463) Viscount Simons issued a warning against finding
ambiguities e.t.c without reference to the context including the preamble. In his view
since few words called said to be clear and unambiguous until they had been studied in a
context, and he also added his voice against the dicta in the authorities to the effect that
the preamble must not be called in aid in the interpretation of an otherwise a clear enacting
provision. See

Per Viscount Simonds:

a. For words, and particularly general words, cannot be read in isolation: their
colour and content are derived from their context. So it is the right and duty of
the court to examine every word of a statute in its context, and context is here
used in its widest sense as including not only other enacting provisions of the
same statute, but its preamble, the existing state of the law, other statutes in pari
materia, and the mischief which the court can by those and other legitimate
means discern the statue was intended to remedy.
b. It must be difficult to say that any terms are clear and unambiguous until they
have been studied in their context. Thus the elementary rule is that no one should
profess to understand any part of a statute or any other document before he had
read the whole of it. Until he has done so he is not entitled to say that it or any
party of it is clear and unambiguous.

348
 c. The preamble cannot be made use of to control the enactments themselves where
they are expressed in clear and unambiguous terms. Thus the context of the
preamble is not to influence the meaning otherwise ascribing to the enacting part
unless there is a compelling reason for it.

Yin Kwan v Eastern Invets Co.Ltd.(1944) 1 ALL E.R. 213.

Remarkably a number of the authorities appear to suggest it is only when a preamble

conveys a clear and definite meaning in comparison with a relatively obscure or indefinite
enacting part that the preamble the will prevail. Such a view is also clearly spelt out in
the opinion expressed by Lord Norman in

AG v Prince Augustus
[Cross 128]
Per Lord Normand:
d. The Act must be construed as it would have been construed immediately after it
became law.
e. In order to discover the intention of Parliament, the court should read the whole
of the Act, inform itself of the legal context of the Act and of the factual context,
such as the mischief to be remedied and those circumstances which Parliament
had in view.
f. When there is a preamble, it is generally in its recitals that the mischief to be
remedied and the scope of the Act are described. It is therefore permissible to
have recourse to it as an aid to construing the enacting provisions. The preamble
must convey a clear and definite meaning in comparison with relatively obscure
or indefinite enacting words for it to legitimately prevail.

Several of the modern authorities including Dreidger however views such a position as
clearly misleading to suggest that the preamble will convey little weight in such
circumstances . Dreidger in particular insists that in keeping with the dictates of the
MOPA, what weight to be put on the preamble will be determined by the circumstances of
each case and not by inflexible rules. See Dreidger @ 263

Short Title
The short title is a brief description by which the Act may be cited or referred to. In
modern statutes the Short title is either placed at the head of the enactment (which is the
normal practice in Ghana) or is set out in a section which is the first or the last which is
enacted as law.

E.gs Short title placed at the head of the enactment are;

Arbitration Act, 1961 (Act 38)
Interpretation Act. 1960(C.A.4) normally at the head of the Act.

An example of a Short title in the body of an Act can be seen at section 36(1) of the
ENGLISH THEFT ACT 1968, which reads;
349
“this Act may be cited as the Theft Act 1968”.

The primary function of the short title is to provide a consistent way of citing an Act or
Regulation; i.e. to provide an official nickname or label. Hence THORNTON noted at pg.
200 of his L.D,

“The short title has the characteristic of a label. It identifies, describes and gives a name
to the Act. Its sole purpose is to enable facility of reference first and description second”.

Vacher and Sons Ltd v London Society of Compositors (1913) A.C 107
And Lord Moulton at 128 described the short title as”.
“a Statutory nickname, to obviate the necessity of always referring to the Act under its full
and descriptive title”.

The practice today is for every Statute to confer on itself a short title by means of a
provision specifying a name by which it may be cited. For earlier Acts however, short
titles were given by other enactments e.g. the (Short Titles Act. 1886) or by popular
attribution.

In modern Parliamentary practice in Ghana and other jurisdictions Short titles are often
carried as part of the bill that goes through Parliament, and like the long title and
preamble, is also subject to amendment during the processing of the bill see. para.117
STANDING ORDERS.

Legal status of short title as aid in Ghana

In Ghana C.A 4 is “silent” on the Statute of short title as an aid to Construction,
Presumably then the short title can only be used as an aid to Construction to the extent that
is accepted as an aid at Common Law that is by virtue of S.19(2) of C.A.4. Unfortunately
however the position of Common Law as to the Statutes short titles as aids is unclear.

A number of common law authorities turn towards the position that its function or
purpose being solely to facilitate reference to the Statute, the short title cannot be looked
at as an aid to construction. See

Usher & Sons Ltd v London Society of Compositer [1913] AC 107

@ 114 per Lord Holdane and @ 128 per Lord Moulton

R v Galvin (`1987) 2. Q.B 812

As previously noted however the foregoing position only reflect the historical judicial
distrust with the use of descriptive components as aids and is clearly out of step under
which all parts of the statutes including the short title should be used as aids to
construction although the weight to be attached will depend on the circumstances of each
case.
350
Significantly other several old and contemporary scholars on the subject today concede
that the short title could be taken as an aid to construction especially under the modern
purposive approach MOPA at all stages of the interpretative process.

Re Vexatious Actions Act, Re Borax (Supra) at pg. 40-41 per SCRUTTON L.T. who
noted;
“I agree that the Court should give less important to the title than to the enacting part short
title than to the long title for the short title being label accuracy may be sacrificed to
brevity; but I do not understand on what principle of Construction I am not to look at the
words of an Act itself to help me understand its scope in order to interpret the words that
Parliament has used… It is by no means conclusive, but it is striking that if they were
intended to deal with criminal proceedings they should call their Act the Vexations
Action”

R v Wheatley (1971) 1 AllER 954 @ 957

Committee for The C’wealth Of Canada v Canada (1991) SCR.139.

One of the issues in this case was whether S.7 of the Govt. Airport Concession Operations
Regulations, which prohibited unauthorized advertising or soliciting at an airport The long
title of the regulation read “Regulation Respecting The Control Of Commercial And Other
Operations At Government Airports” .

The short title on the other hand read “Govt Airport Concession Operations Regulations”.

In his judgment Lamere C.J relied on both the Long title and Short title formed an
intergral part of the text of the regulation and may validly be used by anyone interpreting
them in other to clarify the meaning other provisions of the regulation. In his view the idea
of an operation carries with it the connotation of industry or profit which has intrinsically
commercial overtones. And that the commercial emphasis given to the application of the
regulation is still more defined by reference to the operation of concessions as used in the
short title. Lamere was of the view that he could not imagine a concession being operated
for any other purpose than a commercial or innovative use and that though the short title
of necessity sacrifice precision for concision, it is an indication of the legislatures
intention to limit the scope of the Regulation to Commercial matters.

In the light of the foregoing one has to also be weary of the position expressed by Buta SY
at page 89 of his lig wherein he agrees with the position taken by the learned authors of
Maxwell on Interpretation at pg 6 on the status of the short title as an aid to interpretation
on the following terms ‘whereas s.2 of ca4 specifically refers to the long title as being part
of an enactment it is silent on the significance of the short titles… It appears then that the
short title is not to be regarded as part of an enactment in its purpose is simply to identify
a statute and distinguish it from another statute. We might agree with the conclusion that
‘on balance the authorities suggest that a short title may not be taken into account in
construing a statute’

351
This position cannot be right particularly under the modern purposive approach.

Furthermore it is to be added that with short titles (as with long titles and preambles) there
are dicta in authorities to the effect that even though the short title my used today as an aid
it should not be looked at unless the words to be interpreted read in their immediate
context are ambiguous and unclear.

R v Galvin (1987) Q.B. 862 at 869.

Again this view is unacceptable under the modern purposive approach. The short title like
the long title and preamble could be taken into account at all stages of the interpretation
process although the weight to attach to it will vary from case to case.

Punctuation
Traditionally at Common Law punctuation Marks were totally disregarded in the
construction of statutes. As noted earlier the reluctance to use punctuation marks as aids
partly reflected what was conceived as the role of punctuation namely, that punctuation
was only to aid a speaker of English language as to his breathing and pulse of assets and
was not intended to influence meaning. Thornton pg 34 and J.K.Etskin in the book Piesse,
The Elements of Drafting 9th edn at 901.

Nevertheless several traces of the old com law position are still alive in authorities today.
Secondly it may be recalled that the historical distrust regarding the use of punctuation as
aids was in the case of statutes also often justified by the claim that it was an UDP which
aught to be disregarded. See

Duke of Devonshire v O’ Connor (1890) 24 Q.B.D. 464

at 478 Lord Esher wherein he noted that:
“in an Act of Parliament there are no such things as brackets any more than there are such
things as stops’.

Esso Petroleum Co Ltd v Min. Of Defence (1990) 1All ER 163

at 165 (Supra) where Harman J wherein he noted inter alia,
“Commas are not part of the draft bills, but are inserted by the queen’s printers stage or
publication after the bill has been passed”

DPP v Shildkamp 1971 AC 1

at 10 Ld Reid ‘ taking a strict view one can say that(punctuation should be disregarded
because it is not a product of anything done in parliament. I have never heard of an
attempt to move that(punctuation marks should be altered or amended, and between the
introduction of a bill and the royal assent, they can be and often are altered by officials of
parliament acting in conjunction with the draftsman. See
Sir Noel Hutton in his writing in the 1966 Law Quarterly Review pg 24 wherein he notes
‘ the only law about commas is that you pay no attention to them’
352
In modern parliamentary practice however, the printers do not add punctuation to
legislation. Acts are often carefully punctuated by or under the supervision of the drafter
and changes cld be made to the punctuation as the Bill passes through Parliament. See the
SOP of Ghana. Hence punctuation is today considered an important part of the Act taken
as a whole.

In the circumstances there appears to be very little justification even at com law for
refusing to consider punctuation marks today at least to interpretation. As Driedger notes
at 276 of his COS, - ‘In fact it is ridiculous to suggest that Judges did read legislation
without in some faction looking to and relying on the punctuation.

It is one of the cues relied on by competent language users in establishing the ordinary
meaning of a written text. In some cases the presence or absence of a particular
punctuation mark can be an important determinant to meaning. More often the way a
provision is punctuated simply facilitates a particular way of understanding it. In other
cases punctuation is an integral part of the legislative text to be taken into account. A no.
of judicial authorities now appear to accept punctuation as an aid to construction.

Alexander v. Makenzie 1947 AC 155.

.per Ld Stevenson -
‘the older cases indicate that punctuation forms no part of the Act. In my opinion our duty
is to ascertain the intention of the legislature as expressed in the Act itself and that while
we may derive some assistance from punctuation we are entitled to disregard it or add
commas if it should be necessary to do so, in other to give effect to the obvious purpose of
the Act.

Legal Status
The legal position today is set out n position on the use of punctuation as an aid to
construction is expressed in S.3 of C.A.4 which reflects modern trends of the use of
punctuation. It stipulates
“a punctuation forms part of an enactment and may be used as an aid to
interpretation”.

The courts in Ghana have consequently since CA4 referred to punctuations in the
interpretation of statutes where appropriate.

Section 3—Punctuation. [CA 4]

Punctuation forms part of an enactment and may be used as an aid to its construction.

Tommy Thompson Books v. The Rep.1995-96 1GLR 227

It is the definition of defamatory matter which is in issue in this appeal. This is section
114(1) of Act 29 has which provides:
“114. (1) Matter is defamatory which imputes to a person any crime, or misconduct in any
public office, or which is likely to injure him in his occupation, calling, or office, or to
expose him to general hatred, contempt, or ridicule.”
353
Held: per Benin JA
1. Now to the meat of this appeal which is the true construction to be placed on section
114(1) of Act 29. Section 3 of CA 4 provides that “punctuation forms part of an
enactment and may be used as an aid to its construction.”
2. It is to be noted that there are several commas in this definition which could serve as an
aid to the interpretation or construction of the subsection.
3. A close reading of the provisions there makes me think that the conjunction “or” used
is very influential in any determination of the issue confronting us.
4. If interpreted conjunctively it will mean only a single meaning can be ascribed to what
defamatory matter is. If given a disjunctive construction it will mean one or many
things can constitute defamatory matter.
5. In my view, the latter construction will enable the court to carry out the intention of the
legislature since it is clear it did not intend only one factor, for instance imputation of
crime, to constitute the meaning or definition of defamatory matter.
6. It has not become necessary to read “or” in the definition to mean “and.”

Rep v Judicial Committee of Central Regional Hse of Chiefs: Ex p Supi Mark Aaba,
Micheal Conduah
Interested party)CA 30th July 1998 Unreported. [1997-8] 2 GLR, [2001-2] SCGLR 545

Interested party claiming a royal from the stool of Elmina, brought the action before the
JC of the Central HChfs, challenging the nomination of one JC as the Omanhene and
judgment was given in his favour but the reasons for the judgment were not given at that
sitting. Hence action by the appellant seeking to quash that judgment on grounds that by
Rule 11 of C! 27
"(i) that the Court of Appeal erred in misconstruing Rule 11 of C.I. 27 which requires that
the judgment of the trial court should be announced together with the reasons.
The said rule 11 provides that:
"The Judicial Committee shall at the conclusion of the hearing of the petition deliver its
judgment, giving its reasons therefor".
Counsel for the appellants argued that by this rule, it was wrong for the Judicial
Committee to announce its judgment and reserve reasons for the judgment to be stated
later. According to him the rule requires the Judicial Committee to incorporate the
reasons in the judgment before announcing it, because the giving of the reason is a
condition precedent to the announcement of the decision.
Held:
Benin JA: CA
1. English common law regarded punctuation as a kind of ‘contemporanea expostio’ but
not forming part of the statute itself.
2. In Alexander v Mackenzie [1947] SC the court stuck to this principle when the court
held: “While notice may therefore in my view be taken of punctuation in construing a
statute, a comma or absence of a comma must I think be disregarded if to give effect to
it would so alter the sense to be contrary to the plain intention of the statute” The court
further held:

354
 “ The older cases indicate that punctuation formed no part of the Act. In my opinion
our duty is ascertain the intention of the legislature as expressed in the Act itself and
that while we may derive some assistance from punctuation we are entitled to disregard
it or add commas, if it should be necessary to do so, in order to give effect to the
obvious purpose of the Act.

3. So the cardinal principle of interpretation remained that if the meaning of a statute is

plain it is not legitimate to resort to any aid as afforded by usage or ‘contemporanea
expositio’
4. But CA 4 s3 makes punctuation a part of an enactment and may be used as an aid to its
construction.
5. Therefore a comma placed in the paragraph etc in an enactment should not be glossed
over as though it does not exist without forthcoming with good reasons to justify it.
6. And you can only justify it if by so doing the statutory intent becomes manifest
thereby.
7. The ordinary, plain language approach should be used as much as practicable to arrive
at the statutory intent, and in the process any punctuation used has to be considered as
an aid only.
8. So the placement of the comma in Rule 11 is to be considered as an aid in knowing
exactly what the law maker intended.
9. Could it be said that the law maker intended that a decision given by the JC without the
reasons being given simultaneously be void?
10.I do not think so, for if that had been the legislative intendment express words to the
effect would have been used. [Expressio uiniss rule]

ADZOE JSC: SC
1. I do not agree. I agree rather with the learned judges of the Court of Appeal that such a
construction cannot be placed on rule 11.
2. It appears to me that the starting point in the construction of a statutory provision is
recourse to the first principle that when the words of an Act of Parliament are plain and
unambiguous they must prevail; effect must be given to them unless they lead to either
injustice or absurdity.
3. Punctuations can be of some assistance in construing an Act. They need not be
disregarded if they conveniently provide a guide in the search for the intention of
Parliament.
4. Indeed our Interpretation Act C.A 4 of 1960 Provides in section 3 that "Punctuation
forms part of an enactment and may be used as an aid to its construction".
5. The contention of the appellants' counsel is that rule 11 should be read without any
regard for the comma separating the words "deliver its judgment" from the words
"giving reasons therefor". He calls the comma "a false comma" and argues that the
provision, grammatically, "consists of a dominant sentence and a phrase which is
subordinate to the main sentence", and so make "the giving of the reason" a "condition
precedent to the announcement of the decision".
6. I must observe that this is a very lofty semantic analysis more appropriate for a
doctoral thesis than for the consideration of Parliament or even the draftsman.

355
7. Neither Parliament nor the draftsman certainly could be assumed to have employed the
comma as a factor in expressing the intention of parliament besides the words used,
and to my mind the presence or absence of the comma does not, within the context of
the provisions, give any different meaning to the sentence.
8. It may further be observed that punctuations do not normally form part of the bill
passing through Parliament and cannot be debated, and are not usually debated, as the
bill passes its various stages in Parliament.
9. Assuming even that a punctuation mark should attract the attention of Parliament and
be the subject of deliberation, I do not believe that the discussions in Parliament could
have reached such a high level of academic discourse as is implicit in counsel's
argument.
10.In my opinion the comma is not a useful aid in determining the intention of parliament
in this provision. Parliament could have expressly stated it, if that was the intention,
that the reasons must be embodied in the decision before it is announced.
11.I am convinced that the Court of Appeal was right in construing the provision in Rule
11 as meaning simply that the Judicial Committee shall give judgment after it has
concluded the hearing, and shall state reasons for its judgment. No specific time for
stating the reasons can be imported into the provision.

 Tuesday, 04 April 2006

In this respect the law in Ghana presently largely reflects the position in many common
law jurisdiction today. See

Re Associated Protected Ltd v Mason [1970] 13 Dominion LR, 3 rd ed 643

The above decision is affirmed in 16 Dominion LR 478

Houston v Burns [1918] AC 337 @ 348

Slaney v King [1970] 1 All ER 343 @ 441

Marshal v Cottingham [1981] 3 All ER 8 @ 12

Hounlow v Law Society [1981] AC 124 @ 198

It is however to be added here that even though punctuation marks are now acceptable as
aids in Ghana and other common law jurisdictions, the courts appear to be unwilling to put
too much weight on them because of their inherent unreliability. As Dreidger rightly
notes, this is rightly so because many of the conventions governing punctuation today
especially ‘comma’ placements are fluid and unstable; practices vary from place to place
and may change overtime, while considerable discretion is also often left to individual
writers to vary punctuation as a matter of taste and style. And in practice even competent
users of language, make mistakes out of carelessness and uncertainty in the use of
punctuation.

However as with other descriptive aids the weight to be put on punctuation will under the
MOPA vary from case to case and no inflexible rules can be set out. Finally it is to be

356
added that where mistakes in punctuation occur, the courts in practice showed little
hesitation in correcting them see Benion 518, CROSS 134 see

Luby v Newcastle Upon - Lyme Corporation [1964] 3 All ER 169, CROSS 134

Allnut London Pty v Newton [1981] 2 All ER @ 292

Section 4 of CA 4 amended by Act 92 s1 – used in the Tommy Thompson case- how do
you reconcile this with the position under the MOPA?

Headings
The sections of modern statute of any great length are today divided into groups or parts (
and in some cases sub groups and sub parts) and the subject matter of each group or sub
group, part or sub part indicated by brief headings or sub headings see Hals 4 th ed , Vol 44
para.

The criminal code and CA 4 affords good examples of these divisions and sub divisions in
statute. Headings and cross headings etc are in practice intended to represent what the
legislature or drafter considers to be the essence of the subject matter of the particular part
of the statute or the group of sections over which they appear. The chief purpose of the
heading or cross heading is to cast light on the scope of the part/s of the act over which it
appears. Hence the heading or cross heading is in practice often described as the label or
sign post to the part/s of the statute over which it appears. Consequently headings and
cross headings should as much as possible be brief and descriptive and indicate the scope
of the section or group of section over which it appears.

Properly used the arrangement of headings and cross headings can help reveal the overall
scheme of the act. historically headings were not considered an integral part of the bill as
it went through Parliament and were invariably not voted on by Parliament thus they were
considered UDP’s. hence the distrust in the early common law regarding their use as aids
see

R v Hare [1934] 1 KB 354 @ 355

Esso Petrol v Ministry of Defence [1980] 1 All ER @ 16

A number of traditional common law authorities also maintain that at best headings can be
used in interpreting enactments which were themselves ambiguous but not when plain see

Inglis v Robertson [1898] AC 616 @ 630

AG of Canada v Jackson [1946] 2 DLR 481 @ 486

However as noted earlier, Parliamentary practice even in the UK has today developed to
the point where even descriptive parts like headings etc form part of the Bill that is
enacted by Parliament and not entered into after the Bill has been passed. In Ghana a
reading of para 117 of SOP suggests clearly that the heading must as far as is possible be
357
part of the Bill submitted to Parliament for enactment. And nothing bars any member from
suggesting an amendment to same see para 117 of SOP.

Legal status of headings in Ghana today

The legal position in Ghana today regarding the use of headings as aids to construction is
set out in s4 of CA 4 as substituted by s1 of the Interpretation Amendment Act 1961 ( Act
92).

Section 4 which applies to headings as well as marginal notes provides as ff-

“An arrangement of sections or of similar divisions of an enactment placed at the front of

an enactment, an arrangement of sections or of similar divisions of an enactment placed at
the front of an enactment, titles placed at the head or beginning of any subdivision of an
enactment and notes and references placed at the side of any provision are intended for
convenience of reference only and do not form part of the enactment.”

Paradoxically however, legal scholars as well as judicial decisions appear to be violently

divided as to the true meaning of s4 ie whether or not it permits the use of headings or
marginal notes in interpretation.

On the one hand it has been argued that s4 of CA 4 by its express provisions clearly
preclude the use of headings ( and marginal notes for that matter) as aids to inter in Ghana.
Proponents of this view contend in support of this position as follows-
a) that s4 is explicit in its plain meaning that headings are not part of the enactment
and are for convenience of reference only. They insist that the use of the word
‘only’ precluded other uses of headings and marginal notes and in further support of
this position refer to the memo published to the Bill for the Act which stipulates that
the purpose of headings and marginal notes “ is to act as an index to the subject
matter and to make for easier reading”
b) that if the legislature had intended that headings ( for that matter marginal notes) be
used as aids to construction, it would have said so explicitly as it did in the case of
punctuation marks under s3.

On the other hand it has been argued by a number of scholars (including BUTA @ 91 of
LIG ) that properly read, s4 of CA 4 as amended is silent on whether or not headings and
marginal notes can be used as an aid to construction at all or at least that it does not say
headings and marginal notes cannot be used as aids. hence for proponents of this position
there is nothing in s4 of CA 4 which bars the courts from using headings and marginal
notes as aids. and here they cite in support of this position the provision of s5 of CA 4
which in addition to saying that descriptive words etc are for convenience of reference
only, expressly prohibits their use as aids.

Section 4—Headings and Marginal Notes.

An arrangement of sections or of similar divisions of an enactment placed at the front of
an enactment, an arrangement of sections or of similar divisions of an enactment placed at
the front of an enactment, titles placed at the head or beginning of any subdivision of an
358
enactment and notes and references placed at the side of any provision are intended for
convenience of reference only and do not form part of the enactment. [As amended by the
Interpretation (Amendment) Act, 1961 (Act 92) s.1]

Section 5—Descriptive Words.

Words in an enactment descriptive of another enactment are intended for convenience of
reference only and shall not be used as an aid to the construction of the enactment to
which they refer.

In the circumstance the proponent contend that consistently with the now dominant
MOPA it was preferably to adopt an inter of s4 that would permit the use headings and
marginal notes as aids or guides to the intention of the legislature even if they were
intended as an index only and did not form part of the enactment.

Remarkably, the judicial decisions in Ghana are also quite divided on the subject of the
true effect of s4 regarding the use of headings and marginal notes as aids. see conflicting
authorities

Smith v Smith [1965] GLR 730 , BUTA @ 91- NO

Bilson v Apaloo [1981] GLR 24 @ 64 per Adade JSC – YES

The language we are called upon to interpret is in article 121 (2) of the Constitution, 1979,
"The Court of Appeal shall be duly constituted by any three Justices thereof..." And we
are being invited to say that "any three Justices" means "more than three Justices."

Held per Adade JSC:

1. Indeed the marginal note to the paragraph 6 reads, "Duly constituted Court of Appeal."
I concede that the marginal note is not part of the enactment, but in appropriate
situations it can be aid to interpretation. Using the marginal note as a guide only, and
nothing more, I am confirmed in my view that "comprising" has the same meaning as
"duly constituted by." Hence article 109 (2) of the Constitution, 1969, instead of
reading, "The Court of Appeal shall be duly constituted by any three justices
thereof . . ." may equally well read, "The Court of Appeal shall comprise any three
Justices thereof . . ." without loss of meaning.

2. The purpose of interpretation is to try and make clear language which is not clear. The
first principle to apply is to give the language used its ordinary everyday meaning. If
this yields a reasonable result, you do not go further. In Halsbury's Laws of England
(3rd ed.) Vol. 36, p. 392, para. 587 it is stated:

3. "Words are primarily to be construed in their ordinary meaning or common or popular

sense... Where the words used are familiar and are in common and general use in the
English language, then (1) it is inappropriate to try to define them further by judicial
interpretation and to lay down their meaning as a rule of construction, and the only
question for a court is whether the words are apt to cover or describe the circumstances

359
 in question in a particular case, and (2) evidence that they are used in some special and
peculiar sense is not admissible."
4. And at p. 393, para. 589 it is further stated: "Words in a statute must be taken to be
used correctly and exactly, and the onus on those who assert that they are used loosely
or inexactly is a heavy one."

Osei v Siribuor [1984-6] 1 GLR 588 SC – YES

Gatco & Chempharan v Pharmadex Gh Ltd-unreported CA [1999] Vol 2

Tommy Thompson v The Republic

An interesting authority worth noting on the subject is the case of Tommy Thompson v
The Republic case. in this case Benin JA in dissenting from the position of the learned
trial judge that libel was not a public order offence simply because the division of Act 29
of which libel falls does not form part of division under which libel falls does not form
part of the division entitled ‘public order’, held that by virtue of the provisions of s4 of
CA 4, that the arrangement of sections, headings etc “do not from part of the enactment “
and are not to be read as one with the enactment. Further he appeared to be of the view
that in the construction of an enactment, the intention of the legislature had to be
ascertained from the enacting provisions themselves, even though he believed, descriptive
parts like the headings etc could be used as guides to intention after the enacting parts
have been consulted. specifically, Benin noted @

“… even though the main divisions of Act 29 or parts may be read together with the
enactment depending on how they are framed, these by no means provide conclusive
interpretation of the section and subsections thereunder. In each given case the intent of
the legislator must be ascertained from the provision themselves to begin with before
recourse may be had to other sources of interpretation I think it is not enough to settle on
an inter just by looking at what part of Act 29 an Enactment is placed.

The main divisions of Act 29 may serve as a guide in finding out the legislative
intendment but as I said they do not provide conclusive inter or construction of the
specific provisions.

The views of Benin to the effect that headings etc could be looked at only at a subsequent
stage of interpretation ie after one has tried to get the intention of the legislature from the
enacting part only is as previously noted clearly inconsistent with the MOPA. What is
perhaps more interesting however is his view that arrangement of section of an Act
headings , marginal notes etc could still be used as aid to interpretation despite the
wording of s4 CA 4 as amended by Act 92. Benin in effect sides with the view point that
arrangement of sections, headings and marginal notes could still be used as aids to inter in
Ghana s4 notwithstanding.

In this connection one might usefully refer to the Canadian case of –

Re Peters and District of Chilliwack [1987] 43 DLR (4TH ed @ 523)

360
This case dealt with the analogous provision of the British Columbia Interpretation Act
which provides that headings are not considered part of the enactment and “ shall be
construed as being inserted for convenience of reference only”

The British Columbia Court of Appeal (BCCA) held that this only meant that “headings
are not to be used explicitly as tools of interpretation” however, the groupings or provision
under the heading could be used for this purpose. In other words what the heading said
was not essential, the important thing was the grouping of the provision under different
units and sub units. And here the BCCA reasoned that where provisions are grouped
together under a heading it is presumed that they are related to one another in some
particular way and that there is a shared subject or object or common feature in the
provision.

In the Chilliwack case, the BCCA was asked to consider the validity of a by-law passed
under British Columbia’s municipal Act. under the heading “Community Planning” and
the subheading “zoning” s716 of the Act permitted the district council to enact zoning by-
laws while s720 required the council to hold a hearing before passing any zoning by-laws.
Under the heading “miscellaneous powers” s932 of the Act permitted the district council
to enact by-laws regulating the keeping of swine and other animals. The by-law in
question has been passed under s932. it divided the district into zones and permitted swine
operations in certain zones only. The issue was whether it was subject to the public
hearing requirement of s720. in concluding that it was not the court relied on the way the
Act was structured as revealed by the grouping of provision under headings and sub
headings. Lambert JA wrote –

“in my opinion the structure of the Act and the close linkage in the Act between s716 and
s720 was intended in the scheme of the legislation to apply to those by-laws that were
passed under s716 and came within the general heading of zoning”.

It is however important to note here that in one important respect at least, the British
Columbia provisions differed from the provisions in Ghana under s4of CA 4 namely that
our s4 as substituted by Act 92 explicitly referred even to the use of “arrangement of
section or similar divisions of an enactment” so that in Ghana arrangement of divisions
will suffer the same fate as headings and marginal notes. Perhaps the key point to note
from the British Columbia case is its unequivocal view that the expression “intended for
convenience of reference only “ barred the use of the descriptive parts listed as aids
contrary to the position taken by the Ghanaian authorities.

On the balance the position of the Ghanaian authorities seem preferable and more
consistent with the MOPA especially when the indication that the headings and marginal
notes etc are for convenience of reference only do not form part of the Act do not
necessarily entail that they cannot be used as an aid to interpretation.

Wednesday, 05 April 2006

Remarkably the dominant position in most common law jurisdiction including Canada
today, appear to take account of headings as aids to construction, a position clearly
361
consistent with the MOPA although they also concede that the weight to be put on
headings etc will vary from case to case and that in the event of an irresolvable conflict
between the heading and an operative part the enacting part will prevail see

Dickson v BBC [1979] 2 All ER 112

R v Lohnes [1992] 69 Canadian Criminal Cases 3 rd ed, 289 – in this case the heading was
relied on to narrow the scope of section 175(a) of the Canadian criminal code which made
it an offence to cause a disturbance in or near a public place. The issue was whether the
word ‘disturbance’ include mental or emotional disturbance or was limited to overtly
publicly exhibited disorder. In opting for the narrower inter the SC of Canada relied on
many factors including the heading. Mclachlin J wrote –“… headings and preambles may
be used as intrinsic aids in interpretinh ambiguous statutes. Section 175(1)(a) appears
under the section ‘ disorderly conduct’ without elevating headings to determinative status
the heading under which s175(1)(a) appears supports the view that parliament had in
mind, not the emotional upset or annoyance of individuals, but disorder and agitation
which interferes with the ordinary use of a place. See also

R v Zundel [1992] 95 DLR 112

Yet it has to be added that even though the authorities now dominantly appear to accept
headings as aids to construction, the significant number of the authorities both in Ghana
and other common law jurisdiction still insist that headings, marginal notes etc are not to
be used as aids to control the meaning and effect of a provision of an enactment, unless
the provision to be interpreted is ambiguous. The English case of

DPP v Schildkamp
Offers a classic illustration of the continuing equivocation of the courts on the issue.

In this case even though the majority held that headings could be so used, Lord Hudson
and Viscount Dilhorne took the view that while some attention ,might be paid to cross
headings they could not be permitted to have a controlling effect; while Lord Reid and
Upjohn considered that in some cir a cross heading might control the meaning in effect of
the ff section, the insistence that headings should not be used to control the enacting
section is evidently inconsistent with the MOPA and barring any statutory command to
that effect, there is no basis why in an appropriate case a heading might not control the
meaning of the section following.

It has to be considered however that the weight to be put on a heading will be undermined
when for eg the heading is itself obscure; the provision to be interpreted bears no relation
to the heading; or where the provision arranged under the heading bear no discernable
pattern see Dreigder @ 272 see also

R v Stevenson & McLean [1980] 57 CCC 2nd ed 526

Law Society of Upper Canada v Skapinka [1984] 9 DLR 4TH ed 161

362
Marginal Notes
MN (also referred to as side notes) are as previously noted short notations often printed at
the side of the section/s of an Act. the object of a MN is often to give some concise
indication of the contents of the section/s to which it refers and thereby to enable the
reader at a glance the framework of the section/s and also to direct his attention quickly to
the portion/s of the enactment he is looking for. Hence MN are often referred to as
‘finders aid’ see Thornton @ 185.

Again as earlier noted, MN are in practice only an approximation and may not cover all
the detail of the matter falling within the section/s to which they are attached. In preparing
MN drafters only often try to highlight in a word or two the primary matter dealt with in
the section in order to facilitate efficient and easy movement and might therefore not aim
at full understanding and accuracy.
Too, the MN may fail to get altered when some amendment in parliament will call for this
and may in such cases also not be an accurate pointer to the contents of the section.
Historically MN like headings were considered UDP’s and therefore rejected as aids see

Chandler v DPP [1964] AC 763

@ 789 per Lord Reid – “in my view side notes cannot be used as an aid to construction.
They are mere catch words and I have never heard of it being supposed in recent times
that an amendment to alter a side note could be proposed in either side in Parliament. Side
notes in the original Bill are inserted by the draftsman… so side notes cannot be said to be
enacted in the same sense as the long-title or any other part of the body of the Act.” see
also

Re Woking UDC supra

The position is however very different today. Parliamentary procedure even in England
has developed to the point where Mn or side notes are often contained either in the Bill as
introduced and considered in parliament and in new sections added by amendment.
In Ghana, the modern parliamentary practice is clearly spelt out in para 117 and 128 of
SOP.

Legal Status of Marginal Notes as aids to interpretation

As noted earlier the status of MN or side notes as aids to inter in Ghana also hangs on s4
of CA 4 as substituted by Act 92 s1. MN, like headings, etc are consequently also
described as intended ‘ for convenience of reference only and do not form part of the
enactment’. In the circumstances, the issues and arguments discussed in relation to
headings concerning the true effect of s4 are equally applicable. Hence it could also be
said that on a balance of authorities the courts in Ghana favour the position that MN could
be used as aids in Ghana despite s4. see

363
 Ababio v The RepubLIC [1972] 1 GLR 347-354
1. Although notes and references placed at the sides of enactments do not form a part of
it, they are a convenient indication of the scope of any such part of the enactment.
2. As foreshadowed in paragraph 1 (1) of the Decree, the notes and references at the side
deal only with matters connected with reversion of such chiefs.
3. Thus we have for example, "Chiefs wrongly elevated to revert to former status" (para.
1) or "Reduced Chiefs to revert to their former allegiance" (para. 2) or "Withdrawal of
Government's recognition from certain chiefs" (para. 3) or "Restoration of previous
chiefs" (para. 4). A reading of the paragraphs of N.L.C.D. 112, save paragraph 3 (2),
shows that the word "person" when used is qualified in its context and clearly means
the person reduced or reverted as specified in Schedule I and not persons meaning
people generally.

Bilson v Apaloo
The phrase "shall be duly constituted" when construed in its ordinary or grammatical
sense, meant "shall be rightly or properly formed or established." The language used in
article 115 (2) for the due constitution of the Supreme Court defined a minimum quorum
of five without fixing the maximum. However, the words employed in article 121 (2) for
the definition of a duly constituted Court of Appeal provided for the court's quorum
simpliciter; the maximum number of members who could sit on the Court of Appeal had
not therefore been specified;

Smith v Smith

Osei v Siribour

Tommy Thompson v The Republic

Gatco v Pharmadex Gh Ltd

R v High Court Accra exparte Adjei

dissenting opinion of Taylor JSC

Here it has to be noted that in this respect also the position under Ghanaian law reflects
the dominant position in several other common law jurisdiction today see

DPP v Schildcamp @ 28 per Upjohn J

Harbury Investment v Westminster City Council [1986] 1 WLR 1232 @ 1242

R v Moore [1988] 41 CCC 3rd ed @ 289

Needless to note the weight to put on the MN or side note will however vary from case to
case having regard to the nature and function of the MN. A Bennion notes in this respect,
the MN is part of and may be considered in construing the section or any part of the
provision of the Act to which it is attached, provided due account is taken of the fact that
its function is largely to serve as a brief and therefore probably inaccurate guide to the
section see Bennion @ 152, Dreidger

364
Finally, as with long-title headings etc even though several of the authority now accept
MN as aids to interpretation a number of these still insist that marginal notes must only be
used as aids to interpretation of or in controlling sections of an enactment which are
ambiguous, not clear and unambiguous sections see

Tudor Branch Holding Ltd v City Bank NA [1991] 4 All ER 1, CROSS 132

R v Galvin [1986] QB 682 , CROSS@ 133

But again as previously noted this position is clearly unacceptable to the extent that it
suggests that marginal notes could be ignored at the 1 st stage of the inter process and are
only relevant when the enacting provision have been shown to be ambiguous. 2 Such a
position is clearly inconsistent with the MOPA and barring any limitation imposed by
statute, the court or interpreter ought to be able to look at marginal notes at any stage of
the interpretive process even though the weight to be attached to the notes will vary from
case to case.

However there is still an urgent need for reform to the pro of s4 of CA 4 to enable our
courts use MN etc more meaningfully and consistently with the now dominant MOPA.

2
analogous to the position taken by Benin regarding use of ‘headings’ that they can be look at at a latter stage where there is
ambiguity
365
Rules of Langauge & Presumptions

Comparing legislation with common law, statutes generally have the power to change the
established common law, but the common law cannot overrule or change statues. A statute
can only be overrruled or amended by another, later statute. This relationship reflects the
legal and political doctrine known as Parliamentary Sovereignty - the recognition and
acceptance that Parliament is the supreme law-making authority in the land. However, that
authority may not be absolute - it has been limited by the relationship with the European
Union, and the importance of principles such as the recognition of individual freedoms,
democracy and governmental accountability may place further limits on its exercise.
Nevertheless, save for these possible limits in extreme circumstances, the judges must
normally apply statutes, even if they are contrary to established common law. The task of
the judge is to interpret and apply the statute - they cannot disregard it or declare it to be
"unconstitutional". In many other jurisdictions, the judges do have this power to override
statutes by declaring them to be inconsistent with the written constitution. This happens in
the United States. For an example, see the cases of Youngstown Sheet & Tube Co. v.
Sawyer 343 U.S. 579 (1952); and Griswold v Connecticut 381 U.S. 479 (1965).

There are various theories as to how the judge should interpret statutes. This is not an easy
task. The legislation will originially have been written by experts (Parliamentary
draftsmen) who write in precise and technical language. But the legislation may be
amended by non-experts during its passage through Parliament. And circumstances may
be encountered which were not considered by the draftsmen. There are three main rules
which are used by the judges in interpreting Acts of Parliament:

 the literal rule - interpret the statue literally, according to its ordinary plain
meaning. For an example of this rule, see Fisher v Bell [1960] 3 All ER 731
 the golden rule - if the literal interpretation leads to an absurdity, then modify the
interpretation to a less obvious meaning. An absurdity may arise from a literal
meaning of the words. See for example Adler v George.* Alternatively, it may
arise from the policy implications of a literal interpretation. See Re Sigsworth.*
 the mischief rule - define the problem the Act was meant to remedy and choose the
interpretation which best deals with the problem. See Smith v Hughes (1871) LR 6
QB 597. In order to determine what was the problem before the Act, the courts can
look at, for example, reports from the Law Commission and also Hansard (the
journal of debates in Parliament)
 the purposive approach: The literal rules might be said to be the default position.
But the judges will commonly use a more purposive approach (the golden or
mischief rules), especially where the legislation seeks to implement a social policy
such as the outlawing of sex discrimination. see Pickstone v Freeman [1988] 2 All
ER 803.

Aside from these broad approaches, there are more specific rules of interpretation which
fall into two categories:

 rules of language:
366
 o Examples include the "eiusdem generis" (Latin phrase which means of the
same kind) rule: where general words follow a list of specific examples, the
general words take their meaning from the specific words and so are not as
general as they first appear. For example in the phrase houses, flats and other
buildings other buildings can mean only other dwellings, and would not
include, for example, a church.
o Another example is "expressio unius est exclusio alterius" (another Latin
phrase) - if an Act mentions a specific type, it implies that other types are not
included. (see for example the case of AM & S Europe Limited v
Commission of the European Communities (Case 155/79), [1982] ECR 1575.
o "Noscitur a socciis" - words take their menaing from those around them -
ambiguous words or phrases can be clarified by referring to the context in
which they are used (see for example Letang v Cooper [1965] 1 QB 232).

 presumptions: the judges make certain assumptions about the intentions of

Parliament and require strong evidence to the contrary.
o These include the presumptions that Parliament does not intend to impose
criminal liability (Sweet v Parsley [1969] 1 All ER 347),
o does not intend to take away fundamental rights (R v Lord Chancellor ex p.
Whitham [1997] 2 All ER 779*) and
o does not intend to exclude the courts from deciding disputes, see Anisminic
Ltd v Foreign Compensation Commission [1969] 1 All ER 208)

The Linguistic Canons of Construction (LCC) - (Rules of Language)

The LCC or the rules of language refer to the ordinary rules for the use of language. These
rules basically reflect the nature or the use of language as a means of communication
generally and are largely based on the rules of logic, grammar syntax, and punctuation.

Hence in Prescod Central Ltd v Minster of Labour Lord Diplock rightly described these
rules as general rules of composition which any writer seeking clarity of expression is
likely to follow. clearly then these rules do not depend on the legislative character of the
document in question nor indeed on its quality as a legal pronouncement. The rules
consequently are not confined to statute or even the field of law. They apply in much the
same way to all forms of language and could therefore be useful in the interpretation of
document, non statutory documents, statutes and or constitutions see Bennion @ 805,
CROSS @ 134.

In practice there are several of these rules of language. We shall however be concerned
with only 3 namely –
a) Expressio unius est exclusio alterius Rule
 The express mention of one or more things of a particular class may be regarded
as silently or inferentially excluding all other members of the Class.

b) Ejusdem generis Rule

367
  Where in a statute or document there are general words following particular and
specific words, the general word or words must have their meaning restricted or
confined to the meaning as conveyed by the specific words.

c) Noscitur a sociis Rule

 Where a general word is preceded by or comes after specific words and an issue
arises as to the meaning of the general word, the general word will take its
colour or meaning from those which surround it: ie It is recognised by its
associates

d) In pari materia
 "Upon the same matter or subject"
 This canon states that to determine the meaning of the particular statute, the
court should look at surrounding statutes to determine meaning. The idea is that
a set of stautes will form a complete subject body, and it is the job of the court to
bring a contextual harmonization among the various related statutes.
 See Bowen v. Massachusetts, where an action for "damages" included an action
for injunctive relief that would require payment of money, a form of relief not
technically within the definition of "damages"

These rules as Bennion perceptively points out, govern the elaboration of the meaning of
words and phrases by drawing on certain inferences which are taken as having been
implied by the author/s.

Expressio Unius Rule (implied exclusion rule)

Expression of one thing is the exclusion of another"

Also known as The Negative Implication Rule. This rule assumes that the legislature
intentionally specified one set of criteria as opposed to the other. Therefore, if the issue to
be decided addresses an item not specifically named in the statute, it must be assumed the
statute does not apply.

The expressio unius maxim is basically to the effect that the express mention of one or
more persons, things or matters of a particular class may be regarded as silent or by
implication excluding all members of the class which could have been mentioned but are
not mentioned see BUTA @ 93.

The maxim is an aspect of or indeed the chief application of the principle Expresum facit
cessere tacitum which embodies the important principle that to state a thing expressly
ends the possibility that something inconsistent with it is implied. In other words that an
express word in an enactment or document shuts the door to further implication.

Specifically the expressio unius rule is applied where a proposition in a document or

statute might have covered a number of persons things or matters buts infact only
368
mentions some of them. as Bennion notes unless these things are mentioned merely as
examples or ex abundanti cautela (out of abundance of caution ) or for some other
sufficient reason the items not mentioned are taken to be excluded from the proposition. In
effect the rule is based on the argument that unless some other reason appears, there was
no reason for the drafter or legislator to mention some only of the possible items unless
the intention was that they were to be only ones dealt with, so that the rest are excluded
see Bennion @ 873.

Dreidger who refers to the expressio unius rule as the implied exclusion argument
explains the basis of the rule even better when he notes that the maxim can be applied
when there is a reason to belief or expect that if the drafter of the document or the
legislature had meant to include a particular thing person or matter within the ambit of the
document he would referred to that thing expressly. Thus because of this expectation, the
failure to mention the item becomes a ground for inferring or implying that it was
deliberately excluded. Hence, although there is no express exclusion, the exclusion is
implied.
In the view of Dreidger, the force of the implication that a thing, person or matter is
excluded depends on the strength and legitimacy of the expectation of express reference of
items not mentioned. so that the better the reason for anticipating express reference to a
person, thing or matter etc the more telling the silence of the legislator or draftsman.

Thus for example where T having 6 children in his will devises property to Children A, B
and C , it will in the absence of compelling circumstance pointing to the contrary intention
be held that he intended to exclude his children D, E and F.

In addition it is to be noted that where a person seeks to rely on the expressio unis rule, he
must first identify an express provision in the document or statute which creates the
expressio rule. The expressio unis cannot be relied. See

AG of Trinidad and Tobago v McLeod [1984] 1 All ER 694

In practice the expectation of express reference can arise in a number of ways. Often
however this expectation is grounded not only in consideration of linguistics and logic, but
also presumptions relating to the way documentary or legislations are drafted or policies
they are likely to express and ultimately and indeed most importantly of all in the
intention of the author/s of the document or legislated enactment. This is particular the
case under the MOPA see
- JM Keyes ‘Expressio Unius’. Espression that proves the rule , 1989 10
St L aw Review

Illustrations of the application of the rule

The expressio unius rule is in practice applied in several different situations. However as
Keyes rightly points out, the rule while it applies with particular force in certain situation,
its power diminishes significantly in others, depending on the legitimacy of express

369
reference. Here in some other circumstances, the argument for its application might be
totally outweighed by some other considerations such as the intention of the author/s.

In practice some common applications of the expressio unius rule properly so called ie
that is based on the reasonable expectation of express reference include the ff-

a) Failure to mention comparable items - most common examples of the rule fall
within this class. Where a pro in a document or statute specifically mentions one or
more items but is silent with respect of other items that are comparable , it is presumed
that the silence is deliberate and reflects an intention to exclude items not mentioned
the reason here is that if the drafter or legislator had intended to include all comparable
items it could have mentioned them all or describe all of them using general terms. He
could not have mentioned some while saying nothing of the others. In practice the
more specific and lengthy the list of included items, and the closer the analogy between
the included items and those left off the list, the stronger the implication that the items
not mentioned were intended to be included.
Hence in the case of contracts for eg it had been noted that where the contract expressly
mentions something it would often be inferred that the other things in the same category
not mentioned were expressly omitted see Lewison @ 164, also

Aspen v Austin[ 1844] 1QB 671

Wills v United Counties Bank Ltd [1911] 1 CH 69

Here a deed of assignment of an equity of redemption provided for an express or limited
indemnity. It was held that this excluded fuller indemnity against a personal liability to
pay. See also

Impraim v. Baffoe [1980] GLR 520-526

The testator, directed that on his death, his dwelling house referred to as "Jehova Villa"
should be occupied by certain named members of his family and their “children” as a
“family house”. He further directed that other members of his maternal and paternal
families were to be given rooms when they were in need of accommodation, and the house
should never be sold. These directives of the testator were followed until the death of
executors, when the defendant, head of the testator's family, unilaterally took over the
management and control of the house and decided to collect rents due to the estate.
Held:
1. I have already indicated that the clause of a will must be interpreted with reference to
one another, and what the testator meant by "family house" was made quite clear
earlier in the will when he said the named beneficiaries and their children should use
the property as "family property" and not his own family of which the defendant
claims to be head.
2. The defendant's claims as head of the testator's family affords him no benefit in the
enjoyment, immediate, future or contingent, of the property in dispute because the
property was not devised by the testator to the testator's family. Who then are the
members of the devisee family? Or as Mr. Acquah put it: `What happens to the
property when the last of the surviving children dies without the power to alienate?"

370
3. The awkward section is the penultimate clause beginning with the words "I give and
bequeath ... "and ending with the words "My dwelling house `Jehova Villa' referred
to in this will should not be sold for any purpose but be a family house."
4. I think the first point which hits anyone confronted with looking for the intention of
the testator, is that the testator did not intend to leave the enjoyment of the house
"Jehova Villa" in the hands of all and sundry in this family either immediate or outer.
He achieved this in two ways:
5. Firstly, he named the specific individuals who together with their children shall
occupy and enjoy the property; the fact that the individuals mentioned are members
of his family does not to my mind, automatically confer any rights on the family as a
whole.
6. Secondly, he expressly stipulated the interest if "interest" it may be called - which all
other members of his family may have in the property.
7. Inclusio unius est exclusio alterius; the fact that he expressly identified members of
his family who should benefit from his property is proof that the other members of
the family are excluded especially when he went on and expressed in no uncertain
terms what the interest of all other members of his family should have in that part of
his will which read: "At the same time should any of my relatives in both maternal
and paternal side be in need of residence he or she may be given a room to occupy."
8. As a general rule, the expression "children" means immediate descendants and does
not include grandchildren.
9. It may however appear on the construction of a particular will that the testator used
the word "Children" in a wider sense so as to include grandchildren and remoter
issues and this may appear in the context of the will itself.
10. In the will under consideration, the testator obviously a man of a respectable level of
education and a minister of religion excluded his family, and devised the property to
a devisee family and decreed that the house should never be sold.
11. In such a context the word "children" can only make sense and give expression of
his intention if it is construed to include remoter issues of the specified beneficiaries.
12. But one thing it does not, in my view, do; it does not let in either the defendant or the
entire family of the testator of which the defendant is head. The beneficiaries
specified in the will, would therefore take as purchasers and their descendants
according to law would on the death of the last surviving child take by descent ad
infinitum.

In respect of application of this maxim see

Rep v City of Winnepeg

In this case section 6 of the Winnipeg General Hospital Act exempted the hospitals
property from certain transaction “if that property is used for hospital purposes”. The
section went on to provide that “property used … for necessary parking facilities, interns
quarters, school of nursing, nurses residence, power house or laundry shall be deemed to
be used for hospital purposes”.
The issue here was whether 2 apartment buildings rented to the hospital staff were
included in the exemptions. Monin JA in his judgment drew attention to the dilemma
created when comparable items do not receive comparable treatment. He noted “why were
371
these 2 apartment blocks already in existence and used fro some 10 years prior to the
legislation not listed in the ‘shall be deemed proviso’ like the 6 other categories…. if it
had been the intention to apply the exemption specifically to these 2 blocks, then they
could easily have been listed or detailed in the proviso. See

Intro Pty UK Ltd v Saubel [1983] 2 All ER 495, BUTA @ 96-7

GIHOC v Vicenta Publications [1971] 2 GLR 24, BUTA @ 95

That the corporation was indebted to Vincenta Publications in the sum of N¢2,350.00 for
advertising services. Counsel for the corporation concentrated on the legal submission
that Vincenta Publications was the business name of one man and therefore the proprietor
of the business could not come to court as a plaintiff under the business name. The legal
basis for this submission was Order 48A, r. 11 of the L.N. 140A, which provided: "Any
person carrying on business within the jurisdiction in a name or style other than his own
name may be sued in such name or style as if it were a firm name; and, so far as the nature
of the case will permit, all rules relating to proceedings against firms shall apply."
Held:
1. It is an application to substitute an existing person for a business name which is not a
person. If that is the case, then there is no plaintiff before the court and there is nothing
to substitute or amend.
2. Under rule 1 any two or more persons carrying on business within the jurisdiction may
sue or be sued in the firm's name. Under rule 11, any person carrying on business
within the jurisdiction may be sued under the firm name. Rule 1 has a wider ambit
whereas rule 11 has a very narrow scope.
3. In rule 1, there must be more than one person who can sue or can be sued in the firm
name. Under rule 11, one person may be sued as defendant under the firm name.
4. If it had been intended to enable such an individual to sue also as plaintiff under the
firm name, rule 11 would have expressly provided for such a case. But the rule is
completely silent and it is not open to any court of law to give it a greater field of
operation.
5. Rules of court, like the Queensbury rules in boxing, are meant to be observed by
litigants and enforced by the courts. Where there is no rule of court enabling a party to
take a certain course or mode of action, the party must show legal justification for the
course taken.

b) In relation to the condition for the exercise of jurisdiction of a person body or

court etc3. Another common application of the ejg rule is in situations where a
document or statute has to provide for the exercise of jurisdiction by a person, body or
court upon specified conditions.

Here it has often been held that the fact that the author/s of the document or legislation
had expressly stated those conditions meant that other conditions were excluded see
BUTA LIG @ 99 ff. see also

3
CFAO v Zacker, Assibey v Ayisi
372
Aldrich v AG [1968] PD 281
BUTA @ 100

Oppan v Frans & Co Ltd [1984-6] 1 GLR 281

The respondents obtained judgment against the applicant (O.) in the High Court, Sekondi
in the total sum of ¢130,500. Dissatisfied with the judgment the applicant appealed to the
Court of Appeal. Pending the appeal O. applied to the High Court for a stay of execution.
The court ruled that execution would be stayed on condition that the entire judgment debt
and costs would be paid into court two months from the date of the ruling. The applicant
claiming that the conditions imposed by the High court were onerous, inconvenient and
virtually amounted to a refusal of his application, brought an application for stay of
execution of that order before the Court of Appeal under rule 28 of the Court of Appeal
Rules, 1962 (L.I. 218). The Court of Appeal suo motu raised the issue whether the
application was competent.
Held, dismissing the application:
O's application to the Court of Appeal could not be saved under the provisions of L.I. 218,
r. 21 because although that rule provided that "every application" might be filed in the
High Court for transmission to the Court of Appeal, by making special provisions for
applications for stay in the later rules 27 and 28 of L.I. 218, the law makers must be
deemed to have intended that applications for stay should be excluded from the phrase
"every application" appearing in the preceding rule 21. For the same reason the
application could not be saved by a recourse to the residual "inherent jurisdiction" of the
court.

Here it is also to be noted that the application of the EU maxim has created special
difficulties in situations involving what BUTA aptly describes as a change in the hierarchy
of the courts in this country (often in consequence of military intervention etc) and the
resultant change in the jurisdiction conferred in the new highest court as a successor to the
previous highest land in the land.

BUTA notes that the application of the EU rule here, has often meant that where the law
had conferred either restricted or expanding review or appellate jurisdiction on the newly
created highest court, it is only this specified jurisdiction which could be exercised by the
new highest court see BUTA @ 100 ff.

This difficulties are illustrated by several cases in which the issue has arisen as to whether
the jurisdiction expressly conferred on the new highest court should be restricted or
extended to accommodate cases not clearly under it- but which would have fitted under
the old system. see

CFAO v Zacca [1972] GLR 366

The applicants brought an action in the High Court against one S. Zacca, claiming
payment of sums of money due and payable under a hire-purchase agreement between the
applicants and Zacca for the purchase of a tractor. The applicants had, in the meantime,
seized the tractor for default in the payment of the instalments under the hire-purchase
agreement. Zacca disputed liability on the ground that to the knowledge of the applicants
373
he was only a nominal party to the hire-purchase agreement, and that the real party was
one B. M. Zacca, the respondent herein, who joined the suit as a third Party. B. M. Zacca
did not dispute liability under the hire purchase agreement, but he counterclaimed for
damages for unlawful seizure of the tractor by the applicants.

Held:
1. On 22 August 1969, when the Constitution came into force. Counsel further referred
to the Transitional Provisions, and argued that on 15 August 1969 when judgment was
delivered by the former Court of Appeal, the applicants had a matter pending before
that court, and this is covered by section 13 (1) of the Transitional Provisions. Section
13 provides as follows:

2. "(1) Subject to the provisions of this section, legal proceedings pending immediately
before the coming into force of this Constitution before any Court, including civil
proceedings by or against the Government, shall not be affected by the coming into
force of this Constitution and may be continued accordingly.

3. The crucial question in this application is: Had the applicants any right to appeal which
was preserved by section 13 (1) of the Transitional Provisions? If they had no such
right, then the question of extending time within which to appeal does not arise.

4. On whether the applicants had an undoubted right to bring an application for review
between 15 August and 22 August amounting to "legal proceedings pending" in the
words of the provision of section 13 (1) of the Transitional Provisions. Mr Franklin
argued that combined effect of the provisions of section 13 (1) and (2) amounts to a
definite pronouncement by the Constitution that where there had been a right to apply
for a review and that right had been put into writing it is recognised by the
Constitution, and it is considered as an application for appeal to the Supreme Court.

5. If it had not been put into writing, it is no longer recognised. This, Mr. Franklin said,
implied the application of the maxim expressio unius est exclusio alterius. Mr Franklin
has urged upon the court to apply the maxim expressio unius est exclusio alterius and
to hold that a right to apply for review does not amount to "legal proceedings pending"
within the meaning of section 13 (1).

6. This Latin maxim simply means that the expression of one person or thing implies the
exclusion of other persons or things of the same class, but which are not mentioned.
The maxim, it has often been said, must be applied with some degree of
circumspection. Thus, in Colquhoun v. Brooks (1887) 19 Q.B.D. 400, Wills J. said at
p. 406:

7. “I may observe that the method of construction summarised in the maxim 'Expressio
unius exclusio atterius’ is one that certainly requires to be watched ... The failure to
make the 'expressio' complete very often arises from accident, very often from the fact
that it never struck the draftsman that the thing supposed to be excluded needed
specific mention of any kind.”
374
8. When that case reached the Court of Appeal, Lopes L.J. also observed ((1888) 21
Q.B.D. 52 at p. 65, C.A.):
9. “The maxim ‘Expressio unius exclusio alterius,’ has been pressed upon us. I agree
with what is said in the Court below by Wills, J., about this maxim. It is often a
valuable servant, but a dangerous master to follow in the construction of statutes or
documents. The exclusio is often the result of inadvertence or accident, and the maxim
ought not to be applied, when its application, having regard to the subject-matter to
which it is to be applied, leads to inconsistency or injustice.”

10.But in my judgment one can only express sympathy for the losing party, for in spite of
the criticisms against the maxim, it has been applied in numerous cases where the
words of the enactment and the context impel its application:

11.See Maxwell on Interpretation of Statutes and Jones v. Director of Public Prosecutions

[1962] A.C. 635, H.L. per Viscount Simonds at p. 658

12.In all the three judgments of the court it was not only possible to account for the
inclusio unius, but also to demonstrate that when the case was considered against the
background of the general law the mere fact of the inclusion of the words "or his legal
personal representative" after the word "landlord" and their omission after the word
"tenant" was not sufficient ground for holding that the legislature intended to give a
tenant a right of recovery without the ordinary incidence of such a right.

13.This is a specific provision conferring a right of appeal in a particular case, and it

seems to me that the inclusio unius in subsection (2) cannot be accounted for on any
other ground than that there is a deliberate intention to deny those who had not filed an
application for review by 22 August 1969 the right of appeal. As is stated in Maxwell
on Interpretation of Statutes

“. . . the fundamental rule of interpretation, to which all others are subordinate, is that a
statute is to be expounded 'according to the intent of them that made it.' If the words of
the statute are in themselves precise and unambiguous no more is necessary than to
expound those words in their natural and ordinary sense, the words themselves in such
case best declaring the intention of the legislature. The object of all interpretation of a
statute is to determine what intention is conveyed, either expressly or impliedly, by the
language used, so far as is necessary for determining whether the particular case or
state of facts presented to the interpreter falls within it. 'If there is one rule of
construction for statutes and other documents, it is that you must not imply anything in
them which is inconsistent with the words expressly used'.”

14.If I understand Mr. Quashie-Idun's argument aright, he appears to be saying that the
expression "legal proceedings pending" in subsection (1) covers his case, where no
application for review had at all been filed, and subsection (2) is a specific provision
which covers an application which had actually been filed before the Constitution came
into force. For myself, I find great difficulty in understanding this argument.

375
15.I find the observations of Viscount Simon in Hill v. William Hill (Park Lane) Ltd.
[1949] A.C. 530, H.L. most pertinent. He said at pp. 546-547:

"[I]t is to be observed that though a Parliamentary enactment (like parliamentary

eloquence) is capable of saying the same thing twice over without adding anything
to what has already been said once, this repetition in the case of an Act of
Parliament is not to be assumed. When the legislature enacts a particular phrase in a
statute the presumption is that it is saying something which has not been said
immediately before."

16.It is said that the application of the maxim in this case would work injustice or
hardship. But an answer to that argument is that if the precise language of an
enactment is clear and unambiguous it is the duty of the court to enforce it, though the
result may be unjust, arbitrary or inconvenient. It is not the duty of the court to make
the law reasonable, but to expound it as it stands. As Tindal C.J. said in Warburton v.
Loveland, H.L., "Where the language of an Act is clear and explicit, we must give
effect to it whatever may be the consequence; for in that case the words of the statute
speak the intention of the Legislature."

17.In my view, it is only when there are alternative methods of construction that notions
of injustice may be allowed to influence the interpretation. Here in this case I can see
no other alternative construction in the language of section 13 than that under the
Constitution only a pending application for review under paragraph 7 (2) of the Courts
Decree, 1966 (N.L.C.D. 84), is recognised as conferring a right of appeal, and it is the
inescapable duty of this court to give effect to the clear language used by section 13.

Assibey v Ayisi [1974] 2GLR 315 CA,

BUTA @ 102 cf

Arma v Arma [1975] 2 GLR 21

Patu-Styles v Amoo-Lamptey [1984-86] 2 GLR 644

Held: For the purpose of review proceedings the two divisions of the Court of Appeal, i.e.
the ordinary and full bench, could not be regarded as one court because:
(i) section 5 of the transitional provisions of the Constitution, 1979, spoke
specifically of review proceedings pending before the full bench and not just
the Court of Appeal generally.
(ii) The lawmakers must be deemed to have known the state of the law when they
were writing section 5 of the transitional provisions. They knew the Court of
Appeal had two arms, yet they chose to mention expressly one arm, not both
arms or the Court of Appeal generally;

c) In relation to documents or statutes providing specific remedies, penalties

sanctions or procedure etc. often a document may empower a court to grant
specific remedies or impose a specific penalty or sanction or follow specific
procedure. And in that event it might be presumed as BUTA points put @ 97-8 of the

376
 LIG that other remedies or penalties or procedures etc not expressly stated but which
might have been applied are excluded.

Hence the question might arise in practice whether the mention of a particular statute
sanction or remedy or procedure etc excluded all others including common law ones see
Keyes at 19 ff. see also

Kwakye v AG [1981] GLR 144

BUTA @ 98 The plaintiff issued a writ in the Supreme Court for a declaration that he was
never tried, convicted or sentenced by any special court established under A.F.R.C.D. 3
and that the purported imprisonment of 25 years imposed on him, as published in the
national press, was an infringement of his fundamental human rights, inconsistent with
chapter six of the Constitution, 1979, void and of no effect.

AG v Tagoe [1984-86]

Circumstances in which the EU rule may be inapplicable –

The EU rule may in practice be inapplicable (even though the basic conditions for its
proper application outlined above have been satisfied) in a number of cir including the ff-

a) where rule is outweighed by other factors such as the intention of author/s as well as
by other competing considerations.

As noted earlier, the rule is ultimately only a guide to discovering the meaning of a
provision of statute or document consistent with the intention of the author/s. hence it
might be outweighed in cases where the context clearly suggested an intended meaning
other than that suggested by an application of the maxim. in other words, if the result of
accepting an implied exclusion argument will lead to a meaning inconsistent with the
purpose of the author/s etc the maxim is readily dismissed.

Furthermore as previously noted the courts proceed on the presumption that the drafter of
a document or enactment do not intend absurd, unjust etc results. Hence even where the
implied exclusion rule is not rebutted the courts might still favour alternative
interpretations and will therefore refuse to apply the maxim if it will lead to absurdity,
injustice etc inconsistent with the purpose of author/s. see Hals 3 rd ed, vol 11 para 644.
where it has been noted that the maxim ought not to be applied when its application,
having regard to the subject matter to which it is applied, will lead to manifest
inconsistency or injustice. See

Boateng v Valco

Akuffo v Valco*

Valco v Akuffo –
see all 3 cases supra in relation is documents

377
In relation to statutes

Coltman v Bibby Tankers Ltd [1988] 1 AC 276 @ 301-2

Colquchon v Brookes [1988] 21 QBD 61 per Lopes LJ-

“it is often a valuable servant but a dangerous master to follow in the construction of
document. The exclusion is often a result of inadvertence or accident and the maxim ought
not to be applied when its application having regard to the subject matter to which it is to
be applied leads to inconsistency or injustice.

Dean v Wiesengrun [1955] 2 QB 120

CFAO v Zacca

Republic v Military Tribunaal exparte Ofosu Amarh[1973] 2 GLR 445

GPHA v Issoufu [1993-4] 1 GLR 24

Held: The defendants could not escape liability merely because it was not stated in that
Law that the liabilities of the original defendants should be taken over by the present
defendants. If the law makers had intended that result, specific provisions would have
been enacted in the law to that effect.

b) where there is an alternative explanation for the EU

the EU rule does not apply where it appears that some reason other than the intention to
exclude certain items exist for the express mention of the item in question. The items
expressly mentioned may have been used merely as examples or to emphasise the
importance of the matters mentioned or out of excess caution ( ex abundanti cautela) to
ensure that the mentioned items are not overlooked or for some other purpose. Often, the
items left out might also have been left out inadvertently. See

Dean v Wisengrun
supra per Jenkins J- where he noted that the EU carried “little if any weight where it is
possible to account for expressio unius on grounds other intention to infer the exclusio
alterius”

C Maurice & Co Ltd v Minister of Labour [1968] 1 WLR

Prescod (Central Ltd) v Minister of Labour [1969] 1 WLR 89

Drafting error (where it is created as a result of drafting error)

The failure to expressly refer to a matter or item is often sometimes the result of careless
drafting or inadvertence rather than the choice or desire to exclude the item not
mentioned. See Dreidger @ 175. consider here an example of a drafter who devises
property in a will ‘ to all his 3 daughters’ but mentions the names of only 2. see

Turgon v Dominion Bank [1930] SER 67

@ 70-1

378
Ejusdem Generis (Limited Class) Rule

"Of the same kind, class, or nature"

Where general words follow an enumeration of specific items, the general words are read
as applying to other items akin to those specifically enumerated.

The rules is an aspect of the noscitur a sociis rule and not conversely as BUTA states in
the LIG
The EG rule, as it is usually understood and employed in Ghana and other common law
jurisdictions, is a rule of construction to the effect that where in a document or statute
there are general words following specific or particular words, the general words must
have their meaning restricted or confined by the particular specific words unless there is
something to show that this is not what was intended
The formula for the EG rule is specific words (genus /class) + general words

Here one can hardly improve upon the formulation of the rule in Dreidger COS 2 nd ed @
116, CROSS @ 135
“where general words are found following an enumeration of persons or things all
susceptible of being regarded as specimen of a single genus or category but not exhaustive
thereof, their construction should be restricted to things of that class or that category
unless it is reasonably clear from the context or the general scope and purview of the Act
that Parliament intended that it should be given a broader signification. See also Odgers
‘Interpretation of Deeds and Statutes ‘ 5th ed @ 184 wherein the rules was defined as
follows –

“the Ejg rule; this rule of construction (meaning of the same kind) applies where there is a
particular description of property, sufficient to identify what was intended followed by
some general or omnibus description. This latter would be confined to objects of the same
kind or class as the former. It being assumed that the general words were only intended to
guard against some accidental omission in the objects of the kind mentioned and were not
intended to extend to objects of a wholly different character”

See CROSS @ 135, Lewison @ 179 ff and A Samuel ‘The EG Rule in statutory Inter’
1981 1 St LR see also

Lydon v Stanbridge [1857] 2 H & N 45

@ 51 per Pollock B – “it is a general rule of construction that where a particular class is
spoken of and general words follow, the 1 st class mentioned is to be taken as the most
comprehensive and the general words treated as referring to matters EG with such class.

Sun Fire Office v Hart [1887] 12 App Cases 848

per Lord Watson – “it is a well known cannon of construction that where a particular
enumeration is followed by such words as ‘other’ the latter expression ought if not
enlarged by the contents, be limited to matter EG with those specially enumerated.
Thus as BUTA notes at page 107 in an expression like “hats, underwear, overcoat, gown,
shirts, tie or any other thing” the general words ‘any other thing’ may not be given their
379
natural or ordinary meaning as any material or thing but must be construed as restricted in
meaning to such things as clothing which is the class or genus suggested by the specific
words see also

380
Jebeille v Norwick Union Fire Insurance Soc Ltd [1964] GLR . BUTA @ 109
Has the fire entirely destroyed the respondent's machines or damaged them beyond repair?
If the answer to this question be yea, then the only matter that would merit consideration
would be the pre-accident value of the machines. If the answer to the question be nay, the
next question which naturally suggests itself is: To what extent were the machines
damaged by the fire?
Held:
1. The property insured by this policy was carefully itemised in a schedule. Save
item one, the other items insured various machines and plant. Accordingly,
these two claims can only be made under item one.
2. The property insured under this item was described as "contents, consisting of
stocks of sugar, milk powder, syrup, essence and the like." Bicycles cannot be
the like of sugar, milk powder, etc. True, bicycles may be used with advantage
in the ice cream trade but to say that it is of the same genus as sugar, milk
powder and essence, would be doing too much violence to language. I think the
two bicycles were not insured and ought to be held excluded from the property
insured in item one by the rule of construction known as the ejusdem generis
rule.
3. This is a hard result for the respondent and it is impossible not to feel some
sympathy for him. But this court is governed by principles of law and not by the
hardship of any individual case. In any event, we ought to resist the temptation
of allowing our feelings to get the better of our judgment.

Republic v Saffour II [1980] GLR 193, BUTA 110

Whether or not the moneys collected by the appellant amounted to "revenue" from stool
lands, having regard to the definition of "revenue" stated in section 17 (2) of the Act. That
definition reads:

"(2) Revenue for the purposes of this Act includes all rents, dues, fees, royalties, revenues,
levies, tributes and other payments, whether in the nature of income or capital, from or in
connection with lands subject to this Act."

It is the contention of the prosecution that that definition is wide enough to include the
moneys collected by the accused whilst it was argued on behalf of the accused that the
moneys were mere "drinks" and not the type of revenue collectable by the minister.
Held: It was also part of the case for the prosecution that the grantees who paid the
moneys were simple rural folks who should know the difference between "drinks" and
"other payments" and they all said what they paid was not "drinks."
(1) This submission seems to suggest that whether or not the moneys paid were
"drinks" or "other payments" was a matter for evidence. This is misleading.
(2) Lindley L.J. said in the case of Chatenay v. Brazilian Submarine Telegraph Co.;
C.A.:
(3) "The expression 'construction,' as applied to a document, at all events as used by
English lawyers, includes two things: first, the meaning of the words; and,
secondly, their legal effect, or the effect which is to be given to them. The
381
 meaning of the words I take to be a question of fact in all cases, whether we are
dealing with a poem or a legal document. The effect of the words is a question of
law."
(4) The ascertainment of the scope of the expression "other payments" in section 17 (2)
need a little more effort than the evidence of simple rural folks can provide.
(5) It is the case for the prosecution that the words “and other payments, whether in
the nature of income or capital, from or in connection with lands subject to this
Act" which appear in the definition are so wide and so general as to accommodate
and [p.201] include the moneys collected by the accused.
(6) I must say, straightaway, that this submission is only half the battle won.
(7) When such general and rather sweeping expressions as have been used in the
definition under discussion stand by themselves they carry their full complement
of meaning and effect;
(8) but when, as in the present case, they follow a series of specific and particular
words, such general words shed a good measure of their popular meaning, and
only bear that portion of it which would make them consistent with the specific
words to which they are appended.
(9) This is the rule of construction popularly referred to as the ejusdem generis rule.
(10) Maxwell on Interpretation of Statutes (12th ed.) explains the operation of this rule
of construction:
(11) "In the abstract, general words, like all others, receive their full and natural
meaning, and the courts will not impose on them limitations not called for by the
sense or objects of the enactment ...But the general word which follows particular
and specific words of the same nature as itself takes its meaning from them and is
presumed to be restricted to the same genus as those words ... In other words, the
general expression is to be read as comprehending only things of the same kind as
that designated by the preceding particular expressions, unless there is something
to show that a wider sense was intended ... as where there is a provision
specifically excepting certain classes clearly not within the suggested genus."

(12) Thus there is this limiting rule of construction applicable when there is a particular
description of objects, sufficient to identify what was intended, followed by some
general or omnibus description. The latter description will be confined to objects
of the same class or kind as the former.
(13) Lord Campbell in the case of R. v. Edmundson formulated the rule more
succinctly:
(14) "where particular words are followed by general words, the latter must be
construed as ejusdem generis with the former."
(15) The rule is only a rule of construction; that being so, it will only be resorted to
when there is some difficulty with the interpretation of a piece of legislation.
(16) Rules of construction have been laid down only because of the obligation imposed
on the courts of attaching an intelligible meaning to unclear or misleading, or
ambiguous or unintelligible sentences or expressions.

(17) The definition of "revenue" in section 17 is a piece of legislation which readily

lends itself to the application of the ejusdem generis rule. It has generated
382
 controversy, and it consists of a series of specific words followed by a general
expression.
(18) All the specific words employed belong to the same genus. The question to
answer then is: What is the genus to which they belong and to which all other
words sought to be included under the definition must, necessarily also belong?
(19) On a close study of the specific words used in that definition, that they all refer to
periodic payments for the use of another's property, particularly, landed property.
The mode of making the payments is absolutely irrelevant.
(20) What is vital is the nature of the payment. If my view of the matter is correct then
the next point to consider is whether the moneys admittedly received by the
accused are of the same kind or nature and consequently, belong to the same
category as those specified in the definition as to make it permissible to be
included in the prescribed list.

(21) Penal statutes should, as a rule, be strictly construed, and the same goes for
legislation subject to the ejusdem generis rule unless it appears from a wider
inspection of the legislation that such an interpretation would defeat the declared
or implied intent of the provisions of the legislation.

(22) The Distress for Rent Act, 1737 which by section 8 authorizes the distress for rent
of "all sorts of corn and grass, hops, roots, fruits, pulse, or other products
whatsoever" growing in the demised lands was held in Clark v. Gaskarth to
include only products similar to grass and corn and not trees and shrubs in a
nursery, which, though unquestionably products of the land, are of a different
character from the products specified by the earlier words.

(23) The ejusdem generis rule will not apply if upon a wider inspection of the entire
document there is reason to believe that general words must bear a general
meaning.

(24) It reads, "The management of Stool Lands shall be exercised by the Minister."
That Act therefore divests stools of the control, and to a large extent, the
beneficial enjoyment of stool lands; but there is no deprivation of ownership and
the trappings that go with ownership; and it is imperative that the Act be not
interpreted in such a way as to give an effect which it admittedly did not intend. I
am further fortified in my view that the definition in section 17 (2) was not meant
to cover all payments made in connection with land by looking at other sections of
the Act.

(25) If Parliament intended that the definition of "revenue” in section 17 (2) should
cover all payments—even such payments as "drinks" provided that they are in
connection with land, I, on my part, see absolutely no reason why Parliament
should not have used similar words in section 17 (2) merely by omitting the
specific words so the definition would begin with the words "all payments" and
end with the words "to this Act."

383
 (26) It should be remembered that the sole aim of preceding general expressions with
particular and specific words is to enable the court to identify the particular genus
to which the piece of legislation applies which itself presupposes that other related
genii are excluded.

(27) What is more as Lord Westbury made quite clear in the case of Ricket v. Directors
& c. of Metropolitan Railway Co.;, "... the general rule is, that a deliberate change
of expression must be taken prima facie to import a change of intention."
(28) Lord Tenterden C.J. put it this way in the case of R. v. Inhabitants of Great Bolton
"Where the Legislature in the same sentence uses different words, we must
presume that they were used in order to express different ideas."
(29) When therefore both before and after section 17, the legislature used such
expressions as "all moneys" and "all sums" but in section 17 (2) it changed the
provision to "revenue" and then went on laboriously and meticulously to define
what it meant by that expression, and it did that by employing the ejusdem generis
form of legislation, it is my firm belief, that there must be a very good reason to
support a contention that the expression has the same meaning, effect and scope as
its predecessor and its successor. No such reason was given me, and I am unable
to find any.
(30) Back to the receipts, it is worthy of note that each one indicated an abusa. Under
the abusa system of tenure the landowner does not part with ownership of the
land. There is no sale—the landowner merely lends to another, the use of his
(landowner's) land, and gets paid for user. This means that any moneys paid him
cannot be the purchase price.

Republic v High Court Accra ex parte Ploetner [1984-6] 2 GLR

The EG rule is itself a branch of the wider principle of noscitur a sociis and, as Bennion
notes @ 858 of SI arises from the linguistic implication by which words having literally a
wider meaning when taken in isolation are treated as reduced or limited in scope by the
verbal context.

It is also to be emphasised that contrary to suggestions in a number of the auth that the EG
rule is not tied to any particular formula and that it does not apply only where general
words follow a string of specific genus describing terms, the bulk of the authorities on the
subject especially in Ghana, clearly favour the position that the EG rule is applicable only
where the general words follow the specific words not otherwise. This position inter alia
affords a basis for meaningfully distinguishing b/n the EG rule and the noscitur a sociis
rule.

The rationale for the Ejusdem Generis Rule

384
As noted already, the EG rule is basically an aspect of the wider principle that the
meaning of words should be coloured by the context and that “where reasonably possible
some significance and meaning should be attributed to each and every word and phrase in
the written statement. See

Brown C Haven Pty Ltd v Pool Corporation [1958] CH 574 @ 610 per Roma J

It is also often said in rationalisation of the EG rule, that the general words are inserted to
guard against accidental omissions in the listed items and are not intended to extend to
objects of a wholly different class see Odgers @ 184, CROSS 1ST ed @ 116,

Quazi v Quazi [1980] AC 744 at CROSS 135

At stake is the right under Matrimonial Causes Act 1973 to claim some share in a small
house in Wimbledon . Both parties are Pakistanis and of the Muslim faith, both born in
India. The right to claim depended on whether or not the Indian marriage was still
subsisting when she instituted divorce proceedings against the appellant in England.
Appellant claimed marriage had been dissolved by Khula in accordance with Thailand law
in which they both domiciled at that time., or by talaq in Karachi and taking effect 90 days
thereafter in Pakistan.
Issue: Are these marriages entitled to recognition in England, under the Recognition Act.
Held: per Diplock
4. The preamble to the Recognition Act makes it plain that its principal, though not
its only, purpose was to enable the UK to give effect in its domestic law to the
Hague Convention on the Recognition of Divorces etc.
5. S2 of the Act provided: “..the recognition in Great Britain of the validity
….divorces and legal separations which –(a) have been obtained by means of
judicial or other proceedings in any country outside the British Isles:……
6. Issue Argument is that the words “other proceedings” on the face would include
any proceedings that were NOT judicial and are to eb read as limited to
proceedings that are quasi-judicial, by application of the ejusdem generis rule.
7. As the latin words of the label suggests, the rule applies to cut down the
generality of the expression “other” only where it is preceded by a list ot two or
more expressions having more specific meanings and sharing some common
characteristics from which it is possible to recognize them as being species
belonging to a single genus and to identify what the essential characteristics of
that genus are.
8. The presumption then is that the draftsman’s mind was directed only to that
genus and that he did not, by addition of the word “other” to the list, intend to
stray beyond its boundaries,
9. but merely to bring within the ambit of the enacting words those species which
complete the genus but have been omitted from the preceding list either
inadvertently or in the interests of brevity.
10.Where however, as in s2 of this Act, the word “other” as descriptive of
proceedings is presented by one expression only that has a more specific
meaning, viz, ‘judicial’ there is no room for the application of the ejusdem
generis rule;
385
 11.For unless the draftsman has indicated at the very least two different species to
which the enacting words apply there is no material on which to base an
inference that there was some particular genus of proceedings to which alone his
mind was directed when he used the word ‘other’ which on the face of it would
embrace all proceedings that were not judicial, irrespective of how much or little
they resembled judicial proceedings.
12.The fact the ejusdem generis rule is not applicable does not, however necessarily
mean that where the expression ‘other’ appears in a statute preceded by only one
expression of greater specificity its generality may not be cut down if to give it
its wide prima facie meaning would lead to results that would be contrary to the
manifest policy of the Act looked at as a whole or would conflict with the
evident purpose for which it was enacted.
13.The purpose for which the Recognition Act was passed is declared by the
preamble to be with the view to the ratification by the UK of the Recognition
Convention and for other purposes
14.The ejusdem generis rule is, at its best, a very secondary guide to the meaning of
a statute. The all-important matter is to consider the purpose of the statute
15.If the legislative purpose of a statute is such that a statutory series should be read
ejusdem generis, so be it: the rule is helpful.
16.But if it is not, the rule is more likely to defeat that to fulfil the purpose of the
statute.
17.The rule like many other rules of statutory interpretation, is a useful servant but a
bad master.
For these reasons I construe….[language]

In practice also the rule is sometimes justified as an abdication of the presumption against
surplusage. Here it is contended that if the general words have unrestricted meaning, the
enumerated items become a mere surplusage. In other words that if the general words
were intended to have their ordinary meaning, the specific words would have been
pointless. See

Chandris v Isbrandstein Moller Co Ltd [1951] KB 240

Re Stockpot; Rugged Industrial & Reformatory Schools [1898] 2 CH 267 –

The issue in this case was whether industrial school fell within the proviso of section 62 of
Charitable Trust Act 1853 which referred to ‘any Cathedral, collegiate, charter or other
schools’ the proviso was held to apply to schools only of the specified kinds and those of a
similar type. Lindley LR noted that he could not conceive why the Legislature should
have taken the trouble to specify the particular kind of schools except in order to show the
type of schools to which reference was made.

Conditions for the proper application of the maxim

It has to be noted right at the outset that the EG rule is ultimately only a rule of
construction and within the scheme of the MOPA must only be evoked by the courts to
effectuate the intention of the author/s of a document or statute and not to be defeated.
386
This in a sense is then the most fundamental condition for the application of the rule and it
is consequently open to the court in all cases whether to inter the general words
restrictively in accordance with the maxim or comprehensively or largely in the light of
the intention of the author/s. see BUTA @ 110, CROSS @ 137, Lewison @ 184-5.

Specifically however, a number of basic conditions must be satisfied for a proper

application of the maxim even under the MOPA. These include –

i) General words must follow specific words

This is perhaps the most contentious of the conditions put forward in authorities. As noted
earlier the usual and dominant form of the association between general words and
particular words that engenders the application of the EG rule, at least in Ghana, is one in
which the general words follow a string of genus describing specific words.

However a number of auth on the subject have contended that though this is the usual
form of the association it is not the only possible form and that the EG rule might still be
invoked in some situations where the general words precede or are even surrounded by the
genus describing specific words see Bennion @ 852-859, 865-6 , Dreidger @ 207-9. in
support of his argument for the application of the maxim where the general words precede
the genus describing specific words Benion cites such cases as

Shaw v Ruddin [1858] 9 IR CLR 214

Scales v Pickering [1828] 4 Bing 448

Be that as it may the bulk of authorities as in Ghana and other common law jurisdiction
insist on the strict formula noted above ie the general words following specific class
denoting words. CROSS @ 135, Odgers , Lewison @ 179, Hals 4th ed Voll 44 para,
BUTA @ 107, Glanvile Williams ‘Origin and Logical implication of the EG rule’ 1943, 7
Conve New Serries para 119 see also

Re Wellstead’s Wills Trust [1949] CH 296

@ 318 per Cohen LJ – “I have never heard before of an inverse application of the EG rule
and I think it will be very dangerous here to attempt to cut down by the application of such
principle the words which precede …”

National Bank of Greece (Canada)* v Katsikonouris [1990] 74 DLR 197 @ 199

However, for the sake of consistency and in order to have a meaningful basis for a
distinction and application b/n the EG rule and the noscitur a sociis rule, it appears the
position in Ghana which insist on the traditional formula of general words following
specific words is preferable and to be adhered to at all times.

ii) Specific items must belong to identifiable class or genus

for the EG rule to be properly applied there must also be an identifiable class or genus to
which all the specific items set out in a provision belong. In other words the rule will not

387
apply unless one can construct a class out of the specific words used in the document or
enactment.

This pre-requisite is held to be essential because the class or genus inferred from the
enumerated items fixes the limits to which the general words are confined or as CROSS
puts it ‘it delimits what is to be considered of the same kind’. Hence if these specific do
not point to an identifiable class there can be no basis for so limiting the scope of the
general words.
see CROSS @ 136, Dreidger @ 204 see also

Tilman & Co v SS Knutsford [1908] 2 KB 385

@ 403 per Farwell LJ – “unless you can find a cartegory there is no room for the3
application of the EG rule see

Quazi v Quazi

On the authorities a genus for the purposes of the application of the EG rule need not be
one of a extreme scientific precision. It has been noted that it is sufficient ‘if one can
reasonably say that the thing or event was of a like kind to one or more of the specific
things or events which precede the general words see Lewison @ 183. see

SS Manghild v Mcintyre Bros Ltd [1923] KB 321

Hence the courts have frequently also held that there is no need for the genus to be of an
obvious kind and the courts will be willing to limit general words to a fairly
heterogeneous set of words by reference to an appropriate case see

R v Stanleford; R v Jordan [1997] AC 699

In effect the EG rule is in practice not to be too narrowly inter or applied and as CROSS
notes at 137 of SI, the notion of a genus simply indicates a reasonably identifiable
category of items and values. see

388
Republic v Ghana Cargo Handling Corporation ex parte Moses [1980] GLR 206
BUTA 1154 - ‘other serious offences’ In this application a rule absolute for certiorari is
sought against the respondents to quash, firstly, the proceedings of inquiry conducted by
the second respondent, and secondly, the decision of the first respondents reducing the
applicant in rank and salary.
Rule 88 coming under "disciplinary procedure" under which the respondents purported to
act reads:
"An officer who commits an offence necessitating his dismissal such as stealing,
embezzlement of funds or other serious offence shall be made to appear before a joint
management/senior staff association investigation board or committee of inquiry and shall
be given the fullest opportunity to defend himself."
Learned counsel's contention is that the alleged insulting conduct of the applicant, not
being an act tending to cause financial loss to the company, was not covered by the phrase
"other serious offences," since insulting conduct or behaviour cannot be regarded ejusdem
generis with "stealing or embezzlement of funds."

Held:
Mensa Boison J:
1. The rule of construction, ejusdem generis, applies where the general word which
follows particular and specific words is of the same nature as itself. In that case the
general word takes its meaning from the particular words, and is presumed to be
restricted to the same genus as those words: see Thames and Mersey Marine Insurance
Co. v. Hamilton;.
2. What this submission comes to is that the words "other serious offences" are to mean
offences of the same kind as stealing and embezzlement. I think the class or category
of offences mentioned do not sufficiently form a genus to admit of "and other serious
offences" being read ejusdem generis.

Okwan v Amankwa II [1991] 1 GLR 123-135 CA

The plaintiff and the defendants are members of the same family. The plaintiff is the
occupant of the family stool and the first defendant is the head of the family. In a dispute
as to which of the two has the authority to collect and control rent received from tenant
farmers in occupation of the family lands, the stool occupant applied to the High Court for
an interim injunction to restrain the family head and the other defendant members of the
family from collecting rent from the tenant farmers until the final determination of the
dispute. The trial High Court judge in his ruling granting the application and appointing
the registrar as manager and receiver, referred to the land in question as "family stool
lands." the defendants who contended that if the land was stool land, then the action
contravened section 17 of the Administration of Lands Act, 1962 (Act 123) which vested
the administration and the collection of stool land revenue in the Minister responsible for
Lands. Hence they argued, the court had no jurisdiction to entertain the suit. The only
new point taken before us by Mr. Mercer was his submission on the definition of stool
land as contained in article 213 of the Constitution, 1979 which reads:

4
Important case was used as exam question
389
"stool land" includes any land or interest in, or right over, any land controlled by a stool,
the head of a particular community or a family for the benefit of subjects of that stool or
the members of that community or family;” and therefore that‘stool’ includes a skin and
the person or body of persons having control over skin or family land."
Held:
1. For the general rule of interpretation is that where an enactment has clearly
defined particular words in its interpretation section it is uncalled for and most
unnecessary to look elsewhere for the meaning of those words.
2. Since the objection taken by the defendants was based on the provisions of Act
123 I would have limited them to the definition of "stool land" as given in that
Act but for the fact that the Constitution, 1979 is the supreme law of the land and
that all enactments must be brought within its provisions to avoid
inconsistencies.
3. Both article 190 and Act 123 deal with administration of stool lands. It is
necessary therefore to see that the provisions of the latter do not conflict with the
former.
4. . I am of the view that to interpret “family land” in the narrow acceptation of
that word as the true meaning of that word within the language of article 190
would produce a palpable injustice.
5. When the provisions of article 190 are read together with provisions of Act 123,
the true intent of the enactments will be defeated by giving a narrow
interpretation to “family land” as contained in article 213 (1) of the Constitution,
1979.
6. The public status or nature of the property sought to be administered in the
interest of the general community would be made applicable to such family land
and that would arbitrarily deprive individual families of control and management
of their lands, a situation which is not envisaged under the Constitution, 1979.
7. In my view, it would be a case of injustice to resort to their family lands. Where
a word is capable of two interpretations one producing an injustice and the other
conducive to a just result, the courts have held on to the interpretation that does
not produce injustice.
8. In the case of R. v. Tonbridge Overseers (1884), C.A. Brett M.R. said: "If an
enactment is such that by reading it in its ordinary sense you produce a palpable
injustice, whereas by reading it in a sense which it can bear, although not exactly
its ordinary sense it will produce no injustice, then I admit one must always
assume that the legislature intended that it should be so read as to produce no
injustice”.
9. Again in the case of Barlow v. Ross (1890)C.A. Lord Esher M.R. in the course
of delivering his judgment said:
10."But it is a familiar rule of construction that, although the [p.133] Courts are
prima facie bound to read the words of an Act according to their ordinary
meaning in the language, if there are other circumstances which show that the
words must have been used by the legislature in a sense larger than their
ordinary meaning, the Court is bound to read them in that sense."
11.I am of the view that "family land" as referred to in article 213 (1) of the
Constitution, 1979 must be interpreted in its broadest sense to connote the public
390
 nature of the subject-matter or to the same genus as the specific words which
precede it, i.e. "community land" and "stool lands" commonly enjoyed by all
subjects of the stool. Family as used here connotes a wider clan.
12.The facts of this case show that the land the subject-matter of dispute in this
appeal is a private family property of the parties and it will be unjust to construe
"family land" contained in article 213 of the Constitution, 1979 in its narrowest
sense to deprive the family of its control and management. Being a private
family stool land it is not a stool land within the language of either the
Constitution, 1979, art 213(1) or Act 123, s. 31.
13.The only way to interpret "any land controlled by the head of a family for the
benefit of the members of that family" as used in article 213(1) to conform with
the law, established usage and avoid an injustice, is to give it the same meaning
as "land held by the head of a community for the benefit of members of that
community."
14.I appreciate that this interpretation makes the special mention of "family land" in
the definition of stool land otiose and from that point of view, unsatisfactory, but
it is a more satisfactory course than to impute to the Constitution makers an
intention to convert, by mere definition and without more, all family lands into
stool lands.

CHRAJ v AG [1998-9] SCGLR 871-

CHRAJ claimed that by the use of the phrase “on any other basis in s35(2) of Transitional
provisions of the ’92 constitution, they had the power to investigate confiscations made by
a court or tribunal during the AFRC and PNDC administrations and if satisfied, order
restoration of that property.
Held:
15.It cannot be said that the commission has the carte blanche authority to roam the
highways and bye-laws of the legislative, judicial and executive intents and acts
of the AFRC and the courts ,in the exercise of its powers of investigation.
16.It is impossible to construe words in an Act of parliament without reference to
their context and the whole tenor of the Act.
17.Where ambiguous language is used in an Act one is entitled to look at the long
title.
18.Thus we proceed not only to look at the long title of the Act under reference, but
also examine the history of the Act and the reasons which led to its being passed
and paying due regard to the mischief which had to be cured as well as the cure
provided.
19.Thus the expression “or on any other basis” must be construed ejusdem generis
with the expression “on the basis of his holding a public or political office”
20.“Thus construed, the expression “or on any other basis” meant “or on the basis
of holding any public or political office so designated by law or akin to such
office with similar powers and responsibilities.
21.“In our respectful opinion, it matters not whether such public or political office
is held substantially or honorary.
22.The important thing, is proof that the confiscated assets or any part thereof was
acquired before the assumption of that office.
391
 23.The classes of persons thus affected are limited to former public and
political functionaries. It is not open to the generality of the citizenry to avail
themselves of this subsection.

Agyekum v Boadi [2000] SCGLR 280

This is a reference from the Circuit Court, Accra, for the determination of the following
issues:
1. Whether or not the deconfiscation order directed by the President of the 4th Republic
through the Confiscated Assets Committee in respect of the said house is in contravention
of the letter and spirit of the 1992 Constitution particularly Article 35(1) and (2) of the
Transitional Provisions of the said Constitution.
2. Whether or not section 3 of PNDCL 325 is in contravention of Article 35(2) of that
transitional provisions of the 1992 Constitution.

Section 35 of the Transitional Provisions read:

“35(1) Subject to subsection 2 of this section, any confiscation of any property and any
other penalties imposed by or under the authority of the Armed Forces Revolutionary
Council and the Provisional National Defence Council, shall not be reversed by any
authority under this Constitution.
(2) Where any property or part of any property of a person was confiscated on the basis of
his holding a public or political office or on any other basis, and it is established to the
satisfaction of the Commissioner for Human Rights and Administrative Justice that the
property or that part was acquired before he assumed the public or political office, or that
it was otherwise lawfully acquired, the property or that part shall be returned to the
person”.
“ The issue in our humble submission is whether “any other penalties” may not include a
confiscation. What is the ordinary meaning to be assigned to the words “confiscation”
within section 35(1).”
Held per Acquah:
1. Now from the decision in the CHRAJ’s case, the answers to the two questions
posed for our consideration are quite clear.
2. First, the deconfiscation by the President cannot be said to be in contravention of
Section 35(1) and (2) of the Transitional Provisions.
3. For as held by the Court, CHRAJ has no authority to deconfiscate properties
which were confiscated by the courts or tribunals and the investigative bodies set
up by the AFRC and the PNDC.
4. CHRAJ’s authority is in respect of confiscations made by law or decrees of the
AFRC and the PNDC.
5. And even in respect of these confiscations, only a limited class of persons—i.e.
public or political officers—may obtain redress.

392
Finally it has to be noted that there is still some controversy in the lit on the subject as to
whether the mention of a single specie can be treated as a reference to a genus. Quite a
number of the auth take the position that the single specie ff by the general words could
not create a genus on account of the difficulty or the doubtfully proprietary of purporting
to establish a class or genus from a sample or list of one.

In the Canadian case of Fergusson v Mcclean [1930] SR 630 @ 635 Duff CJ rightly
noted that the problem with the list of one is not that the single instance suggests no class
or genus but rather that it suggests too many. Hence unless other specifics are listed there
is very little basis for identifying the common features required to define a limited class.
Evidently the longer the list of specifics the easier it is to detect the presence of such
common or dominant features if there are any to detect. See

Alexander v Tredgar Iron & Coal Co [1944] KB 380

BUTA @ 113

Lake McQUARIE Shire Council v Abes [1977] 1 NSWLR 126

In this case the Australian court held that in the phrase ‘building or other place’ the word
‘place’ is not restricted to places akin to buildings.

On the other hand the rule that a single specie cannot create a genus has been attack in a
number of authorities as too rigid and as one which treats the EG rule as a rule of rule
rather than of linguistic convention. And here it is contended that properly understood the
EG rule, is merely a description of the inferences that competent users are to draw from
reading a particular text so that the question is ultimately one of intention conveyed by
the entirety of the passage and there can be no absolute rules. See Bennion @ 863.
In a number of authorities single specie has been held to create a genus see

Parkes v Sec of State of the Environment [1979] 1 All ER 111,

- BUTA @ 117, CROSS 137

AG v Seccombe [1911] 2 KB 688

in this case it was held the words ‘or otherwise’ in the phrase ‘any benefit to him by
contract or otherwise in s11 of the Customs Inland Revenue Act 1889 must be construed
EG with ‘contract’. See also

Foscolo Mango & Co v Stagline Ltd [1931] 2 KB 48

On the balance, of the authorities, it appears that a better view is that EG rule may in some
rare situations apply where only one term establishes the genus though in such cases the
presumption favouring the principle is weakened by the difficulty in discerning a genus
from a list of one.

3 rd condition
The class or genus, inferred from the list of specific words must be narrower than the
general words. The EG rule will not apply unless the class *** inferred from the
393
specified items is narrower in scope than the general words that ff the list see Dreidger @
205, Maxwell, 12th ed @ 298 where the learned authors note that the EG rule ‘applies only
to general words following words which are less general’

Hence if the inferred class is as broad as the general words to be interpreted there is no
point in invoking the rule. This point is also sometimes also made in terms of the
requirement that the general words must have something to apply to. Hence it has been
held that the EG rule cannot also be evoked if the class inferred from a list of specific
words have nothing apart from these items to apply to. Otherwise the general words will
add nothing to the provision contrary to the presumption against surplusgae or tautology
see Deridger @ 206.
Hence where the specific words exhaust a whole genus the general words must be
construed as referring to some wider genus see Hals 4th ed, 44 para 877

Grini v Grini [1969] 5 DLR 3rd ed @ 460

This case concerned the courts jurisdiction to order maintenance under the Canadian
Divorce Act. the Act permitted orders to be made in support of children who were old
enough to work but unable to provide for themselves ‘by reason of illness disability or
other cause’ the issue was whether maintenance could be order for a child unable to
provide for her self because she was attending high school the father argued that . The
argument did not succeed however because the ct found in the expression illness or
disability already covered the full range of mental and physical disability ie the class
suggested by the specific words see also

R v Payne [1860] LR 1 CCR 27

4th Condition –
General words must not by their nature exclude themselves from the category of
class or genus created by the specific words.
Furthermore for the EG rule to apply the general words must not by their nature exclude
themselves from the category, class or genus denoted by the specific words. Hence a
superior thing would for example not be held to be within the class of a inferior thing see
Hal , 44 para 8775 see also

Arc Bishop of Canterbury’s Case [1596] 2 Coal Report 46 A

Agyekum v Boadi – SC 2000

 Attensu v Reiner – ‘pending’
 Eyebia v Sackey, Re Ansaba
 Adusei v AG – ‘subject to’
 Akuffo v Valco see both CA and SC reports
 Addo v Sabrah [1964] GLR
 Bilson v AG

5
See example in Hals- others having spiritual provision will not include the Bishop
394
The circumstances in which the rule may not be applied
As noted earlier, the ejusdem generis rule is only a rule of construction (specifically a
guide to the intention of the author(s) of a document or statute) and will therefore not
be applied if it would defeat the intention of the author(s).
Hence in practice the rule would not be applied even though the conditions for
applying it may be present, if it is considered inappropriate to do so, given the
intention of the author(s), other features of the context, or some overriding principle or
policy. Specifically, some of the important circumstances in which it would be
inappropriate to apply the rule include the ff:
A .Outweighed by other indicators or indications of the intention of the
author(s) as well as other competing considerations: Under the MOPA, the object
of interpretation is to arrive at a meaning that reflects the intention of the author(s).
Such an interpretation would prevail over all other aids and guides including the
ejusdem generis rule. BUTA 113; DRIEDGER 209-210; CROSS 137. QUAZI V.
QUAZI [1980] AC 744

A-G v Abdulla [1960] EA 672

US v Alpers [1950] 338 US 680

In other situations, policy considerations, including considerations of justice etc have been
considered sufficiently important to override competing textual considerations grounded
in the ejusdem generis rule-especially where this would run contrary to the presumed
intention of the author(s).

B. Where there are alternative explanations for the list of specific items: A court
may also refuse to apply the ejusdem generis rule where it discerns a reason for the list of
specific items other than a desire to limit the subsequent general words to the class
denoted by the special items. As scholars like Driedger point out, sometimes the
enumeration of the specific items have a different purpose such as removing doubts,
respecting the scope of the provision or by expanding its scope by adding the list of
specifics that would ordinarily not be included in the general terms.
It is consequently important that the provision be analyzed carefully in each case to
determine why the list of specifics has been included.

Skinner & Co v. Shew & Co [1893]1 ch 413 ca

C. Where the list of specific items denotes more than one class: a class may also
refuse to apply the ejusdem generis rule where it is convinced that the drafter meant to
establish not one but two or more classes. (Driedger 211).
Eggers v. College Of Dental Surgeons (British Columbia) [1965] 66 DLR 2 nd ed
663.
D. Where considerations relating to the grammatical structure of the provision
dictate against the application of the rule:

395
 In deciding whether or not the ejusdem generis rule is applicable, attention must be paid
to the grammatical structure of the provision in question to see whether it inter alia makes
better sense grammatically and accords with the purpose of the author(s) of the document
or statute to apply the rule.

Brampton Jersey Enterprise Ltd V. Ontario Milk Control Board [1966] 1 Dlr 2 nd Ed
@ 130.

The Noscitur a Sociis Rule (Associated Words Rule)

It is known from its associates" (literally, "A man is known by the company he keeps.").

The meaning of questionable or doubtful words or phrases in a statute may be ascertained

by reference to the meaning of other words or phrases associated with it.

The Latin maxim “noscitur a sociis” (meaning literally, “it is recognized by its
associates”) embodies the contextual principle namely that a word or phrase is not to be
construed as if it stood alone but in the light of surrounding circumstances.

The rule in effect posits, as Cross puts it, that words even if they are not general words
preceded by specific words, are liable to be affected by other words with which they are
associated and are consequently to be interpreted in the light of those surrounding words.

CROSS 138; BENNION 853.

Bourne v. Norwich Crematorium [1967] 1 WLR 691

The Income Tax Act 1952 s271: “(1) Subject to the provisions of this section, in this
Chapter, ‘Industrial buildings or structure’ means a building or structure in use…( c ) for
the purposes of trade which consists in the manufacture of goods or materials or the
subjection of goods or materials to any process…”
Norwich Crematorium Ltd, the taxpayers, carry on the trade of disposal of the human dead
by cremation in a building disposing the corpses reduced to ashes in accordance with the
instructions of the deceased or his representatives, either by scattering, handed over to the
representatives or put in caskets for burial. They contend that their structure in question
falls within the definition of s271(1) of the tax Act for income tax assessment purposes.
The Crown contends that they do not for they were not industrial buildings within the
meaning of the Act having regard to the words “goods or materials” if given their ordinary
meaning, which should not include human corpses.

Held: per Stamp J:

1. Goods or materials is a phrase of the widest import embracing all things animate
and inanimate.
2. It will be a distortion of the English language to describe the living or the dead
as goods or materials.
3. English words derive colour from those which surround them.
396
 4. Sentences are not mere collection of words to be taken out of the sentence,
defined separately by reference to a dictionary or decided cases, and then put
back again into the sentence with the meaning which one has assigned to them
as separate words so as to give the sentence or phrase a meaning which as a
sentence or phrase it cannot bear without distortion of the English language.
5. That one must construe a word or phrase in a section of an Act of parliament
with all the assistance one can from decided cases and, if you will, from the
dictionary, is not in doubt, but having obtained all that assistance, one must not
at the end of the day distort that which has to be construed and give it a meaning
which in its context one would not think it can possibly bear.
6. What has to be decided here is whether what is done by the taxpayer company in
the consumption or destruction by fire of the dead body of the human being, is
within the phrase “the subjection of goods or materials to any process.”

While of general application and validity, the noscitur a sociis rule has in practice given
rise to specific precepts such as the ejusdem generis rule and the rule of rank.
It is however to be added that unlike the ejusdem generis rule for example, it is not tied
down to any particular formula so that it may be applied in determining for example the
meaning of a word which had been coupled together with other words which are
susceptible of analogous meaning; the meaning of neutral words surrounded by other
words.
Where the rule is to be applied to general words coupled with specific items or words, it is
immaterial whether the general words follow, precede, or even appear in the middle of the
specific words.

Illustrations of the application of the rule

On account of the broadness of the contextual principle, the noscitur a sociis rule is
applicable in a wide variety of situations and in practice the application of the rule may
result in words, whether or not they are general words, being given less usual or special
meaning, broad or restrictive meaning etc on account of the surrounding or associated
words.
In practice however, the rule has been invoked in a number of distinct situations or
scenarios which could be usefully kept in mind.

THE FIRST SCENARIO

Two or more words of analogous meaning coupled together: this is perhaps the most
typical situation in which the rule is evoked in practice, namely where two or more terms
coupled together (often by “and or “or”) serve an analogous or logical function within the
provision. Here the words are often understood to be used in the cognate sense and to take
their colour from each other. Often, as Driedger points out, the terms are restricted to their
broadest common denominator. MAXWELL 12TH ED @ 289 where the learned authors
note as follows: “where two or more words which are susceptible of analogous meaning
are coupled together noscitur a sociis, they are understood to be used in the cognate sense.
They take their colour from each other”.

397
An example can be given here of the English OFFENCES AGAINST THE PERSON
ACT 1837, which made it a felony “to shoot or to stab, cut, or wound any person”. The
word “wound” was construed in R v. HARRIS [1836] 7 and P 456 as restricted to the
preceding words connoting injuries inflicted by an instrument.

Republic v. Minister of Interior; Ex Parte Bombelli [1984-86] I GLR 204

(Buta 121). This case dealt with the construing the word “Orders” in article 4(7) of the
1979 Constitution.

It is provided by the Aliens Act, 1963 (Act 160), s 12 (1) (f) that:
"12. (1) An alien is liable to deportation—
(f) if his presence in Ghana is, in the opinion of the Minister, not conducive to the
public good."

It is also provided by the Constitution, 1979, art 4 (7) (a) that:

"(7) Any Orders, Rules or Regulations made by any person or authority under power
conferred in that behalf (a) shall be laid before Parliament."

The applicant, an Italian, was in 1975 granted a Ghanaian resident permit. Four months
before the expiration of the permit, he was deported by virtue of the Enzo Bombelli
Deportation Order, 1980 (EI 27 of 1980) issued by the Minister for the Interior in
pursuance of his discretion under the Aliens Act, 1963 (Act 160), s 12 (1) (f) which
provided that an alien was liable to deportation if in the opinion of the minister, his
presence in Ghana was not conducive to the public good. Subsequently, the minister at a
press conference gave his reasons for making the deportation order. In the instant
application for certiorari to quash the order, counsel for the applicant argued, inter alia,
that the executive instrument issued by the minister was invalid because it contravened
article 4 (7) (a) of the Constitution, 1979 which mandatorily required the order to be laid
before Parliament for days before becoming effective.
Held: per Cecilia Koranteng-Addo: Isssue: Was the minister required to publish the order
in the Gazette, and lay it before Parliament for 21 sitting days before the order became
effective? Although an "order", the question is whether it falls within the meaning of
"Orders" as contemplated by article 4 (7) of the Constitution, 1979.
1. By the canon of interpretation, ie the noscitur a sociis rule, the word "Orders" in
article 4 (7) (a) of the Constitution, 1979 meant "orders" in the form of rules and
regulations - not a command such as the order issued by the minister.
2. According to that rule of interpretation, a word took its meaning from the company it
kept, and "Orders" in article 4 (7) (a) had to be interpreted as "orders" such as rules
and regulations.
3. Consequently, to fall within the definition of article 4 (7) (a) an order must be a
legislative order.
4. And since the Statutory Instruments Act, 1959 (No 52), s 5 defined executive
instruments as "Statutory Instruments other than legislative instruments of a judicial
character", executive instruments such as EI 27 of 1980 did not partake of the nature
of rules and regulations.
398
5. They fell outside the orders which under article 4 (7) (a) of the Constitution, 1979
were to be laid before Parliament before they became effective.
6. Per curiam. It definitely cannot be in the public interest to publish it or lay before
Parliament for 21 days. If such orders were to be published for 21 days then the
minister cannot exercise that power in times of emergency.
7. My first task is to determine whether the deportation order is an act which is
reviewable by the court, and if so whether certiorari is the proper remedy.
8. The basic principles are that the court is competent to pass judgment on the legality
of acts done by the administrative or executive authority and its officials and that the
court will exercise supervisory control over inferior tribunals and keep them within
their allotted jurisdiction.
9. The exercise of discretionary power conferred by statute on the administrative or the
executive authority will be subject to the supervision of the High Court to see that the
power is exercised legally, ie within the confines of the law, and the basis of control
is legality rather than merits.
10. The review by the court shall be based on the legality of the proceedings.
11. However, if the minister acts within his jurisdiction and no appeal is provided by the
statute conferring the power, his act will be immune from judicial control.
12. It is only when the minister exceeds his powers that a court of law can quash his
decision or declare it to be legally invalid.
13. This jurisdiction is exercised principally by the award of certiorari to quash.
14. In the exercise of statutory powers directly affecting the interests of individuals it is
nearly always reviewable at the instance of the person having appropriate locus
standi.
15. The power of the court to supervise the exercise of powers conferred by statute is
based on the fundamental principle inherent throughout the English legal system
which we have received in this country.
16. These powers can be validly exercised only within their true confines.
17. The same will happen if a mandatory procedure laid down by the statute is not
followed. This is because where the law required that certain steps are to be taken, it
is to be implied that the action is valid only if they are duly taken: see Wade,
Administrative Law and de Smith, Judicial Review of Administrative Action, chap 3.
18. In Secretary of State for Employment v ASLEF (No 2) [1972] CA, the English Court
of Appeal had to consider whether the decision of a minister acting under a power
similar to the power given by Act 160, s 12 (1) (f) was subject to judicial review or
exempt from it.
19. Dealing with the matter Lord Denning MR stated at 493: "If it appears to the
Secretary of State'? This, in my opinion, does not mean that the Minister's decision is
put beyond challenge. The scope available to the challenger depends very much on
the subject matter with which the Minister is dealing.
20. In this case I would think that, if the Minister does not act in good faith, or if he acts
on extraneous considerations which ought not to influence him, or if he plainly
misdirects himself in fact or in law, it may well be that a court would interfere; but
when he honestly takes a view of the facts or the law which could reasonably be
entertained, then his decision is not to be set aside simply because thereafter someone
thinks that his view was wrong."
399
21. In Congreve v Home Office [1976], CA also, Lord Denning MR said among other
things:
22. "It would be a misuse of the power conferred on him by Parliament: and these courts
have the authority - and, I would add, the duty - to correct a misuse of power by a
Minister or his department, no matter how much he may resent it or warn us of the
consequences if we do. Padfield v. Minister of Agriculture, Fisheries and Food
[1968] is proof of what I say.
23. It shows that when a Minister is given a discretion - and exercises it for reasons
which are bad in law - the courts can interfere so as to get him back on to the right
road."
24. These cases show that although ministers may be given what appears to be absolute
powers to deal with certain specified matters, yet it is open to the High Court in the
exercise of its supervisory powers over inferior tribunals to interfere and intervene.
25. But in all these matters, the power, whether it is subject to judicial control or not, as
the cases show, depends upon the interpretation to be put on the wording of the
statute conferring that power. It is the interpretation placed upon the statute which
will determine the nature and limits of the power conferred on the minister.
26. The wording of the provision, ie section 12 (1) (f) of Act 160 under which the
minister purported to act are: "An alien is liable to deportation if his presence in
Ghana is, in the opinion of the Minister, not conducive to the public good."
27. This gives the minister a very unlimited discretion to order the deportation of an alien
without stating the reasons or facts upon which he based his opinion. I think the test
to be applied here is a subjective one.
28. If the minister said that in his opinion the presence of the applicant was not for the
public good, the court cannot probe into that opinion unless it could be shown that he
acted mala fide. That the minister had the power to make the deportation order is a
fact which does not admit of any dispute.
29. Legislative acts deal with general enactments, ie laws which affect the general public.
30. Such laws or enactments are not generally controllable by the courts.
31. Administrative acts however include the adoption of a policy, the making and issue
of a specific direction or order or the application of the general rule to a particular
case in accordance with the requirement of policy or expediency.
32. It is said that every measure duly enacted by Parliament is regarded as legislation, but
an order made under an enabling legislation is usually classified as administrative.
33. Therefore an order which applies to a particular person cannot be regarded as a
legislative act: see de Smith, Judicial Review of Administrative Action (3rd ed), p 60.
34. A deportation order can only be an executive or administrative act. Therefore it
should generally be subject to judicial control.

Muir v. Keay [1875] Lr 10 Qb 594.

The law provided that: “All houses, rooms, shops, or buildings kept open for public
refreshment, resort, and entertainment at any time between the hours of nine of the
clock at night and five of the clock of the following morning, not being licensed for the
sale of beer, cider, wine, or spirits respectively, shall be deemed refreshment houses
within this Act,..” By s8, 10 o’clock at night was substituted for nine in the description of
refreshment houses requiring licence.
400
The IRC found that Muir kept in house 17 females and 20 men who were on the day in
question supplied in his presence and paid for cigars, coffee and ginger beer, yet Muir had
no refreshment house license. But Muir maintained he was not keeping a “refreshment
house” requiring him to obtain a licence, since a refreshment house was defined to be “a
house, room, shop, or building, kept open for public refreshment, resort…. That the
coffee, cigars and ginger-beer then and there supplied as stated, were not refreshments
within the meaning of the same statute, and that the house was not open to any public
entertainment.
Held per Blackburn J: Was the house kept and used as a ‘refreshment house’ within the
law.
1. The word ‘public’ must be read with each of the three words that follow it.
2. And entertainment need not be something in the nature of refreshment
3. It is rather the correlative of resort-the reception and accommodation of the public
who resort to the place in question. It is not a useless word.

Abrahams v. Cavey [1968] 1 Qb 479

Here a Labour Congress was in progress and a service for the day had been publicized
and attended by political leaders. While divine services was being celebrated, the
appellant interrupted by shouting “Oh you hypocrites, how can you use the word of
God to justify your policies?”. It was a protest against the government members’
active support for the US policies in Vietnam. The appellants were convicted for acts
against the recognized standards of propriety. The criminal law provided that:
“Any person who shall be guilty of riotous, violent or indecent behaviour ..in
any place of religious worship duly certified….shall on conviction thereof.. be liable
to a penalty.”

On appeal, the issue was whether their behaviour amounted to indecent behavior
within the meaning of the statute.
Held per Lord Parker CJ:
6. “Indecent” has a number of meanings, both dictionary meanings and meanings
that can be ascertained from the cases; but the true meaning in any particular
statute must naturally depend on the context.
7. It is quite clear here that indecency is not referring to anything in the nature of
tending to corrupt or deprave; it is quite clearly used without any sexual
connotation whatsoever, but it is used in the context of riotous, violent or
indecent behaviour, to put it quite generally, within the genus of creating a
disturbance in a sacred place.

B. To Determine The Meaning Of Neutral Words

Where a provision which includes a word in itself is neutral or colourless, the context
provides the colouring agent. Hence the rule has been held to be helpful in construing the
meaning of neutral words like “payment”, occupation, economic etc (Buta 119-120).

Lee-Verhst (Investments Ltd ) v Harwood Trust [1973] 1 QB 204 @217 (BUTA 119).

Bromley Lbc v. Greater London Council [1983] 1 AC 768 @ 841.

401
A. Determining the meaning of general words coupled with genus describing
words.
As noted earlier, the noscitur a sociis rule might also prove useful in the interpretation of
general words coupled with a string of genus describing words-particularly in cases where
the general words precede or are sandwiched between the specific words.

Republic v. Minister Of Interior; Ex Parte Bombelli

(SUPRA)
The noscitur a sociis rule would also be more conveniently invoked where the general
words follow one item only.

B. Determining the extent of qualifying terms following a string of words

Where a string of words is followed by a general qualifying expression which is as much
applicable to the first and other words as to the last, the qualifying expression is not
limited to the last but to all.
Great Western Railway Company v. Swindon Etc Railway Company.[1884] 9
App Cas 787 @ 807.
In this case it was held that the phrase “horses, oxen, pigs and sheep, from whatever
country they may come”, the words “from whatever country they may come” applied to
horses as much as to sheep.

Graphic Corporation v. Baiden [unreported].

Circumstances in which the Noscitur a Sociis Rule may not apply

Like the other rules of language, the noscitur a sociis rule is only a rule of construction,
not a binding rule of law and will consequently not be applied where its application will
defeat the intention of the author(s) of the document or statute or where it is considered
inappropriate to apply the rule on account of other features of the context or some
overriding principle or policy.
More specifically some important circumstances in which the rule may not be applied
include the ff:
A. Outweighed by the intention of author(s), other features of context, or
competing considerations of policy etc: Under the MOPA, the rule will not be
invoked to defeat the intention of the author(s) of the document or the statute.

R v Two Young Men and Kootney [1979] 101 DLR 3RD ED 598 @ 608.
Likewise the context may prevent words from being coloured by their associates.

Letang v Cooper [1964] 2 Aer 99. (Buta 121-123)

402
On July 10, 1957, the plaintiff, whilst sunbathing on a piece of grass which was used as a
car park, was injured when the defendant drove his car over her legs. On February 2,
1961, she issued a writ claiming damages for loss and injury caused to her by the
defendant’s negligence in driving his car and/or the commission by him of a trespass to
the person of the plaintiff. In her statement of claim she relied on the pleaded negligence
and the particulars thereof as founding her claim in trespass. Elwes J. held that the
plaintiff’s action in trespass was not an action for damages for "breach of duty" subject to
a limitation period of three years under section 2 of the Limitation Act, 1939, as amended
by section 2 (1) of the Law Reform (Limitation of Actions, etc.) Act, 1954,1 and he
awarded the plaintiff damages for the defendant’s trespass.

The defendant appealed:-

Held:

1. Under the Limitation Act, 1939, the period of limitation was six years in all actions
founded "on tort"; but, in 1954, Parliament reduced it to three years in actions for
damages for personal injuries, provided that the actions come within these words of
section 2 (1) of the Law Reform (Limitation of Actions, etc.) Act, 1954:
2. "actions for damages for negligence, nuisance or breach of duty (whether the duty
exists by virtue of a contract or of provision made by or under a statute or
independently of any contract or any such provision) where the damages claimed by
the plaintiff for the negligence, nuisance or breach of duty consist of or include
damages in respect of personal injuries to any person."

3. The plaintiff says that these words do not cover an action for trespass to the person
and that therefore the time bar is not the new period of three years, but the old
period of six years.

4. The Act is a limitation Act; it relates only to procedure. It does not divest any
person of rights recognised by law; it limits the period within which a person can
obtain a remedy from the courts for infringement of them. The mischief against
which all limitation Acts are directed is delay in commencing legal proceedings; for
delay may lead to injustice, particularly where the ascertainment of the relevant
facts depends upon oral testimony.

5. So we come back to construe the words of the statute with reference to the law of
this century and not of past centuries. So construed, they are perfectly intelligible.
The tort of negligence is firmly established. So is the tort of nuisance. These are
given by the legislature as sign-posts.

6. Those words seem to me to cover not only a breach of a contractual duty, or a

statutory duty, but also a breach of any duty under the law of tort. Our whole law of
tort today proceeds on the footing that there is a duty owed by every man not to
injure his neighbour in a way forbidden by law.

403
7. Negligence is a breach of such a duty. So is nuisance. So is trespass to the person.
So is false imprisonment, malicious prosecution or defamation of character.

8. Professor Winfield indeed defined "tortious liability" by saying that it "arises from
the breach of a duty primarily fixed by the law: this duty is towards persons
generally and its breach is redressible by an action for unliquidated damages":

9. I see no reason for approaching the construction of an enactment of this character

with any other presumption than that Parliament used the words it selected in their
ordinary meaning and meant what it chose to say

10.An alternative way of narrowing the construction of these wide general words
was to apply the principle of noscitur a sociis and, because the cause of action in
both negligence and nuisance involves the infliction of actual damage as an
essential element. to construe "breach of duty" as limited to breaches of duty giving
5

11.

12.rise to causes of action in which the infliction of actual damage is an essential

element.

13.The maxim noscitur a sociis is always a treacherous one unless you know the
societies to which the socii belong.

14.But it is clear that breach of duty cannot be restricted to those giving rise to causes
of action in which the infliction of actual damage is an essential element, for the
words in parenthesis expressly extend to a duty which exists by virtue of any
contract and the infliction of actual damage is not an essential element in an action
for breach of contractual duty.

15.Really, the only argument for cutting down the plain and wide meaning of the
words breach of duty is that to do so renders the inclusion of the specific torts of
negligence and nuisance unnecessary.

16.But economy of language is not invariably the badge of parliamentary

draftsmanship.

17.Negligence and nuisance are the commonest causes of action which give rise to
claims for damages in respect of personal injuries.

18.To mention them specifically without adding the word "other" before "breach of
duty" is not in itself sufficient to give rise to any inference that the wide general
words were not intended to cover all causes of action which give rise to claims for
damages in respect of personal injuries; particularly when the same combination of
expressions in a similar context had already been given a very wide interpretation
by the Court of Appeal.

404
 19.On these grounds I would hold that the limitation period for this action was three
years and would allow the appeal.

Coltman V. Bibby Tankers Ltd [1988] Ac 276

Alternative Explanations
The rule may also not be applied where it is evident that the drafter may have specified
certain words not so as to colour a general phrase etc but for e.g. to prevent any doubt as
to whether they are included.

IRC v. Parker [1966] AC 141 @ 161.

The tax law provided; A ‘transaction in securities’ is defined in section 43 (4) of the Act
as including-
“transactions, of whatever description, relating to securities, and in particular-
(i) the purchase, sale or exchange of securities,
(ii) the issuing or securing the issue of, or applying or subscribing for new securities,
(iii0 the altering, or securing the alteration of, the rights attached to securities.”
Issue was whether the payment of debentures was a transaction in securities within the
meaning of the tax Act.
Held:
1. Lord Denning answered in the negative stating that that will be giving far too wide an
interpretation of the words ‘transactions of whatever description, relating to securities’
to hold that they covered the repayment of debentures.
2. He thought that the particular instances (i) to (iii) should be read with the opening
words so as to show the nature of the transactions which the legislature had in mind.
3. He held that payment of debentures was not a transaction in securities looking at the
general mischief which the section was designed to hit, that of dividend stripping, not
the redemption of debentures

On appeal per Viscount Dilhorne

4. The section was designed to hit other forms of tax voidance as well.
5. The court should not restrict the general and unambiguous words of the definition in
the statute by regard to the mischief which it is thought that the section is aimed at.
6. Nor is it right to seek to interpret the general words in the light of the particular
instances given in the section.
7. It is a familiar device of a draftsman to state expressly that certain matters are to be
treated as coming within a definition to avoid argument on whether they did or not.
8. The particular instances given in section 43 (i), in my opinion, do not in any way
restrict the meaning to be given to the general words which precede them.

Here, it is to be added that where a statute for example defines a thing as including certain
matters, it would not always be right to interpret the general words in the list in the light of
specific instances.

405
External Aids to Construction
By external aids to interpretation, we mean all materials principles and concepts other than
the internal aids (i.e. the text or parts of a document or statute as well as the linguistic
canons of construction) which could be legitimately used in the interpretation of
documents or statutes (Driedger 427).
In practice external aids include inter alia, the historical setting of a document or statute;
practices of classes or groups to which the document or statute relates; textbooks,
dictionaries and other literary sources; administrative interpretations, contemporary
exposition; legislative history of a statute (pre-enacting history of the enactment),
international conventions as well as the general common law principles relevant to
interpretation-such as the contra proferentem rule the falsa demonstratio rule and the ut
res magis valet quam periat rule.
It is also worth recalling here that traditionally, the courts have been quite distrustful of
the use of external aids and have been generally unwilling to make them an ordinary part
of interpretation save in limited circumstances. Hence the courts have frequently
proceeded on the assumption that the intention of the author(s) of a document or statute is
as expressed in the language of the document or statute in its immediate context and will
consequently accept external aids only in the most limited of circumstances. However the
courts today appear to adopt a more literal approach to the use of such external aids
especially under the MOPA.
(See Notes on use of extrinsic materials in the interpretation of documents).
It is also worth noting that the law in Ghana today relating to the use of external aids in
the interpretation of non-statutory documents is almost totally the common law on the
subject; while the position relating to statutes derives largely from the provisions of
section 19 of CA 4. Section 19(1) provides for the use of textbooks, reports of
commissions of enquiry etc as external aids to construction in Ghana; except that it
significantly bars the use of parliamentary debates as external aids.
Section 19(2) on the other hand provides that the aids to construction referred to in section
19(1), are “in addition to any other accepted aid”.
The effect of section 19(2) as previously noted is that even external aids not specifically
mentioned in section 19(1), can still be used as aids by our courts if they are shown to be
acceptable as aids at common law.
Finally, it is important to mention that while several of the external aids to be considered
here apply exclusively or largely to the interpretation of documents (e.g. the contra
preferentum rule) or to the interpretation of statutes (e.g. legislative history), several of
the external aids are applicable to both documents and statutes.
Hence, for the sake of convenience, our discussion of external aids will proceed under
three main sub headings as follows:
A. External aids applicable exclusively or largely to the interpretation of documents
B. External aids applicable exclusively or largely to the interpretation of documents
C. External aids applicable exclusively or largely to the interpretation of both
documents and statutes.
406
407
External aids applicable exclusively or largely to the interpretation of documents.

The Contra Proferentum Rule

The contra proferentum rule when it is frequently applied by the courts in the construction
of deeds, contracts etc was historically stated as a rule to the effect that words are to be
construed in the case of a doubt, against the person or party who uses (or proffers them).
The expression “contra proferentum” derives from the Latin Maxim “verba fortuis
accupuntor contra proferentem” (words are to be construed strongly against those who
profess them).
The effect of the maxim as the learned authors of ODGERS explain @ 95 of CDS is that
where a number of possible meanings remain after all possible strategies to arrive at the
true meaning have been employed , then the meaning which is most against the person
using the words or expressions given rise to the difficulties in construction will be adopted
provided that the construction thus adopted does not work a wrong.
However, over the years, the contra proferentem rule has been formulated in many
different ways especially in respect of different instruments, with the result that
formulations of the rule are today not entirely cohesive. LEWISON p 161.

Meill V. Duke Of Devonshire [1882] 8 AC 135

@ 149 wherein it is noted “it is well settled that words of a Deed, executed for valuable
consideration ought to be construed as far as they probably may, in the interest of the
grantee”.
BURTON V. ENGLISH [1883] 12 QBD 218 per Brett MR wherein he notes “the general
rule is that where there is any doubt as to the construction of any stipulation in the
contract, one ought to construe it strictly against the party in whose favour it has been
made”.
But perhaps what is important to emphasise here is that the difficulty in the formulation of
the rule largely reflects the difficulty of determining who the proferences is in any
particular case. Part of the problem here, lies in the varied meaning of the word
“preference”.
The word is sometimes used in reference to the person who drafted the document and put
it forward; or sometimes to mean the person for whose benefit the particular term being
construed was inserted. Then again, the allocation of the preference might differ in respect
of the provisions of the different parts of the document.
However there appears to be very little justification today for allocating the proference
merely on the basis of who drafted the document because in most cases the drafting is
either a matter of mutual endeavour or in a case of a standard form contract, it is the
responsibility of neither party. Consequently it appears that if the principle underlying the
rule is to be sustained, the formulation of the rule and the allocation of the proference
must vary from case to case according to the terms of a particular document.

408
The authorities also tend dominantly to favour the position that the proference is the
person for whose benefit the clause was inserted rather than the person who actually did
the drafting. LEWISON 172.

The authorities appear also to be agreed that where the proference cannot be identified or
where both parties may with equal force be described as the proference, the maxim will
not apply. LEWISON 172.
LEVISON v. FARIN [1978] 2 AER 1149@ 1156.
Here it was held that the clause in question “emerged as a result of joint efforts”.

However the maxim applies only where there is a doubt or ambiguity or where all other
rules of construction fail, i.e. it is a rule of very late or last resort.
Halsbury 4th Ed Vol 12 Para 1473

Parkinson v Barclays Bank Ltd [1951] 1kb 368 CA

The bank let to a dental surgeon the upper floor of the premises, on the lower floor of
which they carried on the business , by a lease for 21 years. The bank was empowered by
Cl 6 of the lease to determine the tenancy on certain conditions at the expiration of the
first 14 years of the term, “but notwithstanding … the lessor shall be at liberty to
determine the said term hereby created at the expiration of the first 14 years thereof, if
they shall require the premises hereby demised for the purposes of the business carried on
by them” After the service of notice to quit in accordance with the lease, the surgeon
claimed the bank had no right to determine the lease, because the bank did not establish
that they required all the rooms. The surgeon claimed that the deed must be construed
contra proferentem.

Held per Cohen LJ

1. If applying the ordinary principles of construction, we arrive at a clear conclusion as
to what the parties meant by the language which they used, then the maxim does not
come into action.
2. One principle of construction is that if of two constructions one gives business
efficacy to a document, while the other leads to an improbable conclusion, the court
must prefer the former.
3. This essentially a case where that principle applies.
4. We have to construe the words in context

Patching V. Dubbins [1853] Kay 1

@ 13 & 14 Wherein It Was Noted That The Contra-Proferentem Rule Is qualified by the
rule that if any doubts could be removed by way of construction, there is no room for the
rule.

The maxim is also to be applied only where the construction thus adopted would not work
a wrong-such as a result against the law.

409
HALSBURY 12th ed 1473

Roger v. Comptoir d’escompte de paris [1869] lr 2 pc 393 @ 406.

Illustrations of application of the rule

I. Deeds And Grants: the rule is often formulated as one to the effect that where
there is a doubt as to the meaning of the grant, the grant will…… similarly where
there is a doubt about the meaning of a convenant the grant will …..

Webb V. Plummer [1819] B& Ald 746.

Lee v. Railway Executive [1949] 2 Aer 581.

II. Contracts Generally: in respect of contracts generally, the rule is that stipulations
in a contract will be construed strictly against the party in whose favour or for
whose benefit it has been made. LEWISON 168-169.

Burton V. English [Supra]

III. Exemption Clauses: the courts also adopt a similar approach towards exemption
and exclusion clauses. An ambiguity in an exemption or exclusion clause will as a
rule be resolved against the party for whose benefit it was made. HALSBURY
1272, LEWISON 316

Hollins V. Derby J Ltd [1963] 1 Qb 844

Burton V. English [Supra]

IV. Time Bar Clauses: in addition the courts have also frequently held that time bar
clauses will be construed strictly contra proferentem. Time bar clauses are
provisions regulating time within which claims may be made under contracts etc.
ATLANTIC SHIPPING CO LTD V. LOUIS DREYFUSS & CO [1926] 22 AC 250

Falsa Demonstratio Rule

As noted earlier, the falsa demonstratio rule originally derived from the Latin maxim
“falsa demonstratio non nocet” (literally translated as “a false description does not harm”).
This maxim was later restated more fully by Lord Summer who considered the original
statement deficient by the addition to it of the words “cum de corpore constat”. Hence the
maxim is today often fully stated thus “falsa demonstratio non nocet cum de corpore
constat” to wit, “a false description does not vitiate where there is no doubt which person
or thing is meant”.

Eastwood v. Ashton [1915] Ac 900

@ 914: The question here is of parcels. By a conveyance of June 1911, did or did not the
vendor purport to convey the disputed strip of land- to which he had in fact no title? The
Lord Lords were invited to hold that it did not purport to convey all that is coloured red,
410
but merely to say that all which is purported to convey is coloured red. The conveyance
states that: the lands intended to be conveyed are more particularly ‘described in the plan,’
and that they ‘are delineated and coloured red in such plan,” thus the draughtsman meant
to speak both of delineation and of colour. The strip is not only coloured red, but is also
included in the same delineation with other land similarly coloured and admittedly
included in the sale.
Held: per Lord Parker of Waddington & Lord Summer
5. Where there are several descriptions which, when evidence of surrounding facts is
admitted, are not consistent one with the other, there is no general rule by which the
court can decide which description ought to prevail.
6. But ceteris paribus it would seem that the more detailed and precise the description
the more likely it is to accord with the real intention of the parties.
7. But help may be obtained from the falsa demonstratio non nocet rule.
8. However this maxim is useless unless and until the court has made up its mind as to
which of two or more conflicting descriptions ought under the circumstances to be
considered the true description.
9. When this is done the false description may, of course, be disregarded , and the
maxim merely calls attention to this obvious result.
10. The court must in every case do the best it can to arrive at the true meaning of the
parties upon a fair consideration of the language used and the facts properly
admissible in evidence.
11. As soon as there is an adequate and sufficient definition, with convenient certainty, of
what is intended to pass by deed, any subsequent erroneous addition will not vitiate
it; according to the maxim falsa demonstratio non nocet, to which the words cum de
corpore constat should be added to do the maxim full justice.
12. The characteristic of cases within the rule is, that the description, so far as it is false,
applies to no subject at all, and so far as it is true, applies to one only.
13. per Romer in Cowen v Truefitt Ltd [1898] 2 Ch 551: In construing a deed purporting
to assure property, if there be a description of the property sufficient to render certain
what is intended, the addition of a wrong name or of an erroneous statement as to
quantity, occupancy, locality, or an erroneous enumeration of particulars, will have
no effect.

Essentially then, the falsa demonstratio rule is to the effect that where the words of
description in a document apply in part correctly and in part incorrectly to the same
subject matter etc, the incorrect parts will be rejected as falsa demonstratio and the correct
part read as if it stood alone. Hence it has for example been held that “a false description
of a person or thing will not vitiate a gift in a Deed or Will if it will be sufficiently clear
what person or thing is really meant”.

Re Brocket [1908] 1 Ch 185.

411
Wilberforce v. Wilberforce
1. The court takes judicial notice of the fact that it is not uncommon by Ghanaian
custom and tradition that nephews and nieces should be affectionately referred to
as sons and daughters by their uncles and aunts.
2. The law is that inaccurate references to beneficiaries per se does not invalidate
bequests. To do so there must be evidence that a beneficiary adopted a false
character and this was done fraudulently to deceive the testator and that the deceit
was perpetrated with the motive of benefiting under the will.
3. In re Posner [1953] AllER 1123, testator described woman as his “wife” when the
woman was at the time married to someone else, unknown to the testator, but legacy
was held as valid.
4. It is a rule of construction applicable to all written documents, including wills, that
if a term used to describe a subject matter is sufficient to ascertain that subject
matter with certainty but other terms add a description which is not true, these other
terms are not allowed to vitiate the gift.
5. Thus false description cannot vitiate a gift. Where the context of the will and the
circumstances of the case show unambiguously whom or what the testator meant,
the description is rejected and the intention of the testator is effected.
6. Thus the use of “sons” will not detract the validity of the will.
7. There is no presumption of mental incapacity simply because a will is executed on
death bed.

In effect the authorities hold that as soon as there is an adequate and sufficient definition,
with convenient certainty of what was intended to pass by Deed, any subsequent
erroneous addition will not vitiate the Deed.

It is however important to note that although the maxim is most frequently applied in the
construction of parcel clauses etc of conveyances, it may be applied equally in other
documents.

Adamastos Shipping Ltd v. Anglo-Saxon Shipping Ltd [1959] Ac 133

Finbow v. Air Ministry [1963] 1 Wlr 697.

Conditions for the application of the maxim

Contrary to suggestion in a number of authorities on the subject, it does not matter in what
order the true or false descriptions come. The maxim will consequently be applicable
whether the false part of the description comes before the true part or after it. As Lewison
rightly points out at page 237, the maxim is not to the effect that first descriptions prevail
over subsequent ones.
COWEN & TRUFITT LTD [1899] 2 CH 309 @ 311 PER LINDLEY MR.

However for the maxim to apply there must be an adequate and sufficient description of
the property in the absence of the rejected part. Hence where the rejected words are
themselves part of the essential description of the subject, the maxim must not be applied.
412
Magee V. Lavell [1874] Lr 9 Cp 107

Re Bright Smith [1886] 31 Ch D 314.

The falsa demonstratio rule must also not be applied where there is a subject which fits the
whole of the description contained in the instrument; nor must it be applied where there is
no subject which fits any part of the description.
National Society For The Prevention Of Cruelty To Children V. Scottish National
Society For The Prevention Of Cruelty To Children [1915] Ac 207.
Held: The accurate use of a name in a Will creates a strong presumption against one who
is not named in the Will.

Conversely where the description is only inaccurate or would be unclear once the false
elements are rejected, the maxim cannot apply.

Cowen V. Trufitt Ltd [Supra]

The maxim will also not apply where all the words of description can be reconciled by a
process of construction.
Hence it has been held that in general, additional words are not to be rejected as falsa
demonstratio if they can be read as words of restriction or limitation on the generality of
other words. This principle is particularly important in the construction of parcels.
HALSBURY 12 1529.

The Expression Eorum Rule

Expressio eorum quae tacite insuat nihil operatur.
The Latin maxim [supra] is literally translated into English as “the expression of what is
implied has no operation”. It is another of the important aids to the construction of
documents.

The essence of this rule as an aid to construction is that the law takes its course and that no
notice is taken of words used by the maker(s) of a document, if what he has said is exactly
what is implied by law. ODGERS P 91; LEWISON 178 FF.

Thus, the expression of a term which the law implies as a necessary part of a contract has
no greater effect than the implied term would have had. In effect, the express statement in
exactly the same terms will not vary the legal effect of what is implied.

Surey V Cole [1627] Latch 44 And 225.

In this case rent was reserved in the lease to the lessor and after his death, to his assigns. It
was held that the addition of the assigns was unnecessary because it was implied by law.

Nicolene V. Simonds [1953] 1 Qb 543

413
Here a prospective seller accepted a prospective buyer’s order of a quantity of reinforced
bars, stating: “I assume that we are in agreement that the usual conditions apply”.
Singleton LJ noted “those words may be thought by some to refer to the conditions as to
the quality of the goods-an implied condition that they must be reasonably fit for the
purpose for which they are required; an implied condition that they shall be of
merchantable quality etc… for all I know, the defendant may have intended that; in which
case they were unnecessary. The words “I assume that we are in agreement that the usual
conditions of acceptance apply” are to my mind meaningless and words which are
meaningless can be ignored”.

It might then appear that it is quite unnecessary to express in the document exactly what is
implied in law, except perhaps to remove any doubts which might otherwise arise in the
minds of persons unacquainted with the law.
HALSBURY PARA 12TH PARA 1477.
But perhaps what is important to emphasize here is that an express clause which varies
from an implied clause excludes it in accordance with the maxim “expression facit cesare
tacitum”
(An express statement excludes any other).
Hence the need to bear in mind at all times that the expression eurom rule applies mainly
in respect of clauses which express exactly what is implied by the law; as well as the need
to avoid unnecessarily cumbersome drafting of what was already implied by the law.

There however appears to be an exception to this principle, namely that “where a grant of
property confers by implication powers which are essential to its enjoyment, these are not
cut down by the express conferment in positive terms of restricted powers to the same
effect”.
Halsbury 12 1477

Stuckeley V. Butler [1614] Hob 168.

Ellis V. Noakes [1932] 2 Ch 98

414
Some external aids applicable exclusively or largely to interpretation of statutes
Here we shall focus principally on two of such aids, which apply exclusively or largely to
the interpretation of statutes, namely:
i. Legislative History
ii. Directive principles of State policy.

Legislative History
The legislative history of an enactment appears to be a most fluid concept and has often
been differently defined by different scholars. Cross 172, Driedger 431.

Bennion however offers a most useful approach which deals with the subject in three
compartments to encompass :
(a) The pre-enacting history of an enactment which concerns mainly the relevant
aspects of the state of the law before the enactment was passed particularly its legal
antecedents.
(b) The enacting history which relates to the history of the passing of the enactment and
encompasses both pre-parliamentary and parliamentary materials such as the reports
of committees or commissions on which the enactment was based; text of the Bill as
first published and subsequently amended in its passage through parliament and
reports of parliamentary debates etc.
(c) The post enacting history which concerns mainly the evolution or history of the
enactment after it has been passed.

In Ghana, the legal position regarding the use of legislative history as an aid to
construction is as set out in sections 19(1) and 2 of CA 4. It is also important to add here
that as aids to construction, the items of legislative history have persuasive authority only
so that it is always the ultimate task of the court to determine the meaning of an
enactment. The weight to be given or attached to any item of legislative history by the
court then depends inter alia on its nature as well as the surrounding circumstances.

Pre-Enacting History
The pre-enacting history of an enactment relates mainly to the relevant aspects of the
state of the earlier law, i.e. the law before the enactment was passed. Specifically, it
encompasses what Bennion refers to as the relevant pre-Act law, particularly the legal
antecedents of the enactment under construction. These would include corresponding
provisions in previous enactments since repealed or re-enacted, with our without
modification.

These legal antecedents are considered to see how the particular statutory provision
reached its present position on the statute books. Indeed the interpreter or court is often
unable to determine what mischief an enactment is intended to remedy unless it has

415
looked at the previous state of the law, the defects found to exist in the law, as well as the
facts that cause the legislature to pass the enactment in question in its present Form.
Bennion P 493.
Mensima V. A-G [1996-97] Scglr 646 (Ampiah Jsc).
Gtp v. Ankujeah [Supra] Per Twum Ja.
Tsatsu Tsikata V. A-G

Yovuyibor v Attorney- General [1993-94] 2 GLR 343

JUDGMENT OF AMUA-SEKYI JSC.
The question of the compulsory retiring age for police officers was discussed by this court
in Jiagge v Inspector-General of Police, Supreme Court, 26 March 1990, unreported when
the plaintiff, Jiagge, challenged a ruling of 1980 by the Police Council that article 162(1)
of the Constitution, 1979 which had raised the compulsory retiring age for public officers
from 55 years to 60 years did not apply to members of the Police Service. The court held
that the council was right and dismissed the action. The reason was this: whereas under
the Constitution, 1969 the Police Service had, by article 142, been retained as part of the
public services, the Constitution, 1979 had deliberately taken it out of the public services.
The court found this intention in article 154(1) of the Constitution, 1992 where the Police
Service had been omitted from the list of public services, and article 172(1) of the
Constitution, 1979 which, after repeating article 142 of the Constitution, 1969 that there
shall be a Police Service, left out the all-important words "which shall form part of the
Public Services of Ghana."

In practice the pre-Act law has proved to be a most useful aid to construction in a number
of specific situations.
First, where an enactment uses a term the meaning of which has previously pronounced
by the courts-especially in interpreting the legal antecedents. It is presumed that the word,
term or phrase was intended to have the same meaning in the legal enactment under
construction. This is also so in the case of Acts in pari materia. Bennion
London Corporation V. Cusak Smith [1955] Ac 880 @885.
Stubbings V. Webb [1991] 3 Aer 949 @ 953.
Where in referring to the expression “breach of duty” in section 11 (1) of the
LIMITATION ACT OF 1980, it was held that parliament “must be taken to have endorsed
the meaning attributed to the phrase in Letang V. Cooper”.

Secondly, where the wording of an enactment appears incongruous, this may sometimes
be explained by the fact that it was borrowed inappropriately from an earlier enactment-so
that a look at the legal antecedent may provide a useful aid to its construction. BENNION
440.

Thirdly, where the subject matter has been dealt with by a developing series of Acts, it
might help in construing the latest Acts to trace the course of the development by seeing
what changes have been made in the relevant provision and why they were made; the
court may better assess the current meaning.

416
Gtp v. Ankujeah
(1) I concede that in our jurisdiction, legislative history may also be used in interpreting
statutes. But it is a guide only that is an aid as stated by Francois, JSC. in his opinion in
Ali-Jiagge vrs: Inspector General of Police unreported SC suit No. 16/81 26th
March, 1990 namely:
(2) “A cardinal aid to the ascertainment of legislative intent is through the study of the
history of the particular enactment.”
(3) However, it is plain from the legal texturiters that these aids and guides, which are
clearly distinguishable from the primary or basic rules of interpretation are merely
guides. They are therefore truly our hand maids not our masters.
(4) Thus, Benniou rationalises that “subject to relevant legal rules, a court considering an
enactment is master of its own procedure and therefore has the power, indeed the duty
to consider such aspects of legislative history of the enactment as may be necessary to
arrive at its meaning”. [s.208 titled “Legislative history as a guide to construction at
page 438 of “Statutory Interpretation”
(5) Again, Bimpong-Buta cautions, and understandably so, that “these aids and guides are
not to be applied automatically: they merely help the courts in determining the true
meaning to be placed on the statutory words or expressions.
(6) They are therefore our servants not our masters. In other words, if resort to these
guides or aids may in themselves create absurdity or unreasonableness the courts are to
avoid them altogether.”
(7) It seems to me then that these aids or guides, described by Benion as “interpretative
criteria” becomes useful when for example, the application of the meaning of the
enactment is somewhat obscure and the legislative history would help unravel it.
(8) The converse then is that when the meaning is plain and obvious or certain, indeed
when an application of the first primary rule of construction leads to a just
interpretation, no need arises to resort to these guides.
(9) In much the same way that reading glasses are not meant for those whose eyesight is
good, but for those with weak or impaired eyesight, legislative or pre-enactment
history becomes useful when the meaning of the enactment is shrounded in obscurity.

Usa Govt V. Jennings [1983] 1 AC 624 @ 641.

Here in dealing with the Road Traffic Offence Act in 1983, Lord Ruskill thought the
defence argument could not be evaluated without looking at the legal history beginning as
far back as the Motor Act 1903.
Yovuyibor V. A-G
Gtp v. Ankujeah

Fourthly, in considering the pre-enacting history of an enactment as an aid to construction,

special note has to be taken of the type of Act, particularly whether it is a consolidating
Act or a codifying Act.

A consolidation Act or statute is as previously noted, one which collects the statutory
provisions relating to a particular topic or subject and embodies them in a single Act of
parliament, often making only minor amendments and modifications. The authorities
417
therefore often draw a distinction between strict consolidations and consolidations with
amendments.

A strict consolidation consists of a reproduction of the original wording without

significant change. In the construction of strict consolidations, the presumption is that
parliament (unless there is clear intention to the contrary) does not intend to alter the
existing law so that the provisions of the consolidated enactment are to be construed as if
they remained in the earlier law.
Judicial decisions of the earlier law can consequently be taken into account.
Maxwell Pp 21&24; Bennion, 442-443
Kerr V. Kerr [1897] 2 Qb 439
R V. Governor Of Brixton Prisons; Ex Parte Demko [1959] 1 Qb 268 (It Was Affirmed In
[1959] Ac 684).

It has to be remembered always however that the foregoing rule on the construction of
strict consolidations is however a presumption only and might therefore be rebutted by
plain words to the contrary.

Re A Solicitor [1961] Ch 491

In the construction of consolidations with amendment on the other hand, the rule is that
the words are to be construed as if they are contained in an ordinary amending Act.
Bennion 442& 444

Atkinson v USA Govt [1971] AC 187 Hl

A codifying statute is on the other hand, one which purports to state exhaustively the
whole of the law upon a particular subject. The draftsman therefore attempts to subsume
in one Code the pre-existing statutory provisions as well as the common law rules relating
to the matter.

The interpretation of a codifying Act is in practice approached differently from a

consolidation Act. The rule here is that unless there is a real doubt codifying Acts should
be given their ordinary meaning.

Bank of England v. Vagliano Bros [1891] Ac 107 @ 144.

Finally, as noted in the VAGLIANO CASE [SUPRA], resort or recourse may be had to
previous law in construing even a codifying Act if there is real doubt as to the meaning of
provisions or where provisions have acquired a technical meaning in the past or has been
used in a sense other than their ordinary meaning.
Maxwell P 27

Williamson V. Rider [1963] 1 Qb 89

Yorkshire Insurance Ltd V. Wisket Shipping Co Ltd [1962] 2 Qb 330.

418
Enacting History
The enacting history of an Act or statue is basically the history of its enactment and
consists of everything that relates to the conception, preparation and passage of the
enactment from the earliest proposals for legislation through its ultimate passing by
parliament to presidential assent.
Specifically, the enacting history includes:
9. Pre-parliamentary materials relating to the enactment such as reports of committees
and commissions on which the enactment is based; and
10. Parliamentary Materials such as the text of the Bill as first published and successfully
amended in its passage through parliament; Reports of Parliamentary debates and
proceedings on the Bill and other contemporaneous materials which parliament may
be presumed to have acted upon-such as remarks from the minister responsible for
the Bill; materials tabled or otherwise brought to the attention of the Legislature
during the legislative process including explanatory notes; materials published by the
government during the legislative process such as explanatory papers and press
releases.

In addition it is often considered convenient to consider treaties and other international

conventions as aids to interpretation under this head.

Pre-Parliamentary Materials
Reports of Committees or commissions leading up to the Bill: often legislation is preceded
by the report of a committee set up to investigate the alleged mischief and to propose a
remedy. This may be a government commission, a parliamentary select committee, a
departmental committee or some other body. The report constitutes part of the enacting
history of the particular enactment. (E.g. Law Reform report leading up to PNDCL 111)

In Ghana such a report may be used by virtue of section 19(1) of CA 4 as an aid to

construction.
It is however to be noted here that the position in Ghana under CA 4 is a marked
departure from the old common law position under which such committee reports can
only be admissible to ascertain the object or mischief the enactment sought to remedy but
not in its construction.
ODGERS 326-328; MAXWELL 50-54.

Remarkably, the modern common law authorities appear to have accepted the Ghanaian
position which permits committee reports to be used as aids to construction.

Pepper v. Hart [1993] 1 AllER 42 @ 65

Issue: whether where the words of a statute were ambiguous or obscure or were capable
of giving rise to an absurd conclusion it should be legitimate to look at the parliamentary
history, including the debates in parliament, for the purpose of identifying the intention of
parliament in using the words it did use.
Held:
Per Lord Griffiths:

419
1. I have long thought that the time had come to change the self-imposed judicial rule
that forbade any reference to the legislative history of an enactment as an aid to its
interpretation.
2. The ever increasing volume of legislation must inevitably result in ambiguities of
statutory language which are not perceived at the time the legislation is enacted.
3. The object of the court in interpretation legislation is to give effect so far as the
language permits to the intention of the legislature.
4. If the language proves to be ambiguous I can see no sound reason not to consult
Hansard to see if there is a clear statement of the meaning that the words were
intended to carry.
5. The days have long passed when the courts adopted a strict constructionist view of
interpretation which required them to adopt the literal meaning of the language.
6. The courts now adopt a purposive approach which seeks to give effect to the true
purpose of legislation and are prepared to look at much extraneous material that
bears upon the background against which the legislation was enacted.
7. Why then cut ourselves off from the one source in which may be found an
authoritative statement of the intention with which the legislation is placed before
parliament?
8. I cannot agree with the view that consulting Hansard will add so greatly to the cost
of litigation, since modern technology greatly facilitates the recall and display of
material held centrally.
9. Further if the search resolves the ambiguity it will in future save all the expense that
would otherwise be incurred in fighting the rival interpretations through the courts.
10.There has been no suggestion that recourse to parliamentary history in New Zealand
and Australia has not significantly increased the cost of litigation there.
Per Lord Browne-Wilkinson
11.Lord Reid had held in Beswick v Beswick [1968] that: “For purely practical reasons
we do not permit debates in either House to be cited: it would add greatly to the
time and expense involved in preparing cases involving the construction of a statute
if counsel were expected to read all the debates in Hansard….”
12.Then in Black-Clawson Inter v Paperwerke case, Lord Reid there said: “We often
say that we are looking for the intention of parliament, but that is not quite accurate.
We are seeking the menaing of the words which parliament used. We are seeking
not what parliament meant but the true meaning of what they said…”
13.My Lords I have come to the conclusion that as a matter of law there is sound
reason for making a limited modification to the existing rule unless there are
constitutional or practical reasons which outweigh them.
14.In my judgment reference to parliamentary material should be permitted as an aid to
the construction of legislation which is ambiguous or obscure or the literal meaning
of which leads to an absurdity.
15.Even in such situations reference in court to parliamentary material should only be
permitted where such material clearly discloses the mischief aimed at or the
legislative intention lying behind the ambiguous or obscure words.
16.In the case of statements made in parliament, only statements of the Minister or
other promoter of the Bill is likely to meet these criteria.

420
 17.The courts can now look at white papers and official reports for the purpose of
finding the ‘mischief’ sought to be corrected, although not at draft clauses or
proposals for the remedying of the mischief.
18.Clear and unambiguous statements made by ministers in parliament are as much the
background to the enactment of legislation as white papers and parliamentary
reports.
19.Recourse is already had to white papers and official reports not because they
determine the meaning of the statutory words but because they assist the court to
make its own determination.
20.On privileges it is for the court to decide whether a privilege exists and for the
house to decide whether such privilege has been infringed.
21.Your Lordships are motivated by a desire to carry out the intentions of parliament in
enacting legislation and have no intention or desire to question the processes by
which such legislation was enacted or
22.of critising anything said by anyone in Parliament in the course of enacting it.
23.The purpose is to give effect to, not thwart, the intentions of parliament.

R v. Jefferson [1994] 1 AllER 720

Appellants charged with various public order offences following disorder in Bedford after
an English victory in the world cup football match.
Held: We are fortified in our conclusion by preparatory material for the 1986 Act, to
which, if there were ambiguity, we would be entitled to have regard: Pepper (Inspector of
Taxes) v Hart.

In the light of the foregoing and particularly in view of the provisions of CA 4 section
19(1), decisions in Ghana to the effect that such committee reports cannot be admissible to
explain the true meaning of enactments in Ghana are wrong and therefore unacceptable.
ADAMS V. TANDOH [1984-86] 2 GLR 561 per Abban J. (Buta 83: his views reflect the
old law which is no longer acceptable in Ghana).

In Ghana, such committee reports can be used at any stage of the interpretive process to
determine whether or not words are ambiguous etc in the first place and if ambiguous how
to resolve the ambiguity.

Explanatory Memoranda and Government White Papers Etc

Like commission reports, explanatory memoranda accompanying the Bill, government
white papers explaining the legislative project as well as similar official explanatory
materials are admissible as aids for the purpose of determining the meaning of statutory
provisions in Ghana by virtue of section 19(1) CA 4.

Here also, the law in Ghana takes a marked departure from the old common law position.
It is to be added however that the position today even under English common law is that
like committee reports, this range of pre-parliamentary materials are now admissible even
to determine the meaning of statutory provisions.
CROSS 160-161
421
Pepper v. Hart [Supra]

R v. Jefferson [Supra]
where reference was made to the law commission report as well as the government white
paper in construing section 2(1) of the English public order Act of 1986.

Duke V. Gec Reliance Ltd [1988] 2 Wlr 359

which referred to the government white paper on equality of women (COMD 5274) as a
guide to parliament’s intention in enacting provisions of the SEX DISCRIMINATION
ACT 1975.

422
Parliamentary Materials
Parliamentary Debates
Section 19 [CA 4]—Use of Text-Books and Other Publications in Construction of
Enactments.
(1) For the purpose of ascertaining the mischief and defect which an enactment was
made to cure and as an aid to the construction of the enactment a court may have
regard to any text-book or other work of reference, to the report of any commission
of inquiry into the state of the law, to any memorandum published by authority in
reference to the enactment or to the Bill for the enactment and to any papers laid
before the National Assembly in reference to it, but not to the debates in the
Assembly.
(2) The aids to construction referred to in this section are in addition to any other
accepted aid.

In Ghana, section 19(1) of CA 4 clearly prohibits or excludes the use of parliamentary

debates as an aid to the construction of enactments. As Buta rightly notes in his LIG, the
position under section 19(1) of CA 4 is in effect, a codification of the orthodox common
law position which deprived the courts the right to resort to records of parliamentary
debates and speeches in parliament as an aid to construction. (See LIG 80).

Davies v. Johnson [1979] Ac 264 @ 345

South Australia v The Commonwealth [1941] Clr 379

The memorandum to CA 4 gives two contentious reasons for the exclusion of

parliamentary debates as an aid to construction, namely
1. That the respect owed to parliament would diminish if its deliberations were open to
discussions in court.
2. That the use of parliamentary debates would have an adverse effect on freedom of
speech in parliament, which freedom would be interfered with if members of
parliament spoke with the knowledge that whatever they said might be the subject
matter of comment in the court.

Generally however, the main reasons offered in the authorities to support the
orthodox position at common law as codified in section 19(1) of CA 4 include the ff:
1. Unreliability of Parliamentary Debates: here it has been contended that
parliamentary debates are unreliable as an aid to the meaning of an enactment. First, it
is argued that politicians who are not necessarily lawyers might express legal
propositions inaccurately and sometimes in a downright misleading manner; and that
since the object of parliamentary debate is largely persuasion, parliamentarians might
tend to exaggerate etc in speeches made in parliament. BENNION 452.

2. Secondly it is argued that conflicting views are often expressed in Parliament as Bills
go through the various stages and that it is often difficult to determine which of several
conflicting views is accurate or represents the position of parliament. Hence it is

423
 contended that the use of parliamentary debates would in such circumstances introduce
all sorts of arguments and confusion instead of providing a guide to interpretation.

3. Thirdly, it is contended that once parliamentarians realized that their statements

might influence judicial interpretation, they would inevitably insert in them
passages meant primarily for this purpose and that this would pervert not only the
judicial technique of interpretation but the legislative process itself. Bennion 452;
Cross 159.

In short, the concern of the critics (who favour the orthodox position) here is the difficulty
of assessing the reliability of parliamentary debates since statements of participants in the
legislative process may be ill informed or distorted by partisan allegiance etc and there is
usually no practical way to test the credibility of the speeches. Beswick v Beswick [1968]
AC 58 @ 74.

424
The Answers!!

1. In response, it has been noted that although parliamentary debates might be unreliable
in certain cases, there might be situations in which statements by for e.g. the majority
of members or the minister responsible for a Bill could prove very useful in its
interpretation especially in cases of doubt.
2. And here it is to be added that parliamentary debates are of persuasive influence only
and not binding and that quite often judges are experienced and skillful enough to
avoid the above mentioned pitfalls in their use of parliamentary debates. Besides, these
debates have been used in other places such as in the US so that the difficulties are not
insuperable.
3. The difficulty of determining the intention of parliament: the difficulty here is said
to be one of relating individual speeches intentions etc to the collective intention of
parliament as a whole. Could parliament be said to have an intention in this sense?
Whose intention is relevant here? Is it the intention of the majority of those who voted
for the Bill?
4. Proponents of the orthodox approach therefore contend that it is near impossible to
meaningfully discern any parliamentary intention from most parliamentary debates for
the purpose of interpretation.
5. In response, it has been argued that though there might be difficulties of determining
the relevant parliamentary intention in some cases, it did not follow that statements
made by individual MPs etc have no value in interpretation; and that it may be
plausible in certain circumstances to conclude that the provision was enacted by the
legislature on the understanding expressed by a member, minister etc, based on some
aspects of parliamentary debates. It is then contended that it should be possible in such
a situation to rely on this understanding as an aid to interpretation. Pepper V.Hart
6. Less certainty in the law: proponents of the orthodox view have also contended that
the law will become less certain if one has to resort to parliamentary debates in order to
construe enactments. Here the argument is that persons affected by an enactment are
entitled to rely on the text as it appears in the enactment or statute book which is
available to all and it should therefore not be necessary to consult less accessible
sources like parliamentary debates in order to construe enactments. Pepper V. Hart
[Per Lord Griffiths].
7. It has also often been argued that use of parliamentary debates might in some cases
lead to confusion between what was intended to be enacted and what was actually
enacted and that the duty of the court is to concern itself with what was actually
enacted not what was intended to be enacted. BUTA p 83

Hilder v Dexter [1902] 474 @ 477-478

8. In response, it has been contended that this difficulty is not insuperable and should not
deprive judges of a vital tool especially under the purposive approach. Here, it has been
noted that under the purposive approach, interpretation is at first instance based on the
text itself and that resort to external sources like parliamentary debates is only in the
event of absurdities.
9. It is also argued that with proper training and experience a judge will be able to
distinguish the text of an enactment from parliamentary views and comments on same;
425
 and also use parliamentary debates or views appropriately to overcome any difficulties
of interpretation of the text.
10.Besides, it has been contended in response that the use of parliamentary debates here,
is not much different in this respect from the use of case law or references to case law
in interpretation. Here also, it is argued, the legislative text is often undermined by
reference to judicial decisions on cases which might often be conflicting.
11.Availability of access to parliamentary debates Here it has been contended that few
practitioners have access to reports of parliamentary proceedings and that even when
available, they are not adequately indexed etc. Hence, it requires considerable time,
expertise etc to locate, read and understand their significance in the legislative process.
It is then contended that legal systems especially in developing countries like Ghana
are not well adapted for the use of parliamentary debates as aids to interpretation.
12.In response, it has been contended here also that the difficulties here are very much
like those that arise with the use of case law authorities and that with an improved
hansard or system of parliamentary reporting, the difficulties will be overcome.
13.Delay and cost: the contention here is that resort to parliamentary debates will delay
trials and add to the cost of litigation. Going through the Hansard could be time
consuming and in addition to the fact that access to the Hansard materials could be
expensive, lawyers might be required to research volumes of such debates with the
view to finding out the intention behind the legislation etc.
14.Reliance on parliamentary debates will be time consuming for the courts as well. For
example, in order to assess the force and significance of one’s speech in the hansard,
the entire proceedings before the legislature over a certain period might have to be
examined.
15.In response, it has again been contended that there is very little basis for singling out
this particular form of research as being unduly time consuming and expensive since
comparable concerns could be raised about researching case law. In that case also, the
cost of research might outweigh the benefits, but this does not deter the courts from
relying on case law.

Recent Trends in the Use of Parliamentary Material as Aids to Construction

Perhaps in response to the foregoing criticisms against the exclusion of parliamentary
debates as an aid to interpretation, the courts in several common law jurisdictions (e.g.
UK, AUSTRALIA AND CANADA) now appear more willing to accept parliamentary
debates as an aid to construction.

Sillery V. R [1981] 35 ALR 227.

The case that deserves particular note here however is the celebrated HL decision in

Pepper V. Hart [1993] 1 AER 42. (Cross 18-18; 156).

This case involved the construction of section 61(1), 63(1) and 63(2) of the FINANCE
ACT OF 1967. The court had to determine inter alias, whether under section 63(2) of the
Act, the benefit to the teacher under arrangements for the children of staff in private, fee
426
paying schools to be taught at less than the commercial fee should be assessed by
reference to the cost to the employer and not by reference to the full commercial fee.

In this case, it was evident in the HL that an examination of the proceedings in parliament
in 1976 in respect of section 61 and 63, might help in determining the key issues of
construction at stake. Hence in their judgment, the majority of the HL gave a qualified
approval to the use of parliamentary debates in the construction of legislation. The HL by
a majority held inter alia that:

1. Having regard to the purposive approach to the construction of legislation, the courts
had adopted in order to give effect to the true intention of the legislature, the rule
prohibiting the courts from referring to parliamentary materials as an aid to statutory
construction should, subject to any question of parliamentary privilege, be relaxed so
as to permit reference to parliamentary materials where:
 the legislation was ambiguous or obscure or the literal meaning led to absurdity,
 where the materials relied on consisted of statements by a minister or other
promoter of the Bill which led to the enactment of the legislation together, if
necessary, with other parliamentary materials as was necessary to understand the
statement and their effect.
2. The use of parliamentary material as a guide to the construction of ambiguous
legislation would not infringe… the Bill of Rights since it would not amount to a
questioning of the freedom of speech or parliamentary debate, provided counsel and the
judge refrain from impugning or criticizing the minister’s statement or his reasoning.

3. The purpose of the courts in referring to parliamentary debates would be to give effect
to, rather than thwart through ignorance, the intentions of parliament, nor would it be the
purpose of the courts to question the processes by which the legislation was enacted or to
criticize anything said by anyone in parliament in the course of enacting it.

The justification for the qualified approach by the HL appeared to be the issue of legal
certainty. The majority took the position that the citizen was generally expected and
entitled to regulate his conduct by language of the text of the legislation itself so that it is
“only when the ordinary language of the statute is absurd or ambiguous and thereby puts
ordinary citizens on notice that they need to look further, is it appropriate to permit
research in parliamentary debates to find the meaning and purpose of [the] legislature”.
Cross 157.

The majority of the HL also appears to have rejected most of the arguments raised in
authorities etc against the relaxation of the rule against the admission of parliamentary
debates. See LORD BROWNE- Wilkinson @ 66-67
VCRAC Crabbe: Understanding Statutes @ 113.

The new approach as passed in Pepper v. Hart has since been applied by the courts in a
number of Cases:

R v. Warwickshire County Council; Ex Parte Johnson [1993] 1 AllER 299

427
Steele Ford And Newton (A Firm) v. Crown Prosecution Service [1993] 2 AllER 769.

In Ghana, there have recently been serious proposals for the reform of section 19(1) of CA
4 to allow for the use of parliamentary debates as aids to interpretation along the lines set
out in Pepper V. Hart. Such a proposal made by VCRAC CRABBE in section 10(2) and
(3) on the Interpretation Bill to amend CA 4 (which Bill is presently before Parliament).

In sum, it should be noted that the trail blazed by Pepper V. Hart Is preferable to the
orthodox rule set out in 19(1) which excluded the use of parliamentary debates as aids.
Concededly, there is some merit in a number of the arguments against the use of
parliamentary debates but these difficulties could be overcome and should therefore not be
used as a basis for excluding parliamentary debates altogether. In the circumstances, it is
better that the orthodox rule be relaxed, qualifiedly and the courts left to determine on a
case by case basis, having regard to all the relevant circumstances what use to make of
parliamentary debates in a case.

Reports of Parliamentary Committees

Prepared during the passage of bills through parliament

Such reports are clearly distinguishable from parliamentary debates and are consequently
admissible as aids to the construction of enactments in Ghana by virtue of section 19(1) of
CA 4. Which makes admissible for this purpose “any papers laid before parliament
in reference to it [the enactment]”.

International Treaties, Agreements And Conventions [ITAC]

They are the principal source of the enacting history of Acts enacted to incorporate such
treaties, agreements and conventions within domestic law.

Under Ghanaian law, ITACs do not automatically become part of domestic law. Under
article 75 of the 1992 Constitution, an ITAC must first be executed by the President and
then ratified by either: (a) An Act of Parliament or (b) A resolution of parliament
supported by the votes of more than one half of all the members of parliament.

Ratification by an ACT of parliament here may take one of a number of forms:

1. First, an Act may be enacted which embodies whether or not in the same words
provisions having the effect of the ITAC. This is often referred to as direct enactment
of the ITAC. An example of such a direct enactment in Ghana is The Carriage By Air
(Colonies Protectorates And Trust Territories ) Order 1953 (LN 155 of 1955) which
contains the WARSAW CONVENTION 1929 and thereby makes the Convention part
of the laws of Ghana.

KLM v. Farmex [1989-90] 2 Glr 623 SC.

(see this case in Brobbey JSC’s book).

428
2. An Act may be enacted to say that the ITAC is said to have effect as law, leaving its
provisions to apply with or without modification, often referred to as indirect
enactment of the ITAC. The text of the ITAC may or may not be scheduled to the Act.
(a) An example of a Ghanaian Act is the Bill Of Lading Act, ACT 42 which by
section 1 incorporates articles 1-8 of the International Convention For The
Unification Of Certain Rules Relating To Bills Of Lading into the laws of
Ghana. The rules were in effect adopted in Ghana and incorporated in Act 42.

It is important to add here that treaties or ITACs executed by the President and ratified by
an Act or resolution of Parliament etc become part of Ghana’s international obligations
and may be referred to in the construction of the relevant enactment by virtue inter alia, of
the presumption that Parliament intends to comply with International Law.

The key issue here is the extent to which such ITACs can aid the construction of such an
implementing enactment in Ghana.
As Cross rightly notes @ 161, the problems of interpretation posed by such implementing
Acts are different from those posed by purely domestic legislation since the courts must
in the case of enactments implementing ITACs “strive not only to carry out the intentions
of parliament but also to ensure that their interpretation will not be out of line with that of
other signatory States.

In Cross’ view, the key questions that arise in question are:

(a) whether the ITACs can be used to interpret the enacting statute
(b) whether the travaux preparatoire (preparatory words) of the treaty are also
acceptable as aids.

The dominant view today is that interpreting implementing legislation, the courts are
entitled to rely on the underlining ITAC not only in determining the purpose of the
provisions, but also in determining their meaning.

Quazi v. Quazi [1980] Ac 744 @ 808

Salomon v. Customs And Excise C’sioners [1967] 2 Qb 116 CA

National Corn Growers Association V. Canada Import Tribunal [1990] 74 Dlr 4 TH

ED 449 @ 482 SC.

On the authorities the relevant ITAC can be relied on even though it is not expressly
referred to in the relevant implementing legislation. BENNION 462.

Salomon v. Customs And Excise C’sioners [SUPRA].

Fink V. Gwello [Unreported]

To establish the link between .. and the ITAC the courts may rely on extrinsic evidence or
as Diplock suggested in the SALOMON CASE [SUPRA], on similarities in the text of the
two instruments.
429
It is also to be noted that even in the rare event that an ITAC or part of it in some foreign
language becomes part of the domestic law, the courts will still have the ultimate duty to
construe the implementing legislation.
BENNION 461-462

Fothgerhill v. Monarch Airlines Ltd [1981] AC 251 @ 272.

The question arises sometimes whether the Act or the local text of an ITAC is a correct
translation of the ITAC drafted in another language. In such a case, reference to the other
official language is permitted.

Fothgerhill v. Monarch Airlines Ltd [1981] AC 251 @ 272.

It is to be added that even though it is presumed that the legislature intends its
implementing legislation to be in conformity with the underlying ITAC, in the event of
conflict between them, if the conflict cannot be resolved by interpretation, the
implementing legislation prevails.
Diplock in

Salmon v. Excise C’sioners [SUPRA].

However before concluding that the implementing legislation is in conflict with the
underlying Convention, the court must be satisfied that the implementing legislation is
clear and the court can reach this conclusion
Only after exhausting the full range of interpretive strategies available to it, including
recourse to the underlying ITAC.

Finally, it has been held that the court is entitled in construing an ITAC and any enactment
based on it, to make reference to travaux preparatoire or preparatory work (e.g. records
such as the proceedings of the international conference which produced the ITAC in
question). BENNION 463.

Fothgerhill v. Monarch Airlines Ltd [1981] AC 251 @ 272.

In the above case, Lord Wilberforce suggested in his judgment that reference should be
had to such travaux preparatoire only where the material involved is both public and
accessible and points to a definite legal intention.

Vienna Conventions
It is however important to bear in mind always that the VIENNA CONVENTION ON
THE LAW OF TREATIES contains in section 3 thereof provisions governing the
interpretation of any treaty concluded after 27th January 1980 when the convention came
into force. These provisions might then bear on the interpretation of implementing
legislation as well and must be carefully noted.

430
Post Enacting History
The post-enacting history of an enactment concerns basically the history of the enactment
after it has been passed. Viewed as an aid to construction, the post enacting history shows
the effect on the construction of the enactment of events occurring after it has been passed.

Principal sources or items of the post enactment history include the “contemporaneo
exposito” or contemporary exposition of its meaning (to be discussed under external aids
applicable to both documents and statutes), later Acts, especially Acts in pari materia, etc.
In addition, the post-enacting history of an enactment may under the doctrine that an Act
is always speaking, indicate how the enactment is regarded in the light of developments
from time to time.
In practice, the post-enacting history of an enactment could in certain circumstances bear
importantly on its interpretation and this belies any claims (often erroneously made) that
nothing that happens after an Act is passed can affect its meaning.
BENNION 476; DRIEDGER 449.

Subsequent Acts
Here we are mainly concerned with inter alia three main issues, namely:
1. whether a subsequent Act in pari materia with an enactment under construction can be
used as an aid to its construction
2. whether a subsequent Act not precisely in pari materia but in some way related to or
affecting the same subject matter could be used as an aid to its construction
3. Whether Acts of explanation or parliamentary exposition of prior statutes could be
used as aids.

The dominant position of the authorities appear to be that the provisions of a subsequent
enactment cannot as a rule be taken into account to construe an earlier enactment except
in the limited class of cases outlined below.
MAXWELL 67-68

Kerkness V John Hudson And Co Ltd [1955] Ac 696

Ormond Investments Co V. Belts [1928] Ac 143

Enactments In Pari Materia

In pari materia

"Upon the same matter or subject"

This canon states that to determine the meaning of the particular statute, the court should
look at surrounding statutes to determine meaning. The idea is that a set of stautes will
form a complete subject body, and it is the job of the court to bring a contextual
harmonization among the various related statutes.

431
Bowen v. Massachusetts, where an action for "damages" included an action for injunctive
relief that would require payment of money, a form of relief not technically within the
definition of "damages"

In the Virginia case Temple v. Petersburg (1944) 182 Va. 418, the court determined that
corresponding statutes defined the terms of enlargement and establishment and thus could
apply to the current case.

It has also been held that the mere fact that a particular construction of the provisions of
the earlier enactment could mean that the later one is a surplusage, and may be of no
significance here since the subsequent legislation might have been enacted out of an
abundance of caution.
CROSS 151; CRAIES 148

Re Samuel [1935] AC 514

@ 526 where Lord HALDANE LC in giving the opinion of the Privy Council noted that
“it is not a conclusive argument as to the construction of an earlier Act to say that unless it
be construed in a particular way, a later Act would be a surplusage. The later Act may
have been designed ex abundanti cautela to remove possible doubts”.
The Courts are however often reluctant to regard a subsequent Act passed by Parliament
as a surplusage.

Where there is a departure in the subsequent Act from the language used in the earlier Act
relating to the same subject there is a presumption that the alteration in language used in
the subsequent Act was intentional and portends a difference in meaning.
CRABBE 75

R v Price [1897] LR 6 QB 411 and 416

The presumption is of course rebuttable and there have been instances where the language
from an Act has been altered without an intention that the meaning thereby should change.

It is to be noted however that a subsequent Act of parliament does not alter the law by
placing an erroneous construction on an earlier enactment.

Cape Brandy Syndicate V. Irc [1921] 2 KB 403 @ 414.

Ormond Investment Trust V. B [1828] AC 143 @ 156.

The subsequent enactment might also expressly provide that it is to be read as one with the
earlier legislation. In that event, the court must construe all the statutes to be read together
as though they were one. This sometimes leads to difficulties of interpretation.

Philips V. Parnaby [1934] 2 KB 299

432
Similarly, it has been held that where a new statutory provision is inserted with the text of
the existing statutes- the old and new are to be read as one.

Northinhampshire County Council Case [1986] 1 AER 199 (CROSS 150)

The authorities have also held that where a term is used without definition in one ACT but
is defined in a subsequent Act which is in pari materia, the definition may be treated as
applicable to the use of the term in the earlier ACT. BENNION 479

Woode V. C’sioner Of Police Of The Metropolis [1986] 1 WLR 796.

Finally, it is to be added that even though it is legitimate to consult a subsequent

enactment in pari materia in construction of an earlier enactment, it is not legitimate to
treat the earlier enactment as if it was incorporated wholly in the subsequent enactment.
The two are not to be treated as one unless the legislature distinctly or impliedly says so.
ODGERS 324

Cassanova Case [1806] LR 1 EC 268 @ 272

Benjillo v Republic : CA [1997-98] 2 GLR

SC:
The Narcotic Drugs (Control, Enforcement and Sanctions) Law, 1990 (PNDCL 236). It
provides:
“2(1) Any person who, without lawful authority, proof of which shall be on him has in his
possession or under his control any narcotic drug commits an offence."
Section 9(1) of the Law defines a narcotic drug as: “any of the substances specified in the
Schedules to this Law whether in its natural or synthetic form.”
Held:
1. It is apparent from these provisions that they are substantially similar to those of
section 1 of the English Drugs (Prevention of Misuse) Act, 1964, (supra). I do not
think that the words “or under his control” were meant to alter the law relating to
prohibited drugs.
2. The Memorandum to the Law states as follows: "The purpose of this Law is to
bring under one enactment offences relating to illicit dealing in narcotic drugs and
to further put in place provisions that will prevent illicit narcotic drug dealers
benefiting from their crimes.
3. In view of the rising incidence of narcotic drug abuse in the country and the
threatening dimensions that illicit narcotic drug dealing has taken internationally, it
has become necessary to revise the existing laws on narcotic drugs by clearly
spelling out the offences and providing realistic and deterring punishments in
respect of them”
4. To my mind, the Law is substantially a consolidating enactment.
5. In Boulter v. Kent Justices [1897] HL Lord Davey said that a consolidating Act is:
6. “ … the last place in which you would look for a substantive and important change
in the law … I think that the words used .... must be interpreted in the same sense as
that in which they are used in the repealed sections."

433
 7. Similarly in Grey v. inland Revenue Commissioners [1960], Viscount Simonds
said:
8. "My Lords, the principles applicable to the construction of a consolidating Act are
not in doubt. The presumption is that such an Act is not intended to alter the law,
but this prima facie view must yield to plain words to the contrary.”

Subsequent Acts Not In Pari Materia

Sometimes guidance by contrast or analogy may be derived from the provision of a
subsequent enactment (even if not in pari materia) for the construction of an earlier
enactment-although in such cases there is no obligation on the judge as in the case of
statutes in pari materia.
In addition, judicial decisions regarding the meaning of words in one statute may have
great persuasive influence on the meaning of the same or similar words in another statute.
CROSS p 151-152.

Subsequent Acts of Explanation Or Parliamentary Exposition

Another important situation in which recourse may be had to subsequent legislation to
interpret earlier legislation is in respect of Acts of explanation or parliamentary
exposition.
Sometimes an Act is passed for the express purpose of explaining or clearing doubts in an
earlier Act. Such an Act is referred to as an Act of explanation.

Butler v. Baker (1591) 3 COLE REPORTS 25 A.

It should however be borne in mind that since it is a court not the legislature which is the
authorized expositor of the law of the land, anything in the nature of parliamentary
exposition or an Act of explanation is at best to be considered only an argument that may
be prayed in aid of attaching a certain meaning to a statute and cannot be regarded as
conclusive.

Use of Commentaries
Learned commentaries, particularly writings of jurists and other learned commentators on
the Act form part of its enacting history and may be considered in construing it. Here there
is no requirement that the commentator be deceased before his writing can be considered.

434
The Directive Principles of State Policy
Article 34—Implementation of Directive Principles.
(1) The Directive Principles of State Policy contained in this Chapter shall guide all
citizens, Parliament, the President, the Judiciary, the Council of State, the Cabinet,
Political Parties and other bodies and persons in applying or interpreting this Constitution
or any other law and in taking and implementing any policy decisions, for the
establishment of a just and free society.
(2) The President shall report to Parliament at least once a year all the steps taken to
ensure the realization of the policy objectives contained in this Chapter; and, in particular,
the realization of basic human rights, a healthy economy, the right to work, the right to
good health care and the right to education.
Article 35—Political Objective.
(1) Ghana shall be a democratic state dedicated to the realization of freedom and justice;
and accordingly, sovereignty resides in the people of Ghana from whom Government
derives all its powers and authority through this Constitution.
Article 36—Economic Objectives.
(1) The State shall take all necessary action to ensure that the national economy is
managed in such a manner as to maximum welfare, freedom and happiness of every
person in Ghana and to provide adequate means of livelihood and suitable employment
and public assistance to the needy.
Article 38—Educational Objectives.
(1) The State shall provide educational facilities at all levels and in all the Regions of
Ghana, and shall, to the greatest extent feasible, make those facilities available to all
citizens.

The direct principles of state policy (DPSP) are provided for in chapter 6 specifically
articles 34-41 of the 1992 Constitution of the Republic of Ghana. They encompass
several political, economic, social educational and cultural objectives of the state.

Article 34(1) specifically stipulates that the directive principles set out in articles 35 -41
“shall guide all citizens, Parliament, the President, the Judiciary, the Council of State, the
Cabinet, Political Parties and other bodies and persons in applying or interpreting this
constitution or any other law and in taking and implementing any policy decisions for the
establishment of a just and free society”.

In practice, the directive principles raise inter alia two main issues regarding:
(a) Their use as aids to statutory interpretation
(b)Their justiciability
NB! The two raise distinct issues.

Their Use As Aids

As rightly noted by Buta @ 129 of his LIG, the clear effect of the provisions of article
34(1) namely that the directive principles shall be a guide in interpreting the constitution

435
or any other law is without doubt that the directive principles are to be used as Aids in the
construction of the constitution and other enactments.
This view is supported by a respectable number of authorities.
Npp v. IGP (The Public Order Law) [1993-94] 2 Glr 459 Sc. (Buta 130)
Npp v. A-G (The 31st December Case) [1993-94] 2 Glr (Buta 133).
Npp v. A-G (The Ciba Case) [1996-97] SCGLR 729:

In effect the courts are in practice always to be guided by the directive principles in
interpretation and where the court is faced with an interpretation of the constitution or
statutory provision which is inconsistent with the position stated in the directive principles
on the one hand and an interpretation which is inconsistent with the directive principle, the
court is in duty bound to accept the interpretation which is consistent with the directive
principles.

Justiciability
It is to be noted here that while the authorities appear largely agreed that the DIRECTIVE
PRINCIPLES can be used as aids, there appears to be some controversy in the authorities
on the question of justiciability.

On the one hand, the view has been expressed that the directive principles-or at least those
principles – or at least those principles such as the principles of fundamental human rights
enshrined in article 35(4) and 41 (1) (b)- were justiciable.
Buta for example argues in his LIG that the provisions of chapter 5 of the Constitution
1992 on fundamental Human Rights particularly article 12(1) which stipulates that these
Rights were to be respected and enforced by the courts, and provisions such as article
35(4) relating to cultivating respect for fundamental Human Rights and Freedoms, were
not merely guides to the courts in interpretation but were enforceable.

There appears to be support for this position in the views of ADADE JSC (as he then
was) in NPP V. A-G (THE 31ST DECEMBER CASE) [supra] where he noted inter alia
that provisions such as in article 35(1) and 41(1) (b) were justiciable for the reasons inter
alia, that:
(1) the constitution as a whole, including the provisions of Chapter 6 is justiciable and that
article 1
(2) and article 2 made any law, or act or omission inconsistent with or in contravention of
any provision of the constitution null and void.

In addition, ADADE JSC cites legislative history of the directive principles of state
policy starting from the provisions of the 1979 Constitution where the directive principles
were intended to be justiciable.
It has however been argued contra ADADE that his arguments from the 1979 constitution
for example is particularly weak especially given the difference in the provisions on the
directive principles in the two constitutions.
As Buta points out @ 133 of his LIG it is clear from the opening phrase of chapter 6(1) of
the 1979 constitution that the constitution made it “the duty and responsibility of all the
436
organs of State to conform to and comply with the provisions of the directive principles
whereas the opening article of article 34(1) of the 1992 constitution only provided that
“the directive principles of State policy shall guide. It is then contended that on the basis
of the provisions of article 34(1) the directive principles of state policy were only meant to
be a guide to the state…

It should be pointed out however that in his opinion in the NPP V. A-G (THE 31ST DEC
CASE) ADADE clearly discounted the reasoning that the phrase “shall guide” implies
that the directive principle of state policy are not meant to be justiciable.

Recently, the argument that the directive principles are justiciable have received the
support of HON. Peter Ala Adjetey in a keynote address delivered by him at the first Re
Akoto Memorial Lectures.

See Buta 131. (The c’tee of experts who drafted the constitution say the directive
principles are not meant to be justiciable).

On the other hand, quite a respectable number of authorities hold the contrary view that
the directive principles are not justiciable but merely express the political, economic social
and cultural objectives of the state and that they consequently do not create any legal
obligations enforceable by the courts. They are merely for the guidance of the courts in
interpreting the constitution and other statutes.

Remarkably, the committee of experts which drafted the 1992 constitution itself suggests
that the directive principles are not in themselves justiciable or enforceable but are mere
guides to interpretation. (See Buta 131: extracts from the c’tee report).

The issue of justiciability came up in NPP V. A-G (THE CIBA CASE) [supra] which
concerned inter alia the justiciability of articles 35(1) and 37 (2)(a) and (3).

In this case the SC held that the directive principles of state policy had the effect of
providing goals for legislative programmes and a guide for judicial interpretation and were
not of themselves legally enforceable by any court.

Specifically, Bamford Addo JSC (especially @ 743-745) was of the view that the
directive principles are guides only but nevertheless thought that where provisions under
chapter 6 of the constitution are made independent Rights either by specific words or by
necessary implication they of themselves become justiciable Rights.

Ampiah JSC esp @ 758-759 was of the view that the opening articles of chapter 6 (i.e.
article 34(1) gave clear indication as to the intention of the framers of the Constitution
regarding the directive principles namely that they are to be guides only and not
enforceable by court action.
Atuguba JSC (esp @ 785-788) also observed that the directive principles were not
justiciable but only indicate the spirit and conscience of the constitution and provide goals
for legislative programmes and a guide for judicial interpretation.
437
Sophia Akuffo similarly expressed the view that the directive principles were only guides
and that where it is intended that the directive principles are to be justiciable they have
been specifically stipulated in other parts of the constitution as substantive categories. For
example, the right to own property, freedom of association etc as set out in chapter 5.

On the other hand, some of the principles such as those set out in article 36 (economic
objectives) are in the view intended to be policy guidelines and ultimate standards for
measuring government performance.

In conclusion, it is to be noted that a careful study of the directive principles in chapter 6

of the constitution show on the balance that the better view is that the directive principles
are not in themselves enforceable. Evidently, the bulk of the objectives as stated in the
directive principles such as the political objectives (article 35(1)-(3)), the economic
objectives (article 36) and the social objectives (37) were not to be justiciable but only
indicative of the national goals. However as indicated by the Law Lords in the CIBA
CASE, these objectives could be enforceable when specifically stated as independent
enforceable rights in other parts of the constitution in terms that render them enforceable.
See chapter 5 of the constitution (HR).

NPP v. IGP (The Public Order Law) [1993-94] 2 GLR 459 SC.
(Buta 130)
It is provided by article 21(1)(d) and (4)(a) and (c) of the Constitution, 1992 that:

"21.(1) All persons shall have the right to—

(d) freedom of assembly including freedom to take part in processions and
demonstrations...
(4) Nothing in, or done under the authority of, a law shall be held to [p.460] be
inconsistent with, or in contravention of, this article to the extent that the law in question
makes provision—
(a) for the imposition of restrictions by order of a court, that are required in the interest of
defence, public safety or public order, on the movement or resident within Ghana of any
person; or. . .

Although the defendant admitted the facts of the plaintiff's case, it was contended in his
defence that the right of freedom of assembly contained in article 21(1)(d) of the
Constitution, 1992 was not absolute but was subject to the restrictions contained in article
21 (4) of the Constitution, 1992 and therefore since sections 7, 8 12(c) of the Constitution,
1992, those restrictions were in conformity with the letter and spirit of the Constitution,
1992.

Held:
1. In the Re Akoto case (supra), learned counsel for the appellants submitted, inter alia
at 533:

438
2. "3. That the Preventive Detention Act, 1958, which was not passed upon a
declaration of emergency or as a restriction necessary for preserving public
order, morality or health, but which nevertheless placed a penal enactment in the
hands of the President [p.490] to discriminate against Ghanaians, namely to
arrest and detain any Ghanaian and to imprison him for at least five years and
thus deprive him of his freedom of speech, or of the right to move and assemble
without hindrance, or of the right of access to the courts of law, constitutes a
direct violation of the Constitution of the Republic of Ghana and is wholly
invalid and void."
3. The clear answer given by their lordships reads:
4. "All the grounds relied upon appear to be based upon Article 13 of the Constitution.
It is contended that the Preventive Detention Act is invalid because it is repugnant to
the Constitution of the Republic of Ghana, 1960, as Article 13(1) requires the
President upon assumption of office to declare his adherence to certain fundamental
principles which are:—'That the powers of Government spring from the will of the
people and should be exercised in accordance therewith.
5. That freedom and justice should be honoured and maintained.
6. That the union of Africa should be striven for by every lawful means and when
attained, should be faithfully preserved. similar to the Coronation Oath taken by the
Queen of England during the Coronation Service. In the one case the President is
required to make a solemn declaration, in the other the Queen is required to take a
solemn oath.
7. Neither the oath nor the [p.491] declaration can be said to have statutory effect of an
enactment of Parliament. The suggestion that the declaration made by the President
on assumption of office constitute a 'Bill of Rights' in the sense in which the
expression is understood under the Constitution of the United States of America is
therefore untenable."
8. In the Report of the Committee of Experts, p 49, para 94 it is stated:
9. "94. The NCD report speaks of the need to include in the new Constitution 'core
principles around which national political, social and economic life will revolve.'
This is precisely what the Directive Principles of State Policy seeks to do. Against the
background of the achievements and failings of our post-independence experience,
and our aspirations for the future as a people, the Principles attempt to set the stage
for the enunciation of political, civil, economic and social rights of our people. They
may thus be regarded as spelling out in broad strokes the spirit or conscience of the
Constitution."
10. The experts recognised that the directive principle were not justiciable. Nevertheless,
they gave convincing reasons for including them in the Constitution, 1992 and
concluded at p 49, para 95 that their usefulness lies in the fact that "they provide
goals for legislative programmes and a guide for judicial interpretation."
11. For the first time there was a recommendation for the inclusion of political objectives
in the Constitution, 1992 and at p 50, para 100 of its report, the committee of experts
suggested that: "The State should cultivate among all Ghanaians respect for
fundamental human rights and for the dignity of the human person."
12. The framers of the Constitution, 1992 having adopted the directive principles stated
in article 34(1) of the Constitution, 1992 the scope for their implementation thus:
439
13. "34. (1) The Directive Principles of State Policy contained in this Chapter shall guide
all citizens, Parliament, the President, the Judiciary, the Council of State, the Cabinet,
political parties and other bodies and person in applying or interpreting this
Constitution or any other law and in taking and implementing any policy decisions,
for the establishment of a just and free society."
14. The political objectives were stated in article 35 of the Constitution, 1992. In the
main, article 35 of the Constitution, 1992 sufficiently reflects the recommendations of
the committee of experts. This court—and indeed all courts—is therefore entitled to
take into consideration political matters in "applying or interpreting this
Constitution."
15. A brief comparison between article 21(4)(a) and 21(4)(c) of the Constitution, 1992
shows that the expression "public order" does not occur in the latter. By itself the
expression "public safety" is used in contradistinction to the expression "public
order." True, in accordance with the canons of interpretation sometimes "or" can be
interpreted to mean "and." In Green v Premier Glynrhonwy state Co Ltd [1928], CA
is stated per Scrutton LJ:
16. "You do sometimes read 'or' as 'and' in a statute . . . But you do not do it unless you
are obliged, because 'or' does not generally mean 'and' and 'and' does not generally
mean 'or."'
17. In my respectful opinion, I am not obliged to read in the context of article 21 of the
Constitution, 1992 the expression "or" in subsection (4)(a) as "and."

NPP v. A-G (31st Dec Case) [1993-94] 2 Glr

(Buta 133). Held:
1. As a necessary preamble, it is worth repeating that this court did not prohibit or debar
anybody so minded, from celebrating the 31 December event, provided the celebration
was not financed from public funds and no one was coerced into recognising the day as
a public holiday.
2. The power to strike down constitutional anachronisms or aberrations, is not unusual in
many democratic regimes. Thus, Chief Justice Marshall of the United States Supreme
Court observed in Marbury v Madison, 5 US (1 Cranch) 137 (1803) regarding the
separation of powers:
3. "It is emphatically the province and duty of the judicial department to say what the law
is."
4. A constitutional document must be interpreted sui generis, to allow the written word
and the spirit that animates it, to exist in perfect harmony. It is interpreted according to
principles suitable to its particular character and not necessarily according to the
ordinary rules and presumptions of statutory interpretation: see Minister of Home
Affairs v Fisher [1979] PC.
5. This allows for a broad and liberal interpretation to achieve enlightened objectives
while it rejects hide-bound restrictions that stifle and subvert its true vision.
6. In the celebrated case of Tuffuor v Attornery-General [1980] CA sitting as SC the
court said: "A written Constitution such as ours is not an ordinary Act of Parliament. It
embodies the will of a people. It also mirrors their history. Account, therefore, needs

440
 to be taken of it as a landmark in a people's search for progress. It contains within it
their aspirations and their hopes for a better and fuller life.
7. The Constitution has its letter of the law. Equally, the Constitution has its spirit. It is
the fountain-hcad for the authority which each of the three arms of government
possesses and exercises."
8. My own contribution to the evaluation of a Constitution is that, a Constitution is the
out-pouring of the soul of the nation and its precious life-blood is its spirit.
Accordingly, in interpreting the Constitution, we fail in our duty if we ignore its spirit.
Both the letter and the spirit of the Constitution are essential fulcra which provide the
leverage in the task of interpretation. In support of this, we may profitably turn to the
Constitution, 1992 itself which directs that we accord due recognition to the spirit that
pervades its provisions.
9. In article 17(4)(d) of the Constitution, 1992, Parliament is enjoined not to enact laws
"inconsistent with the spirit of this Constitution." Pausing for a moment, it stands to
reason that if Parliament ignores this caveat, the Supreme Court has power to strike
that legislation down: see articles 1(2) and 2 of the Constitution, 1992.
10.Again, in article 21(4) of the Constitution, 1992 where restrictions are imposed in the
interest of defence, public safety or public order by court process, the Constitution.
1992 nevertheless requires that what is "done under the authority of that law" does not
offend "the spirit of this Constitution." Another example of the all-pervasive and
embracing spirit to which there is a mandatory call to obeisance, is article 33(5) of the
Constitution, 1992.
11.All are enjoined to go beyond the written provisions enshrining human rights, and to
extend the concept to areas not specifically or directly mentioned but which are
"inherent in a democracy and intended to secure the [p.80] freedom and dignity of
man."
12.This is a poignant injunction to examine deeply any written provision so that its
interpretation extends in depth to embrace its underlying spirit and Philosophy.
13.The necessary conclusion is that the written word and its underlying spirit are
inseparable bedfellows in the true interpretation of a Constitution.
14.The Directive Principles of State Policy contained in the constitution, 1992, chp 6
were justiciable because:
a) the Constitution, 1992 as a whole was a justiciable document and accordingly, if
any part was non-justiciable, the Constitution itself had to indicate it. But no
provision in the Constitution had indicated that chapter 6 was not justiciable.
Yet, the evidence to establish the non-justiciability of the principles had to be
internal to the Constitution otherwise it would be in conflict with it and thus be
void and inadmissible. Dicta of Lord Halsbury LC in Hilder v Dexter [1902] AC
474 at 477, HL and of Lord Wright in Assam Railways and Trading Co Ltd v
Commissioners of Inland Revenue [1935] AC 445 at 458, HL approved;
b) articles 1(2) and 2(1) of the Constitution, 1992 which rendered [p.39] any law,
enactment or anything done under its authority, any act or omission of any
person inconsistent with any provision or a provision of the Constitution null
and void and empowered the Supreme Court so to declare, did not express any
exception in favour of chapter 6; and

441
 c) the provision in article 34(1) of the Constitution that the directive principles
should guide the judiciary "in applying or interpreting" the Constitution obliged
the Supreme Court to apply the directive principles to assist or facilitate the
performance of a citizen's duty or the enforcement of his rights under the
Constitution.

NPP v. A-G (CIBA Case) [1996-97] SCGLR 729:

442
External Aids Applicable to Interpretation of both Documents and Statutes
Here we shall be concerned with items such as
 Textbooks and Other Literary Professional Or Academic Publications.
 Dictionaries
 Practice
 Historical Setting
 Contemporania Exposito
 Ut res magis valeat quam pereat Rule

Friday, May 05, 2006

Textbooks and Other Literary Professional Or Academic Publications

By authors of established repute (example Sir Coke) or recent writers with relevant
professional and academic qualifications (Bimpong-Buta) may be considered as aids to
construction.
In respect of enactments, section 19(1) OF CA provides statutory authority for the use of
such textbooks and academic qualifications.

It is important to emphasise here that when used as aids, textbooks are considered not as
ultimate authorities on the construction, but to assist the court arrive at a proper
construction by affording it information on the meaning of the words, phrase etc which
may be generally acceptable; or as evidence of the legal context of the subject provision or
its external context.
Henty V. Wrey [1882] 21 CH D 332 @ 348 per Jessel MR wherein he noted
“the textbook writers do not make law; they show more or less whether a principle has
been generally accepted”.

Re Warner’s Settled Estates [1881] 17 CH D 711 @713 per Jessel MR who again noted “I
should have no difficulty without the assistance of textwriters; but it is very satisfying to
find that they have considered it [the issue] independently in the same way”.

The ultimate decision is then clearly that of the court and it is entitled to reject the opinion
of text writers or authors of professional academic publications however authoritative
where it finds it appropriate.
BAXTON V. DAVIES [1891] 1 QB 579 @ 582-583.

In practice, the courts may find textbooks, especially historical works and documents very
useful in interpretation of ancient documents or in the interpretation of technical and
scientific provisions in the document or statute.

Shore v. Wilson

443
Dictionaries
Given that the words of a document or statute are to be taken in the first instance as used
in their ordinary meaning in context, it is often permissible in ascertaining the ordinary
meaning of a particular word or phrase to refer to dictionaries. Again, section 19(1) of CA
4 provides a statutory basis for the use of dictionaries in the interpretation of statutes.

As with textbooks etc, the dictionary meaning of a word or phrase is not to be considered
as the ultimate authority of the meaning of the words or phrases in a particular document
or statute but only to assist the court in arriving at the proper construction by affording it
information on the meaning(s) of the word or phrase which may be generally acceptable.
However the meaning to be attributed to the word or phrase in a particular context is
ultimately that of the court.

Marquis Camden V. Irc [1914] 1 Kb 641

Reference to a dictionary is also permissible to show the application of a word or phrase.

However as previously noted, dictionaries are often of very little value in interpretation of
documents and statutes. Some of the limitations are as follows:
(a) Dictionaries are often of little assistance because they provide the meanings of the
words and phrases divorced from their context. Such a definition is often not very
useful in construction where words are always to be construed in context. As Crabbe
notes @ 73 of his Understanding Statutes, a dictionary usually gives more than one
meaning to a word or expression and divorces the word entirely from its context; so
that the court is ultimately still left to determine the appropriate meaning of the word or
phrase in a particular context.
RE BIDIE [1948]2 AER 995 @ 998.
See Also Mills v. Canon Brewery Company [1920] 2 Ch 28 @44

(b) A dictionary does not help much where the court is for example, concerned with the
meaning of a word at a particular date.
Hardwick Game Farm v. Suffolk Agricultural And Poultry Producers Association Ltd
[1966] 1 Aer 309 @ 323

( c) Dictionaries might also prove not very useful in two word phrases such as “unfair
competition” etc.
Lee v. Showmans Guild Of Great Britain [1952] 2 Qb 329 @ 338.

Finally, it is to be noted that owing to the limitations in the use of dictionaries, the
courts have often in practice preferred definitions in previous judicial decisions to
dictionary definitions.
Mandla v. Dowell Lee [1983] 1 Aer 1062

Indeed it has been held by some authorities that dictionaries are for consultation “in the
absence of judicial guidance or authority”.
Kerr v. Kennedy [1942] I Kb 409 @ 413.
444
 It has been said that dictionaries cannot be regarded as authorities on the meaning of
words used in the statutes where these words have been the subject of judicial
interpretation.
Halsbury 4th Ed Vol 44 Para 868.
Edwards (Inspector Of Taxes) v. Clinch [1981] 3 Aer 543 @ 548.

Practice
In the interpretation of documents or statutes etc, the established practice which has been
followed in the matter in the past (e.g. by specialist practitioners like conveyancers or
commercial usage etc) may be considered again, not as ultimate or conclusive authority on
the construction, but to aid the court in the task of construction by affording it with
information on the meaning of the words and phrases which has been generally accepted
in the relevant specialist area in practice.
Halsbury 4th Ed Vol 44 Para 844

Recourse is often had to practice as an aid to interpretation in cases or situations in which

a word has acquired a technical meaning among a relevant body of specialists such as
conveyancers. The established practice often influences the interpretation to be placed on
the provision of the document or statute.
Basset V. Basset [1744] 3 Atk 203 @ 208.
Jenkins V. Irc [1944] 2 Aer 491 @ 495.

In practice, commercial usage has also often been used as an aid to construction.
Cross 145; Maxwell 57
United Dominion Trust Ltd V. Kirkwood [ 1966] 2 Qb 437.

Furthermore, recourse is also had to the practice of relevant government and

administrative agencies- such as when they provide evidence of the background against
which a statute was enacted.
CROSS 146
Greenwich London Borough Council V Powell [1989] 1 Aer 65

Cross notes @ page 146 of his book that what is acceptable as aid here, is often the pre-
enactment practice of the relevant government body not the post-enactment practice.

However the practice of government body or other administrative practice often does not
have the same weight as the practice of specialists such as conveyancers etc.
Maxwell 67
Strand Securites Ltd V. Caswell [1965] Ch 958

Historical Setting
In construing a document or statute, it is also permissible to have regard to its historical
setting, i.e. the general historical conditions or facts (as opposed to the history of the
445
document or enactment itself) which are necessary for the comprehension of the object or
subject matter and in case of a statute, the mischief which was intended to be cured.
Thus it has been held for example that where a document is of ancient date, evidence will
be admitted of the meaning of the words at the date of the instrument and that such
evidence may properly be given by reference to historical and other works.
Halsbury 12th Ed 1496
Shore V. Wilson (For Documents).

The historical setting is however to be used as an aid to the construction of the words used
by the authors of a document or by Parliament, and not to read in words or limitations
which did not exist in the document or statute and not justified by the context.

Hence, it is not permissible to use the historical setting to encroach upon the legislative
function by reading in some limitations which it is thought was properly intended but
which cannot be inferred from the words of the enactment.

A-G For Northern Ireland V. Gallagher [1963] Ac 349 @ 366

Maxwell Pp 47-49; Craies 125-128; Halsbury Vol 12 Para 898-899; Cross 143-144

Holme V. Guy [1877] 5 Ch D 901 @ 905

River Wear Commissioner V. Adamson [1877] 2 Ap Cas 743 @ 763

For the purposes of ascertaining the historical setting, recourse may be had to the annals or
history of the period and to antiquarian researchers.

Cases which have used historical setting in interpretation

Chandler v DPP [1964] Ac 763 @ 791

Schtraks V. Govt Of Israel [1964] Ac 556 @ 582-583
Nottinghamshire County Council V. Sec Of State For The Environment [1986] 1 AER
149. (Cross 143).

Finally, it is to be noted that an examination of the historical setting might sometimes

produce a conflict between the literal meaning and the purposive reading of the text.
Cross 143
Johnson V. Moreton [Supra].

Contemporanio Exposito (Contemporary Exposition)

Contemporanio exposito (CE) refers to the history of how a document or enactment was
understood or applied in the period immediately after it was executed or passed.

It is believed that the rule as to CE was first laid down by Sir Coke in speaking of the
MAGNA CARTA thus “this and the like were the forms of ancient acts and graunts and

446
the ancient acts and graunts must be construed and taken as the law was holden at the time
they were made”.
See COKE: 2ND INSTITUTE

The expression CE is itself derived from a maxim enunciated by Sir Coke namely
“contemporaneo exposito est optima et fortisimma in lege” (“contemporary exposition is
the best and the most powerful law”).
Coke’s rule was later adopted by the English courts in a number of decisions which
suggested that the words in a document or enactment must be construed as they would the
day after they were executed or passed.

The justification for using CE as aids to interpretation of documents and statutes is found
in an extract from MAXWELL @ 265 which was cited in the judgment of the English CA
in
R v. CASEMEN [1917] 1 KB 98@ 138. (CROSS 147)
“it is said that the best exposition of a statute….

Documents
In respect of documents, CE appears on the authorities to be most acceptable as aids in the
construction of ancient documents though they may also be used in the construction of
some modern documents in certain limited circumstances.

Odgers Pp 122-125; Lewison 63-66; Halsbury 4th Ed Vol 12 Para 1496-1499.

A-G Of Ireland v. Drummond [1842] 1 Dr And War 353 @ 358.

The authorities also dominantly suggest that evidence of CE would be admissible to

interpret a document only where there is uncertainty or ambiguity in the document, not
where it is plain.
Odgers 123; Lewison 66

Lord Hastings V. Northeast Railway Company [1899] 1 Ch 656.

Chad v. Tilsed [1821] 2 Brod And Bing 403 @ 406.

It is also to be added that an ancient document for this purpose is one that dates before the
time of living memory.
Odgers P 125; Lewison 166

North East Railway v. Lord Hastings [1900] Ac 268 @ 269

The authorities however appear to be unclear as to whether the acts etc of parties under a
modern instrument can be used as CE and therefore as an aid to construction.
The dominant position for now appears to be that the doctrine of CE can only be used as
an aid to construction of the descriptions of the property assured in modern instruments of
title to land. And that beyond this, acts done under a modern instrument and in particular
447
under a modern commercial contract cannot be admitted as an aid to the construction of
the instrument, even if a doubt remains after other methods of construction have been
exhausted.
Halsbury 12th Ed 1498; Lewison 63-65

Watchman v A-G Of East Africa Protectorate [1919] Ac 533

Schuler A-G v Wickman Machine Tools Sales Ltd [1974] Ac 235

It has however also been held that where a contract is only partly written, nothing in the
authorities prevents the courts from looking at the way the parties acted for the purpose of
ascertaining what terms were agreed but not written down; or where it is alleged that some
terms of the contract are a sham.
Lewison 65
Securities Ltd v. Vaughan [1996] 1 Ac 417 Hl

Wilson v. Maynard Shipping Consultants Ad Ltd [1978] Qb 665.

Finally, the authorities are also clear that evidence of CE is not restricted to direct
evidence of contemporary usage which is often impossible to procure. Hence it has been
held that modern usage if there is nothing to countervail it, raises a presumption that the
usage was the same after the date of the instrument and consequently evidence of modern
usage may in some circumstances be admissible to explain an ancient deed i.e. in terms of
CE.

Halsbury 12th Ed 1499

Chad V. Tilsed [Supra]

CE In Relation To Statutes
CE also affords a useful aid to the construction statutes, particularly ancient statutes.

Sharp V. Wakefield [1889] 22 Qbd 239 @ 241.

The Montrose Peerage Case [1853] 1 Mack HL 401 @ 406 wherein it was noted by Lord
Cranworth that “it has often been held and not unwisely or improperly that the
construction of very ancient statutes may be elucidated by what in the language of the
courts is called contemporaneo exposito, i.e. seeing how they were understood at the time
they were passed”.

Modern discussions of CE as aids to the construction of statutes often usefully

distinguish between two forms of CE of a statute thus:
(a) CE referring to the way a text was interpreted by the courts, legal writers and others in
the period following its enactment
(b) CE referring to statements or statutory instruments issued by the government or other
official agencies contemporaneously with the enactment.
CROSS 157
448
It is also important to note here that contemporary exposition (CE) is often dependent on
there being a series of decisions or continuous practice in relation to the provision. Hence
a single decision or single instance of the practice cannot constitute contemporary
exposition.

It has however been held that CE will not always be decisive or conclusive of the question
of construction of a statute and that where previous decisions are for e.g. plainly wrong
and especially where the subsequent course of judicial decisions has disclosed weaknesses
in the reasons upon which they are based, these would be rejected.
Maxwell 268
Westham Union v Edmonton Union [1908] Ac 1 @ 5.

Authorities On Ce In Relation To Statutes

Thompson v. Nixon [1966] 1 Qb 103 @ 109 110

Macrowlands Ltd V. Bernie Inns Ltd [1985] 3 Aer 473 (Cross 147)

Nottinghamshire County Council V Secretary Of State For Environment [1986] AC

240

Finally, it has been observed in a number of authorities like Governors Of Campbell

College Belfast V. Commissioner Of Valuation For Northern Ireland [1964] 1 WLR
912 that CE ought not to apply to modern statutes but is to be applied only to the
construction of “ambiguous language in very old statutes”.

The modern authorities however clearly show that these limitations on the use of
contemporary exposition on the use of statutes no longer exist and that the doctrine
continues to be applied by the courts in construing even relatively recent statutes.
Nottinghamshire County Council Case [Supra]

Perhaps the most important point to note here is rather that although the courts continue to
use CE in the construction of ancient and modern statutes where appropriate, this has not
prevented them from taking account of later events in relation to the enactments where
appropriate by adopting an “updating” or “ambulatory” interpretation where the wording
or the purpose of the enactment so permits.

Here, it must be mentioned with regard to updating etc, that Acts can be divided into two
categories, namely:
(a) fixed time Acts- refers to the comparatively rare case of an Act that is intended to be
of unchanging effect.
(b) ongoing Act: - i.e. the usual case of an Act that is intended to develop in meaning
with developing circumstances.

A fixed time ACT is intended to be applied in the same way whenever changes occur in
its passing so that whatever change occur after … so that an updating construction is not
449
to be applied to it. Such an Act as it were, is always to be construed as if one were
interpreting it a day after it was passed. Its construction is never updated over time. Here,
CE is most relevant.

An obvious example here would be an Indemnity Act which relieves named individuals
from liabilities for breaches of the law etc. Another example can be given of an Act in the
nature of a contract e.g. some kinds of constitutional Acts such as those relating to
dependent territories.

Re Regulation And Control Of Aeronautics In Canada [1932] AC 54

@ 70 where Lord Sankey LC noted that the process of interpretation as the years go on,
should not be allowed to dim or whittle down the provisions of the original contract upon
which the federation of Canada was founded; nor is it legitimate that any judicial
construction of the provisions imposed a new and different contract upon the federating
parties.

However the general presumption in law is that an Act is intended to be ongoing and
always speaking unless there is good reason to think that parliament has departed from
this principle and has enacted a fixed time Act. Hence, an updating construction should
always be applied to an Act where appropriate unless there is reason to hold that it is a
fixed time Act.
In other words, a court in construing an Act must ordinarily not only take account of CE
but as well changes that might have occurred after its enactment-such as changes in social
and economic conditions of its application and developments in technology etc.
This implies, as Bennion perceptively remarked @ 617 of his book that in its application
on any date, though necessarily embedded in its own time, is nevertheless to be construed
in accordance with the need to treat it as current law.

Dyson Holdings Ltd V. Fox

Gamans V. Aikins.

Ut res magis valeat quam pereat rule

This aid to construction derives from the rule of law that the maker of a document or the
legislature intends the interpreter of the document or enactment to observe the maxim “ut
res magis valeat quam pereat” which is rendered in literal English as that “it is better that a
thing should have effect than be void”. (Buta 123).

The rule in effect obliges the court or interpreter to construe a document or statute in a
manner that gives validity rather than invalidity. In other words, if the court is faced with
two interpretations one of which gives validity to the document or statute and the other
not, the court is in duty bound to adopt the interpretation which gives validity to the
document or enactment.

450
The ut res magis maxim in effect reflects a number of key or principal presumptions
underlying the MOPA to interpretation and consequently advocates that where
appropriate, courts adopt a strained or perhaps even a rectifying construction in order to
achieve the intention of the author(s) and to avoid absurd or invalid consequences.

Documents
In relation to documents, the maxim has been applied in several cases including the ff:

Langston v. Langston [1834] 2 Cl & Fin 194

Re Baden’s [1969] 2 Ch 388

Pollock v Stacy [1847] 9 Qb 9031

Akim Akroso Stool v Akim Manso Stool

Held: . The whole exercise is as to what construction is to be placed on the word “family”
as contained in the conveyance
1. This is expressed by the maxim ut res magis valeat quam pereat: a deed shall never be
void where the words may be applied to any intent to make it good or carry out and
effectuate to the fullest extent the intention of the parties.
2. Hence where words are capable of two meanings the object with which they were
inserted may be looked at in order to arrive at the sense in which they were used.
3. And where one interpretation is consistent with what appears to have been the intention
of the parties and another repugnant to it the court will give effect to the apparent
intention, provided it can do so without violating any of the established rules of
construction.

Statutes
The ut res magis maxim is also frequently applied in the construction of statutes. One of
the oldest cases in which it was used is THE BETA [1865] 3 MOO 3 PCC (NEW
SERIES) 23 @ 25 where Doctor Lushington noted as follows “if very serious
consequences to the beneficial and reasonable operation of the Act necessarily follow
from one construction, I presume that unless the words importantly require it, it is the
duty of the court to prefer such a construction that rex magis (sic) valeat quam pereat”.

Noakes v. Doncaster Amalgamated Collieries Ltd [1940] Ac 1014 @ 1022.

A-G of Gambia v. Jobe [1984] 3 WLR 174

The respondent was arrested on one charge of stealing from his emplolyer, a public bank,
and one of fraudulent false accounting. Accused brought the action that the Special
Criminal Court under which he appeared and by the Act establishing it, the Act violated
his right to personal liberty under s15 of the Constitution and the protection from having
his property compulsorily acquired in s18 of the Constitution.
451
Held: per Diplock
 Their Lordship have applied to a law passed by the Parliament in which , by the
Constitution itself, the legislative power of the republic is exclusively vested, a
presumption of constitutionally .
 This presumption is but a particular application of the canon of construction
embodied in the latin maxim magis est ut res valeat quam pereat which is an aid
to the resolution of any ambiguities or obscurities in the actual words used in any
document that is manifestly intended by its makers to create legal rights or
obligations.
 In passing the Act by the procedure appropriate for making an ordinary law for the
order and good governance of Gambia without the formalities required for a law
that amended the constitution the intention of parliament cannot have been to
engage in futile exercise of passing legislation that contravened provisions of the
constitution and was thus incapable of creating the legal obligations for which it
purported to provide.
 Where, as in this case, omissions by the draftsman of the law to state in express
words what, from the subject matter of the law, etc, can be inferred from to have
been parliament’s intention, a court charged with the judicial duty of giving effect
to parliament’s intention, as that intention has been stated in the law that parliament
has passed, ought to construe the law as incorporating, by necessary implication,
words which would give effect to such inferred intention,
 wherever to do so does not contradict the words actually set out in the law itself and
to fail to do so would defeat parliament’s intention by depriving the law of all legal
effect.

Republic v. High Court Accra; Ex Parte Adjei [1984-86] 2 Glr 511.

(a) the Chief Justice who shall be the president thereof; and
(b) not less than four other justices of the Supreme Court;
Held:
1. Any other interpretation will make section 19 inoperable. But we must interpret ut
res magis valeat quam pereat. A statute must be interpreted to give effect to all its
parts, unless such an interpretation will lead to an absurdity.

2. Here, to give effect to section 19 of P.N.D.C.L. 42 it will be absurd to give

"thereof” in article 115 (2) of the Constitution, 1979 its original meaning, for it will
be ludicrous to say that although section 19 of P.N.D.C.L. 42 allows the use of
justices of the Court of Appeal, the selection must, by article 115 (2), be limited to
justices of the Supreme Court only.

452
Presumptions
The term presumption has different meanings in different branches of law. Yet as Cross
rightly notes at page 165 of his Statutory Interpretation the core idea reflected in the
concept in all its varied uses is the question of burden of proof. The implication of a
presumption then, Cross points out, is that a particular conclusion is likely to be drawn by
the court in the absence of a good reason for reaching a different one.

Hence in the law of interpretation, presumptions represent certain assumptions, inferences,

or conclusions which a court or interpreter will likely make or draw, or in terms of which
it is bound to proceed, regarding inter alia, the way DSCs are drafted or the values
respected by the drafter(s) and taken into account by them when construing a DSC in the
absence of any reason to find otherwise.

Thus VCRAC CRABBE defines a presumption in his UNDERSTANDING STATUTES

@ page 119 as a legal device or rule of law which operates in the field of interpretation to
allow certain inferences to be drawn from available materials.
Several authors including Cross also similarly define presumptions in interpretation as
standing for general principles of law, norms etc taken for granted and assumed by the
courts to have been taken into account by the drafter(s) of a DSC and upon which the
courts will therefore find a prima facie approach to the construction of a DSC or part
thereof.
CROSS 166-167; ODGERS 387.

These presumptions are also admitted to be rebuttable and the courts will therefore invoke
the concept or principle embodied in a presumption against the person against whom a
presumption works if he does not lead any evidence to the contrary.

Types And Uses Of Presumptions

Presumptions in the law of interpretation are numerous and often differ as between
documents and statutes and even between specific types of documents and statutes.
Further, these presumptions, as several scholars have noted, do not form a tidy list
considering that they are mostly derived from centuries of development of the common
law and legal practice. In practice, these presumptions and the weight to be attached to
them, often change in response to changes in the underlying principles, values, policies
etc.

It is to be noted here that historically presumptions became most dominant during the peak
of literalism and were used to mitigate the severe consequences of literalism by asserting
that the legislature etc, is to be presumed not to intend certain consequences to flow from
the documents or statutes. Yet even under the dominant MOPA today, presumptions are
still employed to avoid any such or absurd consequences by asserting that the purpose of
the author(s) in relation to a document or statute was to be presumed not to include any
such harsh or absurd consequence.

In practice, the bulk of presumptions today, as noted above, relate basically to:
(a) How DSCs are drafted
453
(b) Various legal principles, norms or values that the drafter(s) are presumed to respect
and which are consequently assumed to have been taken into account by them in the
drafting of the DSC.

Presumptions about how DSCs are drafted (e.g. presumptions of consistent expression and
the presumption against tautology) are mostly grounded in conventions about drafting of
DSCs which are relied on by the courts as a basis of drawing inferences as to the intention
of the author(s) of a DSC. These presumptions often operate most forcefully in relation to
legislation where the courts for example proceed on strong presumptions that the
legislature has for example perfect knowledge, does not make mistakes, and expresses
itself in a straightforward and coherent manner.

As Driedger explains in his COS, legislation by way of communication for example

presupposes that the drafter and his audience (including the courts) are working with
roughly the same stylistic and linguistic conventions and it is these shared expectations of
both the drafter and his audience as to how DSCs are drafted that form the basis of these
presumptions and the drawing of inferences as to what the drafter(s) of a DSC intended or
did not by drafting the provisions in a particular way.
Driedger 3rd Ed Page 151 Ff And 317.

Presumptions reflecting the norms, principles, and basic values underlying DSCs concern
largely the content and substance of the DSC and these often embody basic principles and
values-political, economic, cultural, social etc that underline the particular legal system
and which the participants in the system including the drafter(s) of the DSCs are presumed
to share.

Again, most of these presumptions (mostly relating to legislation) are in most common
law jurisdictions (like Ghana) often rooted in the political and economic liberalism that
dominated western thought. These include presumptions about individual liberties,
property rights, respect for rule of law, presumption of compliance of constitutional laws
and values, presumptions of compliance with international law.

Again Dreidger explains that the courts themselves respect these presumptions about
values etc underlying DSCs and the author(s) who largely share these norms and values
were aware and took these into account in making the DSCs.
Hence where it is intended to violate any of these principles or values etc, the drafter has
to take care to say so in the clearest of language, else the courts will find or will infer that
he is content to abide by the established norms and values that underline the legal system
and society.

454
In sum, presumptions play a most useful role in the drafting and interpretation of DSCs
today. For one thing, they ensure brevity in the drafting of DSCs by permitting account to
be taken of various established drafting conventions, norms, values etc underlying the
legal system and taken for granted, without the need to indicate these in the text of the
DSC and thereby also permit the courts to factor these principles and values in their
interpretation of DSCs and in determining the meaning of a text in the absence of clear
indications to the contrary.

Here it is to be added that in the scheme of the rules of interpretation, presumptions are
ultimately also aids or guides to interpretation and are employed in conjunction with the
basic rules and other aids to arrive at an interpretation that reflects the intention of the
author(s) of the DSC.
Hence, a presumption could be invoked in practice to reveal inter alia, ambiguities,
absurdities etc in a DSC; to resolve any ambiguities or absurdities determined or
otherwise in support of one’s preferred interpretation.

Presumptions are however distinguishable from the other aids (general aids) on account of
their status relating to the burden of proof.

To repeat, the court or interpreter is in an appropriate case or circumstance bound to infer

or invoke the principle or value embodied in a presumption unless there is compelling
evidence that it has been rebutted.

Thus when a court is for example faced with two interpretations one of which is
constitutionally valid, and the other not, the court will invoke the presumption in favour of
constitutional validity in choosing the earlier interpretation.

In the case of the general aids however, the court, even when satisfied that the proper
conditions exist for the application of the aid, still has a discretion whether or not to apply
it.

In practice and under the MOPA the court may properly invoke and apply the general aid
where it is satisfied that this will ensure an interpretation that reflects or effectuates the
intention of the author(s).

Remarkably however, some of the general aids discussed supra such as the linguistic
canons of construction are sometimes presented as presumptions in a number of
authorities. Yet from the foregoing, it should be evident that this cannot be right.

Further Categorizations
Furthermore, a number of authorities on interpretation often further categorize
presumptions (mostly on account of their alleged weight etc) into (a) presumptions of
general applications- said to apply automatically in all cases and can be relied on whether
or not the provisions are ambiguous; (b) presumptions for use in doubtful cases (c)
presumptions of last resort (d) strong and weak presumptions etc.
Cross 166; DRIEGER 364-365.
455
These settled distinctions or characterizations have however been criticized by several
scholar. Driedger for example is of the view that these categorizations could be
misleading and problematic and he contends that attempts to put fixed meanings on
presumptions apart from particular disputes creates an impression of certainty and
predictability that does not exist in practice. Driedger therefore maintains that it would be
more appropriate for judges to declare only that some presumptions are more important
than others and therefore deserve greater weight and to reveal information justifying their
interpretive decisions on a case by case basis.

Driedger further contends that to declare that a given presumption should not be taken into
account except where certain strict conditions exist is also not very helpful especially
since in practice the values etc embodied in most of these presumptions are always present
in interpretation and forms an integral part of the context from which meaning is derived.
The views as expressed by Driedger represents the dominant position under the MOPA
today.

Criticisms Of Use Of Presumptions

However the use of presumptions in interpretation have been deprecated by some
authorities on the ground inter alia that they have often served as an avenue for
substituting judicial preferences for those expressed in the text of the DSC.
Here the critics have pointed to the fact that, especially in relation to legislation, some
courts have historically relied on presumptions of legislative intent to blunt the import of
reform legislation by substituting their vision of what is good for that of the elected
representatives of the people.
DRIEDGER 312-319.

However, much as any such attempt by a court to substitute its vision of what is good for
that of the democratically elected legislature must be frowned on, it has to be considered
that interpretation takes place in the context of a distinct legal culture with its own values,
norms etc and that respect for these shared norms and values is necessary for the
effectivity of the legal process.
Indeed, it is the acceptance of such shared values and norms that informs the process of
legislation and interpretation, as well as the administration of justice. Hence it is
contended that so far as these presumptions are based on and reflect norms and values of
the legal system, the courts have a responsibility to promote them in their interpretation of
DSCs.
Besides under the MOPA, the interpreter is at first instance to discover the intention of the
author(s) of the DSC from the text itself and it is only when this ordinary meaning leads
to some ambiguity that resort to other sources like presumptions etc become relevant.

456
Presumptions relating to Interpretation of Documents
The courts in practice resort to presumptions in the interpretation of non-statutory
documents. Although several of these presumptions relate to non-statutory documents
generally, a few relate to particular or specific documents as for example presumptions
relating to the interpretation of parcels (in Conveyancing). See LEWISON 269 ff. (e.g.
quic quid plantatur solo, solo cedit).

Some key general presumptions in the interpretation of non-statutory documents include:

1. Presumption as to the effect of alterations and erasures in documents
2. Presumption of consistent expression or meaning
3. Presumption against redundant words or surplusage (the presumption against
tautology)
4. Presumption against unreasonable results (especially in the case of commercial
documents). See lewison 169 ff.
5. Presumptions against impossibility (in contracts)
6. Presumption of non-knowledge by an illiterate of the contents of a document
executed by him.

Presumption Of Consistent Expression In Meaning

As previously noted, the provisions of a document must ordinarily be construed as a
whole, that is, in relation to other provisions. Thus the courts have consequently often held
that as a rule, a word used in one part of the document would be presumed to be used in
the same sense when the same word is used in other parts of the document.

Re Birks [1900] 1 Ch 417

This presumption will however not apply where it is clear from the document that the
same word is used in different senses even in the same clause.

Tea Trade Properties Ltd V Cin Properties Ltd [1990] 1 Eglr 155.
Conversely, it has been held that where a draftsman uses different words in different parts
of the document the converse arises.

Prestcold (Central Ltd) V. Minister Of Labour [1969] I Wlr 89

457
This presumption is however likely to apply with less force in circumstances where the
document is a very long one with several pages and is drafted with different hands rather
than one.
Doubt also appears to exist as to the application of this presumption in relation to
exemption clauses. Here a number of the authorities suggest that the contract is to be
construed at first instance apart from the exemption clause and then effect of the
exemption clause subsequently considered in the light of the earlier interpretation.
This position is however doubtful under the MOPA

Car Sales (Harrow Ltd) V. Wallace [1955] 1 Wlr 936.

Presumption Against Redundant Words Or Surplusage

The rule that the document is to be construed as a whole also implies that unless there are
compelling reasons to the contrary, effect must be given to every part of the document, i.e.
every part is to be taken to have been deliberately inserted in relation to other parts and
that there are no redundant words.

Re Strand Music Hall Company Ltd [1865] 35 Beav 153

Sa Maritime Et Commerciale Of Geneva V. Anglo-Iranian Oil Company Ltd [1955]

1 Wlr 492

The courts have however tended towards the view that this presumption is relatively weak
in relation to certain types of documents such as traditional conveyance and charter
parties. In the case of the traditional conveyance for example, practitioners are said to
have used for many years a torrential style i.e. one in which a torrent of words are used
such that there might be in some cases redundant expressions.

Norwich Union Life Insurance Society V. British Railway Board [1987] 283 Eg 486

Tea Trade Properties Ltd V. Sim Properties Ltd [Supra]

The Presumption Against Unreasonable Results

This presumption applies especially in relation to business and commercial documents.
Here the courts have invariably taken the position that businessmen are reasonable persons
and therefore do not intend to do anything absurd.
Hence where there are rival constructions of a business or commercial document etc, the
reasonableness of a particular construction is a relevant consideration in choosing which
construction to adopt.

Tillmans And Cole V. Ss Knotsford Ltd [1908] 2 Kb 385

Schuller (Lag ) V. Wickman Machine Tools Sales Ltd [1974] Ac 235 (Cross 165).

458
Consequently the courts have in practice often construed business and commercial
documents in the light of their commercial purpose and have avoided constructions that
flout business common sense.
The Antaios [1985] Ac 191.

Where however the provisions of a document are clear in context, the court will give
effect to it.

Glowfields Properties Ltd V. Morley [No 2] [1989] 2 Eglr 118 Ca.

Data Stream International Ltd V. Oakeep Ltd [1986] 1 Wlr 404.

459
Presumption of Non-Knowledge by Illiterate of Contents of Document Executed by
Him
This presumption is one of several rules developed by our courts for the large number of
illiterates in this country. The presumption is basically to the effect that an illiterate person
who cannot read or write language in which a document executed by him is prepared has
no knowledge of the contents of the document and that document is therefore not binding
on him.
The onus is consequently on the person seeking to bind the illiterate person to the
document to establish that it was read over and interpreted to him.
S A Brobbey: Practice And Procedure In The Trial Courts Of Ghana PP 290-294.
Historically, the presumption is often traced to the decision of the PRIVY COUNCIL in
the early part of the last century in the case of KWAMIN V. KUFUOUR (1942) 2
RENNER 808 wherein the council laid down the principle that “there is no presumption
that a native of Ashanti who does not understand English and cannot read or write, has
appreciated the meaning and effect of an English language instrument because he is
alleged to have set his mark to it by way of signature”.

This principle has been followed in subsequent cases such as

WAYA V.BUROUTY [1958] 3 WALR 413 where it was held that if an illiterate person
executes a document, any person who relies on it must prove that it was read over and
interpreted to the illiterate and that he apparently understood and appreciated its full
meaning and effect.

Illiterates' Protection Ordinance, 1951 (CAP 262).

Section 4—Conditions to be Fulfilled by Persons Writing Letters for Illiterates.

Every person writing a letter or other document for or at the request of an illiterate person,
whether gratuitously or for a reward, shall —
Reading and explanation.
(1) Clearly and correctly read over and explain such letter or document or cause the same
to be read over and explained to the illiterate person;
Illiterate's mark.
(2) Cause the illiterate person to write his signature or make his mark at the foot of the
letter or other document or to touch the pen with which the mark is made at the foot of the
letter or other document;
Writer's name and address.
(3) Clearly write his full name and address on the letter or other document as writer
thereof; and Note of writer's fee.
Receipt for fee.
(4) State on the letter or other document the nature and amount of the reward, if any,
charged or taken or to be charged or taken by him for writing the said letter or other
document, and shall give a receipt for the same and keep a counterfoil thereof to be
produced at the request of any of the officers named in section 6.

460
Section 7—Penalties.
(1) Every person who shall act in contravention of any of the provisions of this Ordinance,
shall be liable for a first offence to a fine not exceeding five pounds or to imprisonment
not exceeding one calendar month with or without hard labour, and for any subsequent
offence to a fine not exceeding ten pounds or to imprisonment not exceeding three
calendar months with or without hard labour.
Forfeiture of licence.
(2) In addition to any penalty aforesaid, a licensee contravening any of the provisions of
this Ordinance shall be liable to forfeit his licence.

Section 9—Operation of Ordinance.

This Ordinance shall not apply to the writing of any letter or other document or to any
letter or other document written in the course of his business by a salaried clerk or by or at
the direction of any person admitted to practise and practising as a barrister or solicitor in
the Supreme Court.

Amankwanor V. Asare [1966] Glr 598 Sc

Bank Of West Africa Ltd V. Appenteng [1972] 1 Glr 153 Ca

Boakyem v. Ansah [1963] 2 Glr 233 @ 225-256

Kano v. Kala [1977] 2 Glr 267

The plaintiff engaged the services of a letter-writer to prepare a document, exhibit 4, to
cover the terms of the sale. This document was duly prepared by the letter-writer, and
after the contents of the document had been read and interpreted to both parties and their
witnesses who were all illiterates, they thumbprinted the document to signify their
approval of the contents. The document however contained no interpretation clause; (3) a
temporary building permit in respect of the house issued to the plaintiff had been
transferred to the defendant at the plaintiff's request; and (4) since 1958 the second
defendant (the caretaker) had been paying all the rates and taxes in respect of the house.
The trial judge found for the defendants and held that the transaction was a sale and not a
pledge. On appeal against the decision of the High Court, counsel [p.368] for the plaintiff
contended inter alia that the trial judge erred in holding that exhibit 4, was understood by
the plaintiff to be a sale of his house when there was no satisfactory evidence that the
contents were read over to the plaintiff and that he understood the contents thereof.

Held, dismissing the appeal:

1. Cting the rule in Kwamin v. Kufuor (1914) P.C. ’74–’28, 28 the judge observed that:
2. "under normal circumstances the plaintiff would not be presumed to know the
contents of the document and he would not therefore be bound by it. In the instant
case, however, evidence was led by the plaintiff and his witnesses that they
thumbprinted exhibit 4 about four months after the transaction concerning house No.
37/3. Exhibit 4 is dated 9 July 1958 and exhibit 2 is dated 4 July 1958. This means
that exhibit 2 was written by the plaintiff before he executed exhibit 4 and he cannot
461
 now be heard to say that at the time he was executing exhibit 4 he did not know that it
was an agreement of sale. In the peculiar circumstances I find that at the time the
plaintiff executed exhibit 4 he knew it was a document on the sale of his house by
him to the first defendant and he is therefore bound by it."
3. Depending on the circumstances of the case, the evidence needed to rebut the
presumption of the illiterate signatory's ignorance of the contents of his freely
executed document may be direct or circumstantial or a mixture of both.
4. I wholly agree with the learned trial judge that in the present case the above cited
surrounding circumstances were of great probative value and they sufficed to rebut
the plaintiff's presumed ignorance of exhibit 4. Indeed his conduct both before and
after the date of that document clearly belied and rebutted the presumption of
ignorance.
5. Despite the absence of an interpretation clause on the face of the document of sale in
the present case, there was nevertheless evidence that the plaintiff well knew of the
fact of the prior sale of his house to the first defendant before affixing his thumbprint
to exhibit 4, the document spelling out the salient details of the house purchase
agreement.
6. Furthermore, the plaintiff's own letter to the city engineer informing the latter of the
accomplished sale of his house antedated exhibit 4. These and other surrounding
circumstances were of great probative value and they sufficed to rebut the plaintiff’s
presumed ignorance of exhibit 4. The conduct of the plaintiff both before and after
the date of that document clearly belied and rebutted the presumption of ignorance,
and in the circumstances, the plaintiff was bound by the contents of the agreement of
sale. Dicta of Lord Kinnear in Kwamin v. Kufuor (1914) P.C

Nartey v Mechanical Lloyd [1987-88] 2 Glr 314 SC

Zabrama v. Segbedze [1991] 2 GLR 221 CA

The plaintiff’s claim as indorsed on the writ of summons is for "the redemption of his
house No. A/76, situate lying and being at Bawdua." . After nine years stay in Niger, he
returned and approached the defendant with a view to redeeming his property but after
dilly-dallying for a while, the defendant claimed the house was sold to him for ¢200. At
the trial, the plaintiff claimed the document executed by him and relied upon by the
defendant was never read and explained to him before he made his mark. In support of his
case, the plaintiff called one Dandekwei Zabrama who accompanied him to the letter-
writer and was one of the attesting witnesses. This witness supported the plaintiff's claim
that the document was not read over and interpreted to them.
Held:
1. It is trite learning that where a party's evidence is inconsistent with his pleaded case
while that of his opponent is consistent with his pleadings, the opponent’s case is
preferable to the one who departs from his pleadings. The principle was reiterated by
this court in the case of Appiah v. Takyi where it was held that if there was a departure
from pleadings at a trial by one party whereas the other's evidence accorded with his
pleadings, the latter's case was as a rule preferable.

462
2. An appellate court must be very cautious or wary in interfering with a trial court's
assessment of the credibility of a witness unless it has very good reasons for so doing.
In the case of Boahene v. Ofei Ollennu J. (as he then was) said: “. . . it cannot be over-
emphasized that the question of credibility of witnesses is one primarily and principally
for the trial-Court, who are privileged to see the witnesses, hear them giving their
evidence, and watch their demeanour. It is not open to an Appeal Court except for
very good reasons, which must appear in their judgment, to say they believe a witness
whom the trial-Court disbelieved, and disbelieve a witness whom the trial-Court
believed.”
3. I think our courts have always recognised the need that in the orderly conduct of
human affairs touching on contractual rights and responsibilities, it is of the utmost
importance that men should be kept to their bargains when properly and fairly entered
into.
4. The rationale is that much confusion and uncertainty would result in the field of
contract if a party to a contract were allowed to disclaim his signature simply by
asserting he did not understand that which he had signed.
5. In the case of Kwamin v. Kufour, Lord Kinnear reading the advice of the Privy
Council said: “ . . . when a person of full age signs a contract in his own language his
own signature raises a presumption of liability so strong that it requires very distinct
and explicit averments indeed in order to subvert it.”
6. It is the ability to read and write the language in which the document is written which
to me is relevant and not whether the fellow can be classified as semiliterate or demi-
semi-literate. The evidence is that the testator cannot read and write English. He is to
me an illiterate within the context of the law."
7. I will offer the same definition under Cap. 262. This definition should make it possible
for even a professor emeritus in the English language from Oxford to seek protection
under the law if he should come to this country and sign a contract written in Dagbani.
8. I will therefore re-state the principle in Kwamin v. Kuffuor to be: that when a person of
full contracting capacity signs a document in a language he can read and write, his own
signature raises against him a presumption of liability so strong that it requires very
distinct and explicit averments in order to subvert the document.
9. To every rule, they say, there is an exception. So the general proposition I have just
stated implies the counter-proposition that where a person of full contracting capacity
signs a document written in a language he can neither read nor write, or cannot
understand, it is imperative on the proponent of the document to prove that it was
clearly read and explained to the person against whom the document has been cited.
10.This situation was also recognised long ago in Kwamin v. Kuffuor, Lord Kinnear
continued his statement of the law thus: “ . . . there is no presumption that a native of
Ashanti, who does not understand English, and cannot read or write, has appreciated
the meaning and effect of an English legal instrument, because he is alleged to have set
his mark to it by way of signature. That raises a question of fact, to be decided like
other such questions upon evidence.”
11.The rationale is that the possibilities of misunderstanding are so obvious. It therefore
behoves the person relying on the document, and who alleges the illiterate person's
intelligent consent to a contract expressed in a language he can neither read nor write,
to prove that the document was clearly explained to him and he appreciated same.
463
12.I think the principle is that where an illiterate executes a document which compromises
his interest and this document is being cited against him by a party to it or his privy,
there is no presumption in favour of the proponent of the document, and against the
illiterate person, that the latter appreciated and had an intelligent knowledge of the
contents of the document.
13.The party seeking to rely on the document must lead evidence in proof that the
document was actually read and interpreted to the illiterate who understood
before signing same.
14.What then is the standard of proof on a party relying on a document to which an
illiterate is a party? Does the presence of a declaration on the document that it had been
read and interpreted to him and that he appeared to have understood before signing
same satisfy this requirement of proof or there is need for some corroborative evidence
outside the document?
15.It would be observed that in Kwamin v. Kufuor and in Waya v. Byrouthy in which the
principle in Kwamin v. Kufuor was applied, the illiterate person affected in each case
was actually a party to the contract written in the English language. In this case the
illiterate persons concerned . . . were not parties to the deed; they were attesting
witnesses only. The evidential requirements necessary therefore to affect them with an
intelligent knowledge of the precise and relevant contents of the deed are far greater
than those enunciated in Kwamin v. Kufuor."
16.The presumption, the court held, is rather the other way round, and a heavier onus rests
upon any person claiming that an illiterate who has attested to a document is aware of
the contents of such document to prove it. The standard of proof required, I agree, is
proper since the risks of an attesting witness not concerning himself with the actual
contents of the document is higher.

Re Kodie Stool; Adowaa v. Osei [1998-99] SCGLR 23

The judicial committee of the Kumasi traditional council rejected evidence tendered by
the plaintiff , signed by the illiterate members of the defendant family, which had made
declarations corrobative of the plaintiff’s evidence that they were the owners of the Kodie
stool. The Ashanti Reg House of Chiefs also rejected the evidence on grounds that being
documenst signed by illiterates, there was no jurat clause that their authors had understood
their contents. Before thumprinting them, contrary to s4 of the illiterates Protection
Ordinance, Cap 262 (1951 Rev). On appeal
Held per C Hayfron-Benjamin
1. The provisions of s4 of the Illiterates’ Protection Ordinance, Cap 262 are
mandatory, and
2. the matters required to be complied with must appear on the face of the letter
or document.
3. In Wiafe v Kom [1973] 1GLR 240, Osei-Hwere said:
4. Section 4 of the Illiterates' Protection Ordinance, Cap. 262 (1951 Rev.). lays
down the conditions to be fulfilled by persons writing letters (and, perhaps, other
documents) for illiterates. It is provided in section 4 (1) that:
5. the writer should clearly and correctly read over and explain such letter or
document or cause the same to be read over and explained to the illiterate person.
464
6. It is purely a matter of evidence, whether there be an attestation clause in the
document or not, whether these conditions have been fulfilled.
7. The presumption of the document speaking for itself is inapplicable where an
illiterate person has been a party to it.
8. He who assumes the evidentiary burden of establishing these conditions
as laid down in section 4 (1) of Cap. 262 was settled in the case of Waya v.
Byrouthy (1958) 3 W.A.L.R. 413,
9. where it was laid down that where an illiterate executed a document, any
other party to the document who relies upon it must prove that it was read over and,
10. if necessary, interpreted to the illiterate.
11. It became necessary, therefore, for the plaintiff to have called the author of
exhibit A to show that he complied with the provisions of section
12. Counsel confuses form with content. Cap 262 enjoins the writer on behalf of
an illiterate person to comply with the formal requirements on the face of the letter or
document.
13. Thus a person who receives or comes across such letter or document must on
the face of the letter or document appreciate that the provisions of the Ordinace have
been complied with.
14. It is only when the statutory requirements of form have been satisfied that a
court or tribunal may examine the contents thereof. A law for the protection of
illiterates must be strictly compied with lest, in their absence oral evidence is admitted
in proof of due compliance.

Republic v. High Court Kumasi; Ex Parte Atumfuwaa [2000] SC GLR 72.

An affidavit is of course as written document signed by a deponent and sworn to by him
before a Commissioner of Oaths or some other person duly authorized by Statute to
exercise such function. In the instant application the document was thumb printed but it
was clearly unsworn. I think the essential characteristic of an affidavit is that it is sworn.
Held:
1. It is trite learning that a sworn affidavit may be corrected or amended as I
have already premised. But an unsworn document cannot be amended or corrected as if
it were an affidavit. Nor can Respondents fault the Applicant on this ground.
2. The principle is clearly laid down that in Civil matters the Plaintiff or
Applicant must lose where no evidence is led by either party. Fir it is the Plaintiff or
Applicant who is seeking relief from the Court or Tribunal.
3. The lack of a jurat on an otherwise sworn affidavit will not avail an applicant
whose application is not supported by an affidavit as required by law. What does
section 4 of Cap. 262 say? It states:
4. "4. Every person writing a letter or other document for or at the request of an
illiterate person, whether gratuitously or for a reward, shall—
5. (1) Clearly and correctly read over and explain such letter or document or
cause the same to be read over and explained to the illiterate person;
6. (2) Cause the illiterate person to write his signature or make his mark at the
foot of the letter or other document or to touch the pen with which the mark is made at
the foot of the letter or other document;
465
7. 3) Clearly write his full name and address on the letter or other document as
writer thereof; and
8. (4) State on the letter or other document the nature and amount of the reward,
if any, charged or taken or to be charged or taken by him for writing the said letter or
other document, and shall give a receipt for the same and keep a counterfoil thereof to
be produced at the request of any of the officers named in section 6”.
9. On this statutory provision, Justice Hayfron Benjamin said,
10. “Cap. 262 enjoins the writer on behalf of an illiterate person to comply with
the formal requirements on the face of the letter or document. Thus a person who
receives or comes across such letter or document must on the face of letter or
document appreciate that the provisions of the Ordinance have been complied with. It
is only when the statutory requirements of form have been satisfied that a court or
Tribunal may examine the contents thereof. In my respectful opinion a law for the
protection of an illiterate must be strictly complied with unless, in their absence, oral
evidence is admitted in proof of due compliance. Whether or not there has been
substantial compliance with the ordinance must be dependent upon the view which the
Judge takes of the relevant evidence after examining the letter or document”.
11. In BAIDEN v. SOLOMON (1963) 1 GLR 488 S.C, to a contention that
counsel for the defendant had no authority to concede the issue of negligence without
the defendant's instructions to that effect, Crabbe J.S.C. as he was, Ollennu J.S.C. and
Akufo-Addo J.S.C. as he then was, concurring held at page 493 as follows:
12. “A counsel instructed to appear ought to have full control over the case and
conduct it throughout to the best of his ability.”
13. “The duty of counsel”, said Lord Esher M.R. in Matthews v. Munster,
14. “is to advise his client out of court and to act for him in court, and until his
authority is withdrawn, he has, with regard to all matters that properly relate to the
conduct of the case, unlimited power to do that which is best for his client” Continuing
further down he said:
15. “It seems to me that one of the limits on this general authority of counsel is
that he had no power to bind the client on matters collateral to the issues in the suit,
unless the client expressly assents. See Swinten v. Lord Chelmsford, per Pollock C. B.”
16. This statement of the law has enjoyed sustained application up to date. See In
Re Arthur [Deceased], Abakah V. Attah-Hagan (1972) 1 GLR 435 C.A. at 441 per
Azu Crabbe J.S.C. (as he was), Gwira V. State Insurance Corporation [1984-86] 1
GLR 132 C.A. and Pomaa V. Fosuhene [1987-88] 1 GLR 244 S.C.

466
It is important to note here that whether or not a person is literate or illiterate for the
purposes of this rule, must be determined in relation to the language in which the
document is prepared.
Zabrama V. Segbegzi [SUPRA] per Kpegah J.

The old presumption of non-knowledge by an illiterate of the contents of documents

bearing his signature or mark is now also largely reflected in a number of statutory
regulations such as the Illiterates Protection Ordinance (Cap 262) (1951 Rev) Section 4 (in
respect of letters or other documents generally; and under the new high court rules in
respect of affidavits by illiterates and blind persons (Order 20 r 6 CI 47); and Order 3 r 4
of the Probate And Administration Rules Li 1515 (applies only to the District courts).

CAP 262 section 4 enjoins any person writing a letter or other document for an illiterate to
explain the document to the illiterate before he executes it by marking his signature or
touching the pad to make his mark. The writer also has to write his full name and address
on the document. This is often described as a jurat.
Section 9 of CAP 262 however excludes documents made for an illiterate by a salaried
clerk in the course of his business or by or at the direction of any person admitted to
practice and practicing as a barrister or solicitor.

Owusu v. Kuma [1984-86] 2 Glr 29 CA

In June 1971 the applicant, an illiterate, issued out of the District Magistrate Court, Obuasi
a writ in which he sought against the respondents for, inter alia, declaration of title to a
piece of undescribed land. The respondents counterclaimed against the applicant and
sought identical reliefs. The land in dispute formed part of the land in Ataasi village.
counsel for both parties informed the court of the parties' intention to settle. On 22
January 1981 a settlement was reached, signed jointly by counsel and filed in court. The
settlement covered part of the Ataasi lands not claimed by the applicant on his writ.
Subsequently, the applicant brought the instant application to have that consent judgment
set aside on the grounds, inter alia, that (1) the terms of the settlement which were in
English were not fully interpreted to him; (2) the terms included collateral matters not
dealt with in the original judgment; and (3) the consent judgment ought to be vacated by
the Court of Appeal relying on its inherent jurisdiction because its true effect was to allow
the appeal contrary to the rules of practice of the court.
Held, dismissing the application:
1. the main object of the Illiterates Protection Ordinance, Cap. 262 (1951 Rev.)
was to protect illiterates for whom documents were made. Section 4 of Cap. 262
obliged every person writing a letter or document for an illiterate to read or cause it to
be read over and explained to the illiterate and also ensure that the illiterate thumb-
printed or made his mark on the letter or document.
2. But the law expressly excluded in section 9 of the Ordinance documents
made for illiterates by lawyers and the policy reason for that must be that lawyers
who were generally men of standing and were the parties' own chosen fiduciaries
were unlikely to make anything but genuine documents to reflect their clients true

467
 wishes. In the instant case, there was inherently credible evidence that the terms of
the settlement were read and interpreted to the applicant by his lawyer.
3. Had he also caused the former to thumb-print the settlement it would have
been an act of prudence on his part but not a legal requirement.
4. The agreement between counsel for both parties and filed in court as the
terms of the settlement were legally binding on the applicant even if, as he alleged, its
full terms were not read and explained to him.

Section 7 of CAP 262 also sets out penalties for failure to comply with the provisions of
section 4.

On the critical issue of whether or not a document signed by an illiterate in contravention

or without full compliance with the provision of section 4 of CAP 262 is binding, the
dominant position of our courts is that the illiterate person would be bound in such
circumstances only if it is established that the contents were read over and explained to
him and that he had knowledge of and understood the same not withstanding that section 4
was not complied with.

Zambrama v Segbegdzi Per Kpegah Ja

(as he then was) who noted at page 236 that the presence or otherwise of a jurat was only
one of the factors to be taken into account in determining whether or not the document in
question was understood by the illiterate. The presence of the interpretive clause or jurat
was therefore not a sine qua non.

Nartey v. Mechanical Lloyd [Supra].

However a recent decision of the SC in Re Kodie Stool; Adowaa v. Osei [supra] appears
to have thrown some doubts of the old dominant position. In this case, the majority of the
court appeared to have held that the provision of section 4 of CAP 262 were not only
mandatory, but also the matters required to be complied with must have appeared on the
face of the letter or the document. (see particulary Hayfron-Benjamin @ 59). There
however appears to be some disagreement as to what the majority of the SC actually
decided on the issue in the KODIE CASE.
This disagreement subsequently divided the court in the subsequent case of:

Republic V. High Court Kumasi; Ex Parte Atumfuwaa.

468
Statutes
Cap 262, ss 4, 7 and 9
Section 7—Penalties.
(1) Every person who shall act in contravention of any of the provisions of this Ordinance,
shall be liable for a first offence to a fine not exceeding five pounds or to imprisonment
not exceeding one calendar month with or without hard labour, and for any subsequent
offence to a fine not exceeding ten pounds or to imprisonment not exceeding three
calendar months with or without hard labour.
Forfeiture of licence.
(2) In addition to any penalty aforesaid, a licensee contravening any of the provisions of
this Ordinance shall be liable to forfeit his licence.

Wills Act, Act 360 section 2 (6).

(6) Where the testator is blind or illiterate, a competent person shall carefully read over
and explain to him the contents of the will before it is executed, and shall declare in
writing upon the will that he had so read over and explained its contents to the testator and
that the testator appeared perfectly to understand it before it was executed.

LI 1515 Order 3 r 4 (this is to the effect that a probate shall not be granted of a will by a
court unless the will was read to the illiterate testator). That the jurat appears on the
surface though that is preferable. In this case not mandatory. The provision clearly
indicate that either a formal jurat or certificate or in its absence evidence to indicate
knowledge of the content by the blind or illiterate will suffice POKU V POKU High Court
Kumasi -

CI 47 Order 20 r 6. Form of affidavit

(6) The jurat shall state the full address of the place where the affidavit was sworn, the
date when it was sworn and the name and title of the person before whom it was sworn

CI 47 Order 66 r 19: Blind or illiterate testator has the Same wording or effect as
under L.I. 1515

19. Where the testator was blind or illiterate, the Court shall not grant probate of the will
or administration with will annexed unless the Court is first satisfied, by proof or by what
appears on the face of the will, that the will was read over to the deceased before its
execution or that the deceased had at that time knowledge of its contents. In other words a
jurat is not mandatory, it is sufficient if there is evidence of knowledge.

Tuesday, May 09, 2006

With regard to Act 360 section 2 (6), the question is since the requirement here is in
mandatory terms, will non-observance of this requirement invalidate the will even though
there is evidence that the testator has understood the will?
469
STATUTES

Presumptions operate even more prominently in the construction of statutes. And as

previously noted, these presumptions are in practice also often categorized into two
groups: (a) presumptions about how legislation is made (b) presumptions that embody or
reflect basic norms values and principles etc which the courts deem important and which
the legislature is deemed to have been aware of and taken into account when enacting
legislation.

470
Again as previously noted, these presumptions applicable in relation to statutes do not also
form a tidy list. The long list will include presumptions such as the ff:
1. Presumption of perfect knowledge and linguistic competence of the legislature
2. Presumption of consistent and coherent expression
3. Presumption that the legislature does not make mistakes
4. Presumption of conformity or compliance with constitutional law and values
5. Presumption against violation of international law (or presumption of compliance
with international law).
6. Presumption against creating new jurisdiction or enlargening existing jurisdiction of
the courts.
7. Presumption against ousting existing jurisdiction of the courts (this is no longer a
presumption in Ghana. In Ghana now, all presumptions have their basis in the
constitution e.g. The transitional provisions of the 1992 constitution).
8. Presumption against extra-territorial application of legislation
9. Presumption against retroactive or retrospective legislation
10.Presumption in favour of individual liberty
11.Presumption against interfering with vested rights (in Ghana this presumption has
been given some statutory lifting in Section 8 Of Ca 4).
12.Presumption requiring mens rea in criminal cases
13.Presumption against surplusage etc.
14.Presumption that evasion of an Act is not to be allowed.

Presumption of Perfection
The courts presume that the legislature is accurate and well informed and drafts
legislation in a straightforward economic style using consistent and coherent expressions.
Further the courts presume that the legislature is perfect and does not make mistakes,
avoids tautology, and also avoids internal inconsistency in legal rules.

These presumptions together spell out the presumption of perfection.

A. Presumption that the Legislature does not make mistakes: the presumption here is
that the legislature does not make mistakes in drafting legislation. It is the most important
aspect of presumption against mistakes. This presumption is today often justified in terms
of the efforts invested in preparation of modern legislation, particularly the fact that the
legislature is guided and assisted by drafting experts and professionals. It has therefore
been held to be wrong for any court to proceed on the assumption that the legislature has
made a mistake.

Commissioner For Special purpose of Income Tax v. Pemsel [1891] AC

per Lord Halsbury who noted “…I do not think it is competent for any court to proceed
upon the assumption that the legislature has made a mistake. Whatever the real fact may
be, I think the court is bound to proceed on the assumption that the legislature is an ideal
person that does not make mistakes”.

471
In practice, this idealized standards are impossible to maintain and mistakes sometimes
occur.

Sasu v. Amua-Sekyi [1989-90] 1 GLR 297

Republic V. High Court Accra; Ex Parte Adjei

The point of this presumption is then essentially that the court will not likely reach a
conclusion that the legislature has made a mistake unless the evidence to that effect is
compelling having regard to the context and other relevant circumstances. The Pr then
puts the burden of establishing the mistake on the party against oho the pr works ie the
party against whom the pr. Would work against all evidence to the contrary.

472
GTP v. Ankujeah
35.Assuming there was a clear omission on the part of the legislature, and the law did not
make provision for those who suffer total loss of employment, I nevertheless do not
think it was right for the learned trial judge to supply all such necessary words in order
to bring them into its ambit. What the learned trial judge did in my view, amounted to a
clear usurpation of legislative power.
36.The legal position is that at common law, courts are empowered to “alter, or effect an
emendation of words in a statute by adding to these, even to ignore the express words
altogether”
37.But this power is very limited in scope. So, as pointed out by Buta, the purpose is to
avoid “unintelligibility unreasonableness or absurdity.”
38.Cross thinks likewise in his book “Interpretation of Statutes” 3rd Edn page 93 he deals
with the subject under the heading: “Reading words in an out of a statute”: He also
states:-
The judge may read words which he considers necessarily implied by words which
are already in the statute and he has a limited power to add to, alter or ignore
statutory words in order to prevent a provision from being unintelligible,
unworkable, absurd or totally unreasonable, with the rest of the statute.
39.Words may be necessarily implied by other words when their express statement merely
clarifies a secondary meaning of these other words.
40.Further at page 99 the learned author delimits the power as such:
The power to add to, alter or ignore statutory words is an extremely limited one.
Generally speaking it can only be exercised where there has been a demonstrable
mistake on the part of the drafter or where the consequence of applying the words in
their ordinary or discernible secondary meaning would be utterly unreasonable.

2. Presumptions Against Tautology

(i.e. THE LEGISLATURE DOES NOT SPEAK IN VAIN/SURPLUSAGE)
Here it is presumed that the legislature avoids superfluous or meaningless words and that
it does not pointlessly repeat itself or speak in vain.
Every word in a statute is therefore presumed to make sense and to have a meaning and
specific role to play in advancing the legislative purpose and must thus not be disregarded.

Hill V. William Hill [1949] AC 530 @ 546 Per Viscount Simons

“although a parliament ry enactment (like parliamentary eloquence) is capable of saying
the Same thing 2x over without adding anything to what has already been said once, this
repetition in the Case of an Act of parliament is not to be assumed when the legislature
enacts a particular phase in a statute the pr. Is that it is saying something Which has not
been said immediately before. The rule that a meaning should if possible be given to
everybody in a statute implies that unless there is good reason to the contrary, the words
add something which would not be there it the words wee left out

473
This presumption can be invoked to inter alia reveal ambiguity in legislation to resolve
ambiguity and applies to individual words as well as to larger units of legislation e.g.
paragraphs, sections etc.

AG’S REF [NO 1] OF 1975 [1975] QB 773@ 778.

It was held in this case that in section 8 of the Accessories and Abettors Act, 1861, the
words “aid, abet, counsel, or procure” must each be taken to have a distinct meaning
since otherwise parliament will be said to be engaging in tautology.

Langungu V Olubadan-In-Council (1947) 12 Waca 233 @ 236

Sasu V. Amuah-Sekyi

474
NMC V. AG [2000] SCGLR 1 @ 22 Per Atuguba Jsc
Article 70(1) provides:
"The President shall, acting in consultation with the Council of State, appoint -
(d) the chairman and other members of —
(iii) the governing bodies of public corporations."
It will be seen that this provision relates to chairmen and other members of the governing
bodies of public corporations generally. On the other hand article 168 is solely and
specially concerned with the appointment of the chairmen and other members of "the
governing bodies of public corporations managing the state-owned media." It is obvious
that the words "managing the state-owned media" which are added to this provision but
which are absent from article 70(1), were not therein inserted for nothing. In Lagunju Vs.
Olubadan-In-Council (1947) 12 W.A.C.A. 233 at 236 the court said:

" …… in the words of Halsburys Laws of England, 2nd Edition, Vol. XXI, pages 501-2:
"It may be presumed: (1) that words are not used in a statute without a meaning and so
effect must be given, if possible, to all the words used, for the legislature is deemed not to
waste its words or say anything in vain". (e.s.)

In practice the presumption can easily be rebutted by coming up with the meaning and
function of the words in question to show that they are meaningless/superfluous.
It can also be rebutted by showing that the tautologous words were added EX
ABUNDANTI CAUTELA or by advancing reasons why in the circumstances the
legislature might have deliberately included the tautologous words or to show that these
words were included purely for elegance.

Mbeah v. Ababio [2000] SCGLR 259@ 266 PER ATUGUBA JSC

NPP V NDC [2000] SCGLR
It is however known that variations in statutory language are sometimes merely for the
sake of elegance. But here the elegance is illusory.

It may also happen in some cases that more sensible meanings can be given to some
words/phrase used by the legislature and in such a case it must be rejected.

Presumption of Coherence (Presumption Against Internal Conflicts)

475
It is presumed that a body of legislation enacted by parliament does not contain
inconsistencies and that its provisions are capable of operating without coming into
conflict with one another.
This presumption is based on the assumption that the provisions of the legislature are
meant to work together as part of a functional whole i.e. the provisions are presumed to fit
together logically to form a rational internally consistent framework each part contributing
something towards accomplishing the intended goal.

JA Mackeigan V. Royal Commission (Marshall Enquiry) [1989] 61 DLR 4TH ED 688

@ 716 per McLachlin J :

“I start from the fundamental principle of construction that provisions of a statute dealing
with the same subject should be read together, where possible, so as to avoid conflict… in
this way the true intention of the legislature is more likely to be ascertained”.

As Driedger observes (@ 216), the presumption of coherence is virtually irrebuttable in

practice since disputes must be definitely resolved buy the courts in one way or the other n
accordance with the law so that contradiction and inconsistency cannot be tolerated and
the courts in practice have often resorted to a number of strategies for doing this.

10th May 2006

It is however to be noted that the courts would not easily find that there is conflict or
internal inconsistency unless there is a compelling need to do so.
Conflict is narrowly defined in this context and the courts will not find that there is
conflict as long as the provisions can stand together and both operate without either
interfering with the other.

Tabernacle Permanent Building Society V. Knight [1892] AC 298 @ 302 HL.

Hence where provisions overlap without conflict the courts will presume that each is
meant to apply unless one is an exhaustive declaration of the applicable law. Thus where
two provisions are applicable to the same subject-matter and are not in conflict, the courts
will often apply them both in accordance with their term.

This presumption is however rebutted by evidence that one of the provisions offers an
exhaustive account of the applicable law. If one provision is exhaustive, the other cannot
apply. R V Williams.
Driedger 177-179.
Normally also where overlapping provisions have different purposes and deal with
different aspects of the matter, the courts will not find that they are in conflict with one
another. Driedger 178-179. Miriam V The Queen.

However, where the provisions cannot both operate without conflict, the courts will resort
to one of a number of conflict avoidance or resolution techniques at their disposal. These
include:
476
(1) Interpretation to avoid conflict
(2) Assert the primacy/ paramountcy of some categories of legislation over others
(3) The implied exceptions rule i.e. generalis specialibus non derogate
(4) The implied repeal rule
(5) The Rule in Wood V Riley

Interpretation To Avoid Conflict

As previously noted, internal contradictions and conflicts in the application of statutory
provisions are a form of absurdity which the court or interpreter is bound to resolve by
interpretation (purposive interpretation in this case) where possibly by resort to either the
secondary meaning rule or the necessarily implied rule. See for example
Lord Wensleydale in GREY V.PEARSON. Barnard VGoreman

Another way in which conflict or repugnance may be avoided in statutory interpretation is

by regarding two conflicting provisions … as dealing with distinct matters or situations.
Maxwell 127
Woregan V Gloucestershire

Re Rycroft’s Settlement [1962] Ch 263 265

In practice the courts also resort to purposive analysis to establish priority in ranking of
provisions i.e. by determining which provision is a leading provision and which is the
subordinate (lead provision and subordinate provision). Here the courts are sometimes
able through purposive analysis to place provisions in a single scheme and to assign them
a ranking of priority based on their role in that scheme. Conflict is thus avoided by
subordinating one provision to another in a way that gives effect to the dominant purpose
of the legislature. And here it is to be noted that under the MOPA, the ranking will
eminently taken into account the respective purpose(s) of the enactments.

Institute Of Patent Agents V. Lockwood [1894] AC 347 AT 360.

Here Lord Heskell noted that where there is a conflict between two sections in the same
Act, one has to resolve them as best as one may; and that one way of doing this is to
determine which is the leading provision and which is the subordinate provision and
which must give way to the other.

477
NPP v. Rawlings [1993-94] 2 GLR 193 @ 212-213. Must Read!
Per Aikins JSC:
1. The language of section 23(1) of the transitional provisions of the Constitution, 1992
is clear and unambiguous. It says: "23.(1) Until Parliament otherwise provides by
law, existing laws regulating the operation of District Assemblies and other local
authorities shall continue to regulate their operations."
2. The subsection stands out without any qualification whatsoever. It is not [p.212]
made subject to any provision of the Constitution, 1992, unlike article 11(6) of the
Constitution, 1992 and section 31(1) and 36(2) of the transitional provisions of the
Constitution, 1992 where we find repeated use in the sections of the expression
3. "with such modifications, adaptations, qualifications and exceptions as may be
necessary to bring it (ie the law) into conformity with the Constitution and "in so far
as it is not inconsistent with the Constitution."
4. These expressions are general provisions as against the specific provision of section
23(1) which appears to have been put in for transitional arrangements, and which, in
my view, did not cease to have effect on the coming into force of the Constitution,
1992.
5. The law with respect to general and particular or specific enactments is trite and is to
the effect that where a particular or specific enactment and a general enactment
appear in the same statute, and the general enactment, taken in its most
comprehensive sense, would override the specific enactment, the specific enactment
must be operative and the general enactment must be taken to affect only the other
parts of the statute to which it may properly apply—see Pretty v Solly (1859)
6. This is an application of the maxim generatia specialibus non derogant.
7. This special provision stands as an exceptional proviso upon the general. It is only
where it appears from a consideration of the general enactment in the light of
prevailing circumstances that Parliament or in the case of a Constitution, its framers,
intended only to establish a rule of universal application, that the special provision
must give way thereto—see R v Glamorganshire Justices (1889) and R v Bridge
(1890). But in the instant case, the situation is different.
8. In view of my thinking above, I do not seem to agree with the learned Acting
Attorney-General that section 23(1) should be read together with section 31(2) of the
transitional provisions of the Constitution, 1992.
9. The language of section 31 is clear and unambiguous. Subsection (1) is the operative
clause, and it clearly states that the existing law shall, as from the coming into force
of the Constitution, 1992 have effect with such modifications, adaptations,
qualifications and exceptions as may be necessary to bring it into conformity with the
Constitution, 1992.
10. Subsection (2) is put in parenthesis for the avoidance of doubt only, and without
prejudice to the general effect of subsection (1) of section 31. Subsection (1)
therefore, in my view, qualifies subsection (2).
11. The learned Acting Attorney-General thinks there is inconsistency [p.213] between
the two subsections and would like subsection (2) to be taken out and read together
with section 23(1) of the transitional provisions of the Constitution, 1992.

478
12. True, it is sometimes said that where there is an inconsistency between two
provisions in the same statute, the latter prevails: see Wood v Riley (1867) but this is
doubtful.
13. It seems the better view is that the courts must determine which is the leading
provision and which is the subordinate provision, and which must give way to the
other: see Institute of Patent Agents v Lockwood [1894], HL.
14. Subsection (2) of section 31 of the transitional provisions of the Constitution, 1992
must under the circumstances give way to subsection (1). I would therefore not agree
that subsection (2) should be singled out and read with section 23(1) of the
transitional provisions of the Constitution, 1992.

479
Paramouncy of Some Forms of Legislation Over Others
[Ranking Based On The Character And Nature Of Legislation]
A key conflict resolution technique sometimes employed by the courts involves the
ranking of legislation based on their character and nature and paramouncy within the
particular legal System; and to let the higher ranking legislation prevail over others in
order to avoid conflict.

Under this rule, constitutional provisions will for example prevail over ordinary legislation
to the extent necessary to avoid conflict. See article 1 (2) and 2 (1) of the 1992
Constitution.

NPP V. A-G (31ST DECEMBER CASE).

Likewise although the courts will seek as much as possible to avoid conflicts between
statues and regulations however, where conflict is unavoidable, the statute will prevail.
DRIEDGER 185

Friends Of Oldman River Society V.Canada [Min Of Transport] [1992] 1 Scr 3.

3. Implied Exceptions Rule [Generalia Specialibus Maxim]

Where two provisions are in conflict and one of them specifically deals with the matter in
question while the other is of general application, the conflict maybe avoided by applying
the specific provisions to the exclusion of the general one, i.e. the specific provision
prevails over the general.
BENNION 110

As Bennion notes (at page 810), the maxim only affords a rule of thumb for dealing with
such a situation because the presumption is that the more specific and more detailed a
provision is, the more likely it is to have been fixed to fit the particular circumstances of a
case falling within it.

Kidston V. Empire Marine Insurance Co [1866] Lr 1 Cb 535 @ 546.

Consequently, a key consideration in the application of the maxim is to determine which
provision states the general rule and which is the specific case. Clearly, where one of the
conflicting provisions is specifically addressed to the matter in question, and deals with it
in a more detailed and comprehensive manner, the question is easy to answer.
In less obvious cases however, the courts will determine this by examining the provisions
in question relating to the facts and issues of a particular case.

DRIEDGER P 188 Nartey v.Adade And Others

[this deals with retirement age of judges]

See Later Notes Under Repeals

480
4. Implied Repeals
Where two provisions are in conflict and the conflict cannot be resolved through other
means, Such that the provisions cannot stand together, the ct might hold that the
subsequent provision impliedly repeals the former by implication.

Bourne V. Stanbridge [1965] 1 Wlr 189

Npp v Rawlings [Supra]

This technique of conflict resolution is said to be based on the principle that the legislature
cannot bind itself by ordinary legislation and that where a later enactment contradicts an
earlier one so that the two cannot co-exist in the same statute book, the more recent
expression of the sovereign’s power prevails.

In determining which provision is later, the governing date is the date of the enactment
commencement; and any subsequent re-enactment is irrelevant for this purpose.
DRIEDGER 188
SEE LATER NOTES ON IMPLIED REPEAL

5. The Rule in Wood V Riley Lr3Cp 26 At 37

The same idea is expressed in the rule in Wood v Riley [1867] LR3CD26 which is a
rule of thumb to the effect that when 2 provisions are in in conflict and the conflict
and the conflict can not be resolved through otter means the courts will a a last
resort give effect to the later or last of of the repugnant provision. Ina sense the later
provision is also considered to have repealed the former provision.

It is important to note always that the rule is not only a rule of thumb but also a rule of last
resort

Presumption of Consistent Expression

[Presumption That The Same Word Or Phrase Has The Same Meaning In The Statute]

The legislature is also presumed to use language carefully and consistently so that within a
statute or other legislative instrument it is presumed that the same words have the same
meaning and different words have different meanings.

Another way of understanding this presumption is to say that the legislature avoids
stylistic variations and that once a particular way of expressing a meaning has been
adopted, it is used each time that meaning is intended. Hence it is said that it makes
sense to infer that where a different form of expression is used, a different meaning is
intended.
DRIEDGER 163

481
Illustrations Of The Presumption That Same Words Have Same Meaning

IRC V. KENMARE [1956] CH 483 AT 503

PER LORD ROMER wherein he noted “it is of course an accepted rule of construction
that where the same word appears more than once in a section of the statute it should
receive the same interpretation wherever it occurs…” Nevertheless where a word has
shades of meaning which merge into each other it is I think permissible to vary the shade
according tr each individual context without transgressing the rule to which I have refered
“

Hamilton V. National Coal Board [1960] Ac 633 At 641

Per viscount Simons” It is no doubt desirable that the same meaning should be given to
the same word wherever it is used in a statute though a language experience of statute has
left me with some skepticism on the principle”

Tuffuor v.A-G [1980] Glr 637 Sc

Bilson v.Apaloo [1981] Glr 24 SC

Different Words Have Different Meanings

The corollary of the presumption that the same word is presumed to bear the same
meaning is the presumption that the legislature intends different words or phrases to have
different meanings.

Gibson V. Skibs As Marina And Others [1966] 2 Aer 476 At 478

R V. Barnier [1977] 1 Scr At 673.

This case dealt with the definition of the insanity defence under section 16(1) of the
Canadian Criminal Code which is to the effect that a person is insane only if “he or she is
incapable of appreciating the nature and quality of the act or omission or of knowing that
it is wrong”. In this case the issue was whether the trial judge had erred in instructing the
jury that the words “appreciating” and “knowing” mean the same thing. In resolving this
issue, the court relied on the presumption against tautology to explain the principle that
different words must be taken to mean different things. ESTEY J noted as follows:
“One must of course commence the analysis of statutory provisions by seeking to attribute
meanings to all the words used therein. Here parliament has employed two different words
in the critical portion of the definition, which words in effect have established two tests or
standards in determining the extent of insanity… under the primary standard of
construction to which I have referred, “appreciating” or “knowing” must be different
otherwise the legislature would have preferred one or the other only”.

A-G’S REFERENCE NO 1 OF 1975 [1975] QB 773 AT 778.

482
5/11/2006

Departure From A Fixed Pattern Of Expression

Where the legislature has in the past adopted a fixed pattern of expressing a certain
meaning any departure from that pattern would be presumed to signal that a different
meaning was intended.
Driedger 165

Kirkpatrick V. Mapleridge [1986] 2 Scr 124.

The presumption of consistent expression has also been held to apply not only within
statutes but also across statutes, especially statutes or provisions dealing with the same
subject matter.

Thus it has been held that where words in an enactment have been judicially construed as
having a particular meaning, and the same word was subsequently used in legislation in
pari materia, then there would be the rebuttable presumption that the legislature used the
same words in the subsequent enactment in the same meaning.
BUTA @ 140-141.

Republic V. Terkpebiawe Divisional Council; Ex Parte Korle [1972] 1 Glr 199

The application before the court is for the writ of certiorari directing the respondents,
Tekperbiawe Divisional Council and the Ada Traditional Council to bring up to this court
certain proceedings dated 20 April 1971 for the same to be quashed. The applicant further
prays for an order prohibiting the two respondents from suspending him or declaring him
destooled from his office as a divisional chief.
Held:
1. While conceding that the High Court has no jurisdiction to adjudicate on
matters involving chieftaincy by virtue of sections 52 and 113 of Act 372, can it also
be said that it has no supervisory jurisdiction over the traditional council which is the
competent forum for the adjudication of such matters.
2. My view is that the provisions of these two sections of Act 372 should not be
construed so as to affect the common law powers of the High Court to supervise the
judicial activities of the traditional council and that the High Court can be called upon
to exercise these supervisory powers where the traditional council has acted in excess
of jurisdiction, or without jurisdiction, by the use of certiorari and prohibition:
3. Whenever a person is empowered by an enactment to exercise judicial or
quasi-judicial functions in any matters, his exercise of those functions is within the
scope of certiorari and prohibition at common law; and the enactment entrusting him
with such functions should not be construed as having ousted the common law
supervisory jurisdiction of the High Court, unless the enactment concerned clearly says
so.
4. Statutes are not presumed to make any alteration in the common law,
otherwise than the Act expressly declares. That is to say, in all general matters the law
483
 will presume that the Act did not intend to make any alteration, for if Parliament had
had that design they would have expressed it in the Act.
5. In Rendall v. Blair (1890), C.A., Bowen L.J. said: "Such legislation is
possible; but I think we ought not to assume without the clearest language that
Parliament intended to destroy common law rights of Her Majesty's subjects by placing
them at the mercy of an irresponsible tribunal or irresponsible department of the State."
6. In Re Gilmore's Application [1957]C.A. Denning L.J. stated the position that
"on looking again into the old books I find it very well settled that the remedy by
certiorari is never taken away by any statute except by the most clear and explict
words.”
7. The same view was expressed in the case of Ahenkora v. Ofe (1957) 3
W.A.L.R. 145, C.A. by Granville Sharp J.A. and van Lare Ag.C.J., Adumua-Bossman
J. (as he then was) dissenting on this point.
8. In that case, it was contended, inter alia, that since section 88 of the Courts
Ordinance, Cap. 4 (1951 Rev.), excluded the jurisdiction of the High Court to entertain
either at first instance or on appeal any civil cause or matter instituted for the trial of
election, installation or deposition of a chief, the High Court had no jurisdiction to
entertain certiorari proceedings which touched on such matters.
9. In his judgment Granville Sharp J.A. said “That there is a strong leaning
against construing a statute so as to oust or restrict the jurisdiction of the superior
courts cannot be doubted, …Considering, as I do, the expressions used in section 88, 1
cannot find any language that makes it clear that the intention is that in no
circumstances can the High Court intervene simply because the tribunal whose conduct
is being impugned has been engaged upon an inquiry into a matter falling within the
categories described in the subsections....
10. The presumption against an intention to oust or restrict jurisdiction is, as I
have said, strong, and statutes evincing a tendency to do this must therefore be, and
always have been, strictly construed.
11. In the case of Goldsack v. Shore ([1950] Lord Evershed M.R. said: 'I accept
the submission that the jurisdiction of the King's Courts must not be taken to be
excluded unless there is quite clear language in the act alleged to have that effect'.”
12. Indeed many of the words and the expressions used in those sections of the
subsequent Courts Acts, seem to have been borrowed from the language of section 88
of the Courts Ordinance, Cap. 4, and I do not think that the legislature used those
expressions and words, in sections 52 and 113 of the new Courts Act, 1971 (Act 372),
in a sense different from that given to section 88 of the Courts Ordinance, Cap. 4, by
the Court of Appeal in Ahenkora's case.
13. It is well established that where an Act has received a judicial construction
putting a certain meaning on its words, and the legislature in pari materia uses the same
words, there is a presumption that the legislature used those words intending to express
the meaning which it knew had been put upon the same words before;
14. and unless there is something to rebut that presumption, the Act should be so
construed even if the words were such that they might originally have been construed
otherwise.

Dickson V. Bbc [1979] 2 Aer 112

484
In practice the presumption of consistent expression varies in strength on account of a
number of factors such as the proximity of the words to one another, similarity of the
context how often they occur in the legislation , the extent to which they constitute a
distinct pattern of expression.

It has however been said that the presumption does not necessarily reflect the practice of
legislative drafting today. It is said that modern legislation is lengthy and complicated and
not always carefully edited; and that amendments are often made based on compromises
with little regard to stylistic matters especially consistency of expression.
It is difficult in such circumstances to insist that same words and phrases should always
be given the same meaning.

Hence this presumption is in practice often assigned little weight and is easily rebutted
where it is clear from the context of their use that the legislature clearly intended different
meaning for the same words and vice versa

R V. Allen [1872] Lr 1ccr 367 @ 374

Maddox V. Storer [1963] 1 Qb 451.

There are also several instances of changes in language without an intention to change the
meaning in the statute. Sometimes changes are for stylistic reasons and to avoid the same
word being used over and over again.

Irc v Hinchy [1960] Ac 748 @ 766

A-G V. Bradlaugh [1884] 14 Qbd 667 @ 684

11th May 2007

The Presumption Of Compliance With Constitutional Law And Values –

Almost raised to the level of substantive law. Interpretation must be in compliance with |
aw and values.
(Presumption Against Violation Of Constitutional Law And Values)

The constitution provides the basic legal framework of the State and all enactments are
consequently taken to operate within its confines. Hence the courts have often held that
unless the contrary intention appears, an enactment by implication imports any principles
or rule of constitutional law which prevails in the territory to which the constitution
extends.
BENNION 732.

Put differently, the courts always presume that legislation is always enacted in compliance
with the limits imposed by constitutional law and norms.
485
In practice there are two aspects of this presumption namely:
1. Preference for constitutionally validating interpretations (Constitutionally
Valid interpretations)
2. Preference for interpretations that respect constitutional value.
3. Interpretation that respects Constitutional Value

1. Preference for Constitutionally Valid Interpretations

One important aspect of this presumption is what is called the preference of the court for
constitutionally validating interpretation of legislation. Hence where an enactment is open
to two interpretations one of which conforms to constitutional provisions while the other
renders the enactment constitutionally invalid, the courts will prefer the interpretation that
accords with constitutional provisions and thereby avoids invalidity. The preference for
constitutionally validating interpretation is evidently based on the duty of the courts to
uphold the constitution as well as on the presumption that the legislature intends to respect
the constitutional limits of its jurisdiction when it enacts legislation.
DRIEDGER 322-323

Mckay v. The Queen [1965] Scr 798 @ 803 And 804.

In Ghana, the preference for a constitutionally valid interpretation is in some sense

compelled by the provisions of article 1 (2) of the constitution which provides that any
law contrary to or inconsistent (NPP v AG) with the constitution which is the supreme law
of the land is to the extent of the inconsistency void. The Implication here is that what
used to be a rebuttable presumption is now an irrebutable pres. of substantive law.
The preference for a constitutionally valid interpretation is in some sense then a
constitutional requirement in Ghana. Note if the presumption is per the constitution then it
is Irrebutable .

486
2. Interpretations That Respect Constitutional Values
Another important implication of this presumption is the preference of the courts for
interpretations which respect constitutional values e.g. those enshrined in the directive
principles of state policy etc even if they are not justiciable.
The idea here is that constitutional values should be relied on in interpretation because
they play an important role in the legal and socio-political culture of the country and
constitute an important part of the context in which legislation is made and applied.

Given their importance, the legislature is presumed to respect these values and the courts,
as guardians of the constitution, are duty bound to promote these values and principles and
rely on them in interpretation in appropriate cases even where the constitutional validity of
the legislation has not been challenged.

Thus these values could be taken into account in interpreting legislation which are
constitutionally valid.
In effect where the court is faced with 2 or more interpretations one of which promotes
constitutional values and the others not, the preference of the court should be for the
interpretation that promotes Const itntuney values. Arguably Art. I (2) in referring to
enactments etc “ in consistent” with the provision of the constitution could be held to
support this view.
R V. Zundel [1992] 2 Scr 731 @ 771
Further, the courts acting pursuant to the presumption of compliance with constitutional
values often read down the potential scope of legislation to exclude applications that are
grammatically possible but constitutionally impermissible.

Finally, it is to be noted that the presumption in favour of interpretations that respect

constitutional values (unlike the presumption in favour of constitutionally valid
interpretations), is rebuttable especially in respect of values which are enshrined in the
constitution but are clearly not justiciable as in the case of certain provisions of the
Directive principles of state policy (chapter 6 of the constitution).

Presumption Of Compliance With International Law

(Presumption Against Violation Of International Law)
This is a presumption to the effect that parliament intends to respect the values and
principles enshrined in international law and does not assert or assume jurisdiction which
goes beyond the limits established by international law or the common consent of nations.
Hence it has been said that unless there exist a clearly expressed intention to the contrary,
a statute is to be prima facie presumed not to have been framed inconsistently with the
principles of international law or the comity of nations.
HALSBURY 44 PARA 908; ODGERS Construction of Deeds and Statutes5th Edition
413.

Under this general presumption, it has been held that an Act of Parliament will not be
construed so as to violate or bring it into conflict with a rule of international law.
487
Bloxham V. Favre [1883] 8 Pb 101 @ 104 Note Fink V codelho 1999/2000
GLR

Salomon V. Custom And Excise Commissioners [1967]2 Qb 116 @ 143-144 Ca.

It has been further held that the necessary consequence of this presumption is that in
choosing among possible interpretations, the courts in Ghana would avoid interpretations
that would put Ghana in breach of any rule of international law or its international treaty
obligations.
The principles values etc of international law are therefore considered part of the legal
context in which legislation is enacted and read.
Hence interpretations that reflect these principles and values are to be respected.

Furthermore it has been held that where an international agreement is incorporated in the
domestic statute, the statute will so far as possible, be construed with the view to attaining
uniformity in the different jurisdictions in which the agreement is operating.

Salomon V. Commissioner for Custom And Excise

Been V Breen

In addition, it has been held that where possible, an Act should not be construed as
applying to foreigners in respect of acts done by them outside the dominion of the
sovereign power enacting the Act. This rule is based on international law by which one
sovereign power is bound to respect the subjects and rights of all other sovereign powers
outside his own territory.

R V. Jameson [1896] 2 Qb 425.

Finally, it is to be noted that the presumption of compliance with international law is

rebuttable. Although the principles protected by this presumption are important, the
Ghanaian legislature is not bound by international law in all situations and in a given case,
may choose to disregard it in pursuit of some other value or goal.
Hence in the event of clear conflict between domestic law and international law, domestic
law prevails.
Thus, where the words of an enactment are, after taking account of all relevant aspects of
the context etc, plain and unambiguous, its provisions would be followed even if they are
contrary to international law.

Chung Chi Cheung V. The King [1939] Ac 160 @ 167-178.

Daniels V White and the Queen (1958) SCR 517

488
Presumption Against Unclear Changes In Existing Law
It is also to be presumed that the legislature does not intend to make any changes in
existing law (i.e. both the existing common law and statutory law) beyond that which is
expressly stated or follows by necessary implication from the language of the enactment.
Maxwell 116; Halsbury 44 Para 904 wherein it is noted:
“except in so far as they are clearly and unambiguously intended to do so, statutes should
not be construed so as to make any alteration in the common law or to change any
established principle of law or to alter completely the character of the principle of law
contained in statutes which they merely amended”.

National Assistance Board V. Wilkinson [1952] 2 Qb 648

@ 661 per Lord Devlin who noted: “a statute is not to be taken as effecting a fundamental
alteration in the general law unless it uses words which point unmistakably to that
conclusion”.

In practice, the principal rationalization of this presumption is the principle of legal policy
that changes in law, since they affect everybody are to be carefully worked out that the
law should be altered deliberately rather than casually; and further that parliament should
change either the common law or statute law by measured and considered provisions
rather than by a sidewind.
BENNION 561.

The presumption in effect permits the courts to insist on precise and explicit directives
from the legislature before accepting that there has been any change in the existing law-
that way the existing law is shielded from inadvertent encroachment which might result in
instability of the law and therefore undermine the rule of law.
DRIEDGER summarises the arguments in support of this presumption @ 369 of his COS
as follows:
“It [the presumption] is also invoked in response to rule of law concerns. The stability of
law is enhanced by rejecting vague and inadvertent change whiles certainty and fair notice
are secured by requiring legislation to be clear and explicit about proposed changes”.

As already noted, this presumption applies to changes in the common law as well as
changes in statute law. However, as Cross rightly notes @ 167-168 of his STATUTORY
INTERPRETATION, this presumption originally goes back to the days when a greater
proportion of law was the common law and statutes were for the most part thought of as
minor emendations (operations) of the law.
The presumption then developed largely as part of the early struggles of the common law
to establish itself against claims of the King and judges to shield the common law from
statutory encroachment.

The presumption is consequently relatively weaker today given the proliferation of

statutes today, which has meant that the whole area previously regulated by the common
law is now the province of statute law.

489
And as Cross further notes @ 168, the presumption sensibly stated, could still be of great
assistance today in resolving or determining ambiguities etc in the law.

In practice, this presumption is manifested or given birth to a number of special

applications which importantly include:
 The presumption against ousting existing jurisdiction of the court,
 Presumption against creating or extending existing jurisdiction of the court,
 Presumption against interference with vested rights etc etc.

Presumption Against Unclear Changes In The Common Law

It is important to be plain that by common law here, we do not mean just English common
law, but the common law as applied in Ghana, defined by virtue of article 11(2) of the
1992 Constitution. Buta 141

The essence of the presumption then is that parliament does not intend to effect an
alteration in the common law as understood under Ghanaian law unless such a change is
stated in the enactment in question either expressly or by necessary implication.

Hence in a number of cases the courts have held that there is no clear indication of an
intention to change the common law or at least in certain respects.

Leache v. R [1912] Ac 305

[BUTA 146]

R V. Owens [1859] 28 Ljqb 316

[BUTA 146]

Ahenkorah V. Ofe [1957] 3 WALR 145 CA

Buta 145.
R V Tekpebiawe

Ohene Mensah V. Subin Chambers Ltd [1982-83] GLR 601

[BUTA 145, 156] JUDGMENT OF TWUMASI J.
In pursuance of the Provisional National Defence Council (Establishment) Proclamation,
1981, a law was promulgated entitled Forfeiture of Assets and Transfer of Shares and
Other Proprietary Interests (Subin Timbers Co., Ltd. and Central Logging and Sawmills
Limited), 1982 (P.N.D.C.L. 31). Section 1 of the law provides that "All assets and bank
accounts of Subin Timbers Company Limited and Central Logging & Sawmills Limited
are hereby vested in the State free from all encumbrances whatsoever." And section 7
provides that:
"Subin Timbers Company Limited and Central Logging & Sawmills Limited shall
hereafter be amalgamated and be known as Western Timbers Limited until the said name
is further altered in accordance with the Companies Code, 1963 (Act 179)."

490
The present proceedings before this court are to ascertain the amplitude of the said
P.N.D.C.L. 31 and thereby determine whether this piece of legislation does in anyway
affect a legal action for damages for negligence in a road traffic accident which had been
filed against Subin Timbers Ltd. prior to the promulgation of the law.
Held:
1. There is nothing in P.N.D.C.L. 31 which suggests, even faintly, that the Provisional
National Defence Council intended to change the existing law that a company being a
body corporate with legal personality can be sued. There has always been a
presumption against the changing of existing law in the absence of clear and
unambiguous provision to that effect in a statute. In Arthur v. Bokenham (1708),
Trevor C.J. said:
2. "The general rule in exposition of all Acts of Parliament is this, that in all doubtful
matters, and where the expression is in general terms, they are to receive such a
construction as may be agreeable to the rules of common law, in cases of that nature;
for statutes are not presumed to make any alteration in the common law, further or
otherwise than the Act does expressly declare."
3. And the headnote of the case of Minet v. Leman (1855)reads:
4. "The general words of a statute are not to be so construed as to alter the previous policy
of the law, unless no sense or meaning can be put upon those words consistently with
the intention of preserving the existing policy untouched."
5. For other authorities: see River Wear Commissioners v. Adamson (1877) and
National Assistance Board v. Wilkinson [p.606] [1952] where Lord Goddard C.J.
quotes with approval the headnote in Minet v. Leman .
6. In my judgment, therefore, P.N.D.C.L. 31 cannot be construed so as to alter the
existing common law in Ghana that a person can be sued in tort. The view held by
counsel for the defendants which seems to suggest that P.N.D.C.L. 31 adversely affects
this existing common law is clearly unacceptable.
7. But although it is a State enterprise, the Western Timbers Ltd. is a limited liability
company. Section 1 (1) of Act 51 made the fiat of the Attorney-General a pre-condition
for [p.607] the institution of any action against the Republic of Ghana.
8. This prevailed during the First Republic. This fiat was abolished by the State
Proceedings Act (Amendment) Decree, 1969 (N.L.C.D. 352), in respect of cases which
arose on or after the first day of May 1969 and substituted in its place a requirement
that the Attorney-General be given one month's notice before an action could be
commenced. The latter Decree was also repealed by the Constitution (Consequential
and Transitional Provisions) Decree, 1969 (N.L.C.D. 406), Sched. II.
9. What then is the legal effect of the repeal of N.L.C.D. 352?
10.What happens when an enactment which had repealed an earlier enactment is itself
repealed by a subsequent enactment.
11.At p. 19 of Maxwell on The Interpretation of Statutes (12th ed.), the legal position
is that:
12."Where an Act is repealed and the repealing enactment is then repealed by another,
which manifests no intention that the original Act shall continue repealed, the common
law rule was that the repeal of the second Act revived the first ab initio."
13.In England this common law rule has been abolished by section 11 (1) of the
Interpretation Act, 1889 That section provides that: "11. (1) Where an Act passed after
491
 the year one thousand eight hundred and fifty, whether before or after the
commencement of this Act, repeals a repealing enactment, it shall not be construed as
reviving any enactment previously repealed, unless words are added reviving the
enactment."
14.Unfortunately, Ghana has not made any enactment to abolish the common law rule and
it appears that the rule still operates.
15.It is submitted that section 8 of our Interpretation Act, 1960 (C.A. 4), which deals
with the legal effect of repeal or revocation or cesser of enactment does not cover the
situation because our section 8 is the verbatim reproduction of section 38 of the
English Act, an entirely different enactment.
16.The present legal position therefore seems clearly to be that no action in tort other than
claims in respect of appropriation or recovery or restitution of any movable or
immovable property requires a fiat. For these reasons, I would hold that the plaintiff's
action does not require a fiat of the Attorney-General. The action is competent.

The presumption applies to procedural matters as it applies to matters of substantive law.

Re Seaford [1968] P 63 @ 68

Societe’ Cooperative Sid nptal V Titan Int. Ltd. [1961] QB 828 @ 847

It has further been held that enactments dealing with procedure should as far as possible
be limited in their construction to matters of procedure only.
MAXWELL 118

Ex Parte Schtracks [1964] 1 Qb 191

London Permanent Benefit Building Society V. De Baer [1968] 2 Wlr 462.

The courts are in practice also reluctant on account of this presumption, to interpret statues
as creating offences previously unknown to the Common law in the absence of clear
words declaring the acts in question to be offences.
MAXWELL 120.
Arthur V Bokenham

“statutes are not presumed to make changes in the Common law further or otherwise than
the law expressly does”

Sales-Matic Ltd V. Hincliffe [1963] 1 Qb 248

The authorities are also clear that even where a provision unequivocally sets out to reform
or alter the common law, its effect as noted earlier, will still be limited from what
expressly or necessarily follows from the words used.

Black-Clawson Case [Supra]

George Wimpey And Co Ltd V. Boac [1955] Ac 169 @ 192

492
Aikins v Aikins [1979] Glr 233 [Buta 147]
Held:
1. On the whole, I think the wife is substantially a truthful witness. The husband behaved
in such a way that she could not be expected to live with him. I will accept her
evidence and grant her prayer. I hold therefore that the marriage between her and her
husband has broken down beyond reconciliation. The said marriage is accordingly
dissolved.
2. The wife also claimed a lump sum payment. The Matrimonial Causes Act, 1971 (Act
367), s. 20 provides that:
3. "20. (1) The court may order either party to the marriage to pay to the other party such
sum of money or convey to the other party such movable or immovable property as
settlement of property rights or in lieu thereof or as part of financial provision as the
court thinks just and equitable. (2) Payments and conveyances under this section may
be ordered to be made in gross or by instalments."
4. It is accepted that this section does not specifically mention lump sum payment. But I
do not think that is necessary because the section gives the court the widest possible
discretion with respect to financial provisions and property settlements.
5. It must be emphasized that the Matrimonial causes Act, 1971, is a reforming statute
and as such, except where the intention is clear, it does not seek to do away with the
law and practice relating to matrimonial proceedings existing before it came into force.
6. It seems to me that one of its aims is to secure that the commonsense principles
embodied in the Act founded upon long standing judicial decisions, in appropriate
circumstances, should continue to be applied.
7. Before the commencement of the Courts Act, 1971 (Act 372), which repealed the
Courts Decree, 1966 (NLCD 84), any law relating to divorce and matrimonial causes
which happened to be in force in England at any given moment had automatic
application to Ghana: see Gray v. Gray [1971] and Crabbe v. Crabbe [1971] which
applied Ashong v. Ashong [1967] C.A.
8. Therefore where the husband has capital assets sufficient for the purpose, the court
should not hesitate to order a lump sum for it has the advantage of enabling the payee
to invest it and use the income to live on.
9. In considering the amount to be paid by way of lump sum the court must look at the
realities and to take into account the standard of living to which the wife was
accustomed during the marriage. She should be awarded such lump sum as will
provide her with a standard of living commensurate with that to which she has been
accustomed:
10.It will also be in keeping with the husband's obligation to maintain the wife on a scale
appropriate to his status and to compensate her for the loss of the benefit which have
accrued to her from living with her husband.

Assibey v Ayisi [1973] 1 Glr 102

The case for the plaintiff was briefly that on 29 April 1927, as head and representative of a
family - company of Larteh people (known as the Syndicate of Akwapim Farmers), he
bought a piece of land from the late Bansohene, Nana Kwaku Kyei, for a total price of
£G871 (¢1,742.00). The sale was by native custom, and after the guaha custom had been
493
performed to perfect the purchase, the plaintiff made a part-payment of £G501
(¢1,002.00). It was alleged that, in the absence of the Bansohene, Nana Kwaku Kyei, the
money was paid to the Krontihene and the queenmother. Thereupon, a document on the
land (exhibit A) was prepared at the instance of the late Nana Kwaku Kyei. The plaintiff
paid the balance due on 18 March 1928 and obtained a receipt (exhibit B) from the late
Nana Kwaku Kyei himself. The plaintiff and his people established cottages scattered all
over the land, and made cocoa and foodstuff farms on the land. About five years after the
plaintiff and his people had entered into possession of the land, the second defendant
challenged their right to be on the land.
Held:
1. The fundamental, and indeed, the crucial issue in this case is whether the plaintiff and
his people acquired the land in dispute from the Banso stool by outright sale, or under
the customary abusa system of farming.
2. The question whether a farmer had acquired his title "in good faith" is one of fact for
the trial judge: see Odoi v. Hammond [1971], C.A. and Appiah v. Baabu, Court of
Appeal, 15 May 1967, unreported. The "good faith" must relate to the time of the
acquisition and not to what happened afterwards: see Wuta-Ofei v. Dove, Supreme
Court, 18 April 1966, unreported; digested in (1966) C.C. 102, S.C. and Afriyie II v.
Tete [1964] G.L.R. 90, S.C.
3. In my opinion, this is a case in which the statute is plainly intended to alter the course
of the common law, and the plaintiff is, accordingly, entitled to the only remedy
specified by the statute.
4. The preamble to Act 107 clearly shows that the object of the Farm Lands (Protection)
Act, 1962, is to protect farmers whose titles to land are found to be defective.
5. I agree that the general rule in the construction of statutes is that there is a presumption
against changes in the common law. I also agree as stated in Maxwell on Interpretation
of Statutes (12th ed.), p. 251 that "Statutes which encroach on the rights of the subject,
whether as regards person or property, are subject to strict construction in the same
way as penal Acts."
6. But it seems to me that where the presumption has been rebutted by the clear words of
the statute, no strict construction is necessary and the common law must give way.
7. Lord Blackburn in Metropolitan Asylum District v. Hill (1881), H.L. was of the
opinion that: "the burden lies on those who seek to establish that the legislature
intended to take away the private rights of individuals, to show that by express words
or by necessary implication, such an intention appears."
8. When one reads the whole Act, it is clear that Parliament intended to interfere with
individual rights existing at common law.
9. Section 2 confers title on farmers with defective titles who in law could be classified as
trespassers. The same section divests true owners of their legal titles and makes
provision for the payment of compensation for losing their lands. In my view,
compensation under the Act is the only remedy available to the true owner.
10.He is not also entitled to damages for trespass. This is so because the trespass from the
time of acquisition has been legalised by Act of Parliament. In Hitchcock v. Way
(1837), Lord Denman C.J. stated the law as follows:

494
11."We . . . are of opinion in general that the law as it existed when the action was
commenced must decide the rights of the parties in the suit, unless the legislature
express a clear intention to vary the relation of litigant parties to each other."
12.In short, the legislature says that whenever a farmer is protected by Act 107, he is no
trespasser. If that is the case, no damages for trespass can be awarded in addition to the
compensation. What should be borne in mind is that the Act not only protects the
farmer as a trespasser but goes further to confer title on him if it is just to do so, from
the time of his acquiring the land.
13.When does the statutory title commence? The answer is that it commences from the
date of the acquisition by the farmer.
14.In other words, the statutory title relates back. It has retrospective effect. This effect is
clear from the language used in subsection (2) of section 2 of the Act. The relevant
part of the subsection reads: "the Court . . . may, instead of making the possession
order, make an order providing that the acquisition by the farmer shall be deemed for
all purposes to have operated to confer on him the title to the land."
15.This clearly means that the statutory title does not begin when court proceedings are
initiated or from the date of delivery of judgment but the acquisition is deemed to have
operated all along as good title thus making the farmer a legal owner.
16.Thus the illegal possession of the farmer is converted into not merely a legal
possession but also into a legal ownership from the time of the acquisition. In such a
case, it is legally impossible to suggest that an action for damages in trespass would lie
against him.
17.The farmer is a legal owner in possession by statute, whereas the true original owner
has been divested of his private and individual rights by the same statute.

However where the words of a statute are plain and unambiguous and a clear intention to
alter the common law is evident from the statute, the presumption is rebutted.
As Driedger points out at 298 of his COS, on account of the principle of legislative
soveriengty, “once the legislature indicates expressly or by implicaton… that it has dealt
with the matter fully to its own satisfaction, it is impermissible to vary or add to the
legislation by resorting to the common law”.
This principle applies to both the substantive and procedural law.

Asibey V Ayisi

The legislature’s intention with regard to the common law [ie. Whether it intends to affect
a particular common law rule or not ] must be sought using the ordinary rules of
interpretation and in so far as the intention is clear, it must be respected.
However in the absence of a reason to believe that the common law has been altered
displaced or excluded, it continues to apply.

AIKINS V AIKINS

Asibey v. Ayisi (Cf)

495
In practice general factors determine the relation between legislation and the common law
has been dis placed and totally excluded in a particular case. These include;
a) considerations relating to the area of law dealt wilt i.e. whether it is an area historically
deeply deeply rooted in the common law ask associated with same eg. Tort, contact, or
one outside the traditional judge made law.
b) The adequacy of the legislation is clearly with the guest –whether it is a codifying
legislation or a consolidating legislation or situation where a common law right is
completely altered Ly turning it into a statutory right.
In practice the presumption is also held to be more easily rebutted in Cases of legislation
duplicating the Common Law thus especially m cases where resort to the Common Law
will add nothing to the content or effect of the C.L NB
b) Cases when common Law is satisfactory so that the legislature was intended to
substitute the legislative law to NB
c) Cases where the legislature offers a comprehensive regime that deals with the matter.
D) Cases where legislation reflects a specific policy choice and a resort to the Common
Law would interfere with the policies and the balance of interest embodied in the
legislature.

In Ghana, there are a number of good examples of the legislature effecting a clear change
in the common law. These include:
(a) section 5 of the Contracts Act 1960 Act 25
(b) Section 10 of the Contracts Act (this changed the common law on consideration)
(c) Section 10 of the MCA Act 360

Assibey V. Ayisi

Gabby V Palmer [1916] 85 Lj Kb 1240 @ 1244

The Presumption Against Unclear Changes In Statute Law

As previously noted, the presumption applies to changes in statute law as well.

Benett v Chapelle [1966] Ch 391.

In the case of a consolidating Act however, there is also a particularly strong presumption
that it does not alter the law contained in the statute it replaces, obviously because
consolidating Acts are presumed not to be intended to make substantial changes in the
law.

Again as Cross rightly notes @ 169 of his book, this presumption relating to consolidating
statutes is qualified by the fact that statutes are interpreted first in their ordinary meaning
and only secondary in the light of their legislative antecedents.

R V. West Yorkshire Coroner; Ex Parte Smith [1982] 3 Aer 1098.

12th May 2OO7

496
Presumption Against Interference With Vested or Accrued Rights Note
Carefully
These (i.e. vested rights) are known also as accrued rights in Ghanaian law.
This presumption is also considered a special application of the presumption against
unclear changes in law.
Statutes which encroach on the rights of the subject (whether as regards person or
property) are often subject to strict construction and it is a recognized rule of law that they
should be interpreted as far as possible to recognize such existing rights, particularly
vested rights.

Specifically, there is a general common law presumption that the legislature does not
intend legislation, whether prospective or retrospective, to be applied in circumstances in
which its application will interfere with vested or accrued rights further than clearly
appears from the legislation.

The Gustavson Drilling Case [1977] 1 SCR 271

@ 282 per Dickson J who notes: “ the rule is that a statute should not be given a
construction that would impair existing [vested] rights as regards person or property
unless the language in which it is couched requires such a construction… the presumption
that vested rights are not affected unless the intention of the legislature is clear whether
the legislation is retrospective or prospective… a prospective enactment may be bad if it
affects vested rights and does not do so in unambiguous terms”.

HALSBURY 4TH ED VOL 44 @ PARA 906 wherein it is provided that “unless it is

clearly and unambiguously intended to do so, a statute should not be construed so as to
interfere with or prejudice established private rights under contract or the title to property
or so as to deprive the man of his property without his having an opportunity of being
heard”.

Allen v. Thorn Electrical Industries Ltd [1968] 1 Qb 487

The presumption against interference with vested rights as already explained, applies to
both retrospective and prospective legislation and is consequently distinguishable from the
concept of retrospective or retroactive application of enactments.

West v Gwynne [1911] 2 Ch 1

@ 11-12 PER BUCKLEY J wherein he notes “retrospective operation is one matter.
Interference with existing [vested rights] is another. If an Act provides that as at a past
date the law should have been taken to be that which it was not, the Act as I understand it
is retrospective. That is not the case here. The question here… is as to the ambit and scope
of the Act and not as to the date as from which the new law, as enacted by the Act, is to be
taken to have been the law”.

497
The primary justification or reason for the presumption against interference with vested
rights over the years has been that it is simply arbitrary and unfair to deprive people of
rights they had acquired by transactions perfectly valid and regular according to the law of
the time by changing the legal rules on which they had relied in arranging their affairs. It
is said that this may not only be hard on the individual, but may also undermine the
general security and stability of the law and the legal system as a whole. For these reasons
interference with vested rights has to be avoided in the absence of clear legislative
directions.

Defining Or Recognising Or Determining Vested Or Accrued Rights

Although the presumption against interference with vested rights is one of the most cited
in law, (especially in civilized jurisdictions) the issue as to what constitutes a vested or
accrued rights (as distinct from a mere right) has hardly been settled by the authorities.

A careful reading of the authorities however will show that by vested or accrued rights the
courts appear to be pointing at rights which have become fully or unconditionally
guaranteed as legal rights i.e. one that has come into existence as a legally enforceable
claim. Yet in practice the signals are often confused.
The difficulty here is clearly one of formulating standards which would help the court
determine on a case by case basis, whether a particular interest or expectation is
sufficiently important to be recognized as a right and sufficiently defined and in control
of the claimant to be recognized as a vested or accrued right.

Admittedly some vested rights (such as property rights contractual rights etc ) are easily
recognized because apart from the fact that they are clearly established they have
respectable roots in the common law and it is possible to identify the specific point in time
at which these rights arise and can be said to belong to the claimant.
But beyond these traditional categories, it is difficult to predict from the authorities when
an interest or expectation will be recognized as a vested or accrued right. Here problems
often arise especially with claims made pursuant to statutes for benefits, authorizations,
exemptions, remedies etc.
In most of these cases or situations the concept of vested or accrued rights remains
illusory.

Scott v. College Of Physicians And Surgeons Of Saskatchewan [1992] 95 Dlr 4 th ed

706
@ 727 per VANCISE JA wherein he noted:
“an acquired or accrued right is an illusory concept. Not many judicial attempts at
definition can be found… they are rights which are part of our estate and which cannot be
taken away without causing a grave injustice. That definition however is of little use
because it does not differentiate between rights which are vested and those which are not”.

In spite of these problems the authorities contain a few hints or indications on a case by
case basis to what rights the courts are likely to consider to have accrued or not.

498
1 . It has been held that claims must be sufficiently personalized or particularized to be
considered accrued or vested.
Scott V. College Of Physicians And Surgeons Of Sakatchewan [Supra].

Abbot v Minister Of Lands [1895] Ac 425 @ 431. [Buta 181]

2.The right claims must have been acted upon or effectively and sufficiently claimed
as one’s own.
Scott V. College Of Physicians And Surgeons Of Sakatchewan [Supra]
Abbot V. Minister Of Lands [Supra]

3. It has also been held that a right will not be defeated as a vested or accrued right simply
because some procedural steps necessary to claim the right has not been taken prior to the
legislation- but not if a substantive condition precedent to the validity of the claim is
missing.

The Gustavson Drilling Case [Supra].

4. The courts have also held that where a statute provides for periodic benefits or where an
advantage or exemption is stated to be available for a period of time, the courts do not
recognize a vested right to maximum benefits for the maximum period despite any
subsequent amendment or repeal.
Gustavson Drilling Case [Supra]

Director Of Public Works V. Ho Po Sang [1961] Ac 901 [Buta 181, 182].

Cf Cfao V. Zacca [Glr].

Suggested Approaches To Defining Accrued Rights

It is also evident from the foregoing that the criteria provided by the courts for
determining whether a right is vested as opposed to a mere right have so far proved vague
and inconclusive and as Driedger notes @ 533 have only supplied the language used by
the courts to describe their conclusions but do little to provide a precise standard for
determining whether rights are accrued or not.

In the circumstances it has been provided that the courts will do well to abandon the
attempts to define the concept of vested or accrued rights in advance and to adopt an
overtly policy -based approach which acknowledges or recognizes a claim as interfering
with vested rights when in all the circumstances of the case cannot be defeated without
causing a grave injustice.
499
In other words, it is a right or interest that should be protected because to take it away will
interfere with or will be arbitrary or unfair. The virtue of this approach as Driedger notes
@ 533 of his COS is that “it recognizes the value laden exercise in which the courts
engage when they assess whether something is a right that has vested or accrued.” In
reaching their conclusions, the courts consider the nature and importance of the interests
affected, the reasonableness of the claimant’s expectations, the extent of potential losses,
and off- setting gains etc. Hence, an existing interest in the practice that exploits others or
creates public cost or harm is less likely to attract protection than an interest in being paid
for services rendered. Losses that are adjudged to be excessive or disproportionate are less
likely to be tolerated than losses that appear to be modest giving the off-setting gains. This
work of evaluation and judgment is said to be pervasive in interpretation and that there is
no reason why it should not be acknowledged in this context as in others”.

In effect, such an overtly policy based approach to determining accrued or vested rights
will in practice permit the courts to consider questions of vested or accrued rights on a
case by case basis such that whenever persons are disadvantaged in a disproportionate,
unfair or arbitrary way for having relied on the law as it stood when they made their plans
or engaged in the transaction etc, the courts may if it considers it appropriate, find that
there are vested rights at stake.

It is to be noted also here that there is some indication in a number of authorities that the
presumption against interference with vested rights applies only where the legislation is
somewhat ambiguous or reasonably susceptible of two or more constructions. This
approach is evidently unacceptable to the extent that the legislation can be said to have
clearly rebutted the presumption under the vested rights otherwise it will not be acceptable
under the MOPA.
The better view appears to be that the presumption is easily rebutted by evidence of
contrary legislative intent and that the key to weighing the presumption against
interference with vested rights is rather the degree of unfairness or injustice that
interference will create in the particular case.

Where the curtailment or abolition of a right seems particularly arbitrary and unfair, the
courts require cogent evidence that the legislature intended the particular result; while the
presumption will be easily rebutted where interference will be less troubling.

Gpha V. Issoufu [1991] 1 Glr 500 Ca.

(this was subsequently affirmed in the SC).

Nana Hyeaman II v Osei [1982-83] Glr 495 BUTA 153

The preliminary question that erupted in this proceeding is whether the plaintiff, who is
the divisional chief of Gwira Banso in the Gwira Traditional Area, has capacity to institute
an action for the cancellation and setting aside of a timber lease of a piece or parcel of
land attached to his stool. Counsel for the defendants and co-defendants submitted that
there is no such capacity and referred to the Concessions Act, 1962 (Act 124) in

500
substantiation of their submission, particularly section 16 thereof. The answer to the
question therefore requires the interpretation of section 16 of Act 124 which provides:
"16. (1) All lands referred to in subsection (2) or subsection (4) of section 4 of the Forests
Ordinance (Cap. 157) and which have been constituted or proposed to be constituted as
forest reserves under that Ordinance and all lands deemed to be constituted as forest
reserves under subsection (7) of this section are hereby vested in the President in trust for
the stools concerned:
Held:
1. Counsel for the defendant and co-defendants were apparently influenced in their view
by the magic words "vested in the President in trust for the stools concerned" used in
the section and were thus induced to opine that the Act had in effect taken away the
tradition-clothed powers of our chiefs over stool lands. in one statute, Act 123, there is
a provision in section 8 to the effect that stools can make grants of stool lands even
though the same lands may have been entrusted to the President.
2. The meaning of such words as "vested in the President in trust for the stools
concerned" should be construed univocally in both Acts 123 and 124.
3. The provisions are "in pari materia" and ought to bear the same construction. As
Lord Mansfield enunciated with typical lucidity in R. v. Loxdale (1758):
4. "Where there are different statutes in pari materia though made at different times, or
even expired, and not referring to each other, they shall be taken and construed
together, as one system, and as explanatory of each other."
5. After an incisive study of the provisions of Acts 123 and 124, I am impelled irresistibly
to the firm conclusion that there is nothing, open or esoteric, in the two statutes which
would suggest, even faintly, that the legislature by enacting that stool lands including
those subject to existing or future concessions shall be vested in the President in trust
for the stools concerned intended that the stools should be denuded of their inherent
rights to ownership of stool lands.
6. The statutory powers of the President must be construed as running side by side with
the powers of the stools as the allodial owners of stool lands.

Pursuant to this presumption, the courts have often stressed that it is unlikely that
legislation will be passed authorizing confiscation of private property rights without
compensation if there is an alternative procedure of acquisition under another law.

Hartnell V. Minister Of Housing [1965] Ac 1134 Sc.

501
It has further been held that the presumption against interference with vested rights
becomes stronger and even more relevant in the face of legislation that affects the
constitutional rights of the individual.

Rep v. Com’ner for Chief’cy Affairs; Ex Parte Nii Adja Kwao II [1981] GLR 263-
274
[Buta 153-154]. This appeal is from the decision of the High Court dismissing the
appellant's motion for an order of certiorari to quash two decisions in which the
Commissioner responsible for Chieftaincy Affairs (1) withdrew recognition from the
appellant as James Town Mantse, and (2) handed over the James Town stool property to
one Nii Aryee Quaye IV.
The appellant, Nii Adja Kwao II, in his affidavit in support of his application for leave in
the court below, averred that he was customarily and constitutionally elected and
enstooled as James Town mantse in 1959 and was subsequently recognised as such by the
Governor-General under L.N. 201 of 1 August 1959. While the appellant's appeal to the
National House of Chiefs was pending, a notice was published on 19 May 1978,
indicating that the Commissioner responsible for Chieftaincy Affairs had withdrawn
recognition from him as chief of James Town.

Held:
1. Under section 11 of the Interpretation Act, 1960 (C.A. 4), as was correctly pointed
out by the learned trial judge, power to grant a licence, authorisation or permit
includes power to revoke, suspend or amend the licence, etc.
2. In the opinion of the learned judge although "a little undignified . . . in plain terms,
government recognition of a customary law chief is nothing but a grant of licence to
such chief to enable him to perform statutory functions" and he held accordingly that
section 11 was operative in the case of the recognition of a chief and the power to
recognise a chief as defined by section 48 (1) of Act 370 and that "government

502
 recognition of a customary law chief was nothing but a grant of licence to such chief
to enable him to perform statutory functions."
3. In my opinion, the judge's interpretation of the two statutes was erroneous. Article
153 of the Constitution, 1969, guaranteed the institution of chieftaincy.
4. The rights conferred on chiefs by the Act 370, were based on the constitutional
guarantee of the institution of chieftaincy.
5. The right of a chief recognised by minister under the proviso to section 48 (1) of Act
370 to perform certain statutory duties is therefore a constitutional right.
6. And to be general rule is that unless a clear and unambiguous intention is expressed
in a statute affecting constitutional rights "it should not be construed so as to invade
the liberty of the subject or [p.268] so as to confer or take away . . . his constitutional
rights": see Halsbury’s Laws of England (3rd ed.), Vol. 36 at p. 626.
7. A constitutional right therefore cannot be whittled away by an alleged implied power
in a provision in the Interpretation Act, 1960 relating to non-constitutionally based
rights.
8. This opinion is buttressed by the fact that in spite of section 11 of the Interpretation
Act, 1960, the Chieftaincy Act, 1961 (Act 81), which came into force after the
promulgation of the Interpretation Act, 1960 made specific provisions for the
withdrawal of recognition from a chief in clear and unambiguous terms. Section 1
(2) (a) of Act 81 provides:
9. However, Act 370, s. 48 (1) gives the Minister responsible for Chieftaincy Affairs,
discretionary powers to enable chiefs recognised by him to perform certain statutory
functions.
10. This provision therefore creates indirectly two classes of chiefs: (1) those recognised
by the minister and capable of performing statutory duties and (2) those not so
recognised and limited to the performance of customary duties.
11. I do not think that there is anything to support the appellant's submission that section
51 (1) must be read as imposing limitations on the exercise of the minister’s
discretionary powers in the proviso to section 48 (1).
12. The constitutional power to make a statutory instrument defining “who is a chief?” in
the Chieftaincy Act, 1971 (Act 370), s. 48 (1) must be construed as including the
power exercisable in like manner to amend or revoke such statutory instrument. This
in my view, is also applicable to the proviso to section 48 (1).
13. The minister has constitutional authority to withdraw recognition from a chief.
However, the discretionary powers of the minister must be exercised in accordance
with the law and the rules of natural justice.
14. The law provides that an appeal should operate as a stay of execution. At the time the
minister exercised his discretion to withdraw recognition, an appeal was pending.
The appellant was entitled to pursue his cause to the highest appellate authority The
law is binding on everyone including the minister.
15. I am satisfied that the notice of withdrawal of recognition of Nii Adja Kwao II James
Town mantse, was not only published in complete disregard of section 27 of Act 370,
but also in flagrant violation of the provisions of the Constitution, 1969, governing
the exercise of discretion
Agbesi V Ghapoha

503
Rebutting The Presumption
The presumption against interference with vested rights could be rebutted in a number of
circumstances:
(a) Where there is adequate indication of legislative intention to the contrary: the
presumption is rebutted by adequate indication that the legislature intended the enactment
to have immediate and general application despite its prejudicial import. This intention is
often gleaned from a construction of the legislation in context having regard to its purpose
and the consequences of applying it to the particular facts. It has however been held that
the intention must be clear. .

Venne V. Quebec [1989] 1 Scr 880

b) Where purpose of legislation will be defeated: where the purpose of the legislation will
be defeated by failure to apply it to existing rights the presumption against interference
with vested rights will be easily rebutted.

Bellechase Hospital Corp V. Pillote [1975] 2 Scr 454.

c). the presumption against interference with vested rights does not apply to procedural
legislation on account of the common law rule that procedural legislation applies
immediately and generally to both pending and future facts. Hence it is often said that
no one has a vested right in matters of procedure and that the effect of a procedural change
is deemed to be beneficial to all.

Wright v. Hale (1860) 6 H & N 227 @ 232.

Hence in practice procedural legislation is presumed to apply immediately to ongoing

proceedings, including those commenced but not completed before its coming into force.

Procedural law here, governs the methods by which facts are proven and legal
consequences established in any proceedings. Examples, filing applications in actions in
courts and Tribunals, and the rules by which the courts conduct its business.

However to be considered procedural, the legislation in context must be exclusively

procedural i.e. its application to the facts in question must not interfere with any
substantive rights or liabilities of parties.
In determining whether a provision is exclusively procedural or not, the courts will look at
the substance of the provisions and its practical impact on the parties.

Likewise, provisions on limitations on action will be considered procedural where all that
is at stake is time. But where the effect of applying the new limitation provision is either
to extinguish an action that was still viable when the provision came to force or to revive
an action that was banned, it affects the substantive rights of the parties and are not merely
procedural.

504
Finally, it is to be noted that rules of evidence are in general considered procedural rules
and upon their coming into force are immediately applied to pending actions.
There are however some exceptions in which rules of evidence are not about proof
simpliciter, but affect substantive rights of parties. In such cases, the rules of evidence will
not be considered purely procedural. E.g. the presumption of advancement relied on to
resolve questions of property between spouses and their children.

However, It is to be noted however that in Ghana, rules respecting the immediate

application of procedural legislation is, in relation to situations where an Act is repealed or
revoked and another enactment substituted by way of amendment, revision, or
consolidation, raised to the level of a mere irrebuttable presumption of law under section 9
( C) of CA 4.

Again, in Ghana the general common law presumptions against interference with vested
rights has, in respect of the legal effect of repeals and revocations, been seriously affected
by the provisions of CA 4, especially sections 8 (1) C and Art.. 19 and of the Constitution
1992 and has been raised to a level of rebuttable requirement of Law.

The Presumptions Regarding The Jurisdictions of The Court

This concerns basically a number of presumptions respecting the jurisdictions of the court
including:
(a) the presumption against creating new jurisdictions or expanding existing
jurisdictions of the courts.
(b) Presumption against ousting existing jurisdiction of the courts
(c) Presumptions against extra-territorial application of legislation etc.

Presumption Against Creating Or Enlargening Existing Jurisdictions Of The Court

It is always presumed that an enactment does not create new jurisdiction or enlarge an
existing jurisdiction in the absence of express language to that effect. This presumption is
in some sense also a special application of the presumption against unclear changes in
existing law.

As Buta rightly notes @ 155 of his L I G, by jurisdiction here, is meant “the power vested
in the court by law - statutory or otherwise to determine certain specified matters either
unconditionally or subject to certain limitations or specified conditions”.

Smith v.Brown [1871] Lr 6 Qb 729

Here an Act of 1861 gave the Admiralty Court jurisdiction over “any claim for damage
done by a ship”. The question arose whether this gave the court jurisdiction in the case of
personal injury caused by a collision. It was held that no, the jurisdiction of the court
cannot be so enlarged.

Azorbli v. Ankrah [1984-86] 1 Glr 561 Ca. [Buta 155].

In this case the applicant applied to the CA for prohibition against the HC..
505
The defendants, by counsel, filed a "motion on notice" in this court asking: "for an order
of prohibition against the High Court, Ho presided over by Apatu-Plange J. from hearing
the above suit, and for such other orders as this honourable court may deem fit."
The main ground for the application is that the suit before the High Court, Ho is a
chieftaincy matter which the court has no jurisdiction to entertain. Unfortunately, the
applicants contend, the High Court insists on hearing the matter, notwithstanding
objections by them.
Held per Adade JSC
1. Counsel for the plaintiff-respondent, objects to the Court of Appeal hearing the
defendants' motion on the ground that this court has no jurisdiction. He says in his
notice of preliminary objection that: "a motion for prohibition is not maintainable at the
Court of Appeal at first instance." He argues that the Court of Appeal has no
supervisory jurisdiction over the High Court.
2. Counsel for appellant on the other hand says that the Court of Appeal has an inherent
jurisdiction to deal with any application at all, prerogative writs included, particularly
where, he contends, it is apparent that the High Court is not acting within its
jurisdiction.
3. Jurisdiction is no more than the power of a court to deal with a matter. It is defined by
Coussey J.A. in the case of Timitimi v. Amabebe (1953) 14 W.A.C.A 374 at 376 as,
"the power or authority to judge." He continues:
4. "A court is said to be of competent jurisdiction with regard to a suit or other
proceeding when it has power to hear or determine it or exercise any judicial power
therein."
5. A careful reading of this article shows clearly that the Court of Appeal has only
appellate jurisdiction. It has no original jurisdiction in anything whatever.
6. It is noted that under rule 28 of the Court of Appeal Rules, 1962 (L.I 218), as amended
by the Court of Appeal (Amendment) Rules, 1969 (L.I 618) r. 2, certain applications
may be made directly to the Court of Appeal. But these applications are entertained,
not in the exercise of this court's original jurisdiction (which it has none), but in
exercise of powers incidental to its appellate jurisdiction.
7. Hence, for instance, an apparently "original" application for a stay of execution can be
entertained only if there is an appeal pending. If there is no appeal pending, such an
application can never come to the court except by way of an appeal from the High
Court under article 122 (2) of the Constitution, 1979.
8. The Constitution, 1979 has expressly given supervisory jurisdiction to the High Court
(article 126) and to the Supreme Court (article 119), but has denied it to the Court of
Appeal. It is safe to assume that the omission was intended; we cannot supply it.
9. In all the circumstances, we are of the opinion that the Court of Appeal has no
supervisory jurisdiction over the High Court, such as is given to the Supreme Court
and the High Court.
10.The objection is well-founded and valid. The objection is upheld. The defendants'
motion for prohibition is dismissed for want of jurisdiction.

Spokesman (Publications) Ltd. v. Attorney-General [1974] 1 GLR 88-93

506
the plaintiff company filed a writ in the Supreme Court, established under the suspended
1969 Constitution of the Republic, against the defendant, and claimed the following
reliefs:
[p.90]
"(1) a declaration by the court under article 1 (2) and 2 (1) of the Constitution, that
sections 182A, 182B and 183 (1), (2), (5) and (6) of the Criminal Code, 1960 (Act 29) are
inconsistent with and in contravention in particular of articles 3, 12, 20, 22, 23, 25 and 102
thereof.
(2) such consequential orders and directions, under article 2 (2) of the Constitution, as the
court may consider appropriate for giving effect to or enabling effect to be given to the
declaration above sought."
Before this suit could be heard and determined, the civilian government was overthrown
in a military coup d'etat on 13 January 1972, and the operation of the 1969 Constitution of
the Republic of Ghana was suspended by virtue of section 2 (1) of the National
Redemption Council (Establishment) Proclamation, 1972. But notwithstanding the
suspension of the Constitution, the original jurisdiction of the Supreme Court was
untouched, because the existing courts were permitted, by virtue of section 4 of the
Proclamation, to function with the same powers and duties as before that date
Held:
1. The plaintiff company's case was affected by the occurrence of two events: firstly, the
suspension of the Constitution, and, secondly, the abolition of the Supreme Court. In
C.F.A.O. v. Zacca [1972] 1 G.L.R. 366 at p. 378, C.A. I said:
2. "As a general rule, when there is an alteration in the law during the pendency of an
action, the rights of the parties are decided according to the law as it existed when the
action was commenced, unless there is a clear intention in the new statute that it is to
apply to pending proceedings."
3. In Colonial Sugar Refining Co. v. Irving [1905] P.C. the Australian
Commonwealth Judiciary Act, 1903, had abolished a right of appeal to the Privy
Council from the Supreme Court of Queensland, but this was held not to apply
retrospectively to a suit pending when the Act was passed and decided by the
Supreme Court after that date.
4. Lord Macnaghten said, "To deprive a suitor in a pending action of an appeal to a
superior tribunal which belonged to him as of right is a very different thing from
regulating procedure."
5. A change in the existing law does not, as a rule, affect, accrued rights, unless there
are plain words to the contrary in the enactment affecting the change.
6. And section 8 of the Interpretation Act, 1960 (C.A. 4), which, by virtue of
paragraph 12 (1) of the Constitution (Consequential and Transitional Provisions)
Decree, 1969 (N.L.C.D. 406), can be invoked in the interpretation of the 1969
Constitution of the Republic of Ghana, reads as follows:
"8. (1) The repeal or revocation of an enactment shall not –
(a) revive anything not in force or existing at the time when the repeal or revocation
takes effect; or
(b) affect the previous operation of the enactment or anything duly done or suffered
thereunder; or

507
 (c) affect any right, privilege, obligation or liability acquired, accrued or incurred
thereunder; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence
committed thereunder; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right,
privilege, obligation, liability, penalty, forfeiture or punishment, [p.93] and any
such investigation, legal proceeding or remedy may be instituted, continued or
enforced, and any such penalty, forfeiture or punishment may be imposed, as if the
enactment had not been repealed or revoked.
(2) When an enactment expires, lapses or otherwise ceases to have effect this
section shall apply as if the enactment had then been repealed or revoked."
7. There can be no doubt that by the suspension of the Constitution, the operation of the
provisions of the Constitution upon which the plaintiff company had based their
claim ceased to have any effect, but their right to sue had already accrued, and,
therefore, they could have prosecuted their action in the Supreme Court as if the
Constitution had not been suspended.
8. The rights of the parties in those circumstances could have been decided in the
Supreme Court according to the law as it stood before the suspension.
9. But, as it has been said earlier in this ruling, the Supreme Court was abolished, and,
therefore there is no court in which the plaintiff company can ventilate their action.
10. In the result, we hold that this court has no jurisdiction in this case. The plaintiff
company's action is dismissed.

508
Criminal Jurisdiction of Regional Tribunals
The application of this presumption raises interesting issues regarding the scope of the
criminal jurisdiction of regional tribunals. The issues here center largely around article
143(1) and (2) of the 1992 Constitution and section 24 (1) & (3) of the COURTS ACT
1993 ACT 459.

Article 140—Jurisdiction of the High Court.

(1) The High Court shall, subject to the provisions of this Constitution, have jurisdiction
in all matters and in particular, in civil and criminal matters and such original,
appellate and other jurisdiction as may be conferred on it by this Constitution or any other
law.
(2) The High Court shall have jurisdiction to enforce the Fundamental Human Rights and
Freedoms guaranteed by this Constitution.
(3) The High Court shall have no power, in a trial for the offence of high treason or
treason, to convict any person for an offence other than high treason or treason.

Article 143—Jurisdiction of Regional Tribunals.

(1) A Regional Tribunal shall have jurisdiction to try such offences against the State and
the public interest as Parliament may, by law, prescribe.
(2) A Regional Tribunal shall have such appellate jurisdiction relating to the matters
described in clause (1) of this article, as may be prescribed by law.
(3) For the purpose of hearing and determining an appeal within its jurisdiction and the
amendment, execution or enforcement of a judgment or order on any appeal, and for the
purposes of any other authority expressly or by necessary implication given to it by this
Constitution or any other law, a Regional Tribunal shall have all the powers, authority and
jurisdiction vested in the tribunal from which the appeal is brought.

Section 24—Original and Appellate Jurisdiction of Regional Tribunal.[ Courts Act

1993 ACT 459]
(1) Subject to the provisions of the Constitution, this Act and any other law, a Regional
Tribunal shall have concurrent original jurisdiction with the High Court in all criminal
matters and shall in particular try—
(a) the special offences specified under Chapter 4 of Part III of the Criminal Code 1960
(Act 29);
(b) offences arising under—
(i) Customs, Excise and Preventive Services Management Law, 1993 (P.N.D.C.L. 330);
(ii) Income Tax Decree, 1975 (S.M.C.D 5);
(iii) Narcotic Drugs (Control, Enforcement and Sanctions) Law, 1990 (P.N.D.C.L.236);
and
(c) any other offence involving serious economic fraud, loss of state funds or property.
(2) A Regional Tribunal does not have jurisdiction to try a criminal offence if the trial
requires the participation of a jury or assessors.

509
As expected, the constitutionality of the jurisdiction of the regional tribunal under Act
459 has been challenged in a number of cases. There are basically two schools of thought
on the issue.

One school of thought is that regional tribunals could properly assume jurisdiction in any
criminal matter pursuant to S.24(1) of Act 459 because all criminal matters are wrongs
against the State and public interest.

This position has however been criticized by the second school of thought on grounds
inter alia that if the legislature had under article 143(1) intended the regional tribunals to
have criminal jurisdiction in all matters, it would have said so expressly as it did in the
case of the High Court under article 140 (1) of the 1992 constitution and that in that case
the expressions fin” m used under section 143(1) would have been unnecessary. (The
presumption being argued here is the presumption against enlarging or extending the
jurisdiction of the court and the expressio unius rule). (application of the consistent
expression rule)

Hence it is argued by proponents of the second school that on the application of the
presumption against enlarging the existing jurisdiction of the courts, the powers conferred
on the regional tribunals under Act 459 section 24(1) and (3) are clearly unconstitutional
and void as infringing the provisions of article 143(1) and (2) of the Constitution; and for
that reason, that the original and appellate jurisdiction of the regional tribunal are and
must be restricted to crimes falling within “offences against the State and public interest”
as specified in article 143.

It is then argued that the phrase “all criminal matters” used in Act 459 section 24(1) must
be construed by the courts as limited to offences against the state and public interest which
may be specified in terms of the offences in sub clauses a, b and c of section 24(1) of Act
459.

The second school of thought has recently received the support of the CA in the case of:

Jonathan Dey v. The Republic Ca [12th Feb 1998 Unreported].

In this case the appellant who was a storekeeper for one Mrs Bertha Nunyuie of Ho, was
charged with stealing monies belonging to Mrs M, proceeds from sale of cements and
drinks. He was tried, convicted and sentenced to three years imprisonment by the Ho
Regional Tribunal.
On appeal, the appellant contended inter alia, that the Regional Tribunal had no
jurisdiction to try him because the offence was against Mrs M, a private person and not
against the State or public as provided for in article 143(1) of the Constitution.
The Court upheld the argument, holding that the Regional tribunal had no jurisdiction in
the matter which was not against the state and the public interest.
The issue was considered by the SC in the case of:

Republic v Yevi And Avalifor [2000] SCGLR 149 SC.

510
This case involved two police officers who were arraigned before the greater accra
regional tribunal on charges inter alia of stealing monies belonging to the NDC, a political
party registered under the political parties registration law (PNDCL 281).
In this case also, the accused raised an objection to the jurisdiction of the regional tribunal
on the grounds that the money they were alleged to have stolen belonged to the NDC, a
political party which was not the state; and that theft of money belonging to the political
party was not an offence against the state or public interest. The issue here was the
meaning of the phrase “state and public interest”. Court for accuse argued that the word
“and” should be construes disjunctively.

This was the case in which the SC held differently [partially] and pronounced on the
meaning of the term or phrase “against the state and public interest”.
In this case, the SC said that money belonging to the NDC was not that of the state yet the
court held that the RT had jurisdiction because of the word “and” in the phrase which was
interpreted conjunctively in its ordinary meaning which was held to lead to an absurdity.
Therefore the court was able to depart from the ordinary meaning of “and” which was
conjunctive as surplusage or tautologous and therefore interpreted “and” disjunctively to
mean “and or”. The court also took account of the fact that the interpretive section of the
constitution defined the word “public interest” (in article 295) as including… (Which is an
extending definition.)
Acquah JSC disagreed with the prosecution in this case.

In this case the SC held inter alia that:

(1) in the context, “offences against the state and public interest” could not refer to all
criminal offences and that “State” is used here not in a nominal sense (preemption
against consistent expression ) in which it could be said that all criminal offences are
offences against the state but ..
(2) that when “state” is so understood, it would be absurd to construe “and” in a
conjunctive sense since logically, every offence against the state of Ghana itself would
also be against the public interest. (presumption against tautology)
(3) The court held that in the circumstances it was desirable in the context to interpret
“state and public interest” liberally to encompass both the conjunctive and disjunctive
senses, i.e. “and/or” in order to avoid the absurdity of a conjunctive definition of “and”
which would render the phrase “against public interest” redundant and surplusage etc.
In effect, the court held that the regional tribunal could under article 143(1) try such
offences against both the state and public interest or against the state or public interest.
(4) Further, the court held that stealing monies belonging to a political party (like the
NDC) was an offence against the public interest as defined in article 295(1) of the
constitution on account of the importance of political parties as an indispensable
mechanism for the conduct of true democratic governance of this country. Here the
court also maintained that the use of the word “include” in defining “public interest”
under article 295 (1) did not restrict the definition to the scope indicated in the
definition but also to the interest of only a section of the population such as the
political parties like the NDC.

511
Another effect of the application of the presumption against creating or enlarging an
existing jurisdiction is that where a court is empowered to exercise a specified
jurisdiction upon stated conditions, these conditions must be satisfied before the
jurisdiction can be exercised.
BUTA 158 ff.

Ghassoub v. Bibiani Wood Complex Ltd [1984-86] 1 Glr 271 Ca [Buta 159-160]
Nyanor, counsel for the applicant, moves in terms of the motion paper and supporting
affidavit for the application for stay of execution pending appeal. He contends that the
issue was whether a service on a visitor is service on the [p.272] solicitor
Held: We think this is a proper case to grant a stay since there are arguable points in the
appeal as to whether service on a visitor in a solicitor's office is service on the solicitor.
The stay we have granted is in respect of the whole judgment debt of ¢150,366.36 and the
costs of ¢8,000.

Opan v. Frans And Co [1984-86] 1 Glr 281 Ca [Buta 159-160]

Republic v Court Of Appeal, Accra; Ex Parte Sidi [1987-88] 2 GLR 170-188

[Buta 159-160] This was an application for the grant of certiorari to quash the decision of
the Court of Appeal and for mandamus to order the Court of Appeal to hear the
application by the applicant against an alleged refusal by the High Court, Tamale to stay
the judgment debt and costs awarded against him.
The brief facts of this case as reproduced from the affidavits in support were that the
applicant wrote a letter to the Secretary of the Ministry of Roads and Highways and
copied it to the chief director of that organisation and other persons containing libellous
matters against the respondent. The High Court, Tamale found that the letter was
defamatory of the respondent and awarded him ¢1,000,000 damages. The respondent had
claimed ¢10 million in his writ. Subsequent to the judgment the applicant applied for a
stay of execution of the judgment debt and costs pending his appeal. The High Court
judge ordered that:
"the judgment debt and costs be paid into court within three months from the date of
judgment to abide the result of the appeal. That is if the appeal succeeds the applicant will
apply to the court for the money."
In other words the grant was made on terms.
Held:
1. Rule 27 (1) of L.I. 218 as substituted is as follows: "27. (1) An appeal shall not operate
as a stay of execution of proceedings under the judgment or decision appealed from
except where the Court below or the Court otherwise orders . .”
2. In the Cropper case (supra) the court held that it had co-ordinate jurisdiction and that
the only limitation to its exercise was that the application must first be made to the
High Court because Order 58, r. 17 of the English rules provided that "It shall be made
in the first instance to the Court below." Brett MR. having reviewed a number of cases
under the English rule came to the definite conclusion that there is an independent
512
 jurisdiction in the Court of Appeal to stay proceedings pending an appeal but that court
was not to exercise that independent jurisdiction until it knew what the court below had
done.
3. He said at 311: "It does not limit the jurisdiction, it limits the exercise of it …"
4. In the Nigerian case cited before us by the applicant. Oyeti v. Soremekun [1963] All
N.L.R. 349. In similar circumstances the Nigerian Court of Appeal held that the Court
of Appeal had co-ordinate jurisdiction with the High Court and that the applicant,
therein need not appeal.
5. I think the ruling in Oppan v. Frans & Co. Ltd. (supra) was wrongly decided and
should not be followed and the long [p.174] essay on executions and its processes were
irrelevant to the determination of the issue.
6. It is true that applications of this nature have usually been granted on terms which
often satisfy the applicant: see Joseph v. Jebeile [1963] 1 G.L.R. 387, S.C. but as
already stated above, the terms granted may or may not be an answer to the applicant's
prayer.
7. In any event, he has the right to repeat his application to the Court of Appeal if
dissatisfied. I think Ghassoub v. Bibiani Wood Complex Ltd. [1984-86] 1 G.L.R.D.
271, C.A. was rightly ruled upon.
8. These are the reasons for the grant of the order of certiorari to quash the ruling of the
Court of Appeal.
9. And rule 28 of L.I. 218 as substituted by L.I. 618 reads: "28 . . . where under any
enactment an application may be made either to the Court below or to the Court it shall
be made in the first instance to the Court below, but if the Court below refuses to grant
the application, the applicant shall be entitled to have the application determined by the
Court."
10.A stay of execution of proceedings under a judgment means simply the suspension of
any process or procedure which is to post date the judgment. If an applicant asks for
such stay pending the hearing and determination of his appeal, then what he is in effect
asking is that all processes that can be taken after judgment for the purpose, no doubt
of satisfying the judgment, should be stayed until the appeal is finally heard and a
decision on it given.
11.In such a situation the court can either grant the application unconditionally or refuse it
unconditionally This leads me straight to a consideration of the case of Ghassoub v.
Bibiani Wood Complex Ltd. [1984-86] 1 G.L.R. 271, C.A.
12.In that case the applicant had a judgment against him in the sum of ¢150,366.36 with
costs of ¢8,000. In purporting to grant his application for stay, the High Court ordered
that three quarters of the said judgment debt of ¢150,366.36 plus the ¢8,000 costs
should be paid to the plaintiff and the remaining one quarter was to be paid into court
pending the hearing and determination of the appeal.
13.On a fresh application for stay made to it, the Court of Appeal in effect held that by the
order of the High Court "the applicant's motion for stay was virtually dismissed." In the
circumstances, it heard the fresh application and granted a stay in respect of the whole
judgment debt of ¢150,366.36 plus the ¢8,000 costs.
14.In the subsequent case of Oppan v. Frans & Co. Ltd. (supra) the Court of Appeal
refused to follow its earlier decision in Ghassoub (supra). The reason for not following
the Ghassoub case (supra) was stated by Adade J.S.C. at 287 as follows: “….It does
513
 not appear that the court, with the greatest respect to their lordships, applied their
minds to the legal status of a grant of stay on terms. The matter was not raised. I have
no doubt that if the point had been taken, properly argued and the relevant authorities
drawn to their lordships' attention their conclusion might have been different."
15.This view, with respect, appears to me to be not quite satisfactory. The Court of
Appeal in the Ghassoub case (supra) specifically dealt with a purported grant on terms,
and held that the supposed grant was virtually a dismissal of the applicant's motion and
therefore in effect it was a refusal.
16.I am in the circumstances unable to appreciate, with great respect, what is meant by the
"legal status of a grant of stay on terms."
17.The Oppan case (supra) did not apparently draw attention to any authority which
elucidates the "legal status of a grant of stay on terms."
18.I am inclined to the view that a "grant of stay on terms" has factual basis and not a
definitive legal status since the terms may vary so widely from case to case as not to be
amendable to any a priori legal classification.
19.These applications for stay must be pragmatically considered within the context of
Ghanaian conditions. When an applicant in Ghana applies for a stay pending the
hearing and determination of his appeal what is it that he is actually asking the court to
do?
20.In the case of a judgment debt, I would have thought the answer is clear, he wants the
court to suspend the actual payment of the said debt pending the outcome of the appeal,
If he is, in effect, asked to pay the whole judgment debt, whether into court or not,
surely he will consider it an abuse of language and an indulgence in legal technicalities
to argue that he has been granted his application for a stay.
21.In my well considered opinion, having regard to the doctrine of judicial precedent, the
Court of Appeal, with respect, erred in the Oppan case (supra) in not following the
Ghassoub case (supra) and in not leaving the correctness or otherwise of that decision
to be decided at the appropriate time by the Supreme Court.

Kwaframoah III v Sakrakyie II [1996-97] SCGLR

Similarly, a statute giving power to a court to grant relief on being satisfied of certain facts
does not confer on it any power to grant interim reliefs until the facts have been
ascertained.

Re Heatstar Properties Ltd [1996] 1 WLR 993. where however the Words does

Presumptions Against Retrospectivity

There also exists at common law a presumption that statutes should not be given greater
retrospectivity than its language or text warrants expressly or by necessary implication.
CROSS 187-190.

514
The operation of this presumption in Ghana is today substantially affected by the
constitutional provision and will subsequently be considered as a constitutional
requirement. Art 107

The Presumption Against Ousting Existing Jurisdiction Of The Courts And Tribunals
There also exists at common law a presumption to thef effect that a statute should not be
construed as taken away the jurisdiction of the ordinary courts, particularly the superior
courts in the absence of clear and unambiguous language to that effect.
CROSS 171-172

The operation of this presumption is today seriously affected by the provisions of the 1992
constitution and will be considered as a substantive topic under ouster clauses.
Statutes which oust the jurisdiction of the court wee null and void except with respect to
transitional provision. Fill IN

515
Ouster Clauses
DEFINITION AND CLASSIFICATION OF OUSTER CLAUSES
An ouster clause can broadly be defined as a provision embodied in a DSC which seeks
to oust or restrain the normal jurisdiction of the courts, either partially or totally.
BUTA 198.
KWAKYE V. A-G [1981] GLR 944 @ 957,975 PER APALOO CJ.

Ouster clauses are in practice conveniently classified and discussed under three main
heads namely:
1. OUSTER CLAUSES IN PRIVATE DOCUMENTS OR AGREEMENTS [NON-
STATUTORY OUSTER CLAUSES] these would include contracts, international
agreements, constitutions or regulations of voluntary organizations and other private
bodies which oust or restrain the jurisdiction of the courts in certain matters.
2. STATUTORY OUSTER CLAUSES : these are provisions in a statute which seeks to
oust or restrain the normal jurisdiction of the court in certain matters and
3. CONSTITUTIONAL OUSTER CLAUSES: in which case the ouster clause is
contained in the national constitution. E.g. section 34 of the Transitional Provisions to the
1992 Constitution. SEE CRABBE 146-147

As already indicated, an ouster clause in each category may in practice assume one of
several different forms.
First an ouster clause in a DSC may totally or completely oust the jurisdiction of the
ordinary courts in certain matters or Secondly may do so partially, or thirdly may only
postpone the jurisdiction of the ordinary courts for a certain period only.

On the other hand an ouster clause may also oust the jurisdiction of the court in respect of
matters of fact and or law.

Thus an ouster clause in a private document may for example purport totally or partialy to
deny the power of the ordinary courts to settle any issues of fact and or law which may
arise between the parties or may be to the effect that the jurisdiction of the court may be
postponed for a given period.
Likewise a statutory ouster clause may also expressly prohibit the ordinary courts of the
land from dealing with certain matters for e.g. section 57 of the Courts Act, ACT 459
1993, which purports to prohibit the CA, THE HC AND THE COMMUNITY
TRIBUNALS ETC from dealing with Chieftaincy matters either at first instance or on
appeal.

A statutory ouster clause may also provide that the decision of a body or tribunal shall be
“final” or “shall not be questioned in any court”; or may even exclude the power of the
superior courts to review decisions of inferior courts by for e.g. excluding their power to
issue prerogative orders in the nature of certiorari, mandamus, prohibition, quo warranto
etc.

516
Constitutional ouster clauses may also oust the jurisdiction of the ordinary courts to
review certain questions or may assume the form of indemnity clauses as contained in
section 34 of the Transitional Provisions of the 1992 Constitution.

It is perhaps useful to mention at this juncture that before the coming into force of the
1992 Constitution, the law relating to ouster clauses in Ghana were largely regulated by
the common law. The 1992 constitution radically changed the face of the law on ouster
clauses in Ghana by rendering all ouster clauses unconstitutional save those warranted
by the constitution itself.

It is therefore important that we consider the current position on the law of ouster clauses
in relation to the provisions of the 1992 constitution.

OUSTER CLAUSES IN PRIVATE DOCUMENTS OR AGREEMENTS (NON

STATUTORY OUSTER CLAUSES)

In relation to private documents and agreements ouster clauses may be categorized into:
A) OUSTER CLAUSES THAT COMPLETELY ALL Y DENY THE POWER OF AN
ORDINARY COURT TO SETTLE OR INTERFERE IN A DETERMINATION OF
ISSUES OF FACT AND OR LAW THAT MAY ARISE BETWEEN THE PARTIES.

OUSTER CLAUSES TO THE EFFECT THAT THE JURISDICTION OF THE

ORDINARY COURTS MAY BE POSTPONED FOR A GIVEN PERIOD OR UNTIL
AFTER THE BREAKDOWN OF NEGOTIATIONS OR ARBITRATION ETC. BUTA
194 FF

In respect of those ouster clauses which purport to deny the power of the courts to
settle or interfere in the determination of issues of fact and or law arising between
the parties, the general principle of law applicable is that while a party to a contract or
private agreement and members of private associations are free to determine to finality the
facts governing the relationship of the parties, they cannot determine to finality, to the
exclusion of the courts, the legal rights of the parties or their members and that such a
determination may be contrary to public policy and invalid.
BAKER V. JONES [1954] 2 AER 553 [BUTA 198]
LEE V. SHOWMANS GUILD OF GREAT BRITAIN [1952] AER 1175 @ 1180-1181
[BUTA 190-200]
WARD BREW V. Ghana BAR ASSOCIATION [1993-94] 2 GLR 509
ESSILFIE V. TETTEH [1995-96] 1 GLR 297
GBEDEMAH V. GPRTU

Cf: TULLIS V. JACKSON [1892] 3 CH 441.

With ouster clauses that postpone the jurisdiction of the courts pending arbitration,
negotiation, exhaustion of local remedies etc, the legal position appears to be that the
courts will generally recognize such clauses and would give effect to them subject to the
right of the court to intervene in certain exceptional circumstances.
517
LAWLOR V. UNION POST OFFICE [1965] 1 AER 353 @ 363
WHITE V. KUZYCH [1951] AC 585
IN RE TIMBER AND TRANSPORT KUMASI –KRUSEVAC COMPANY LTD;
ZASTAVA V. BONSU [1980] GLR 370 (appeal [1981] GLR 256)
NEEQUAYE V. Ghana FILM INDUSTRY CORPORATION [1992] 2 GLR 195 CA
[BUTA 201]
ESSILFIE V. TETTEH [SUPRA]

EXCEPTIONS TO THE GENERAL RULE

The courts nevertheless also appear to insist that in all cases-even disputes involving
issues of facts only, or where the court’s jurisdiction is only temporarily ousted, the courts
are not absolutely bound by these ouster clauses because the court’s jurisdiction cannot be
completely ousted under all circumstances. (Article 125 of the 92 Constitution).
SEE AWUNI V. WAEC [2003-2004] SCGLR

Thus even in cases involving issues of fact only, the courts jurisdiction would not be
ousted where there is for e.g. a breach or threatened breach of natural justice by the
domestic tribunal.
ENDERBY TOWN FOOTBALL CLUB V. THE FA [1971] 1 AER 215@ 218.
ACCRA HEARTS OF OAK V. GFA [82-83] GLR 111.
ESSILFIE V. TETTEH [SUPRA]

And even in cases where there is a provision that the plaintiff must first exhaust local
remedies, it has been held that the courts will intervene where the plaintiff is able to show
cause why the court should interfere with the contractual position. Such a situation might
arise where the plaintiff is able to show that the courts are better suited to deal with the
issues raised in the dispute (eg the GPRTU Case ) or where the parties have manifested
an intention not to be any longer bound by resort to domestic tribunals.
LEIGH V. NATIONAL UNION OF RAILWAY MEN [1969] 3 AER 1249
BAKER V. JONES [SUPRA]
WARD BREW V. GBA [SUPRA]
ESSILFIE V. TETTEH [SUPRA] where the court notes some of the factors which will
justify recourse to the courts by an aggrieved party notwithstanding the exclusionary
clause postponing jurisdiction to the ordinary courts to include:
1. If there is no competent domestic forum
2. If the principle of natural justice will be breached
3. If issues involved are purely issues of law
4. If it can be established that members by their previous conduct evince a clear intention
not to resort to the domestic procedure.

Finally, it has been held that because exclusionary clauses cannot completely oust the
jurisdiction of the courts, they at best suspend the determination of the dispute by the
courts pending the exhaustion of the local remedy.
*Hence it has also been held that the proper order for the defendant to apply for where in a
court action the defendant contends that the plaintiff ought to have exhausted domestic
remedies first is a stay of proceedings. Note Carefully
518
In effect, it has been held that an agreement to refer a dispute first to a domestic tribunal,
is to all intents and purposes only a submission to arbitration and that the remedy for
breach of such a submission is a stay of proceedings.
ESSILFIE V. TETTEH [SUPRA]
KUSI V. SHELL COMPANY OF Ghana LTD [1973] 1 GLR 173 CA

Further, while on the subject, it is worth mentioning the related principle that the parties to
a contract cannot contract themselves out of a provision of the provisions of a statute
especially those dealing with public policy.
JOHNSON V. MORETON [1980] AC 37
DHALOMAL V. PUPLAMPU [1984-86] 1 GLR 341

OUSTER CLAUSES UNDER STATUTES (STATUTORY Ouster Clauses)

These are provisions in statute which expressly or by necessary implication prohibit or
restrain the ordinary courts from dealing with certain matters or from exercising any
supervisory or review powers over other lower bodies or tribunals etc.

As previously noted statutory ouster clauses may take one of or a combination of several
forms. These clauses can for example be conveniently be classified into partial ouster
clauses and total ouster clauses.
See E.D. Kom: [1980] 12 RGL 148@151.

Partial ouster clauses oust the jurisdiction of the court in specific matters only not
totally. For example
a) An ouster clause which simply confers exclusive jurisdiction in specific matters on an
inferior body or tribunal etc but does not take away the jurisdiction of the ordinary courts
to review decisions of these bodies by issue of prerogative orders etc – see s57 Act 459 (or
section 50(1) of Act 370).

b) Ouster clauses which after giving an inferior body or tribunal exclusive jurisdiction in
the matter, partially bars review of the decision of the inferior body or tribunal by ordinary
superior courts by use of expressions to the effect e.g. “that such a decision shall be final”
etc.
SEE NRCD 172 (REPEALED).

(c) An ouster clause might not give the inferior body or tribunal exclusive jurisdiction in
the matter yet might go on to completely bar the ordinary superior courts from reviewing
decisions or judgments of this lower body or tribunal e.g. by barring the issue of
prerogative orders etc against such a decision. Such a clause in a broad sense also only
partially bars the jurisdiction of the ordinary court. In other words they take away the
jurisdiction of the ordinary courts only in respect of a review jurisdiction or their

519
supervisory jurisdiction eg Public Tribunal 1984 PNDCL 78 esp s24(1) (a) and (b);
NRCD 172 (repealed)

Complete ouster clauses on the other hand confer exclusive jurisdiction on an

inferior body in respect of a particular matter and in addition purports to completely bar
the ordinary superior courts from reviewing the decision or judgment in any way. Eg by
barring review of the decision or judgment including the issue of prerogative orders like
certiorari, quo warranto etc eg AFRCD Decree on Special matters 1979 AFRCD 23 s 3(b)
and(c) and s7(2)

Finally ouster clauses may assume the nature of indemnity provisions such as stated in
AFRCD Indemnity Decree AFRCD 22 s 1 and 2

Historical and common law background

Historically, the legal position regarding statutory ouster clauses largely reflected the
common law presumption against ousting the jurisdiction of the ordinary courts.
Specifically this presumption is to the effect that a statute should not be construed as
taking away the jurisdiction of the ordinary court particularly the superior courts, in the
absence of clear and unambiguous language to that effect.
Anisnimic Case Also EX - Parte Ofosu Armah

Pursuant to this provision the courts have often construed provisions which purport to oust
the jurisdiction of the court strictly. Hence where the provision is capable of more than
one meaning the meaning which has the effect of preserving the jurisdiction of the
ordinary curt will be preferred.

Consequently it has been held that expressions that such that the decision of the court or
tribunal shall be final or that “no appeal shall lie from such decision, prohibits appeals
only and not the prerogative orders.” Experts Ad jeKum tum 1982 83 GLRExparte
Gilmore

Even though the courts have tendered to construe statutory ouster clauses strictly they
have not hesitated to give effect to them where the statutory provisions clearly ousts the
jurisdiction of the court in a particular situation. KwaKye V A G

The common law authorities also appear to support the view that no matter how
comprehensively drafted, an ouster clause will still be ineffectual to oust the jurisdiction
of the superior courts where the statutory conditions of its application are not satisfied.
Darkwa V The Rep 1985 GLR

Furthermore there is some suggestion in a number of the authorities that an ouster clause
whatever its scope will still not be effective where the decision of the inferior court or
tribunal is a nullity – because it was arrived at without jurisdiction or in excess of
520
jurisdiction of the court. Trismic on. No case has been limiting the jurisdiction of the court
See KwaKye V A G

These authorities are however doubtful today. It appears that much will depend on the
express provision of the ouster clause itself. In Ghana a number of decisions of the
superior courts that ouster clauses would in some circumstances an ouster clause will be
enough to protect what would ordinarily be considered to be a nullity – provided the right
formula is used

1992 Constitution and Statutory Ouster clauses

As previously noted the law in Ghana today regarding ouster clauses (particularly
statutory ouster clauses) has been substantially reshaped by the provisions of the 1992
Constitution. By its express provisions, under Art 125(3) the constitution vests the final
judicial power in Ghana in the judiciary and under art 125(5) gives the judiciary
jurisdiction in all matters, civil and criminal, including matters relating to the constitution
and such other jurisdiction that parliament may by law confer.
In addition, the constitution assigns specific jurisdiction (original, appellate, supervisory
etc) in certain matters to specific courts. And presumably these cannot be violated by any
statutory ouster clause however detailed
ARICLE 129-133 Outlining the Jurisdiction of the Supreme Court (SC); 140-141 (HC).

1. The effect of these constitutional provisions is to effectively render unconstitutional

ouster clauses in several existing statutes (ie statutes in the system before the constitution
came into force) which are inconsistent or contrary to provisions of the constitution.

2. These clauses/constitutional provisions also have the effect of barring future legislation
by the parliament containing ouster clauses inconsistent with constitutional provision. In
short save in those instances where ouster clauses are permitted by the constitution itself,
any ouster clauses which seeks to oust the jurisdiction of the ordinary courts, will be
unconstitutional and therefore null and void.
MOSI V. BAGYINA
MCFOY V. UAC

The effect of the foregoing is that much of the old law on ouster clauses will not be
relevant today. Our present concern is then directly with those issues relating to ouster
clauses which appear to have survived the provisions of the 1992 Constitution or are
permitted by same.

Thursday, May 18, 2006

Specifically, a number of key concerns regarding ouster clauses and statutes persist or still
remain even after the coming into force of the 92 constitution. Namely:

521
i) Concerns relating to a number of statutes which purport to or are perceived to oust the
original and or appellate jurisdiction of the ordinary courts – s57 Act 459 on Chieftaincy;
s57 Act 370; s12(1) Land Registration Law 1986 PNDCL 1952; s15 of Diverstiture of
State Interest (Implementation Law) PNDCL 326; s18 Non Performing Assets Recovery
Trust Law; s22(1) CHRAJ Act 1993 Act 456

ii. Concerns relating to a number of statutes which purport to or are perceived to oust the
supervisory jurisdiction of the ordinary courts – specifically the High Court and the
Supreme Court over other lower bodies and tribunals – s22(1) CHRAJ Act Tulom Adamu
v UCC

iii. Concerns that relate to the nature, scope, conditions for their issue of the principal
vehicles for the exercise of the supervisory jurisdiction of the high court and Supreme
Court. See Order 55 of CI 47.

OUSTER CLAUSES THAT PURPORT TO OUST THE ORIGINAL AND OR

APPELLATE JURISDICTION OF THE ORDINARY COURTS
Jurisdiction of the High Courts in chieftaincy matters. Note Carefully

The central issue here is whether or not the HC should have concurrent original
jurisdiction with the Chieftaincy Tribunal (i.e. the judicial committee of the National
House of Chiefs, Regional and traditional House of chiefs and traditional councils in a
clause affecting chieftaincy.

The problem here involves the constitutionality of the CHIEFTAINCY ACT (Act 370)
and section 57 of the Courts Act (Act 459) both of which purport to give exclusive
original jurisdiction to the chieftaincy tribunal in a cause or matter affecting chieftaincy.It
has been argued that these provisions are clearly unconstitutional.

From the authorities there appears to be two main schools of thought on the issue:

Proponents of the first school have strongly argued that the provisions of section 15 of Act
370 is in conflict with article 140(1) while it is also contended that section 57 of Act 459
conflicts with article 137(1) as well as article 140 (1) of the constitution.

The critical argument offered by proponents of the first school is that by its clear
provisions, article 140(1) of the Constitution confers jurisdiction on the High Court “in all
matters, civil and criminal” and in their view, this undoubtedly includes chieftaincy
matters.

522
See ED KOM: CIVIL JURISDICTION UNDER THE COURTS ACT 1993, ACT 459.
SEE GBA CLE PUBLICATIONS

See also JNK TAYLOR: SCOPE OF HUMAN RIGHTS IN Ghana:[1993-94] RGL 84@
96.

DISSENTING JUDGMENT OF ADADE JSC IN REPUBLIC V HIGH COURT

KOFORIDUA; EX
PARTE BONSU NYAME [unreported].

The proponents of this first position further contend that the jurisdiction of the High Court
“in all matters” is under article 140(1), is subject only to the provision of the constitution.
[In effect the only provision in the constitution that would override article 140 (1) is the
only one that is in conflict with Art 140 (1) This is the effect of It phase “subject to” hence
in effect in the absence of any other provision Art 140 (1) should be given effect to]. And
this, they argue, implies that any limitation on the jurisdiction of the High Court contained
in any other law (i.e. other than the constitution) is simply irrelevant. Hence, for the
proponents, anybody who contends that the High Court does not have jurisdiction in
chieftaincy matters has the burden of pointing to the provision of the constitution that
excludes the jurisdiction of the High Court in chieftaincy matters.
The proponents then contend that there is nothing in the constitution itself, particularly the
provisions of chapter 22, especially article 270, 273 (National House of Chiefs,) 274
(Regional House of Chiefs) which confer exclusive jurisdiction in causes and matters
affecting chieftaincy on the chieftaincy tribunals.

And here, it is further contended that under the 1992 constitution, exclusive jurisdiction is
not given by inference but expressly or by necessary implication as for example under
article 130(1) and 135(1).
See Adade JSC in EX PARTE BONSU NYAME [SUPRA]

In the circumstances, it is contended by proponents of the first school that section 15(1) of
Act 370 and section 57(1) of Act 459 are clearly unconstitutional as being in conflict with
the provisions of the constitution. See Adade in Ex-Parte BonsuNyame .

See Kludze: CHIEFTAINCY JURISDICTION AND THE MUDDLE OF

CONSTITUTIONAL INTERPRETATION IN Ghana. [1998] 42 JOURNAL OF
AFRICAN LAW @ 37.

On the other hand, proponents of the second school of thought (to the effect that the
HC does not have concurrent jurisdiction in chieftaincy matters) contend that there is no
conflict between section 15(1) of Act 370 and section 57 of Act 459 on the one hand, and
the provisions of article 140(1) and 137(1) of the Constitution.
This second position has recently received the blessing of the Supreme Court in a number
of important authorities.
SEE: GBA V. A-G [7th Feb 1995 unreported].

523
REPUBLIC V. HIGH COURT DENU; EX PARTE AVAGALI IV [1993-94] 1 GLR 139
[BUTA 239]
REPUBLIC V. HIGH COURT, KOFORIDUA; EX PARTE BONSU NYAME [SUPRA]
REPUBLIC V. HIGH COURT, KUMASI; EX PARTE ABUBAKARI [no 2 ] [1998-99]
SCGLR 904.
REPUBLIC V. HIGH COURT, KUMASI; EX PARTE ABUBAKARI [NO 3] [2000]
SCGLR 45

Several key arguments have been offered in support of this position.

First and most fundamentally, it has been argued that, contrary to the widely held view,
article 140 (1) does not give the HC original jurisdiction in all civil and criminal matters.
Here, it is maintained that the expression “jurisdiction in all matters” in article 140(1) only
refers to the general jurisdiction of the High Court as contrasted with its specific
jurisdictions, namely-original, supervisory, appellate, review jurisdiction etc and that each
of these specific jurisdictions as may be conferred on the HC by the constitution or any
other law; hence the mention in article 140(1) of “such original appellate and other
jurisdiction as may be conferred by this constitution or any other law”

Indeed, Bimpong Buta, one of the foremost proponents of this position, forcefully
concludes that the true effect of article 125(5) of the 92 constitution and article 140(1) is
that:
“the legislature had the power to apportion jurisdiction in all civil and criminal matters
among the superior and inferior courts and that the specific jurisdiction in chieftaincy
matters was effected by legislation such as 15(1) of Act 370 and now 57 of Act 459”.

The foregoing argument that article 140(1) first only provided in respect of the general
jurisdiction of the HC and the specific jurisdictions of the HC whether orgianal, appellate
etc is as given by the constitution or any other law, received the respectable and
authoritative support of Edward Wiredu JSC as he then was in Ex Parte Bonsu Nyame
[supra] as follows:
“It must be mentioned that article 140(1) does not by any express words confer original
jurisdiction in all matters on the HC. Article 140(1) in my respectful view, deals with the
general jurisdiction of the HC just as articles 129 and 137(a) refer to the general
jurisdiction of the SC and the CA respectively” fill in.

Proponents of the second school also contend that even if the HC is considered under
article 140(1) to have jurisdiction in all matters that is clearly made subject to the
provisions of the constitution. This it is said, shows that the framers of the constitution did
not intend to give very wide and absolute jurisdiction in respect of every justiciable matter
in the country to the HC.
The framers of the constitution intended that the HC and CA should not extend their
jurisdiction to causes or matters where adjudication has been specifically assigned to other
adjudication bodies or tribunals that have also been established under the constitution.
ABBAN CJ in EX PARTE BONSU-NYAME.

524
Consequently, it is contended that the provisions of chapter 22 of the constitution,
particularly article 270(3)(a); 273(1), 274 (3)(c) and (d) show a clear intention of the
framers of the constitution to give exclusive jurisdiction in chieftaincy matters to the
chieftaincy tribunals. But this could be misleading and that if the chieftaincy tribunals
were to have exclusive jurisdiction chapter 22 would have said so expressly.

Thirdly, proponents of the second school have maintained that a reference to the legal
history of the provisions on chieftaincy in the constitution; to Act 370 and Act 459-
particularly the legislative antecedents on the law of chieftaincy from section 88 of the
Courts Ordinance (CAP 4) (1951 Rev) through Act 372 to Act 459 show a clear intention
of the legislature to give exclusive jurisdiction in causes and matters affecting chieftaincy
to the chieftaincy tribunal.

The policy rationale here is the desire to reserve the determination of causes or matters
affecting chieftaincy to the chieftaincy tribunals where persons with requisite knowledge
and experience of customary laws, norms, customs and usages might deal with them.
See MAJORITY POSITION IN EX PARTE BONSU NYAME.
In response it has to be noted that Custom come in where under the MOPA s. 2 (1) is
absurd or ambiguous. In this case the provision is cear in context and there is no need for
departure. However, the matter is still not conclucive .

In conclusion the proponents of the second school hold that there is no conflict between
section 15(1) of Act 370 and 57 of Act 459 on the one hand and the provisions of article
140 on the other. In their view then, the HC does not have concurrent original jurisdiction
with the chieftaincy tribunals. And for the same reasons, the CA cannot hear appeals in
these matters (chieftaincy matters).

SECTION 12(1) OF PNDCL 152

The central issue here is whether s12(1) ousts the jurisdiction of the ordinary courts of the
land particularly the High Ct in land matters arising in registration districts and if so
whether s12(1) is not in conflict with art 125(3) and (5) and 140(1) of the constitutions.
S12(1): no action concerning any land or interest therein in a registration district shall be
commenced in any court until the procedures for certain disputes under this law have been
exhausted

Until the recent authoritative pronouncement on this matter, by the SC in Boyefio v

NTHC Properties 1996-97 SCGLR 531 the legal profession including the legal authorities
were largely divided on this issue/

On the one hand the position was held that by its clear heading, s12(1 ) prohibited the
ordinary courts from handing disputes in registration districts until the procedures for
settling disputes under PNDCL 152 had been exhausted
GhanataV Mesherin Shou Shu
Papa Paul V ITIC

525
On the other hand a number of cases have forcefully held that s12(1) did not automatically
oust the jurisdiction of the High Court in respect of all disputes relating to land in
registration areas. Kasser V Raze| 1993 GLR

In the Boyefio case, the SC after a lengthy analysis of the relevant law and conflicting
judicial authorities held that:
the land title adjudication committee established under PNDCL 152 was not a tribunal
vested with general jurisdiction to handle any land suit in the Registration district; but was
rather an internal or domestic tribunal of the Land Title Registry vested with jurisdiction
under section 12(1) to deal only with actions relating to disputes arising in the course of
the exercise by the Land Title Registry of its power in registering such titles to land and
interests therein.
that the disputes which were to be referred to the Land Title Adjudicating Committee for
determination and in respect of which disputes envisaged under section 124(1) could arise
include:
Disputes relating to conflicting claims in respect of land registered under Act 122.
Disputes relating to the registration or refusal to register an application under section
12(2)
Disputes relating to conflicting claims
Disputes relating to accuracy of boundaries and situation of land on registry maps and
plans. (Section 37 (2) ).

Consequently the Supreme Court (SC) was of the view that section 12(1) did not oust the
jurisdiction of the High Court in all land suits nor was it inconsistent with articles 125(3)
and 140(1) of the 1992 Constitution.
Further, the court was of the view that where an enactment had prescribed a procedure by
which something was to be done, it was that procedure alone that was to be followed and
that section 12(1) of PNDCL 152 was in conformance with modern practice to set up an
internal tribunal in an institution to have the first bite at disputes arising with in that
institution before recourse was made to the courts if the matter did not end up at the
Internal Tribunal.
In effect section 12(1) only postponed the exercise of the jurisdiction of the court and did
not oust it altogether.

SECTION 15(1) OF PNDCL 326 AND THE CONSTITUTION 1992

The problem here has to do with the constitutionality of s15 of PNDCL 326 in the light of
the constitutional provisions. The problem is dealt with in Sam II v AG [2000] SCGLR
305.
Here it was held that S15 which provided that no action was to be brought and that no
court shall entertain any proceedings against the state or DIC; committee or member
thereof in respect of any act or omission arising out of the disposal of any state interest
made or under consideration under that law, was unconstitutional on account of the
provisions of the Constitution, particularly article 140(1) etc.

526
THE 1992 CONSTITUTION AND OUSTER OF THE SUPERVISORY JURISDICTION
OF THE ORDINARY COURTS, SPECIFICALLY THE HIGH COURT AND
SUPREME COURT
The 1992 Constitution under articles 132 and 141gives the Supreme Court and the High
Court respectively, supervisory jurisdiction over all other lower courts and adjudicating
bodies.
By article 161 of the Constitution, supervisory jurisdiction includes jurisdiction to issue
writs in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto.
The provisions are also repeated in sections 5 and 16 of the Courts Act 1993 (Act 459) in
respect of the Supreme Court and High Court respectively. And here, it is to be noted that
the definition of supervisory jurisdiction is only an extending definition and in appropriate
cases, the HC and the Supreme Court might grant such other Order(s) as is appropriate to
its supervisory jurisdiction.
REPUBLIC V. STOOL LAND BOUNDARY SETTLEMENT COMMISSION; EX
PARTE MAMPONSU STOLL (HC SEKOND 17/03/2000) (unreported but to be done so
in [2000] GLR.
British AIRWAYS V. A-G [1996-97] SCGLR 547 per BAMFORD ADDO JSC
REPUBLIC V. HIGH COURT SEKONDI; EX PARTE SLIPPI-MENSAH (24 TH May
1994 unreported).
It is also important to note here that the supervisory jurisdiction given to the Supreme
Court over the High Court which is a superior court of record under article 132 of the
Constitution, is clearly a novelty in the law of judicial review in this country and which
was first introduced by the 1969 Constitution and has been retained in subsequent
constitutions.

It is also important to emphasise here that the respective jurisdiction of the Supreme Court
and the High Court under article 132 and 141 respectively [of the 92 Constitution] are
only in respect of lower courts and lower adjudicating bodies and authorities and would
for example not extend to purely administrative bodies.
REPUBLIC V. HIGH COURT DENU; EX PARTE KUMAPLEY [2003-2004] 1 SCGLR
719.

Presumably then, purely administrative decisions of administrative bodies and officials are
not covered. But then, even in respect of such administrative bodies and officials, article
23 of the Constitution imposes upon them a duty to act fairly and reasonably and comply
with the requirement imposed on them by law.
Article 23 of the Constitution also provides that:
“…persons aggrieved by the exercise of such acts and decisions shall have the right
to seek redress before a court or other tribunal”

Clearly then, even in respect of such administrative bodies and officials, an ouster clause
that denies the aggrieved persons access to redress in court will be clearly
unconstitutional.
AWUNI V. WEST AFRICAN EXAMINATIONS COUNCIL [2003-2004] SCGLR 471.

527
Perhaps the important point to note here, is that lower courts and adjudicating authorities,
Chieftaincy Tribunals, Non-Performing Asset Recovery Trust, CHRAJ, etc are under the
Constitution subject to the supervisory jurisdiction of the ordinary courts, particularly the
High Court and the Supreme Court, and any clause which attempts to oust the supervisory
jurisdiction of the ordinary courts will to the extent be null and void.

Hence in the case of CHRAJ for ex it has been held that provisions of s22(1) of the
CHRAJ Act did not render CHRAJ immune from the supervisory jurisdiction of even the
High Court.
CHULUM MIZIMAH ADAMU V. UCC & CHRAJ (High Court, Agona Swedru 15 th July
1999 per Kusi-Appauh J (as he then was).
REPUBLIC V. HIGH COURT ACCRA; EX PARTE CHRAJ (KWAME ADDO
INTERESTED PARTY). 2003/2004 SCGLR
In relation to the Non Performing Assets Trust (NPAT), see:
REPUBLIC V. NPAT; EX PARTE BHC LTD [1995-96] 1 GLR 151.

In respect of chieftaincy tribunals it is to be noted that the authorities have indicated quite
clearly over the years that the supervisory powers of the superior courts by way of the
issue of prerogative orders like certiorari, prohibition etc are distinguishable from the
issue of whether the HCT had original concurrent jurisdiction in chieftaincy tribunals in
the cause or matter affecting chieftaincy and that the courts will issue such orders as
appropriate notwithstanding the ouster clauses in s15(1) of Act 370 and 57 and 459.
Buta 242-243
Rep v HCT Kumasi ex parte Abubakari NO II [1998-99] SCGLR 904.

Hence Buta notes that “the law is well settled that where a judicial committee of a
traditional council in the exercise of its exclusive jurisdiction in chieftaincy matters is
wrongly constituted or where a decision is obtained by fraud or duress, the HCT in
exercise of its supervisory powers can intervene by orders of certiorari and prohibition etc.
If a traditional council commits breaches of the rule of natural justice before making
declaration of destoolment, the HCT can issue an order of certiorari to quash the decision.

The authorities are however clear that the superior courts specifically the HCT and SCT
will resist any attempt to invoke their supervisory powers to determine through the
backdoor what is in substance a cause of matter affecting chieftaincy and thereby
circumvent the exclusionary clauses relating to chieftaincy.
Buta 245-247
Rep v National House of Chiefs; ex parte Faibil III [1984-86] 2 GLR 731
Yiadom v Amaninampong [1981] 1 GLR 3 SC

Similarly the courts have resisted all attempts to circumvent the ouster clauses relating to
causes and matters affecting chieftaincy by way of suits couched in terms of actions to set
aside jurisdiction of chieftaincy tribunals on grounds of fraud etc when in substance these
relate to causes and matters affecting chieftaincy.
Rep v HCT Accra; ex parte Odonkor Teye [1984-86] 2 GLR
Rep v HCT Accra; ex parte Ikuntan 1989-90 2 GLR 168
528
Finally it has to be noted that aplications in respect of “quo warranto” (by what authority
or matter) presents special difficulties in the exercise of the supervisory jurisdiction of the
HCT relating to chieftaincy matters.

The principal vehicles for the exercise of the supervisory jurisdiction of the high
court and superior courts
We are basically concerned here with the law relating to the nature scope and conditions
for the proper grant and the legal effect of the principal instrument by which the HCT and
SC exercise supervisory powers over all other lower courts and adjudicating authorities –
especially the prerogative orders like certiorari, mandamus, prohibition, quo warranto
etc.The law relating to these instruments are largely outside the immediate concern of the
law of interpretation simpliciter and one might have to turn to other sources as in
constitutional and administrative law as well as the law of civil reliefs and remedies for
details on this.
Habeus corpus halsbury 4th ed para 11 52-1520
Mandamus – halsbury 4th ed vol 1 para 89-127 and vol 11 para 1523-1527
Prohibition - halsbury 4th ed vol 1 para 128 – 145
Certiorari halsbury 4th ed vol 1 para 146 – 167
Desmith Wol and Jowall Principles of Judicial Review 1999

Our principal concern here is only to consider 2 aspects of the subject that has
proved problematic in this country namely

a) Conditions under which certiorari can be granted for errors of law on the face of the
record

b)The jurisdiction of the ordinary court particularly HCT to grant an order of quo warranto
relating to chieftaincy.It is also important to understand here that the supervisory
jurisdiction of the SC and the HCT under Art 131 and 141 is only an aspect of the powers
of judicial review of these courts exercisable by these them.

Principally judicial review is now understood in this country in three senses namely:

i. In the sense of the means through which the courts control the exercise of
administrative power (judicial review of administrative action) or the exercise by the
lower courts and tribunals of their powers and functions under law. This is the sense in
which judicial review is understood in England where judicial review largely emanated
from the KB divisions (HCT) and the bulk of the case law imported into this country is on
this kind of judicial review. In this country judicial review in this sense is currently largely
exercised by the HCT under order 55 of CI47

ii. Judicial review in the sense of the enforcement by the courts of the supremacy of the
constitution – ie the power to invalidate legislation or any other acts in conflict with the
constitution. Where in a sense all courts enforce the constitution in the performance of
529
their function where its meaning is plain the constitution 92 expressly gives to the SC
under art 2(1) and 130(1) the exclusive power of interpretation and enforcement of the
constitution where there are doubts as well as the power to declare any enactment of act or
omission inconsistent with the constitution null and void. Subject to the jurisdiction of the
HCT to enforce fundamental human rights under Art 33.

NPP v AG 31st Dec Case ADUSEI V A G(SUPRA)

In the sense of the supervisory power of the SC over other superior courts namely the
HCT and COA under 132 of the constitution. This is a novelty introduced under the 1969
constitution and has since been repeated in subsequent constitutions. As several authorities
have pointed out it is very important that the supervisory jurisdiction of the SC over other
superior courts here is distinguished from that exercised by the HCT or in some cases
even the SCt over other lower courts and adjudicating authorities. Several authorities have
emphasized that one is careful not to apply the English authorities on the subject
wholesale when considering this novel supervisor power of the SC over superior courts in
Ghana since this will have the effect of treating the SC just like any other lower court or
tribunal as is the case in England.
Rep v H Court Accra; ex Parte International Fund for Developing Countries where Twum
JSC lamented as to the need to draw a clear distinction as to the supervisory powers of the
SC as to other courts on the one hand and the supervisory powers as exercised in the High
Court and Supreme Court over other lower courts and adjudicating authorities.
Rep v HCt Accra Ex parte CHRAJ (Kwame Addo interested Party) [2003-04] SCGLR
(supra).
In this case the SC took up the challenge and tried to outline new standards for the
exercise of the supervisory jurisdiction of the SC over other superior courts.

Certiorari and errors of law on the face of the record

From the foregoing our subsequent analysis of the law relating to the issue of certiorari for
errors of law in this country will be from 2 main perspectives namely:

1.Supervisory powers as exercised by the HCt over

(a) statutory administrative bodies and authorities and
(b) lower courts and tribunals
Supervisory powers exercised by the SC over the HCt and COA

That error of law on the face of the record is only one of a number of reasons for which
certiorari will issue from the HCT or SC to quash the decision or order of a lower court or
tribunal. Indeed in England and most other common law jurisdictions today, judicial
review – by way of certiorari and prohibition are no longer limited to errors of law on the
face of the record and will lie to impugn any error or unlawful decisions manifest on the
face of the record. Hence the English courts for example did recognized 3 broad grounds
of judicial review to wit illegality, irrationality and procedural impropriety.
Council v Civil Service union v Minister for Civil Service [1985] AC 374@410
REP V HIGH CT ACCRA EX PARTE CHRAJ (KWAME ADDO INTERESTED
PARTY)
530
Error of law
As to what constitutes an error of law, Buta has rightly noted as 220 LIG that the
categories of error of law are never closed. Halsbury 4 th ed vol 1para 63 however provides
a useful guide which defined errors of law of the kind that will grant the order of
certiorari. These include: “misinterpretation of a statute or any other document or rule of
common law, asking oneself and answering the wrong question, taking irrelevant
considerations into account or failing to take relevant considerations into account when
purporting to apply the law to the facts; admitting inadmissible evidence or rejecting
admissible and relevant evidence;exercising a discretion on the basis of incorrect legal
principles giving reasons which disclose faulty legal reasoning or which are inadequate to
fulfill an express duty to give reasons and misdirecting oneself as to the burden of proof.

The difficulty in practice are however one of determining whether a particular error should
be classified as one of law or fact. As the learned editors of Halsbury point out in vol 1
para 63, determination of primary facts is not a matter of law but to make a finding
unsupported by any evidence is a matter of law. It also suggests that drawing inferences
from the facts as found and in particular determining whether the primary or secondary
facts fall within the ambit of the statutory description, are potentially classifiable as
questions of law, questions of fact, or questions of mixed law and fact depending on the
circumstances.

All in all however if he question is one which only a trained lawyer can be expected to
decide correctly there is a clear presumption that it will be classified as a question of law.

On the face of the record

The authorities reveal a number of conflicting decisions as to what constitutes record in
the context. Essential the difference is between authorities which limit the definition of
record to the authorities which documents which initial the proceedings, the pleadings,
and the adjudication on the one hand and those which have a broader definition of record
that will include inter alia the transcript of proceedings, the evidence, exhibits or reasons
for the decision.

Halsbury vol 1 para 84 for eg defines record to include “ the decision itself, such reasons
if any that are given for the decision and any other material or instrument identified
therein with such a degree of particularity for it to be construed as forming part of the
record”

The learned authors of Halsbury continue thus “the record cannot be supplemented by
affidavit or other evidence designed to disclose a latent error of law”.

However in Joseph &Sons v Jebeille 1969 CC 98 the Ghana COA defined record as not
confined to the actual order or adjudication of the inferior tribunal but as extending to all
documents which were kept by the inferior tribunals as a permanent memorial and
testimony of its proceedings.

531
Again in Asor v Amegboe 19781 GLR 153 the full bench of the CA again also defined
record as ff:
The record is that which the inferior court or tribunal physically helps as a formal record
of its proceedings.
It should be emphasized that the dominant position in Ghana today favors a more limited
definition of record which is reflected in the English case of R v Northumberland
Compensation Commission ex parte Shaw 1952 1 KB 338@358 per Lord Denning. This
definition of record has been adopted in several local authorities the most recent of which
include the decision of the SC in Republic v HCt Accra ex parte Eastwood Ltd 1995-96 1
GLR 689@694-695 wherein it was noted that “the record must contain at least the
document which initiates the proceedings, the pleadings if any and the adjudication but
not the evidence not reasons unless the tribunal chooses to incorporate them; if the
tribunal does state its reasons and the reasons are wrong in law certiorari will lie to quash
them.
Rep v HCT Accra ex parte CHRAJ (Kwame Addo); Craig v The State of South Australia
1995 184 CLR@149

In the light of the foregoing decision the SC held in Ex Parte Eastwood that the document
constituting record must be limited to a decision on the issues raised in that case. It was
therefore held that all matters such as the affidavit, letters, and evidence in the earlier
proceedings in the HCT leading to the instant application for certiorari against the
decisions and orders of the HCT could not be countenanced as part of the record.

Other local decisions in which the definition in ex parte Shaw and ex parte Eastwood have
been approved include: Rep v Acc Special Circuit Court ex parte Akorsa 1978 GLR
212@216; Rep v Accra Circuit Ct ex parte Appiah 1982-83 GLR

The rationale underlying the preference for the very limited definition of record is
undoubtedly that if the transcript of proceedings, evidence, reasons etc become part of the
record, it will as noted by the Australian HCt in Craig only “go a long way towards
transforming certiorari into a discretionary, general appeal for errors of law upon which
the transcript of proceedings and the reasons for the decision could be scoured and
analyzed in the search for some internal error.

Some key distinctions

It is important to emphasize at this juncture that a proper understanding of the law relating
to the circumstances in which certiorari will lie in Ghana today in respect of an error of
law on the face of the record requires that we draw a number of critical distinctions
namely:

A) In respect of the bodies or authorities against which certiorari is sought. Specifically

the distinction here is between
1)Statutory administrative authority or body
2)Inferior courts and tribunal
3)Superior courts and tribunal

532
B)Between jurisdictional errors and non-jurisdictional errors of law

By jurisdictional error here is meant an error made when the court or tribunal amenable to
the supervisory jurisdiction of the superior courts takes a decision without jurisdiction in
the sense that he was not entitled in law to enter into that enquiry or wrongly assumes
jurisdiction in that matter. Whereas a non-jurisdictional error is made where the court or
tribunal has jurisdiction or statutory power to deal with the matter but commits an error in
the exercise of that power or jurisdiction.
Buta LIG 216

The classic definition here is that of Lord Reid in ANISMINIC LTD V FOREIGN
COMPENSATION TRIBUNAL:
“it has sometimes been said that it is only where a tribunal acts without jurisdiction that its
decision is a nullity. But in such cases the word jurisdiction has been used in a very wide
sense and I come to the conclusion that it is better not to use the term except in a narrow
and original sense of a tribunal being entitled to enter on the enquiry in question. But there
are many cases where although the tribunal has the jurisdiction to enter on the enquiry, it
has done or failed to do something in the course of the enquiry which is of such a nature
that its decision is a nullity. It may have given a decision in bad faith. It may have a made
a decision which it had no power to make. It may have failed in the course of the enquiry
to comply with the requirements of natural justice. It may in perfect good faith have
misconstrued the provision giving it power to act so that it failed to deal with the question
remitted to it and decided some question which was not remitted to it. It may have refused
to take to take into account something it was required to take into account. Or it may have
based its decision on some matter which under the provision setting it up it has no right to
take into account…”

In practice the distinction between jurisdictional and non jurisdictional error features
largely in the law regarding when certiorari will lie for error of law on the face of the
record in respect of the 3 bodies distinguished above.

a) Statutory administrative bodies and authorities

Historically in considering whether or not certiorari should lie to quash the decision of a
statutory administrative body or authority for an error of law on the face of the record, the
English courts drew a distinction historically between jurisdictional and non jurisdictional
errors. It was said that where certiorari will always lie to quash decisions for jurisdictional
errors, it will lie in case of non- jurisdictional errors only in limited circumstances where
the error is so fundamental as to result in a nullity.
However this distinction between jurisdictional and non- jurisdictional error has been
abolished even in England today by a number of trail blazing decisions.
R v Northumberland Compensation Conman… [1952] 1 KB 338@346

533
 And if there were any doubts on the matter these were clearly laid to rest in the classic
decision of Anisminic namely that in the case of statutory administrative tribunals and
authorities the distinction between jurisdictional and non- jurisdictional errors were totally
abolished.
O’reilly v Mackman [1982] 3 WLR 1096

The position in Ghana today reflects the English position on the matter in relation to
statutory administrative tribunals. The distinction is totally abolished and certiorari will lie
for both jurisdictional and non-jurisdictional error.
Rep v Committee of Enquiry into Nungua Stool affairs; Ex Parte Odai [1996-97] SCGLR

The rationale underlying the position in relation to statutory administrative bodies is

evident. These tribunals have limited jurisdiction prescribed by law and in the absence of
contrary intention in the statute or authority setting it up, it lacks authority to make
decisions not in accordance with the law setting it up.
In Rachal Communciations Ltd [1981] AC 374@383 per Lord Diplock

b) Inferior courts and tribunals

Historically the English courts here also distinguish between jurisdictional and non-
jurisdictional errors in considering whether certiorari should lie against the decision of
inferior courts and tribunals in respect of errors of law on the face of the record. Here it
was held that whilst certiorari will lie in respect of jurisdictional errors it will lie in the
case of non- jurisdictional errors only where the error is so fundamental as to render the
decision a nullity.
Anisminic [supra]

The trend in recent English authorities suggest however that the courts have eliminated or
abandoned this distinction.
Pearlman v Keepers and of Governors Harrow School 1978 3 WLR 736 CA: in this case
Denning suggested that the distinction was no longer relevant.
However see South East Asia Fire Brigs v Non-Metallic Union [1980] 3 WLR 318 where
it was suggested that the distinction might still be relevant even in England.

However contrary to the apparent trend or situation in English law, the legal positioning
Ghana appears to be quite settled today that the distinction is very relevant and that the
determination of an inferior court or tribunal will be liable to be quashed by certiorari
where
a) The court or tribunal commits a jurisdictional error of law manifests on the face of the
record or

b) Commits a non jurisdictional error of law so fundamental as to render the decision a

nullity (as defined in Anisminic ) Otherwise the only remedy available to an aggrieved
party is an APPEAL.
Rep v HCt Koforidua ex parte Birikoramaa [1987-88] 1 GLR 46** [Buta 216]
Rep v Special Tribunal ex parte Forson [1980] GLR 529 [Buta 218]
534
Rep v Accra Special Court; Ex Parte Akosa [1978] GLR 212@215 per Sowah JA

Although there has been several criticisms which questions the basis of the distinction in
relation to inferior courts and tribunals in Ghana as well as other common law
jurisdictions, the positioning Ghana remains basically unchanged.
Denning Closing Chapter 1973
ED Kom Certiorari and non jurisdictional error of law; Buta LIG 220 ff.

The superior courts

As noted earlier our courts have until recently applied the old law on certiorari and errors
of law that was developed in England in relation to inferior courts and tribunals to the
superior courts like the HCT and COA ; and have largely held even in the case of the
superior courts that certiorari would lie for all jurisdictional errors and in the case of non-
jurisdictional errors where the error is so fundamental as to render the decision a nullity.
In effect the courts have not distinguished between the law applied to inferior courts and
tribunals on the one hand and surperior courts on the other . And the courts have often
adopted a broad definition of the kind of error that would render a decision a nullity as
was enunciated in cases like Anisminic supra. This definition it may be recalled is so
broad that the decision of even a superior court like the HCT appeared liable to judicial
review by certiorari (rather than appeal) for virtually all errors of law.
Rep v High ct Accra ex parte Laryea [1989-90] 2 GLR 99@101;
Rep v High ct Accra Ex Parte Eastwood ltd
Rep v High ct Accra Ex Parte Soku [1996-97] SCGLR 525
Rep v High ct Koforidua ex parte Otu [1996-97] SCGLR
Okofoh Estates Ltd v Modern science Ltd [1996-97] SCGLR 224

However in 2 recent decisions, the SC has questioned the propriety of the wholesale
application of the old law to a superior court of record like the HCt especially considering
the very broad definition of errors of law enunciated in cases like Anisminic. These
decisions inter alia stress the need to distinguish between the law of certiorari as applied to
inferior courts and tribunals on the one hand and to superior courts of record like the COA
and HCT on the other.
Rep v High Court Acc. A EX parte IFDC; Rep v Rep v High ct Accra ex parte CHRAJ
(kwame Addo interested party)

In IFDC Twum JSC delivering judgment of SC took position and rightly so that the
grounds for judicial review worked out by the English courts to govern inferior courts are
inappropriate when dealing with the HCT for eg and thought that the application of
Art132 constitution should take account of the fact that the HCT is not only a superior
court of record but also that he court under art 140(1) of the constitution is given
jurisdiction in all matters. In his view on account of the provisions of art 140(1) the HCt
will lack jurisdiction ie commit a jurisdictional error only where it acts outside its
jurisdiction prescribed by the constitution (for eg when it deals with a cause or matter
affecting chieftaincy) or acts outside its jurisdiction under an express statutory provision.

535
This criticism we finally agreed on in In Rep V High Court Accra ex parte CHRAJ
(Kwame Addo Interested Party) where the SC agreed that the old English law on the
subject was inappropriate in relation to superior courts and took the opportunity to totally
review the law on the subject along the lines suggested by Twum JSC in ex parte IFDC.
After an exhaustive analysis and evaluation of the law the court restated the law as ffs:

“Where the HCT or for that matter the COA makes a non jurisdictional error of law which
is not patent on the face of the record the avenue for redress open to an aggrieved party is
an appeal not judicial review.” In this regard, an error of law made by the HCT or COA is
not to be regarded as taking the judge outside the courts jurisdiction unless the court has
acted ultra vires the constitution or an express statutory restriction validly imposed on it.
To the extent that this restatement of the law is inconsistent with any previous decision of
this SC, the court should be regarded as departing from its previous decision/s concerned,
pursuant to art 129(3) of the 92 constitution. Any previous decisions of other courts
inconsistent with this restatement is overruled.”

In sum certiorari will now lie against the decision of a superior court like the HCT:
1) For jurisdictional errors defined in the limited sense of a decision, ultra vires the
constitution or any express statutory restriction validly imposed on the court.
2) In the case of non-jurisdictional errors only for errors of law patent on the face of the
record only, and not all the broad categories of errors listed in cases like Anisminic.

Outside these situations the redress open to an aggrieved party is an appeal.

In effect key and specific grounds for the invocation of the supervisory jurisdiction of the
SC today in respect of the superior courts of record will involve:
1. Situations of jurisdictional error
Chieftaincy situations Rep v High Ct Avadali IV.
Rep v HCt Koforidua ex parte Bonsu Nyame.

2. Cases of non-jurisdictional errors patent on the face of the record

Under the old authorities these patent errors were described as fundamental errors.
Soku; okofo

3. Cases involving denial of natural justice.

Rep v HCt Denu ex parte Agbesi Awusu II [2003-2004] SCGLR 907
Rep v HCT Bolgatanga ex parte HawaYakubu [2001-02] SCGLR 53

Jurisdiction of the ordinary court to grant the order of quo warranto

Basically an injunction in the nature of quo warranto lies against a person who acts in an
office to which he is not entitled but to restrain him from so acting and if necessary to
declare the office to be vacant.
Buta 241

536
The essential conditions for a proper grant of an order of injunction in the nature of quo
warranto as noted by Buta in 241
1 The office must be one of a public nature
2. The office must be created by statute
3. The holder must have already exercised the office ie there must be an usurpation of the
office, a mere claim to exercise it is not enough
4. The remedy is not available to the plaintiff where he has been guilty of acquiescence in
the usurpation of the office or undue delay
5. the office must be substantive ie independent and not merely ministerial to another’s
will

The basic issue here then is whether the HCT or SC can properly issue an order of quo
warranto relating to chieftaincy in the exercise of their supervisory powers under art 141
and 137 respectively of the 92 constitution.

Until recently, there were clearly 2 conflicting lines of authority on the subject. One
school of thought held the view that the HCt and SS can order quo warranto relating to
chieftaincy.
Rep v Boateng; Ex Parte Adu Gyamfi [1972] 1 GLR 317 [BUTA 241]. here an order was
made on the grounds that chieftaincy was a public institution guaranteed by the 69
constitution.
The decision unfortunately did not consider the critical issue whether chieftaincy was an
office created by statute.
Rep v Seigo II ex parte Baffour IV [1979] GLR 378 [Buta 242]
Hackman v Obresi [1981] GLR 658

The other school of thought holds the view that quo warranto cannot be granted in an
action relating to chieftaincy.
Rep v Akyaama ex parte Manu HCt 5/3/84 unreported .

The conflict appears to have been recently resolved in favor of the position that the High
Court cannot grant quo warranto in relation to chieftaincy.
Rep v high Ct Registrar ex parte Yiadom [1984-86] 2 GLR 606
In Re Wa-Na; Fijoli-Na ex parte yakubu 1987-88 1 GLR

Constitutional ouster Clauses

Constitutional ouster clauses raise even more challenging questions of interpretation.

However the view is however held that where clear and unambiguous constitutional ouster
clauses the courts ought to give effect to it since they represent the clear intention of
framers of the basic law of the land. That certain questions should not be reviewed by the
court. In other words where a constitutional ouster clauses is clear the courts have no
power to override them.
537
 VCRAC Crabbe understanding Statutes @ pg 161;
Harrikissoon v Trinidad and Tobago 1981 AC 265 particularly the view of Hyataly
CJwhen he noted that “firmly of the opinion that a court will be acting improperly if a
perfectly clear ouster provision in the constitution of the country which is its supreme law
is treated with little sympathy or scat respect or is ignored without strong and compelling
reasons.

What of course amounts to clear and compelling reason circumstances is of course not
clear from the authorities.

Be that as it may the courts in Ghana have determined that however clearly an ouster
clause is drafted, where any conditions precedent to the application of that ouster clause
has not been complied with, the courts will not give effect to it.
Baden v Graphic Corp

In M V Director of Prisons Ex Parte Schakelforte [1981] GLR 554: this case dealt with the
ouster clause in s15(2) of transitional provision to 92 constitution and the court held that
there must be a factual basis on the application of the transitional provision i.e. there must
be evidence from which the court could determine that the applicant was tried or
purported to be tried by the special court;

In Kwakye v AG; in this case, the SC held that the defendant who was invoking the ouster
clause in s15(2) TP to the 79 consti must produce facts which showed that the AFRC took
or purported to have taken judicial action against the plaintiff.

Hence it has also been held in some jurisdictions that an ouster clause in the constitution
could be reviewed on the ground of jurisdictional error.
Re Sarren 1981 WIR PC Where Cummins noted: [It] means no more than that there be no
enquiry by a court into the validity of an act that the commission is legally authorized to
do; this does not mean that if the commission or a person has something which it has no
jurisdiction to do, or which is beyond it or his power, as defined in the constitution that
act cannot be enquired into by the courts. It must be noted however that a lot in this case
will depend on the wording of a particular ouster clause.

Ouster clauses in the transitional provisions to 92 Constitution (s34 and 35)

299.

The transitional provisions specified in the First Schedule to this Constitution

shall have effect notwithstanding anything to the contrary in this
Constitution.

Here it is to be noted that by virtue of art 299 constitution the TP in the first Schedule are
to have effect notwithstanding anything to the contrary in the body of the constitution
538
itself. In other words in the event of a conflict the provisions of the TP would prevail over
the provisions of the main body of the constitution.
Kuenyehia v Archer

The SC has also held that it only has jurisdiction to interpret the TP in relation to specific
disputes not in vacum.
Bilson v AG [1993-94] 1 GLR 104 SC
S34
S34 TP affords a classic e.g. of a constitutional ouster clauses. Although s34 has as its
marginal notes the word indemnity, its provision clearly goes beyond indemnity simplicter
i.e. indemnity in the sense of protection or insurance against penalties incurred by ones
actions or omissions.
Buta 246 – 261
CEK Kumado “Forgive us Our Trespasses: An examination of the indemnity
clauses of the 92 constitution”.

S34(1) – Personal Liability of PNDC Members etc For Acts or Omissions During the
PNDC Era

34.

(1) No member of the Provisional National Defence Council, Provisional

National defence Council Secretary, or other appointees of the Provisional
National Defence Council shall be held liable either jointly or severally, for
any act or omission during the administration of the Provisional National
Defence Council.

This section appears to indemnify PNDC members, PNDC secretaries and appointees
against personal liability for any acts or omissions during the PNDC era and here it is to
be noted that the provisions does not extend to the successor NDC government and its
appointees. It extends to only acts of official PNDC members and officials before 7th Jan
93.
Sam v AG II 2000 SCGLR 2005.
The difficulty with this sub section is whether or not its provisions which refers to any act
or omission during the PNDC administration is to be construed as indemnifying PNDC
members, secretaries, appointees etc from even their unlawful acts or omissions. Hence
the question can be put: should a PNDC member rape someone during the PNDC
administration, will such a member be covered by the provision.

One view on the matter offered by scholars like Buta is that the courts must construe the
words “any act or omission” restrictively in the context as limited to “lawful acts or
omission” taken in the course of official public duty. And that so interpreted s34(1) will
not prevent a PNDC member, secretaries or appointees from being prosecuted against for
539
any personal, civil, and criminal liability in respect of anything done or omitted to be done
by him in his personal capacity or from doing things on a frolic of his own ie things not
authorized by the PNDC or any law.
Buta 269.

It is important to emphasize here that the interpretation favored by scholars like Buta
entails a departure from the plain meaning of s34(1). Under our preferred MOPA such a
departure from the ordinary meaning will only be justified when it is first established that
the ordinary meaning entails some absurdity. In the circumstances of the instant case it is
arguable that the ordinary meaning leads to absurdity in the wider context of the
provision, it being a constitutional provision which has to be construed in order to
harmonize society and to ensure justice and fairness to all. In those circumstances it could
be contended that the ordinary meaning of s34(1) will lead to absurdity in the sense that it
will inter alia protect clearly unofficial act even criminal acts, of these PNDC members
secretaries and appointees etc which had nothing to do with the PNDC administration and
here it is certainly doubtful whether the intention of the framers was to protect any such
acts or omissions.

The other school of thought however clearly insist on the plain ordinary meaning of s34(1)
and argue that it being plain, it clearly reflects the intention of the framers and must
therefore be given effect to.

Our courts are yet to pronounce authoritatively on the scope and effect of s34(1)

S34(2) (Coup Plotters Protection Clause)

S.34 (2) It is not lawful for any court or tribunal to entertain any action or
take any decision or make any order or grant any remedy or relief in any
proceedings instituted against the Government of Ghana or any person acting
under the authority of the Government of Ghana whether before or after the
coming into force of this Constitution or against any person or persons acting
in concert or individually to assist or bring about the change in Government
which took place on the twenty-fourth day of February 1966 on the
thirteenth day of January, 1972, on the fourth day of June 1979 and on the
thirty-first day of December 1981 in respect of any act or omission relating
to, or consequent upon -

(a) the overthrow of the government in power before the formation of

the National Liberation council, the National Redemption Council, the
Supreme Military Council, the Armed Forces Revolutionary Council
and the Provisional National Defence Council; or

(b) the suspension or a abrogation of the Constitutions of 1960, 1969

and 1979; or

540
 (c) the establishment of the National Liberation Council, the National
Redemption Council, the Supreme Military Council which took office
on the ninth day of October 1975, the Supreme Military Council
established on the fifth day of July 1978, the Armed Forces
Revolutionary Council, or the Provisional National Defence Council;
or

(d) the establishment of this Constitution

On its plain meaning the provisions of s34(2) grants immunity from prosecution in 2
respects
1 . Immunity to the organizers of the successful coup d’etats which overthrew the 60 69,
79 constitutions ie those who took part in the change of government in 66 NLC, 72 NRC;
SMC 1979 AFRC and 81 PNDC
2. Immunity for any act or omission relating to or consequent upon the overthrow of the
government in power before the formation of the NLC, SMC AFRC and PNDC
The principal problem with this provision has often arisen with regard to the meaning of
the provision” any act or omission relating or consequent upon…” here it is to be noted
that this expression is also used in s13a of the transitional provisions to the 69 constitution
and its meaning was first considered by the SC in the case of Donkor v Republic 1971
GLR 30 SC Buta 255 – it was held that the words consequent upon are not terms of art
and have no recognized legal meaning. Hence it was argued that the words should be
given their ordinary meaning and that consequent upon means “following as a result of”
and that in that case the seizure of the vehicles were so proximate in time to the overthrow
of the government that it will be a perfectly normal use of language to say that the seizures
followed as a result of the change and were consequent upon it.

The use of the expression in s34(2) TP to 92 Constitution came up for consideration in the
case of
NPP v AG(31st Dec case) on the issue of the provisions of s34(2) the 5 majority judges in
this case held that they were not relevant because the plaintiffs action neither relate to the
overthrow of the govt of the 3rd rep nor the abrogation of the 79 consti. It was also held
that the effect of s34(2) was to free persons covered by it from punishment or paying
compensation.

In the judgment of Bamford Addo JSC one of the 4 dissentients raised the issue of
whether or not the intended celebration of 31 st December as a public holiday could be
viewed as an act consequent upon the overthrow of the government of the 3rd republic in
terms of s34(2) (a) TP. Her Lordship construed the phrase "consequent upon” in its
ordinary dictionary meaning “following as a consequence” and held that 31 st Dec as a
public holiday as enacted in the Public Holiday Law 1989 PNDCL 220 was an act
consequent upon the overthrow of the government of the 3 rd republic, and in this BA
sought to rely on the decision of the SC in Donkor v Addo

The views of Bamford Addo JSC (as she then was) on the issue has predictably attracted
lots of criticisms on grounds inter alia that “act or omission” in the TP referred to factual

541
acts or omissions such as the seizure of vehicles as in the Donkor case not an enactment
like PNDCL 220.
Buta 262-3

Further it has been argued that the acts of the government of the 4 th Republic (not the
PNDC ) in declaring 31st Dec a public holiday pursuant to the now repealed PNDCL 220
could not be construed as an act or omission consequent upon he overthrow of the govt of
the 3rd Rep because it was not “so proximate in time as was the overthrow of the govt in
power” as was the case in Donkor

It has also been contended that section 34(2) contemplates a situation where the acts
complained of, whether lawful or unlawful, has resulted in some sort of damage or loss for
which a claim for compensation is being instituted against the government of Ghana. This
it is said is the clear intention of the framers.
Adade JSC’s dissenting opinion in 31st Dec case.

Hence it has been argued that section 34(2) has to be construed purposively so as to
restrict the meaning of the phrase “relating to or consequent upon” not only to acts
proximate in time but which by dictates of circumstances in furtherance of the coup d’etat
or change in government and it should be restricted to actions in which a claim of
compensation etc is brought against any member of the PNDC secretary or Appointee,
govt or persons associated with the change in govt.

S34 (3) and 4

(3) For the avoidance of doubt, it is declared that no executive, legislative or judicial
action taken or purported to have been taken by the Provisional National Defence Council
or the Armed Forces Revolutionary Council or a member of the Provisional National
Defence Council or the Armed Forces Revolutionary Council or by any person appointed
by the Provisional National Defence Council or the Armed Forces Revolutionary Council
or by any person appointed by the Provisional National Defence Council or the Armed
Forces Revolutionary Council in the name of either the Provisional National Defence
Council or the Armed Forces Revolutionary Council shall be questioned in any
proceedings whatsoever and, accordingly, it shall not be lawful for any court or other
tribunal to make any order or grant any remedy or relief in respect of any such act.

(4) The provisions of subsection (3) of this section shall have effect notwithstanding that
any such action as is referred to in that subsection was not taken in accordance with any
procedure prescribed by law.
These provisions basically seek to bar the court from questioning in any proceeding
whatsoever an executive or any executive, legislative or judicial action taken or
purported to have been taken by the PNDC or AFRC and their members or appointees
etc. It is to be noted here also that s34(3) and (4) of the TP are basically the same as s15(2)
and (3) of the TP to the 79 Constitution.

542
(5) It is not lawful for any court or tribunal to entertain an action instituted in respect of an
act or omission against a person acting or omitting to act, on the instructions or authority
of the Provisional National Defence Council or the Armed Forces Revolutionary Council
or a member of the Provisional national Defence Council or the Armed Forces
Revolutionary council and alleged to be in contravention of any law, whether substantive
or procedural, in existence before or during the administration of the Provisional National
Defence Council or the Armed Forces Revolutionary Council

The courts have held in respect of these provisions that on account of the use of the word
“purported” the provisions will apply whether or not the action or omission is illegal or is
otherwise rendered a nullity.
Kwakye v AG

The courts have also held that this provision should also be applied in the context of
proceedings as a shield and not a sword.

Again the courts have held that they will not uphold the ouster clauses such as in s34 (3)
and (4) unless they are satisfied that the conditions precedent to their proper application –
particularly the factual basis for the application of this provision – have been satisfied.
Schakelforte (SUPRA)
KWAKYE V. A-G

In respect of s34 (3) there is still some controversy as to the significance of the open
phrase “for the avoidance of doubt”. In NPP v AG (31 st Dec) his Lordship Amua Sekyi
JSC contended (criticizing the reliance by the SC in the Kwakye case on the similarly
phrased s15(2) of the TP to the 79 constitution that s s34 (3) should on account of the
opening phrase not be read as standing alone but as referable to s34 (1) and (2). Hence in
the view of his Lordship s 34(3) should then be construed as extending only to the
indemnity conferred under s34 (1) and (2) and to include only the executive, legislative
and judicial activities of the PNDC and AFRC referred to under that section. In the words
of his lordship the phrase for the avoidance of doubt appearing in s34 (3) TP is not a
formula for sweeping away the Human rights provisions of the constitution…its object is
to explain, expand or limit the effect of the earlier provision.

With this as a guide, it will be seen that s34(3) will not stand alone but is referable to s34
(1) and (2). S34 (2) grants immunity from suit for all those who took part in the overthrow
of the Limann government. S34 (1) grants immunity from suit to PNDC members and
appointees for anything done during rule of council and for the avoidance of doubt s34 (3)
states that the immunity so granted shall include executive, legislative and judicial actions
taken or purported to have been taken by the Council or their appointees. That is all the
meaning that can properly be ascribed to s34(1) and (2)

543
The SC is however yet to come out with a definitive pronouncement on the scope and
effect of s34(3) and (4). However giving that the ordinary meaning of the expression for
the avoidance of doubt and it’s role in Drafting is to clear any doubt in preceding
provisions. Amua Sekyi JSC views on the matter appear sufficiently attractive for now.

It is however also important to note that the SC has recently held in AG v CHRAJ II 1998-
99 SCGLR 1 that when proper account is taken of the context in which s s34 (3) is
couched, it is evident that a key phrase in a section namely “shall not be questioned in any
proceedings whatsoever “ is predicated on the existence of some proceedings in which a
question or issue which refers to the existence of some indemnity is raised so that it is not
open to a party to commence proceedings on the basis of an indemnity clause (It is not a
Sword but a Sheild). . Hence the indemnity in s34 (3) is not to be pronounced on in
hypothetical issues etc.
Ellis v AG [2000] SCGLR 25**

Section 35 of the Transitional Provisions .

(1) Subject to subsection (2) of this section, any confiscation of any property
and any other penalties imposed by or under the authority of the Armed
Forces Revolutionary Council and the provisional national Defence Council
under any Decree or Law made by that Council, shall not be reversed by any
authority under this Constitution.

(2) Where any property or part of any property of a person was confiscated
on the basis of his holding a public or political office or on any other basis,
and it is established to the satisfaction of the Commissioner for Human
Rights and Administrative Justice that the property or that part was acquired
before he assumed the public or political office, or that it was otherwise
lawfully acquired, the property or that part shall be returned to that person.

The scope and legal effect of the provisions of this section was considered in CHRAJ V.
A-G [1998-99] SCGLR 171.
In this case, CHRAJ contended inter alia that it had power under section 35(2) to review
all confiscated property and where it was satisfied in terms of 35(2), restore all the
property to their former owners.

This in CHRAJ’s view included property confiscated by the special tribunals or courts or
committees-such as the AFRC special courts and tribunals etc. CHRAJ also contended
that even if it had no jurisdiction (and it denied that this is the case) to investigate
confiscations ordered by the special courts etc, the whole issue of confiscation
544
nevertheless becomes subject to CHRAJ’s jurisdiction where it is conferred by an Act or
Decree such as the CONFISCATED ASSETS (REMOVAL OF DOUBTS) LAW 1993
PNDCL 235.

The A-G on the other hand contended that CHRAJ had no supervisory jurisdiction over
decisions of other courts or tribunals under the AFRC and the PNDC special courts; and
that it had no power of review of the decisions of these other courts or tribunals in respect
of assets confiscated by them. And further that section 35(2) did not give CHRAJ power
to review all confiscated property and where satisfied, to return it to the owners.

It was held that although CHRAJ was under the CHRAJ ACT 1993 Act 456 given certain
powers akin to regular courts and tribunals, the commission did not thereby become a
court or tribunal properly so called. That it had inter alia no enforcement power unless it
applied to the courts and therefore had no power to review decisions of other courts and
tribunals. Nor did it have supervisory jurisdiction over them.

More importantly for our present purposes, the court held that CHRAJ was not entitled
under section 35(2) to review and restore confiscated property to their former owners
where these properties and assets had been confiscated by orders of the special courts or
tribunals set up by the AFRC AND PNDC. And that the expression “or on any other
basis” used in section 35(2) must be construed EJUSDEM GENERIS with the expression
“or on the basis of his holding any public or political office.

The court held that so construed, the expression “on any other basis” will be limited to any
public office or political office so designated by law or akin to such an office with similar
powers and responsibilities.

Finally the court held that the power to restore confiscated property (other than situations
covered by section 35(2) of the TRANSITIONAL PROVISIONS) was not vested in
CHRAJ but in the PRESIDENT on account inter alia of section 29(3) of the transitional
provisions to the 1992 Constitution.

THE TEMPORAL OPERATION AND APPLICATION OF LEGISLATION

3 main issues to be discussedhere here:
1 COMMENCEMENT
2. RETROSPECTIVITY
3. AMENDMENTS
4. REPEALS

The temporal operation of legislation concerns the period during which a particular
legislation is a binding part of the law, i.e. the period from commencement when it begins
to operate and has legal effect to repeal. Specifically it would concern the issues of
commencement, amendment, repeal, re-enactment, etc.
545
The temporal application of legislation on the other hand speaks to its application in time
and therefore concerns the period in which events occur that are governed by the
legislation.
In practice, the temporal operation and application of legislation do not necessarily
coincide since legislation sometimes applies to facts or situations which have occurred
before its commencement or after its repeal.

In practice then, the subject of the temporal application or the application and operation of
the legislation will encompass any of the ff topics:
enactment
commencement
amendment
revision
repeal
re-enactment
retrospectivity

Here we shall only deal in respect of temporal operation with the issues of commencement
and repeal and in respect of temporal application with the issue of retrospectivity or
retroactivity.

COMMENCEMENT

The commencement of an Act or portion of it has been defined as the time when it comes
into force. Hence as scholars like Driedger have noted, the commencement is the key
inaugural event in the operation of legislation and it is only upon commencement that
legislation becomes binding and capable of producing legal effects.

It is indeed only then that the legislation can be applied to whatever facts come within its
description.
DRIEDGER: 488 OF HIS COS.
RICHARDS V. MCBRIDE (1881) 51 LJMC 15@ 17 per Grove J wherein he notes that
whatever the day of commencement may be, the Act speaks from that day.
MEKKAOUI V. MINISTER OF INTERIOR

OSAFO V. THE REPUBLIC [1993-94] 2 GLR 43

Historically, the common law position was that a statute was in the absence of provisions
to the contrary, deemed to come into force on the first day of the session of Parliament in
which it was made.
Subsequently, a statute which contained no express provision as to its commencement was
held to come into force on the day on which it received royal assent. This position has
however been changed by statute in several common law jurisdictions including Ghana.
MEKKAOUI V. MIN OF INTERIOR
OSAFO V. THE REPUBLIC.
546
The legal position in Ghana today relating to the commencement of legislation is now
embodied in article 106(11) of the Constitution. Which reads as follows;

(11) Without prejudice to the power of Parliament to postpone the operation of a law, a
bill shall not become law until it has been duly passed and assented to in accordance with
the provisions of this Constitution and shall not come into force unless it has been
published in theGazette.

The effect of this article is then simply that unless Parliament appoints a different date, a
Bill shall be considered law in Ghana after it had been duly passed and assented to; but its
operation only commences after it had been published in the gazette.
REPUBLIC V HIGH COURT KOFORIDUA; EX PARTE BONSU NYAME (per the
dissenting judgment of Adade JSC).

In practice, Parliament may delay commencement of legislation for one of several

reasons-for example to await certain events; to allow time to prepare requisite
administrative machinery, to give fair warning to the public etc.
The time chosen by Parliament for commencement of such an Act would surely be set out
or described in the Act itself.
For example, the VAT LAW, THE NATIONAL RECONCILIATION LAW

It is to be noted however that all the provisions of an Act need not come into force on the
same day. An Act may state that its various provisions are to come into force on different
dates.
BENNION 187.

Further, it has been held that an Act would in the absence of provisions to the contrary,
speak from the beginning of the day of its commencement since the general rule is that the
law disregards fractions of a day.
TOMLINSON V. BULLOCK [1879] 4 QBD 230.

Where however a statute or provision has extra-territorial effect, the moment of

commencement is determined for any particular territory by reference to the local time.
R V. LOGAN [1957] 3 WLR 335.

In certain cases however, it may be necessary or Parliament may specify the time of the
day at which an Act with overseas (extra-territorial) effect come into force or operation.
Bennion 180.

547
RETROSPECTIVE APPLICATION OF LEGISLATION
(NB! When can a law be properly said to be retrospective?)

Definition: the word “retrospective” has not lent itself to easy definition. There is still a
good deal of confusion in the literature regarding the meaning of the word caused inter
alia by the fact that it is often used in several different senses.
There is also some terminological confusion here as to whether the word “retrospective”
means the same as ‘retroactive’ and if not, the basis of the distinction in meaning between
the two words.
Driedger 647.

In Ghana, the two words are invariably used interchangeably, although the word
“retrospective” is more commonly used and will consequently be favoured here. see
Article 107(b) of the Constitution.

However by far the most dominant position today is that legislation is considered
retrospective in application where it changes the past legal effect of a past transaction,
event or situation i.e. it changes the law applied to a past transaction, situation or event as
of a past date.
Put differently, a legislation will be retrospective in application if it has the effect that the
law applicable to a past transaction, situation or event, as of a past date, is taken to be
something other than it was.

Thus to determine a Retrospective law 2 Conditions must be met 1. that there is a

past Transaction, situation or event (TSE ) and 2. the law is applicable to and seek to
change the law applicable to (the legal effect of) the past TSE.

Hence a law will be construed retrospective in this sense where it takes away or impairs
any vested right acquired under existing law as of a certain past date or creates a new
obligation or imposes a new duty or attaches a new disability in respect of situation or
event or transaction already past as of a past date i.e. a date before the law came into force.

Further, a statute which imposed penalties for past acts which were not penalized when
they were committed is retrospective.
SEDGWICK : CONSTITUTIONAL LAW 116
CROSS 187

It should then be evident from the foregoing that legislation is not properly described as
retrospective merely because it touches past Transactions, situation or events. It is only
retrospective where it has the effect of changing the law or altering rights affecting
liabilities etc acquired under existing law in relation to the past transactions, event or
situations as of a past date or in effect declaring that the law applicable to the past
transaction, situation or event is different from what it was when the transaction was
completed.

548
One could hardly improve upon Dickson J’s statement or clarification of this position in
the GUSTAVSON DRILLING CASE [1912] 2 Ch 11-12 CA when he wrote:
“The enactment in the present case although undoubtedly affecting past transactions, does
not operate retrospectively in the sense that it alters rights as of a certain past time… it
does not reach into the past and declare that the law or the rights of the parties as of an
earlier date shall be taken to be something other than they were at an earlier date.”

FENUKU V. JOHN TEYE [2001-2002] SCGLR 985 @ 996-997

It should also be evident from the foregoing that although the concept of vested rights and
obligations etc feature prominently in certain understandings of the concept of
retrospective application of legislation, the two are clearly distinct.
For one thing, it is not the case that all statutes that are retrospective interfere with vested
rights. Some retrospective legislation do not, because there might not be any vested rights
involved. The rights at stake may be mere rights.

Nor is it the case that all statutes that interfere with vested rights are retrospective. Some
statutes that interfere with vested rights are plainly prospective.
WEST V. GWYNN [1911] CH 1 @ 11-12

In practice, a statute might be retrospective either expressly (i.e. when it expressly gives
that effect) or by necessary implication although it does not apply expressly, the aim is to
change the law applicable to the past transaction, situation or event as to a certain past
date.

PATU STYLES V. AMOO LAMPTEY

FENUKU V. JOHN TEYE [SUPRA]

The provision of section 67 of the now repealed PNDCL 42 is said to provide a classic
example of a statute that is expressly retrospective. This provision prescribes that the
provisions of the law which was made in December 1982 was to be deemed to have come
into force on 31st December 1981 unless the PNDC indicated otherwise in the specific
instance or in the context so indicated.
And here it is to be pointed out that where legislation is expressly or clearly retrospective,
Such legislation might be declared will ant voile as declared by Hot. 107 the court will
give effect to it as such.
[1978] GLR 351 CA.

The law in such a case must however clearly and expressly say so since the court will not
likely conclude that the legislation was intended to have retrospective effect.
SHALABI V. A-G [1972] 1 GLR 260
Cf. FATTAL V. MINISTER OF INTERIOR
ELLIS V. A-G

549
In practice however, it is the determination of whether or not legislation is retrospective
by necessary implication that creates problems. But as noted earlier, the critical test in
such a determination as to whether or not the application of a particular legislation is
retrospective in this sense is simple; it is whether the relevant transaction, situation or
event is past and whether the particular legislation seeks to change the law relating to that
transaction as of a certain past date.
Put differently, the test is to:
determine whether or not the transaction, situation or event to which the legislation is
addressed is past (rather than ongoing or in the future); and
if it is past, to determine whether the application of the legislation to the past transaction,
event or situation (TSE) will have the effect of making the law applicable to the
transaction, event or situation different from what it was when the transaction, event or
situation (TSE) was completed.

Needless to add, a negative answer to either of the two questions will mean that the
application of the legislation IS NOT RETROSPECTIVE.

The foregoing point will be better appreciated by a consideration of the various ways in
which legislation could affect a TSE (both past and future) and here, one can again hardly
improve on the masterful analysis of the learned authors of Driedger of the distinct ways
of applying legislation in time.
DRIEDGER 546.
Here, it is perceptively noted that legislation could be applied so as to:
change the past legal effect of a past TSE etc.
change the future legal effect of a past TSE
change the future legal effect of an ongoing TSE
change the future legal effect of a future situation.

Driedger (Supra).

Clearly of these situations above, only the first will involve retrospective application of
legislation because it immediately changes the law applicable to a past transaction as of a
past date.
Applying the new legislation to ongoing transactions will not constitute retrospective
application of the legislation. Such an application is immediate.
Likewise applying the new legislation to future situations so as to change their legal effect
WILL NOT constitute retrospective application in the sense defined here.

Retrospectivity has then to be defined essentially both in terms of the TES to which the
legislation may be applied as well as the consequences of the application to the situation.
However in order to be able to properly assess the consequences of the application of the
law we must be able to situate the TSE in time to determine whether it is past, ongoing or
in the future.

It is therefore very important and or critical in analyzing retrospectivity that we correctly

identify the TSE to which the legislation applies and to situate the same in time. And we
550
might also need to distinguish the consequence of the application of the new law to the
TSE i.e. whether it is applicable to the TSE as of the past date.

The real problem however, is that the identification of the relevant TES and situating the
same in time presents a special difficulty. For one, the initial identification of the relevant
text is often open to competing analysis and it is often not easy to determine whether the
legal effect of a past transaction are changed for the future only or the past as well. One
has only consequently to construe the words of the particular transaction closely in each
case taking account of its purpose etc. to determine the relevant TES.
And here, under the MOPA account has to be taken of the purpose of the legislation in
order to determine the relevant TES.
Hence in a case of legislation barring an ex-convict from holding a position of a teacher in
the SSS WITH effect from a particular date for example, one’s determination of the
relevant facts will depend on whether one thinks the purpose of the legislation is to inflict
further penalty or simply to bar people with certain characteristic traits from teaching in
any of our SSS.

As regards situating the relevant TSE in time, in order to determine whether they are past,
ongoing or in future, the renowned Canadian Professor PA Cote` affords a most useful
model which appears to have been adopted in this country and elsewhere.
See CHRAJ V. A-G [98-99] SCGLR 887 @ 890.

Under this model also approved by Driedger @ pages 550 ff, the key steps in recognizing
retrospective legislation is analyzing the fact situation set out in the provision in order to
determine what is to be applied as:
short term
continuing
successive.

A short term TES consists of single actions or events etc, which begin and end within a
short period. The facts are complete and become part of the past as soon as the action or
event ends; and the legal consequences attached to the factual situation are fixed at that
moment-thus for example most provisions which impose civil or penal liability.

Continuing TSEs consist of one or more facts that endure over a period of time such as
ownership, residency etc.
A continuing situation can also be a state of affairs or status or relationship that is capable
of persisting over time. Where no limit is set out in legislation, a continuing fact situation
continues and does not become part of the past until the fact itself or the state of affairs
condition or relationship (TSE) comes to an end.

Successive TSE consist of facts, whether short term or continuing, that occur at separate
times successively.

551
A fact pattern defined in terms of successive facts therefore does not become part of the
past until the final act in the series, whether short term or continuing, comes to an end.

From the foregoing, it has to be emphasized that an application of legislation is not

retrospective unless all the relevant facts in respect of the TSE were past when the
provision came into force and further, that even so, the legislation should have affected
rights acquired, obligations incurred etc, such that it could be said to alter the law
regarding the past TSE as of a past date
.
However, as Driedger rightly points out @ 551 of his COS, although the model by
Professor Cote` often facilitates analysis, it does not avoid the need for principled policy-
based analysis in several situations.
Often, one again has to consider the language of the statute strictly in the light of its
purpose to apply the model effectively.

A provision that attaches legal consequences to continuing facts such as a relationship or a

state of affairs is held not to be retrospective unless the relationship has ended before the
commencement of the legislation.
And in a case of a provision that attaches legal consequences to successive facts, the
provision is not retrospective unless the final fact in the series has ended before the
commencement of the legislation.
MACKENZIE V. British COLUMBIA [C’SIONER FOR TEACHERS PENSION] [1992]
92 DLR 4TH ED 532.

In sum legislation could be properly said to be retrospective only if it applies to facts (in a
TSE) all of which had ended before it comes into force. On the other hand, the application
of legislation to ongoing facts is not retrospective because there is no attempt to reach into
the past and to alter the law as of an earlier date.
The application is then prospective only to facts in existence at the present time.
Such an application may affect existing rights and interests but it is not retrospective.
Rather, such legislation is said to have immediate and general effect or application.
Immediate in the sense that it operates from the moment of its commencement displacing
whatever rules was formerly applicable to the TES and “general” in the sense that the new
rule applies to all relevant facts ongoing as well as new.
GUSTAVSON DRILLING CASE [SUPRA]
CHRAJ V. A-G [SUPRA]

Finally, the authorities now dominantly hold in the light of the foregoing analysis that
where a provision exposes a class of persons to a disqualification or bars them from a
benefit if the undesirable legal consequences is attached to a continuing TSE such as
having an unreliable character or being of a particular age etc, the provision is not
retrospective as applied to persons who currently have the desired condition, status or
trait.
RE A SOLICITOR’S CLERK [1957] wherein it was noted “but in my opinion this Act is
not in truth retrospective. It enables an order to be made disqualifying a person from
552
acting as a solicitor’s clerk in the future and what happened in the past is the cause or
reason for making of the order but the order has no retrospective effect…this Act simply
enables a disqualification to be imposed for the future which in no way affects anything
done by the appellant in the past. If it does then it is retrospective”.

R V. VINE [1875] LR 10 QB 195

In sum a statute or legislation will not be held to be retrospective merely because it

touches on facts or events etc which were past or because part of the requisites for its
applications is drawn from the past.
As previously noted, legislation could only be properly retrospective where it deals with
fact situations etc completely past when it came into force and such that it has the effect of
reaching into the past to change the law as of a certain past date.

HISTORICAL BACKGROUND : THE PRESUMPTION AGAINST

RETROSPECTIVITY
Historically, the law respecting retrospective statutes in Ghana was largely embodied in
the common law presumption against retrospective application of statutes namely, that no
statute shall be construed to have retrospective operation unless such a construction
appears clearly from such a statute or arises by necessary and distinct implication.
RE ATHLUMNEY [1898] 2 QB 551@ 551-552
PATU STYLES V. AMU LAMPTEY [SUPRA]
FENUKU V. JOHN TEYE [SUPRA]
REPUBLIC V. PNDC SECRETARY, PNDC SECRETARIAT: EX PARTE OTI [1992] 1
GLR 446.

A corollary to the general presumption against retrospectivity is that even where a statute
is clearly intended to some extent to be retrospective, it is not to be construed as having
greater retrospective effect than its language renders necessary.
REID V. REID [1886] 31 CH D 402@ 408
ARNOLD V. CENTRAL ELECTRICITY GENERATING BOARD [1987] 3 AER 694
(Cross 188-189).

Finally, it has to be added that the common law presumption against retrospective
application of statutes does not apply in the case of:
a) Procedural acts: there is no retrospectivity here. Maxwell 222-224

A-G V. VERNAZZA [1960] AC 965

BLYTHE V BLYTHE [CROSS 189]

b) In the case of declaratory statutes

c) Where by its express provision the statute is clearly retrospective (here the provision
would have been rebutted).

553
THE PRESENT POSITION IN Ghana UNDER THE 1992 CONSTITUTION
The 1992 constitution has greatly modified the law respecting retrospective application of
legislation in Ghana by a number of its provisions. In Ghana it is no longer under
presumption.

The first provision of note here is article 107. To start with, article 107(a) clearly prohibits
enactments which have the effect of altering the decision or judgment of any court as
between the parties subject to that decision or judgment. The operative words here are “as
between the parties”.
The law then seeks to bar legislation like section 60 of PNDCL 42 (repealed) which had
the effect of nullifying the decision of the SUPREME COURT in MEKKAOUI v.
MINISTER OF INTERNAL AFFAIRS [1984] GLR 66.
Cf: REPUBLIC V. C’SIONER OF CEPS; EX PARTE Ghana ASSOCIATION OF
POULTRY FARMERS
[HIGH COURT ACCRA, UNREPORTED].

The obviously more significant provision is article 107(b) which by its provisions bars any
retrospective legislation that imposes any limitation or adversely affects the personal
rights or liberties of any person or imposes an obligation or liability on any person except
in the case of a law enacted under article 178-182 of the Constitution.

First it has to be noted that article 107(b) by its plain text does not bar all retrospective
legislation but only those which adversely affects the rights liberties etc of a citizen.
Presumably then, the article does not apply to legislation that favourably affects the
personal rights and liberties etc (of the citizen). In respect of the latter, one could still say
that we could still have retrospective legislation in Ghana that favourably affects these
rights.

The common law presumption of retrospectivity will consequently still be applicable in

respect of these. But then, as noted earlier, this presumption could be clearly rebutted by
the express provisions of the statute.

One moot issue presently is as whether article 107(b) is to read as affecting both
substantive and procedural legislation. This happens on account of Art 107(b) which state
”Any Law”.

It has however been argued that since it is trite law that no one has a vested right in
procedure, this provision should be read as reference to substantive legislation only. And
this is the position of the Law
BUTA 195.

COMPULSORY ACQUISITION OF LAND

Perhaps the most contentious issue regarding the issue of retrospectivity in Ghana today is
in relation to claim purportedly made pursuant to the provisions of article 20(6) of the 92
554
constitution by numerous various chiefs and people whose lands have been compulsorily
acquired by government prior to the coming into force of the 1992 Constitution for the
return of those lands to them on the ground that the government or the state had not used
the lands so acquired for the purpose(s) for which they were acquired. The key issue is
whether or not Art 20
(b) could be applied in relation to land acquired before the coming, into force of the 1992
constitution. NOTE CAREFULLY

It is important to point out here however that article 20(6) is always to be read in the
context of other provisions of article 20 and other relevant provisions. (e.g. article 20(1).
SEE THE FF:
DOROTHY TWUMASI (NEE DOROTHY PARRY) V. GODFRED LARYEA
QUARSHIE (HIGH COURT ACCRA PER TWENEBOAH –KODUA J
MUNTARO ALHASSAN AND ANOR V. THE REPUBLIC (CA 17/12/98
UNREPORTED).
NII TETTEH OPREMPEH II V. A-G AND ANOR (High Court, Accra, 20/04/99
unreported Gyamerah Tawiah J)
NII KPOBI TETTEY TSURU V. GCAA (7TH MAY 03 UNREPORTED).
NII NIKOI OLAI AMONTIA V. MANAGING DIRECTOR Ghana TELECOM (11 th Feb
2005 CA (unreported) Per Owusu Ansah JA.

The suit filed by all these claimants have been invariably resisted with the response of the
A-G on behalf of the government that their claims cannot be sustained because of article
20(6) of the constitution and that would entail a clearly retrospective application because:
property referred to in article 20(6) was on a true construction a reference to property
acquired in terms of the preceding provisions of article 20 or otherwise properly acquired
under the auspices of the 1992 constitution, and not property acquired prior to the coming
into force of the constitution in respect of which the acquisition was totally complete (i.e.
past and complete) before the constitution came into force.
secondly, it has been contended that to apply the provision of article 20(6) to property
compulsorily acquired before the coming into force of the constitution would be clearly
contrary to the letter and spirit of article 107(b) since that would constitute retrospective
legislation.
thirdly, it has been argued that once property has been totally and completely acquired
under the existing law the rights and interest of the original owners in same become totally
extinguished and for that reason, the original owners would not have any interest in the
subject land greater than that of any other citizen of Ghana as to what the land fully owned
by government is to be used for, so long as that is in the public interest. At most, it is
argued, one could bring an action to compel government to use the land in the public
interest in cases where government is dishing out the land for other uses not in the public
interest.

Against these arguments it has forcefully been contended that there is no basis whatsoever
for limiting “property” as used in article 20(6) to property compulsorily acquired in terms
of the provisions of the 1992 constitution only and that if the framers of the constitution
had so intended they would have said so expressly.
555
It is then submitted that “property” in article 20(6) refers to all compulsorily acquired
lands whether acquired under the present constitution or previously which have not been
or are not being used in the public interest or for the purpose for which they were
acquired.
The emphasis here it is said, is the use of the land, not the acquisition simpliciter.

Hence it has been argued against the A-G’s position that the relevant situation or
transaction in issue under article 20(6) is not the acquisition of the property itself, but
rather the use of the property acquired.
It is here contended that this involves a continuing situation such that where the improper
use or the illegal use or unconstitutional use takes place after the coming into force of the
constitution, the original owners could still benefit under article 20(6) of the constitution.
On the question of retrospectivity ala article 107(b), it is also argued that the article is not
necessarily applicable because it spoke only of retrospective legislation that adversely
affected the liberties of any person. And here it is contended by some scholars that
“person” here does not include the state of Ghana.

The Courts are yet to pronounce definitively on the issue and it is hoped that the matter
will soon be put before the Supreme Court for a definitive resolution of same.

556
REPEALS

DEFINITION AND TYPES OF REPEALS

To repeal an Act or provision of an Act is “to cause it to cease to be a part of corpus juris
or body of law”.
BENNION 201.
Repeal has consequently been appropriately described as the key terminal event in the
operation of legislation so that once a repeal takes effect legislation ceases to be binding
or to produce legal effects.
SURTEES V. ELLISON (1829) 9 B& C 750 per Lord TENTERDEN wherein he noted:
“…when an Act of Parliament is repealed, it must be considered (except so far as
transactions past and closed) as if it never existed”.

In Ghana, as in several common law jurisdictions, a statute once in force is not repealed,
nor does it expire through passage of time or lack of use-so that except in the case of a
temporary statute in which case the statute is designated to expire on a fixed date, it
continues in force until it is repealed.

A repeal in law may be either:

A. express
B. implied.

EXPRESS REPEALS

There is express repeal where a statute or part of it is repealed by express words in

subsequent legislation.

It is however not necessary that any particular form of words be used for this purpose. All
that is required is that an intention to abrogate the enactment or part of it should be clearly
shown.
HALSBURY 4TH ED VOL 44 @ PARA 962.

Thus although the expression “…is hereby repealed” is often used, expressions like “shall
cease to have effect” “shall be omitted” etc would be adequate for the purpose.
WEST LONDON STIPENDIARY MAGISTRATE; EX PARTE SIMEON [1982]2 AER
813.

In addition, to the use of words apt to effect the express repeal, there must also be a
reference to the prior Act.
SCOTTISH AMERICAN INVESTMENT COMPANY V. ILORA (1881) 6 UPPCAN
APPEAL 628 @ 637.

It is however to be noted that a provision can effect a repeal only where it is contained in
an instrument having power to override the Act or legislation in question.

557
Thus in the case of an Act, it may be repealed by another Act or an item of delegated
legislation made under an Act conferring power to repeal.
An Act may also repeal itself (e.g. a temporary Act) or any provision contained in it.
This subject no doubt brings into question the whole issue of the hierarchy of legislation
in Ghana.

In practice, methods of express repeal include express repeal effected by:

a) schedule which will specify the enactment to be repealed and the extent of the repeal
b) by statute law revision, in which exercise any doubts about inconsistency of enactments
are dealt with
c)by consolidation, where the enactments incorporated in the consolidation are
specifically repealed
d) by codification in which case like consolidation, the enactments incorporated in the
codification are specifically reviewed.
VCRAC CRABBE @ 148.

In practice, express repeal does not often pose much of a problem. Often the sole question
arising upon express repeal is the extent of the terms employed and the qualification if
any, stated or implied in the repealing enactment.
VCRAC CRABBE @ 351.

IMPLIED REPEAL

Where a later enactment does not expressly repeal an earlier enactment which it has power
to repeal but the provisions of the later enactment are contrary to, inconsistent with or
repugnant to those of the earlier enactment, such that the two cannot stand together the
later enactment by necessary implication, repeals the earlier enactment in accordance with
the maxim “legis posterioris prioris contrarius abrogat” (later or subsequent laws would
abrogate contrary or previous laws to the contrary).
This rule is subject to the exception embodied in the maxim “generalia specialibus
non derogant”. Under this maxim when statutes (A) and (B) are in conflict the general
Law overrides the special law.

The principle of implied repeal of earlier legislation by a subsequent contrary, repugnant

or inconsistent legislation has been described as a logical necessity since two inconsistent
laws cannot be valid without contravening the principle of contradiction.
Also, the implied repeal principle is said to reflect the basic principle that a sovereign
cannot bind itself by ordinary legislation.
Hence where a later enactment contradicts an earlier one such that the two cannot co-exist
in the same statute book, the more recent expression of the sovereign’s legislative power
prevails.

It is to be pointed out here however, that repeal by implication is not favoured by the
courts since it is presumed that parliament would not intend to effect so important a matter
as repeal of the law, without expressing clearly its intention to do so.
558
R V. HALLIDAY [1917] AC 260@ 305 HL .

In the light of the foregoing the courts have held that they will not infer that a later statute
impliedly repeals an earlier one unless there is compelling need to do so.
Thus, if it is reasonably possible to construe the provisions so as to give effect to both, the
courts will do so.
In practice, the courts as previously noted, would first resort to one of several conflict
resolution strategies to resolve any contradictions or conflicts if possible.

The test for whether there has been repeal by implication is therefore very stringent,
namely; are the provisions of the later Act so inconsistent with or repugnant to the
provisions of the earlier Act that they cannot stand together?”. Note Carefully
WESTHAM CHURCH WARDEN AND OVERSEERS V. FORT CITY MUTUAL
BUILDING SOCIETY [1892] 1 QB 654 @ 658.
LONDON TOBACCO PIPE MAKERS COMPANY V. WOODROFF (1828) 7 B & C
838
RIPPINGALE FARMS LTD V. BLACK SLUICE INTERNAL DRAINAGE BOARD
[1863] 1 WLR 1347.

Hence, in practice the courts have often held that where a later enactment is worded in
affirmative terms only, (i.e. without any negative provisions express or implied) the
previous provision can well stand with it, if there is nothing to say that the previous law
shall be repealed; and therefore the old law and the new law may stand together.
BUTA 166 (OLD EDN)
MUIR V. HORE (1877) 47 LJMC 17.
In this case it was held that an Act authorizing trials by quarter sessions can stand with an
earlier Act enacting that the offence should be tried by Queens Bench or at assizes.
KUENYEHIA V. ARCHER [SUPRA].

There cannot be inflexible rules here however. It is ultimately a question of whether or not
on a true construction the true enactments are inconsistent or irreconcilable and cannot
stand together. Thus where the affirmative words are such as to import a contradiction and
the two enactments cannot stand together; the courts will not hesitate to hold that there has
been an implied repeal.
STRADDLING V. MORGAN (1560) 1 PLOWD 353.

Similar difficulties also arise where the purpose of each of the enactments is to subtract
from an existing rule so that though negative in form, it could be treated vis a vis the other
enactment as affirmative.
HALSBURY 4TH ED VOL 44 PARA 967.
RE LEAKE; EX PARTE WARRINGTON (1853) 3 De G M .

However there is authority to suggest in the case of enactments which creates new
exclusive statutory jurisdictions procedures, forms or remedies, the rule is that only the
new jurisdiction, procedure, forms or remedies prescribed are to be followed and no
others.
559
R V. JUDGE OF ESSEX COUNTY COURT (1887) 18 QBD 704 @ 707 where it was
held that “where the legislature has passed a new statute giving a new remedy, that
remedy alone must apply”.

But even here the courts still insist that they would not find the subsequent statute to have
impliedly repealed the earlier one if the two can be read together.
REPUBLIC V. CIRCUIT JUDGE ACCRA; EX PARTE SAKARA [1989-90] 2 GLR 379
SC (Buta 165-166).

Finally, where an Act or omission constitutes an offence under two or more Acts it
appears that the offender, unless the contrary intention appears, shall be liable to be
punished under either or any of the Acts-but not liable to to be punished twice for the
same offence.
CRAIES 370.

It must nevertheless be emphasized that where the provisions of a later statute cannot be
reconciled in any way with that of an earlier statute by a process of interpretation or by
any of the conflict resolution strategies properly available to the courts- so that the two
statutes cannot stand together-the only inference is that Parliament unless they failed to
address their mind to the question, intended that the provisions of the existing statute
should cease to have effect and an intention so evinced is held to be effective as one stated
expressly.

SPECIFIC INSTANCES OR SITUATIONS OF IMPLIED REPEAL

Specific instances of implied repeal of existing legislation by subsequent legislation on the

same subject may include the ff:
1. Cases of existing law inconsistent with the constitution. (article 1(2) of the
constitution). Here it must first be noted that apart from the question of implied repeal on
the basis of the legis posterorius maxim, provisions of existing law inconsistent with the
subsequent provisions of the constitution 1992, are null and void by virtue of article 1(2)
of the constitution.
See NPP V. A-G (31ST DEC CASE)
SAM [NO 2] V. A-G (SUPRA)
DOLPHYNE [NO 1] V. SPEEDLINE STEVEDOORING CO LTD [1996-97] SCGLR
182.
Here it was held that the provisions of the Courts Act 1972 as amended by PNDCL 191
under which the appellant could appeal to the Supreme Court as of right from a judgment
of the court of Appeal only where the Court of Appeal had reversed a decision of the
lower court was inconsistent with provisions of article 131 of the 1992 constitution and
therefore null and void.
SAM V. COMPTROLLER OF CUSTOMS AND EXCISE [1971] 1 GLR 289 @ 316.

2. Cases where subsequent statute cannot stand with provisions of existing statute.
This is needless to say, a typical situation of implied repeal. As previously noted, the
560
courts will only find implied repeal here, if it is unable to reconcile the statutes by a
process of interpretation or by any of the other conflict resolution strategies. The real test
here, to repeat, is whether the provisions of the later enactment are so inconsistent or
repugnant to that of the earlier enactment that the two cannot stand together.
WESTHAM CHURCH WARDENS AND OVERSEERS V. FORT CITY MUTUAL
BUILDING SOCIETY [SUPRA]
KUTNER V. PHILIPS [1891] 2 QB 267
FLANNAGAN V. SHAW [1920] 3 KB 96
NANKONJA V. MBAGE [1989-90] 1 GLR 354 per Owusu Sekyere J.
STATE V. ANDOH [1967] GLR 355
REPUBLIC V. CIRCUIT JUDGE ACCRA; EX PARTE SAKARA [SUPRA]

3. THE GENERALIA SPECIALIBUS MAXIM: the third instance of implied repeal

involves the application of the generalia specialibus maxim. It is important to note
however that unlike the others this is not based on the legis posterioris concept that is
where the provisions of a later Act are inconsistent with or cannot stand with the
provisions of an existing Act the later Act repeals the existing Act. (It is rather on the
basis that a special provision overrides a general one).

The generalia specialibus principle, is as previously noted, an exception to the general rule
that where the provisions of a later Act are inconsistent with or cannot stand with the
provisions of an existing Act the later Act repeals the existing Act.

The maxim means basically that general provisions do not override special provisions.
Hence where two provisions of an Act or two Acts are in conflict and one of them deals
specifically with the matter in question while the other is of general application the
conflict may be avoided by applying the specific provisions to the exclusion of the more
general one. In other words, the specific provisions prevail over the general one.
As Bennion notes at page 810, the maxim only affords a rule of thumb for dealing with
such a situation because it is presumed that the more specific and more detailed a
provision is, the more likely it is to have been fixed to fit the situation or the particular
circumstances falling within it.
KIDSON V. EMPIRE MARINE INSURANCE CO (1866) LR 1 CP 535 @ 546.

Consequently, a key consideration in the application of the maxim is to determine which

provisions states the general rule and which the specific provision is.
Undoubtedly where one of the conflicting provisions is specifically addressed to the
matter in question and deals with it in more detail or in a more comprehensive manner, the
question is easy to answer.
In less obvious circumstances however, the courts must determine this by examining the
provisions in question in relation to the facts and issues of the particular case, of course
taking account of the purpose of the enactment.

EXAMPLES OF A FEW CASES OF THE APPLICATION OF GENERALIAS

SPECIALIBUS
See BLACKPOOL CORPORATION V STARR ESTATES LTD [1922] AC 27 @ 34
561
R V. HORSHAN JUSTICES; EX PARTE FARQUHARSON [1892] 2 AER 269
The dissenting opinion of WIREDU JSC in NARTEY V. A-G AND ADADE [1996-97]
SCGLR 63 @ 77 ff wherein he held, applying the maxim, that the general provision of
part 4 (MISCELLANEOUS PROVISIONS) of the 1992 Constitution, (to the effect that
the provisions of section 8(2) of the Transitional Provisions) which applies to public
officers for whom no provision have been made under the constitution as to their tenure of
office must give way to section 4(1) of part 3 of the Transitional Provisions which
specifically deals with the issue affecting members of the judiciary.

THE LEGAL EFFECT OF REPEALS AND OPERATION OF SAVINGS IN Ghana

The general principle at common law is that, except as to transactions past and closed, an
enactment which is repealed is to be treated as if it never existed.
SURTEES V. ELLISION [SUPRA]

This common law position has several startling implications. It implies for example:
a) that everything dependent on the repealed legislation for its existence or efficacy ceases
to exist or to produce legal effects. Hence conduct formerly prohibited would now be
lawful; and proceedings pending under an enactment at the time of its repeal could not be
continued after the repeal and a fortiori, that proceedings under an enactment could not be
initiated after its repeal in respect of matters arising before that time. Thus, for example,
where a penal law was broken, the offender could not be punished under it if it was
repealed before he was convicted, although the proceedings began while the Act was still
in force.
R V. LONDON JUSTICES (1764) 3 BURR 1456.

b) The common law position also implied that upon the repeal of the legislation any
existing law that was in existence before the repeal automatically revived since the
displacement is deemed never to have occurred. In other words, the repeal of a repealing
enactment brought about the revival of the enactment which it has itself repealed. It also
meant for example that a contract or document invalidated by an enactment might become
operative again when the enactment was repealed.

c) The common law position also meant that regulations, subordinate legislation etc, lose
the force of law with the repeal of the provisions under which they were made.
d) The common law position also implies that repeals operated retrospectively so that
except for transactions past and closed when the repeal took effect, the repealed law
ceases to be applicable to pre-repeal facts.

The operation of the common law position on the effect of repeal of legislation is of
course subject in every case to any savings which may be made expressly or by
implication by the repealing enactment. These are in practice referred to as SPECIAL
SAVINGS.

562
More importantly however, it is to be noted that in order to avoid the startling implications
of the common law position, it is now often modified in most common law jurisdictions
by general statutory provisions as to the effect of repeals. These are referred to as
GENERAL SAVINGS.

In Ghana, the relevant statutory general savings are largely found in the
INTERPRETATION ACT CA 4 1960, particularly sections 8 and 9.
By virtue of these GENERAL SAVINGS, it is no longer necessary for the consequences
or the implication of the common law position to be expressly excluded in each case by
the particular repealing enactment where the repeal is effected by statute. It may however
still prove necessary in a particular case to supplement the GENERAL SAVINGS in CA
4, by EXPRESS SPECIAL SAVINGS.

Finally, it is to be noted here that the operation of the provisions of sections 8 and 9 of CA
4 has now been significantly modified, by a number of the provisions of the 1992
Constitution including for example, articles 19(5), 19 (6), 19(11) and 107.

GENERAL SAVINGS UNDER CA 4 SS 8 AND 9

It is important to clearly distinguish here between the provisions of section 8 which
applies in all situations of repeal simpliciter and those of section 9 which deals with
situations where there is not only a repeal but then in addition another enactment is
substituted by way of amendment, revision or consolidation.

Section 8(1)(a)

The effect of this provision is to inter alia, prevent the repeal of a repealing enactment
from reviving enactments or conduct etc that the repealed enactment had originally
repealed.

Similarly, the repeal of an enactment will by virtue of this provision not revive anything
(such as a contract or obligation) which that repealed enactment had rendered illegal or
otherwise put to an end.
BUTA 170 (OLD ED).
SEE BUTA FOR THE FF:
AGYEI V. APRAKU [1977] 1 GLR 111 CA [BUTA 172]
KUSI-APPIAH V. NATIONAL HOUSE OF CHIEFS [84-86] 2 GLR 90
E.P. CHURCH V. A-G [93-94] 2 GLR 429
It is however still a moot issue whether the provision of section 8(1) (a) would apply to
rules of the common law which would have been abrogated by the repealed Act.

On a plain reading of section 8(1) (a), the question must be answered in the negative since
the previously abrogated common law rule would not be “in force or existing at the time
of the repeal”.

563
SECTION 8(1) (b)

This provision is quite plain. The reference to anything duly done or suffered inter alia
avoids the need for things legally done under the old enactment including procedural
matters such as the giving of notices to be done over again.
R V. WEST RIDING OF YORKSHIRE JUSTICE [1876] 1 QBD 220
HUTCHINSON V. JAUNCEY [1950] 1 KB 574@582
FATTAL V. MINISTER OF INTERIOR [1981] 1 GLR 104 SC [BUTA 173]
KRAMO V. AFRIYIE [1973] 1 GLR 95

SECTION 8(1)(C)

Under the old common law position on the effect of repeal of legislation, all rights
privileges, obligations, or liabilities (RPOL thus accrued rights and obligations) whatever
their form of nature will be nullified upon the repeal of the statutory provision on which
they are founded.

The effect of section 8(1)(c) is to modify this position in respect of RPOLs acquired,
accrued or incurred at the time of the repeal of the enactment on which they are founded.
Thus as Buta notes @ 176 of his LIG:
“the effect of section 8(1)(c) of CA 4 is this: where any person has acquired any right or
privilege or incurred any obligation or liability under an enactment, the subsequent repeal
of that enactment shall not affect the continued enjoyment of that right or privilege or the
satisfaction of the obligation or liability under the repealed enactment.”

The effect of the use of the words “acquired or accrued” in relation to the RPOLs is
clearly that the rights or privileges must have become vested at the date of the repeal i.e. it
must not be just a mere right to take advantage of the enactment now repealed. Needless
to point out, this might not extend to procedural rights. see Art. 107(b)
BENNION 208-209
ABBOT V. MINISTER OF LANDS [1895] AC 425.
DIRECTOR OF WORKS V. HOPOSUNG [1961] AC 901 (PC)

The distinction between vested and procedural rights on the one hand and a mere right on
the other is therefore critical to a proper understanding of section 8(1)(C).
SHALABI V. A-G [1972] 1 GLR 260 [BUTA 176]
Cf FATTAL V. MINISTER OF INTERIOR [SUPRA]
SPOKESMAN PUBLICATION LTD V A-G [1974] 1 GLR 88 @ 89
CFAO V. ZACCA [SUPRA]

The requirement to satisfy vested obligations or liabilities under the previous enactment
notwithstanding its repeal has been considered in a number of authorities including:
ESSILFIE V. Ghana PORTS AUTHORITY [1980] GLR 463 [BUTA 177]
ISSOUFFOU V. Ghana PORTS AND HABOURS AUTHORITY [BUTA 178]

564
In criminal cases however, it appears that the effect of section 8(1) (C) in relation to
incurred liabilities has been altered by the provisions of article 19(11) of the Constitution.
British AIRWAYS V. A-G [1996-97] SCGLR 547.

It must be noted that the effect of section 8(1) (c) is also affected by the provisions of
article 107(b) of the constitution on retrospectivity. Civil liabilities etc already incurred
cannot be increased under the new legislation.

SECTION 8(1) (D)

Clearly the effect of this section is that even upon the repeal of an enactment, any
penalties, forfeiture or punishment incurred in respect of any offences committed
thereunder shall not be affected. This provision will then be applicable even where the
offender has been convicted under the old law but not yet sentenced or penalty awarded.

It is important to note right at the outset that the provision of section 8(1)(d) might
therefore apply where the penalty creating provision is repealed but the offence creating
section is not since the provision only saves a penalty or forfeiture etc for an offence
against the repealed enactment. This will apply only in civil matters not in criminal
matters.

In practice a number of problems have arisen as to the true legal effect of section 8(1)(d)
especially where the new repealing enactment imposes a new form of penalty or
sometimes punishment. The issue is as to which law is to be applied, the old law or the
new law.
REPUBLIC V. REGISTRAR OF POLITICAL PARTIES; EX PARTE PEOPLES
VANGUARD PARTY [1981] GLR 316. (Buta 175)

In Ghana and in criminal cases, the operation of section 8(1)(d) might be subject to the
operation of article 19(11) where there is no substituted legislation to provide new
sanctions.
British AIRWAYS V. A-G [SUPRA] where there substituted legislation to provide new
sanction if it increase punishment might be subject to art 107(b). 107(b) and 19 (c) would
bar punishment when it increases.

Where there is a substituting legislation increasing a penalty, article 19(6) of the

constitution would apply.

SECTION 8(1) (E)

The effect of this is to modify the common law position under which proceedings cease
and there could not be a conviction for an offence against a repealed enactment once the
repeal has taken effect.
The common law position applied even though the proceedings had been commenced
previously.
BENNETT V. TATTON [1918] 88 LJ KB 313.
565
Section 8(1)(e) in effect enables a prosecution or legal proceeding began before the repeal
took effect, to be completed and penalty under the old law rewarded and unlike 8(1)(d),
8(1)(e) would apply even where the person had not already been found guilty and is
awaiting punishment. In 8(1)e incurred is not used so that under (8(1)e pursuant to the
presumption against surplusage, under 8(1) e the punishment will lay where the trial had
not been concluded. REPUBLIC V. POLICE COUNCIL; EX PARTE KWAGYIRI
[1979] GLR 27
Finally, it is again to be noted that the effect of section 8(1)(e) as it affects criminal
proceedings is now repealed by the effect of article 19(11) of the 1992 Constitution. So
that (8(1) (e) will only be applicable in respect of civil matters.
British AIRWAYS V. A-G [SUPRA]

SECTION 9 OF CA 4

As previously noted, section 9 basically applies in cases where an enactment is repealed

and substituted by way of amendment, revision or consolidation. Of particular interest
here is section 9(c) which provides inter alia, that all proceedings taken under the repealed
or revoked enactment shall be prosecuted and continued under and in conformity with the
substituted enactment so far as consistently may be.

This provision in practice comes into full play in considering the effect of alteration in the
law during the pendency of an action.

EFFECT OF ALTERATION IN THE LAW DURING THE PENDENCY OF AN

ACTION
(Section 8(1)(c) and 9(c)
See Buta 183 ff on this.

The relevant provisions on this issue as Buta rightly notes are section 8(1)(c) (which
protects only vested and accrued rights but might not protect procedural rights) and 9(c)
which by its plain provision applies where there is an alteration in the law by way of
repeal and substitution by amendment, revision or consolidation.

The combined effect of section 8(1)(c) and 9(c) as Buta rightly notes is as follows: “when
the substantive law is altered by an enactment during the pendency of an action, the rights
and obligations of the parties are to be decided in accordance with the law as it existed at
the commencement of the action unless the new enactment shows a clear intention to vary
such rights. However where the new enactment effects alteration in the law as to
procedure and practice of the courts, the provisions of the new enactment is to affect
actions before and after the commencement of the new enactment”.

Subject to our observation that in respect of the substantive law the new law will be
clearly retrospective if it has the effect of creating the new offence different from the old
one it will be clearly retrospective, Buta’s statement of the law is very acceptable. It has
be pointed out here that matters of procedure might not include mattes relating to
566
punishment or issues of procedure on account of Art 107 (b) of constitution. In respect of
punishment in Criminal cases Art. 9(6) is explicit that no penalty should be imposed for an
offence that is severer in degree than the one attached to the offence at the time it was
committed.

EXAMPLES OF THE SITUTATION

SEE BUTA:
ABDULAI III V. THE REPUBLIC [1989-90] GLR 344 CA [BUTA 184].
DOCHIE V. THE STATE [1965] GLR 208
MENA V. THE REPUBLIC [1977] 1 GLR 346 [BUTA 185] (this decision today will be
barred by article 19(6) of the Constitution).
The decision in the case of MENA [SUPRA] could no longer be good law in Ghana today
on account of the provision of article 19(6) of the 1992 constitution.
DAKURUGU V. THE REPUBLIC [1989-90] GLR

The foregoing cases can however be contrasted with a number of cases dealing with
changes in the substantive law.
CARSON V. CARSON [1964] 1 WLR 511
CFAO V. THOME [1966] 1 GLR 107 SC

[ALL THE BEST]

567