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Introduction to the Law of Interpretation
Introduction:
This note will discuss the meaning of interpretation, the main purpose of interpretation, why the courts interpret, the legal basis of the courts’ power to interpret, and the scope of the law of interpretation.
Meaning of Interpretation:
In Black’s Law Dictionary, 9th ed., interpretation is defined as
The process of determining what something, esp. the law or a legal document, means; the ascertainment of meaning to be given to words or other manifestations of intention.
Barak, in “Purposive Interpretation in Law”, 2005 defined interpretation as follows:
Legal interpretation is a rational activity that gives meaning to a legal text.
Edzie, in “Modern Purposive Approach to Interpretation in Ghana, at page 24, defined interpretation as:
A process of ascertaining the meaning of language used in a provision of a DSC [Documents, Statutes, and Constitutions] or part thereof and the determination subject to any rule of law, of the scope and legal effect of the provision.
In the case of Agyei Twum v. Attorney-General and Akwetey [2005–2006] SCGLR 732, interpretation was defined as follows:
Judicial interpretation is about determining the legal meaning of a set of words. A set of words will often raise a range of possible semantic meanings and the task of judicial interpretation is to select which of these semantic meanings should be accepted as the legal meaning of the text.
The term “interpretation” has sometimes been used interchangeably with “construction.” In the case of Chatenay v. Brazilian Submarine Telegraph Co. [1891] 1 Q.B. 79 at p. 85, C.A, Lindley L.J. defined construction as follows:
The expression 'construction,' as applied to a document, at all events as used by English lawyers, includes two things: first, the meaning of the words; and, secondly, their legal effect, or the effect which is to be given to them. The meaning of the words I take to be a question of fact in all cases, whether we are dealing with a poem or a legal document. The effect of the words is a question of law.
These various definitions have the following common elements:
These require further discussions.
1. Interpretation as a Process:
Interpretation is not arbitrary or a matter of chance. Rather, it is a process that is guided by legal rules. For this reason, authors like Barak expressly mention that it is a rational process. Per the learned author at page 3,
The requirement of rationality is key—a coin toss is not interpretive activity. Interpretation is an intellectual activity, concerned with determining the normative message that arises from the text.
The effect of thinking of interpretation as a rational process is that if the rules of interpretation are followed by several people, they will most likely ascribe the same meaning to the words being interpreted; unlike a coin toss that may produce different results. For instance, in the case of Kwakye v. Attorney-General [1981] GLR 944-1071, the majority of their lordships came to similar conclusions on the meaning of “purported” after going through the process of interpretation.
2. Ascertainment of Meaning:
Interpretation is a means to an end, which is finding meaning. This can be the meaning of a word as was the case in the cases of Appiah v. Biani [1991] 1 GLR 155-164 and In Re Dadzie (Decd); Dadzie and Another v. Addison and Another [1999-2000] 2 GLR 291, where the court had to interpret the meaning of the words “house” and “shares” respectively. The interpretive process could also be aimed at finding the meaning of a sentence or phrase (such as in the case of Attorney-General v. Prince Ernest Augustus of Hanover [1957] 1 All ER 49, where the court had to interpret the meaning of “in Your Majesties Lifetime”), paragraph, or all the text in an instrument (which could be Constitution, statute, will, contract, among others).
While we speak of meaning as if there is one meaning that can be ascribed to a text, it is essential to note that under the law of interpretation, the same word, phrase, or sentence can have several meanings. To illustrate, consider the sentence “X is hot.” Here, the meaning of the sentence depends on what meaning is given to hot. The following meanings are possible:
In the law of interpretation, the above meanings may form part of any of the following meanings, known as the meaning of language:
These meanings are now discussed.
1. Ordinary, Natural, or Plain Meaning:
This is the meaning that is instinctively or conventionally ascribed to a text by persons who are not influenced by principles of interpretation. It is the meaning of the word that conventionally or immediately comes to mind when it is mentioned within a particular context. In the case of The Republic V. Fast Track High Court, Accra & Others [21/12/2007] Civil Motion No. J5/10/2007, Brobbey JSC defined ordinary meaning as follows:
What is meant by giving a word its ordinary meaning? It is not the meaning that a person will find by a research into technical books or arcane sources. That will be far beyond the comprehension of the ordinary man. The ordinary meaning will be the meaning which any ordinary man on the street will understand by that word or the sense which he/she will attribute to that word which is the sense in which it will be used by that ordinary man. In the normal run of affairs, the ordinary man will approach the dictionary for the meaning if he has any doubt about the meaning of the word.
In the case of Eric Kwame Amoah v. Ben Owusu Domena Civil Appeal No. J4/13/2014, the Supreme Court, in discussing the element of defamation that the words spoken must be defamatory in their natural sense, cited Jones v. Skelton (1963) 1 W.L.R. 1362, at p. 1370-1371, where ordinary and natural meaning was defined as follows:
…the ordinary and natural meaning may…include any implication or inference which a reasonable reader guided not by any special but only by general knowledge, and not fettered by any strict legal rules of construction would draw from the words.
To illustrate, consider the following example:
Offices established by the current government shall cease to exist after the termination of their tenure.
For most people, the offices that will be affected are those “created”, “founded”, or “put in place” by the current government while offices that were in existence prior to the current government’s assumption of office, will not be affected. This understanding flows from the ordinary meaning given to the word “established”. In the case of Sallah v. Attorney-General 1970, however, the Attorney General forcefully argued that the word “established”, as used in Section 9(1)(a) of the Transitional Provisions in the 1969 Constitution with reference to offices, included offices which were in existence prior to the coming into power of the National Liberation Council. His reasoning was that the National Liberation Council allowed those pre-existing offices to continue to exist, and could, therefore, be said to have established those offices. This contention was rejected by the Supreme Court. Their lordships upheld the ordinary meaning of the word. Per Apaloo J.A.
I believe members of the Constituent Assembly approached and performed their task as practical men of business guided by the experience of our recent past and informed by an understanding of ordinary English words. I cannot accept that in using the word "establish" in section 9(1) they had in mind any juristic theories on the principle of legitimacy. If that be right, it would be, in my opinion, subversive of their intention to interpret [sic] their declared will by reference to any such theory.
Therefore, the word “established”, being an ordinary English word, was given its ordinary meaning.
In arriving at the ordinary meaning of a word, it is common for the court to simply make reference to a dictionary (not necessarily a legal dictionary). This was seen in the cases of Kwakye v. Attorney-General (supra), Appiah v. Biani [1991] 1 GLR 155-164, among others.
From the plain meaning, we get what is known as the plain meaning rule. Per this rule, no interpretation should be carried out if the words of an instrument are clear, precise, and unambiguous on their face. However, others have argued that before it can be concluded that the words used in an instrument are plain and unambiguous, there must first be interpretation. This latter view was adopted by Date-Bah in Agyei Twum v. Attorney-General and Akwetey [2005–2006] SCGLR 732. He said:
All legal texts which are placed before a court have to be subjected to this process of judicial interpretation, even if their meaning appears to be plain. This is because the plainness of the meaning is itself a conclusion reached by the relevant judge after a process of interpretation. That process need not be laboured or elaborate in every context. In some contexts, the legal meaning of words concerned can be determined simply and quickly. The words whose meaning become contentious tend to be those in exceptional cases where the legal meaning cannot be simply and quickly determined.
It is submitted that there is merit in this position. A word may appear to be clear but still be subject to multiple interpretations.
2. Literal Meaning:
This bears close similarities with the ordinary meaning. However, the essential distinction is that the ordinary meaning may take the context in which the word is used into consideration before determining the meaning of the word, while the literal typically meaning does not. Also, the ordinary meaning takes into account the common usage and understanding of the word, while the literal meaning simply looks at a dictionary definition.
For example, if a law is made that says “all owners of vehicles will pay tax,” the ordinary meaning of “vehicles” will include trucks, cars, buses, among others. It will also exclude things like toy cars, bicycles, trollies, among others. The literal meaning, however, will include everything that can be used as a means of carrying or transporting something. This will include wheelchairs, trollies, among others.
3. Technical Meaning:
This is the meaning that is assigned to a word by a specialized group of people, often within a particular profession, trade, or field of study. Such meanings may differ from the word’s ordinary or general usage. For instance, if a lawyer says, “the lease will determine in five years,” the word “determine” does not mean “decide” (as in ordinary usage), but rather “come to an end” or “terminate.” This specialized meaning is understood within the legal profession.
In the case of Unwin v Hanson 1891] 2 Q.B. 115, Lord Esher illustrated how ordinary words like waist and skin can be given different meanings in some occupations or trade:
If the Act is directed to dealing with matter affecting everybody generally, the words used have the meaning attached to them in the common and ordinary use of language. If the Act is one passed with reference to a particular trade, business, or transaction, and words are used which everybody conversant with that trade, business, or transaction, knows and understands to have a particular meaning in it, then the words are to be construed as having that particular meaning, though it may differ from the common or ordinary meaning of the words…For instance, the ‘waist’ or the ‘skin’ are well-known terms as applied to a ship, and nobody would think of their meaning the waist or the skin of a person when they are used in an Act of Parliament dealing with ships.
Also, the word “frustration” means a feeling of annoyance or anger. However, when used in Part I of the Contracts Act, 1960 (Act 25), it referred to one of the means by which a contract is discharged. In the case of Barclays Bank (Ghana) Ltd. v. Sakari [1997-98] 1 GLR 746 – 767, the Supreme Court described frustration as follows:
Briefly, frustration occurs where an external event of some kind, which is not the responsibility of either party, renders further performance of a contract impossible: see Taylor v Caldwell (1863) 122 ER 309, or radically different from what had been contracted for see: Davis Contractors v Fareham UDC [1956] 2 All ER 145, HL.
Thus, under the law of contract, or in an instrument meant to regulate contracts, the word “frustration” cannot be given its ordinary or literal meaning. Instead, it is given its specialised meaning.
Among legal professionals, the word “neighbour” may receive a restricted conception. In everyday life, a neighbour is someone who lives close to one’s house. Under the law of tort, however, a neighbour is understood to be “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question” (per Lord Atkin in Donoghue v Stevenson [1932] A.C. 562). With this conception, it is, therefore, possible for persons who do not live in close proximity to each other to be considered neighbours.
4. Secondary meaning
This is the less usual meaning of a word in a particular linguistic community. For example, consider the sentence:
“All persons who are gay shall register with the facility.”
The ordinary or literal meaning of the word gay is homosexual. With this meaning, all persons who are homosexual are to register with the facility. However, the word “gay” can equally mean “happily excited” (per Merriam Webster). With this meaning, all persons who are happily excited should register with the facility.
Note that the secondary meaning does not mean opposite meaning. It is simply the less usual meaning of a word.
5. Legal Meaning:
This is the meaning of a word that is adopted after the application of the rules of interpretation. Here, the focus is often on the intention of the maker of the instrument being interpreted.
6. Fringe Meaning:
This is the meaning that is possible by overly extending the meaning of a word beyond its ordinary usage. For example, in the case of Commissioners of Customs and Excise v Savoy Hotel Ltd [1966] 1 WLR 948, the issue was whether natural juice extracted by hand from oranges was “manufactured beverages.” If it was, then it will be subject to tax as the Act provided that
Manufactured beverages, including fruit juices and bottled waters, and syrups, concentrates, essences, powders, crystals or other products for the preparation of beverages.
The court interpreted the meaning of including as follows:
‘“Including” is a word to which parliamentary draftsmen seem considerably addicted: one reason for this may be that in law it can have, according to its context, not only one or other of simple but in essence quite differing effects (for instance, in relation to the words that follow it may be found to have been used simply to enlarge, to limit, to define exhaustively or for the avoidance of doubts to repeat the preceding word or phrase), but it may also be used to secure on one and the same occasion more than one of those effects, thus putting the draftsman, but not necessarily the court, in a happy position.
The court concluded that in the present case, the word, “including”, as used in the Act was not intended to enlarge the definition of manufactured beverages so far as to encompass freshly squeezed orange juice.
7. Explicit Meaning:
This is the meaning transmitted to the reader through the dictionary, literal, or ordinary meaning of the language as understood within the relevant textual context. It can also be understood as the meaning that one chooses from the range of semantics provided by a dictionary which gives the actual meaning of the word within the context.
To illustrate, consider the following sentence:
The lease shall be determined upon the expiration of 5 years if the lessee fails to exercise his right to renew.
The word, “determined”, is capable of the following dictionary meanings (per Merriam Webster):
From the above, it is only the meaning in point h that fits the linguistic and situational context. With that meaning, the sentence is saying that a leasehold interest shall terminate or come to an end upon the expiration of 5 years if the lessee fails to renew.
Also, consider this sentence:
The bank was crowded on Friday afternoon and customers struggled to withdraw their money.
Here, the dictionary meaning of bank includes:
From these meanings, it is only point d that fits in the linguistic and situational context.
In the case of Asare v. Attorney General and Another [2020] GHASC 50 (28 July 2020), the plaintiff invoked the original jurisdiction of the Supreme Court under Articles 2(1) and 130(1) for a declaration that the activities of the second defendant are inconsistent with Articles 25(2) and 296(b) of the 1992 Constitution. He argued that Article 25(2) empowers all persons to establish and maintain “a private school or schools at all levels”. However, the second defendant has created a monopoly over legal education by being the only body that offers the Professional Law Course at the Ghana School of Law. When it was argued by the defendant that the supreme court did not have jurisdiction, the plaintiff argued that he and the 2nd defendant were not ad idem on the meaning of school or schools at all levels. In dismissing this contention, the court cited the ratio of Adinyira JSC in the case of James Kwabena Bomfeh Jnr. v. Attorney-General, Writ No 31/14/17, unreported judgment of Supreme Court dated 23rd January 2019:
A Constitutional issue is not raised on account of a Plaintiff’s absurd, strained and farfetched understanding of clear provisions in the Constitution. For a person to assert a manifestly absurd meaning contrary to the very explicit meaning and effect of clear words in the Constitution does not mean that a genuine issue of interpretation of some relevant Constitutional provision has arisen.
The court, then, concluded that its original jurisdiction will not be invoked because “a party places an absurd meaning on words or phrases on constitutional provisions.” When a word is used in a sentence, some of the meanings of that word will produce absurd meanings. The court will not consider these meanings as appropriate meanings of the word.
8. Implicit Meaning:
This is the meaning which the reader gets upon reading a text even though it is not part of the dictionary meaning of language. It is said to be a suggestive meaning to the reader because itis suggested though not directly expressed. Consider a provision that says:
Whoever stabs or wounds another shall, on conviction, be liable to five years’ imprisonment.
Here, “wounds” will include any minor injury such as bruises from from pouring hot water on someone. But in this context, the word “stab” appears alongside “wound.” Because stabbing is a serious, penetrating injury, the word “wound” would take its coloration from its companion term “stab”. Thus, the implicit meaning of the provision is that it punishes serious bodily injuries, not trivial or superficial ones.
9. Implied Meaning:
First, this meaning could be said to be the same as the implicit meaning.
Second, it is the meaning used to fill gaps in a text. Here, the courts may read words into a text if the words are deemed necessarily implied to give full meaning to the text. The court may also take words out of a text to give meaning to the text. For instance, in the case of The Republic v. The High Court And Amalgamated Bank Limited Ex Parte: Allgate Company Ltd Civil Motion No. J5/22/2008, the court had to determine the effect of Order 81 of the of the High Court (Civil Procedure) Rules 2004 (CI 47) which provides that
Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of any thing done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall not be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order in it.
On reading the entire provision, the court was satisfied that the intention of the draftsman was to recognise infringements of C.I. 47 as mere irregularities that do not nullify proceedings. However, the actual provision said such violations “shall not be treated as an irregularity.” The Supreme Court noted that
What is probably intended to be covered by Order 81 are irregularities, short of situations of want of jurisdiction or infringements of statutes other the High Court Rules. Such irregularities are not to nullify automatically the proceedings that follow them. In this connection, it should be pointed out that the word “not” in the clause “the failure shall not be treated as an irregularity” in Order 81(1) is probably an error in drafting or a typographical mistake. A comparison between our Order 81 and Order 2, rule 1 of the Rules of the Supreme Court (Rev. 1965) of England and provisions in pari materia from Canada and Singapore confirms this error.
Here, there was an implicit meaning of the provision that was not captured by its express words. The court still adopted that implicit meaning over what is expressly conveyed.
Main Purpose of Interpretation:
The main purpose of interpretation is to find the intention of the author of an instrument. If the instrument is a will, the main purpose of interpreting it is to give effect to the intentions of the testator. If the instrument is a contract, the main purpose of interpreting it is to give effect to the intentions of the parties to the contract. If the instrument is a statute, the main purpose of interpreting it is to give effect to the intentions of the Legislature.
Several cases support the position that the main purpose of interpretation is to find the intention of the author(s). In the case of Seaford Court Estates Ltd v. Asher [1949] 2 KB 481, Lord Denning recognised that the legislature may be limited by the English language to draft very precise tax provisions, and it is up to the courts to provide assistance to the legislature via interpretation. He said:
Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticized. A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give "force and life" to the intention of the legislature. [emphasis added].
In the case of Asare v. Attorney General (Writ NO. 3/2002) 28th January, 2004 (swearing in case), Kludze JSC advanced that
…we do not construe words in the abstract but within the context in which they are used. Language is a tool for expressing the wishes of the speaker, author or writer. Therefore, regardless of the theoretical classification of the methodology of construction, the fundamental rule is for the court to construe every enactment with the purpose of effectuating the true intent of the lawmaker... All other canons of construction have the ultimate purpose of achieving this goal.
Finally, in the case of Corocraft Ltd v. Pan American Inc. [1969] 1 QB 622, the court said:
The duty of the courts is to ascertain and give effect to the will of Parliament as expressed in its enactment…They [referring to judges] are not legislators, but finishers, refiners and polishers of legislation which comes to them in a state requiring varying degrees of further processing.
In the cases of Appiah v. Biani [1991] 1 GLR 155-164, Attorney-General v. Prince Ernest Augustus of Hanover [1957] 1 All ER 49, and In Re Dadzie (Decd); Dadzie and Another v. Addison and Another [1999-2000] 2 GLR 291, the courts interpreted to give effect to the intention of the authors of various instruments. In Appiah v. Biani (supra), for instance, Section 4 of the Intestate Succession Law, 1985 (PNDCL 111) provided that
Where the estate includes only one house the surviving spouse or child or both of them, as the case may be, shall be entitled to that house and where it devolves to both spouse and child, they shall hold it as tenants-in-common.
The Act did not define the meaning of “house.” At the time of the death of one Joseph Kwame Appiah, he had an uncompleted storey building which had reached lintel level. His wife, the plaintiff, sought to have the building vested in her pursuant to Section 4 (supra). However, the defendant, who is the mother of the late Joseph Kwame Appiah, resisted this, arguing that the uncompleted building was not a house. The court noted that the purpose or intention of PNDCL 111 was to provide shelter for a surviving spouse and the children of the deceased and to start them off financially well. In light of this purpose, it will be wrong to hold that an uncompleted house is not a house for the purposes of the Act.
In Attorney-General v. Prince Ernest Augustus of Hanover (supra), the Act of 4 Anne c 4 of 1705 provided in its preamble that persons who lineally descended from Princess Sophia, the Electress and Dutchess Dowager of Hanover, should be naturalised and deemed as subjects of England “in Your Majesties Life time [referring to Queen Anne].” However, in the enacting words of the same Act, it was provided that the children of Princess Sophia, and all persons lineally descending from her, “born or hereafter to be born”, shall be deemed to be natural subjects of England. The phrase “in your majesties lifetime” could mean any of the following:
The court applied the rules of interpretation and adopted the second meaning. In the opinion of their lordships, Parliament intended to allow all descendants of Princess Sophia to naturalise, and that this was reflected in the words “born or hereafter to be born.”
Finally, in In Re Dadzie (Decd); Dadzie and Another v. Addison and Another (supra), the testator incorporated Lagoonside Hotel Limited and provided in his will that various persons should be given shares. However, at the time of his death, the hotel business had collapsed and its building had been rented out. This made it impractical for the beneficiaries to have shares in a non-existent business. In the opinion of the court, the testator intended the beneficiaries to enjoy whatever financial benefits accrued from the running of the hotel business. However, because that business had collapsed and what was left was only the hotel building, 'shares' was interpreted to mean a share of the rental income that accrued from the hotel building.
Why is there a Need to Interpret?
1. To Resolve Ambiguity:
The intention of an author of an instrument will have to be communicated before it can be known because the devil himself knows not the mind of man. In communicating, words are used. But these words have been shown in our discussion above to be capable of multiple meanings. In such cases, the courts interpret to determine which meaning of a word should prevail in order to give effect to the intention of the legislature.
That the courts interpret to resolve ambiguities is severally supported. For instance, in the case of Republic v. Special Tribunal; Ex Parte Akosah [1980] GLR 592 at 605, CA, it was stated that an issue of interpretation arises
(a) where the words of the provision are imprecise or unclear, or ambiguous. Put in another way, it arises if one party invites the court to declare that the words of the article have a double-meaning or are obscure or else mean something different from or more than what they say;
(b) where rival meanings have been placed by the litigants on the words of any provision of the Constitution;
In the case of Bimpong-Buta v. General Legal Council and Others [2003-2005] 1 GLR 738, the Supreme Court refused to interpret Sections 8(1) and (7) of the transitional provisions of the 1992 Constitution because the words used therein were
…precise, clear and unambiguous. They are not obscure or in any manner capable of any meaning other than what they say. None of the parties hereto has placed or attempted to place any meaning on these words to rival that of another party; nor is there any conflict between these provisions and any other provisions of the Constitution, 1992. The plaintiff simply wants the provisions to be applied. There is, therefore, nothing in these provisions for us to interpret.
2. To Correct Mistakes:
Beyond using ambiguous language, the author of an instrument may omit some words or add words that render some provisions in the instrument unclear. For instance, in the case of Agyei Twum v. Attorney-General and Akwetey (supra), the Supreme Court noted that the process for the removal of a justice of the Supreme Court other than the chief justice, required the establishment of a prima facie case; however, there was no such requirement for the removal of the chief justice. The court noted that the case of Sasu v. Amua Sakyi [1987-88] 1 GLR 506 is authority that in interpreting an instrument, words can be struck out and words can be substituted into a statute under the following three instances:
where without such substitution the provision is unintelligible or absurd or totally unreasonable; where it is unworkable; and where it is totally irreconcilable with the plain intention shewn by the rest of the ... statute.
The court then proceeded to hold that the removal of the chief justice requires an establishment of a prima facie case. It said:
A comparative examination of the relevant provisions dealing with petitions for the removal of other Superior Court Justices (in articles 146(3) and 146(4)) reveals an omission in the plain language of article 146(6) relating to the impeachment process of the Chief Justice which, in my view, could not have been intended by the framers of the Constitution.
…
No reasonable interpreter could reach the conclusion that its purpose also includes providing a forum for the ventilation of frivolous or vexatious petitions.
Here, the court inserted some provisions into the constitution through interpretation.
Also, see the case of Republic v. High Court, Accra, Ex Parte Adjei [1984-86] 2 GLR 511-561, where the court held that the word “thereof” in Article 115(2) of the Constitution, 1979 was a drafting error and that interpretation could be used to correct that error.
3. Cater for New Situations:
After an instrument is prepared with a particular intention, new situations may arise that are not adequately dealt with by the instrument. In such situations, the court may need to interpret the instrument in a manner that allows it to cater for the new situations. Hart, in “The Concept of Law”, 1994, succinctly captured the impossibility of an author of an instrument to cater for all future scenarios:
…because we are men, not gods ... we labour under two connected handicaps whenever we seek to regulate, unambiguously and in advance, some sphere of conduct by means of general standards to be used without further official direction on particular occasions. The first handicap is our relative ignorance of fact: the second is our relative indeterminacy of aim. If the world in which we live were characterized only by a finite number of features, and these together with all the modes in which they could combine were known to us, then provision could be made in advance for every possibility.
Consider the case of Smith v Hughes [1960] 2 ALL ER 859. In that case, the appellant was a prostitute who stood on a balcony and attracted the attention of men passing in the street by tapping on the balcony railing with a metal object or hissing at them as they passed in the street beneath her and asking, “Would you like to come up here a little while?” after gaining their attention. She was charged with soliciting in a street contrary to Section 1(1) of the Street Offences Act, 1959, which provided that “It shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution.” On appeal, she contended that her balcony was not "in a street" within the meaning of Section 1 (1) of the Street Offences Act, 1959, and that accordingly no offence had been committed. The court noted that the intention of Parliament was to keep the streets clean of prostitutes and to allow people pass without being molested or solicited by common prostitutes. Consequently, it did not matter that the appellant was not in the street at the time of the solicitation. It delivered itself as follows:
Everybody knows that this was an Act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes. Viewed in that way, it can matter little whether the prostitute is soliciting while in the street or is standing in a doorway or on a balcony, or at a window, or whether the window is shut or open or half open; in each case her solicitation is projected to and addressed to somebody walking in the street. For my part, I am content to base my decision on that ground and that ground alone. I think the magistrate came to a correct conclusion in each case, and that these appeals should be dismissed.
Again, consider the case of In Re Dadzie (Decd); Dadzie and Another v. Addison and Another (supra), where the court had to interpreted shares to mean a share in rental income after the collapse of a hotel business.
Legal Basis of Judicial Interpretation:
The courts often interpret various documents such as wills, contracts, statutes, and even the constitution. The essential question is, what gives them the power to interpret these documents? Three sources may be pointed to:
1. The Constitution
Particularly on constitutional interpretation, this power is exclusively vested in the Supreme Court by virtue of Article 130(1)(a) of the Constitution, 1992, which provides that the Supreme Court shall have exclusive jurisdiction in all matters relating to the interpretation of the Constitution. There is often a question whether this exclusive jurisdiction covers statutory interpretation. The position is that it does not. In the case of The Republic v. Fast Track High Court, Accra & Others [21/12/2007], the Supreme Court, speaking through Date-Bah, clarified that it is not the function of the Supreme Court to interpret statutes:
In these proceedings, the jurisdiction of the Supreme Court is restricted to interpreting the meaning of the constitutional provision in question. It is not the Supreme Court's function to interpret any related statutory language or the language of any constitutional instrument, except to the extent that it sheds light on the interpretation of the constitutional language.
However, this is not to say that the Supreme Court never interprets statutes. It can still do so whenever the meaning of the provisions of a statute are in need of interpretation. What this position means is that the original jurisdiction of the Supreme Court cannot be invoked simply to interpret a statute.
2. The Interpretation Act:
In Section 10(4) of the Interpretation Act, 2009 (Act 792), it is provided that
(4) Without prejudice to any other provision of this section, a Court shall construe or interpret a provision of the Constitution or any other law in a manner
First, notice the generic use of the term “court.” Second, notice that the power to interpret is with respect to the constitution or any other law. Under Article 11(1)(b) of the 1992 Constitution, enactments made by or under the authority of Parliament are laws. The combined effect of Section 10(4) of Act 792 and Article 11(1)(b) is that the courts have the power to interpret statutes.
3. Jurisdiction of the Court to Determine Civil and Criminal Disputes:
Further, it may be said that the jurisdiction of the courts to interpret stems from their civil and criminal jurisdiction. For instance, a court with a jurisdiction to determine civil matters may need to interpret instruments and legal texts such as contracts, statutes, wills, among others. Interpretation is, therefore, an inherent and indispensable aspect of the court’s judicial function.
Scope of the Law of Interpretation:
In this course, our focus will be on:
Speed
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