FLAW 102/262: Legal Method

Topic 4 – General Principles of Statutory

Interpretation

Lecturer: Zeinab A. Ayariga, School of Law, UG

Contact Information: [email protected]

School of Law
June, 2022
 Topic 4 Outline
In this lecture, discussions will touch on:
• Rules of statutory interpretation in Ghana
• Purposive approach, literal approach and other
approaches to interpretation
• Aids to statutory interpretation and their relevance
in the construction of statutes.
• How the purposive approach to statutory
interpretation reflects in both the Interpretation Act
and in decided cases

Slide 2
 Introduction
• Sources of law in Ghana????
• Acts of Parliament as a source of law ….
• Remember subsidiary legislation as a source of law?????
• We expect that legislation will be clear, precise and
unambiguous …. Is that always the case?????
• Legislation maybe vague, ambiguous, lack clarity, have
some drafting errors etc
• The primary purpose of interpretation is to be able to
ascertain the intention of the legislature
• How do we ascertain the intention of the legislature
when they use particular word(s) in a statute?
Slide 3
 Statutory Interpretation Explained…
• Barak defines interpretation as the rational process
of determining the legal meaning or normative
meaning of a legal text, often for the purpose of
applying it to particular set of facts or to a situation
before the court or interpreter.
• Edzie defines interpretation as a rational process of
determining the meaning of the language used in a
legal text for the purpose of identifying the legal
rights or obligations prescribed in the context of a
particular set of facts or situation before a court or
interpreter.
Slide 4
 Juridical Basis of Statutory
Interpretation
• Juridical basis of constitutional interpretation is article
2(1) and article 130(1) and (2) of the Constitution, which
is to the effect that the Supreme Court has original
jurisdiction in matters relating to the interpretation of
the constitution.
• Section 54 rule 1. of the Courts Act, 1993, Act 459
instructs the Ghanaian court to adopt foreign law in
deciding a dispute where the parties agree that a
particular system of law should govern their transaction
or the system of law which the parties intended from the
nature or form of the transaction.

Slide 5
The duty of the Court in Interpretation
• In Farell v Alexander [1977] A.C. 59 Lord Simon
stated that
“In the construction of written documents including statutes,
what the court is concerned to ascertain is, not what the
promulgators of the instruments meant to say, but the
meaning of what they have said.”

Slide 6
 Rules Guiding Statutory
Interpretation
The interpreter’s duty is to construe documents by applying
rules, principles, presumptions and canons that serve as aids to
statutory and constitutional interpretation. Finding legal
meaning is to be done in accordance with rules.
There are three (3) main guiding rules that the courts use in
interpreting and construing statutes. These are
• The literal rule
• The golden rule
• The mischief rule
• The purposive approach?????
Unlike the doctrine of stare decisis in which the ratio of a case is
binding, with respect to the rules of interpretation, they are
merely aids to assist with the process of interpretation

Slide 7
 Asare v Attorney-General [2003-2004]
SCGLR 823
As Date-Bah JSC explained the
““Rules” of interpretation are not to be understood as binding courts in the
same way as the ratio decidendi of a case is binding on subsequent courts. The
so-called “rules” of interpretation are merely guides or aids to judges in
deciphering the meaning of words they are required to interpret. As Lord Reid
said in Maunsell v Olins [1975]1 All ER 16 at 18, HL:
“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
relevant circumstances and decide as a matter of judgment what weight
to be attached to any particular ‘rule’.
This is a helpful dictum reminding us that the task of interpretation is always
complex, usually involving the balancing of competing interests, and the
“rules” of interpretation, whether the “literal rule”, “the golden rule”, “the
mischief rule” or the purposive approach”, are to be applied in the context of
particular enactment in order to achieve justice

Slide 8
 The Literal Rule
• The courts will usually start the journey of interpretation
of statute by applying the literal rule
• The literal rule is basically to the effect that the intention
of Parliament or the legislature must be found in the
plain, ordinary or grammatical meaning of the words
used in the statute regardless of whether the result is
sensible or not.
• That is the words must be given their ordinary meaning
regardless that it may cause an absurd result which the
legislature did not intend.
• The duty of the courts is just to apply the law i.e. the
words must be applied with nothing added and nothing
taken away
Slide 9
Gbedemah v Awoonor-Williams (1969)
“Unless the word of a statute is imprecise and unambiguous, it is
not the province of a court to scan their wisdom or policy by
applying the rule and presumptions of construction.”
• In Northern Engineering Co. Ltd. v Djokotoe [1980] GLR 332 it
was held that
“… Where the words of an Act of Parliament are clear, there is no room
for applying any of those principles of interpretation, which are merely
presumptions in cases of ambiguity."
See also Duport Steels Ltd. v Sirs [1980] 1 W.L.R. 142 @ 157
In Sallah v. Attorney-General, the attempt by the defence to
construe the word “established” appearing in section 9(1) of the
transitional provisions to the 1969 constitution in a technical
meaning was rejected by the Court of Appeal sitting as the
Supreme Court.

Slide 10
 Ordinary meaning Explained…
In Republic v High Court (Fast Track Division), Accra; Ex parte
CHRAJ (Anane interested Party) [2007-2008] SCGLR 213
Brobbey JSC explained the ordinary meaning as
“… the meaning which any ordinary man on the street will understand by
that word or the sense which he/she will attribute to that word which is
the sense in which it will be used by that ordinary man. In the normal run
of affairs, the ordinary man will approach the dictionary for the meaning
if he has any doubt about the meaning of the word.”
The Supreme Court, per Wood JSC therefore gave effect to the
ordinary meaning of the word “complaint” in article 218(a) of
the CHRAJ’s mandate in the constitution. The court pronounced
that a compliant in its literal sense meant that a formal
accusation must have been made by an identifiable person
before CHRAJ. In effect, CHRAJ was not clothed with jurisdiction.

Slide 11
 Literal Rule …
• The court should give effect to the ordinary, literal and
grammatical meaning of a statute where the words of
the statute are clear and unambiguous.
• The exception to the literal meaning given to words in
statutes is where the court is dealing with a technical
statute.
• In a technical statute, words will be read in their
technical and not ordinary meaning
• Where the words in a statute are not dealing with a
particular science or art or technicality, it will prima facie
be presumed to use the words in their popular sense as
they are understood in common language

Slide 12
 The Literal Rule critiqued…
In Asare v A-G, Date-Bah JSC said
“What interpretation is to be given the words should
depend upon the court’s perception of the purpose of the
provision and the context of the words, rather than on their
dictionary meaning. The “plain meeting” approach to
judicial interpretation is not necessarily the most apposite.
In my view, words hardly ever have a meaning in vacuo.
Words take on a meaning in association with the other
words in whose context they are used. Therefore, the
interpretation of words almost invariably means doing more
than finding their mere dictionary (or “literal” or “plain”)
meaning.”
Slide 13
 The Golden Rule
• The golden rule is adopted by the courts to interpret
statute where the language of the statute is ambiguous
in order to ascertain the intention of the legislature and
to avoid the ambiguity
• The courts will depart from the literal rule when the
application of the ordinary meaning of words in a
statute would be repugnant to or inconsistent with
some other provision in the statute or will lead to an
absurdity or a result contrary to the intention of the
legislature in which case the grammatical and ordinary
sense of the words may be modified, (secondary
meaning) to avoid the absurdity and inconsistency, but
no farther.

Slide 14
 The Golden Rule
• In applying the golden rule in the construction of statute,
the usual consequence is that words which are in the
statute are ignored or words which are not there may be
read into it
• There are two main approaches to the application of the
rule
– The narrow approach – where the language of the statute is
ambiguous, the court can construe it in order to avoid an absurd
result
– The wider approach – the court may depart from the clear
unambiguous language of a statute if to do so would lead to a
glaring absurdity obviously never contemplated by the
legislature

See Quansah on Ghana Legal System Slide 15

 The Golden Rule
Sam v. Comptroller of Customs and Excise where Taylor J
held that, it was the duty of a court to give effect to the
intention of the legislature; therefore, where the words in
an enactment are clear and unambiguous, no question of
interpretation arises, but where the ordinary words lead to
manifest absurdity, the language may be varied or modified
so as to avoid inconvenience. See also Sasu v. Amua-Sekyi
[1987-88] 1 GLR 506
The legal position on secondary meaning construction has
been consolidated by the Interpretation Act, 2009, Act
792. The Memorandum to the Act, at page IV provides that
judges should not use strict constructionist approach to
interpretation to defeat the ends of justice.

Slide 16
 A Purposive Approach: The Mischief
Rule
• The mischief rule is also known as the rule in
Heydon’s case
• Under the mischief rule, the court adopts an
interpretation which is more likely to give effect to
the purpose or the reform which the statute is
intended to achieve
• The mischief rule is used to resolve ambiguities in
cases in which the literal rule cannot be applied

Slide 17
 The Rule in Heydon’s Case
• The rule in Heydon’s case sets outs four points that must
be considered before the rule is applied:
1. What was the common law position before the making of the
Act?
2. What was the mischief and or defect that the statute was
intended to remedy?
3. What remedy has Parliament prescribed to remedy the
mischief or defect?
4. The true reason of the remedy
• The courts in considering the points above must
interpret the statute in such a way as to remedy the
problem that the legislature intended to address

Slide 18
 The mischief rule
• In the case of Sasu v. Amua-Sekyi, the Court of Appeal
applied the mischief rule by correcting an error in the
text by supplying into the text the missing words to make
it intelligible to reflect the intention of parliament
• It is noted that in Ghana the rule has gained prominence
in the interpretation of the provisions of the Constitution
• See the cases of Ex parte CHRAJ (Anane interested Party);
and
• Asare v A-G
• Tuffour v A-G

Slide 19
 The Purposive Approach
• The application of the purposive approach to the
interpretation of statutes is wider than merely ascertaining
the mischief
• The purposive approach to the interpretation of statute
considers the context of the statute and seeks to give effect to
the true purpose of the statute i.e. statutes are not just
passed to remedy a mischief but to promote some social good
or purpose
• In Pepper v Hart [1992] 3 WLR 1032, it was held per Lord
Griffiths on the purposive approach that:
"The days have passed when the courts adopted a literal approach. The
courts use a purposive approach, which seeks to give effect to the purpose
of legislation and are prepared to look at much extraneous material that
bears upon the background against which the legislation was enacted."

Slide 20
 The Purposive Approach
• The Memorandum to the Interpretation Act further
stipulates that the Courts in the Commonwealth have now
moved to the Purposive approach to the interpretation of
legislation and indeed all written instruments. It emphatically
states that judges have abandoned the strict constructionist
view of interpretation in favour of the true purpose legislation.
• The Supreme Court in Republic v. High Court, General
Jurisdiction Accra; ex parte Zanetor Rawlings (Ashittey &
National Democratic Congress Interested Party (No.1)
reasoned that, in the domain of purposive interpretation for
example, no word is clear, precise or unambiguous unless it is
construed within cultural, economic, political and social texts.

Slide 21
 The Purposive Approach
• In Eshun v. Poku the position of the law on the purposive
approach to statutory interpretation was given teeth by
dictum of Lutterodt J (as she then was) when she
declared that, in the interpretation of statutes, its
ordinary meaning was to be applied provided it led to no
absurdity. However, where 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.
• The modern approach was to apply the purposive
approach that would promote the general legislative
purpose in ascertaining the will of the legislators
Slide 22
Tenets of Purposive Approach to Statutory
Interpretation
1. The courts are required to take into consideration, the words of
the enactment in accordance with their ordinary meaning and
their context. i.e. they consider, the scope, purpose and
background of the law
2. It permits resort to extraneous and external aids see Section 10 of
the Interpretation Act, 2009, Act 792
See also R v Secretary of State for the Environment, Transport and Regions,
ex p. Spath Holme [2001] 2 A.C. 349, Lord Nicholls explained that:
“Nowadays, the courts look at external aids for more than merely identifying
the mischief the statute is intended to cure. In adopting a purposive approach
to the interpretation of statutory language, courts seek to identify and give
effect to the purpose of the legislation. To the extent that extraneous material
assists in identifying the purpose of the legislation, it is a useful tool.”
3. Courts do not concentrate on language to the exclusion of the
context.

Slide 23
Legal Basis for Purposive Approach to
Constitutional Interpretation
• Section 10(4) of the Interpretation Act 2009 is acknowledged to be the
juridical basis of the purposive approach to constitutional interpretation. It
provides:
In essence the Constitution must be construed or interpreted in a manner
i. that promotes the rule of law and the values of good governance,
ii. that advances human rights and fundamental freedoms
iii. that permits the creative development of the provisions of the
Constitution and the Laws of Ghana, and
iv. that avoids technicalities which defeat the purpose of the Constitution
and of the ordinary law of the land.
CHRAJ v. AG & Baba Kamara, Date-Bah imprinted that the purposive
approach to interpretation has been entrenched in our jurisdiction. He
further disclosed that approval of this judicial decision to statutory
interpretation is stamped by section 10(4) of the same Interpretation Act, Act
792.

Slide 24
 The Purposive Approach
• In Danso-Acheampong v. Attorney-General, the Supreme
Court upon conducting a juxtaposition of the literal and
purposive approaches recommended the purposive approach.
It expressed unanimously that:
“These days, a literal approach to statutory and constitutional
interpretation is not recommended. Whilst a literal interpretation
of a particular provision may, in its context, be the right one, a
literal approach is always a flawed one, since even common
sense suggests that a plain meaning interpretation of an
enactment needs to be checked against the purpose of the
enactment, if such can be ascertained. A literal approach is one
that ignores the purpose of the provision and relies exclusively on
the alleged plain meaning of the enactment in question.”

Slide 25
 Critique
Ex parte CHRAJ (Richard Anane, Interested Party) per
Wood CJ,
“The purposive rule is however, not a carte blanche for
rewriting legislation … and should never be used as a
ruse, a cloak or guise to do so. The function of a court is
to interpret legislation and give effect to it, even where
the terms appear unpalatable. Care must be taken to
avoid legislating under the guise of interpretation.”

Slide 26
 Aids to Statutory Interpretation
• Internal aids to interpretation
– This relates to the use of parts of the statute as aids eg. The title
(long & short), sections and sub-sections, the marginal notes, the
headings, the schedule, punctuations, etc
• Extrinsic aids to interpretation
– International treaties
– Preparatory documents of international treaties
– Reports of a Commission
– An agreement declared to be a relevant document
– Legislative antecedents
– Memorandum to the Act
– Pre-parliamentary materials
– A textbook in reference to the enactment
– Parliamentary Debate

Slide 27
 Internal Aids to Construction
1. The Title and Preamble - S. 13 of the Interpretation Act, 2009 (Act 792)
“The long title and the preamble form part of an Act intended to assist in
explaining the intent and object of the Act”
2. Punctuations – s. 14 of Act 792
Punctuation forms part of an enactment and may be used as aid to its
construction.
3. Headings – s. 15 of Act 792
Titles placed at the head or beginning of a subdivision' of an enactment and notes
and references placed before the beginning of a provision are intended for
convenience of reference only but may be as an aid to construction of the
enactment.
4. Marginal Notes – see S. 15 of act 792
These are notes printed on the sides of the sections in a statute. See the cases:
– Osei v Siribuor II [1984-86] 1GLR 588
– Republic v High Court, Accra; Ex parte Adjei [1984-86] 2GLR 511
Slide 28
 Internal Aids…
5. Schedule –
Schedules form part of the statute and are usually found at the end
of the statute and may be referred to in the interpretation of the
provisions contained in the body of the statute
6. Interpretation Section of Statutes
Statutes contain interpretation sections which seek to give
meaning to certain words used in the statute
7. Provisos
Provisos in statutes are used to create exceptions or a qualification
of something in the preceding portion of the section which but for
the proviso would be within it

Slide 29
 Rules of Language /Linguistic Canons
of Construction
These canons govern the elaboration of meaning of
individual words and phrases by drawing of certain
inferences. According to Aharon Barak, the canons are
linguistic rules and not legal rules.
1. Expressio unius exclusio alterius (to express one
thing is by implication to exclude anything else)
The aid to construction expressed in the Latin maxim,
expression unius est exclusion alterius simply means that 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.

Slide 30
 Expressio unius exclusio alterius
• Ghana Ports and Harbours Authority v. Issoufou, the
Supreme Court per Aikins in this case noted that the
maxim expression unius est exclusion alterius must
be applied with caution because the omission to
mention things which appeared to be excluded might
be due to inadvertence or accident or because it
never occurred to the draftsman that they needed
specific mention.

Slide 31
 Ejusdem generis rule
• Where a statute lists a number of specific things and
ends the list with more general words, the general words
are to be limited in their meaning to other things of the
same kind (ejusdem generis) as the specific items, which
precede them.
• It must be possible to form a genus out of the specific
words and where this is not possible, the rule is
inapplicable
• A genus is created when more than a single specie is
followed by general words
• Flowing from the discussion above, the existence of a
genus or class is a sina qua non for the application of the
ejusdem generis maxim.
Slide 32
Jebelle v Norwich Union Fire Insurance
Society Ltd [1964] GLR 427
Per Apaloo JSC as he then was @436:
“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.”

See also Republic v Ghana Cargo Handling Co Ltd; Ex parte

Moses [1980] GLR 206

Slide 33
 Noscitur a sociis Rule
• A thing is known from its associates (a word msybe known by the company it
keeps). Where words or phrases capable of different meanings are associated
together, they take their meaning from each other and this may exclude meanings
which would be possible, if the words or phrases stood alone.
• The maxim simply stated is where a general word is preceded by or comes after
specific words, the general word takes the colour or meaning from the words
surrounding it
• This principle is well expressed in the remarks of Viscount Simonds in Attorney-
General v. Prince Ernest Augustus of Hanover [1957] A.C. 436 at 461, H.L., where
he said:
“…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."

Slide 34
 Noscitur a sociis Rule
• Republic v. Minister of Interior; ex parte Bombelli
the rule was applied. The applicant, an Italian, was
deported under an order embodied in an Executive
Instrument No. 80 of 1980 issued by the Minister of
Interior under section 12(1)(f) of the Aliens Act,
1963. The applicant challenged the deportation
order by an application for certiorari. Counsel argued
that the order contravened article 4(7) of the 1979
Constitution (reproduced as article 11(7) of the 1992
Constitution) because it was not laid down before
parliament for the compulsory 21 days.

Slide 35
 Presumptions
• These are the background of legal principles against
which a statute is viewed, and on which the legislator
is assumed to have legislated without expressly
saying so. They are however rebuttable
presumptions. The include presumptions against:
– alteration of existing legislation
– retropectivity of statute
– vested rights
– derogation from the requirements of international law
– Presumption in favour of mens rea

Slide 36