By Sylvester Udemezue
This commentary is prompted by a surrejoinder to the present authors riposte to an earlier note by Professor Farooq Kperogi. In the original note, Professor Kperogi had declared that “Nigerian newspapers interchange ‘impeach’ with ‘remove from office’ because they are copying the drafters of the Nigerian constitution who don’t seem to know what “impeachment” really means. …The people who wrote the 1999 Nigerian constitution are clearly not sufficiently educated about the meanings of the terminologies they deployed in the constitution. And they passed on their ignorance to the Nigerian news media and to the Nigerian populace.” Although Prof. Kperogi is not a lawyer, his declaration has thrown up a number of salient legal questions that need to be elucidated for the benefit of lawyers and non-lawyers alike, in Nigeria, in America and elsewhere, especially as it appears that Prof Kperogis untutored, inexpert opinion (with due respect to him) has surprisingly received some benediction from few undiscerning Nigerian Lawyers. Legal questions thrown up for discussion and determination include (1) Whether Nigerian legislators are not entitled to give any meaning to any word used in the Nigerian Constitution or statute; (2) whether Nigerian Lawmakers, in determining the meaning to be ascribed to a word used in the constitution or any other Nigerian statute, are bound by the meaning of such words in the “dictionary” or under the US Constitution, and (3) whether any Nigerian statute is inferior or invalid only because its language fails to comply with the form legislative language adopted in another jurisdiction.
This commentary aims to explore the question: “How far, beyond the actual words or provisions of the statute itself, is it permissible for courts, jurists, lawyers and non-lawyers to roam in their efforts to interpret legislation?” Put another way, what is the proper context in which to interpret legislative directives or provisions? This is a question that is unavoidably intertwined with the more general problem of the proper approach to statutory interpretation. The major question sought to be resolved herein is as to which shall prevail, in situations of conflict between Internal and External Aids to statutory interpretation? Specifically, using the meaning of the word “impeachment” as our reference for illustration, in view of Professor Kperogis conclusions, where the definition given to “impeachment” under Nigerian Constitutional Law by the makers of the countrys Constitution (internal aid) is found to be in conflict with the meaning of the same word as used either in standard dictionaries (external aid) or in United States of America`s Constitution (external aid), how would we go about resolving the conflict?
The Role of Courts & Statutory Interpretation
A statute is an edict of the Legislature. So, the conventional way of interpreting a statute is to seek the true intention of the statute. It is the court of law that has the duty to decipher and act upon the intention of the legislature or the mens or sentential legis. Mens legis is a Latin term which means “the mind of the law;” it is the purpose, spirit or intention of a law or the laws in general. The duty of courts, in this wise, is that of objectively determining the legislative intention with guidance, furnished by accepted principles. In determining the meaning to be attached to a word used in a statute, the court must first look inwards, within the statute, to find out the meaning intended by the makers of the statute, interpretation being the process of ascertaining the true meaning of the words used in a statute, based on the intentions of the legislature as conveyed expressly or impliedly in the language used.
Scholars have identified three major rules of language applied by the courts for purposes of statutory interpretation. They are (1) The Ejusdem Generis rule; (2) The Expressio Unius Est Exclusio Alterius Rule and (3). The Noscitur a sociis Rule. The “Expressio unius est exclusio alterius” Rule is relevant here and states that the express mention of one thing in a statute excludes all others not mentioned therein. This is illustrated by the case of R v Inhabitants of Sedgely. The “Noscitur a sociis” Rule appears to be much more relevant here; it postulates that “words (used in a statute) have no meaning except in the context they are used.” The Niuean Interpretation Act provides in section 6 (1) that “The meaning of an enactment must be ascertained from its text, in light of its purpose and in its context.” The legislature must be taken in a statute to have said exactly what it means, and also to mean in a statute exactly what it has said therein. Although jurists may take the help of both the Rules or Canons of Interpretation as well as some Internal Aids and External Aids to the Rules in the interpretation of Statutes, it goes without saying that interpretation of a word or expression must depend on the text and the context. In People v. Jefferson, the California Court of Appeals, 4th District, USA, observed that the role of the courts “in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. According to the Court of Appeals of the US state of Indiana, “the first and often last step in interpreting a statute is to examine the language of the statute” As one writer puts it, “ statutory test should be both the ending point as well as the starting point for interpretation.” This is because, words are the skin of the language, while language is the medium of expressing the object that a particular provision or the Act seeks to achieve. In other words, to find the real intentions of the drafters of a statute, regard must be had to the context, subject-matter and object of the statutory provision in question. Courts and jurists achieve this by carefully analyzing the whole scope and provisions of the statute or section relating to the word or phrase under consideration. Though schools of statutory interpretation vary on what factors should be considered, all approaches to statutory interpretation start (if not necessarily end) with the language and structure of the statute itself. This is because the language and provisions of a statute are the most reliable indicator of the intent of the makers of the statute.
Aids to Statutory Interpretation
An Aid to Interpretation is a device that helps or assists in interpreting words used in a statute. There are various aids to the rule of interpretation, but for purposes of statutory interpretation, the courts usually have recourse to both internal aids and external aids. Internal aids are those aids which are available within the statute itself, though some of them may not be part of the enactment. For example, a definition contained in the Definition Section/Clause of a particular statute, not from any other statute, should be used for the purpose of that Act. The object of a definition section/clause is to avoid the necessity of frequent repetitions in describing the subject matter to which the word or expression defined is intended to apply. Explaining the value of Statutory Text or Definition Section as a crucial tool for statutory interpretation in an article titled, “A Guide to Reading, Interpreting And Applying Statutes,” Suraj Kumar and Taylor Beech had this to say:
“Many statutes contain a “definitions” section that sets forth and defines the key terms used in the statute. You might find these definitions either in the section of the statute you are analyzing or in one of the first sections of the entire act. Sometimes these specific terms are codified as definitions for a chapter or title of the relevant statute, meaning that they are intended to apply to the entire chapter or title (unless otherwise specified). These definitions are important because they suggest that legislatures intended for a term to have a specific meaning that might differ in important ways from its common usage.”
External Aids are materials outside the statute but which are referred to in order to decipher the meaning of words used in the statute. Internal Aids include Long Title, Short Title, Preamble, Schedule, Marginal Notes, Headings and Title of a Chapter, Punctuation, Explanatory Notes, other sections of the Act and the Definition sections/clauses in the Act. External Aids include Dictionaries, Other Statutes, Textbooks, Academic Writings, Law Commission Reports, Case law (Judicial decisions), Hansard, and other materials outside the statute.
Internal Aids Versus External Aids
The principle of law is that where the setting, provisions, context and object of an enactment have provided sufficient guidance for interpretation of the words used for purposes of such enactment, there is no need to have recourse to any extrinsic/external materials. Put differently, where the statute itself contains within itself, sufficient provisions to help determine the meaning of any word or words used in the statute, the courts are to not look at anything outside the statute. Explaining the crucial role Internal Aids play in statutory interpretation, Rayhanul Islam argues that the legislature is entitled to lay down legal definitions of its own language, and where such definitions are embodied in the statute itself, it becomes binding on the courts. According to him, when the statute itself provides a dictionary or other definition for the words used, the court must look into that dictionary for interpretation. Accordingly, although external aids are useful tools for the interpretation or construction of statutory provisions, courts take recourse to external aids ONLY when internal aids are either not forthcoming, non-existent or inadequate. In an Indian case, B. Prabhakar Rao and others v. State of A.P. and others, it was held that “where internal aids are not forthcoming, we can always have recourse to external aids to discover the object of the legislation. This is now a well-settled principle of modern statutory construction.” It is therefore safe to conclude that where an external aid is inconsistent with an internal aid, for purposes of interpreting a particular word or expression used in a Statute (the Nigerian Constitution for example), the meaning ascribed to the word within the statute, by provisions of the statute (internal aid) must prevail over that given to it by the external materials such as dictionaries or other statutes (external aid). Section 12(1) of the Jamaican Interpretation Act explains better. It provides that “where expressions are defined in or for the purposes of any Act, such expressions shall have the meanings assigned to them, unless there is anything in the subject or context repugnant to, or inconsistent with, such meaning.” While explaining the Cardinal principles governing the interpretation of constitutional provisions, Nikki Tobi (JSC) stated in the Nigerian case of Inakoju & Ors V. Adeleke & Ors, observed:
“This court cannot in the interpretation of specific provisions of the Constitution, gallivant about or around what makers of the Constitution do not say or intend. On the contrary, this court must interpret any section of the Constitution to convey the meaning assigned to it by the makers of the Constitution?”
Jurisdictive Discretion (Legislative License)
It is a truism in legislative drafting and process that lawmakers, while ascribing definitions to words used in a statute, are not obliged to adopt the dictionary or popular meaning or interpretation of such words. The truth is, as Nsofor JCA observed in Yusuf v. Obasanjo, “we are not slaves to words; indeed, we are their masters.” Thus, in legislative drafting or process, words take any meaning as assigned to them by the law makers, and this is because lawmakers reserve the discretion or have the license to give to any word any meaning as they may deem fit. Where the words used in a statute are defined in a peculiar way, and are perhaps given a meaning different from their ordinary, contemporary, common meaning, the courts are bound by the meaning provided in provisions of the statute. See the United States Court of Appeals for the Second Circuit in the case of United States v. Piervinanzi. The US Supreme Court appears to have given a good guide on this. In the case of Consumer Product Safety Commission et al. v. GTE Sylvania, Inc. et al., the US apex Court stated that “the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive”
It is this discretion/license that the present author has chosen to describe as “Jurisdictive Discretion” or “Legislative License.” In other words, “Jurisdictive Discretion” is a term invented by the present author, based on the concept of Parliamentary Sovereignty (also known as Parliamentary Supremacy or Legislative Supremacy), which is a concept in the Constitutional Law of some countries; the concept postulates that the legislature possesses absolute sovereignty to make laws and that for this purpose, the legislature is supreme over all other government institutions, including the executive and the judiciary. It also holds that the legislature reserves the right or discretion to change or repeal any previous legislation as it may deem necessary, and that (for purposes of law-making), the legislature is not bound to adopt the format or content in any written law or precedent. The author believes that since the legislative body has absolute sovereignty to make laws, it possesses the legislative discretion or license to assign to words, terms and expressions used in a statute, any meaning as it may deem fit. Any meaning so assigned is binding on the courts whose only duty in interpretation of laws should be to find out the intention of the legislature and give effect to it, since the legislature is presumed to have said what it meant, and to mean what it has said in the statute. This concept is so strong that where language of legislation and case law are in conflict, there is a presumption that legislation takes precedence. But while Parliament has exclusive jurisdiction to legislate and the jurisdictive discretion to assign any meaning it deems fit to words and expressions used in statutes, the courts retain sole jurisdiction to interpret statutes albeit with a view to giving effect to the intention of the lawmakers. Where, however, the legislature is uncomfortable with the interpretation given to a particular statute by the courts, the legislature reserves the right or discretion (jurisdictive discretion) to override the Court. According to Eskridge, in the USA alone, between 1967 and 1990, about 187 decisions of US courts were overridden by statutes. Even the executive power of Assent provided for under the Constitution of many countries is not absolute because, in Nigeria, for example, section 58 (5) provides that “where the President withholds his assent and the bill is again passed by each House by two-thirds majority, the bill shall become law and the assent of the President shall not be required.” These are a further confirmation of Jurisdictive Discretion.
One may give an illustration of a legitimate exercise of Jurisdictive Discretion by drawing a simple distinction between the word “DIRECTOR” as defined by the an English Dictionary and the same word as used under the Nigerian Corporate Law. Oxford provides a definition of “director” in English as either (1) a person who is in charge of an activity, department, or organization; or (2) a member of the board of people that manages or oversees the affairs of a business;
or (3) a person who supervises the actors and other staff in a film, play, or similar production. On the other hand, it is seen that the meaning of the word “director” as used under Nigerian Law is much wider from the meaning ascribed to it by Oxford English dictionary. The term “director,” under Nigerian law, is used to mean any one of the following: (1) persons duly appointed by the company to direct and manage the business of the company; or (2) Any person, who need not be a member or officer of a company, on whose instructions and directions the directors of a company are accustomed to act; or (3) Any person occupying the position of director by whatever name called. The obvious implication or this is that, in other to be treated as a director of a Company in Nigeria, a person need not be a member or officer of the company and need not even be among the persons who were/are expressly appointed or named as directors of the company. As observed by Taofeeq Yusuf, although English is the language of the law in Nigeria, it has been held repeatedly by the courts that “words may take a technical meaning when used in legal instruments or statutes and sometimes may seem grammatically incorrect.”
There is no point belaboring the principle that legislators reserve the discretion (jurisdictive discretion) to give any meaning/definition as they may choose to any word used in a particular statute, and that such definition, when given is binding on the courts and on all. This is why the word “impeachment” in Nigerian Constitutional Law means “removal from office,” while in the United States Constitution, the same word is used to mean “indict” or “accuse.”
Viewed from the perspective of the discussions above, one may safely conclude that Prof Farooq Kperogi spoke out of sheer inexperience when he described “the people who wrote the 1999 Nigerian Constitution” as “clearly not sufficiently educated about the meanings of the terminologies they deployed in the Constitution. And they passed on their ignorance to the Nigerian news media and to the Nigerian populace.” The Professor`s unversed outburst and bumbling position may be overlooked on grounds that he is not a lawyer but only a journalist and teacher of journalism; he is neither learned in the niceties of law nor does he understand the concepts and principles at play in legislative drafting, legislative process, statutory interpretation and on the legislative independence of legal systems and sovereign nations. What Prof Kperogi failed to appreciate is that, partly because each country is a sovereign with power to determine its fate and order its affairs, provisions of statutes and purpose of words and expressions used in certain statutes differ from country to country. Nigeria law is not American law. Every sovereign country maintains and operates its own legal system with a set of laws, rules and regulations (based on its own needs and peculiarities). It is erroneous for anyone to suggest that the standard, format or provisions of US laws and rules should or must be extended to dictate the tone, pace or language of Nigerian laws. What Prof Kperogi has done in having argued that, because “impeachment” is used under the American Constitutional Law to mean “accusation” or “indictment” under the, the word must necessarily be assigned the same meaning under the Nigerian legal system is, with due respect, akin to one suggesting that the President of the United States of America should extend his leadership to cover Nigeria, an independent nation.
As the present author has explained, based on law, when a legislative house ascribes to a statutory word a meaning that is different, wider or narrower than the popular meaning of the affected word, it does not mean that the legislators are ignorant or unaware of the existence and scope of the popular, dictionary meaning. Such is a legitimate exercise of Jurisdictive Discretion. And this is in consonance with both the positivist and the realist ideas of law as a matter of what has been posited (enacted) by the legislative authority. Courts must presume that a legislature says in a statute what it means and means in a statute what it says there. Those were the words of a United States Court in the case of Connecticut Nat’l Bank v. Germain. Legal positivism, for example, represents the theory that the existence and content of law depends on social facts and not on its merits. The English jurist, John Austin had formulated the idea that “the existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry” As Green and Adams have observed, the positivist proposition does not say that law’s merits are unintelligible, unimportant, or peripheral to the philosophy of law. It rather says that they do not determine whether laws or legal systems exist. In conclusion, they argue that whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice. In effect, what laws are in force in a society/system depends on what social standards its officials recognize as authoritative; for example, legislative enactments, judicial decisions, or social customs. These standards differ from jurisdiction to jurisdiction and from country to country. No one country is entitled to impose its own standards on any other sovereign country or to expect that the standard in another country must be measured with its own lens. This is the reason behind the age-long principle, that one country`s judicial decisions lack binding effect in the stare decisis of another country. It is settled law in Nigeria that provisions of foreign statutes do not apply to Nigeria except those and to the extent permitted by Nigerian law or statutes. Hon Justice Nikki Tobi, JSC offered an explanation to this, in the case of Inakoju & Ors V. Adeleke & Ors, where he said:
“Certainly, it will not only be ridiculous but an abuse of statehood with all its attendant ramifications in international law, for courts of a sovereign country operating an equally sovereign and independent legal system to be bound by decisions of courts of another country having the same status in international law and practice. The United Nations Charter clearly recognizes the equality of States as subjects of international law, even the smallest States, and so the question of one sovereign nation succumbing to the judicial decisions of another sovereign nation should not arise at all, no matter the historical tie or connection. Viewed from this angle, it is submitted that decisions of English courts, whether by the House of Lords or the Court of Appeal, should be persuasive authorities in Nigeria, and this applies to all Nigerian courts.”
It must however be pointed out that, unlike the position in Constitutional Law, the Law of Evidence of Nigeria, the United Kingdom and the United States of America appear to use the word “impeachment” to mean the same thing. In each of the three countries, the term is used to refer to the process of calling into question the credibility of an individual testifying as a witness in a trial; i.e., discrediting a witness by cross-examining the witness about facts that reflect poorly on the witness’ credibility or, in some cases, or by introducing extrinsic evidence that reflects negatively on the witness’ truthfulness or knowledge. It is reported that under the common law of England, a party could impeach its own witness if one of four special circumstances was met, namely: (1) If the witness were an adverse party (such as the plaintiff/claimant calling the defendant to the stand, or vice versa); (2) If the witness were hostile (such as the witness refusing to co-operate with the party that called him/her); (3) If the witness were one that the party was required by law to call as a witness; and (4) If the witness surprised the party who called him by giving damaging testimony against that party. In the USA, the Federal Rule of Evidence permits any party to impeach (that is, attack) the credibility of any witness Tracey Timlin explains:
“Rule 608 (b) of the United StatesFederal Rules of Evidence provides one of the most useful and powerful impeachment tools available to lawyers during cross-examination. Specifically, Rule 608(b) enables lawyers to ask targeted and damaging questions about a witness’ past bad actions, or specific instances of misconduct, during cross-examination. A strong line of questioning under Rule 608(b) can destroy a witness credibility and leave little room for rehabilitation.”
Nigeria`s Evidence Act, 2011, summarizes the position under the Nigerian evidence law when it states that “the credit of a witness may be impeached in the following ways by any party other than the party calling him or with the consent of the court by the party who calls him (a) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit; (b) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence; or (c) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.”
The point being made here, flowing from the aforesaid, is that lawmakers all over the world have Jurisdictive Discretion to give any definition as they deem fit to any word, term or expression used in any statute. And those for whom the law is made and to whom it applies are bound by such definition. Thus, where a certain legislation decides to ascribe to a word, a peculiar meaning that is or appears wider, narrower or even different from the dictionary, popular meaning, such meaning must be preferred to the popular meaning. That is the case with the Nigerian Constitutional Law under which “impeachment” means “removal from office,” as opposed to its meaning in the USA. The makers of Nigeria’s Constitution are not obliged to adopt the definition of “impeach” as used in American Constitutional Law. And Nigerian courts or lawyers have no reasons to have recourse to the US Constitution or the English Dictionary (both of which are mere external aids) in determining the import of the word “impeachment” as used in the Nigerian Constitution, since the Nigerian Constitution has by itself left no one in doubt as to what meaning the makers of the Constitution intended the word to have or bear. Flowing directly from the concept of sovereignty of nations, is the principle that the highest law-making body in each independent country is the ultimate overseer or authority in the law-making process of the country, for the order and good governance of that country. It would be absurd for anyone to suggest that the legislative language in one country (such as in Nigeria) must conform with that of another country. And the mere fact that a country`s legislative language as expressed in its statutes differs from that of another country, does not render the lawmakers in the former ignorant or unlearned, neither does that adversely affect the potency or cogency of its legislation.