INTERPRETATION AIDS

Question 1

INTERNAL AIDS

Answer 1

INTERNAL AIDS
They help us to construe and find meaning within the confines of the text, especially where there is a dispute. Internal aids include, recitals, operative parts [the part that regulated the contract- where the property is alienated], specific clauses, testimonium, witnesses, etc). They also restrict us to the context of an agreement. See practical example on Page 159 of Land Act 2020. Where operative parts are unclear/ambiguous, we can look to the recitals [provided they are clear] which give the background to the transactions.

Question 2

JURAT

Answer 2

Certificate that confirms a person was a party to a contract which they did not understand the language of, and that a competent person has translated the text to them in a language they understand. Semi-illiterate is considered illiterate. And partial blindness is considered blind.

Jurats have no standard form.

Question 3

KWAMIN v. KUFFOUR (1914)

FORI v. AYIREBI (1966)

Answer 3

Kwamin v Kuffour [1914] 2 RBN 808- Court nullified agreement because illiterate party did not understand the contract and there was no Jurat.

Fori v Ayirebi [1966] GLR 627- court followed the Illiterates’ Protection Ordinance. Where there is an illiterate party and there is no Jurat, the contract shall be void automatically.

Question 4

ZABRAMA v. SEGBEDZI

Answer 4

Zabrama v Segbedzi [1991] 2 GLR - where a party to a contract is blind/illiterate, it should not be automatically declared void for lack of jurat, but should be determined at the level of presumption. The other party can attempt to prove that the blind/illiterate person did in fact understand the contents.

Question 5

IN RE KODIE STOOL, ADOWAA v. OSEI (Jurat)

Answer 5

In In Re Kodie Stool, Adowaa v Osei, the supreme court held the old position that failure to provide jurat shall render the transaction void.

Question 6

Antibe & Adjuwaah v Ogbo (JURAT)

Answer 6

Antibe & Adjuwaah v Ogbo [2005-06] SCGLR 494- held again that failure to provide jurat should be considered at the level of presumptions & not void. This was because illiterate people were feigning ignorance in an attempt to avoid performance

Question 7

Duodu & Others v Adomako & Adomako (JURAT)

Answer 7

Duodu & Others v Adomako & Adomako [2012] SCGLR 198- failure to provide jurat should be treated at the level of rebuttable presumption. Court must not make a fetish of the presence of jurat. The Illiterates’ Protection Ordinance should not be used as a cloak/subterfuge to take advantage of innocent parties. (Court settled on this position?)

Question 8

Illiterates Protection Act 1912, CAP 262

Answer 8

Illiterates Protection Act 1912, CAP 262
Section 1 provides that a person shall not, for a reward to be paid to that person or to any other person, write a letter or any other document for or at the request of an illiterate person, except in conformity with this Act, and unless that person has obtained a licence.
Section 9 however states that the Act shall not apply to the writing of a letter or any other document or to a letter or any other document written in the course of business by a salaried clerk or by or at the direction of a person admitted to practise and practising as a barrister or solicitor in the Superior Court of Judicature.

Question 9

Manu v Emeruwa (Illiterates Protection Act)

Answer 9

Manu v Emeruwa [1971] 1 GLR 442- both parties illiterate; entered an agreement and possession of a car was passed from one party to the other but the party alleged it was a mortgage not a pledge . It was held that the law permits the taking of evidence to determine the true position of the parties.

Question 10

LONG TITLE AND PREAMBLE

Answer 10

Long Title and Preamble

Every law must have either a preamble or a long title. You don’t usually have both.

At common law, preamble and long title were not a part of the law- they were instead considered as a gateway to the law which provided for the object and intent of the law.

Case: Customs Excise and Preventive Service v National Labour Commission [2009] SCGLR 530 – SC discussed the legal effect of preamble and long title.

Presently, long title and preamble form part of the law/enactment. They provide the object and intent of the enactment. They are used as an aid to interpretation. Section 13 of the Interpretation Act 2009 provides that the long title and the preamble form part of an Act intended to assist in explaining the intent and object of the Act.

Question 11

PUNCTUATION

Answer 11

Punctuation
Section 14 of the Interpretation Act 2009 provides that punctuation forms part of an enactment and may be used as aid to its construction. They give meaning and order to text. Must ignore them if relying on them would defeat the text.

Question 12

HEADINGS

Answer 12

Headings
These include short titles and marginal notes.
They do not form part of the law.
At common law, they were provided by the draftsman not the lawmaker (parliament).
They are for convenience only and can sometimes be used as aids.
Case: Republic v National House of Chiefs, ex parte Favil III [1984-86] 2 GLR 731- text of the rule and marginal notes were different. The Court of Appeal erroneously considered the marginal notes to be part of the law.
Example: Section 13 of Wills Act.

The correct position was discussed in Republic (No 2) v National House of Chiefs, ex parte Akrofa Krukoko II & (Enimil VI) (No 2) [2010] SCGLR 134- held that the Court of Appeal erred by making use of the marginal notes because they do not form part of the law.

Question 13

FOOTNOTES & ENDNOTES

Answer 13

Footnotes & Endnotes
They are not part of the law but are aids to interpretation. Case: Kuenyehia & Others v Archer & Others [1993-94] 2 GLR 525- SC held that footnotes are not mentioned in any of our laws and thus do not form part of the law. However, they are useful guides to interpretation.

Question 14

SCHEDULES

Answer 14

Schedules
Schedules provide details/specificity to provisions.
They form part of the law and are used as aids.
Example: Oaths in the constitution. They are different from annexures in that annexures do not form part of the law, and are just illustrations/extra info.
Case: Kuenyehia & Others v Archer & Others [1993-94] 2 GLR 525- we follow the common law position articulated in the English Case of Attorney-General v Lamplough [1978] 3 Exchequer Division 214. Held that a schedule is as much a part of the statute and is as much an enactment as any other part.

Question 15

SECTIONS, ARTICLES

Answer 15

Sections and Articles are for convenience and can thus be used as aids.

Question 16

INTERPRETATION CLAUSES or DEFINITION SECTION (Kumnipa II v. Ayiribi)

Answer 16

Interpretation Clause or Definition Section
These exist in statutory, constitutional and non-statutory text.
They form part of the law, and are used as aids.
As such where the use of a definition will render the text absurd, we can ignore it.
Case: Okwan v Amankwa II [1991] 1 GLR 123- here, Court of Appeal [wrongly] departed from the common law position suggesting that the definition must never be departed from.

However the correct position was set out in Kumnipa II v Ayiribi.
SC held that where the use of the definition section will render the text absurd, it should not be used. It is just an aid. Position restated in Case: BCM Ghana Ltd v Ashanti Goldfields Ltd [2005-06] SCGLR 602. Case that set out the common law position: Thompson v Gold & Co [1910] AC 409 – where an enactment contains a definition section it will not necessarily apply in all the contexts in which a defined word may be used.

Question 17

SAVING PROVISIONS

Answer 17

When a law is repealed or revoked, a saving provision makes provision for ongoing matters under that law.

Question 18

SAVING PROVISION (Case)

Answer 18

British Airways v Attorney General [1996-97] SCGLR 547
Here a tax evasion law was repealed and the new law did not have a saving provision. Held that all cases under the old law were discharged because criminal offences must be written down and it was no longer written down.

Question 19

LATIN MAXIMS

Answer 19

Latin maxims are interpretation aids, used to interpret constitutional, statutory and non-statutory provisions

Question 20

UT RES MAGIS

Answer 20

Ut Res Magis
Definition: Where text could have 2 or more meanings, use the meaning that will make the text meaningful and avoid the meaning that will render the text absurd.

Ut Res Magis means that the interpreter must “apply wisdom”.
Case: Davis v Attorney General & Electoral Commission [2012] 2 SCGLR 1155- Court held we must use meaning that saves the text based on the principle of ut res magis.

Legal Effect: To save a text from being rendered void.

Question 21

EJUSDEM GENERIS

Answer 21

Ejusdem Generis
Whenever there are specific words of one genus which are followed by a general word, the general word shall take its meaning from the specific words. Eg, Ghana, Angola, Nigeria and others- “others” refers to African countries. (Exam note: look for specificity.)
Case: Asare v Attorney-General [2003-04] 2 SCGLR 823- limit the meaning of the general word to the specific words preceding it.

Question 22

R v. High Court Accra; ex parte Ploetner (Ejusdem Generis)

Answer 22

The rule was also applied by the SC in the case of Republic v High Court Accra; Ex parte Ploetner [1984-6] 2 GLR. The court had to construe Order 54A, r 1 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) which provide : Any person claiming to be interested under a deed, will, or other written instrument, may apply by originating summons for the determination of any question of construction arising under the instrument.
It was held that the general words “other written instrument” must be construed ejusdem generis  to include only written material belonging to the class of deeds, wills, etc. Thus construed the words “other written instruments” would cover such documents as agreements, contracts, powers of attorney, deed of gifts, personal declarations, etc but certainly not enactments such as the Companies Code, 1963 (Act 179) as wrongly contended by counsel for the respondent.

Question 23

CHRAJ v AG (Ejusdem Generis)

Answer 23

CHRAJ V AG [1998-99] SCGLR 871 : CHRAJ claimed that by the use of the phrase “on any other basis in section 35(2) of the Transitional provisions of the 1992 Constitution, they had the power to investigate confiscations made by a court or tribunal during the AFRC and PNDC administrations and if satisfied, order restoration of that property.
The Court held that the expression “or on any other basis” must be construed ejusdem generis with the expression “on the basis of his holding a public or political office”. thus construed, the expression “or on any other basis” meant “or on the basis of holding any public or political office so designated by law or akin to such office with similar powers and responsibilities.

Question 24

GRINI v GRINI (Ejusdem Generis)

Answer 24

Grini v. Grini provides an exception to the Ejusdem Generis rule.

In Canada parents are statute-bound to pay maintenance for their children who were unable to work as a result of “illness, disability or other cause”. Child claimed they were entitled to support because, being a student, they were unable to work. Court held that “illness and disability” exhausted the genus as such the general words “or other cause” can be construed without restriction to the preceding specific words.
Legal Effect: A word may fall within various classes/categories which may also have further sub-categories/sub-classes. Consequently, it is possible for a judge to assign a word to a particular genus (or choose not to assign) and it would defeat the intention of the testator.

Question 25

EXPRESSIO UNIS EST EXCLUSIO ALTERIS

Answer 25

Expressio Unis Est Exclusio Alteris
Definiton: This is an interpretation aid with the rule that the express mention of one excludes the others.
CASE: Ghana Ports & Harbor Authority v Issoufou [1993-94] 1 GLR 24- contract was for transfer of company assets but no mention of liabilities. Creditors tried to claim but, High Court said the mention of assets alone excluded liabilities. Supreme court however held you cannot separate assets from liability. (So this case was an exclusion of Expressio Unis Est Exclusio Alteris)
Case: Colquhoun v Brooks [1888] 21 QBD 52- exclusion is often inadvertent. Where it will lead to absurdity, avoid it

Question 26

NOSCITUR A SCOCIIS

Answer 26

Noscitur A Sociis
This interpretation aid has the rule that the words themselves do not convey meanings. Rather, they gain their meaning from the environment within which they find themselves. It allows for definite specification.
Eg, “The house passed a bill” house - Here clearly, the house refers to parliament.

Question 27

R. v. Minister of Interior, ex parte Bombelli

Answer 27

Case: Republic v Minister for Interior, ex parte Bombelli [1984-86] 1 GLR 204- here, man was deported by executive order and he tried to argue it was invalid because the process of making an order wasn’t followed. He was referring to “order” in the context of sources of law but court held the “order” here was obviously not in relation to sources of law.

Question 28

EXPRESSIO EORUM QUAE TACILE INSUT OPERATOR

Answer 28

Expressio Eorum Quae Tacile Insut Nihil Operator
The expression of things that are tacitly implied is of no consequence. Eg when parties to a land transaction are named without adding “and their heirs and successors” they are implied anyway. Failure to mention them specifically does not matter.

Question 29

EXPRESSUM FACIT CESSARE TACITUM

Answer 29

Expressum Facit Cessare Tacitum- where something is expressly set out, it is final- don’t add anything. Eg. Limit of jurisdiction for specific court.

Question 30

LATIN MAXIMS - NON-STATUTORY INTERPRETATION

Answer 30

The 2 Latin maxims that are used for non-statutory interpretation are:

Falsa Demonstratio and Contra Proferentum

Question 31

FALSA DEMONSTRATIO NON NOCET CUM DE CORPORE

Answer 31

Falsa Demonstratio Non Nocet Cum De Corpore
False description. If a thing is falsely described but can still be identified then it should not be defeated.

Legal effect: The aim of falsa demonstratio is to protect from lapsing, an object [recipient] or a subject [gift] which has been wrongly or falsely described. It cures misdescription to save the document.

Cases: 1) Wilberforce v. Wiberforce; 2) Ofner v Ofner

Question 32

WILBERFORCE v WILBERFORCE (Falsa Demonstratio)

Answer 32

Wilberforce v Wilberforce [1999-2000] 2 GLR 311- man made a will stating “I give to my children…nephews & nieces names” the persons named were held to be the correct beneficiaries. The erroneous use of “children” did not defeat the text.
.

Question 33

DIOCESAN TRUSTEES OF CHURCH OF ENGLAND IN WESTERN AUSTRALIA v. SOLICITOR GENERAL

Answer 33

Diocesan Trustees of Church of England in Western Australia v Solicitor General [1901] Commonwealth Law Report 757. Philanthropist in his lifetime visited and donated to Freemantle Hospital (for people of unsound mind). He willed money to “lunatic asylum” but it was held that he obviously meant Freemantle

Question 34

IN RE OFNER, SAMUEL v. OFNER v. OFNER

Answer 34

In Re Ofner, Samuel v Ofner [1909] 1 Chancery Division 60
Man left £200 to his grandnephew Robert Ofner but did not have a grandnephew named Robert but instead Richard. Held that court should avoid the false description so the gift does

Question 35

CONTRA PROFERENTUM

Answer 35

Contra Proferentum
Translates to “interpretation against the draftsman”.
Contra Proferentum is used as an a id of last resort.
Where there is a contract between a covenantor and covenantee and there is a dispute/ambiguity, after all attempts to resolve have been unsuccessful, the text should be construed against the covenantor (because he is considered to have been the person in a position of power).
It is considered to be a common sense approach because the covenantor dictated the pace. In a conveyance, the dispute will be construed against the transferor [grantor].
In a contract of guarantee, any ambiguity should be construed against the person granting the loan- not the person receiving the loan or his guarantor.
Case: John Lee & Son Ltd v Railway Executive
(Used in Jurat)

Question 36

EXTERNAL AIDS OF INTERPRETATION

Answer 36

External Aids to Interpretation include:

Legislative and Parliamentary History – parliamentary history and debates are a rich source of law. They are aids to interpretation. Section 10 of the Interpretation Act 2009 requires judges and interpreters to use some external aids when they are (1) ascertaining the meaning of a text or (2) where the text is ambiguous. [applies to interpretation of enactments]

Text books and other literary or academic publications- these can help clear up ambiguity in a text.

Dictionary- a mere aid- does not bind the interpreter. When referring to a dictionary, must specify the name of the dictionary, editors, edition and year of publication.

Common Sense

Practice- Case: Harley v Ejura Farms Ghana Ltd [1977] 2 GLR 179- held that courts use statute law, case law and court practice.

Question 37

The internal aids of statutory interpretation i- parts of a statute and the canons of interpretation.

Answer 37

The internal aids of statutory interpretation includes parts of a statute and the canons of interpretation.

The parts of a statute are divided into the non-enabling or descriptive parts and enabling or operating parts.

Question 38

What 2 parts make up Statutory Interpretation?

Answer 38

1. Parts of the Statute; and

2. Canons of Interpretation

Question 39

Non-Enabling Parts of a Statute

Answer 39

The non-enabling parts includes

1. long title or preamble
2. Short title, heading
3. Punctuations
4. Marginal notes
5. Footnotes

Question 40

What’s the nmenomic for Non-Enabling Interpretation Aids to a Statue

Answer 40

Non- Enabling Title Her!! MF

Title (long) or Preamble
H  - Headings
! ! - Punctuations
M - Marginal Notes
F - Footnotes

Question 41

Long Title / Preamble

Answer 41

The long title also known as the preamble, helps the court to understand the object of the Act and the mischief the law seeks to cure. A preamble is the narrative part of an enactment and it gives the semblance of its objectives. Section 13 of the interpretation act considers long titles or preambles as part of the law.

Question 42

Headings

Answer 42

Headings, notes and references are intended for convenience only and DO NOT FORM PART OF THE LAW however they can be used as an aid to construction of an enactment. Where there is a conflict between the headings and provisions, the provisions prevail.

Question 43

PUNCTUATIONS

Answer 43

Punctuations sets out the meaning and structure to a sentence. It includes semi colons, colons, hyphens, footnote references and others. FORMS PART OF THE LAW and if it is not properly done, it would lead to absurdity.

Question 44

MARGINAL NOTES

Answer 44

Marginal notes and side notes also DO NOT FORM PART OF THE LAW but are referred to aids to interpretation as held in the case of Antie & Adjuwah v Ogbo

Question 45

Footnotes

Answer 45

Footnotes and end notes are found at the end of every page and chapter respectively.

Question 46

ENABLING Parts

Answer 46

The enabling parts includes schedules, provisos, saving provisions, interpretation sections and sections.

Question 47

What’s the Mnemonic for Enabling parts of a statute as aids to interpretation?

Answer 47

Enable the PISSS (sorry lol)

P - Provisos
I - Interpretation Section
S - Schedules
S - Saving Provisions
S - Sections

Question 48

Provisos

Answer 48

Provisos are PART OF THE LAW and they control the operative part. Until the condition precedent to the provisions are fulfilled or performed, the operative part would remain suspended unless there is contrary provision in the instrument or the document.
LEGAL EFFECT: Part of the law
Advantages: Provide conditions precedent to action
Disadvantges: May conflict other sections of the statue and thus cause absurdity in rare cases

Question 49

Interpretation (or Definition Sections)

Answer 49

Definition sections or interpretation sections forms part of the law and are part of the enactments of statutory documents. In Kumnipah II v Ayirebi, the Supreme court quoted with approval the common law position that where an enactment contains a definition section, it would not necessarily apply in the entire context in which a defined word may be used. The rationale is that words are to be used to give meaning to the text and where the use of the defined word would result in an absurdity, it should not be used.

LEGAL EFFECT: Forms part of the law
Adv: Provides meanings of words within the context of the statute
Disadv: Does not necessarily apply in the entire context in which such a word may be used. May result in absurdity in some instances, and if so, should not be used.

Question 50

Saving Provisions

Answer 50

Saving Provisions are provisions in an enactment used to PRESERVE RIGHTS, PRIVILEGES AND CLAIMS which could have been lost as a result of repeal or an amendment to a statue.

LEGAL EFFECT: Saving provisions form part of the law and are construed together with the other operative parts of the law as held in the case of British Airways v AG.

Question 51

Schedules

Answer 51

Schedules are part of the law or document and provides a brief description of the law. Section 119 of the Courts Act provides that schedules can used as an aid to interpretation

LEGAL EFFECT: Schedules are PART OF THE LAW