LEGAL DRAFTING AND INTERPRETATION
1.Introduction (L1)
2. Stages of Drafting & Elements of an Act (L 2, 3, 4)
3. Basic Drafting Guidelines ( L 5, 6, 7, 8)
4. Passage of a Bill in Parliament ( L 9)
5. Interpretation ( L 10,11)
LEGAL DRAFTING AND INTERPRETATION
INTRODUCTION
Dick
Legal Drafting in Plain Language - Chpt. 1
Plain language is not a restriction of debasement of the language. It should not be likened to
simple or simplified language.
“PLAIN LANGUAGE USES THE ENTIRE RESOURCES OF THE LANGUAGE AND IS
THE NORMAL LANGUAGE IN DAILY USE.”
 Directed to the needs of the reader;
 Takes many forms and is quite flexible: what may be appropriate in one context may not
be appropriate in another.

To draft effectively a drafter has to consider those who are going to read the document
and make it understandable to them.

A document can be made interesting and even attractive. To achieve this a drafter must
start at zero. The main parts of the (contract) should be built up step by step with a reason
for adding each item.

Coherent organization of a document is important

Direct, straightforward communication should be the goal for any drafter.
V. Crabbe
Legislative Drafting - Chpt. 2
Government policy motivates legislation. The legislative policy expressed in an Act is first
determined and settled by the Government.
Parliamentary counsel have a vital role to play in the conception and birth of an Act of
Parliament. They have a duty to express legislative policy in a language free from ambiguity.
Transforming government policy into law is the prime function of Parliamentary counsel.
Government expects Parliamentary counsel to express legislative intention as accurately as
possible, and capable of only one interpretation, that is to say, the intention that the Government
intends that law to have.
The Government also expects that Parliamentary counsel will ensure that the Bill as drafted is in
harmony with all the existing legislation as well as with the Common Law or the Customary
Law.
Government expects a Bill to be self explanatory. The public too, expects an Act to be
intelligible, precise and free from ambiguity.
On the receipt of drafting instructions, Parliamentary counsel must examine and analyse the
legislative proposals. Are the proposals capable of implementation? How harmoniously will the
proposed legislation fit into the scheme of existing legislation? What are the alternatives? Would
an amendment be appropriate rather than a new piece of legislation? What are the legal
difficulties in the proposals? Is there constitutional legitimacy? What are the implications in the
proposals for personal rights and for vested interests?
Photocopy Appendix C in V Crabbe p 271
Parliamentary Counsel has a duty to foresee all possible eventualities that are likely to occur.
INTERPRETATION OF THE CONSTITUTION
Minister of Home Affairs v Fisher (1991) 44 WIR 107
-
interpreting the meaning of the word ‘child’ in the Bermuda constitution to determine
whether it includes illegitimate child.
“…call for a generous interpretation avoiding what has been called the ‘austerity of tabulated
legalism’ suitable to give to individuals the full measure of those fundamental rights and
freedoms. Such a constitutional instrument should be treated as sui generis with its own
principles of interpretation suitable to its characteristics, without necessarily accepting *all the
presumptions that are relevant to legislations within the field of private law”
[*regardless of the meaning attributed to the particular word in other legislative documents]
per Lord Wilberforce p 113
“A constitution is a legal instrument capable of giving rise, amongst other things, to individual
rights capable of enforcement in a court of law. Respect must be paid to the language which has
been used and to the traditions and usages which have given meaning to that language. It is quite
consistent with this, and with the recognition that rules of interpretation may apply, to take as a
point of departure for the process of interpretation a recognition of the character and origin of the
instrument, and to be guided by the principle of giving full recognition and effect to those
fundamental rights and freedoms with a statement of which the Constitution commences.”
ROLE OF FUNCTION OF THE LEGAL DRAFTSMAN
Gordon v AG (1960) 2 WIR 235
-
whether a police officer is a servant of the crown within the meaning of the Crown
Proceedings Act.
Held: (i) in deciding whether a police constable was a servant of the crown it was essential to
take into account the policy of the Ordinance. The main purpose of the Ordinance was to give a
right of redress to anyone injured by the wrongful acts or omissions of employees of the Crown,
and the legislature, having by an act of deliberate policy imposed liability on the Crown for such
acts or omissions, must be taken to have acted with the knowledge that the situation existing
prior to the enactment of the Ordinance imposed intolerable hardship on the subject, and,
accordingly, intended to remedy it.
(ii) the remedy provided by the legislature was intended to be both practical and effective, and
the legislature effected its purpose by the enactment of legislation which, subject to the
exceptions and restrictions contained therein, imposed liability on the Crown in respect of all
classes of its servants
(iii) had there been any intention to except any particular class of Crown servant from the
operation of the Ordinance, the legislature would have done so either by express language or by
language from which such an intention could, by necessary implication, be inferred.
Jagessar and Nandlal (1989) 41 WIR 343
-
whether meaning of the word “corruptly” given by judge in summing up adequate.
“ the adequacy of the direction on the meaning of the word ‘corruptly’ in section 3 depended on
the facts of the particular case ; where the trial judge had properly marshaled the facts, and he
had been clearly mindful of the mischief at which section 3 was aimed and of the onus on the
prosecution to establish beyond reasonable doubt that the Circumstantial evidence contained the
link chain which pointed incontrovertibly to the mischief at which the section was aimed, he had
adequately directed the jury on the issue.”
[These cases show the importance of the draftsman understanding legislative policy]
THE STAGES OF THE DRAFTING PROCESS & ELEMENTS OF AN ACT
See Fisher v Raven (1964) AC 210 ( in note book)
Ward v Holman (1964)2 QB 580
AG v Prince Ernest Augustus of Hanover
Penal provisions:
DPP v Ottewell [1970] AC 643
Per Lord Reid:
“ I would never seek to diminish within its proper sphere the principle that in doubtful cases a
penal provision ought to be given that interpretation which is least unfavourable to the accused.
But it only applies where after full enquiry and consideration one is left in real doubt. It is not
enough that the provision is ambiguous in the sense that it is capable of two meanings”
V. Crabbe
Legislative Drafting - Chpt. 8
The Memorandum to the Bill:
Should contain the salient features of the Bill and state as clearly as possible the objects and
reasons for the introduction of the Bill, the conditions of the law as it stands, the object of the
Bill and the reasons for the introduction of the Bill to Parliament.
Arrangement of sections/ clauses:
This is in fact a collection of the marginal notes
The long title:
It should comprise the main theme, that is, the pith and substance of the Bill. It should not be
vague and imprecise.
The Enacting Formula:
It gives the Act its jurisdictional identity and constitutional authenticity.
Short title:
Convenient means of citing the Act.
In Lonhro Ltd. v Shell Petroleum Co. Ltd (No. 2) Lord Diplock stated that the short title may be
used to assist in the interpretation of the body of an enactment.
Sections:
An Act of Parliament is divided into sections. A section should contain one idea and therefore
one enactment. It should be self-explanatory. It should be self-contained.
Where the composition of the section turns out to be a long one, the section should be broken
into subsections. All the subsections read together must form a coherent and consistent whole.
They should deal with the same idea/ subject matter.
1. Section
(1) Subsection
Paragraphs:
Where a section or subsection is unduly long, it is better broken up into paragraphs. It should be
a unit of thought when read with the introductory words and with the concluding words. A
paragraph may be divided into sub-paragraphs etc.
(a) paragraph
(i)sub-paragraph
Headings and Parts:
They should only be used as a guide to the subject matter of the Act. It does not form part of
the Act. It is intended to clarify the provisions of the Act. An Act of considerable size should
be divided into
Parts.
The Interpretation Section:
An aid to clarity, to achieve consistency and as a method of reducing vagueness. They should
only be used when necessary.
The interpretation section should contain the definition of words that are not restricted in
their application to a particular Part or section or other sub-division of an Act. Words so
restricted should be defined in that Part or Section or subdivision either at the beginning or at
the end of the Part etc.
Construction of the Act:
Provisions intended for a more technical user of the Act than the general reader should be
placed later in the Act.
Application provisions:
Provisions relating to the application of an Act should follow the interpretation section. It
outlines the ambit of the Act and is intended to influence the context of all subsequent
provisions.
Duration:
Statements of Principle:
The principle or objectives of an Act should be stated in clear and concise form and the
earlier that is done the better. The statements of the principles or the objectives of an Act
should be placed close to the beginning of the Act.
General and special provisions:
General provisions should follow the statement of principle or the objectives of the Act. A
special case or an exception to a general principle or statement should follow the general
principle or statement.
Commencement provision:
Internal References:
A reference to another Part, Division, Section, paragraph or subparagraph within an Act
should be identified by its number or letter and not by such terms as ‘ preceding,’
‘following’, or ‘herein provided’.
The expression ‘of this Act’ should not be used unless necessary to avoid confusion where
reference is also made to another Act.
Marginal notes:
A marginal note should be short. It should describe but not summarise the section to which it
relates. Marginal notes should be confined to sections. A marginal note should express in a
concise form the main object of the section to which it relates, or should at least indicate
distinctly its subject matter.
BASIC DRAFTING GUIDELINES
Punctuation (ws#8 pg56)
Douglas v the Police (1992) 43 WIR 175
In this case regard was had to the wording and punctuation of the section which provided:
“ Any person who, in any public place conducts himself in a disorderly manner, or conducts
himself in such a noisy manner as to disturb the neighbourhood, shall be liable…”
it was held that the section created two separate offences: disorderly conduct by behaviour in a
disorderly manner in a public place; and disorderly conduct by behavior in such a noisy manner
as to disturb the neighborhood.
Observations were made on the significance of commas in the interpretation of statutory
provisions.
Per Vincent Floissac CJ p. 178
“The function of the court in relation to a statute is to interpret the statute by ascertaining the
legislative intention in regard thereto. That legislative intention is an inference drawn from the
primary meanings of the words and phrases used in the statute with such modifications of
those meanings a may be necessary to make them consistent with the statutory context.
Those words and phrases, the punctuation marks used and the structure of the sentences in the
statute are among the components of the statutory context by reference to which the legislative
intention is required to be ascertained or the words and phrases are required to be
interpreted………..The first two commas of section 19(1) were evidently inserted by design and
not by accident or in error.”
Shall or may issue- read cases ?
THE PASSAGE OF A BILL IN PARLIAMENT
V. Crabbe
Understanding Statutes - p. 14-15
The committee stage is the most important part of the procedure as Pepper v Hart has shown. At
this stage the Bill is debated clause by clause. Explanations are sought from the minister
responsible for the Bill as to the meaning of some of the provisions. Clarification may be called
for as to the effect of the law.
Michael Zander
The Law Making Process - p. 50-71
[Skimmed Through did not look very helpful.]
INTERPRETATION
The Mischief Rule
V. Crabbe
Understanding Statutes - p 81-97
The rule in Heydon’s Case( 1584) 76 ER 637
( see definition in ws)
was the beginning of what is now referred to as the purpose approach or the mischief rule. This
rule has its drawbacks- the language of the statute may have inadequately expressed the objective
intended to be achieved.
With the mischief rule:
Not only the language, but the circumstances surrounding the enactment are involved; the spirit
rather than the letter of the law becomes important.
It assists the court which is trying to find out why the Act was created in order to give substance
to a word or words in the Act.
The modern approach to the mischief ruleBlack- Clawson Case, Fothergill v Monarch Airlines
Still considers the spirit of the Act, but the spirit is not used to ‘change’ or dominate the letter of
the law….used to determine the meaning of the words used in it.
Black-Clawson International Ltd. v Papierwerke Waldhof-Aschaffenberg AG [1975] 1
AER 810
Per Lord Reid:
“There is a presumption which can be stated in various ways. One is that in the absence of any
clear indication to the contrary Parliament can be presumed not to have altered the
common law farther than was necessary to remedy the ‘mischief’. Of course it may and quite
often does go farther. But the principle is that if the enactment is ambiguous, that meaning which
relates the scope of the Act to the mischief should be taken rather than a different or wider
meaning which the contemporary situation did not call for.”
“The Mischief which this Act was intended to remedy may have been common knowledge 40yrs
ago. I do not think that it is today. But it so happens that a committee ….made a full
investigation of the matter and reported some months before the Act was passed…I think that we
can take this report as accurately stating the ‘mischief’ and the law as it was then understood to
be, and therefore we are fully entitled to look at those parts of the report which deal with those
matters.”
Victoria (City) v Bishop of Vancouver Island [1921] AC 384
Per Lord Atkinson:
“ In the construction of statutes their words must be interpreted in their ordinary grammatical
sense, unless there be something in the context, or in the object of the statute in which they
occur, or in the circumstances with reference to which they are used, to show that they were used
in a special sense different from their ordinary grammatical sense.”
RMB Antoine
CWC Law and Legal Systems - Chpt. 12
The mischief rule is perhaps the oldest known rule of statutory interpretation. Despite its archaic
language, the rule has stood the test of time.
See Bailey v Daniel (1910) 1T&T Sup Ct 379
Lucie- Smith CJ reiterated the 4 elements identified in Heydon’s case. The Ct confirmed that the
first and elementary rule of construction remained the literal rule, but found that it could deviate
from it where adequate grounds are found, either in the history or cause of the enactment or its
context, or in the consequences which would result from the literal interpretation, for concluding
that that interpretation does not give the real intention of the legislature.
“ the true meaning is to be found, not merely from the words of the Act, but from the cause and
necessity of its being made, which are to be ascertained not only from a comparison of its several
parts, but also from extraneous circumstances.”
The modern approach of the mischief rule is to use it in a broader sense to allow the court
to look at the background of the statute. (part of the purposive approach)
In explaining the reborn mischief rule in Black-Clawson, Lord Reid said :
“The word ‘mischief’ is traditional. I would expand it this way. In addition to reading the Act
you look at the facts presumed to be known to parliament…and you consider whether there is
disclosed some unsatisfactory state of affairs which Parliament can properly be supposed to have
intended to remedy by the Act.”
Difficulty
the question which the rule invites is- where is the court to look to identify the mischief?
In Black-Clawson, Lord Diplock noted that, when the rule was first propounded, the mischief
was identified by examining the Preamble and other words of the Statute. It was a rule of
construction of the actual words appearing and nothing else. While he advocated a broader
approach, he did not clarify how far the court is allowed to look.
Bennion
Statutory Interpretation - Part XIX
Stalkeld v Johnson (1848) 2 Exch 256 at p 272
“We propose to construe the Tithe Act 1832 according to the legal rules for the interpretation of
statutes, principally by the words of the statute itself, which we are to read in their ordinary
sense, and only to modify or alter so far as it may be necessary to avoid some manifest
absurdity or incongruity, but no further. It is proper also to consider (1) the state of the law
which it proposes or purports to alter; (2) the mischief which existed, and which it was
intended to remedy; and (3)the nature of the remedy provided, and then to look at the
statutes in pari material as a means of explaining this statute. These are the proper modes of
ascertaining the intention of the legislature.”
Bennion suggests that the reference to the common law in Heydon’s case should nowadays be
treated as widened to include statute law, and indeed all forms of law.
‘the existing body of law forms the background to every Act. Unless the contrary intention
appears, parliament is taken to intend this background to control the Act’s operation. Where an
enactment falls to be construed in relation to a particular factual situation, this means that
the enactment is to be treated as embodied in an Act which itself is part of the whole body of
law. Neither the enactment nor its Act stand in isolation. So far as the Act does not modify
existing relevant rules of law, they continue to apply. That is presumed to be Parliament’s
intention. By implication of law, the express words of the Act are thus greatly enlarged.’
The social mischief to which an enactment is directed is a factual situation, present or shortly
expected, which Parliament desires to remedy. This may range from something obviously wrong
to the possibility of improving an already neutral or even beneficial state of affairs.
The presumptions as to parliament’s intention may help in construing an enactment whose
wording is doubtful. The importance of the mischief goes further than this however. We cannot
be sure whether there is real doubt or not unless we have the mischief in mind….In the
consideration of opposing constructions of an enactment in relation to a particular factual
situation, we may find that bringing the mischief into account helps to decide whether the
enactment is intended to be given a wider or narrower construction.
Notes:
Felix v Burkett And Thomas [1964] 7 WIR 339
Under the authority of s 5 of the Indictable Offences (Preliminary Inquiry) Ordinance, Cap 4, No
1 [T], a magistrate issued to the appellant a warrant to search for and seize goods specified
therein at the respondents’ premises at Lengua Road, Princes Town. Notwithstanding the
absence of any authority thereunder, but purporting to act under s 36 of the Summary Offences
Ordinance, Cap 4 No 17 [T], the appellant seized other articles on the respondents’ premises on
the ground that he had reasonable cause to suspect that they were stolen or unlawfully obtained.
He then took the respondents along with the articles before a magistrate to give an account to his
satisfaction that they were lawfully come by, but after hearing the evidence of the appellant and
the explanation of the respondents the magistrate discharged the respondents. On appeal against
his refusal to convict, the court raised the question whether the appellant acted intra or ultra
vires in seizing the articles and charging the respondents with the unlawful possession thereof.
Held: (i) when due consideration is given (a) to the express provision in s 37 for the issue of a
warrant to authorise the police to enter and search private premises and to seize there, not only
such stolen or unlawfully obtained goods, if any be found, as are specified in the warrant, but
also anything found in the course of such search which there may be reasonable cause to suspect
to have been stolen or unlawfully obtained; (b) to the express authority granted by s 38 to enter
on board any vessel upon a public waterway, and subject as therein provided, to search it and
seize anything found in the course of such search which may be reasonably suspected to have
been stolen or unlawfully obtained; (c) to the absence from s 36 of any right or power of entry, or
of any means or provision for obtaining a right or power of entry, upon any private premises
whatever; and (d) to the inviolability at common law of the privacy of premises upon which the
public have no right, invitation or licence to enter: it is not competent to construe s 36 as an
intendment by the legislature that the police may enter as trespassers upon any private premises,
or, assuming they have entered any such premises by any proper authority or licence, that they
may exercise thereon any of the exceptional powers, not otherwise exerciseable by them, with
which the section specially invests them. It follows that if they enter any private premises by the
authority of a search warrant issued under s 5 of the Indictable Offences (Preliminary Inquiry)
Ordinance, [T], they can seize and carry therefrom only such things, if found, as are specified in
the warrant as the objects of their search, and that the only statutory powers to seize on search
and require an account to be given to a magistrate for anything for which they were not
specifically authorised to search are those conferred by ss 37 and 38 of the Summary Offences
Ordinance, [T].
(ii) For the foregoing reasons the words “in any place” in s 36 of the Summary Offences
Ordinance, [T], must be given a restricted meaning, that is to say, they must be construed as
meaning in any public place. Roberts v Barban ((1930), 6 Trin LR 113) overruled.
Cur adv vult.
WOODING CJ. We had reached the view that the history of the enactment had not assisted
significantly and that it is our duty to interpret it having due regard to its language and context.
We accept the advice of the Privy Council in Attorney-General for Ontario v Mercer (18)
((1883) 8 App Cas at p 778), that:
‘It is a sound maxim of the law that every word ought, prima facie, to be construed in its
primary and natural sense, unless a secondary or more limited sense is required by the
subject or the context.’
The literal interpretation is one which this court has previously adopted as right and proper
for the construction of a statutory provision: see Hope v Smith ((1963), 6 WIR 464). But we
must also bear in mind the exception from the prima facie rule which was recognised and
approved since 1560 in Stradling v Morgan and subsequently in a long line of authority. We
have already referred to the judgment of Sankey, J, in Attorney-General v Brown ([1920] 1 KB
773, and we think it appropriate to cite here two further pronouncements. In Cox v Hakes
((1890), 15 App Cas 506), Lord Herschell said:
‘It cannot, I think, be denied that, for the purpose of construing any enactment, it is right
to look not only at the provision immediately under construction, but at any others found in
connection with it, which may throw light upon it, and afford an indication that general
words employed in it were not intended to be applied without some limitation.’
And Viscount Haldane Lc, in Watney, Combe, Reid & Co, Ltd v Berners ([1915] AC 885, 84
LJKB 1561, 113 LT 518, 79 JP 497, 31 TLR 449, 59 Sol Jo 492, HL, 42 Digest 674, 857)
([1915] AC at p 891), spoke to the same effect as follows:
‘The intention’ (of Parliament) “must be found in the language finally adopted in the
statutes under construction, and in that language alone. No doubt general words may in
certain cases properly be interpreted as having a meaning or scope other than the literal or
usual meaning. They may be so interpreted where the scheme appearing from the language
of the Legislature, read in its entirety, points to consistency as requiring the modification of
what would be the meaning apart from any context ...’
See also R v Hussain, Ex. P DPP saved on floppy
R v George Green (1969) 14 WIR 205
(See full case and judgment saved on floppy)
s 7 (b) of the Dangerous Drugs Law, Cap 90. At the trial the evidence did not disclose whether
the plants which the appellant was found to be cultivating contained any pistillate plant known as
cannabis sativa. Section 2 of that Law provides that in the Law:
“‘ganja’ includes all parts of the pistillate plant known as cannabis sativa from which the resin
has not been extracted and included any resin obtained from that plant but does not include
medicinal preparations made from that plant.’
On appeal against conviction it was urged on behalf of the appellant and conceded by the Crown
that the term “ganja” as contemplated by s 7 (b) of the Law did not include any part of the
staminate plant known as cannabis sativa and that therefore there was no proof that any of the
plants which the appellant was found to be cultivating was ganja within the contemplation of the
law.
Held: (Moody JA, dissenting): the term “ganja” as defined by s 2 of the Dangerous Drugs Law,
Cap 90 is referable only to the pistillate plant known as cannabis sativa and does not include any
part of the staminate plant and that therefore the offence of cultivating ganja, contrary to s 7 (b)
of that Law relates only to cultivating the pistillate plant known as cannabis sativa.
Smith v Hughes [1960] 1 WLR 830
Two common prostitutes, standing on a balcony or behind windows in their house, severally
solicited men passing in the street by tapping on the balcony rail or window pane, attracting their
attention and inviting them into the house. Informations were preferred against each prostitute
charging that she, being a common prostitute, did solicit in a street for the purpose of prostitution
contrary to section 1 (1) of the Street Offences Act, 1959. The prostitutes were convicted.
Held- dismissing the appeals, that on the true construction of section 1 (1) taking into
consideration the mischief at which the Act of 1959 was aimed, it mattered not where a prostitute
stood, (whether on a balcony, or in a room behind a closed, open, or half-open window), if her
solicitation was projected to and addressed to somebody walking in the street, she was guilty of
an offence against section one.
Per Lord Parker CJ- For my part, I approach the matter by considering what is the mischief
aimed at by this Act. Everybody knows that this Act was 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 standing in a doorway or on a balcony, or at a window…in each case her solicitation is
projected to and addressed to somebody walking in the street.
Da Silva v Abrams (1969) 14 WIR 315
The A was convicted by a magistrate of having knowingly kept uncustomed goods on certain
premises, contrary to s. 216 (c) of the Customs Ordinance, Cap. 309. On appeal it was argued on
behalf of the A that an essential ingredient of the charge was missing viz., the intent to defraud
the revenue of the duty payable on the goods.
Held-having regard to the history of s. 216 of the customs ordinance, Cap. 309, and
notwithstanding the language of para. (c) thereof, it was incumbent on the prosecution to prove
an intent to defraud the revenue.
Royal College of Nursing of the United Kingdom v Dept. of Health and Social Security
[1981] 1 AER 545
Held:- the 1967 Act was to be construed in the light of the fact that it was intended to amend and
clarify the unsatisfactory and uncertain state of the law previously existing and in the light of the
policy of the Act, which was to broaden the grounds on which abortions might lawfully be
obtained and to ensure that abortions were carried out with proper skill in hygienic conditions in
ordinary hospitals as part of ordinary medical care and in accordance with normal hospital
practice in which tasks forming part of the treatment were entrusted as appropriate to nurses and
other members of the staff under the instructions of the doctor in charge of the treatment.
Accordingly, provided a doctor prescribed the treatment for the termination of pregnancy,
remained in charge and accepted responsibility throughout, and the treatment was carried out in
accordance with his discretions, the pregnancy was ‘terminated by a registered medical
practitioner’ for the purposes of the 1967 Act and any person taking part in the termination was
entitled to the protection afforded by s 1(1)
AG for Ontario v Mercer [1883] 8 AC 767
The question to be determined in this case is whether lands in the province of Ontario, escheated
to the Crown for defect of heirs, “belong” to the province of Ontario or to the Dominion of
Canada.
Per Lord Chancellor- it is a sound maxim of law, that every word ought, prima facie, to be
constructed in its primary and natural sense, unless a secondary or more limited sense is required
by the subject or the context.
R v Maginnis [1987] 1 AER 907
A package of cannabis resin was found in the defendants’s care when he was arrested in
connection with an alleged assault. The D claimed that the package was not his but had been left
in the car on the previous evening by a friend of his whom he expected would collect it from
him. He was charged with and convicted of possession of a controlled drug with intent to supply
it to another, contrary to s 5 (3) of the Misuse of Drugs Act 1971. He appealed, contending that
his intention to return the package to its owner did not amount to an intention to ‘supply’ drugs
within s 5(3).
Held:- A person who in was in unlawful possession of a controlled drug which had been
deposited with him by another person for safekeeping had the necessary ‘intent to supply it to
another’ within s 5(3) of the 1971 Act if his intention was to return the drug to that other person
and for that other person’s purposes. Although ‘supply’ connoted more than the mere transfer of
physical control of a chattel or object from one person to another (since handing over had to be
for the purpose of enabling the recipient to use the chattel or object for his own purposes), it was
not a necessary element that the supply be made out of the provider’s own personal resources. It
followed that the d had been rightly convicted.
Per Lord Keith of Kinkel- the issue in the appeal is concerned with the meaning properly to be
attributed to the word ‘supply’ in ss4(1) and 5(3). This is to be ascertained in the usual way by
reference to the ordinary natural meaning of the word together with any assistance which may be
afforded by the context….The word ‘supply’ in its ordinary natural meaning, conveys the idea of
furnishing or providing to another something which is wanted or required in order to meet the
wants or requirements of that other….In my opinion it is not a necessary element in the
conception of supply that the provision should be made out of the personal resources of the
person who does the supplying.
Cotton v Vogan [1895] 2 QB 652
The Metage on Grain (Port of London) Act, 1872, s.4, which entitles the corporation of London
to a duty “in respect of all grain brought into the port of London for sale” applies only to grain
brought in for sale as such, and not to grain brought in to be manufactured into other articles of
commerce.
Grain brought into the port of London was taken to the mills of the consignees. Part of it was
there ground into meal between rollers, and then sold by the consignees in that condition. The
remainder was crushed and cracked between rollers, and then sifted so as to separate the crushed
and cracked grain from the meal resulting from such crushing and cracking, which was sold
separately. The crushed and cracked grain was then mixed in certain proportions with other sorts
of grain which had been similarly treated, and when so mixed was sold for horse food.
Held- that the corporation were not entitled to duty under the Act in respect of the grain.
Per Lord Esher MR – This is an Act dealing with matters of business and its phraseology must be
construed according to the ordinary business meaning of the words. The ordinary business
meaning of the words “grain brought into the port of London for sale” appears to me to be “grain
brought into the port of London for sale as grain.” That is the necessary implication from the
words used.
Unwin v Hanson [1891] 2 QB 115
By 5&6 Wm. 4, c. 50, s. 65, justices of the peace have power to order and direct that trees
growing near a highway, which prejudice the highway by excluding the sun and wind therefrom,
be “pruned or lopped”; and, if the owner of the trees makes default in complying with the order,
the surveyor of highways for the district is authorized to “prune and lop” such trees.
Held – that the term “lop” as used in this section, meant to cut off the branches laterally, and,
therefore, that the section did not give any power or authority to the justices or the surveyor in
respect of cutting off the tops of any trees (topping).
Per Lord Esher MR- if the Act is directed to dealing with matters affecting everybody generally,
the words used have the meaning attached to them in the common and ordinary use of the
language. If the Act is one passed with reference to a particular trade, business, or transaction,
and words are used which everybody conversant with the trade, business, or transaction, knows
and understand 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….I think that the proper way to construe the Act, under those circumstances, is that it was
only intended to give power to cut off the branches.
Munby v Furlong [1977] 2 AER 953
The taxpayer commenced practice as a barrister on 1st September, 1972. During the period 1st
September to 31st August 1973 it was necessary for him to purchase certain law reports and
textbooks to establish a library for the purpose of his practice. The textbooks were likely to be
replaced by new editions in the future, although it would normally be between four and nine
years before the new editions were purchased. The taxpayer claimed that the expenditure on the
provision of ‘plant’, within the meaning of s 41 (1)(a) of the Finance Act 1971, and that
accordingly he was entitled to an allowance in respect of the expenditure under s 41(1) and 47
(1) of the 1971 Act.
Held: the word ‘plant’ in s 41(1)(a) of the 1971 Act extended to the apparatus or chattel which
were used by a professional man in the day to day exercise of his profession. So interpreted, the
word ‘plant’ was not confined to objects used by him intellectually in the course of carrying on
his profession and therefore included books purchased by a barrister for the purpose of his
practice. It followed that the sums expended by the taxpayer in purchasing law reports and
textbooks was capital expenditure which qualified for an allowance under s41(1) of the 1971
Act.
Great Western Railway Co. v Carpalla United China Clay Co. Ltd. [1909] 1 Ch. 218
China clay underlying land in Cornwall purchased by a railway company for the purposes of its
undertaking, and occupying only a small fraction of the subsoil, is a ‘mineral’ within the
meaning of s. 77 of the Railways clauses Consolidation Act, 1845.
Per Fletcher Moulton LJ- In the first place let me say that I cannot entertain any doubt as to china
clay being a mineral. It seems to me to be typically a mineral in the ordinary and in the legal
acceptance of the term….The question is as to the interpretation of an ordinary English word in
its proper legal acceptation, and that is for the court, and is not a matter of evidence.
Maunsell v Olins [1975] AC 373
Involved a construction of the Rent Act 1968. The P was the freeholder of a farm of some 106
acres, including a farmhouse, two cottages and other farm buildings . Whether the D’s cottage
formed part of the ‘premises’ of the farm.
Held:- that the ‘premises’ to which section 18(5) of the Act related were any premises which, as
a matter of fact, applying accepted principles, would be held to be a dwelling house for the
purposes of the Act. Accordingly, the farm was not ‘premises’ of which the cottage formed a part
and the cottage was not protected.
Corporation of the City of Victoria v Bishop of Vancouver Island [1921] 2 AC 384
Sect. 197, sub-s., of the Municipal Act (British Columbia), exempts from municipal rates and
taxes “every building set apart and in use for the public worship of God”
Held:- the above exemption applies to the land upon which a building of the description
mentioned is erected as well as to the fabric itself.
The Literal Rule
RMB Antoine
CWC Law and Legal Systems - Chp 12
The literal rule presumes that the best way to interpret the will and intention of Parliament is to
follow the literal meaning of words.
The Sussex Peerage Case (1844) 8 ER 1034
Per Tendal CJ:
“If the words of the statute are in themselves precise and unambiguous, then no more can be
necessary than to expound those words in their natural and ordinary sense. The words themselves
alone do, in such cases, best declare the intention of the lawgiver.”
The reliance placed on the literal and natural meaning of words used in a statute means that
judges are not required, nor expected, to look elsewhere for assistance in interpreting the statute.
The words themselves, are sufficient and independent. The background to the legislation, its
policy objectives, other sections within the statute, and other potentially useful indices of
meaning, are all excluded. The court may in situations of doubt have recourse to the preamble to
the Act, which is viewed as a ‘key to open the minds of the makers of the Act.’
The literal rule may even apply where the literal meaning may lead to an apparent absurdity.
R v Ramsonahai and Duke (1961) 3 WIR 535
Highlighted the unpredictability of the literal rule.
Guyanese case.
There was an appeal against conviction for the offence of ‘conspiracy with another to prosecute
any person for an alleged offence knowing that person to be innocent.’ A police officer
prosecuted a person on the false allegation of the two appellants.
The Federal Supreme Court held that:
“ the words ‘to prosecute’ in s 330 are to be construed in their strict sense and are not to be
extended to include a conspiracy between two or more persons to cause another person to be
prosecuted”
Hope v Smith (1963)6 WIR 464
Even where the words in their literal and natural meaning would cause hardship, the court has no
authority to deviate from the clear meaning of the statute.
Here the court construed the phrase ‘ any summary offence’ found under s 104 of the Summary
Courts Ordinance, which gave the police power to arrest such offender and place them in
custody. The court found that the phrase was not confined to property offences.
“…where the language of an enactment is clear and unambiguous, it is not the function of the
courts to relieve against any harshness which it may or may be thought to occasion. That is a
matter for Parliament to consider.”
The cases discussed above illustrate that the literal interpretation of words used in a statute do
not always evoke the intention of Parliament.
(DID NOT FIND BENNION VERY HELPFUL)
Notes
1. Words which have a wide literal meaning may be restricted to a narrower meaning by the
context in which they are used: DPP v Schildkamp [1969] 3 All ER 1640.
2. The words cannot be read in isolation. They must be examined within the context of the
statute: AG v Prince Augustus of Hanover [1957].
Per Viscount Simmonds:
“Assistance may be obtained from the preamble to a statute in ascertaining the
meaning of the relevant enacting part, since the words derive their colour and
context from their context. But the preamble is not to affect the meaning other
wise ascribable to the enacting part unless there is a compelling reason…It is
not a compelling reason that the enacting words go further than the preamble
indicated.”
3.
In Felix v Thomas [1966] 10 WIR 507 their Lordships gave the words “in any place”
their natural meaning, and held that they were different in meaning from “in any public
place” and that, consequently, the section referred to goods under control anywhere.
Eaton Baker And Another v R (1975) 23 WIR 535
PRIVY COUNCIL
Cap 189 [J], provides:
“Sentence of death shall not be pronounced on or recorded against a person under the age of
eighteen years, but in place thereof the court shall sentence him to be detained during Her
Majesty’s pleasure...”
Section 20 (7) of the Jamaica (Constitution) Order in Council 1962 provides:
“No ... penalty shall be imposed for any criminal offence which is severer in degree or
description than the maximum penalty which might have been imposed for that offence at the
time when it was committed.”
Section 26 (8) provides:
“Nothing contained in any law in force immediately before the appointed day shall be held to be
inconsistent with any of the provisions of this Chapter; and nothing done under the authority of
any such law shall be held to be done in contravention of any of these provisions.”
The appellants were, on 3 March 1971, convicted of the offence of murder, committed on 26
November 1969. On the date of the commission of the offence the appellants were under the age
of eighteen years. By the date of their conviction, however, they had attained that age. They
were sentenced to death. They appealed against their sentence to the Court of Appeal. Their
appeals were dismissed. By special leave they appealed to her Majesty’s Privy Council. .
Held: (Lord Salmon dissenting): (i) that the words of s 29 (1) of the Juveniles Law, Cap 189,
were not capable, in their ordinary grammatical meaning, of bearing the meaning that the date
for ascertaining the age of a person for the purpose of the subsection was that of the commission
of the offence; the words plainly meant that, for the purpose of the sentence of death, the relevant
date was that on which the conviction occurred;
(ii) that there was no inconsistency between s 29 (1) of the Juveniles Law and s 20 (7) of the
Constitution of Jamaica, but even if the former, on its true construction, had been inconsistent
with the latter it would have been saved from invalidity by s 26 (8) of the Constitution;
(iv) (per Lord Salmon): that s 29 (1) was capable of meaning either that sentence of death could
not be passed on a person under eighteen years at the date of the offence or that such a sentence
could not be passed on a person under that age at the date of his conviction; the court was,
therefore, free to decide which meaning was intended by the legislature and there were strong
grounds for holding that the legislature could not have intended the arbitrary, unreasonable and
unjust results that would follow if the latter meaning was ascribed to the subsection;
Appeal dismissed.
LORD DIPLOCK
Considered in isolation the words of each of these subsections, in their Lordships’ view, are
not capable, as a matter of language, of bearing the meaning that the date for ascertaining the age
of a person for the purposes of either of the subsections is that of commission of the offence.
The subsections are not dealing with criminal responsibility, the age of which is fixed at eight
years of age by s 3 of the Juveniles Law. They are dealing only with the sentencing of persons
whose criminal responsibility has been established at a trial.
In their Lordships’ view if the words are to be given their ordinary grammatical meaning
they are free from any ambiguity on this point.
That the words used were intended to be understood in their ordinary grammatical meaning is
confirmed by a consideration of the relationship of s 29 to the other provisions of Part IV
. It is enough to say that they would be unworkable if the relevant date for determining
whether a person was a “juvenile” for the purposes of a particular section were the date of
commission of the offence and not the date at which the particular stage of the proceedings dealt
with by the section was reached. Their Lordships can see no valid reason for distinguishing
between the language used in these sections, particularly s 29 (2), and the language used in s 29
(1).
Where the meaning of the actual words used in a provision of a Jamaican statute is clear and
free from ambiguity, the case for reading into it words which are not there and which, if there,
would alter the effect of the words actually used can only be based on some assumption as to the
policy of the Jamaican legislature to which the statute was intended to give effect. If, without the
added words, the provision would be clearly inconsistent with other provisions of the statute it
falls within the ordinary function of a court of construction to resolve the inconsistency and, if
this be necessary, to construe the provision as including by implication the added words. But in
the absence of such inconsistency it is a strong thing for a court to hold that the legislature cannot
have really intended what it clearly said but must have intended something different. In doing
this a court is passing out of the strict field of construction altogether and giving effect to
concepts of what is right and what is wrong which it believes to be so generally accepted that the
legislature too may be presumed not to have intended to act contrary to them.
LORD SALMON (dissenting):.
The function of the court is to give effect to the intention of the legislature as expressed in the
language of the statute under consideration. If the language is capable of bearing only one
meaning then that is the meaning which the courts are bound to apply even if to do so leads to
injustice. If however, as here, the language of the statute is, as I think, capable of two meanings,
the court is free to decide which is the meaning intended by the legislature. Nevertheless, in
making that decision, the court must first consider which of the two meanings is the more
consistent with a strictly literal construction
It is, of course, well settled that a statute must ordinarily be construed according to its literal
meaning but not when there are strong grounds for concluding that this is not the meaning which
the legislature could have intended, eg if this meaning leads to manifestly unjust or absurd
results. Even so, however unjust or absurd these results may be, the statute must be given its
literal meaning unless its language is reasonably capable of bearing some other meaning which
avoids injustice and absurdity
Looking at s 29 (1) in isolation I have no doubt that it is reasonably capable of bearing either
of the meanings to which I have referred; nor have I any doubt that to adopt the meaning which
makes it mandatory for anyone who may commit murder at any time between the ages of eight
and eighteen to be hanged for the crime providing that he is not sentenced to death until after he
has attained eighteen years of age leads to shocking and indeed barbarous results.
I cannot accept that this can have been the intention of the legislature nor that the legislature
can have overlooked the sort of circumstances of which I have given a few random examples.
Still less can I accept that the legislature intended to introduce a law having such strange and
palpably inhuman results in the hope that they might be rectified by the prerogative of mercy.
Enmore Estates Ltd v D R Singh (1976)22 WIR 206
(see full case and judgment saved on floppy)
The plaintiff, DR Singh, was employed by the defendants, Messrs Enmore Estates, Ltd as their
head laboratory technician. He was a monthly paid employee and after he retired he brought
proceedings in the court below claiming arrears of pay for the work he performed on Sundays
and public holidays for which he was entitled to be paid overtime under s 24 of the Factories
Act, Cap 95: 02, but was not paid. He took the matter to court despite the fact that he had
collectively agreed with his employers to accept “time-off” in lieu of overtime payment during
the time of his employment. The trial judge awarded him $2,093.05 with $750 costs, after ruling
that although he was not employed in manual labour, he was nevertheless “employed in a factory
or in any occupation in a factory” within the meaning of s 24 (1) of Cap 95: 02, and so became
entitled to overtime pay for the Sundays and public holidays on which he worked.
On appeal to the Guyana Court of Appeal, his employers, the defendants/appellants, while
admitting that he worked on a certain number of Sundays and public holidays, contended the Act
was intended to apply restrictively to those factory workers employed in manual labour, and not
to the respondent whose occupation was of a supervisory and clerical nature. Accordingly, they
submitted s 24 of the Factories Act was not applicable to him.
The question, therefore, was the proper interpretation of the words “employed in a factory or in
any occupation in a factory” in s 24 (1) of the Factories Act, Cap 95: 02.
Held:
(ii) (per Haynes C) that there is nothing in the definition of a factory” in s 2, nor anything
inconsistent with or repugnant to the ordinary literal meaning of “employed in a factory” in s 24
(1), nor any justification whatever for cutting it down;
(iii) (per Haynes C) that the respondent fell within the provisions of s 24. He was therefore
entitled to overtime pay and the trial judgment was right;
AG for Canada v Hallet (1952) AC 427
Held;- that the act of 1945, by words which were neither vague nor ambiguous, on its true
construction gave the Governor in Council the power to carry out what he had purported to
achieve. There is no rule of construction that general words in a statute are incapable of
interfering with private rights, and although the Act of 1945 did not include a specific reference
to the subject of appropriation, the words “may do and authorize such acts and things, and make
from time to time such orders and regulations, as he may…deem necessary or advisable” gave
the amplest possible discretion in the choice of methods, and applying the paramount rule of
interpretation that every statute must be expounded according to its manifest or expressed
intention, there could not be implied an exclusion of any power in the circumstances to acquire
compulsorily any piece of property.
Disher v Disher (1964) 2 WLR 21
A wife complained to justices that the husband had deserted her. At the close of the wife’s case
before the justices the husband’s counsel submitted that, as a matter of law, desertion had not
been proved. The justices rejected that submission but refused to allow the husband’s counsel to
address them on the facts. They found desertion proved, and made an order in favour of the wife.
On appeal by the husbandHeld:- (1)that under rule 18(2) of the Magistrates’ Courts Rules, 1952, counsel for the husband
had the right to address the court once on the facts, and that he did not exhaust that right by
making a submission in law.
(2)That the justices’s failure to allow the exercise of that right constituted a breach of the
principles of natural justice rendering the proceedings void and necessitating a rehearing.
Per Cairns J – In my view it cannot be the intention of the rule that an address to the justices
made by way of submission of law would debar an advocate from addressing the bench on the
facts.
Duport Steel v Sirs [1980] 1 AER 529
Per curiam- It endanger public confidence in the political impartiality of the judiciary, which is
essential to the continuance of the rule of law, if judges, under the guise of interpretation,
provide their own preferred amendments to statutes which experience of their operation has
shown to have had consequences that members of the court before whom the matter comes
consider to be injurious to the public interest….The legitimate questions for a judge to ask in his
role as interpreter of the enacted law are whether parliament, by the words that it has used in the
statute to express its intentions, has defined the category of acts that are entitled to the immunity,
and whether the acts done in the particular case fall within that description.
Croxford v Universal Insurance Co. Ltd [1936] 2 KB 253
Interpretation of a section of the Road Traffic Act of 1934.
Per Scott LJ- ..principle that you do not give a statute retrospective operation unless there is
perfectly clear language showing the intention of Parliament that it shall have a retrospective
application.
DPP v Schildkamp [1969] 3 AER 1640
The respondent who was charged with a number of offences in respect of a company pleaded
guilty, inter alia, to carrying on the business with intent to defraud creditors contrary to s 332(3)a
of the Companies Act 1948. On the question whether before a prosecution can be initiated under
s 332(3) the company must be in liquidation,
Held – Lord Guest and Viscount Dilhorne dissenting) since Parliament never intended, when
creating the offence originally (as s 75(3) of the Companies Act 1928), to create an offence
capable of prosecution before the commencement of a winding-up, and since subsequent
consolidation Acts had not altered the law, the company must be in liquidation before any
prosecution could be initiated because sub-s (3) is so limited in its application by reason of its
context in the Act
Per Lord Upjohn- But, my Lords, this in my opinion is the wrong approach to the construction of
an Act of Parliament. The task of the court is to ascertain the intention of Parliament; one cannot
look at a section, still less a subsection, in isolation, to ascertain that intention; one must look at
all the admissible surrounding circumstances before starting to construe the Act
Per Lord Reid - No one disputed that in construing a provision in an Act of Parliament one
begins by considering its words in their context of the whole Act. And I think it is now clear that
there is a very strong presumption that a provision in a consolidation Act does not alter the preexisting law. The question which has arisen in this case is whether and to what extent it is
permissible to give weight to punctuation, cross-headings and sidenotes to sections in the Act.
Taking a strict view one can say that these should be disregarded because they are not the
product of anything done in Parliament. I have never heard of an attempt to move that any of
them should be altered or amended, and between the introduction of a Bill and the Royal Assent
they can be and often are altered by officials of Parliament acting in conjunction with the
draftsman.
But it may be more realistic to accept the Act as printed as being the product of the whole
legislative process, and to give due weight to everything found in the printed Act. I say more
realistic because in very many cases the provision before the court was never even mentioned in
debate in either House, and it may be that its wording was never closely scrutinised by any
member of either House. In such a case it is not very meaningful to say that the words of the Act
represent the intention of Parliament but that punctuation, cross-headings and sidenotes do not.
So if the authorities are equivocal and one is free to deal with the whole matter I would not
object to taking all these matters into account provided that we realise that they cannot have
equal weight with the words of the Act. Punctuation can be of some assistance in construction.
A cross-heading ought to indicate the scope of the sections which follow it but there is always a
possibility that the scope of one of these sections may have been widened by amendment. But a
sidenote is a poor guide to the scope of a section for it can do no more than indicate the main
subject with which the section deals.
If we take these matters into consideration then we are in effect searching for the intention of
the draftsman rather than the intention of Parliament.
And then it becomes very relevant to
ask—could any competent draftsman have adopted this form of drafting if he had intended the
result for which the Crown contends? If the answer is no, then there is such real doubt that it
must be resolved in favour of the accused.
The Golden Rule
RMB Antoine
CWC Law and Legal Systems -
The golden rule makes the assumption that Parliament does not intend an absurd or ineffective
result. Words will be implied into a statute if they are absolutely necessary to avoid such a result.
The rule was restated in Grey v Pearson [1857] 6 HC Cas 61
per Parke B (dictum):
“…in construing…statutes, and all written instruments, the grammatical and ordinary sense of
the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or
inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense
of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther.”
Where the main object and intention of a statute are clear, it must not be reduced to a nullity by
the drafter’s unskillfulness or ignorance of the law, except in a case of necessity, or the absolute
intractability of the language used.
Nonetheless, courts are very reluctant to substitute words in a statute, or to add words to it, and it
has been said that they will only do so where there is a ‘repugnancy to good sense’
The rule allows the court to alter the structure of a sentence, give unusual meanings to particular
words, alter their collation, or reject them altogether.
Davis v R (1962) 2 WIR 375
The appellant parked his vehicle at an airport. He was charged and convicted by a magistrate for
an offence which prohibited ‘parking a vehicle elsewhere than in the place provided for that
purpose and in the manner required by an authorized officer.’
On appeal, it was submitted by counsel for the appellant that the provision yielded an absurd
meaning.
The COA agreed. The COA found that a literal interpretation of the regulation made ‘nonsense’
of it. The intention of the statute maker could only have been to require that all persons park in
the authorized parking places and that when they do park there, to park in a manner that was in
accordance with directions.
Accordingly, the court introduced the words ‘elsewhere than’ to qualify the words ‘in the manner
required’ so that the regulation could read intelligibly and sensibly and the object of the Act was
preserved.
It held that the appellant was charged with a breach of the first portion of the regulation-‘parking
elsewhere than in a place provided’- and was clearly proved to have committed that offence.
Bennion
Statutory Interpretation -pg 679 (2nd Ed)
The courts give a very wide meaning to the word ‘absurdity’, using it to include virtually any
result which is unworkable or impractical, inconvenient, anomalous or illogical, futile or
pointless, artifical, or productive of a disproportionate counter-mischief.
In rare cases there are overriding reasons for applying a construction that produces an absurd
result, for example where it appears that parliament really intended it or the literal meaning is too
strong.
Notes
Enmore-Hope Village District Council v Mahamood Shaw Et Al (1974) 21 WIR 275
The Local Government Ordinance, Cap 150 [G] provides, inter alia, for the appraisement of
properties in village and country districts for rating purposes. Section 100 provides for the
completed list of appraisement to be signed and posted up, and for a notice of the completion of
the appraisement to be published in the Gazette. Section 101 (1) provides the right of appeal to
any proprietor who 276 considers the appraisement of his lot or building to be excessive; and
sub-s (2) enacts as follows:
“(a) by filing with the clerk of the court, within twenty-one days after the publication in the
Gazette of notice of the completion of the appraisement, a plaint in writing setting out the
grounds of appeal, and
(b) by serving, within seven days after the date of the filing of the plaint, a copy thereof upon the
local authority of the village or country district.”
The appraisement of the properties in the Enmore-Hope Village District where the respondents
were proprietors was duly carried out and a notice of the completion of the appraisement was
published in the Gazette on 16 December 1972, while copies of the appraisement were not
posted up until 3 January 1973.
Held (Luckhoo C dissenting): (i) that the application of the literal rule to sub-s 2 (a) of s 101
would lead to an absurdity;
(ii) that, having regard to the history of the legislation, and the intention of the legislature, the
true meaning to be given to the section was that the posting-up of the appraisement must be prior
to or simultaneously with the publication of the notice in the Gazette, for to do otherwise
amounted to a diminution of a right which the legislature prescribed for the benefit of the
proprietor who wished to exercise his right of appeal.
Montagu & Co. v Swiss Air Transport (1966) 2 QB
Per Lord Denning – I do not think we should give a strict interpretation to article 8(q) in the
Convention. We should not give it so rigid an interpretations as to hamper the conduct of
business.
Re Lockwood (1958) Ch. 231
The next-of-kin of a spinster who died intestate were the issue of her uncles and aunts of the
whole blood. The Crown claimed the estate of the intestate as bona vacantia under the
Administration of Estates Act, 1925, as amended by the Intestates’ Estates Act of 1925, as
amended, required the survival of a member of the primary class, namely, uncles or aunts, in
order that the issues of that class could claim in the intestacy:Held – that the construction for which the Crown contended would have the effect of preferring
the remoter to the nearer in blood and could not have been intended by the legislature when
laying down the rules for ascertaining next-of-kin; and the court, to avoid such a capricious
result, was entitled to ignore the words “ or issue of any member if that class,” or to treat them as
not binding it to construe “class” in the earlier part of the subsection as confined to the primary
class of uncles and aunts; accordingly, the estate of the intestate was held on trust for the issue of
the uncles and aunts.
Adler v George [1964] 2 QB 7
The D, who had obtained access to a Royal Air Force Station, a prohibited place within the
meaning of the Official Secrets Act 1920, was actually within its boundaries when he obstructed
a member of her Majesty’s forces engaged in security duty in relation to the station. He was
charged with having in the vicinity of a prohibited place obstructed a member of her Majesty’s
forces engaged in security duty in relation to the prohibited place, contrary to section 3 of the Act
of 1920. He contended that, as he was actually in the prohibited place, he could not be said to be
in the vicinity of the prohibited place. He was convicted. On appeal.
Held- dismissing the appeal, that on the true construction of section 3 of the Officials Secrets
Act, 1920, the words “ in the vicinity of “ were to be read as “ in or in the vicinity of”; and that
accordingly, the D had committed the offence charged.
Per Lord Parker CJ- It would be extraordinary, I venture to think it would be absurd, if an
indictable offence was thereby created when the obstruction took place outside the precincts of
the station, albeit in the vicinity, and no offence at all was created if the obstruction occurred on
the station itself.
TUTORIAL
A-G v Phang and Another
Held: under s 8A of the Tax Ordinance, Cap 298 [BG], tax is payable by the defendants in
respect of their pool betting business in the Colony on bets made and collected by or on behalf of
them outside the Colony even if such money or money’s worth is not actually remitted to and
received by them within the Colony.
GORDON J. This is a summons brought by the plaintiff under O 42, r 2, of the Rules of the
Supreme Court, 1955 [BG], for the determination by the court of the following questions:
(a) whether upon a true construction of the provisions of s 8A (4) of the Tax Ordinance,
Cap 298 [BG], as amended by the Tax (Amendment) Ordinance, 1960 [BG], the tax payable
by virtue of the said subsection by the defendants in respect of their aforesaid pool betting
business is not payable alike on bets made and collected by or on behalf of the defendants
outside of the Colony of British Guiana as on bets made and collected by them within this
Colony irrespective of whether or not money or money’s worth paid to them as bets outside
of this Colony is actually remitted to and received by them within this Colony;
(b) whether upon a true construction of the said provisions money or money’s worth,
collected by or on behalf of the defendants outside of this Colony as bets made outside of
this Colony and taken into account by the defendants for the purposes of their said business
or for the purpose of determining the amount of winnings in respect of the pool to which
such bets relate, or both, are received in the course of that business within the contemplation
of the said provisions and are in consequence taxable thereunder, although not actually
received by the defendants in this Colony.
On behalf of the plaintiff it was urged that the tax is leviable on all monies received in the
course of business regardless of whether such monies paid by way of a bet were collected in
British Guiana or elsewhere and not brought to British Guiana.
11
The defendants argued that having regard to the wording of the section the only reasonable
interpretation which could be applied to it was that the tax was leviable on monies received in
British Guiana and not elsewhere.
Subsections (1), (2), and (4) of s 8A, as inserted by s 2 of Ordinance No 1 of 1960, are as
follows:
‘8A. (1) In this section, unless the context otherwise requires—
‘business’ means any business the carrying on of which involves the receipt of money or
money’s worth paid as bets;
‘bet’ means any bet by way of pool betting and includes any transaction which is, on the
part of any person taking part therein, only not a bet by way of pool betting by reason of his
not in fact making any stake;
‘money or money’s worth paid as a bet’ includes any payment of money or money’s
worth—
(a) as stake money;
(b) in performance of any express or implied promise made by any person for the purpose
of making a bet; or
(c) for the purpose of entitling any person to make a bet,
whether such payment is made with a view to the same or any part thereof, or an amount
equal thereto or to any part thereof, being sent or otherwise transferred out of British Guiana
or not.
(2) A bet shall be deemed, for the purposes of this section, to be made by way of pool
betting if it is one of any number of bets made on terms that the winnings of such of the
persons making the bets as are winners shall be, or be a share of, the stake money paid or
agreed to be paid on the bets, or shall be or shall include an amount which is to be paid to, or
is divisible in any proportions among, such of those persons as are winners (whether such
amount is determined by reference to the stake money paid or agreed to be paid on the bets
or not, and whether the pool betting is promoted, or the bets or any of them made, in British
Guiana or not), where the bets are made by filling up and returning coupons or other printed
or written forms, or otherwise howsoever.
****
(4) There shall be raised, levied and collected on every receipt, in the course of any
business, of money or money’s worth paid as a bet a tax equal to ten per centum of the gross
amount of the receipt, and every person who is the proprietor of a business shall pay every
Thursday to the district commissioner the tax on the gross amount of every such receipt in
the course of the business during the week ending on the preceding Saturday....’
It is observed from sub-s (2) that for purposes of the section the definition of a bet is
extremely wide, embracing in its scope not only stake money whether paid in British Guiana or
not, but also where the effect of a bet is carried out by the filling up and the returning of coupons
or other written forms, or otherwise howsoever.
Subsection (4) provides for the collection of a prescribed tax on every receipt (in the course
of business) of money or money’s worth paid as a bet as defined in sub-s (2).
Having regard to the sequence of the subsections it is clear that “receipt ... of money or
money’s worth paid as a bet ...” is referable to that wide definition of “bet” as envisaged by sub-s
(2) and as such that it contemplates receipts not only in respect of monies whether received in
British Guiana or elsewhere but also tokens for such monies (eg, coupons or other written forms)
and transactions appertaining to stake money in whatsoever form it may be conceived whether in
British Guiana or elsewhere.
12
It was conceded by the respondent that a legislature can legislate with extraterritorial effect
provided the language is clear and unequivocal. It was urged that unlike s 5 of the Income Tax
Ordinance, Cap 299 [BG], which provides:
‘Income tax ... shall be payable ... upon income of any person accruing in or derived from
the Colony or elsewhere and whether received in the Colony or not...’,
and s 9 (2) of the Estate Duty Ordinance, Cap 301 [BG], which provides:
‘The term ‘property’ ... also includes property and effects wherever situate’,
the language of the section under consideration did not clearly express the intention that the tax
contemplated was leviable on receipts for monies collected outside British Guiana. In the
absence of such an intention expressed in clear and precise language, and on the application of
the normal canons of construction, the term in the section “receipt in the course of any business”
could only mean receipt in the country; accordingly, that meaning could not be extended to mean
receipts for money received outside and not brought into the country.
It was further urged that having regard to the definition of “money or money’s worth paid as
a bet” in s 8A (1) (c) and the definition of “bet” in s 8A (2) of the Ordinance, the intention of the
legislature was to limit the extra-territorial effect of the Ordinance to those items, and had the
legislature intended “every receipt in the course of business” to have extra-territorial application,
precise words such as “whether such receipts are actually received in the Colony or not” would
have been used.
When the wide meaning of “bet” in sub-s (2) is applied to sub-s (4) it is clear from the
context of the language of sub-s (4) that the intention of the legislature is to impose a tax on
money received as bets made abroad and that the words “in the course of any business” do not
import any limitation.
In the words of Lord Russell of Killowen, CJ, in A-G v Carlton Bank ([1899] 2 QB 158, 68
LJQB 788, 81 LT 115, 63 JP 629, 47 WR 650, 15 TLR 380, 39 Digest 294, 748) ([1899] 2 QB at
p 164):
‘The duty of the court is, in my opinion, in all cases the same, whether the Act to be
construed relates to taxation or to any other subject, namely to give effect to the intention of
the legislature, as that intention is to be gathered from the language employed having regard
to the context in connection with which it is employed. The court must no doubt ascertain
the subject-matter to which the particular tax is by the statute intended to be applied, but
when once that is ascertained it is not open to the court to narrow or whittle down the
operation of the Act by considerations of hardship or business convenience or the like.’
In this Ordinance the words used in sub-s (4) are clear in their meaning; it therefore behaves
the court to interpret the section in that light.
In support of their contention that monies received abroad and not brought into the country
did not fall within the scope of the tax, created by sub-s (4), the defendants relied on the ruling in
the case of Gresham Life Assnce Soc v Bishop ([1902] AC 287, 71 LJKB 618, 86 LT 693, 66 JP
755, 50 WR 593, 18 TLR 626, 4 Tax Cas 464, HL, revsg, [1901] 1 KB 153, CA, 28 Digest
(Repl) 201, 841), where it was held by the House of Lords that certain interest on foreign
investments was not received by the company within the United Kingdom within the meaning of
s 100 of the Income Tax Act, 1842 [UK], and therefore not liable to tax.
The question decided in the Gresham case ([1902] AC 287, 71 LJKB 618, 86 LT 693, 66 JP
755, 50 WR 593, 18 TLR 626, 4 Tax Cas 464, HL, revsg, [1901] 1 KB 153, CA, 28 Digest
(Repl) 201, 841) is distinguishable from the second question posed in this summons, for in the
former the court found that the investments concerned did not fall within the meaning of a
particular section, while in the latter, having regard to the meaning of “business” in sub-s (1) and
“bet” in sub-ss (1) and (2) of s 8A of the Tax Ordinance [BG], “receipts ... paid as a bet” fall
within the meaning of the section.
In the circumstances it matters not whether the monies so collected are brought into the
country or not.
In the light of the above reasons the replies to the questions asked in the summons and
amended summons of the plaintiff are both in the affirmative.
Questions answered in affirmative.
Modern/ purposive approach
See RMB Antoine, chpt 12
See also Cross Statutory Interpretation 3rd Ed. (KL36 1995 / K)
-
provides good overview and perspective, easy reading but long. Did not get to complete
reading or make notes on it.
R v Allen (1985) 1 AC 1029
The R stayed at a hotel and incurred a bill of 1, 286. 94. he left the hotel without paying. He
subsequently explained that he was in financial difficulties and said that he genuinely hoped to
be able to pay the bill. He was arrested and charged with making off without payment, contrary
to s3 of the Theft Act 1978. His defence was that he had acted honestly and had genuinely
expected to pay the bill from the proceeds of business ventures. The J directed the jury that the
intent to avoid payment in s 3(1) of the Act of 1978 did not have to be permanent but need only
apply to the date on which the R had avoided the payment on the spot that had been required or
expected from him by the hotel. The jury convicted the R. The COA allowed his appeal against
conviction. On appeal by the Crown by leave of the HOLs-
Held- dismissing the appeal, that on the true construction of s3(1) of the Theft Act 1978, having
regard to the mischief that it had been intended to deal with, the intent to avoid payment referred
to must be an intent permanently to avoid payment or to defer payment altogether and not merely
an intent to delay or defer payment and that accordingly the R’s conviction had rightly been
quashed.
Fraser v Greenaway (1992) 41 WIR 136
The court considered the words of the Land Suveyors Act 1975, which had repealed the earlier
Act of 1879. The new Act provided that surveyors licensed under the old law ‘shall be deemed to
have been licensed’ under the new Act. In litigation to determine whether the appellant was so
licensed, the court, because of the ‘chronic ambiguity’ of the words ‘shall be deemed’, found it
necessary to rely on a purposive approach.
At p. 38-39 “ I prefer to be guided by the fundamental rule that the interpretation of a statutory
word….is the ascertainment of the meaning which the legislature intending that the word or
phrase should bear…section 32 of the new law cries out for a purposive construction…”
“…statutory content comprises every other word or phrase used in the statute and all relevant
circumstances which may be regarded as indication of the legislative intention…”
Jones v Wrotham Estates Ltd (1979) 1 AER 286
Per Lord Diplock
My Lords, it would seem most unlikely that either the draftsman of the Leasehold Reform
Act 1967, or those members of either House of Parliament by whose votes it was passed, had
envisaged the possibility that any ground landlord would enter into an intermediate lease in the
precise terms adopted by Wentworth and Wrotham or in any other terms which would have the
same economic consequences as between ground landlord and intermediate tenant. If it has been
envisaged it seems likely that the draftsman would have done something about it to prevent its
having the effect of enhancing the price payable by the resident tenant for the freehold; but how
he would set about achieving this and what words he would have used to do so is a matter of
pure speculation.
My Lords, I am not reluctant to adopt a purposive construction where to apply the literal
meaning of the legislative language used would lead to results which would clearly defeat the
purposes of the Act. But in doing so the task on which a court of justice is engaged remains one
of construction, even where this involves reading into the Act words which are not expressly
included in it. Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd provides an
instance of this; but in that case the three conditions that must be fulfilled in order to justify this
course were satisfied. First, it was possible to determine from a consideration of the provisions
of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to
remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence
overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the
purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what
were the additional words that would have been inserted by the draftsman and approved by
Parliament had their attention been drawn to the omission before the Bill passed into law.
Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in
the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a
written law which Parliament has passed. Such an attempt crosses the boundary between
construction and legislation. It becomes a usurpation of a function which under the constitution
of this country is vested in the legislature to the exclusion of the courts.
Pepper v Hart (1993) 1 AER 42
Held – (1) (Lord Mackay LC dissenting) Having regard to the purposive approach to
construction of legislation the courts had adopted in order to give effect to the true intention of
the legislature, the rule prohibiting courts from referring to parliamentary material as an aid to
statutory construction should, subject to any question of parliamentary privilege, be relaxed so as
to permit reference to parliamentary materials where (a) the legislation was ambiguous or
obscure or the literal meaning led to an absurdity, (b) the material relied on consisted of
statements by a minister or other promoter of the Bill which lead to the enactment of the
legislation together if necessary with such other parliamentary material as was necessary to
understand such statements and their effect and (c) the statements relied on were clear.
Furthermore, the use of parliamentary material as a guide to the construction of ambiguous
legislation would not infringe s 1, art 9 of the Bill of Rights since it would not amount to a
‘questioning’ of the freedom of speech or parliamentary debate provided counsel and the judge
refrained from impugning or criticising the minister’s statements or his reasoning, since the
purpose of the courts in referring to parliamentary material would be to give effect to, rather than
thwart through ignorance, the intentions of Parliament and not to question the processes by
which such legislation was enacted or to criticise anything said by anyone in Parliament in the
course of enacting it
(2) (Per Lord Keith, Lord Bridge, Lord Griffiths, Lord Ackner, Lord Oliver and Lord BrowneWilkinson) Section 63(2) of the 1976 Act was clearly ambiguous because the ‘expense incurred
in or in connection with’ the provision of in-house benefits could be interpreted as being either
the marginal cost caused by the provision of the benefit in question or a proportion of the total
cost incurred in 43 providing the service both for the public and for the employee (the average
cost). However, the parliamentary history of the 1976 Act and statements made by the Financial
Secretary to the Treasury during the committee stage of the Bill made it clear that Parliament had
passed the legislation on the basis that the effect of ss 61 and 63 was to assess in-house benefits,
and particularly concessionary education for teachers’ children, on the marginal cost to the
employer and not on the average cost of the benefit. Accordingly (per curiam, Lord Mackay LC
so construing the section in any event and Lord Griffiths resolving the ambiguity in the
taxpayers’ favour) s 63 should be given that meaning
PRESUMPTIONS
See handwritten NOTES
Sweet v Parsley (1969) 1 AER 347
The appellant, a teacher, took a sublease of a farmhouse just outside Oxford. She intended to
live in the house and travel into Oxford each day. This proved impracticable and she decided to
reside in Oxford and to let rooms in the house. Her tenants shared the use of the kitchen. The
appellant retained the use of one room for herself and visited the house occasionally to collect
letters, to collect rent from the tenants, and generally to see that all was well. The only form of
control which she exercised over her tenants (other than collecting the rent) was to complain if
they made excessive noise late at night on the infrequent occasions when she staved overnight at
the house. On 16 June 1967, whilst she was in Oxford, the police searched the house and garden
and found receptacles containing cannabis and LSD hidden in the garden and cigarette ends
containing cannabis in the kitchen.
The Divisional Court dismissed her appeal against
conviction of being concerned in the management of premises which were used for the purpose
of smoking cannabis, contrary to s 5(b)a of the Dangerous Drugs Act 1965, on the ground that
she had been concerned in the management of the premises, although the justices found that she
had no knowledge whatever that the house was being used for the purpose of smoking cannabis
or cannabis resin. On appeal,
Held – The appeal would be allowed, because no offence under s 5(b) of the Act had been
disclosed, since—
(a) (per Lord Reid, Lord Wilberforce and Lord Diplock) for the offence under s 5(b) to be
committed it must be shown that it was the appellant’s purpose that the premises be used for
smoking cannabis; ie that she intended that the premises be so used.
(b) (per Lord Morris of Borth-y-Gest and Lord Pearce) s 5(b) required that, before the
appellant could be convicted, she must be shown to have knowledge of the particular purpose to
which the premises were being put.
Per Lord Reid - A Divisional Court dismissed her appeal, holding that she had been
concerned in the management of those premises. The reasons given for holding that she was
managing the property were that she was in a position to choose her tenants, that she could put
them under as long or as short a tenancy as she desired, and that she could make it a term of any
letting that smoking of cannabis was not to take place. All these reasons would apply to every
occupier who lets out parts of his house or takes in lodgers or paying guests. But this was held to
be an absolute offence following the earlier decision in Yeandel v Fisher.
How has it come about that the Divisional Court has felt bound to reach such an obviously
unjust result? It has, in effect, held that it was carrying out the will of Parliament because
Parliament has chosen to make this an absolute offence. And, of course, if Parliament has so
chosen, the courts must carry out its will, and they cannot be blamed for any unjust
consequences. But has Parliament so chosen? I dealt with this matter at some length in Warner
v Metropolitan Police Comr. On reconsideration I see no reason to alter anything which I there
said. But I think that some amplification is necessary. Our first duty is to consider the words of
the Act; if they show a clear intention to create an absolute offence, that is an end of the matter.
But such cases are very rare. Sometimes the words of the section which creates a particular
offence make it clear that mens rea is required in one form or another. Such cases are quite
frequent. But in a very large number of cases there is no clear indication either way. In such
cases there has for centuries been a presumption that Parliament did not intend to make criminals
of persons who were in no way blameworthy in what they did. That means that, whenever a
section is silent as to mens rea, there is a presumption that, in order to give effect to the will of
Parliament, we must read in words appropriate to require mens rea.
it is firmly established by a host of authorities that mens rea is an essential ingredient of every
offence unless some reason can be found for holding that that is not necessary. It is also firmly
established that the fact that other sections of the Act expressly require mens rea, for example
because they contain the word “knowingly”, is not in itself sufficient to justify a decision that a
section which is silent as to mens rea creates an absolute offence. In the absence of a clear
indication in the Act that an offence is intended to be an absolute offence, it is necessary to go
outside the Act and examine all relevant circumstances in order to establish that this must have
been the intention of Parliament. I say “must have been”, because it is a universal principle that
if a penal provision is reasonably capable of two interpretations, that interpretation which is most
favourable to the accused must be adopted.
If this section means what the Divisional Court have held that it means, then hundreds of
thousands of people who sublet part of their premises or take in lodgers or are concerned in the
management of residential premises or institutions are daily incurring a risk of being convicted
of a serious offence in circumstances where they are in no way to blame. For the greatest
vigilance cannot prevent tenants, lodgers or inmates or guests whom they bring in from smoking
cannabis cigarettes in their own rooms. It was suggested in argument that the appellant brought
this conviction on herself because it is found as a fact that, when the police searched the
premises, there were people there of the “beatnik fraternity“. But surely it would be going a very
long way to say that persons managing premises of any kind ought to safeguard themselves by
refusing accommodation to all who are of slovenly or exotic appearance, or who bring in guests
of that kind. And, unfortunately, drug taking is by no means confined to those of unusual
appearance. Speaking from a rather long experience of membership of both Houses, I assert
with confidence that no Parliament within my recollection would have agreed to make an offence
of this kind an absolute offence if the matter had been fully explained to it. So, if the court ought
only to hold an offence to be an absolute offence where it appears that that must have been the
intention of Parliament, offences of this kind are very far removed from those which it is proper
to hold to be absolute offences.
.
Commissioner of C&E v Thorn Electrical Ind. Ltd. (1975) 3 AER 881
On 19 July 1972 Mrs F entered into a written agreement with the taxpayers whereby she agreed
to hire a television set. Under the terms of the agreement Mrs F was to pay the taxpayers a
monthly rental in advance. On 20 July the taxpayers installed the television set in Mrs F’s house.
Thereafter Mrs F made monthly payments to the taxpayers under the agreement. On 27 July the
Finance Act 1972, which introduced value added tax, received the Royal Assent. The Act came
into effect on 1 April 1973. Mrs F continued to make monthly payments to the taxpayers under
the agreement of 19 July 1972. The Customs and Excise Commissioners determined that the
payments made by Mrs F after 1 April 1973 were chargeable to value added tax in that, by virtue
of reg 14(1)aof the Value Added Tax (General) Regulations 1972, made by the commissioners
under s 7(8)b of the 1972 Act, the television set was to be treated as having been successively
supplied to Mrs F on the occasions when the hire payments were received by the taxpayers. A
value added tax tribunal allowed an appeal by the taxpayers, but on appeal the Divisional Court
([1975] 1 All ER 439, 1 WLR 437, [1975] STC 41) restored the commissioners’ decision. The
taxpayers appealed, contending that s 7(8) was not to be construed as having a retrospective
effect so as to be applicable to payments under a hire agreement made before the passing of the
Act, but was only applicable to cases where goods ‘are supplied’ after the 1972 Act had come
into force, and that the 1972 regulations were therefore ultra vires insofar as they purported to
charge value added tax on payments under a hire agreement entered into before 27 July 1972.
Held – The words ‘are supplied’ in s 7(8) and ‘letting of goods on hire’ in s 5(2)c of the 1972
Act denoted a continuing process or state of affairs so that the date when the letting or hiring had
begun was immaterial. Both before and after the passing of the 1972 Act there had been a
‘letting on hire’, and therefore, by virtue of s 5(2), a ‘supply’ of a television set to Mrs F, since
the words ‘letting of goods on hire’ in s 5(2) did not refer to the actual making of the contract of
letting but to the continuous process of hiring. It followed that the 1972 regulations were intra
vires and therefore the payments made by Mrs F after 1 April 1973, for the hire of the television
set, were liable to value added tax under reg 14(1). Accordingly the appeal would be dismissed
Glen v Sampson 19 WIR 237
The defendant was in possession of a parcel of land from 1938 to 1960 after which he went to
live elsewhere. He returned to the physical occupation of the land in 1964, the same year the
plaintiff also went into occupation. No one else was in occupation between 1960 and 1964.
Upon the defendant re-entering the land, and removing the plaintiff’s crops therefrom, the latter
sued in trespass, claiming that he had been in occupation by virtue of a lease from a third person.
The defendant alleged that he had not vacated his possession, and that by virtue of the provisions
of the Title to Land (Prescription and Limitation) Ordinance, Cap 184, the plaintiff was not
entitled to succeed.
Held: that where in the interpretation of a statute, the result will be the impairment of vested
rights, the statute must not be given retroactive effect;
Smith v LJ Williams Ltd. 32 WIR 395
The company, acting as shipping agents and as agents for particular principals, was
discriminated against by S, the Chief Immigration Officer of Trinidad and Tobago, when acting
in his official capacity with regard to immigration formalities. In some instances it was shown
that, in appearing to favour another person or organisation, S had in fact acted illegally. The
company applied to the High Court for a declaration that S had been in breach of the company’s
rights under section 4 of the Republican Constitution (and also under the corresponding
provisions of the 1962 Constitution). Bernard J held that there had been unfair treatment of the
company and that in consequence there had been a violation of the company’s right to equality
before the law (section 4(b)) and to its right to equality of treatment by a public authority
(section 4(d)). In respect of the latter, he held that by reference to S’s duties, powers and
functions (particularly the question whether or not he was endowed with coercive powers) S was
a public authority. On appeal
against this decision, the fact that S was a public authority was conceded and the Court of Appeal
was satisfied that the company by instituting the proceedings was not in fact claiming entitlement
to treatment which was contrary to the law.
Held dismissing the appeal–
(1) Although the company had applied to S to allow third parties to enter and remain in the
country, it was entitled to make such applications on behalf of third parties and was accordingly
entitled to complain of the manner in which such applications had been dealt with.
(2) Notwithstanding the exclusion of corporations from the definition of “individual” in the
Interpretation Act 1962, section 50(n), bodies corporate were entitled to the protection of such of
the provisions of sections 4 and 5 of the Republican Constitution as by their nature they were
capable of enjoying.
(3) In order to establish that it had suffered a breach of its right to equality of treatment by a
public authority contrary to section 4(d), it was not necessary for the company to show that the
breach fell within the introductory words of section 4 (“discrimination by reason of race, origin,
colour, religion or sex”).
Rosehall v Lovejoy Reeves 23 WIR 348
Their Lordships can now proceed to the third and substantial issue in the appeal–namely the
interpretation of s 3 (2) of the Act of 1968 quoted above. The general objective of this provision
is clear enough. Section 9A (1) had changed the then existing legal position by providing that
sub-division contracts theretofore invalid under the Land Improvements Law (Cap 227) were not
to be treated as invalid, and, provided that sanction of the Board was obtained–even though
subsequently to the contract–might be executed by transfer or conveyance. Section 3 (2) gave
retroactive effect to this provision, so that it was necessary to deal with transactions which might
have taken place between the retroactive date (1 January 1954) and the date of enactment (22
August 1968). In general terms the objective was, as might be expected, to protect rights in
property which had accrued in this period. The only question is as to the nature of the rights so
protected.
Under the contract dated 26 June 1968 (or 25 May 1968, if that is the correct date), North
Western acquired an equitable interest in the property, which, if nothing else had supervened,
they had the right to convert into a legal interest through transfer and registration. The argument
for the appellant essentially is that it must have been the legislative intention to protect an
interest of this character, which, at the time when it arose, had priority over any interest of the
respondent. The words “transfer or conveyance” should therefore be given a wide meaning.
Their Lordships are unable to accept this argument.
It would indeed have been quite
possible, and even reasonable, for protection to have been given to any interest in property
acquired for valuable consideration prior to the date of the amending Act, but in order to do so
different language would have had to be used. The words “transfer or conveyance” both taken
singly, and even more so when read in conjunction, can only refer to legal interests in land
brought about, in the case of registered land, by transfer, and in the case of unregistered land by
conveyance. This conclusion, which in any event would be hard to 351 avoid on the wording of
the subsection alone, is reinforced by s 9A (1) which refers to a contract being executed by
transfer or conveyance; a clear distinction is drawn between the position arising under a contract,
and that which results when the legal estate passes. Moreover, it seems clear from the words (in
s 3 (2)):
‘as respects transactions which took place between the operative day and the date of
enactment of this Act’
that, in order to obtain protection, the transfer or conveyance must be effected within this period:
the words quoted govern those which follow.
BG Credit Corp. v Deen 8 WIR 213
The respondent was a member of the New Mahaicony Co-operative Credit Bank, Ltd, which was
operated under the Co-operative Credit Banks Ordinance, 1944, No 16 [BG], and as such
received a loan from that bank in 1952. Up to 1954, he had not repaid the loan. In 1954, the
British Guiana Credit Corporation Ordinance, 1954, No 13 [BG] was enacted whereby the
British Guiana Credit Corporation (the appellants in this appeal) was created, and the functions
of all credit banks, including the New Mahaicony Co-operative
Credit Bank, Ltd, were transferred to that body. Section 55 (2) of the latter Ordinance provided:
“Every loan made under the Co-operative Credit Banks Ordinance, 1944, by the local credit
banks, together with any interest thereon, and still due and owing on the date of coming into
operation of this Ordinance shall be deemed to have been made with the authority of the
Corporation and all promissory notes, Bills of Sale, Charges and instruments of whatsoever
nature for securing the repayment of any such loan to the local credit banks shall be deemed to
have been made in favour of the Corporation which is hereby substituted without any other
formality for the local credit banks in every deed and every mortgage or charge and other
document evidencing any such loan for securing its repayment and all the rights, powers,
privileges and authorities vested in or exercisable by the local credit banks in connection with
any such loan are hereby transferred to and shall be exercisable by the Corporation.”
On 2 June 1962, the British Guiana Credit Corporation (Amd) Ordinance, 1962, No 10 [BG] was
enacted amending the 1954 Ordinance, No 13 [BG], to provide that nothing in the Limitation
Ordinance, Cap 26 [BG] shall in any way affect any right of the Corporation in connection with
any loan made by it. It was also provided that that Ordinance should be deemed to have come
into operation at the date of the commencement of the 1954 Ordinance, No 13 [BG]. The
relevant provisions of the Limitation Ordinance, Cap 26 [BG] are set out in the judgment of
Jackson JA.
Upon the respondent being sued for the recovery of the loan, it was successfully pleaded on his
behalf that the debt was statute barred under the Limitation Ordinance, Cap 26 [BG]. On appeal,
Held (Stoby JA, dissenting): (i) the 1962 Ordinance applied only to loans made by the appellant
corporation, and that loans made by credit banks were outside the scope of that Ordinance;
(ii) the law to be applied in cases of procedure where there is no specific exception, is that which
at the hearing of the claim survives to the determination of the action;
(iii) (adopting the dictum of James LJ, in Re Levy, Ex p Walton ((1881), 17 Ch D 746, 50 LJ Ch
657, 45 LT 1, 30 WR 395, CA, 4 Digest (Repl) 289, 2641)), when a statute enacts that something
shall be deemed to have been done, which in truth and in fact is not done, the court is entitled
and bound to ascertain for what purposes and between what persons the statutory fiction is to be
resorted to.
Appeal dismissed.
Endell Thomas v AG 32 WIR 375
The Police Service Commission was established under the 1962 Constitution of Trinidad and
Tobago and, under section 99(1), was given power to remove and exercise disciplinary control
over persons in the police force. The plaintiff, a police officer, was charged with the disciplinary
offences of neglect of duty and a failure to carry out instructions of a senior officer contrary to
regulation 74 of the Police Service Commission Regulations 1966, which itemised matters which
constituted disciplinary offences and which had been made by the commission in purported
exercise of its power under section 102(1) and (2) of the Constitution to make regulations for its
own procedure. Following the disciplinary proceedings, the plaintiff was dismissed from the
Police Service under regulation 99. The plaintiff challenged the disciplinary proceedings and the
validity of the order removing him from the Police Service on an application to the High Court.
The Attorney-General, who was the defendant in the proceedings, initially maintained that the
regulations were valid; but conceded before the Privy Council that regulation 74 was ultra vires;
he maintained, however, that the regulations imposing penalties in disciplinary proceedings (eg
regulation 99) were intra vires and that regulation 74 was severable from the 1966 Regulations
as a whole. The Attorney-General further maintained that the plaintiff, as a public servant, was
in any event dismissible at pleasure and that the jurisdiction of the courts to inquire into his
dismissal by the commission was specifically excluded by section 102(4) of the Constitution.
Braithwaite J found for the plaintiff on all issues, but his decision was reversed by a majority of
the Court of Appeal. On further appeal’
Held that the appeal should be dismissed–
(1) The power of the Police Service Commission to remove from office in the Police Service
under section 99(1) of the 1962 Constitution (cf sections 84, 93, 99C) embraced every means by
which a police officer’s contract of employment (not being a contract for a specific period) could
be terminated against his will; but the power to remove meant the power to remove only for
reasonable cause (of which the commission was the sole judge), although the expression
“reasonable cause” was not restricted to wilful misconduct; the right to dismiss public officers at
pleasure was inconsistent with both the 1962 Constitution and the Republican Constitution.
(2) The right to publish in suitable form the various kinds of misconduct which (in the opinion of
the Police Service Commission) were capable of justifying disciplinary proceedings was inherent
in the commission’s right (under section 99(1) of the 1962 Constitution) to exercise disciplinary
control over the police; although regulation 74 was conceded to be ultra vires the commission’s
power to regulate its own procedure (section 102(1) and (2) of the 1962 Constitution), it
contained material which the commission might properly have so published as a notice; the
references to regulation 74 in the charges could not have misled the plaintiff and could properly
be treated as mere surplusage in that context and, accordingly, as not invalidating the imposition
of the penalty of removal from the Police Service under regulation 99 (which was intra vires the
commission’s regulation-making power) for wilful neglect of duty or breach of duties implied in
the plaintiff’s contract of employment.
(3) It was for the court and not for the Police Service Commission to determine what, on the true
construction of the Constitution, were the limits to the functions of the commission; if the
commission did something beyond its functions or the validity of which was challenged as a
contravention of rights guaranteed by the Constitution, section 102(4) of the 1962 Constitution
would not oust the jurisdiction of the courts; since, however, the removal of the plaintiff from the
Police Service in the exercise of the commission’s disciplinary control over him fell fairly and
squarely within the commission’s functions and jurisdiction conferred by section 99(1) of the
1962 Constitution, the provisions of section 102(4) excluded any inquiry by the High Court into
the validity of what had been done.
Attorney-General v Thomas (1979) 31 WIR 355 affirmed.