O. S. Adeniyan
Being a paper presented at the Mandatory Continuing Education Programme on 'Legal intervention and procedures in environmental health litigation' at Ta'al conference Hotel. Lafia, 0n 18-20th April, 2012
Sources of law means the origin from which rules of human conduct come into existence and derive legal force or binding characters. It also refers to the sovereign or the state from which the law derives its force or validity.
Generally, sources of law from most nations are:
Precedent is one of the sources of law. The judgments passed by some of the learned jurists have become a significant source of law. When there is no legislation on a particular point which arises in changing conditions, the judges depend on their own sense of right and wrong and decide the disputes. Such decisions become authority or guide for subsequent cases of a similar nature and they are called precedents. The Gilbert Law Summaries Pocket Size Law Dictionary defines a judicial precedent as a previously decided case which is used as an example or authority for similar cases which subsequently arise. Precedent therefore is a judgment or decision of a court of law cited as an authority for deciding a similar state of fact in the same manner or on the same principle or by analogy. Precedent is more flexible than legislation and custom. Precedents are not binding on courts in narrow senses, but usually the decision of a higher or Supreme Court is binding on all of its subordinate courts. However, the higher courts can overrule their own judgments.
A custom is a rule which in a particular family or in a particular district or in a particular section, class or tribe, has from long usage obtained the force of law. The Law Dictionary defines custom as a practice which, through long, repetitious use and common acceptance, has gained the status of unwritten law in a particular area. Custom as a source of law got recognition since the
emergence of Savigny on the horizon of jurisprudence. It is an exemption to the ordinary law of the land, and every custom is limited in its application.
Legislation is a set of laws made by a legislative body; regulations adopted by a lawmaking body. Legislation is a direct source of law. The legislative body has power to make laws and amend the old laws and cancels the existing ones. In modern times this is the most important source of law making. The legislative body not only creates new rules it also sweeps away existing inconvenient rules. It has to be passed by both the House of Representatives and the Senate that make up the legislative body for the Federation. The making of a new law starts as a bill. Here the bill is discussed and debated by the members of the legislature and is often amended before it is passed.
However, the major sources of Nigerian law in addition to precedents, legislation and customs include the following:
• The Constitution
• Nigerian Legislation
• English law
• Customary law
In Nigeria, the constitution refers to the document containing the substance of the law of the country. In its loose and abstract sense, it may mean, “the system of laws, custom and conventions which define the composition and powers of organs of the State, and regulate the relations of the various state organs to one another and to the private citizen. The Constitution of the Federal Republic of Nigeria is superior to all other laws of the land and it regulates the judicial, executive, and legislative organs of government. The current Constitution is the 1999 Constitution. And it came into operation on May 29, 1999.
Nigerian Legislation (Acts, Decrees, Edicts)
The Constitution of the Federal Republic of Nigeria 1999 regulates the distribution of legislative business between the National Assembly which has power to make laws for the Federation and the House of Assembly which has power to make laws for the State. The current legislation in force at the federal level is largely contained in the Laws of the Federation of Nigeria 2004 (LFN). Laws made after the 2004 revision exercise of the federal laws are to be found in the Annual Volumes of the Laws of the Federal Republic of Nigeria. Federal laws under the Military, known as Decrees, and State laws, known as Edicts, form the bulk of the primary legislation.
Each of the 36 states and the Federal Capital Territory (FCT) Abuja has its own laws. Some states have in recent times undertaken law revision exercises to present their laws in a compact and comprehensive form to update the laws and guarantee easy access. Most of the pre-1990 Decrees were incorporated into the LFN and those patently incompatible with the new constitutional order were repealed on the eve of the inauguration of a new democratic government in May 1999. Primary and subordinate legislation in force on the coming into operation of the Constitution are treated by the Constitution as existing laws and deemed to have been made by the appropriate legislative body with competence to do so under the 1999 Nigerian Constitution. Legislation has been described as the most important source of Nigerian law. This is partly because all other sources of Nigerian law are considered as such by virtue of a piece of legislation or the other.
English Law This consists of:
(a) the received English law comprising:
(i) the common law;
(ii) the doctrines of equity;
(iii) statutes of general application in force in England on January 1, 1900;
(iv) statutes and subsidiary legislation on specified matters and
(b) English law (statutes) made before October 1, 1960 and extending to Nigeria which are not yet repealed. Laws made by the local colonial legislature are treated as part of Nigerian legislation. The failure to review most of these laws especially in the field of criminal law has occasioned the existence of what may be described as impracticable laws or legal provisions which are honoured more in breach than in observance. Despite the influence of English Law, the Nigerian legal system is very complex because of legal pluralism.
The traditional classification of customary law is into the following categories:
1. Ethnic/Non-Moslem; and 2. Moslem law/ Sharia.
In the states in the Southern part of the country, Moslem/Islamic law, where it exists, is integrated into and has always been treated as an aspect of the customary law. Since 1956, however, Islamic law has been administered in the Northern states as a separate and distinct system. Even then it has only been in relation to Muslim personal law. However, it is better to accord Islamic law its distinct status as a separate source of law because of its peculiarities in terms of origin, nature, territorial and personal scope of application.
WHAT ARE THE EXISTING RULES AND GUIDELINES IN ENVIRONMENTAL HEALTH LAWS?
The basis of environmental policy in Nigeria is contained in the 1999 Constitution of the Federal Republic of Nigeria. Pursuant to section 20 of the Constitution, the State is empowered to protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria. In addition to this, Section 2 of the Environmental Impact Assessment Act of 1992 (EIA Act) provides that the public or private sector of the economy shall not undertake or embark on or authorize projects or activities without prior consideration of the effect on the environment.
The Federal Government of Nigeria has promulgated various laws and regulations to safeguard the Nigerian environment. They include:
1. Public Health Law, Chapter 109 of 1963.
2. Nigerian Criminal Code Act, Cap. 77, (Sections 243-248) LFN,2004.
3. Environmental Impact Assessment Act LFN, 2004.
4. Harmful Wastes (Special Criminal Provisions) Act of 1988 Cap. 165 LFN.
5. The National Environmental Standards and Regulations Enforcement Agency (NESREA) Act, 2007.
1. Public Health Law
The first major health law was the Public Health Ordinance Cap. 56 Vol. 1 of 1917. However, the Criminal Code Act which was enacted in 1916 contained some provisions on public health offences and punishments. There was also Public Health Law, Chapter 109 of 1963 which gave rise to the Public Health Legislation of the FCT.
The various states of Nigeria have their own public health laws which are not different from each other. For our purpose in this paper, the foundation of our discuss shall be centred on the Public Health Law of Ondo State of Nigeria Cap. 124 Vol. 3 of 2006.
The public health Law is divided into eight (8) parts of seventy five (75) Sections. The title of the eight parts are:
Part Sections Title
1 1-5 Interpretation, Medical Officers of Health,
their powers & duties
2 6-11 Nuisances
3 12-33 Notifiable Infections Diseases
4 34-36 Sale of Food
5 37-52 Vaccination
6 53-63 Yellow Fever
7 64-67 Sanitation and Housing
8 68-75 General Provisions (Miscellaneous)
2. Criminal Code Act (Cap. 77) Laws of the Federation of Nigeria (L.F.N.), 2004.
Sections 243 – 248 of the Code deal with offences against public health.
The above various sections provide the punishment for:-
(a) Any person who exposes things for sale which is unfit for food or drink.
(b) Any person who deals in diseased meat.
(c Any person who corrupts or fouls the water of any spring, stream, well etc.
(d) Any person who without the necessary government consent buries or attempt to bury any corpse in any house or premises.
(e) Any person who (a) vitiates the atmosphere in any place so as to make it noxious to the health of persons in general dwelling or carrying on business in the neighborhood, or passing along a public way.
(f) Does any act likely to spread the infection of any disease dangerous to life, whether human or animal.
The relevant provisions of the Criminal Code affecting public health and environmental standards enforcement are hereunder reproduced.
243. (1) Any person who sells, as food or drink, or has in his possession with intent to sell it as food drink, any article which has been rendered or has become noxious, or is in a state unfit for food or drink, knowing or having reason to believe that the same is noxious as food or drink, or is in a state unfit for food or drink is guilty of a misdemeanor, and is liable to imprisonment for one year.
(2) Any person who adulterates any article of food or drink, so as to make such article noxious as food or drink, intending to sell such article as food or drink, or knowing it to be likely that the same will be sold as food or drink, is guilty of a misdemeanor, and is liable to imprisonment for one year.
244. Any person who ———
(i) Knowingly takes into a slaughter – house used for the slaughter of any animals intended for the food of man the whole or any part of the carcass of any animal which has died of any disease; or
(ii) Knowingly sells the whole or part of the carcass of any animal which has died of any disease, or which was diseased when slaughtered;
is guilty of a misdemeanor, and is liable to imprisonment for two years.
245. Any person who corrupts or fouls the water of any spring stream, well, tank, reservoir, or place, so as to render it less fit for the purpose for which it is ordinarily used, is guilty of a misdemeanor, and is liable to imprisonment for six months.
246. Any person who without the consent of the President or the Governor buries or attempts to bury any corpse in any house, building, premises, yard, garden, compound, or within a hundred yards of any dwelling-house, or in any open space situated within a township, is guilty of a misdemeanor, and is liable to imprisonment for six months.
247. Any person who ——
(a) vitiates the atmosphere in any place so as to make it noxious to the health of persons in general dwelling or carrying on business in the neighborhood, or passing along a public way; or
(b) does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, whether human or animal;
is guilty of a misdemeanor, and is liable to imprisonment for six months.
248. Any person who ———
(a) sells or has in his possession for the purposes of sale any matches made with white (yellow) phosphorus; or
(b) uses white (yellow) phosphorus in the manufacture of matches; is guilty of an offence and liable to a fine of twenty naira, and any matches in respect of which the offence shall have been committed shall be forfeited.
Section 265 (2) of the Criminal Procedure Law provides:-
“The court may on a conviction for an offence under the Criminal Code order the food or drink in respect of which the conviction was had and also all other unfit or adulterated food or drink which remain in the possession or power of the person convicted to be destroyed”.
3. Environmental Impact Assessment Act of 1992 (EIA Act).
The EIA Act was promulgated principally to enable the prior consideration of environmental impact assessment of public or private projects. Any person planning a project/activity which may have an impact on the environment is statutorily required to prepare an EIA Report, and the Report must set out the potential impact of the activity on the environment and plans for preventing/mitigating the same, as well as clean up plans. All such Reports must be approved by the Federal Ministry of Environment (FME). Attached to the EIA Act is a schedule of activities and industries for which environmental impact assessments are mandatory. These include Agriculture, Airport, Drainage and Irrigation, Land Reclamation, Fisheries, Forestry, Housing, Industry, Infrastructure, Ports, Mining, Petroleum, Power Generation and Transmission, Quarries, Railways, Transportation, Resort and Recreational Development, Waste Treatment and Disposal, and Water Supply. Any person who fails to comply with the provisions of the EIA Act commits an offence and is liable on conviction, in the case of an individual, to a fine or to a term of imprisonment for up to five years. Fines are also imposed on guilty firms or corporations.
4. Harmful Wastes (Special Criminal Provisions) Act of 1988 Cap. 165 LFN.
This Act was enacted in the wake of the Koko saga. By this Act, Nigeria took a giant leap by becoming an environmentally conscious nation following the dumping of toxic waste in Koko village, in Delta State. The country was before this incident, ill-equipped to manage such environmental crisis, as there were no institutional capacity and legislations to address such matters.
Section 1 makes it an offence for any person to carry, deposit, dump or be in possession of any harmful waste on Nigerian soil, inland water or seas. Section 2 of the Act lists parties to the crime. Section 3 makes provisions for crimes committed in prosecution of a common purpose and Section 5 includes the accessories after the fact. Any person found guilty of a crime under Sections 1 to 5 of this Act shall be sentenced to imprisonment for life. And in addition,
i. any carrier, including aircraft, vehicle, container and any other thing whatsoever used in transportation or importation of the harmful waste; and
ii. any land on which the harmful waste was deposited or dumped,
shall be forfeited to and vest in the Federal Government, without any further assurance other than this Act. Other relevant sections are: Sections 9, 10, 11, 12 of the Act.
5. The National Environmental Standards and Regulations Enforcement Agency (NESREA)
By the NESREA Act, the Federal Environmental Protection Agency Act, Cap. F 10 LFN 2004 has been repealed.
What Is NESREA?
The National Environmental Standards and Regulations Enforcement Agency (NESREA) is an Agency of the Ministry of Environment, Housing and Urban Development. The Agency is charged with the responsibility of enforcing environmental laws, regulations and standard in deterring people, industries and organizations from polluting and degrading the environment.
When Was NESREA Established?
The NESREA Act was signed into law by President Umaru Musa Yar’Adua, GCFR, and this has been published in the Federal Republic of Nigeria Official Gazette No. 92, Vol. 94 of 31st July, 2007.
The Objective of NESREA
NESREA has responsibility for the protection and development of the environment, biodiversity conservation and sustainable development of Nigeria’s natural resources in general and environmental technology including coordination, and liaison with relevant stakeholders within and outside Nigeria on matters of enforcement of environmental standards, regulations, rules, laws, policies and guidelines.
The Vision of the Agency
The vision of the Agency is to ensure a cleaner and healthier environment for Nigerians.
What Is The Focus of NESREA?
• To protect the environment
• To enforce Laws and Regulations on the Environment.
• To maintain Environmental Standards.
• To create environmental awareness
• To engage in partnership in the protection of the environment.
The Functions of the Agency
The functions of the Agency include the following:
• enforce compliance with laws, guidelines, policies and standards on environmental matters;
• coordinate and liaise with stakeholders, within and outside Nigeria on matters of environmental standards, regulations and enforcement;
• enforce compliance with the provisions of international agreements, protocols, conventions and treaties on the environment including climate change, biodiversity conservation, desertification, forestry, oil and gas, chemicals, hazardous wastes, ozone depletion, marine and wild life, pollution, sanitation and such other environmental agreements as may from time to time come into force;
• enforce compliance with policies, standards, legislation and guidelines on water quality, environmental health and sanitation, including pollution abatement;
The powers of The Agency
The Agency has powers to:
• prohibit processes and use of equipment or technology that undermine environmental quality;
• conduct field follow-up of compliance with set standards and take procedures prescribed by law against any violator;
• subject to the provision of the Constitution of the Federal Republic of Nigeria 1999, and in collaboration with relevant judicial authorities establish mobile courts to expeditiously dispense cases of violation of environmental regulation.
The Federal Ministry of Environment (FME) administers and enforces environmental laws in Nigeria. It took over this function in 1999 from the Federal Environmental Protection Agency (FEPA), which was created under the FEPA Act. FEPA was absorbed and its functions taken over by the FME in 1999. The Federal Ministry of Environment has published several guidelines for the administration of the FEPA and EIA Acts and procedures for evaluating environmental impact assessment reports (EIA Reports). Furthermore, the FEPA Act empowers the FME to require the production for examination of any licence or permit granted to any person, to enter and search any land or building, and to arrest any person whom they have reason to believe has violated any environmental regulation. The approach of regulatory agencies is the prevention of environmental damages, the regulation of potentially harmful activities and the punishment of wilful harmful damage whenever this occurs. The environmental agencies also adopt the approach of engaging individuals and communities at risk of potential environmental damage in dialogue. The EIA approval process adopted by the FME involves a system of public hearings during the EIA evaluation process and interested members of the public are invited to such hearings.
However, pursuant to the FEPA Act, each State and Local Government in the country may set up its own environmental protection body for the protection and improvement of the environment within the State. Each State is also empowered to make laws to protect the environment within its jurisdiction. All the States have environmental agencies and State laws; e.g. Abuja, the Federal Capital Territory has issued the Abuja Environmental Protection Board (Solid Waste Control/Environmental Monitoring) Regulations 2005 ("the Abuja Environmental Protection Board Regulations") which principally governs solid waste control in Abuja. In Lagos State, the Lagos State Environmental Protection Agency Law was enacted to establish the Lagos State Environmental Protection Agency (LASEPA). LASEPA’s functions include monitoring and controlling the disposal of waste in Lagos State and advising the State Government on all environmental management policies. Lagos State has also enacted the Environmental Pollution Control Law, to provide for the control of pollution and protection of the environment from abuse due to poor waste management. Akwa Ibom State has enacted the Environmental Protection and Waste Management Agency Law, which established the Environmental Protection and Waste Management Agency. This Agency is charged with responsibilities which include identifying and proffering solutions to environmental protection problems in Akwa Ibom, and monitoring and enforcing environmental protection standards and regulations. Ondo State equally enacted the following laws in this regard:
1. Ondo State Waste Management Law, 2002; and Waste Management (Enforcement and Offences) Provisions Regulations, 2002.
2. Ondo State Environmental Protection Agency Law, Cap50, Vol. 2, Laws of Ondo State, 2006.
The functions of the Ondo State Protection Agency include providing the State Government with policies that will enhance protection, conservation and development of its environment in general and environmental technology, including initiation of policy in relation to environmental research and technology. It also has the following duties;
(a) encourage a productive and enjoyable harmony between man and his environment;
(b) promote efforts which will prevent or eliminate damage to the environment and biosphere and the health welfare of Ondo State people in general;
(c) enrich the understanding of the ecological systems and natural resources important to Ondo State;
(d) ensure the compliance of any development project with Environmental Impact Statement (EIS), State planning permits and regulations guiding development;
(e) prepare, or cause to be prepared by contract, an environmental impact statement on any major action it proposes or approves which may have a significant effect on the environment.
National Environmental Health Practice Regulations 2007
This Health Practice Regulations was made in exercise of the power conferred on the Honourable Minister of Environment by virtue of Section 40 of FEPA and of all other powers enabling him on that behalf.
These Regulations came into force in May, 2007 and the purpose of the Regulations as provided under Section 1 inter alia includes:-
(a) To provide a guideline for the enforcement of the regulatory powers in the Act to prevent and abate nuisance and to protect, preserve, and promote the physical, mental, spiritual and social well-being of the public.
(b) To prevent and control the incidence of communicable diseases through environmental health intervention.
The Practice Regulations contains 100 sections in eleven chapters where the duties and powers of Environmental Health Officers as well as the Health Authority are highlighted. This is in addition to two other important chapters which are chapters 12 and 13 on interpretations and schedules respectively.
A. Sections 9 – 10 of the Regulation provide that all owners of newly built premises are to apply for and obtain a certificate of fitness for habitation, while an owner of an existing premises shall cause to be inspected and be issued with a report which shall qualify him for the issuance of a certificate of fitness for continued habitation or certificate of fitness for continued use.
Any licensed Environmental Health Officer is given the privilege of undertaking inspection of premises in this regard.
This function will give the Environmental Health Officers a lot to do. But of concern is that we have only a few Environmental Health Officers on ground. The State Government will need to employ more hands because in effect all existing premises in the various States will have to be inspected. This is in addition to the new ones yet to be occupied and the certificates of fitness as aforesaid be issued. It is not a once and for all affairs. This may be five years in the first instance and thereafter every 3 years.
B. Section 12 (2) which provides that “Dead bodies shall be sanitarily disposed off or buried only in a place approved by the Environmental Health Authority in charge of the area” poses a new challenge which hitherto has not been tapped.
In spite of the more detail provision under section 3 of the Burial on Private Premises (Regulation) Adoptive By-Laws contained in the Public Health Law Cap 124 Vol. 3, Laws of Ondo State and even Section 246 Criminal Code Act, people have continued to bury corpses in unauthorized places. Section 3 of the Adoptive By-Laws provide as follows:-
“Burial Authorization: - No corpse shall be buried in or on any private premises unless the deceased was by customary law entitled to be buried thereon and the person responsible for burying the corpse has obtained a written authorization from a Health Officer for the burial of the corpse”.
See also Part III Section 5 of the Ondo State Local Government Bye-Law 3 of 2003 which provides as follows:
“No person shall attempt to bury or bury a deceased person in private home except the approval of the Council is sought for and obtained before embarking on such burial.”
C. Section 77 of Chapter 9 deals with Emission Limit Permit. It provides that:-
“(1) Every owner of a motor vehicle or motorcycle shall cause to be assessed annually the emission permissible status of his vehicle to ensure that the emission level from such vehicle is within the permissible limit.
(2) This assessment shall be carried out by a designated person certified by relevant government agency or authority.
(3) The Environmental Health Authority, once satisfied that emission level of such a vehicle is within the permissible limit shall issue an Emission Limit Permit to such a vehicle for that year.
4. For the purpose of this section, Environmental Health Officers on duty with other relevant government agents shall have power to stop vehicle and demand for and examine the emission limits permit of such a vehicle or demand that the vehicle be taken to an appropriate facility for assessment or reassessment as the case may be”
Pollution control measure of this magnitude is necessary as its continuous non abatement constitutes danger to health of the public. This is therefore a challenge to the Environmental Health Authority not to shy away from the execution of this aspect of the Regulation.
Under this same chapter, Sections 81 and 82 provide for the noise pollution and radiation and health control respectively. This is also an area that should be checked by the Health Authority otherwise, noise pollution shall continue to be hazardous to the public health.
Section 92 of the Practice Regulations makes provision for abatement of nuisance. There is a similarity in what obtains under this Section and Section 7 of the Public Health Law.
Validity of the Regulations and Decisions made pursuant to FEPA Prior to its Repeal by NESREA Act of 2007
Section 40 of FEPA made provisions for the exercise of the Minister to make regulations in ensuring compliance with and in furtherance of the federal environmental policies. By provisions of Section 36 of NESREA, FEPA was repealed. The question that comes to mind then is that what is the status of the regulations or powers exercised by the Minister pursuant to FEPA in view of the provision of Section 36 of the new law repealing it?
Section 35 of NESREA Act makes provision for the validity of anything made, issued, given or done under any enactment repealed by the Act, if in force at the commencement of the Act. The section further provides that anything so made, issued, given or done shall continue to be in force and have effect as if made, issued, given or done under the corresponding provisions of the Act.
Apart from this provision, there are several judicial pronouncements on the validity of actions, regulations, decisions and powers exercised before the repeal of an enactment pursuant to which such action, decision or discretion is exercised.
Section 6 (1) of the Interpretation Act, Laws of the Federation of Nigeria, 2004 provides as follows:
“The repeal of an enactment shall not
b. Affect the previous operation of the enactment or anything duly done or suffered under the enactment.
c. Affect any right, privilege, obligation or liability accrued or incurred under the enactment.”
The Court of Appeal in the case of Alhaji Salimonu Ajila v. Alhaji Mudasiru Lawal held:
“that where an Act as repealed, it is regarded in the absence of any provision to the contrary, as having never existed, except as to matters and transactions past and closed”.
In the same vein the Lagos division of the Court of appeal in the case of Lagos State Development and Property Corporation v. Chief J.O. Adeyemo-Bero & anor held that:
“the repeal of a law does not affect any act done or powers exercised under it before the repeal”.
It therefore follows that all regulations made and powers exercised by the Minister in pursuance of FEPA before it was repealed remained extant.
JUDICIAL INTERPRETATION OF ENACTMENT
Statutory interpretation is a very important function of the court. Interpretation is the process through which the court seeks to ascertain the meaning of a particular legislation. It is through interpretation that the judiciary evolves the law and brings the changes in it.
The judiciary interprets how legislation should apply in a particular case as no legislation unambiguously and specifically addresses all matters. Legislation may contain uncertainties for a variety of reasons:
• Words are imperfect symbols to communicate intent. They are ambiguous and change in meaning over time.
• Unforeseen situations are inevitable, and new technologies and cultures make application of existing laws difficult.
• Uncertainties may be added to the statute in the course of enactment, such as the need for compromise or catering to special interest groups.
Therefore, the court must try to determine how a statute should be enforced. This requires statutory construction. It is a tenet of statutory construction that the legislature is supreme (assuming constitutionality) when creating law and that the court is merely an interpreter of the law. Nevertheless in practice, by performing the construction the court can make sweeping changes in the operation of the law.
Where legislation and case law are in conflict, there is a presumption that legislation takes precedence insofar as there is any inconsistency. In the United Kingdom, this principle is known as Parliamentary Sovereignty. In Australia and in the United States, the courts have consistently stated that the text of the statute is used first, and it is read as it is written, using the ordinary meaning of the words of the statute.
Rules of Judicial Interpretation of Enactment
It is a cardinal rule of construction that plain words must be given their plain meaning. So where the words are unambiguous the court must apply them even if it is obvious that the result is different from that intended by Parliament. The case of Fisher v. Bell illustrates this point. The Restriction of Offensive Weapons Act 1959 made it an offence to offer flick-knives for sale. Clearly, Parliament intended it to include shopkeepers displaying them in shop windows, but the word ‘offer’ was unambiguous and intelligible and thus, left the courts with no option but to exclude ‘invitations to treat’ by shopkeepers, thus defeating the Act’s objective. See also the case of Northern Assurance Co. Ltd v. Wuraola where it was held that it is trite law that in the construction of documents, the primary rule is that effect should be given to the literal contents in their ordinary way as they appear on the documents and that anything which does not appear ex-facie on such documents should not be imported into them.
Maxims used in construction Golden rule
A modification of the literal rule is the golden rule. This is the principle which states that in construing written instruments, a court should adhere to the grammatical and ordinary sense of the words unless that adherence would lead to some manifest absurdity; especially in statutory construction, thus, it is the principle that if a statute’s literal meaning would lead to an absurd or unjust result, or even to an inconsistency within the statute itself, the statute should be interpreted in such a way that avoids such a result or inconsistency.
Rupert Cross in “Statutory Interpretation” page 14 (1976) held thus:
“The golden rule… allows for a departure from the literal rule when the application of the statutory words in the ordinary sense would be repugnant to or inconsistent with some other provision in the statute or even when it would lead to what the court considers to be an absurdity. The usual consequence of applying the golden rule is that words which are in the statute are ignored or words which are not there are read in. The scope of the golden rule is debatable, particularly so far as the meaning of an ‘absurdity’ is concerned”.
Thus, it is a basic principle which should always be followed. See Grey v. Pearson ; Onyewu v. K. S. M .
This means ‘of the same kind or class’. A canon of construction that when a general word or phrase follows a list of specific persons or things, the general word or phrase will be interpreted to include only persons or things of the same type as those listed – Campbell v. Board of Dental Examiners 53 Cal. App. 3d 283, 125 Cal. Rptr. 694, 696. Therefore, when a list of two or more specific descriptors is followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of the specific words that precede them. For example, where "cars, motor bikes, motor powered vehicles" are mentioned, the word "vehicles" would be interpreted in a limited sense (therefore vehicles cannot be interpreted as including airplanes). Where also an Act includes specific words followed by general words such as ‘dogs, cats and other animals’ the court will interpret other animals as meaning animals of a similar nature to dogs and cats. Where a list is followed by no general words the act is taken to refer only to those things mentioned.
In statutory construction, this is the doctrine that a statute should be interpreted by first identifying the problem (or ‘mischief’) that the statute was designed to remedy and then adopting a construction that will suppress the problem and advance the remedy Savannah Bank v. Ajilo ; National Assembly v. President.
In construing a statute, the words must not be so strained as to include cases plainly omitted from the natural meaning of the language. Accordingly, a statute requiring that public house must be closed at certain hours on Sunday should not be" so construed as to extend it to Christmas Day – Forsdike v. Colquhoun ; Savannah Bank v. Ajilo (supra).
Purposive Rule of Interpretation
This approach is developed from the use of the" Purpose clause" and commonly found in statutes. The purpose clause may help the reader interpret the statute in case of any uncertainty in the statute – PDP v. INEC ; Omoijahe v. Umoru
Expressio Unius Est Exclusio Alterius ("the express mention of one thing excludes all others")
Items not on the list are assumed not to be covered by the statute. Therefore one does not import into a statute that which it is not meant to govern. PDP v. INEC (supra).
In Pari Materia ("upon the same matter or subject")
When a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter.
Noscitur A Socilis ("a word is known by the company it keeps")
When a word is ambiguous, its meaning may be determined by reference to the rest of the statute.