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INTERPRETATION OF THE WORD “SHALL”

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When the word “shall” is used in a statute it connotes the intendment of the legislator that what is contained therein must be done or complied with. It does not give room for manoeuvre of some sort, or evasiveness. Whatever the provision requires to be done must be done, and it is not at all negotiable. In interpreting the word ‘shall’ as used in enactments, Uwais, CJN in the case of Captain E.C.C. Amadi v Nigerian National Petroleum Corporation (2000) 10 NWLR (Part 674) 76 reiterated the interpretation in earlier authorities thus:– “It is settled that the word ‘shall’ when used in an enactment is capable of bearing many meanings. It may be implying a mandate or direction or giving permission. (See Ifezue v Mbadugha (1984) 1 SCNLR 427 at 456–7). In this present case we are concerned with whether it has been used in a mandatory sense or directory sense. If used in a mandatory sense then the action to be taken must obey or fulfill the mandate exactly; but if used in a directory sense then the action to be taken is to obey or fulfill the directive substantially. See Woodward v Sersons (1875) L.R. 10 CP 733 at page 746; Pope v Clarke (1953), Julius v Lord Bishop of Oxford (1880) 5 A.C. (H.L.) 215 at page 222 and 235 and State v Ilori (1983) 1 SCNL 94 at 110 …”

— Mukhtar, JSC. Buhari v. INEC (2008) – SC 51/2008

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WE SHOULD AVOID INTERPRETATION WHICH WOULD REDUCE THE LEGISLATIVE TO FUTILITY

Nokes v. Doncaster Amalgamated Collieries, Limited (1940) A,C, 1014, Viscount Simon, L.C, staled at page 1022: “If the choice is between two interpretations, the narrower of which will fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.”

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INTERPRETATION OF THE WORD “SHALL”

I return to section 146(1) of the Electoral Act. The third word in the section is “shall”. It is an obligatory and mandatory word conveying a command and compulsion. It is peremptory in nature and content. It is a word of authority imposing a duty mostly on an unnamed person. Courts of law mostly interpret the word in the above context of authority and command; bereft of discretion. (See Achineku v Ishagba (1988) 4 NWLR (Part 89) 411; UNTHBM v Nnoli (1994) 8 NWLR (Part 363) 376; Lt.-Gen Bamaiyi (Rtd) v Attorney-General of the Federation (2001) 12 NWLR (Part 727) 468; Ogidi v The State (2005) 5 NWLR (Part 918) 286). Although the word could, at times, convey a permissive meaning, like “may” it is my view that it conveys its usual and ordinary meaning of obligation and command in section 146(1).

— Niki Tobi, JSC. Buhari v. INEC (2008) – SC 51/2008

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PRINCIPLES GUIDING THE INTERPRETATION OF THE NIGERIAN CONSTITUTION

In FEDERAL REPUBLIC OF NIGERIA v MUHAMMADU MAIGARI DINGYADI (2018) LPELR-4606 (CA), in the following way at page 33: “One main guiding post is that the principles upon which the Constitution was established rather than the direct operation or literal meaning of the words used measure the purpose and scope of its provisions: See Global Excellence Communications Ltd v. Donald Duke (2007) 6 NWLR (Pt. 1059) 22 @ 41-41 (SC); Attorney General of Bendel State v. Attorney General of the Federation (1982) 3 NCLR 1; Saraki v. F.R.N. (2016) 3 NWLR (Pt. 1500) 531; Skye Bank Plc v. Iwu (2017) 16 NWLR (Pt. 1590) 124. There is always a need for the fulfilment of the object and true intent of the Constitution. Therefore, the Constitution must always be construed in such a way that it protects what it sets out to protect and guide what it is meant to guide Adeleke v. Oyo State House of Assembly (2006) 6 NWLR (Pt. 1006) 608. In interpreting the Constitution of a nation, it is the duty of the Court to ensure the words of the Constitution preserve the intendment of the Constitution Okogie v. A.G. Lagos State (1989) 2 NCLR 337, Abaribe v. Speaker, Abia State House of Assembly (2002) 14 NWLR (Pt. 788) 466, Marwa v. Nyako (2012) LPELR-7837 (SC). Every Constitution has a life and moving spirit within it and it is this spirit that forms the raison de’ entre of the Constitution without which the Constitution will be a dead piece of document. The life and moving spirit of the Constitution of this country is captured in the Preamble. It has been held that when a Constitutional provision is interpreted, the cardinal rule is to look to the Preamble to the Constitution as guiding star, and the directive principles of State Policy as the book of interpretation’, and that while the Preamble embodies the hopes and aspirations of the people, the Directive Principles set out the proximate grounds in the governance of the country Thakur v. Union of India (2008) 6 SCC 1. In other words, in interpreting the wordings of section 212(1)(a) of the 1999 Constitution (as amended), the Court should be guided by principles upon which the Constitution was established rather than by the direct operation or literal meaning of the words used in the provision, and where the literal meaning of the words used are not in consonance with the guiding principles, literal interpretation must be jettisoned for another approach that accords with the guiding principles of the Constitution Abaribe v. Speaker, Abia State House of Assembly (supra) (2002) 14 NWLR (Pt. 788) 466; Global Excellence Communications Ltd v. Donald Duke (2007) 6 NWLR (Pt. 1059) 22. The interpretation that would serve the interest of the Constitution and best carries out its objects and purpose must always be preferred – Kalu v. State (1988) 13 NWLR 531.”

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WORDS AND PHRASES ARE TO BE GIVEN THEIR ORDINARY MEANING

Under the literal rule of interpretation of statute, words and phrases in enactments are to be given their ordinary, original or grammatical meanings even if it will create hardship, inconvenience or injustice to the parties in so far as it will not result to absurdity. See, B.A.J (NIG) LTD. v. OGUNSEYE (2010) 4 NWLR (1184) 343, AMAECHI v. INEC (2007) 9 NWLR (PT. 1080) 504, UWAGBA v. FRN (2009) 15 NWLR (P. 1163) 91, OWENA BANK v. STOCK EXCHANGE (1997) 7 SCNJ 160.

— A.O. Obaseki-Adejumo, JCA. FRSC v Ehikaam (2023) – CA/AS/276/2019

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INTERPRETATION OF S.22 LAND USE ACT

Firstly, the position of section 22 of the Act, is undoubtedly, that a holder of a right of occupancy, may enter into an agreement or contract, with a view to alienating his said right of occupancy. In entering into such an agreement or contract, he does not need the consent of the Governor. He merely operates within the first leg/stage of a “transfer on sale of an estate in land” which leg/stage ends with the formation of a binding contract for a sale constituting an estate contract at best. However, when he comes to embark on the next leg/stage of alienating or transferring his right of occupancy which is done or effected, by a conveyance or deed, which culminates in the vesting of the said right in the particular “purchaser”, he must obtain the consent of the Governor in order to make the transaction valid. If he fails to do so, then the transaction, is null and void under Section 22 of the Act.

– Ogbuagu, JSC. Brossette v. Ilemobola (2007)

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“MAY” MEANS MANDATORY WHERE A DUTY IS IMPOSED

UDE V. NWARA & ANOR. (1993) JELR 43303 (SC): “I agree with Chief Umeadi that although section 28(1) of the Law states that the lessor “may enter a suit”, “may” should be construed as mandatory i.e. as meaning “shall” or “must”. I believe that it is now the invariable practice of the courts to interpret “may” as mandatory whenever it is used to impose a duty upon a public functionary the benefit of which enures to a private citizen.”

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