The Doctrine Of The Living Tree And Constitutional Interpretation In Nigeria

By Oliver Azi

The constitution is interpreted differently in Canada. An approach of constitutional interpretation known as the “living tree” concept acknowledges the original intentions of the Canadian Constitution while allowing for development and evolution over time. Predictability and adaptability, two seemingly incompatible goals, are balanced by the doctrine. The Constitution requires a stable collection of laws in order to function. However, flexible interpretation takes into account the reality of a modern existence that is constantly evolving. If the Constitution cannot be read in this way, it would be stuck in the past and less useful than before.

Two Canadian judgments serve as examples of how the living tree principle is balanced between constitutional “certainty and flexibility”. In the 1930’s EDWARDS v. Canada AC 124, [1929] ALL ER REP 571 that women could sit in the Canadian Senate. It served as a cornerstone in the constitutional interpretation case that popularized the idea of a “living tree” and demonstrated the need for courts to read the Constitution liberally.

Also referred to as the “Persons Case”, after analyzing the Constitution’s use of the term “persons,” which had always referred to men, the Judicial Committee of the Privy Council (JCPC) in Britain decided that both men and women were now “persons” and therefore eligible to sit in the Canadian senate. According to Justice Sankey, while constitutional stability and integrity is of the utmost importance, the Constitution “also planted in Canada a living tree capable of growth and expansion within its natural limits.” Women may not have been able to vote or hold office in 1867, but times had changed and so had constitutional interpretation. The decision helped women gain a measure of equality to men in the political arena.

More recently, in REFERENCE RE SAME-SEX MARRIAGE [2004] 3 S.C.R. 698; 2004 SCC 79 (CanLII) the living tree concept was updated. This 2004 case questioned the constitutional validity of same-sex marriage. Building on Justice Sankey’s “living tree” metaphor, Chief Justice McLachlin introduced another metaphor, stating that the

“‘frozen concepts’ reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation, that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.”

By allowing the term “marriage” to adapt or grow with contemporary times, its meaning within legislation became modernized and subsequently included unions of same-sex couples.

In Nigeria, it is an open secret that the 1999 Constitution is interpretated differently. The Supreme Court is not just a court of record but also a policy court and so, its decisions most times influence national policy. The Court of Appeal explained this duty with clarity in the case of ACTION CONGRESS OF NIGERIA V. RIVERS STATE INDEPENDENT ELECTORAL COMMISSION & ORS (2013) LPELR-21169(CA) where the Learned Jonah Adah JCA stated thus:

“…Although the traditional function of the Courts is to interpret, uphold and pronounce what the law is and not what it ought to be, very often judges make useful comments in the course of interpreting a law which later turn out to influence an amendment to that law.”

Speaking grosso modo, this was also the position of the learned justices in the notorious case of ASARI DOKUBO V. F.R.N. (2007) 12 NWLR (PT. 1048) 320. The Supreme Court also explained this role in the case of MARWA V NYAKO (2012) 6 NWLR (Part 1296) 199 when it held thus:

“When interpreting the Constitution, the court must bear in mind that it is dealing with an instrument which controls and regulates the powers and functions of government, controls the rights and obligations of the citizen and controls the peace and order of the society upon which the Constitution is supposed to operate. While in an ordinary statute the normal rule is that the terms used must be given the meaning they bore at the passing of the statute, a constitution is intended to be permanent and must be interpreted by looking at the past and according to present conditions in order to fulfil the object and true intent of the Constitution. A Constitution must therefore be interpreted and applied liberally. A Constitution must always be considered in such a way that it protects what it sets out to protect or guides what it set out to guide. By its very nature and by necessity, a constitutional document must be interpreted broadly in order not to defeat the clear intention of its framers.”

The use of the word “liberally” there accentuate the doctrine of the living tree and its applicability in Nigeria. In a 2022 judgment delivered by Justice Centus Nweze JSC in NGANJIWA v FRN, he openly applied this doctrine in the interpretation of the Constitution.

In conclusion, although the German jurist, Friedreich Karl Von Savigny had stated in his book: “Of the Vocation of Our Age for Legislation and Jurisprudence” that:

History, even in the infancy of a people, is ever a noble instructress, but in ages such as ours she has yet another and holier duty to perform.

But he did not argue just for the past, he also advocated that laws should always reflect the spirit of the times of a particular people, as popularly referred by the German concept of “Zeitgeist” and this is what the doctrine of the living tree seeks to accentuate not just in Canada but also in Nigeria.
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Oliver Azi is a fourth-year student of law at the University of Jos, with keen interest in writing, advocacy and research. He can be reached at oliverazi20@gmail.com or WhatsApp 070888596703