Complexity of Legal Drafting
The law on any particular subject comes either from the common law, equity or a statute; or sometimes a combination of these. Historically, the common law was the most important source of law but in modern time lawyers look first to a statute to find the solution to a legal problem and before going to the common law.
You will have noticed from your readings a number of reasons why legislation is the important source of law: Upon the passing of an Act on a certain subject the common law is automatically abrogated Legislation allows law reformers to effect a wholesale and dramatic change in the law
The sheer volume of legislation and the fact that it is increasing makes it an important source of law.
With these attributes one would hope that legislation would clearly and concisely set out the law on a particular subject, however this is not always so. There are a number of reasons for this:
1.As Chisholm and Nettheim, (1984, p 56) state:
The English language, for all its glories, is not a precision instrument, and there will always be people (or their legal advisers) ready to argue that the words used in a statute or regulation do not extend to cover their particular cases.
The difficulties facing courts in the interpretation of legislation are pointed out by all the text writers. To borrow one example: Say an Act passed with the following provision: ‘Any person who throws litter in the street shall be liable to a fine not exceeding N100.00’.
This may seem at first glance to be quite clear yet does it cover a person who drops something or leaves something on a park bench? How widely should the word ‘throw’ be interpreted? Another possible area of controversy is what does the word ‘litter’ mean in this context? Assume it means something which is useless or rubbish – but rubbish to whom? When does the evening paper become rubbish (or useless); the next day?
Of course it would be extremely unlikely that you would encounter a Statute so vaguely worded, because no doubt, the draftsmen would anticipate at least some of the difficulties referred to above. It is the need to include definitions, exceptions, exclusions and so on which make our Acts of Parliament so complex. The English language often does not allow Statutes (and legal documents) to be drafted simply and concisely.
- Some people suggest that lawyers set out deliberately to make the law obscure so that they are the only ones who can understand and citizens will have to pay lawyers for their interpretation. This sort of glib assertion is often ill informed. More commonly, the problem arises because lawyers in drafting documents or Statutes tend to rely on precedents which are often cast in old fashioned English. To these precedents, amendments or modifications are made (in the same style) which adds to the complexity.
- Another factor is that drafters of both Statutes and legal documents set to try to cover every conceivable contingency. So what commences as tolerably simple becomes very unwieldy. Frequently, this process occurs with legislation because a loophole in the particular provision is exposed by a court case and the government rushes through an amendment to close the loophole. This process is particularly evident with revenue raising Statutes. When drafting documents lawyers try to cover all angles because that is precisely what the clients expect. If a lawyer fails to deal with a contingency and the matter has to be resolved in court then the client understandably may be put out.
- One reason complex or obscure legislative drafting is not amended is because over time its meaning might be drafted by the courts in the way they interpret the particular provisions. If the law is amended then the value of the clarifying decision may be lost and the new wording may raise its own ambiguities. The more court cases you get, the more it is lost by any changes and the greater the inertia for change.
Take any Act of the Federation on Law of a State and attempt to identify the following components:
a. Short title
b Long title
c. Date of reprint
e. Marginal notes
g. Looking at the table of provisions what section provides, for making of regulations?
h. Definition section or dictionary
Plain English Drafting
This is not to suggest that the complexity and obscurity of legal drafting is tolerable or is justified by the above factors. Few commentators would disagree that more of an effort should be made to produce statutes and documents in a form that can be understood by the non-lawyer. In fact, there is now afoot in Nigeria a concerted effort in that regard. This drive is coming from a number of sources including:
State and Federal Government policy. For instance one object of Interpretation Act is to facilitate ‘Plain English Drafting’
Business is complaining loudly about the cost and uncertainty in complying with laws which are almost impossible to comprehend. One result of this pressure is recent revision of the Company Law and the enactment by the Federal Government of the Companies and Allied Matters Act, 1990.
In deciding whether the actions of a person or company in a particular transaction is unjust or unconscionable, the courts will have regard to whether any relevant documents could be readily understood. This has caused many finance and insurance companies to re-draft their documents into a more comprehensible form
Finally, it is being realized that it is rarely possible to cover every contingency, especially in legislation and a better alternative is to lay down some broad and simple guidelines for conduct; if necessary leaving the courts to provide further guidance through their decision. This is sometimes known as ‘fuzzy law’.
The advantage is that this type of Statute Law will be much concise and hopefully it can be understood by at least that section of the community most affected. The drawback is that costly litigation may be required to provide the clarification necessary. On the other hand the old style and more complex approach often does not exactly stem the flood of litigation either.
Legal drafting which used to be taught only in the Law School is now being taught in many universities including NOUN at undergraduate and postgraduate levels.
Principles, Approaches and Rules
To assist courts to interpret statutes, a number of principles and rules have been adopted over the years. These rules are not necessarily hard and fast and there is still a considerable discretion available to judges.
Courts, by interpreting either widely to cover a particular situation or narrowly to exclude it, in a sense create new law. The effects of a court decision on the interpretation of a Statute can be clearly shown by looking at the Companies Income Tax Act (CITA) and the Income Tax Management Act (ITMA). The scheme of the Act is to impose tax in certain circumstances and almost daily tax payers are challenging that Act saying that its terms do not cover their particular situation for various reasons. If the taxpayers’ arguments are upheld by a court, then often, a loophole is opened up and a new legal situation comes about until of course the government closes up the loophole.
The courts have over the years worked out ways and means of interpreting Statutes. These ways and means may be classified into: Approaches to the way in which statutes should be interpreted – these approaches are of a general nature; and Specific rules which aid statutory interpretation.
Judges differ in opinion on the correct approaches. However, the specific rules are more or less universally accepted.
Approaches to Interpretation
Set out below, is an explanation of the three traditional ‘approaches’ to the interpretation of legislation. While these methods or rules provide some guidance, their importance should not be over-stated. It could be rare for instance to hear a judge refer to one of these approaches when giving reasons for interpreting a statute in a particular way. While no formal recognition may be given by the judge, certain aspects of these approaches may, however be gleaned from the decision especially if, for example, the objects of the statute are identified. A study of the three approaches therefore can provide a setting against which statutes are interpreted.
Also, they provide a useful illustration of the latitude that courts often have (or consider they have) when interpreting an Act. Just as we saw with precedent and ratio decidendi there is no pre-ordained path or automatic process that will produce a given result.
- Literal Approach: This means you simply interpret the words of the statute as they stand. If this leads to an unjust result, that is not the concern of the courts but rather of Parliament and the injustice can be remedied by Parliament
- Golden Rules: A gloss on the literal approach is the golden rule which means you apply the literal approach unless that would lead to a manifest absurdity or injustice – which presumably Parliament did not intend.
- Mischief Approach: This involves a consideration of what Parliament intended, which is usually tied up with the question: What mischief does the Act attempt to stamp out?
None of these approaches has received universal acceptance by judges. However, the modern trend is towards the purpose approach, especially it has been recognised by statutes dealing with the interpretation of statute themselves. This development is explained below.
Let us talk more on some examples of these three approaches:
The Literal Approach
In Prince Blucher, Ex parte Debtor (1931) 2 Ch 70 is quite a good case in point. That decision turned on the interpretation of a section of the English Bankruptcy Act dealing with arrangements by debtors with creditors as an alternative to bankruptcy. The section provided that to avoid bankruptcy the debtor must within a certain period of time lodge with the Official Receiver a proposal in writing signed by him embodying the terms of the composition or scheme. In the particular case the debtor did not sign the proposal but rather his solicitor did – the reason being that the debtor was too ill at the time (this fact was not contested at the trial). The court had to interpret the words signed by him in the relevant provision and did so by applying the literal approach. It was held that the debtor had not complied with the provision and could not gain the benefit of the section. The court recognised the injustice created by this interpretation but followed an earlier English case of Warburton v Loveland (1832) 6 ER 806 which expressed the rule that where the language of an Act is clear and explicit the court must give effect to it, whatever may be the consequences; in that situation the words of the Statute speak the intention of the legislature.
The Golden Rule Approach
While some judges still insist that you interpret statutes according to the letter of the law and leave it to Parliament to remedy any injustice arising from the particular provision, there is a strong body of opinion toward a more liberal approach. The golden rule is an example of such an approach.
In Turner v Ciappara  VR 851, the defendant pulled up at a set of traffic lights because they were red in his direction. A minute or so passed and the lights did not change and it became apparent that they were jammed. After a number of other cars traveling in the same direction went through the intersection against the red light the defendant did also and collided with another car proceeding at right angles through the intersection with the green light.
The defendant was charged with failure to obey traffic control signals. The question of interpretation before the court was on the meaning to be given to traffic control signals so far as the Act was concerned. Mclnerney J held that these were not traffic control signals because, having jammed, they were incapable of exercising control or regulating traffic. He felt that to apply a literal interpretation on the section would result in the necessity for the defendant to sit at the traffic lights indefinitely until they were fixed and showed green in his direction. This was clearly an absurd situation and so the golden rule was applied.
The Mischief Approach: This is something of a sister to the Golden Rule and the two often work closely together. The mischief approach requires judges to examine what the law was before the particular Act was passed and to identify the defect in the law which the statute was supposed to remedy. The Act can be interpreted so as to eliminate the mischief or defect.
An example of the operation of the mischief approach occurred in a case involving legislation to prevent prostitutes soliciting in the public place. A law was passed to prevent this and the prostitutes retreated from the street to doorways and continued to solicit. The question which arose for consideration was whether the prostitutes were soliciting in the public place that is, even if they physically were not present in the street. The Court applied the mischief approach and looked at the purpose of the legislation which was aimed at allowing ordinary citizens to use the street without being approached. It was held the prostitutes were soliciting in the street.
You must realize that the mischief approach can only be applied if there is an ambiguity in a statute. Otherwise the literal approach will be adopted.
The Purposive Approach
While the basic step in interpreting a statute is to read the words and sections by giving them their literal meaning, Parliaments in recent times have given the courts legislative direction about the approach they should take if the literal reading of the statute results in some ambiguity or lack of clarity as to its interpretation.
It is now common place for courts in Nigeria to examine the circumstances surrounding introduction of the Act that promotes the purpose or object underlying the Act.
In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not shall be preferred to a construction that would not promote that purpose or object).
The intention or purpose of the Legislature must be found in the statute itself but in special circumstances courts may use extrinsic material, eg Hansard, law commission reports, explanatory memoranda etc, to gather the intention or purpose of Parliament.
In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.
To assist this manner of interpretation, most recent statutes incorporate a purpose or object clause. Thus, Parliament has stated its purpose at the start of the statute and when faced with some difficulty of interpretation of subsequent provisions, the courts must interpret the provisions so that the act’s stated object or purpose is achieved.
Whatever courts eventually do, they will always be obliged to exercise some kind of discretion – even in construing fairly ordinary words in a statue. This liberty would lead to considerable confusion but for the fact that, as we have seen, the judicial system has many built-in safe-guards. First, judges are above the thunder’; they are not personally involved in the controversies. They have the prudent of trained lawyers. They have experience of similar decision in other areas of law. They know that their judgments may be made the subject of an appeal; they may be reported and criticized by fellow lawyers and legal writers. They have the trained sense of what any given words mean to lawyers and of the limited range of meanings which any word in itself can have.
Within these bounds, the range of discretion enables the courts to keep law reasonably fluid. After all, law is, in the words of an eminent American judge, Learned Hand: ‘a political contrivance by which the group conflicts inevitable in all society…find a relatively harmless outlet. The price of judicial freedom’ and of a healthy, reasonable, flexible social order, is some degree of unpredictability in our statute law – just as it is in precedent.
Identify which of the maxims of statutory interpretation are being referred to in the following statements:
- The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the parliament that made it, and that intention has to be found by an examination of the language used in the statute as a whole. The question is what does the language mean; and where we find what the language means, in the ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable.(Higgins J in Amalgamated Society of Engineers v. Adeleude Steamship Co. Ltd (1920) 28 CLR. 129 at 1612)
- 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 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 (Per Lord Vensleydale in Grey v. Pearson (1837) 6 HLC 61 at 106)
- In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation (whether or not the purpose is expressly stated in the Act (Interpretation Act). Specific Rules of Interpretation
(a) Read Act as a Whole
Tied up with the approaches previously discussed is the rule that an Act must be read as a whole. In interpreting a section of an Act it is important that the words under scrutiny can be viewed in the context of the whole Act. If, however, the words of a section convey a clear meaning, effect should be given to that meaning.
(b)Definition of Words
One of the most frequent difficulties encountered in interpreting a statute is the meaning of particular words. The example was given earlier in this study guide of an Act dealing with litter – a word which is difficult to define.
If you encounter a word in a statute the meaning of which you need to determine then the following procedure should be adopted:
Go first to the front of the Act to the definition section where the word in question may be defined.
If it is defined then the definition will normally be preceded either by the word includes or means. If the word includes is used then the definition is not exhaustive and everything that falls within the ordinary meaning of the word in question is still included but the definition will normally extend the normal meaning of the word.
For example if the word aeroplane in a statute was defined: ‘aeroplane includes a glider’ then the normal meaning of aeroplane, which would be a powered plane, is extended to include a glider.
If the definition is preceded by the word means then the definition itself is exhaustive and all embracing – the presence of the word means closes the meaning of the word in question.
If there is no definition, refer to a dictionary for the ordinary meaning of the word (subject of course to its context which may indicate for example that is should be given a technical meaning).
(c) Interpretation Acts
For commonly used words and for some definitions, the relevant State of Federal Interpretation legislation has to be considered. These cover the following types of concepts or words: Citation of Acts; Commencement; Repeal, expiration or amendment of Acts;
Meaning of common words such as: ‘writing’, ‘gender’, ‘number’, ‘land’, ‘month’, ‘person’, ‘property’, ‘statutory declaration’, ‘contravene’, ‘corporation’;
Meaning of more specialized words such as: ‘affidavit’, ‘gazette’, ‘Governor-in-Council’, ‘Industrial Court’, ‘Minister’, ‘public holiday’, ‘Financial year’; Reckoning of distance and time;
Service by post;
New or updated forms of expression. In the Interpretation Act for instance, there are specific provisions dealing with the use of gender, spelling, punctuation, conjunctives and disjunctives and even down to format and printing style. Some commonly used words. This allows drafting shorthand, for example, it is possible for statute to be drafted in either gender. On this point, the Interpretation Act relevantly provides words indicating a gender to include each other gender.
The ejusdem generis Rule
Is often used by judges in interpreting statutes. It provides that where there is a list of two or more specific words which form a class (or genus), and the list is followed by a more general word (or words), then the meaning of the general words is restricted to the same class of the words that preceded it.
Interpretation of the legislation is the function of the Court. Where the language is idea, the literal approach applies. However, where it is vague, the citizen has a right to proper interpretation, using golden rule, mischief, purposive, ejusdem generis rule or other approaches.
Legislation is often couched in technical language. A situation may also arise where it is not certain whether or not a statute or regulation extends to a particular case, to assist the court, a number of principles, approaches and rules have been adopted over the years. Interpretation is wide or narrow. Approach ranges from Literal, Golden, Mischief, purposive, to ejusdem generis rules approaches or other. The Court may just read the Acts as a whole, resort to internal or external aids. It is a matter of judicial function.
The Law of Lagos State provides that “a person shall be guilty of an offence who throws down, drops or otherwise deposits and leaves any litter in or on any public place”
Section 2 of the law defines ‘Litter’ to mean ‘bottles, tins, cartons, packages, paper, glass, food or other refuse or rubbish and ‘public place’ is defined to mean ‘any street, road, lane or thorough fare’
Prince Waidi parked his motor vehicle on a reservation strip separating two carriage ways and drained a quantity of oil from the sump of his motor vehicle leaving a pool of oil on the carriage way.
Prince Waidi has been arrested and prosecuted under the law. What rules of statutory interpretation would be utilized by the prosecution to successfully prosecute Prince Waidi?