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Mia SLLS Drafting Davies
Mia SLLS Drafting Davies
STATUTORY INTERPRETATION
The phrase ‘Interpretation’ has been derived from the Latin word ‘Interpretari’ which refers to
elucidate, comprehend, and construe. The interpretation of statutes is limited only to courts of law.
The government has three Arms: The Legislative, the Executive and the Judiciary. It is the
legislature that puts up the laws, but it is also the judiciary that operates or uses the statute. There
exists a need for the judges to determine the right interpretation of the law established by that of
the legislators. The process by which judges assign meanings to ambiguous words or phrases in
statutes is called the interpretation of statute. Judges are supposed to construe statutes by seeking
the true intent of the makers of the Act, which is presumed to be pro be publico, or intent for the
public good.
Courts may be called upon to interpret a statute due to disputes over the meaning of a word or
phrase contained within a statute. These disputes may arise through a variety of reasons. It has
long been held that words are an imperfect means of communication. Omissions may have
occurred at the drafting stage, word or phraseology ambiguity, etymological change through time,
oversight on specific points, or a failure to adapt legislation to new developments. This may result
in the judiciary providing a role in statutory interpretation. Statutory interpretation in its broadest
sense is the process of determining the true meaning of a written document. The Interpretation
Act 1971 provides limited scope to assist judges with statutory interpretation in that it only
provides standard definitions to common provisions such as a rebuttable presumption that
terminology in the masculine gender also includes the feminine, and that the singular includes
plural.
It is universally agreed that the law makers are not the interpreters of the law they make. A
draftsman must bear this fact in mind when drafting a bill.
Interpretation of statute simply means the art of seeking to unravel and discover the meaning of
the statute. The duty of interpretation of statute is that of the judiciary. The Constitution of Sierra
Leone places the duty of interpretation of statute in the courts. The judges in interpreting the
statutes must seek to discover the intention of the law makers. The question then asked is whether
judges make law. The answer is no but they seek to discover the intention of the law maker.
Rules of Interpretation
The three traditional rules of interpretation are:
1. The Literal rule.
2. The Golden rule.
3. The Mischief rules.
Under Literal Rule the judge considers what the statute actually says, rather than what it might
mean. In order to achieve this, the judge will give the words in the statute a literal meaning, that
is, their plain ordinary everyday meaning, even if the effect of this is to produce what might be
considered as an otherwise unjust or undesirable outcome. The literal rule says that the intention
of Parliament is best found in the ordinary and natural meaning of the words used. As the
legislative democratic part of the state, Parliament must be taken to want to effect exactly what it
says in its laws. If judges are permitted to give an obvious or non-literal meaning to the words of
parliamentary law, then the will of Parliament, and thereby the people, is being contradicted.
The use of this rule can sometimes lead to absurdities and loopholes which can be exploited by an
unmeritorious litigant. Judges have tended to over-emphasize the literal meaning of statutory
provisions without giving due weight to their meaning in a wider context.
The court considers what the legislation is actually saying rather than considering what it might
mean. Therefore, the word in the legislation takes their literal meaning which involves the use of
plain, ordinary, literal, grammatical meaning even if the effect of this is to produce what might be
considered as an otherwise unjust or undesirable outcome. This rule is based on judicial dicta such
as the case of WARBURTON V LOVELAND 1832, per Tindal CJ at 489
said:
Where the language of an Act is clear and explicit, we must give effect to it, whatever
maybe the consequences.
In the case of R V CITY OF LONDON COURT JUDGE 1892, per Lord Esher MR at 6 said:
If the words of an Act are clear, you must follow them, even though they lead to a manifest
absurdity. The court has nothing to do with the question whether the legislature has
committed an absurdity.
Lord Diplock once noted in the case of DUPORT STEEL V SIRS 1980:
Where the meaning of the statutory words is plain and unambiguous it is not then for the
judges to invent fancied ambiguities as an excuse for failing to give effect to its plain
meaning because they consider the consequences for doing so would be inexpedient, or
even unjust or immoral.
FISHER V BELL the statute must be construed in accordance with the legal meaning. Employing
the literal rule in the interpretation of the Act, it was held that there was, therefore, no breach of
the Act since the Act prohibited the offering for sale, not the invitation to treat. The phrase ‘offer
for sale’ could not be extended in interpretation because it was not so extended in the Act and
therefore the ordinary meaning of offer in the law of contract was maintained. According to Lord
Parker C.J. to the layman, the display is clearly an offer to sell, but the parliament in enacting law
must be believed to already know the general law and hence should enact statutes accordingly,
and where it has so done, the enactment can only be seen as its intention. A shopkeeper was
prosecuted for offering to sell an offensive weapon in the shop which is an offence of a Restriction
of Offensive Weapon Act, 1959. The court held that 'offer of sale' must take its ordinary meaning
in law therefore does not coincide with an invitation to treat. In the law of contract, placing
something in a shop window is not technically an offer for sale; it is merely an invitation to treat.
R V HARRIS "stab, cut or wound" implies a weapon. Harris used her teeth to bite off A and a
police officer's finger. Acquitted as no weapon was used.
WHITELY V CHAPPELL 1868, a dead person was not "entitled to vote" so could not be
impersonated.
FELIX V DPP 1998 a man putting up advert cards for prostitutes in a telephone box was acquitted
as it was not a "public open space".
In the Nigerian case of UTIH V OMOYIVWE 1991, the Supreme Court of Nigeria held that
when interpreting a statute, it is necessary for the court to discover the intention of the law maker
which is inferred from the language used in the law. In performing this duty, the court is confronted
with words that are unclear or ambiguous. The traditional view is that where the words of the
statute is plain and unambiguous effect should be given to it without considering any injustice or
hardship such interpretation may occasioned and it is immaterial if the interpretation represents
the intention of the law makers.
This rule has number of problems. In its application most times does not lead to same conclusion
in the same case. It fails to recognise that though statutes are generally perpetual in duration but
its function and functioning changes. It fails to recognise that a word has not just core meaning but
fringe meaning which is subject to manipulation.
In the common law world, the literal rule is not followed today. The so-called literal rule of
interpretation nowadays dissolves into a rule that the text is the primary indication of legislative
intention, but that the enactment is to be given a literal meaning only where this is not outweighed
by more powerful interpretative factors.
There can be a disagreement as to what amounts to the ordinary or natural meaning. The case of
R V MAGINNIS 1987 the defendant was charged with possession of a controlled drug with intent
to supply it to another under s.5(3) of the Misuse of Drugs Act 1997.A package containing £500
worth of cannabis was found in his car. The defendant stated the cannabis belonged to a friend and
that the friend was picking it up later. The trial judge ruled that his action in handing the drugs
back to the friend was an action of supply. The defendant then pleaded guilty and appealed The
Court of Appeal quashed the conviction. The conviction was reinstated.
Thus, Lord Keith, with whom Lord Brandon, Lord Mackay and Lord Oliver concurred, claimed
to be applying the literal rule.
The rule may be applied in the Narrower sense where there is some ambiguity or absurdity in the
words themselves. R V ALLEN 1872 the defendant was charged with bigamy under section 57
of the Offences against the Person Act 1861 which made it an offence to marry while one's
spouse is still alive and not divorced. The court held that the word 'marry' could not in that context
mean 'become legally married' since that could never apply to someone who is already married to
someone else. To make sense of the provision, the word should be interpreted as meaning to 'go
through a second ceremony of marriage'. In its Broader sense the rule may be used to avoid a result
that is obnoxious to principles of public policy, even where words may prima facie carry only one
meaning.
ADLER V GEORGE FROM 1964 the defendant was charged with obstructing a military guard
in the execution of his duty. To succeed, the prosecution had to show that the act took place 'in the
vicinity of a military establishment. The defendant argued that 'in the vicinity' meant 'outside or in
the proximity or area' of the establishment, whereas he was inside the establishment, namely an
RAF base. The court decided that such an interpretation would lead to an absurd result and
interpreted 'in the vicinity of to cover a person already on the premises.
RE: SIGSWORTH 1935 the rule was applied in this sense in in the context of the Administration
of Estates Act 1925 in the case of "A man had murdered his mother and then committed suicide.
Under the plain terms of section 46, as the woman had died intestate her murderer stood to inherit
substantially her entire estate, which would then have passed to his descendants. This was
challenged by other members of the woman's family. The court used the golden rule to find in
favour of the family members, preventing the son's descendants as a matter of public policy from
profiting from his crime. The rule as applied in that particular case has subsequently been put onto
a statutory footing in the Forfeiture Act 1982 and the Estates of Deceased Persons (Forfeiture
Rule and Law of Succession) Act 2011.
At about 2.45 p.m. on 18 January 1950, the defendant was drunk and was pushing his pedal bicycle
along Broad Street. He was subsequently charged under section 12 of the Licensing Act 1872
with being drunk in charge of a carriage. The 1872 Act made no actual reference to bicycles. The
court elected to use the mischief rule to decide the matter, The purpose of the Act was to prevent
people from using any form of transport on a public highway whilst in a state of intoxication. The
bicycle was clearly a form of transport and therefore the user was correctly charged.
Where this mischief is identified and it is apparent that the legislature failed to deal with the
mischief, the court in interpreting the statute is to interpret it to suppress the apparent mischief and
make appropriate remedy SMITH V. HUGHES 1960. The rule and the conditions for its
application were developed in the case of HEYDON'S 1584.
HEYDON'S CASE the rule requires that where an Act has been passed to remedy a weakness or
defect in the law, the interpretation which will correct that weakness or defect is the one to be
adopted. The role of the judge is to suppress the mischief and advance the remedy. This rule gives
the court justification for going behind the actual wording of the statute in order to consider the
problem that the particular statute was aimed at remedying. At one level it is clearly the most
flexible rule of interpretation, but it is limited to using previous common law to determine what
mischief the Act in question was designed to remedy.
mischief the Act was aimed at even though under a literal interpretation they would be in a private
place.
• ELLIOT V GREY 1960the defendant's car was parked on the road. It was jacked up and
had its battery removed. He was charged with an offence under the Road Traffic Act 1930
of using an uninsured vehicle on the road. The defendant argued he was not 'using' the car
on the road as clearly it was not driveable. The court applied the mischief rule and held that
the car was being used on the road as it represented a hazard and therefore insurance would
be required in the event of an incident. The statute was aimed at ensuring people were
compensated when injured due to the hazards created by others.
• DPP V BULL 1995 a man was charged with an offence under s.1(1) of the Street
Offences Act 1959 which makes it an offence for a 'common prostitute to loiter or solicit
in a public street or public place for the purposes of prostitution'. The magistrates found
him not guilty on the grounds that 'common prostitute' only related to females and not
males. The prosecution appealed by way of case stated. The court held that the Act did
only apply to females. The word prostitute was ambiguous, and they applied the mischief
rule. The Street Offences Act was introduced as a result of the work of the Wolfenden
Report into homosexuality and prostitution. The Report only referred to female prostitution
and did not mention male prostitutes. The Queens Bench Division therefore held the
mischief the Act was aimed at was controlling the behaviour of only female prostitutes.
• SMITH V HUGHES 1960the defendants were prostitutes who had been charged under
the Street Offences Act 1959 which made it an offence to solicit in a public place. The
prostitutes were soliciting from private premises in windows or on balconies so could be
seen by the public. The court applied the mischief rule holding that the activities of the
defendants were within the mischief the Act was aimed at even though under a literal
interpretation they would be in a private place.
not written the court must write. Though, Lord Simmonds in the same case regards Lord's Denning
position as "usurpation of legislative function under the thin guise of interpretation."
This approach has emerged in more recent times. Here the court is not just looking to see what the
gap was in the old law, it is making a decision as to what they felt Parliament meant to achieve.
Lord Denning in the Court of Appeal stated in MAGORAND ST CASE.
The purposive approach focuses on what Parliament intended when passing the new law. The
purposive approach is a modern version of the mischief approach. It requires a court to look at the
purpose of the statute, and Parliament's intention when they created the statute, as well as the words
written in the statute Itself. It, therefore, looks beyond the words of the legislation or the purpose
behind it, and the legislation is seen as a skeleton of the law for the judges to flesh out in time.
Thus, the court looks at the purpose of the statute and interprets the words to bring about that
purpose.
Lord Simon explained the purposive approach in the case of MAUNSELL V OLINS 1975 The
first task of a court of construction is to put itself in the shoes of the draftsman to consider what
knowledge he had and, importantly, what statutory objective he had being thus placed the court
proceeds to ascertain the meaning of the statutory language. Thus, the purposive approach to
statutory Interpretation seeks to look for the purpose of the legislation before interpreting the
words. Whereas English law require the courts to apply the literal rule first to look at the wording
of the Act, the purposive approach starts with the mischief rule in seeking the purpose or intention
of Parliament. It is therefore a much more flexible approach giving judges greater scope to develop
the law in line with what they perceive to be Parliament's intention.
PEPPER V HART 1992 where the issue was how to interpret s63 of the Finance Act 1976.
Teachers at an independent school for boys were having their children educated at the school for
a fifth of the price charged to the public. The teacher sought to rely upon a statement in Hansard
made at the time the Finance Act was passed in which the minister gave his exact circumstance as
being where tax would not be payable. Previously the courts were not allowed to refer to Hansard.
The House of Lords departed from DAVIS V JOHNSON and took a purposive approach to
interpretation holding that Hansard may be referred to and the teacher was not required to pay tax
on the perk he received.
one issue with the purposive approach. How Parliament's intentions can be determined and
whether judges should really be refusing to follow the clear words of Parliament. The purposive
approach is one used by most continental European countries when interpreting their own
legislation. It is also the approach which is taken by the Europe Court of Justice in interpreting EU
law. Since the United Kingdom became a member of the European Economic Community in 1973,
the influence of the European preference for the purposive approach has affected the English courts
in a number of ways. First, the courts have been required to accept that, from 1973, the purposive
approach has to be used when deciding on EU matters. Second, as they use the purposive approach
for EU law, they are becoming accustomed to using it and more likely to use it to interpret domestic
law. One example is PICKSTONE V FREEMANS PLE 1998. Here, women warehouse
operatives were paid the same as male warehouse operatives However, Miss Pickstone claimed
that the work of the warehouse operatives was of equal value to that done by male warehouse
checkers who were paid £1.22 per week more than they were. The employers argued that a woman
warehouse operative was employed on like work to the male warehouse operatives, so she could
not bring a claim under section 1(2)(c) of the 1970 statute for work of equal value. This was a
literal interpretation of the 1970 statute The House of Lords decided that the literal approach would
have left the United Kingdom in breach of its treaty obligations to give effect to an EU directive.
It therefore used the purposive approach and stated that Miss Pickstone was entitled to claim on
the basis of work of equal value even though there was a male employee doing the same work as
her. When using one of the rules of statutory interpretation the courts may rely on a presumption
or secondary aids to assist them in making their decision. The purposive approach provides scope
for judicial law-making because the judge is allowed to decide what he/she thinks Parliament
intended the Act to say rather than what the Act actually says.
When determining the meaning of particular words, the courts will make certain presumptions
about the law. If the statute clearly states the opposite, then a presumption will not apply, and it is
said that the presumption is rebutted. The main presumptions are:
1. A presumption against change in the common law. It is assumed that the common law will
apply unless Parliament has made it plain in the Act that the common law has been altered
2. A presumption that mens rea (guilty mind) is required in criminal cases. Mens rea is one
of the elements that has to be proved for a successful criminal prosecution. There is a
common law rule that no one can be convicted of a crime unless it is shown they had the
required intention to commit it.
3. A presumption that the Crown is not bound by any statute unless the statute expressly says
so.
4. A presumption that a statute does not apply retrospectively. No statute will apply to past
happenings. Each statute will normally only apply from the date it comes into effect. This
is, however, only a presumption and Parliament can choose to pass a statute with
retrospective effect. This must, however, be expressly stated in the statutes, for examples,
the 1965 War Damage Act, the 1991 War Crimes Act and the 1976 Adoption. The
secondary aids are rules of language, intrinsic and extrinsic aids.
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WHAT IS A MAXIM?
• A maxim is a 'saying that expresses a general truth or rule of conduct'.
• In legal language a maxim is a saying or statement usually in Latin used to denote a rule
or principle.
• In the way of helping the Judiciary, legal maxims play an important role in providing them
a path and rules of interpreting the provisions. The above discussed maxims are few
common legal maxims used in the interpretation of statutes.
EJUSDEM GENERIS (OF THE SAME KIND) RULE this maxim literally translated means
"of the same kind". This maxim holds that where legislation uses a list of specific words followed
by general words, the general words must be interpreted to mean the same kind of thing as
established by the specific words which precede them.
EXAMPLE
Where a statute provided that "no tradesman, artisan, workman, labourer or other person
whatsoever shall do or exercise any worldly labour, business or work of their ordinary calling on
Sundays...”. The words "or other person whatsoever" were construed as ejusdem generis with those
which preceded them such that an estate agent was deemed not to be covered by this section.
GREGORY V FEARN 1953 the Act provided that ‘no tradesman, artificer, workman, labourer
or other person whatsoever’ should work on a Sunday. However the business of an estate agent
was not to be considered eiusdem generis with the other terms.
ANOTHER EXAMPLE
Where the court held that in a statute a department of conservation the authority to sell gravel,
sand, earth or other material, the term other material could only be interpreted to include materials
of the same general type and did not include commercial timber. The rationale behind this maxim
is that it saves the legislature from having to spell out in advance every contingent to which the
maxim would apply.
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SACKS V. THE CITY OF JOHANNESBURG 1931 a traffic by law provided that ‘no person
shall sit or lie down on the street, nor shall any person stand, congregate, loiter or walk, or
otherwise act in such a manner as to obstruct traffic'. The accused was addressing a crowd from a
car in a public street during an industrial action. The gathered crowd ended up obstructing the
street. It was held that the particular words all referred to an obstruction by a direct physical act of
the accused, and therefore that the general words "or otherwise act in such a manner as to obstruct
free traffic did not include an obstruction caused by a crowd gathered to hear the accused.
However, it must be noted that the mere existence of general words upon particular words does
not necessarily invoke the application of the ejusdem generis. the rule will only apply where the
clear category is followed by words which are not clear. According to Van Heerden J the rule will
only apply where the clear category is followed by words which are not clear.
S V SAIDI 1962 (2) SA 128 in this case, the provision in question prohibited the obstruction of
free passage along the public street by means of any wagon, cart, or other thing whatsoever. The
court declined to interpret the general words as meaning only wheeled vehicles and decided that it
included an obstruction caused by boxes full of vegetables. This was because according to the
court the object of the lawgiver was clear mainly to prevent the obstruction of public streets. The
court ruled that the words 'or other things whatsoever' were clear and unambiguous.
EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS the explicit mention of one thing is the
exclusion of another. The dictionary definition of this Latin term is when one or more things of a
class are expressly mentioned others of the same class are excluded. This principle indicates that
the items not in the list are presumed to be not covered by the statutory provisions. Mentioning of
one or more specified things in the statute will be held to exclude other similar things that are not
expressly mentioned in the list. The effect of this rule is that a list of words which is not followed
by general words, the act will apply only to those words that have been used in the list. If the terms
and phrases in the statute are plain and simple and the meaning is clear, there is no scope for
applying this principle.
In R V SECRETARY OF STATE FOR THE HOME DEPTT. I988 here, the decree excluded
the father of an illegitimate child from rights under immigration law at the time, because the statute
specifically mentioned the mother alone.
In the case of FARRALL V SHEA, it was held that when any legislature provides that actions for
the recovery of personal property should survive, it would have been proper to include 'real
property in the provision so as to read for the recovery of personal or real property. Applying the
rule of expressio unius est exclusion alterius, it was held that the legislature must have on purpose
omitted the term ‘real property'.
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This maxim was also applied by J. Henchy in the case of KIELY V MINISTER OF SOCIAL
WELFARE when he said that "the fact that Article 1 (5) allows a written statement to be received
in evidence in the specified limited circumstances means that It cannot be received in any other
circumstances expression unless expressio unius est exclusion alterius.
CHAIN BELT CO. V MILWAUKEE, the concerned court had pertained to this role. In this
case. the milwaukee Charter was involved, and the city had contended for the right to license
elevators and their operations, but elevators had not been mentioned in the licensing chapter of the
charter. The court applied this rule in order to understand the intent of the legislature. It was held
that the "enumeration of the subjects which may be regulated by license also tends somewhat to
indicate a legislative intention that the city should not exercise those powers over other subjects.
The Court thus could not grant power for the licensing of elevators in the city. As the legislature
has not granted a certain power to the city, so the city cannot possess it.
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AIDS TO INTERPRETATION
• Aid means ‘to help’ or ‘to assist’.
• These are the devices that help in our tasks. So, whenever there is a dispute or conflict
regarding understanding any provision or statute, the judiciary seeks help from various
aids.
• These are the devices that help to understand the true meaning of the statute. These aids
could be: internal (intrinsic) or external (extrinsic).
TITLE
SHORT TITLE: It addresses the name of the Act followed by the year of its enactment. Such
titles do not include any description. They do not play any role in the interpretation of the Act.
Despite being an essential part of any statute, these do not carry a specific meaning. These are just
the names of the Acts.
EXAMPLE:
AN ACT ENTITLED
THE CIVIL AVIATION ACT 2019
Short title.
Being an Act to provide for an independent professional oversight of international and domestic
air transport and cargo services in compliance with international agreements and obligations
relating to civil aviation, to ensure the promotion and development of the aviation sector and to
provide for other related matters
It only provides the title of the Act for reference or identification but not the description and it does
not have any role in interpreting the provisions within an Act or for an Act.
LONG TITLE: Long titles address the name of the Act along with its short description. It
addresses the general object of that Act. Long titles could be used for the interpretation of the
provisions under them. These serve as crucial internal aids of interpretation. They are used for
resolving the conflicts arising out of ambiguous terms in that Act. However, if the words in the
statute are unambiguous, long titles serve no help.
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EXAMPLES:
1. THE CIVIL AVIATION ACT, 2008
Being an Act to provide for an Independent professional oversight of International and
domestic air transport and cargo services in compliance with international agreements and
obligations relating to civil aviation, to ensure the promotion and development of the
aviation sector and to provide for other related matters.
2. The Constitution of Sierra Leone, 1991
Being an Act to make provision for a new Constitution of Sierra Leone, and for connected
purposes.
3. The Education Act, 2004
Being an Act to reform the education system, including provision for pre-primary
education, technical and vocational training, adult and non-formal education and the role
of universities; and to provide for other related matters.
Earlier the Long titles were not considered as part of the statute. Hence, they were not considered
as an internal aid to interpretation. But now, long titles are being used by judicial officers and
judges to interpret the Acts for the purpose of providing a proper understanding to the issue at the
question or for the purpose of removing the ambiguity or confusion present in the statute or
legislation.
In POPPATLAL SHAH V STATE OF MADRAS, the title of the Madras General Sales Tax
1939, was utilised to indicate that the object of the Act is to impose taxes on sales that take place
within the province.
In the case of AMARENDRA KUMAR MOHAPATRA V STATE OF ORISSA the Court held
that the title of a statute determines the general scope of the legislation, but the true nature of any
such enactment has always to be determined not on the basis of the label given to it but on the
basis of its substance.
In MANOHARLAL V STATE OF PUNJAB it was held that no doubt the long title of the Act
extracted by the appellant’s counsel indicates the main purposes of the enactment, but it cannot
control the express operative provisions of the Act.
In FISHER V RAVEN 1964 Interpretation of the words ‘obtained credit’ in Section 13(1) of the
Debtor’s Act 1869 was involved. The House of Lords looked at the long title of the Act which
reads ‘An Act for the Abolition of imprisonment for Debt, for the punishment of fraudulent
debtors, and for other purposes’ and held that the words refer to credit for the payment of money.
In the case of JONES V SHERINETON 1908 it is held that the modern view, which seems to
have emerged gradually during the 19th century, is different said it is now settled law that the title
of the statute is an important part of the Act and may be referred for the purpose of asserting its
general scope.
In the case of R V BATES AND RUSSELL 1952 as stated by DONOVA, J.: "The long title is a
legitimate aid to construction. When Parliament proclaims for the purpose of the Act is, it would
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be wrong to leave that out of account when construing the Act in particular, when construing some
doubtful or ambiguous expression. In many cases the long title may supply the key to the meaning.
The principle as, I understand it, is that where something is doubtful or ambiguous the long title.
May be looked to resolve the doubt or ambiguity, but in the absent of doubt or ambiguity, the
passage under construction must be taken to mean what it says, so that if its meaning be clear, that
meaning is not to be narrowed or restricted by reference to the long title".
PREAMBLE:
• A preamble is an introduction or a preface to any Act or statute. It explains its purpose(s).
• The preamble contains the aims and objectives of the entire statute or Act.
• It reveals the true intention of the legislature for which the Act or statute was enacted. The
courts certainly use the preamble to interpret the provisions of the Act or statute. It is an
integral part of the statute.
• However, the preamble is also secondary in nature if the words of the provisions in the Act
are unambiguous.
• The difference between the long title provided and the preamble is that the preamble
delivers the causes and basis as to the creation of a particular law within the Act, the
preamble cannot be used to delete any clauses within the statute which are operative or by
declaring the clause unintended or unnecessary, but can be used to refer any uncertainty or
helps in correcting the meaning of the terms which might have more than one meaning.
EXAMPLE
• Children and Young Persons Act, 1945 (Cap. 44) this Act governs the treatment of
juveniles who violate the law. The Act applies to anyone below the age of 17 years old.
Anyone who is 17 years or above is treated, for the purposes of criminal law, as an adult.
The Act provides for two categories, that of a child who is anyone under the age of fourteen
years old and ‘young person’ who is anyone aged between the ages of 14 years up to 16
years old.
• The preamble is mentioned in the first page of any concerning act, though those are or
where applicable to all the Acts which are old but the modern or the Acts which are passed
doesn't consist of the preamble in the first page for reference declining its importance.
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In RE KERALA EDUCATION BILL 1957, it was observed that the policy and purpose of the
Act can be legitimately derived from its preamble.
MARGINAL NOTES:
• These are the side notes to the sections in the Act. It expresses the effect of the section.
Mostly, marginal acts are not added to the sections, by the legislators themselves.
• In olden days the marginal notes were considered for help when the enactment or the
meaning of the enactment of the section was in question.
• Currently the marginal notes according to the courts have no role in interpreting the
statutes, because the marginal notes are not inserted by the legal experts or the legislators
or any authority dealing with the legislature but are inserted by the drafters due to which
they are not considered to be a part of the statute.
• These are the side notes to the sections in the Act. It expresses the effect of the section.
• Mostly, marginal acts are not added to the sections by the legislators themselves.
• In olden days the marginal notes were considered for help when the enactment or the
meaning of the enactment of the section was in question.
• Currently the marginal notes according to the courts have no role in interpreting the
statutes, because the marginal notes are not inserted by the legal experts or the legislators
or any authority dealing with the legislature but are inserted by the drafters due to which
they are not considered to be a part of the statute.
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• Secretary to Board: (1) The Authority shall have a Secretary who shall also be Secretary to
the Board, (2) The Secretary shall have such legal or other qualifications or both as the
Board may determine.
• Committees: (1) The Board may, for the discharge of its functions of Board, appoint one
or more Committees to perform such functions as the Board may determine.
In BENGAL IMMUNITY COMPANY V STATE OF BIHAR, the Supreme Court held that the
marginal notes to Article 286 of the Constitution was a part of the Constitution and therefore, it
could be relied on for the interpretation of that Article.
In TARA PRASAD SINGH V UNION OF INDIA, it was held that marginal notes to a section
of the statute cannot take away the effect of the provisions.
In UNION OF INDIA V DILEEP KUMAR SINGH AIR 2015 the apex court held that marginal
note appended to Section 47 of Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1955 makes it clear that idea of section 47 was not to
discriminate against employees who acquire disability during service.
PARTS:
• Parts are attached to every section of every Act or statute.
• Parts consist of the description of the sections within a Part, it is the summary of the
sections on whole.
• The Parts, however, are not passed or provided by the legislation but are inserted after
the bill has become law.
EXAMPLES OF PARTS:
• ARRANGEMENT OF SECTIONS
Section
PART I - PRELIMINARY
Interpretation.
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subject) then the word which is defined under the interpretation or definition clause could be
assigned to the other Act.
EXAMPLES:
1. In this Act, unless the context otherwise requires:
• “Attorney-General” means the Attorney General and Minister of Justice.
• “Authority” means the Sierra Leone Civil Aviation Authority established by section 2.
• “Board” means the Board of Directors of the Authority.
• “cargo” means any property carried on an aircraft, other than mail, stores and accompanied
or mishandled baggage.
PUNCTUATION:
Punctuations are considered to be important elements within a sentence or any of the sentences, if
the punctuations are not being used in a sentence it would change the meaning of the sentence, on
the whole, the same way the punctuations in the interpretation of statutes is considered to be
important. The punctuations are in the form of a semicolon, colon, full stop, comma, a hyphen,
brackets, dash etc., the courts were not concerned with the punctuations during the earlier times
while passing statutes, but in modern times the punctuations are considered to be important for
passing statutes.
SCHEDULES:
Schedules attached to the Act list out the powers, methods, subjects etc. associated with the
primary concept of the provisions in the Act. At times, the schedule may be composed of methods
to achieve the rights conferred in the provision(s). Schedules are an essential part of any statute.
Hence, these can be relied upon for interpreting any provision in case of a dispute with regard to
the meaning of the terms used in them.
EXAMPLES OF SCHEDULES:
• SECOND SCHEDULE PRESIDENT'S OATH
I do hereby (in the name of God swear) (solemnly affirm) that I will at all times well and
truly discharge the duties of the office of the President of the Republic of Sierra Leone
according to law, that I will preserve, support, uphold, maintain and defend the Constitution
of the Republic of Sierra Leone as by law established, and that I will do right to all manner
of people according to law, without fear or favour, affection or ill will. (So, help me God.)
• THIRD SCHEDULE
Oath of the Vice-President, Ministers and Deputy Ministers, Attorney-General and
Minister of Justice, Secretary to the President, Secretary to the Cabinet, Solicitor General,
Director of Public Prosecutions, Members of the Electoral Commission, the Speaker,
Members of Parliament, Auditor-General, Members of the Public Service Commission, the
Chief Justice and Judges of the Superior Court of Judicature, Members of the Judicial and
Legal Service Commission, Members of the Police Council, Members of the Defence
Council.
PROVISO
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The proviso is the part of the sections with which the clause of the provision begins with i.e., some
sections under the statute succeeding the main provision, where a clause is added with the words
beginning with “provided that” is considered to be or is referred to as the provision of the
concerning section. The proviso is added to the clauses in order to limit the applicability of the
said clause, its main function could be observed to be something which is excluded or is qualified
within the purview of the concerning enactment.
EXAMPLES OF PROVISO:
Protection of freedom of movement. Section 18 (1) No person shall be deprived of his freedom of
movement... Provided that no court or other authority shall prohibit any such person from entering
into or residing in any place to which he is indigenous.
Provision to secure protection of law Section 23 (4) Every person who is charged with a criminal
offence shall be presumed to be innocent until he is proved or has pleaded guilty. Provided that
nothing contained in or done under the authority of any law shall be held to be inconsistent with
or in contravention of this subsection, to the extent that the law in question imposes on any person
charged as aforesaid the burden of proving particular facts.
DICTIONARIES:
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• When a word used in the statute is not defined therein or if defined but the meaning is
unclear, only in such situation, the court may refer to the dictionary meaning of the statute
to find out the meaning of the word in ordinary sense.
• The meaning of such words shall be interpreted so to make sure that it is speaking about
the particular statute because words bear different meaning in different context.
• Therefore, importance must be given to the context of the provision, because one word can
have several meanings in several contexts.
TEXTBOOKS:
• The court while construing an enactment, may refer to the standard textbooks on legal
subjects, written by eminent lawyers and authors to clear the meaning.
• Textbooks present the subject matter in an explanatory form, and it becomes easier and
relevant to consider textbooks over questions of interpretation.
• However, they also carry only persuasive value, and the courts are not bound to follow any
particular book or author.
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• Part V expands on the functions of local councils and councillors. It grants local councils
more oversight functions to be able to monitor and hold other players within their locality
accountable. Local economic development has been added as a function of the local
council.
• Part VI Government service Commission. It provides for the appointment of the Local
Council Chief Administrator. The Council Advisory Appointment Committee is
established to oversee recruitment. Local council staff shall be made permanent and
pensionable. This part also makes it possible for mobility of local council staff from local
councils to central Government and vice versa.
• Part VII contains financial provisions and provides for funding of local councils, sharing
of revenue and establishment of the Local Government Finance Committee. Precepts for
sharing of local tax and market dues are now prescribed in the Bill.
• Part VIlI addresses property rates, its assessment and enforcement. List of buildings
exempted from paying property rates have been expanded.
• Part X deals with internal audit. It sets up an internal audit unit for each local council and
provides for the preparation of reports.
• Part XI deals with development planning and makes it a requirement for each local council
to prepare a development plan.
• Part XII brings in Local Economic Development which requires the local council to create
the enabling environment for private public partnership and economic growth in the
locality.
• Part XIII empowers local councils to create byelaws which carry penalties in the event of
breach. Fines have been changed due to inflation and change of currency, needs. Functions
expanded to strengthen their ability to monitor and supervise implementation of projects
within their Wards.
• Part XV prescribes the responsibilities of the Ministry in the decentralization process. It
vests powers in the President to take over control of councils where the need arises. It
establishes Regional Coordinating Committees and makes them more accountable.
• Part XVI deals with transparency and accountability which subjects every councillor to
any legislation relating to anti-corruption. This part requires local councils to declare their
assets and to post Council reports on notice boards.
• Part XVII sets up the Inter-Ministerial Committee to mainly oversee the implementation
of the Act. All ministries that have devolved functions (IMC) to local councils have been
added to the membership of the IMC.
• Part XIlI which is the last part, provides for general provisions such as the Minister's power
to make regulations and the prescription of general penalties.
CONSTITUTIONAL DEBATES/SPEECHES:
• All the debates that had occurred in Parliament at the time of the creation of the
Constitution would be included.
• In case of inconsistency or repugnancy in the Constitution the court can clearly refer to
such debates.
LEGISLATIVE DEBATES/SPEECHES:
• These are debates or speeches made during the passing of a bill in parliament by the
parliamentarians to put forth their view.
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COMMITTEE REPORTS:
• Before the framing of the Bill, usually the matter is referred to a committee to consider it
in detail and give its report thereon.
• These reports of the commissions and committee have been referred to as evidence of
historical facts or of surrounding circumstances and used for interpreting the Act.
• When there is an ambiguity in the meaning of a provision and the Act was passed on the
recommendation of a committee report, aid can be taken from that report to interpret the
provision.
SCIENTIFIC INVENTIONS:
⁃ It may sometimes happen that once a statute is brought into force, certain developments
related to the provisions of the statute may take place. In such a case, when the statute is
interpreted, regard must be given to those later developments, especially in the field of
science and technology, which is an ever evolving field.
⁃ The contemporary society is not stationary; development in every sphere is taking place at
a rapid pace. Thus, these developments need to be taken into consideration while statutes
made to govern these developments are being construed.
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OTHER STATUTES:
• If a statute in itself is not clear of what representation it offers, then other statutes in pari
materia can be considered.
• Such statutes are not exactly the same, but they deal with the same topics, or deal with
different topics of the same subject matter.
• These statutes are enacted at different times and under different circumstances, but they
correspond to each other.
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• Words in a statute must be interpreted in their ordinary grammatical sense unless there is
something in the context, or in the object of the statute in which they occur, or in the
circumstances in which they are used, to show that they were used in a special sense
different from their ordinary grammatical sense.
FINALLY:
• Legislators draft the statutes with utmost care. They ensure that no provision of the law
causes ambiguity.
• After drawing these statutes, they undergo an intensive debate and discussion. A group of
intellectuals scrutinise the draft proposal.
• But legislation consists of legal jargon and puzzling terms, which can leave the most well-
read and knowledgeable person confused.
• Therefore, sometimes, people misinterpret the texts of these statutes. Such
misinterpretation might result in disputes between parties.
• And when the courts have to interpret this legislation, they have to do so well within the
boundary of their powers, because they cannot infringe the law-making power of the
legislature and take it in their own hands, only to create new laws out of the existing ones.
• Interpretations and constructions should be done keeping in mind the sole purpose of
delivering justice with ease.
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MORTGAGES
• When an individual wishes to pay for the purchase of a property, it is very unlikely they
will have sufficient free assets to buy the property outright.
• Therefore, they will seek a loan to finance this up-front purchase.
• In return for the loan, the lender will take 'security' over the property. In other words, if the
borrower of the money does not pay their loan back, the lender can take the property and
sell it in order to get the money they lent back plus interest.
• Mortgages are proprietary interests. Their purpose is to secure a loan.
• Usually, 'mortgage' is used when referring to land.
• Mortgages can be secured over chattels or personal property where the modern term charge
is used.
DEFINITION OF MORTGAGES
• The case of SANTLEY V WILDE 1899 defined a mortgage as a conveyance of land as
security for the payment of a debt or the discharge of some other obligation'.
• “A mortgage is a form of security created by contract, conferring an interest in real or
personal property defeasible upon performing the condition of paying a given sum of
money, with or without interest” Clark and Morgan (eds) Fisher and Lightwood's Law
of Mortgage (15th ed, 2019, pp. 4-5).
• “Mortgage includes any charge on any property for securing money or money's worth”
Conveyancing Act, 188l.
• “Mortgage” means an encumbrance on the property charged, and does not, except as
provided by this Act, operate so as to change the ownership, right to possession or any
other interest, whether present or future in the property charged" Home Mortgage Finance
Act, 2009.
BRIEF HISTORY
• In the fourteenth century, the mortgage was a deed that actually transferred title to the
mortgagee,
• the mortgage set a specific date on which the debt was to be repaid.
• If the mortgagor failed to pay the debt, the property automatically vested in the mortgagee.
No further proceedings were necessary.
• This law was severe.
• The only possible relief was a petition to the king, who over time referred these and other
kinds of petitions to the courts of equity.
• by the 17th century, the equity courts would order the mortgagee to return the land when
the mortgagor stood ready to pay the debt plus interest.
• Thus a new right developed known for short as the equity of redemption.
• no matter how many years later, the mortgagor could always recover his land by proffering
a sum of money.
• Mortgagees tried to defeat the equity of redemption by having mortgagors waive and
surrender it to the mortgagees, but the courts voided waiver clauses as a violation of public
policy.
• Therefore, a mortgage, once a transfer of title, became a security for debt.
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"Mortgagor" or "Borrower": means a person who in consideration for a loan granted to him or
to a third party or for the performance of an obligation secures the repayment of the loan or the
performance of the obligation under this Act with an immovable property and includes any person
from time to time deriving title through the original Mortgagor or entitled to redeem a mortgage
according to his interest in the mortgaged property as in Home Mortgage Finance Act, 2009.
"Mortgagee" or "Lender": means an institution that grants loans for the purposes specified in
section 2 of Home Mortgage Finance Act, 2009. and includes any person from time-to-time
deriving title through the original Mortgagee.
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mortgage matures. The borrower then uses the funds from that endowment to pay off the
mortgage's principal.
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described and which it is hereby intended to be mortgaged were conveyed to the said Mortgagor
for an estate in fee simple absolute in possession free from incumbrance”. The Mortgagor is seised
in fee simple of and otherwise well and sufficiently entitled to the land hereditaments and premises,
which are hereby intended to be mortgaged and are more fully described hereinafter.
MORTGAGE CLAUSE
• The clause also describes the duty of the mortgagee and mortgagor:
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• Keep at all times during the continuance of this security all buildings in good and
substantial repair and condition.
• keep all buildings for the time being comprised in this security insured against loss or
damage by fire, earthquake and other risks as the Mortgagee shall from time to time
consider necessary.
• That the Mortgagor will duly and punctually pay all taxes, rates, rents and other outgoing
assessed upon or payable in respect of the said properties comprised in this security
REDEMPTION CLAUSE
• It is an important attribute of a mortgage transaction.
• The provision specifies the tenure of the mortgage deed as to when the mortgagor is entitled
to return his property.
EXAMPLE
• That if the Mortgagor shall whether lawfully demanded or not on the due date pay to the
Mortgagee all monies covenanted to be paid in accordance with the terms of his covenants
herein the sub-term hereby created shall automatically cease and determine and the
Mortgagee shall at any time thereafter at the request and cost of the Mortgagor reconvey
and surrender the premises hereby mortgaged to the use of the Mortgagor (IN FEE
SIMPLE or will otherwise discharge this security as the Mortgagor shall direct).
SCHEDULES:
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TESTIMONIAL
• IN WITNESS WHEREOF the mortgagor has set his hand and seal and the mortgagee has
caused its Common Seal to be hereunto affixed the day and year first above written.
SIGNED SEALED AND DELIVERED by the within named Mortgagee the said MR.
CHERNOR BAH in the presence of: -
………………………
MR. CHERNOH BAH
NAME.
ADDRESS.
OCCUPATION:
THE COMMON SEAL OF HOME FINANCE COMPANY LIMITED was hereunto
affixed in the presence of: -
…………..
DIRECTOR
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