MISCHIEF RULE IN INTERPRETATION

MEANING OF SUBJECT TO ANY CUSTOMARY LAW IN WILLS LAW

The introductory phrase “subject to any customary law relating thereto” necessarily makes the power given to a testator under the subsection dependent upon the particular customary law permitting it. In effect, the power of the testator to devise his real and personal estates by Will is limited by the extent, if any, to which its exercise is permissible under the relevant customary law.

– Bello CJN. Idehen v. Idehen (1991) – SC. 271/1989

MARGINAL NOTES IN STATUTES

Marginal notes, otherwise known as side notes or section heads are short notations appearing above or beside each section of a statute or regulation. While marginal notes are not part of a statute, they provide an interpretative aid to Courts and are useful in considering the purpose of a section and the mischief at which it is aimed. See per Eso, JSC in OLOYO V. ALEGBE (1983) 2 S.C.N.L.R. 35 AT 57; Per Idigbe, JSC in UWAIFO V. AG BENDEL STATE (1982) 7 SC 124 AT 187 188, OSIEC & ANOR V. AC & ORS (2010) LPELR-2818 (SC), INAKOJU & ORS V. ADELEKE & ORS (2007) LPELR 1510 (SC), YABUGBE V. C.O.P (1992) LPELR 3505 (SC).

— A. JAURO, JSC. UBA v Triedent Consulting Ltd. (SC.CV/405/2013, July 07, 2023)

THE WORD “MAY” SYNONYMOUS WITH “SHALL”

In Ushie v. Agbalu (2013) JELR 51127 (CA), the court relied on: Iyoho v. Effiong where the Supreme Court per A. M. Mukthar, JSC (as she then was) said: “Although the word ‘may’ is used in the provision, it does not necessarily mean that it means permissible. ‘May’ in ‘Black’s Law Dictionary, 8th Edition, page 1000, has been defined inter alia as ‘loosely, is required to; shall; must…In dozens of cases, courts have held may to be synonymous with shall or must, usually in an effort to effectuate legislative intent.”

COURT SHOULD AVOID CONSTRUCTION THAT WILL CAUSE CHAOS

In Okotie Eboh v. Manager (supra) Pats-Acholonu, JSC (of blessed memory) pronounced as follows: ‘An interpretation that seeks to emasculate should be avoided as it would do disservice to the citizenry and confine everyone into a legal container or labyrinth from which this court may not easily extricate itself ——– I believe that though justice is blind, it is nevertheless rooted in the nature of society and therefore the court should avoid constructions that could cause chaos and disenchantment. Justice must be applied in a way that it embraces and optimizes social engineering that is for the welfare of society. Enlightened society should expect a highly refined and civilized justice that reflects the tune of the time.’

FUNDAMENTAL PRINCIPLES THAT GOVERN THE INTERPRETATION OF OUR CONSTITUTION

I think I ought to state at this stage that, generally, the fundamental principles that govern the interpretation of our Constitution are:

(i) That such interpretation as would serve the interest of the Constitution, best carry out its object and purpose and give effect to the intention of the framers thereof should be preferred;

(ii) In the above regard, all the relevant provisions of the Constitution must be read together and not disjointly. See Ojokolobo v. Alantu (1987) 3 NWLR (Pt.61) 377;

(iii) Where the words of any section are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with some other provisions of the Constitution and effect must be given to those provisions without any recourse to any other consideration;

(iv) So, too, where the provisions of the Constitution are capable of two meanings, the court must choose the meaning that would give force and effect to the Constitution read together as a whole and promote its object and purpose. See Nafiu Rabiu v. The State (1981) 2 NCLR 293; (1980) 8 – l I S.C. 130; Attorney-General of Ogun State v. Attorney-General of the Federation (1982) 1-2 S.C. 13; Chief Dominic Ifezue v. Livinus Mbadugha and another (1984) 1 SCNLR 427; (1984) 5 S.C. 79 at 100-101; (v) Although our courts may in appropriate cases give due regard to international jurisprudence and seek guidance, as persuasive authorities only, from the decisions of the courts of other common law jurisdictions on the interpretation and construction of similar provisions of their Constitutions which are in pari materia with the relevant provisions of our Constitution, the court will nevertheless accord due weight to our peculiar circumstances, the generally held norms of society and our values, aspirations and local conditions. See too Nafiu Rabin v. The State (supra); Senator Adesanya v. President of the Federal Republic of Nigeria (1981) 5 S.C. 112; Attorney-General of Bendel State v. Attorney-General of the Federation (1981) 10 S.C. 1; Ade Ogugu and others v. The Stare (1994) 9 NWLR (Pt.366) 1 at 22 – 28 etc.

— Iguh JSC. Onuoha v State (1998) – SC. 24/1996