SOURCES OF LAW I: LEGISLATION
CONTENTS
1.0 Introduction
2.0 Objectives
Main Body
Emergence of Legislation
Merits and Demerits of legislation
Different types of subordinate legislation
Interpretation of Statutes
4.0 Conclusion
5.0 Summary
6.0 References/Further Readings
INTRODUCTION
This module will deal with sources of law as a whole and under it we shall be examining in three units the three sources of law, namely legislation, custom, and judicial precedent. This unit is however concerned with legislation. Under it, you are expected to know how legislation originated, its definition, merits and demerits, subordinate legislation and the interpretation of statutes.
OBJECTIVES
This unit treats the emergence of legislation as the dominant source of law. It delves into the different types of legislation (paying particular attention to types of subordinate legislation). It also examines the modes of interpreting statutes such as the literal and liberal interpretations and the philosophical basis for such interpretations thereby helping the student with a full appreciation of what will be his tools in legal practice. At the end of this unit, you are therefore expected to have mastered the art of legislating.
MAIN BODY
Emergence of Legislation
Until the 19th century, legislation played a relatively subordinate role in most countries as a source of law and was clearly dwarfed in importance and relevance by customary law and case law. This is however not to say that legislation did not exist from early times; indeed the earliest document written in the English language whose contents have been preserved is precisely the laws or “dooms” of King Ethelbert of Kent promulgated in the 17th( century.
It is true also that many statutes were passed in England during the Middle Ages. Overall, however, it is fair to say that statutes played a comparatively small part in the development of the law until fairly recent times. However, the situation has now changed drastically.
During the 19th and 20th( centuries a huge increase in the use of enacted law has taken place and it is clear that legislation has now become by far the most important source of law.
In Nigeria for instance, before the advent of colonialism, the various indigenous localities were majorly guided in their acts and deeds by customary laws which were enforced by the family units as well as the royal system. But with the dawn of colonialism, there has been a gradual migration away from putting reliance on customs as our British masters came with the idea of legislating over the whole entity now called Nigeria. They equally qualified largely the application of our customary law which, according to the set standard, must not be repugnant to natural justice, equity and good conscience.
Aside from directly legislating for Nigeria through the Queen’s Order-in-Council, our British masters also made applicable in Nigeria common law, equity and the statutes of general applications in force in England on the 1st of January 1900.
With the above foundation properly laid, the indigenous nationalist leaders that took over the affairs of the country after independence had no problem, with minimal supervision from Her Majesty’s government, to make laws, by way of legislation, for the good governance of the country. Today, Nigerian legislation are designated as Acts of Parliament at the national level where they are enacted by the National Assembly in a civilian/democratic dispensation. Laws are the equivalent name given to them at the state level. During the military era, they are designated Decree and Edict respectively while By-laws are used to describe laws made by the local government during both eras.
According to Salmond, legislation as a source of law consists in the declaration of legal rules by a competent authority. Used in a wider sense, it includes all methods of law making. To legislate therefore is to make new law in any fashion or in any method. He therefore contends that any act done with the effect of adding to, or altering the law is an act of legislative authority. Used in this sense, legislation includes all sources of law, and not just one of them. In that regard, he further posits: when a judge establishes a new principle by the process of judicial decision, he may be said to exercise legislative and not just judicial power.
Used in a stricter or narrower sense, according to Salmond, legislation is the laying down of legal rules by a sovereign or subordinate( legislator. In this narrower sense, differentiation must be made between law making by a legislator and law making by the court.
Self-Assessment Exercise (SAE) 1
Trace the emergence of legislation in Nigeria.
Merits and demerits of legislation
There is no gainsaying the facts that legislation possesses some clear advantages over other sources of law especially judicial precedents. There are equally disadvantages. You are to look into these advantages as well as disadvantages of legislation.
Legislation, to give it a working definition, can be defined as the process through which statutes are enacted by a legislative body that is established and empowered to do so. It has also been described as law made deliberately in a set form by an authority, which the courts have accepted as competent to exercise that function. What is deducible from this is: legislation is a parliamentary process; people that take part in its making must be authorised to so do by law; these people must be recognised by the court; and the legislation must be in a ‘set form’.
Some of the advantages of legislation over judicial precedent include the following:
The major advantage of legislation is that it is made by parliament and therefore reflects the will of the people in so far as members of the parliament are democratically elected. This cannot be said of the court system. Statutes made by the legislature therefore enjoy a direct democratic legitimacy that judge-made law lacks.
Secondly, the idea of limited power which is enjoined by the rule of law is better secured through the device of separation of power and this ideal is reflected by giving the main legislative powers to the legislature while confining the functions of the court in the main to the application of the law.
Additionally, as the society becomes more complex and the laws try to achieve ever more ambitious objectives, it becomes more important to have detailed information about the likely social effects of new laws. As late as two centuries ago the government lacked the means of collecting this information. The result is that now the legislature is much better placed than the judiciary to collect the necessary information prior to engaging in making complex laws.
Another important merit of legislation is that it provides for predictability. Since it is in a written form, it can be consulted so that citizens can know their ‘dos’ and ‘don’ts beforehand and they can regulate their lives along that axis accordingly. Even though case law can also be consulted, you only get to know of it as a party when the court has laid it down, and not before you go to court. This applies especially to new precedents.
Finally, legislation is far more suitable than case law to change quickly many related but different rules of law. While it will often take time to change judicial precedents, the enactment of statute can change overnight vast areas of law.
The major disadvantage of legislation is that the words and terms used in Acts of Parliament may be subject to many interpretations, thus rendering it unclear or ambiguous in a given fact situation.
You should be able to come up with additional advantages and disadvantages after reading your text books.
Self-Assessment Exercise (SAE) 2
Discuss the advantages and disadvantages of legislation in Nigeria.
- Different types of subordinate legislation
Subordinate legislation is law made by an executive authority under powers given to them by primary legislation in order to implement and administer the requirements of that primary legislation. It is also known as delegated legislation.
Using subordinate legislation is advantageous for the following reasons: it saves limited time in parliament and allows rapid change; since members of the parliament lack detailed or technical knowledge in some cases, they can make up for this through the use of delegated legislation which allows for the use of expert knowledge; it also allows quick response to new development; it enables minor changes to statutes; its withdrawal or amendment is very easy; etc.
It equally has some disadvantages. These include: it implies that parliament has insufficient time to scrutinize it, and as such parliament is not reviewing legislation properly; sub-delegation of power is a further problem which causes complexity and confusion; there is lack of publicity as some of these delegated legislation are not known by people to be affected by it; it is undemocratic as most regulations are made by civil servants or other unelected people; etc.
There are several types of subordinate legislation. Some of these are listed below: Local authority by-Laws made by local councils under enabling Acts;
Public corporation by-laws made under statutory authority;
Rules of court made by the rules committees pursuant to the enabling Acts; Ministerial/departmental regulations made by statutory authority;
Order in Council made by statutory authority or under the Royal Prerogative; etc.
Self-Assessment Exercise (SAE) 3
Explain the various types of subordinate legislation in Nigeria.
Interpretation of Statutes
Statutes become meaningless if not interpreted by the court. The primary duty of the court in this regard is to find the intention of the legislation. Such intention must be discovered from the wordings of the statutes. It must be an intention manifested by the words used. If every word has only one meaning, this task would have been very easy. However, words have no particular meaning except they are put in context. Problem however emanates from the fact that members of the parliament lack the prescience to know all situations that will arise and therefore legislate unambiguously for each situation. Some words used in statutes represent such vague standard that interpreting them is like making a subsidiary legislation.
Examples of such words are ‘reasonable time’ and ‘inordinate delay’ among several others.
The type of interpretation technique that the court will apply will depend on how clear forward the words used are. Where the words are unambiguous, the court will most likely adopt the literal rule of interpretation. In some cases, the words may be unambiguous but the result of applying the words as they are may bring about injustice or absurdity. In such cases, the court may adopt the mischief rule of interpretation or any other rule of interpretation that will lead to justice.
The various rules of interpretation will now be summarily discussed. You are expected to read up on the pros and cons of each rule and form your own opinion about them.
Literal rule of interpretation which is the simplest and the most easily applied holds that statutes are to be interpreted literally. In other words, if the words used are unambiguous, such words must be given their literal meaning and it is immaterial that hardship would or is likely to result from the application of such literal interpretation. This is well illustrated in the cases of R v. Bangaza (1960)5 FSC 1; Adegbenro v. Akintola (1962)1 All NLR 465.
Note however that the principle that the wording of a statute is to be construed literally is only a general principle which must be applied only where the wording is clear and generally unambiguous.
The Golden rule of interpretation was formulated in Beck v. Smith (1836)2 M & W 191 at p. 195; 150 E.R. 724 at p. 726 and it states that ‘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 legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience but no further’.
Thus, where the word to be interpreted is ambiguous, it is the court’s duty to interpret it in such a manner as to avoid absurdity. See R v. Princewell (1963)2 All NLR 31; Council of the University of Ibadan v. Adamolekun (1967)1 All NLR 213; Awolowo v. Federal Minister of Internal Affairs (1962) LLR 177
Also, in applying, Golden rule, the court may construe the word ‘or’ as ‘and’ and vice versa whenever this is necessary to avoid absurdity. See Ejoh v. IGP (1963)1 All NLR 250; R v. Eze (1950)19 NLR 110; Interpretation Act 1964 (No. 1 of 1964), ss 1 and 18(3); Jamaal Steel Structures Ltd v. African Continental Bank Ltd (1973) 1 All NLR 208
The Mischief rule of interpretation holds that in order to interpret a statute properly, it is necessary ‘to consider how the law stood when the statute to be construed was passed, what the mischief was for which the old law did not provide and the remedy provided by the statute to cure the mischief’. See Re Mayfair Property Co (1898)2 Ch 28 at p. 35; Balogun v. Salami (1963)1 All NLR 129. The court is then to construe the statute in such a manner as to ‘suppress the mischief and advance the remedy...’ See Heydon’s case (1584)3 Co. Rep. 7a; 76 ER 638; Akerele v. IGP (1955)21 NLR 37
Other general principles of interpretation include:
Lex non cogitadimpossibilia (the law does not compel the doing of impossibilities) Ut res magisvaleat quam pereat (that it may rather have effect than be destroyed) The ejusdem generis rule holds that where particular words of the same class are followed by general words, the general words must be construed to be similar in meaning to the particular words. See Board of Customs & Excise v. Viale (1970)2 All NLR 53; Nasr v. Bouari (1969)1 All NLR 35; Onasile v. Sami (1962)1 All NLR 272
In all, it is important that the provisions, being interpreted must not be read in isolation; rather it must be put in context, and this is the only reasonable explanation that can be givenwhere the court has interpreted ‘or’ to mean ‘and’ and ‘shall’ to mean ‘may’.
You shall be properly guided by the suggested further reading materials on this topic.
Self-Assessment Exercise (SAE) 4
Words must be interpreted from their context. Discuss.
CONCLUSION
This unit has taken us through the rubrics( of legislation and how they are interpreted in our courts. It has underscored the importance of placing words in context before interpreting them and has also explored the various interpretation techniques often employed by our various courts.
SUMMARY
In this unit, you have learnt the following:
- Emergence of legislation
- Merits and demerits of legislation
- Different types of subordinate legislation
- Rules of statutory interpretation
REFERENCES
Dias, R.W.M., Jurisprudence, 4 th ed. (Butterworth & Co. (Publishers) Ltd, Boston) p. 218 – 245
FunsoAdaramola, Basic Jurisprudence, 3 rd ed., Raymond Kunz Communication, Lagos, 2004, 254 – 288
Glanville Williams, Learning the Law, 11 th ed., Stevens and Sons, London, 1992, p. 97 – 108
Hon. Justice KayodeEso, The Court as Guardian of the Constitution, Thoughts on Law and Jurisprudence, MIJ Publishers, Lagos, 1990 at 17
J.M. Elegido, Jurisprudence, Spectrum Law Publishing, Ibadan, 1994, 243 – 285 Obilade, A.O., The Nigerian Legal System, (Sweet & Maxwell, London) p. 55 – 68