[1] The
lawyer, like the theologian, is faced with a number of texts that he regards as
authoritative and that are supposed to settle any question that can conceivably
arise. Each text was once drawn up by someone who presumably meant something by
it; once the document left its author’s
hand, it is the document that matters, not any unexpressed meaning that
still remains in the author’s mind. For the lawyers, the words of the document are authoritative as words and there
is no possibility of obtaining further information from the author, either
because the author is dead or because the rules of evidence precluding
reference to him, or because a reference to the author will infringe a rule
requiring a document to be in a certain
form. It is this inability to refer to the author, couple with the
inherent vagueness of language, that makes interpretation such as a perenial
source of legal difficult[2]
Abstrct
Recently, the
National Assembly passed the Amendment Act to amend some portion of the 1999 Constitution
of the Federal Republic of Nigeria 1999, pursuant to the amendment , the
National Assembly received support of 2/3 majority of both the upper and lower Houses of the National assembly as well as 2/3
majority of all the 36 state Houses of Assembly. After receiving the required
2/3 majority of all the stake holders in the amendment procudure, the Amenment
Act was passed without presidential assent as provided by section 9 of the 1999
Constitution. As a result of the passage of the amandment of the constitution,
a raging controversy engulffed the nation, as to whether the passage of Constitutional
Amendment Act is lawful, without presidential assent. Opinion is now divided
between jurists and political analyst as to the propriety or otherwise of the
amendment. While some claimed the amendment without presidential assent is null
and void, others are of the opinion that the amendment isvalid and regular.
This paper seeks to analyse the procedures for amendment of the Nigeria
constitution with a view of adressing whether the amendment requires
presidential assent or not. Incidentally,
this controversy has provoked litigation as to the proper interpretation of
section 9 of the 1999 constitution. Emphasis must be made here that the writer
of this article does not intend to pre determine the issues relating to the
subject matter under discussion since the matter is now pending in court. The
article is for academic purpose only. In any case the writer relies on the
dictum of Chigbue J in BelloV Sanni[3]
where His lordship stated as follows:
Contempt is not
committed unless there is real and substantial prejudice to pending litigation
which is actively in suit before the court. Matters of public interest should
be open to discussion notwithstanding the issue of a writ; it cannot be stopped
by the magic word ‘subjudice’
1.0 Introduction
Government,
according to professor Nwabueze is
universally accepted to be a necessity,
since man cannot fully realise hinself-his creativity, his diginity and his
whole personAlity-except within an ordered society.[4]
Yet the necessity for government creates its own for man., the problem of how
to limit the arbitrariness inherent in government, and to ensure that its
powers are used for the good of the society. It is this limitation on the
arbitrariness of political power that is expressed in the concept of the
constitutional government. Constitutional government recognises the neccesity
for government but insists upon a limitation being placed on upon its power. It
connotes in essence therefore a limitation on government, it is antithesis of
arbitrary rule, its opposite is despotic government, the government of will
instead of law.
Be
it Federal or unitary system of government, the procedures fot the alteration
of the constitution is determined by the constitution itself. According to
kelsen’s theory of law, every law derives its legitimacy from another legal norm
above it[5],
untill all the norms within the jurisdiction are vertically connected in
hierarchy to the ultimate norm known as the groundnorm. This initial hypothesis cannot find its definition
within the law itself which means that the groundnorm is valid on itself not
subject to any other Norn. In explaining this theory, Kelsen went further to
assert as follows:
If we asked the question of the validity of the
constitution, we may perhaps , discover an older constitution, that means the
validity of the existing constitution is justified by the fact that it was
creared according to the rules of an earlier constitution by way of
constitutional amendment . In this way, we eventually arrive at a historically
first constitution that cannot have been created in this way and whose
validity, therefore , cannot be traced back to a positive norm created by a
legal authority; we arrive, instead, at a constitution which became valid in a
revolutionary way, that is, either by
breach of a former constitution or for a territory that formerly was not the
sphere of validity of a constitution and of a national legal order based on it[6]
The
above treatise according to Nnamani[7],
tends to justif the universal legal approach which has crystalised into the
doctrine of constitutional supremacy. Constitutional supremacy, it has been stressed,
essentially derives from the fact that the constitution is brought into
existence by the general will of the
people.[8]Nwabueze
in his book [9] justified constitutional supremacy as follows:
The constitution is not only law; it is the supreme
law of the land. Its supremacy expresses the relations between it and the law
making organ of the atate, it is the relations of superior to an inferior. The
constitution is supreme over the legislature because it controls the latter’s
law making functions. The implication of the supremacy of the constitution is
that sovereignity of the legislature is not the highest norm of the legal oeder
in Nigeria as it is in the united Kingdom[10]
The
above principle, of constitutional supremacy, prosupposes that no constitution
is alterable, except in compliance with the provision, of the same
constitution, on the proper procedure for its amendment. The procedures for
amendment of Nigeria constitution is provided for in Section 9 of the Constitution
of the Federal Republic of Nigeria 1999[11],
which provides as follow:
9 (1) he
national Assembly may subject to the provision of this section alter any of the provision of this
constitution
(2)An Act of
the National Assembly for the alteration of this constitution , not being an
Act to which section 8 of this
constitution applies shall not be passed in either house of the National
Assembly , unless the proposal is supported by the votes of not less than two
third majority of all menbers of that House and approved by resolution of the
houses of Assembly of not less than two-third of all the states,
(3) An act of the National Assembly for the purpose
of altering the provision of this section, , section 8 , or chapter IV of this
constitution shall not be passed by either house of the natonal Assembly unless the proposal is approved by the votes
of not less than four-fifths majority of all the menbers of each House and also
approved by resolution of the Houses of
Assembly of not less than two-third of
all the states.
In
other to appreciate this discourse; it will not be out a place to discuss,
albeit cursory, the cannons of interpretation of statutes to properly elucidate
the subject matter under discussion and appreciate same.
2.0 Rules or Canons of Interpretation
Legislation
is the responsibility of the legislature and it is the legislature that must
take that ultimate blame if its products are obscure, turgid, laconic or are
otherwise wanting[12]
The discovering of the legislative intention through construction of statute
has until date remains a subject generally controversial and disputes among
legal scholars[13]
Though the legislature is to be blamed for poor drafted legislation,
nevertheless, the burden of construing such legislation rest on the court. In
doing so, the court relies on the rules or cannon of interpretation. It should
be noted however, that referring to this Cannons of interpretation as rules
seems a misnomer, this is because the word ‘rules’ gives the impression that
there is logical consistency in its application and once followed the ultimate
result will be achieved. In practice, the reverse is the case, because the
rules are devoid of any logical consistency, they are equally too general to be
called principles and neither do they have little or any ethical consideration,
it is as a result of this fluid in the ascription of rules to the cannons of
interpretation that a writer stated thus[14]
For a start, they used the word rule and this gives the impression that
if you follow a particular pattern, you will not go wrong. They also have an
aura of scientific, authenticity about them when the reality is that
interpreting any document is more of an art than science.
It
is as a result of the rules of
interpretation not been static that made
the Learned Justice of the Supreme Court Chukwumah Eneh JSC in Obi V. INEC[15]
as follows.
In order to determine the meaning of any expression or
phrase in an enactment, the basic question is what is the natural, ordinary or
grammatical meaning of the words used in the
enactment in the context in the statute
and it is only when the ordinary meaning of those words leads to some
results which cannot reasonably be
supposed to have been the intention of the lawmaker that it becomes proper to
look for some other possible meaning of the words concerned:[16]
A
review of available literature on interpretation of statute has shown that
originally there were three main rules of interpretation of statute, these are;
Literal rules, Golden rule and mischief rules,[17]
But today apart from the above mentioned three the courts have developed new
rules of construction of statute to meet the current trends in judicial
process, these new rules includes Ejusdem
generis rules, expressio unuis est
exclusio uteriuos. Others include the purpose rule, Benefit rule as finally
the utres Magis valeat quam. We will
now consider these rules of
construction, seriatim
(a) The
literal rule.
The
literal rule of interpretation emerged at the time when parliament itself was
established as the supreme law making body[18]
according to Tinder C.J. in Sussex
peerage case[19].
The only rule for construction of Parliament is that they should be
construed according to the intent of
parliament which passed the Act, if the words of statutes are in themselves
precise and unambiguous then no more can be necessary than to expound those
words in that natural and ordinary sense. The words themselves alone do in such
a case best declare the intention of the law giver.
Based
on the above, it is pertinent to state that the general rules of construction
of statute which is also applicable to interpretation of constitution, is that,
where words used in a statute which have not acquire technical meaning are
clear and unambiguous the ordinary and natural meaning of words should be
applied. This is the primary or literal rule of construction. But where the
application of the ordinary and natural meaning of the words will result in
absurdity, the court may adopt other rules of construction in order to resolve
the ambiguity.
According
to the supreme court in Ehuwa V Ondo State Independent Electoral Commission
(OSIEC)[20]
The proper approaches to the interpretations of clear words of a
statute is to follow them in their simple grammatical and ordinary meaning
rather than look further because that is what prima facie gives them their most reliable meaning. There
is generally, also time construction of constitutional provisions if they are
clear and unambiguous even when it is necessary to give them a liberal or broad
interpretation[21]
In
Obi v INEC[22],
it was held as follows:
In the
exercise of its interpretative jurisdiction, the court must only interpret the
words of a statute or constitutional provision where they are clear according
to their ordinary and grammatical meaning without any coloration.[23].
It
should be noted however that ascertaining the ordinary and natural meaning of words are usually not simple, this
is because words by nature are evasive,
slippery and are not even instrument of mathematical precision consequently
strength formed results must not be accepted for a concept which does not posses a feature of
certainty.
Eqally
too, words can be ascribed three different meaning as the usual or ordinary
meaning, the intended meaning and the comprehended meaning. The question that
usually arises in this melee is which of
these meaning should be ascribed to a word when used in a statute? It is as a
result of this uncertainly in ascribing an ordinary meaning to a word that
necessitated Lord Simon in Masunsell v
Ollins[24] to
deploy a more relative approach to ordinary meaning of words, According to the
law Lord,
Statutory language like all language is capable of an almost infinite
graduation of registrar, ie it will be used at that semantic level appropriate
to the subject matter and to the audience address (The man in the street
lawyer, merchants etc). it is the duty of a court of construction to turn to such register and so to interpret the
statutory language as to give to it the primary meaning which is appropriate in
the register (unless it is clear that some other meaning must be given in order
to carry out the statutory purpose or to avoid injustice anomaly absord it or
contradiction) in either words, statutory language must always be given
presumptively the circumstances.
It is a result of the chamelonic nature of words
and difficulty in ascribing ordinary literal meaning to words of statute that Iguh JSC in
AG. Fedration v Guardian Newspaper[25]
to state that anywhere the words used or
the provision of any section of the law are clear and unambiquos they must be given their ordinary meaning
unless of course this would lead to absurd or be Iin conflict with other
provision of the statute or law.[26].
A court of law is not to ascribe meaning to clear, plain and unambiguous
provision of a statute in order to make such provision conform to the courts
view of their meaning or what they ought to be, where the assumption of literal
rule of interpretation will lead to ambiguity or absurdity when reference would
be place on other modes of
interpretation. This brings us to the Golden rule of interpretation[27]
(b) Golden rule
The
Golden rule is a slight modification of the literal rule, it originated from
the dictum of Park Baron in the
classical cases of Beck v Smith[28]
where he stated that the rule by which we are to be guided in construing Acts of Parliament is to look at the precise
words, and to construe them in their ordinary sence, unless it would lead to
any absurdity or manifest injustice and if it should, so to vary and modify
them as to arrest that which it certainly could not have been the intention of
the legislative should be done. Equally too, in Perry v Skinner[29]
Baron n Park gave the following illuminating exposition on what the golden rule entails,
according to him:
It is a very useful rule in the construction of a statute to adhere to
the ordinary meaning of the words used and to the grammatical construction
unless that is at variance with the intention of the legislative to be
collected from the state itself or led to any manifest absurdity or repayment
in which case the language will be varied or modify so as to avoid such
inconvenience but no further.
The
golden rule of construction can be illustrated with the use of the word
students in a phrase like students of this university or students of this
institution. In a phrase like students of this secondary school in a state like
Zamfara where sharia law is strictly enforced,. This word student will mean
only male or female student depending on whether the schoolreferred to is a boy
school or a girl school. To construct the word student in this case as boys and
girls will result in absurdity since island law does not allow for mixin of
male and student in any secondary school[30].
In this wise if the institution where to be will equally be absurd since he
restriction of sharia non mixture of male and female is not applicable to
university. The golden rule of interpretation therefore permits the
modification of he literal ru eor sence of interpretation of words when the interpretation
of such words in phrase in the state will lead to manifest absurdity[31]
It permits the grammatical and ordinary sense of that word used in a statute to
be modified so as to avoid absurdity and inconsistency which adherence to the
grammatical and ordinary service of the words will ultimately lead to[32]
Have in Obi V INEC[33]
it was held that in order to determine the meaning of any expression or phrase
in an enactment. The basic question is what is the natural ordinary or
grammatical meaning of any expression or phrase in an enactment? The basic
question is what is the natural, ordinary or grammatical eaqnign of the words
send in the enactment in the context in the state and it is only when the
ordinary meaning of those words leads to some results which amount reasonably
be supposed to have been that intention of the law maker that it becomes proper
to have for some other possible meaning of the words concerned[34]
c) The mischief rule
The
mischief rule of interpretation was formulated in the 16th century[35].
It is a common of interpretation often associated with common law because it
communes with the premise that there was a problem not solved by common law
which parliament intends to solve wit statute. The introduction of the mischief
rule of interpretation was laid down in the classicist case of Smith v
Hughes[36]
where the English court was saddled with the responsibility of interpreting
section 1 of the street offences
It shall be an offence for common prostitute to look or solicit I a
street or pubic place for the purpose of prostitution
The
common prostitutes standing between the windows n their house severally
solicited for men passing in the street by lapping on the window pane
attracting their attention and inating them to the House. A charge was drafted
against the prostitutes charging them for soliciting in the street for the
purpose of prostitution contrary to section 1 of the street offences act solved
above. There were connected Dissatisfied with their connection they appealed or
appeal, it was held that the true constructions to section 1 of that street
offences Act was take into consideration of the mischief in which the act was
aimed, it does not matter where the prostitute stood whether behind the door
ope window or closed window, if the solicititor was projected to and addressed
to somebody walking in the street, section 1 of the street offences Act.
In
that case the court lay off rules to be
considered in applying or adopting the mischief rule of interpretation, they
are:
1)
Wht
was the common law before the enactment of the Act s law.
2)
What
was the mischief and defeet for which the common law did not provide.
3)
What
remedy parliament now provided for the correction of this error or put
differently, what remedy the parliament hath resolved and appointed to cure the
diseases of the common law.
4)
The
reason for the remedy and why his parliament provides this particular remedy,
its essence s to interoperate an enactment in such a way.
The guideline in
this mischief rule of interpretation in
Hydon case above received judicial
blessing by the Supreme Court in IBWA v
IMO Nig Ltd[37]
where it was held as follows:
1)
what
was the common law before making the Act
2)
What
was the mischief and defeat, which the common law did not provide?
3)
What
remedy the parliament has resolve and appointed to cure the disease of the
common law? And
4)
The
true reason for the remedy.
In
arising at the conclusion, it was stated that the court duty is always to make
such construction that will suppress the mischief and advance the remedy and
this will arise if there is latent ambiguity in the words used in the statutory
provision, otherwise, the first and most elementary rule of construction that
is the literal rule will apply[38],
but regard must be placed on the circumstances which necessitated the passing of
the Act and the State of the law at the time and the mischief which then exist
as much as they can be judicially noticed.
A
cursory reading of the mischief rule of interpretation tend to suggest that it
is simple and straight forward, bearing in mind that all that is required is to
identify the mischief sought to be eliminated, however this will only be
achieved in the words or phrase used in the statutes is ambiguous and difficult
to ascertain, if not the ordinary literal meaning should be prefferd . It shoed
be noted however that short of its simplicity in definition, the word mischief is difficult to ascertain since it may involve
making valued judgment.
(d) The Ejusdem Genesis rule of
Interpretation
The
Ejusdem genesis rule of construction of statutes simply means that in
interpreting the provision of a statute general word which follows particular
and specific words of the same nature as themselves takes their meaning from
there specific words[39].
It follows that when general words follow, particular words belonging to a
category, class or genus and are specified in a particular order, that general
words should be construe in the light of the particular words. For example
where a statute provides that “it shall not be lawful for makers of bread
meatpie, cake doughnut, sauzue and other snacks of display such except in place
provided…”[40].
The principle of egusden genesis means that the interpretation of the general
word “snacks” with include anything that is a confectionary and will not
include anything which is a main food item or drinks. In Tillmanns v
S.S. Knutsford Ltd[41]
a but of lading containing conditions and exceptions stated as follows”
Should a part be inaccessible on account of ice blockade or interdict
or should entry and discharge at a port be deemed by the master unsafe in
consequence of war disturbance or any other cause it shall be competent for the
master to discharge goods intended for such port on the ice or at some other
safe port or place at the risk and expenses of the shippers consignees or owner
of the goods and upon discharge the ship’s responsibility shall cease.
The
court held that the words “it any other cause” must be read as being ejusdem
genra with war disturbance and therefore the case was not brought within the
exception because the master deemed the port unsafe or inaccessible on account
of ice. From the above case it is obvious that once the specific from a genus
the general words is presumed to be restricted to the same genesis as the
specific.[42]
However
where the specific words are of different types or kind, the meaning of the
general word remain unaffected b any connection to the proceeding specific.[43]
In Young v Carattridge[44]
section 2 of the Nuisance Removal Act authorized an inspect “any animal carcase
etc exposed for sale, or deposited in any place for the purpose of sale, or of
preparation for sale and intended for the food of man”. Section 3 of the same
Act, provides that “if any person prevents the inspector from entering any
slaughter house, shop, building, market, or other place where such Carcase
& co is kept for sale or preparation for sale he is liable to a penalty of
section 51”. The appellant was caught with two carcases of cows unfit for food,
in a yard at the back of a butcher’s house, it was held that:
The
word “place” even in section 3 is not confine to place ejusdem generis with
those mentioned but that it was intended to include every species of premises
where animals and carcases & co might be accepted for sale or preparation
for sale as food for man; and therefore I think that there is nothing
qualifying the generality of the term place and that the yard was within the
term and the conviction must be affirmed[45].
The
doctrine of ejusdem generis rule will apply if more than one specific are
mentioned but where one specific which connotes a large number of varieties is
mentioned, then the rule will not apply. For instance where in an expression
the phrase domestic animal and other animals” are used. The word “domestic”
connotes a large number of varieties like cat, dog, goat sheet etc to make the
rule inapplicable.[46]
Also the use of expression like “some kind or nor”, after the general word or
including but not limited to” and “without prejudice to generality of the
following” to introduce the specific will make the ejudem rule inapplicable.[47]
(e) expressio
unius est exclusio alterius[48].
Where
an enactment enumerates the things upon which to operate, everything else must
necessarily and by implication be excluded from its operation and effect[49]
or put differently the express mention of one thing is the exclusion of
another. From the things canon of interpretation presupposes that where a
statute mentions specific things or person, the intention is that those not
mentioned as not intended to be included. For instance, where a statute
provided that “if at any time within the approved working hours the principal
and or vice principal if any school under the supervision of the unit is absent
from office without due excuse or justification”, the interpretation of this
provision shall not be extended to cover teachers and other staff of the school
not being the principal or vice principal. This is because the provision has
specifically mentioned those who came under it[50].
Similarly where the students of university is used but if you went further to
say law students, pharmacy students, then you have gone into specific terss and
have therefore excludes all other students of the university except the two
mentioned above. The expressio unus est exclusion alterius principle was applied in the interpretation of
Nigeria Constitution in Obi v INEC[51]
at the court of appeal where Sankey JCA stated as follows:
It is now a were entrenched principle that in the
construction of statutory provisions, where the statute mentions specific
things or persons the intention is that those not mentioned are not intended to
be included. This is the expression unio est exclusio alterius rule which means
that the express mention of one thing in statutory provision automatically
excludes any other which otherwise world have been included by implication.[52]
(f) The Beneficial rule of interpretation .
According
to Emmanuel Okon[53]
the beneficial rule of construction is a relaxation of the literal rule of construction. Accordingly a statute
must not be construed in such a strange manner as to include cases plainly
omitted from the natural language. In other words, where the literal rule is
adopted in construing a statute and it creates absurdity, the judge may
construe the statute beneficially by supplying omission of the legislature but
not to include cases plainly omitted from the natural language of the statute.
In Foresdike v Coluquhoun[54]
the court was faced with the proper interpretation of section 1 of the Sunday
Closing (Wales) Act 1881 which provided to the effect that all premises in
which intoxicating liquors are sold whenever situated shall be closed during
the whole Sunday”. The court held that the word Sunday in the Welsh Act only
has its ordinary meaning and a conviction under that Act for unlawfully keeping
open premises for the sale of intoxicating liquors on Christmas day was bad.
The rationale for the line of interpretation is that though Christmas day is
regarded in the whole of Christiandom as a day to worship God, the Sunday
closing (Wales) Act of 1881 did not consider it as a Sunday for the purpose of
closing premises where intoxicating liquor is sold. In Nigeria adopting these
canon of interpretation, the court had stated that the approach to
constitutional interpretation should be one of liberation;[55]
this was buttresses by Obseki JSC in Adesanya
v. President of Federal Republic of Nigeria where he stated as follows;
The need for a liberal approach to the
interpretation of the provisions of the 1979 constitution is paramount and the
case of Nafiu Rabiu v the State has set the pace. The dictum of Sir Udo Udoma JSC cited by my leaned brother,
Fatayi Williams CJN which met the unanimous approval of the other justices who
head the appeal will for long time be the approach of the court in this
country.
(g) Purpose
rule of interpretation
This
rule of interpretation anticipates a
situation where one while construing a statutes is faced with two possible
interpretation and he has to make a choice between two different
interpretations. The purpose rule of interpretation requires that the
interpretation most agreeable to justice and reason be applied. The Supreme
Court while construing the provision of the constitution and the purpose rule
of interpretation in Ehuwa v. OSEIEC[56]
has this to say
It is settled law that the court should, when
interpreting the provisions of the constitution bear in mind that the function
of the constitution is to establish a framework and principles of government,
broad and in general terms, in tended to apply to the varying conditions which
the development of plural and dynamic society must involve. Therefore, more
technical rules of interpretation or to some extent inadmissible in a way as to
defeat the principles of government enshrined in the constitution. Therefore where
the question is whether the constitution has used an expression in the wider or
in the narrower sense, the court should,
whenever possible and in response to the demand of justice lean to the broader
interpretation, unless, there is something in the text is in the rest of the
constitution to indicate that the narrow interpretation will best carry out the
object and purpose of the constitution.[57]
This
view was equally emphasized by the
Supreme Court earlier in Attorney General of Ondo State v Attorney
General of Federation[58]
where Ogbuegbu JSC emphatically stated as follows;
A constitution is an instrument of government under which laws are made
and are not mere Acts or laws and construction which the court will give to
constitutional provisions must be such that will serve the interest of the
constitution and best carry out the subject and purpose and give effect to the
intention of the framers.
In
the same vein, the Supreme Court while interpreting the provision of S.22 of the Land
Use Act 1978[59]
stated that a statute should not be given a construction that will defeat its
purpose, the construction ut res magi valeat quam peret must be given.
If the choice is between two interpretations; the narrower of which would fail
to achieve the manifest purpose of the
legislation should be avoided; so that the manifest purpose of the legislature
in enacting a law or statute be achieved. It was also held in Awolowo
v Shagari[60]
that where there are two possible meanings conveyed by the words of a statute,
it is the most reasonable one that should be adopted. Where the other meaning
leads to absurdity or envins internal contradiction, that meaning should be
dropped for that first as the legislature never intends to be absurd or
contradictory.[61]
3.0 Application of rules of construction or interpretation to section 9 of the 1999 Constitution
The
choice of which of the rules of
construction of statute should be applied in the interpretation of section 9has
been made sinply by lord Halsbury L C in
St. Johns Hampstead V Cotton[62]
and Idigbe JSC, in Bronik Motors V Wema
Bank [63]
where it was stated as follows;
Word are not used in a statute without meaning, nor
are they used tautologously or superfulously, but there is the other rule of
construction of statutes that words in an enactment are primarily used in their
ordinary meaning or common or popular sense, and generally are used as they
would have ordinarilly understood. ‘The day after the statute was passed’ unless
such interpretation and /or construction would lead to manifest absurdity, or
unless the context requires some special or particular meaning to be given to
the words. Therefore where a Judge is of the opinion that the application of
the words of an enactment in their ordinary meaning ‘would produce an absurd
result which cannot reasonably be supposed to have been the intention of the
legislature. He may apply the words in any secondary meaning, which they are capable of being.
It
can be deduced from the above dictum that the first, the literal rule of
construction should be applied in construing section 9 of the 1999
constitution, but where it leads to any absurdity, then a secondary rule of
construction can be applid. It is our opinion the there is no ambiguity in the
construction of section 9 of the 1999 constitution therefore the literal rule
of interpretation be applid in interpreting same[64].
Section
9 of the 1999 consttitution is emphatic on the mode through which the
constitution can be amended, even at the expence of repitition, the section
provides:
9 (1) the national Assembly may subject to the
provision of this section alter any of
the provision of this constitution
(2)An Act of
the National Assembly for the alteration of this constitution , not being an
Act to which section 8 of this
constitution applies shall not be passed in either house of the National
Assembly , unless the proposal is supported by the votes of not less than two
third majority of all menbers of that House and approved by resolution of the
houses of Assembly of not less than two-third of all the states,
(3) An act of the National Assembly for the purpose
of altering the provision of this section, , section 8 , or chapter IV of this
constitution shall not be passed by either house of the natonal Assembly unless the proposal is approved by the votes
of not less than four-fifths majority of all the menbers of each House and also
approved by resolution of the Houses of
Assembly of not less than two-third of
all the states.
Some
writers had argued that the provision is this section should not be read in
isolation but should be read in conjuction with other sections of the
constitution particularly section 58 of the constitution which provides, among
other things, that a bill must receive presidential assent before it becomes
law. However these group of critics did
not advert there minds to sub section 5 of section 58 which provides that where
the president withholds his assent and the bill is again passed by each House by
two-third majority, the bill shall become law and the assent of the president
shall not be required.
Many
writers who are of the view that the amendment required presidential assent
argued that by virtue of section 318 of the constitution which is the
interpretative section of the constitution, which defined Act of National
assembly to mean any law made by the National
Assembly . It is pertinent to state that an Act of National Assembly
does not include laws made to amend the constitution, if this was the intention
of the drafter of the constitution, they could have specifically stated so. It should also be noted the drafter of the
1999 constitution did not used the phrase ‘subject to’ in construing the
provision of section 9 of the constitution.
In
the same vein, section 58 which
provides that a bill shall not become law except with the assent of the
president, did not provided that such bills should be passed by the votes of
two-third of all the States of the Federation, this mean that the amendment of
the constitution is sui generis[65]
that is in a class of its own, distinct from other bill which does not
require the approval of the states houses of Assembly.
In
the same vain it is gratifying to state the role of the president in cases
where the Constitution requires presidential assent is to merely rubber -stanp
the laws enacted by thre National Assembly, the president does not engage in a
thought provoking appraisal or deliberation on what the National Assemly had
submitted to him for assent, he either accept or reject or refuse to assent. If
he refuses to sign the bill as presented to him by the National assembly, the
National Assembly by virtue of Subsection 5 of Section 58 can pass the bill and
translate same to an Act without presidential assent. This ia not so in the
case of amendment of constitution as provided by section 9 of the 1999
Constitution, which allows the states house of Assembly to deliberate and pass the bill. The States Houses
of Assembly will take a holistic review of the proposal as presented by the
National Assembly, in some cases the State House of Assembly will carry out a
public hearing and in some cases invite memoranda from member of the public to
enable them take comprehensive review of the bill submitted to them before same
would be passed. As if this is not enough, the passege of the bill required 2/3
majority of all States Houses of Assembly, in the event of the bill
not receiving 2/3 majority of all the States Houses of Assembly, that is the end of the matter, the bill will
not be passed. The National Assembly does not enjoy the privilege to veto the decision of the State Houses of Assembly as is the case in
section 58(5) where the refusal of the president to assent will atract the bill
going back the National Assembly for
final passage, without presidential
assent, it is commended that those who are preaching that the constitutional
amendment bill requires presidential assent should take a second look at section 58 and justapose
same with section 9 of the 1999 constitution.
Unlike
the Nigeria Constitution, the USA constitution provides for an alternative
constitutional alteration wherein in the absence of a proposal for
constitutional amendment coming from the congress, two thirds of the states of
the USA can call for a constitutional convention, involving the states and the Federal Government officials, the purpose of
which is the discussion of the modalities and terms of the amendment sought to
be effected in the federal Constitution. This provision of amendment is not in
anywhere found in Nigeria Constitution, the states can only holistically
approved or disapprove amendment propoesd by the National Assembly, and they
cannot on their own volition initiate amendment proposal[66]. Also in Nigeria, the detail amendment sought
is contained in the proposal, this is because immidiately the proposal is
passed by the national assembly and the required two- third majority of the
states Houses of Assembly, the proposal authomatically translate into the
intergral part of the subsisting Constitution. The situation is different in
the USA, after the proposal is approved by the congress; it is submitted to the
states for debate of the terms of the proposed alteration or amendment. This is
achieve through the process of ratification, experience shows that this process
in some case can last for years before approval or rejection is achieved[67].
4.0 CONCLUSION
From
the foregoing discussion, it appears that the controversy surrounding the
construction of section 9 of the 1999 constitution will continue to remain an
academic exercise untill the Supreme Court decides in favour of either schools
of thought discussed in this article.
Like
in the case of America, Nigeria operates a bicameral legislature, known as the
National Assembly, proposal for the amendment or alteration of the constitution
can be initiated by the National Assembly. When one chamber initiates and
adopts the proposal, the other chamber is expected to support it, otherwise the
proposal fails. But if the other house supports the proposal, then the proposal
must be supported by the votes of two third majorities of all the states houses
of Assembly. Failure to obtain two third majorities of all the states houses of
Assembly the proposal will not be passed and the constitution cannot be altered
or amended. But unlike other bill of the National Assembly which reqired
Presidential assent the bill to alter or amend the constitution does not require
presidential assent as provided by section 9 of the 1999 constitution, if it
was the intention of the drafter of the 1999 constitution they could have
expressly stated so, as stated earlier, the courts have been advised not to
imput into the constitution that which is not intended by the lawmaker in the
process of interpreting a statute.
It is evident to state that for the true
impact of democracy to be felt by the Nigerian masses, the judiciary as the
third estate of the realm has a noble role to play in the sustenance of our
nascent democracy, our constitution speaks of freedom, equality and justice but
a clash may occur between constitutional ideals and political, as well as,
social realities, hence the need for an umpire to settle the ensuring disputes.
It is the judiciary, writes Justice Umaru Eri[68]
which plays this important role. It therefore follows that keeping the
government faithful to the goals of democracy and the production of universal
benefits for all its people become the most demanding constitutional role
imposed to our constitutional on the judiciary, it is gratifying to state that
our judges and indeed the judiciary had lived to its expectation and as stated
by justice Oputa of whom I cannot resist the temptation of not quoting in
concluding this essay, he stated as follows:
It is only the judiciary which
can in the final resort and as the last resort translate the dreams of Nigeria, dreams inscribe boldly
in her constitution, her dreams, for National unity for domestic tranquility,
for individual freedom and personal happiness through the full release of our
citizens from prejudice and oppression, through the full utilization of all her
human and natural resources and potentials towards the creation of a great
nation characterized not by power alone but by respect for the human dignity
and by the assurance of equal justice under the law for all. just as it was the
supreme court of the united state that translate and interpret millions of
coloured and black Americans into second class citizen for over half a century,
so our own supreme court can translate into actuality the noble ideas expressed
in our fundamental law and give flesh and blood infact life to abstract
concepts like freedom, liberty equality and give justice. Clearly articulated
and often reiterated in our constitution[69]
It
is opined here that the provision of section 9 of the 1999 constitution is not
ambiguous, therefore the literary and ordinary cannon of interpretation should
be applied in interpreting same based on the provision of the statute, the
amendment of the 1999 constitution does not require presidential assent.
[1] AIgbinedion University, Okada,
Edo State
[2]Glanville
Williams, ‘Language and the Law ‘Law
Quarterly Review Vol 61 PP191-192 see also Ochem Charles ‘The principles Governing the Interpretation
of Sttutes in Judicial Process: Obi V
INEC in Perspective’ in Okolocha-Okoboh, (ed) Judicial Intervention In
Constititutional Matters: Obi V INEC In Perspective. Enugu, Snaap Press
2009 P 153.
[3](
Unreported) suit No KDH/1/81 cited in
Gani Fawehinmi, in his text, Nigerian
Law Of The Press Under The Constitution and The Criminal Law, Lagos,
Nigerian Law Publication 1992 P45
[4]
Nwabueze Ben, Constitutional Democracy In
Africa vol 1 Ibadan, Spectrum, (2003) P2
[5]
Nnamani E.N. ‘Acomparative Analysis of the Procedure for Alteration of a
Federal Constitution; Nigerian and United States in Perspective’ Vol 1 EBSU
Journal of International Law and Juridical Review 2010 PP264-279 at P264
[6]
Hans Kelsen The Pure Theory Of Law
, new york berkley publication 1979p 200 quote by Nnamani ibid p 264.
[7][7] ibid
[8]
See Ogere O.S Fashioning The Constitution Of A Democratic System Enugu, CDJAP Press Ltd, 2002 p 67
[9]
Nwabueze,B O The Presidential Constitution of Nigeria , London, Hurst & Co
1982, P 12
[10]
Ibid.
[11]
Hereinafter referred to as 1999 constitution
[12]
Sir William Dale The Legislative Drafting, a new approach, London,
Butherworth (1977) p. 340, see also Okon E.E. “Disqualification of persons to
the office of Governors of a state under sections 182(1) (b) of the 1999
constitution of the Federal Republic of Nigeria (1999 constitution) The
Advocate Nyan law school 2002/2003 p. 72 at 77.
[13]
See Gerald C. Macallum Jr. ‘Legislative intent.
[14]
See Akinrinmade G. ‘Current Trends In Statutory Interpretation. The Journal of
Public law and practice vol 1 No 1 June 199 at pp. 39 – 77 where as pg 39 the
learned inter guider with approve the dieta of James A Holland and Jillianas
weds in Learning legal Rules at p. 191.
[15]
2007 II NWLR (pt 1046) p. 865 at 690 - 691
[16]
See also Uwaifo V AG. Bendel state (1983) 4 NCLR 1, SPO V Usaiah (1997) 6 NWLR
(pt 508) 236, Omoijash Umoru 1999) of NWLR (pt 614) 178 ,which where cupiouly
referred to in the judgment under review.
[17]
Okon E.E. op. cit p. 77 , see also William orle op cit, Horacle Read at al Maternets
o Legislatio University Casebook series (1973) and Nesioran S.N/ The
Drafting of legislation Cham must
[18]
Akirinmode op cit. p. 43.
[19]
(1844) 11 CI & Fin, 78.
[20]
2006 10 NWLR pt 1012 p. 544
[21]
Per Onmoghan JSC at P. 589 see also v. GP (2002) 7 NWLR pt. 767) 606.
[22]
(2007) II NWLR pt 1046 p. 565 S/C,
[23]
Per Adermi JSC at p. 643.
[24]
1975 AC: S91.
[25]
(2001) FWLR (pt 32) 87 (1999_9 NWLR pt 618 p. 187. this diction was quoted with
appeal by Mukhlar CA (as he then was) as Cachalla v Banki 2001) FWLR (pt. 73)
pp1 at pp 6 – 12.
[26]
Underline Min for emphases.
[27] For
further reading in literal rule of interpretation see Akintola V Adegbenro (1962)
1 ALL FR 465, Awolowo v Shagari
(1979) 6 – 9 SC 51. It should be noted that the literal rule has much to offer
as a shortcomings which had been subjected to some of criticisms, among this
are that it adopts too narrow a view of the judicial defnition and also gaveroom for complexity of language as opined by Farrar
and Dungdale . Introduction To Legal Metods London, Sweet&Maxwell (1991), 195..
[28]
1936) 2 M&W 191, 195.
[29]
1837 2 M&W 471 at 476
[30]
Ekon E.E. op cit p. 80.
[31]
Ibid
[32]
See Justice Ayoola JSC in PDP v INEC
(2001) FWLR (-pt 31) p. 2735.
[33]
supra
[34]
See also Uwaifo V A.G. Bendel (1963) 4 NCLR 1 , SPDC V Isaiah (1979) 6 NWLR pt
508 236 and Omoijahe v Umoru (1999)8
NWLR (pt 617 at 176.
[35]
Akhimade G. op. cit p. 56.
[36]
(1960) IWLR p. 830.
[37]
(1988) 2 NWLR (pt 88) 633.
[38]
Per Wali JSC at p. 433.
[39]
Ehuwa v OSIEC (2006) 18 NWLR pt 1012, p. 54 at 595.
[40]
Sanni A.O. (ed) Introduction to Nigerian Legal Method. Ile Ife Kundtel
Publishing Houses 1999 p.118.
[41]
(1908) 2 KB 385.
[42]
Ekon E.E. op cit p. 85.
[43]
Ibid.
[44]
(1968) CR 4 QB 166.
[45]
Per Hush
[46]
Ekon E.E op it p.86
[47]
In Eluwa v Oscic (supra), The provision of section 246(3) of the 1999
Constitution which was the section under consideration was presumed to be
confined to the election petition specifically mentioned in section 246(1) of
the Constitution.
[48]
It is also termed includio unius est exclusio aterius or enimeratio unius
exclusion alterius
[49]
Ukeje R.N. Nigerian Judicial Lexicon
Lagos, Ecowatch publication 2006 p. 142.
[50]
Sanni A.O. op cit. pp. 115-116.
[51]
Supra.
[52]
At page 558. see also Ogboru v Ibori 2006 13 NWLR (pt 542) 319 Udoh v.
Orthopaedic Hospital Management Board (1993) 7 NWLR (pt 304) 139. Eluwa c.
ISIEC (supra) pp. 568-569 paras a-c.
[53]
op cit
[54]
(1883) 11 QB p.71.
[55]
Nafiu Rabiu v. Kano
State (1980) 8 in SC 149.
[56]
Supra at p. 588 per Onnogben JSC
[57]
Underline mine for emphasis.
[58]
(2002) FWLR (Pt 111) p 1972 at 2100
[59]
CAP 15 LFN 2004
[60]
(1979) 12 MSU 82.
[61]
See also Shanma Realities v St Michael (1924) AC 185.
[62]
(1886)12 AC 1 at p 6 this rule of construction was applied in the Nigerian case
of A G Bende V A G Fed 198110SC P1 and A G Fed
V A G Abia 2002 FWLR Pt 102
PP1-310 at P 216 where Oguntade JSC said that ‘it is fundamental and cardinal principle of
interpretation that in its ordinary meaning, a provision is clearand
unambiguous, effect should be given to it without resorting to external aid’
[63]
(1983) 6 SC 158 at PP 200-201
[64]
See the supreme court cases of A G Ondo V A G Fed 2002FWLR PT 111 p1972 at
2100. PDP and Anor V INEC 2001 FWLR PT
N31 P 2735, Nafiu Rabiu V The State 1981
2 NCLR 293 at 326 and pp 302-303
[65]
In a class of its own
[66]
Nnamani E N Op cit p 268
[67]
Ibid.
[68]
Ibid.
[69]
Quoted from Justice Umaru Eri op cit pp 173 – 174.