LEGAL DRAFTING AND INTERPRETATION

LITERAL RULE
There are two literal rules:
1. The ordinary literal rule applied everyday by everybody, including lawyers as they read
and try to understand written material.
2. The legal literal rule, which in some respects is an artificial rule. (This latter rule is the
rule that the courts use to acknowledge the supremacy of parliament in England.) The
courts it was said could do no more than apply the words of the statute irrespective of the
outcome. See the words of Chief Justice Tindal in the Sussex Peerage 8 ER 1034 case.
The Literal Rule is said to show an acceptance of parliamentary sovereignty and therefore,
whatever parliament says, that is correct. However lawyers were not satisfied with that, and the
doctrine of the literal rule was a revolt against judicial legislation.
Under the literal rule the words of the statute were said to be dominant, judges refused, or so they
said, to go outside of the statute. They said they could only consider the mischief if there was
doubt from the terms employed by the legislature. Even in recent times judges have said that the
object or purpose of the statute may only be resorted to where the language presents a choice see
Elderman Lines v Murray.
In other words, regard is only had to the words of the statute and it is only if those words were
not precise or unambiguous should the courts consider the object. This is what, judges said, was
meant by the literal construction. The literal rule is consistently being stressed, one will find
however as that this rule is an artificial rule that proved relatively useless when subjected to
examination.
The Words Themselves
In 1978 in the case of Northman v. Barnett Council [1978] 1 WLR 220, Lord Denning discussed
what is meant by the literal meaning of the words in themselves. Does this mean that one must
read only the provisions in dispute and nothing else?
In Croxford v. Universal Insurance Co. [1936] 1 All ER 151
- The plaintiff claimed that ss. 1 of S. 10 of the Road Traffic Act when read by itself gave
him an absolute right to recover damages from the insurance company.
- The court held that the right granted by ss. 1 was qualified by ss. 2 &3 of the same
section and the entire section must be read as a whole.
- The Sussex Peerage 8 ER 1034 case was cited as the authority for this.

There was greater success in Brown & Sons v. The Russian Ship Alina (1880) 5 Ex. D. 227,
- Where the judges had reached their conclusion after having read only one section of the
statute, the decision was subsequently challenged by Lord Esher Master of the Rolls in
the case of R v. Judge of the City of London Court [1892] 1 QB 273 where he said:
If the learned Judge meant to say that when the meaning of general words if you look at
them by themselves are clear that determines their construction at once even though from
the context other parts of the same Act you can see that they were intended to have a
different meaning. Then again I say he has laid down a new rule of interpretation
which unless we are obliged to follow it, then I would not follow.
Therefore the expression words in themselves does not mean words in the abstract, or only
some of the words in a statute, it means all of the words in a statute. This view, as logical as it
may seem, has required constant repetition since 1892.
In the case of AG v. Prince Ernest Augustus of Hanover [1957] 1 All ER 49 Viscount Simmons
put it succinctly where he said: Words, and particularly general words cannot be read in isolation. Their colour and
content are derived from their context.1
Some years later, in the case of DPP v. Schildkamp [1969] 3 All ER 16402
- Lord Upjohn having been asked to decide the issue on a reading of a subsection alone
admitted that the subsection when read by itself is perfectly clear and simple, but went on
to say: 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.
Precise and Unambiguous
Having seen that words in themselves can only mean words in their total context, what then is
meant by words being precise and unambiguous. As we all know, the boundaries of most general
words are rarely if ever precise, and what is clear and ambiguous to one person may not be to
another. See the case of Ellerman Lines v. Murray [1931] AC 126. In dealing with words in
general, there are three considerations that must be made.
1.
2.

The first is whether a word can bear the meaning being given to it. Sometimes a
dictionary may be of help, but not always.
The second is whether a word used in a particular context having a clear meaning is
capable of bearing that same meaning in the abstract; this is a question of scope.

1 In this case, a German Prince who was an enemy was entitled to British citizenship.
2 [1971] AC 1

Thus as in the Sussex Peerage 8 ER 1034 case, a marriage abroad was a marriage, but
was it marriage within the meaning of the Royal Marriage Act? And
3.
Thirdly, words can often mean two or more things, and it may not be clear, which is
intended.
The word ambiguous is usually used to describe these situations, although the meaning of this
word is itself ambiguous.
Grammatical & Ordinary Sense
What does this mean?
The ordinary sense or meaning of a word can be found in a dictionary, but there can be many
meanings given to a word. The ordinary meaning may depend on a subject matter. Justice Fry
seemed not to have taken this into consideration when he said in R v Commissioner of Income
Tax that
The words of a statute are to be taken in their primary and not their secondary
signification and this is a view that one finds from time to time.
This view was challenged, however, by the Earl of Selbourne in the case of AG (Ontario) v.
Mercer (1883) 8 AC 767:
Every word ought prima facie to be construed in its ordinary or natural sense, unless, a
secondary or more limited sense is required by the subject or the context.
Two examples ought to demonstrate this difficulty. In Victoria City v Bishop of Vancouver Island
the point in issue was whether the word building was to be given the ordinary grammatical
meaning that is to say the fabric of building and the ground on which it stood or a special
meaning. In this case it was a tax issue and churches were pardoned from paying taxes. The court
took the view that there was nothing in the context of the statute to support a departure from the
ordinary meaning in addition it said that to have applied the special meaning would have
produced an irrational result in relation to the other provisions of the statute.
On the other hand in Canada Sugar Refinery v R the court rejected the primary meaning of the
word import meaning to bring into but instead applied the special meaning, that is, to deliver to
an importer. The court held that to place a consistent rational and probable meaning on the whole
of the sections of the statute when read together it was necessary to adopt a special meaning.
It is generally assumed however, that when judges speak about the natural or ordinary meaning
of words or phrases they have in mind the meaning that would be attached to those words or
phrases by the normal sequence of English at the time when the statute was passed, this was
taken to be the meaning intended by parliament and so it is not uncommon for a judge to ask the
direct question as to what the ordinary man would have understood by the words used. The
notable exception to this principle is that where the technical words are used then the legislator
intended that they should be applied only in their technical sense

The notable exception to the principle that words are to be given their primary meaning unless a
secondary meaning is so required involves the use of technical words. Where technical words
are used then it is assumed that they should be applied in their technical meaning.
In Cotton v Vogan & Co the word grain brought into the port of London for sale as used in the
metage & Grain Act said to apply to grain brought in for sale only & not grain brought in to be
manufactured into other articles for as the court said. Thus the court said that as the statute was
dealing with matters of business then its phraseology must be construed according to the
ordinary business meaning of the words. So too in Unwin v Hanson Lord Esham stated the
principle as follows:
If the Act is directed to dealing with matters affecting everybody generally the words
used have the meaning attached to them in the common & ordinary use of language. If
the Act is one passed with reference to a particular trade, business or transaction and
words are used which everybody conversant with that trade, business or transaction
knows & understands to have a particular meaning to 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 word.
The court held that authority to lop trees did not include the authority to cut the top of trees off
because everyone who lives in a country with trees knows the well marked difference between
lopping and topping.
The principle said Lord Escher is:
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 language. If
the Act is one passed with reference to a particular trade, business or transaction and
words are used which everybody conversant with trade, business, or transaction knows
and understands to have a particular meaning to it then the words are to be construed as
having that particular meaning though it may differ from common or the ordinary
meaning of the words

LITERAL RULE CASE LIST

Enmore v Singh (1976) 22 WIR 166
- Singh was employed by Enmore 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, 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 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 and so became entitled
- * E appealed contending that the Act was intended to apply restrictively to those factory
workers employed in manual labour & not to S whose occupation was a supervisory and
clerical nature.
- Held (Haynes, C) the phrase is not intended to, and does not embrace persons not
included in the description employed in a factory
- it is intended to and does embrace persons doing particular jobs in a factory, and is
equivalent to in any particular kind of work in a factory and was not limited to manual
labour only.
- Singh fell within the provisions of s. 24 & was entitled to overtime pay and the trial
judgment was right
Warburton v Loveland (1824-34)
- Where the language of a statute is clear and explicit the court must give effect to it
whatever may be the consequences, for in that case the words of the statute speak the
intention of the legislature.
- If in any case a doubt arises on the words themselves, the court must endeavour to
accomplish by passing the Act, and giving the statute the meaning which best leads to the
suppression of the mischief and the advancement of the remedy which the legislature had
in view.
- To ascertain the object of the legislature in passing the Act it is advisable to look
generally at the preamble of the statute and the provisions of the Act other than that
which is sought to construe.
- Where giving the words their ordinary and natural meaning would lead to an
inconvenience it must be submitted to through necessity, but if the words are capable of
such an interpretation as would prevent the inconvenience they should be given such an
effect.
- Any provision in a statute for suppression of fraud must be given a large and liberal
interpretation
Ellerman Lines Ltd v Murray (1931)
-

S. 1 of the Merchant Shipping Act, 1925, provides where by reason of the wreck or loss
of a ship on which a seaman is employed his service terminates before the date
contemplated by the agreement, he shall. Subject to the provisions of this section, be

entitled, in respect of each day on which he is in fact unemployed during a period of two
months from the date of the termination of the service, to receive wages at the rate to
which he was entitled at that date.
A seaman shall not be entitled to receive wages under this section if the owner shows
that the unemployment was not due to the wreck or loss of the ship and shall not be
entitled to receive wages under this section in respect of any day if the owner shows that
the seaman was able to obtain suitable employment on that day.
Held- upon the true construction of the section a seaman whose service had been
prematurely terminated by the wreck or loss of the ship was entitled to receive wages at
the rate payable under his agreement of service for each day on which he was in fact
unemployed during a period of two months from the date of the termination of service,
whether his service under the agreement would in normal course have terminated before
the expiration of that period or not, unless the owner discharged the onus cast upon him
by sub-s. 2.
The section being unambiguous, it was not permissible to refer to the preamble of the Act
or to the draft convention to which the Act was intended to give effect in order to give the
section a meaning other than its natural meaning.

Croxford v Universal Ins. Co (1936)

- An action brought against an insurance company by the dependants of a person who had
been killed in a motor accident suing under Lord Campbells Act
- The original rights of action of the plaintiffs were against the person who had done them
injury.
- However, by the operation of law, beginning with the two Acts of 1930 and the Road
Traffic Act, 1934, those liabilities are in certain circumstances transferred to the insurance
company, who thereby become defendants in the present action.
-

(i) An accident occurred on 13 June 1934.

On 29 June the insurance company repudiated the policy and demanded the return of the
certificate of insurance. On 12 July this was returned and cancelled.

On 31 July the Road Traffic Act 1934, received the Royal Assent.

On 3 August an action was commenced against the assured, and damages were awarded
against him on 6 February 1935.

On 1 January 1935, the Road Traffic Act 1934, s 10 came into operation.

The plaintiffs in the action then sought in a further action to render the insurance
company liable to pay the damages awarded them:

Held there was no policy in existence after 12 July 1934, on which the Road Traffic Act
1934, could operate, and the Act could have no possible effect in such a case.

The insurance company as a result of the whole of the provisions in Road Traffic Act
1934, s 10, had a right to a period of three months after 1 January 1935, in which to
commence an action for a declaration that they were entitled to avoid or had avoided the
policy on the ground of non-disclosure or material misrepresentation, apart from any
provision in the policy.

As this action for a declaration had to be commenced within three months of the
commencement of the action against the assured, the insurance company had until 26
January 1935, to bring this action for a declaration.

As that did not give them a three-months' period after 1 January 1935 (when the Act was
brought into operation), the Road Traffic Act 1934, had no application.

The Road Traffic Act 1934, s 10, is designed to secure that judgments obtained in
running down actions shall be met by the insurers of the defendants.

The present cases only relate to the position when the section was brought into operation
on 1 January 1935.

There are two conditions in the section which have to be noted to understand the
decisions herein. First, there must be notice to the insurer within seven days of the
commencement of the running-down action. Secondly, the insurer may, within three
months of the commencement of the running-down action, sue for a declaration that he is
entitled, apart from any provision in the policy to avoid it on account of non-disclosure or
material representation, or if he has so avoided it, then a declaration that he was entitled
to do so.

The decisions here are simply that this three months' period in which the insurer may
bring his action for a declaration must have been available to the insurer after that Act
came into operation, ie, after 1 January 1935. In other words, the running-down action
must have been commenced on or after 1 January 1935.

The first case appears also to support the contention that where a certificate of insurance
is returned and cancelled the insurers need bring no action for a declaration; but
apparently where the policy has been quite properly avoided or cancelled, but there is still
a certificate current, the insurer must within the time limit bring his action for a
declaration.

Scott LJ makes such observations on this aspect of the cases towards the end of his
judgment.

Brown & Sons v The Russian Ship Alina (1880)

- Section.2 of the County Courts Admiralty Jurisdiction Amendment Act, 1869, gives the
county courts jurisdiction in cases of claims arising out of charter parties or other

agreements for the use or hire of ships, although the Court of Admiralty may have no
original jurisdiction in such cases
Jessel MR rule of construction as laid down in all cases, and notably in the House of
Lords, is this, that where you have plain terms used in the enacting part of an Act of
Parliament, nothing less than manifest absurdity will enable a Court to say that the
ordinary and natural meaning of the terms is not the true meaning.
Where there is an ambiguity, there of course you let in arguments of much less strength;
in such cases arguments as to inconvenience, and arguments as to the more useful or
more likely interpretation may be fairly considered.
First we must determine whether the words are in themselves unambiguous, and if we
arrive at that conclusion, then whether there is any such manifest absurdity as will enable
a Court of construction to say that the natural meaning of the words could not possibly be
the meaning intended by the legislature to be put upon them.

R v The Judge of the City of London Court (1892)

- The High Court of Admiralty had no jurisdiction to entertain an action in personam
against a pilot in respect of collision between two ships on the high seas caused by his
negligence.
- Consequently, a county court has no such jurisdiction under the Acts 31 & 32 Vict. C. 51
no greater jurisdiction than that which was possessed by the Admiralty Court being by
those Acts conferred on the county courts, except with regard to charterparties
- Esher, M.R inferior courts, such as county courts, can have no such jurisdiction under
these Acts
Parliament did not intend that they should have any jurisdiction in cases in which the
Admiralty Court had no jurisdiction.
- "I cannot satisfy myself that it was the intention of the legislature to give the county
courts a jurisdiction over Admiralty causes other than those over which the Admiralty
Court has jurisdiction."
- Lord Esher MR In my opinion the rule has always been that if the words of an Act admit
of two interpretations, then they are not clear; and if one interpretation leads to an
absurdity, and the other does not, the court will conclude that the legislature did not
intend lead to an absurdity, and will adopt the other interpretationIf he (Lord Denning
in The Alina ) meant to say that you cannot look at the context at another part of the Act
to see what is the real meaning, then again I say he had laid down a new rule of
interpretation, which unless we are obliged to followI would not follow.
- (Lord Esher also refused to accept Jessel MRs ruling where he stated that where the
words of an Act of Parliament are quite clear, you must take them in their natural and
ordinary meaning, unless that meaning produces a manifest absurdity.
- Instead Lord Esher believed that once the words of an Act are clear, you must follow
them, even if they lead to a manifest absurdity as the court has nothing to do with
whether the legislature has committed an absurdity.
A.G. v Prince Ernest Augustus of Hanover

A descendant of the Princess Sophia and successor to the throne of Hanover sought a
declaration that he was a British subject by virtue of the statute of 1705 4 Anne.
(The AG argued that naturalizing by an Act of future descendants was absurd).
The statute after reciting in the preamble that the Crown on the death of Queen Anne
without issue, was limited to Princess Sophia and her issue, continued to the end
[that] the said Princessand the issue of her body, and all persons lineally descending
from her, may be encouraged to become acquainted with the laws and constitutions of
this realm, it is just and highly reasonable, that they in Your Majestys Life Time.. should
be naturalized and proceeded to enact that the said Princess Sophia and the issue of
her body, and all persons lineally descending from her, born or hereafter to be born, be
and shall be deemed natural born subjects of this Kingdom.
Held: As a matter of construction of the Act, there was noting in the Act or its preamble,
interpreted in light of earlier relevant statutes capable of controlling and limiting the plain
and ordinary meaning of the material words of the enacting provisions.
The class of lineal descendants born or hereafter born meant the class of such
descendants in all degrees without any limit as to time.
Looking at the Act from the point of view of 1705 there was no manifest absurdity in its
construction as would entitle the ct to reject it.
The House of Lords took into account the intention of Parliament as it existed in 1705 ,
where at Common Law only persons born on English soil were citizens and generally the
only way to become naturalized was by the passing of special Acts by Parliament
Lord Normand: The Act must be construed as it would have been construed immediately
after it became law. In order to discover the intention of Parliament it is proper that the
court should read the whole Act, inform itself of the legal context of the Act, including
Acts so related to it that they may throw light upon its meaning, and of the factual
context, such as the mischief to be remedied, and those circumstances which Parliament
had in view.
He also concluded that the words of the Act are not only clear, they are also direct and
that it was only be inference that the preamble seemed to limit the operation of the Act.
There is no clumsiness in the wording to raise a doubt whether they mean what they
seem to mean. Noting but the most compelling context would justify a construction
radically altering the plain meaning of the enacting words.
NB: Per Viscount Simonds: Assistance may be obtained from the preamble to a statute in
ascertaining the meaning of the relevant enacting part, since words derive their colour
and content from their context. But the preamble is not to affect the meaning otherwise
ascribable to the enacting part unless there be a compelling reason and it is not a
compelling reason that the enacting words go further than the preamble indicated.

D.P.P v Schildcamp (1971)

-

D convicted under s. 332(3) of the Companies Act (UK) 1948 of, inter alia, carrying on a
business with intent to defraud creditors.

The question was whether ss. 3 created an office where the company was not in a course
of winding up that is whether before prosecution can be initiated under s.332(3) of the

Companies Act the company must be in liquidation.

-

Read by itself ss. 3 made no reference to winding up in other words the section worded in
such a way that suggests that a company does not need be in liquidation for prosecution
to be allowed.

nevertheless, the majority held that the company had to be in liquidation before a
prosecution could be initiated since Parliament never intended, when creating the offence,
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 its
application by reason of the context of the Act.
Lord Upjohn having been asked to decide an issue on the reading of a subsection alone
admitted that the subsection, when read by itself, was perfectly clear and simple but went
on to say:
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 sub-section, in isolation to ascertain that intention. One must look at
all the admissible, surrounding circumstances before we start to construe the act

;and thus accepted the view that headings can be useful aids in interpreting obscure or
ambiguous provisions.

The court thus accepted the view that punctuation could be used as aids in cases of
ambiguity that is obscure or ambiguous provisions as could the long title of the Act,
headings and side note.

R v Commissioner of Income Tax (1889)

- By Schedule A of the Income Tax Act allowances are to be made in respect of the duties
in that schedule on, inter alia, rents and profits of lands, tenements, hereditaments, or
heritages vested in trustees for charitable purposes, so far as the same are applied to
charitable purposes.
- Freehold Estates were conveyed to trustees, upon trust to apply 2/4 of the income for the
purpose of maintaining, supporting and advancing the missionary establishments among
heath nations of the Protestant Episcopal Church, known as the Moravians.
- On an application for a mandamus to the commissioners to grant an allowance in respect
of the rents and profits on which income tax had been paid
- Held the trustees were entitled to the allowance:
- Lord Escher in a Taxing Act applicable to the three kingdoms, the words charitable
purposes must be taken in their ordinary signification and not as technical legal terms;
that the words import a benefit to person who, by reason of poverty, would not otherwise
obtain such benefit, and they included all the objects of the trust.

A.G of Ontario v Mercer (1883)

- Held that lands in Canada escheated to the Crown for defect of heirs belong to the
province in which they are situated, and not to the dominion
- At the date of passing the British North America Act 1867, the revenue arising from all
escheats to the Crown within the then province of Canada was subject to the disposal and
appropriation of the Canadian Legislature, and not of the Crown.
- Although s. 102 of the Act imposed upon the Dominion the charge of the general public
revenue as then existing of the provinces; yet by s.109 the casual revenue arising from
lands escheated to the Crown after the Union was reserved to the provinces the words
lands, mines, minerals, and royalties therein including, according to their true
construction, royalties in respect of lands, such as escheats.
- Earl of Selbourne
Every word ought prima facie to be construed in its ordinary or natural sense, unless, a
secondary or more limited sense is required by the subject or the context.
Victoria City v. The Bishop of Vancouver Island
-

Building owned by churches were not subject to taxes.

Issue: whether the word building was to be given its ordinary grammatical meaning that
is fabric of the building and the ground on which it stood or a special meaning fabric of
the building without the ground.
Held: there was nothing in the context to support a departure from the ordinary meaning;
had the special meaning been applied there would have been an irrational result having
regard to the provisions of the statute.
Therefore the land on which the Cathedral in Q was built was not subject to tax &
assessment thereon was UV.
If the words of an Act are unambiguous and clear, you must obey those words, however
absurd the result may appear;if any other rule were followed the result would be that
the court would be legislating instead of.the legislature
Lord Atkins stated: In the construction of statutes their words must be interpreted in their
ordinary and grammatical sense, unless in the context, or 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 meaning.

Canada Sugar Refining Co Ltd v R (1895)

- The true construction of the Customs Tariffs Act, 1894, s. 4, as amended by the Tariff Act
1895, which in effect directs that duty be paid upon raw sugar when such goods are
imported into Canada or taken out of warehouse for consumption therein the date at
which duty both attaches thereto and becomes payable is when the goods are landed and
delivered to the importer or to his order, or, when they are taken out of the warehouse, if
instead of being delivered they have been placed in bond.
- S. 150 of the Customs Act, 1886, which directs that the precise time of the importation of
goods shall be deemed to e the time when they came within the limits of the port to

which they ought to be reported, refers on its true construction to the port at which the
goods are to be landed, that is, where the effective report is to be made.
Such construction is required in order to place a consistent, rational, and probable
meaning on the context and other clauses of the Act.
The court thus rejected the primary meaning of the word import meaning to bring into
and applied the special meaning, that is, to deliver to an importer.
The court held that to place a consistent rational and probable meaning on the whole of
the sections of the statute when read together it was necessary to adopt a special meaning.

Cotton v Vogan & Co (1895)

- The Metage on Grain 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 & 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 the corporation was not entitled to duty under the Act in respect of the grain.
- Esher, M.R 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 the 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)
- 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:
- After such an order had been made the surveyor chopped off the top of the Plaintiffs
trees.
- Plaintiff argued that the word lop used in connection with prune did not grant such a
power; that lop was a well known term in forestry and agriculture used by the legislature
to prevent branches extending over the highway; had they intended to give the power to
cut off the tops of trees, the word topping would have been used. Thus the words in
s.65 must be strictly construed in their proper technical meaning.
- The Respondent argued that the word lop should be given its ordinary meaning as stated
in the dictionary to cut off the end of anything and the technical meaning of forestry
used ought not be used here

Held 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.
per Lord Esher If an Act is passed in with reference to a particular trade, business or
transaction and words are used which everybody conversant with that trade, business or
transaction, knows and understands them to have a particular meaning to it, the words are
to be construed as having that particular meaning, though it may differ from the common
or ordinary meaning of the words.
He found that the Act used language which everyone conversant with the cutting of trees
in the country would know and understand. Lopping and topping which meant very
different things were words in the country with respect to the cutting of trees.
As lopping means to cut off the branches of trees, the surveyor had not power to cut off
the top of trees.
Fry L.J. stated that if the legislature intended that power they would have included
topping

R v George Green (1969)

- The Appellant was convicted on indictment of the offense of cultivating ganja contrary to
s. 7(b) of the Dangerous Drugs Act.
- Section 2 of the Dangerous Drug Act 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.'
At the trial the evidence didnt disclose whether the plants which the Appellant was
found to be cultivating contained any pistillate plant known as cannabis outiva.
-

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

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 the term ganja as defined by s. 2 of the Dangerous Drugs Law 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 of the
law relates only to cultivating the pistillate plant known as sativa.
APPEAL ALLOWED conviction quashed.

Baker v R (1975) 23 WIR

- Appellants convicted on , on March 3, 1971, of the offence of murder, committed on Nov.
26,1969

On the date of the commission of the offence the Appellants were under the age of 18 yrs
By the date of conviction however they had attained the age of 18 and were sentenced to
death.
Section 29 (1) of the Juveniles Law, 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
Appealed to the Court of Appeal and their appeal was dismissed
By special leave they appealed to the Privy Council
Held the words of s. 29 of the Juveniles Law 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
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. That is what this
Board has been invited to do by counsel for the appellants.

Maloney Gordon v R 15 WIR 359

-

Held the opposite of Baker, PC decision, but it was held that this decision was per
incuriam.

Hope v Smith 6 WIR 437

By s 104 of the Summary Courts Ordinance [T]:
Any person who is found committing any summary offence may be taken into custody,
without warrant, by a constable, or may be apprehended by the owner of the property on
or with respect to which any such offence is committed, or by his servant or any other
person authorised by him, and shall in the latter case be delivered as soon as possible
into the custody of any constable to be dealt with according to law.

By s 20 (1) of the Police Ordinance, Cap 11, No 1 [T], authority is also conferred on police
officers to arrest any person without a warrant in the cases and circumstances specified therein
and by s 20 (2) it is provided:
Without prejudice to the powers conferred upon a police officer by the last preceding
subsection, it shall be lawful for any police officer, and for all persons whom he shall call
to his assistance, to arrest without warrant any person who within view of any such
police officer shall offend in any manner against any law and whose name and residence
shall be unknown to such police officer and cannot be ascertained by him.
For committing a summary offence in his presence, the appellant, a police officer, arrested the
respondent who thereafter assaulted and resisted the appellant. A magistrate dismissed two
informations preferred against the respondent for assaulting and resisting the appellant in the
execution of his duty on the ground that he was not authorised by s 104 of the Summary Courts
Ordinance, Cap 3, No 4 [T] (hereinafter called s 104) or by s 20 of the Police Ordinance, Cap
11, No 1 [T] (hereinafter called s 20) to arrest the appellant and was consequently not in the
execution of his duty when he did so. On appeal, the respondent submitted in support of the
magistrate's adjudication that summary offence in s 104 referred only to such summary
offences as related to property, that s 20 was in conflict with s 104 and, being subsequent in point
of point of time of enactment, must be held to have impliedly repealed s 104.
Held: (i) there was no warrant for restricting the meaning of summary offence in s 104 to only
such summary offences as related to property. The phrase any summary offence therein means
exactly what it saysany summary offence;
(ii) s 20 cannot be held to be in conflict with s 104, since the persons to whom the power and
authority are given, the cases in which they may be exercised and most especially, the conditions
attaching to their exercise, were essentially different under the two enactments.
Per curiam: 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 be thought to occasion. This is a
matter for Parliament to consider. And if Parliament thinks that any hardship which any
legislation may cause can be avoided by the judicious exercise of discretion by those to whom is
committed the duty of administering it, the courts must decline to assume a corrective power
which they do not at all possess.
Appeal allowed.