Form and Interpretation of the Constitution: The Case of Intrinsic and Extrinsic Aids by Justice R.N. Ukeje, OFR

By Bola A. Akinterinwa

Honourable Justice R.N. Ukeje, Officer of the Federal Republic, the first female judge to sit on the Federal High Court Bench, and also the first female Chief Judge to be so appointed, has authored a book entitled, Intrinsic and Extrinsic Aids to the Interpretation of the Constitution, Statutes and Private Documents. The book, published by the Ecowatch Publications (Nigeria) Limited, in early October 2018, is chapterised into seven. It is well printed and has a pagination of 255 pages. In terms of format, the size is standard: 8″ by 5″. The lettrines are not less than 14 points and are printed on an off-white 80 grams paper in three editions: soft, hard, flip.

The Honourable Justice Walter Samuel Nkanu Onnoghen, GCON, Chief Justice of Nigeria, wrote the foreword and noted that ‘the most intriguing part of the book, apart from its Title, is the apt use of constitutional, statutory and judicial authorities to emphasize and support the judicial opinions stated in the Book itself.’ In the expectation of the Chief Justice of Nigeria, the book is a ‘rich erudite work that would… occupy a kingly position in every scholarly library.’

I cannot agree more with Justice Onnoghen. The book is more or less an aide mémoire for new judges, lawyers who want to be part of the bench, and particularly for student lawyers. More important, the agreement with Justice Onnoghen is not only because of the extensive scope of court rulings addressed in the book from the perspective of Nigeria’s Constitutions, statutes and private documents, but also essentially because of the need to go beyond the consideration of the relevance of form and interpretation in the conduct and management of justice to the investigation of its relevance in the context of academic discourses, and particularly in diplomatic documents.

Put differently, to what extent is the relevance of form and interpretation required in the writing of presidential or ministerial speeches and diplomatic statements? For instance, how do we explain and interpret a statement like ‘Nigeria views with great concern’ President Donald Trump’s statement on ‘lifelessness of President Muhammadu Buhari’? How easy can it be to determine the true intendment of a diplomatic letter in which messages are coded? Besides and more important, the maintenance of international peace and security is largely determined by the extent to which efforts are made to understand the form of a dispute, the extent of efforts made to sustain security by preventing order and counter-order from amounting to disorder. Sustainable peace is also determined by the quality of interpretation of the attitudinal disposition of the disputants from their prayers during mediation.

In the social sciences, for instance, explanation of problems, either in terms of their causal factors, manifestations, management, or effects, etc, is generally done within the contexts of frameworks and methodologies in order to make the explication scientific. But even at that, the need to also look at the form an explanation takes, the need for a correct interpretation of the problem, cannot be ignored. This means that the two most critical means of understanding an issue and taking a decision on it thereafter, form and interpretation, should be explained beyond the Constitution and Statutes in order to further enrich other disciplines.

Justice Ukeje, in fact, stated the interesting point thus: ‘the principle that all human means of communication derive form and meaning from the interpretation of words, applies effectively to the interpretation of the Constitution, Statutes, legal and private documents.’ The point being made here is that an act of interpretation necessarily gives birth to form and meaning. This situation can then give rise to different versions of a truth, since interpretation may not always reflect the situational reality on the ground and since the different versions of a given truth may also result from psychology of human differences.

In this regard, what is the nature of the form and meaning derived from the analysis of the Nigerian Constitutions, the various statutes and case studies? In which way are they different from social science methodologies? What are the possible lessons for the social scientists and particularly for students of international law and relations? If an objective interpretation of words, documents, statutes, etc, enables the derivation of form and meaning, and particularly the intendment of laws, legislators, and other legal stakeholders, are the various aids examined by Justice Ukeje in the interpretation of the Constitution, statutes and private documents not required in understanding academic documents? Whatever is the case, a preliminary textual explication of Justice Ukeje’s book is necessary as a prelude to possible answers to the questions.

Summary and intendment of the book

Writing grosso modo, the book explains the use of the Interpretation Act (CAP LFN 1999) and the Evidence Act in the interpretation of the Constitution and statutory provisions.
The courts are guided by some basic common law principles, called Canons of Interpretation, in the construction of legislation. As defined by the Supreme Court in the case of Awolowo Versus Shagari in 1979, “Canons of Interpretation are rough, rather than strict immutable rules. Further, in the interpretation of statutes, it is settled that the courts should, in response to the demands of justice, adopt an expansive interpretation, unless a narrower interpretation will best carry out the object of the legislation.”

In Chapter One on the purport of interpretation, it is noted that the interpretation of the Constitution or other Statutes is usually recurrent in adjudication to determine the rights and duties, liabilities and obligations of parties whether in a civil or criminal action.

Explained differently, courts have the responsibility of “interpreting the Constitution and Statutes in sync with the intention of the legislature who enacted such laws”, with the objective of removing loopholes or unnecessary ambiguities, if any, in the language used. As Justice Ukeje has it, ambiguities are sometimes unavoidable. Consequently, “in the resolution of disputes and determination of rights, situations arise where the words employed by the legislators are ambiguous or sometimes capable of different meanings”. In this regard, courts use intrinsic and extrinsic aids to unearth the intention of the draftsmen, legislature, or parties and to overcome the unreasonableness that may result from such ambiguities”. This is the cogent objective of the exercise of interpretation.

Chapter Two provided historical evolution of Constitution-making in Nigeria following the completion of the British conquest in 1903 and the amalgamation of Northern and Southern Nigeria into the Colony and Protectorates of Nigeria in 1914. True, there were three separate independent territories under British control before1900. They were the Niger Coast Protectorate, created in 1891, the Colony of Lagos, ceded in 1861 to Britain; and the territory of the Royal Niger Company, “a trading company chartered by the British Government in 1886 and granted broad concessionary rights to carry on trade within the territory covered by the Niger Coast Protectorate”. The territory of the Royal Niger Company corresponds with that of Northern Nigeria.

In all, Nigeria has had five pre-independence Constitutions: the 1914 Frederick Lugard Constitution of the Colony and Protectorate of Nigeria; the 1922 Clifford Constitution; the 1946 Richard Constitution; the 1951 Macpherson Constitution and the 1954 Lyttleton Constitution for the pre-independence era. All these were imposed and consultative. For the post-independence period, there are the 1960 Independence Constitution, the 1963 Republic Constitution, the 1979 and the 1999 Constitution.

Justice Ukeje noted the merits and demerits of the 1922 Clifford Constitution thus: “it did not only introduce the elective principle which was highly significant and novel. It equally led to the emergence of political parties. On its demerits, the Clifford Constitution isolated the North from the South since little attention was given to matters affecting the North and also excluded Africans from the executive”.

While the 1946 Richard Constitution not only provided for the representation of Northern Nigeria in the Central Legislative Council, thus making it the first effort to establish a Single Legislative Council for the entire territories of the present-day Nigeria, it also retained the elective principle of the 1922 Constitution, as well as introduced three regional councils: North, West and East. The essential objective for this, Justice Ukeje has posited, is to promote the unity in diversity of Nigeria, to secure greater participation by Africans in the discussion of their own affairs.

The 1951 Macpherson Constitution, which was partly inspired by the 1950 Ibadan Conference during which it was decided that Nigeria should adopt a federal system of government and Lagos should be autonomous, was the Constitution that introduced a federal system and a public service commission for Nigeria.

And perhaps more importantly, the 1954 Lyttleton Constitution “made regional governments independent of the Central Government in respect of subjects and legislative powers allocated to them. It introduced a unicameral legislature for the Federal Government and each of the three governments. And more significantly “Lagos was taken out of the control of any regional government of three regions (Northern, Eastern and Western), a bilateral legislative framework (the Senate and the House of Representatives at the Federal level and the House of Assembly and House of Chiefs, at the regional levels. The legislative powers are divided into three categories : exclusive, concurrent ad residual.

The 1963 Republican Constitution introduced Nigeria’s First Republic under a parliamentary system of government “by replacing the Governor General appointed by the British Monarch with a President elected directly by members of the Nigerian Federal Legislature. More important, in place of the Privy Council, the Federal Supreme Court became designated as the final appellate judicial authority over any person or matter in Nigeria.

The 1979 Constitution, which can be rightly described as the 50-wise men Constitution or the Welfarist Constitution presidential system of government in Nigeria. In this regard, the President is not only the Head of State, but also the Head of Government and Commander-in-Chief of the Armed Forces. What is noteworthy about the Constitution is that the President does not appoint his Ministers from the parliament as required in the previous Constitution.

Finally, on the 1999 Constitution, Justice Ukeje sees it as a democratic, presidential and a Federal Constitution, which established the principle of Separation of Powers and the complementary doctrine of checks and balances. The Constitution has had three alterations and amendments since its promulgation in 1999.

The focus of Chapter Three is on the Canons of Interpretation which are basically the Literal Rule, the Golden Rule, the Mischief Rule, the Ejusdem Generis Rule (of the same kind), and Lord Denning’s Purposive Rule or Approach. The Literal Rule has it that the primary responsibility of the Court in the application and interpretation of the law to cases is to determine the intent of the legislature from the words used in the statute. The starting point of interpretation is the literal rule, and this is simply that the words of the statute best declare the intention of the law giver.

The Golden Rule Canon, established in the locus classicus case on the case of Becke versus Smith, has it that “the words used by the Constitution or the Statute must be given their ordinary meaning unless this would lead to absurdity or would manifestly conflict with some provisions of the Constitution, and effect must be given to these provisions without any other consideration.

As further explained by Justice Ukeje, the Golden Rule permits the modification of the literal sense of the words used in the Constitution or Statute where adherence to the grammatical and ordinary meaning of the words used in a Statute needs to be modified.” And more importantly, “the Golden Rule of interpretation is the mechanism devised to avoid unreasonableness and absurdity in the construction of the Constitution or Statute”.

Regarding the ‘Mischief Rule, formulated in 1584 in Heydon’s case by the Barons of the Exchequer, it is predicated on four dynamics: determination of the common law before the making of the Act; the Mischief and defect for which the common law did not provide; the remedy the Parliament has resolved and appointed to cure disease of the commonwealth; and the true reason of the remedy.

As regards the Ejudem generis Rule, that is, “of the same or nature,” means that when words in a statutory text are flanked by restricted words, the meaning of the general words are taken to be restricted by implication with the meaning of the restricted words. Put differently, “where specific words are followed by the general words, the general words are construed narrowly to have a similar meaning of the same kind preceding the ones specifically mentioned.

On The Harmonious Rule, it is the thumb rule to the interpretation of any statute and the aim of the court is to construe the legislation as a consistent whole to avoid inconsistency or repugnancy between the various sections or parts of the Statute. In justifying this, Justice Ukeje referred to the case of Ojukwu Versus Obasanjo, the adjudication of which prompted ONU JSC to submit that ‘in interpreting statutory or constitutional provisions, such provision should not be read in isolation of the other parts of the Statute or Constitution. In other words, the Statute or Constitution should be read as a whole in order to determine the intendment of the Act so, as far as possible, to make a consistent enactment of the whole Statute or series of Statutes relating to the subject matter.’

Also in this chapter, the purposive approach; the basic presumptions (against change in existing law, against repeal, against strict criminal liability, against deprivation of property, against ouster of jurisdiction and against retrospectivity), as well as intrinsic and extrinsic guides are explicated. The intrinsic guides include the preamble, heading and title, marginal notes, explanatory notes while the extrinsic guides are essentially the dictionaries (both language and law), textbooks of renowned authors.

Chapter four dealt with the interpretation of the Constitution with emphasis on the procedures for interpretation and modes of interpretation of the Constitution in the Nigerian judicial process (literal, or plain meaning rule, liberalist approach), as well as other forms of interpretation of the Constitution: strict constructionism which says that once a clear meaning has been decided, no further analysis of the constitutional provisions is needed or required; precedent (stare decisis); logical (mathematical); ethical approach; purposeful interpretation; golden rule; harmonious construction of the Constitution; and interpretation of many Constitutional-related cases.

What is noteworthy about the aforesaid in the words of Justice Ukeje is that ‘in all, the spirit of the Constitution must be adhered to, no matter the mode of interpretation used and no matter how touchy and volatile the circumstances for the interpretation might be.’

“Interpretation of statutes, Subsidiary Legislation and Bye Laws” is the title of Chapter Five. Three points are noteworthy in the chapter. The first is that ‘Courts have the duty to interpret, inter-alia, the law but not to amend or substitute statutory provisions which they consider unwise or improper.’ Additionally, ‘Courts are to interpret words in a statute only in accordance with the legislative intendment and certainly not in a way alien or otherwise to the purpose intended for the enactment.’ Secondly, a judge must not bring to bear his personal feelings or prejudices as to what the law should be, but what it is as carved out in the wording used by the legislators. Thirdly, no interpretation is allowed to defeat the objects of the Statutes. The language of the statute must also not be stretched to defeat the aim of statutes or the intention of the legislation.

Chapter Six is on the interpretation of contractual agreements and private documents. It is submitted here that the basic principle of law is that, it is not the duty of any Court or Tribunal to make contracts for the parties. Besides, emphasis is placed on sanctity of contracts, that interpretation should be based on the terms of the contract, that there is the need to take a holistic view of the contract, and the need to consider technical meaning over ordinary meaning. Explanatory Latin maxims are also provided in this chapter.

Finally, Chapter Seven, is an exegesis of technical words used in the book. For instance, note number 51 on ‘explanatory note,’ has it that it does not override the plain meaning of a contract, and the contract itself will prevail if the note contradicts its content.

From the foregoing, there is no disputing the usefulness of the book as a guide. The concern of Vie Internationale, however, is how to evolve further reflections on the intrinsic and extrinsic aids of interpretation beyond the Constitution, Statutes, and private documents to make them applicable to research documents, particularly diplomatic notes and documents, as well as in library research. Without any jot of doubt, the book cannot but be another intellectual complement to Justice Ukeje’s earlier book, The Nigeria Judicial Lexicon. The book presents an immediate challenge for social scientists, which is how to explicate ‘interpretation’ within analytical framework and methodologies.