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The Supreme Court doctrine in the interpretation and construction of statutes (3)

…Continues from last week

By PROF Lawrence Atsegbua

The petitioner was the candidate put up by the Unity Party of Nigeria, while the respondent was the candidate put up by the National Party of Nigeria.  There were three other candidates for the election of three other political parties.

The result of the election showed that the first respondent scored the highest number of votes, after all the votes cast throughout the election had been added up, while the ;petitioner scored the next highest.  The first respondent scored at least 25% of the total votes cast in each of twelve of the nineteen States and 19.94% of the votes cast in the whole of the nineteenth State, i.e. Kano State.

The petitioner scored at least 25% of the total votes cast in six of the nineteen States.  It was on the basis of the aforesaid score by the first respondent that the third respondent who was the returning officer for the Presidential election, declared the first respondent duly elected at the President of the Federal Republic of Nigeria.  The petitioner was dissatisfied with this declaration and filed a petition at the Electoral Tribunal.

Complaint of the petitioner

The main complaint of the petitioner was that “The 1st respondent was at the time of the election, as he has not satisfied section 34A subsection (1) (c) (ii) of the electoral Decree, 1977”.

The Tribunal’s main task was the interpretation of the provision of section 34A (1) (c) (ii) of the Electoral Decree, 1977 which provides:

34A (1) A candidate for an election to the office of President shall be deemed to have been duly elected to such office where

(c) There being more than two candidates – (ii) He has not less than one-quarter of the votes cast at the election in each of at least two-third of all the States in the Federation.

The petitioner argued that the words, “not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the States of the Federation used in section 34A (c) (ii) meant that two-third of 19 States was 13 and not 12 2/3 States as contended by counsel to the first respondent.

The Tribunal held that “two-thirds of the States of the Federation” in section 34A (1) (c) (ii) meant “twelve two-thirds State”.  On an appeal to the Supreme Court it was held (Eso, JSC dissenting).

(1) If the number thirteen which is the number nearest to two-third of a State had been intended, the Federal Military Government would have said so in clear terms.  As between thirteen States and twelve two-third States, considering all the circumstances, appears to be the intention of the Federal Military Government in the context of sub paragraph (ii) of sub-section (1) (c) of section 34A of the Electoral Decree, 1977.

(2)    It is fallacious to talk of fractionalization of the physical land area of a State when the operative words of section 34A (1) (c) (ii) relate undoubtedly to the votes cast by the voters in the State at the election.  It is also fallacious to talk of scaling down the votes cast for the 1st respondent in Kano State by one third.

That argument overlooks the clear and unambiguous words of section 34A (1) (c) (ii) which provides first for ascertaining the total number of votes cast for the 1st respondent by the voters of Kano State before comparing this figure obtained thereby with two thirds of all the votes cast in Kano in order to determine whether the votes received by him are not less than one-quarters of two-thirds of the votes cast in Kano State

(3) The 3rd respondent’s interpretation of what constitute two-third of nineteen States, i.e. 12 2/3 is not in error.  The duty of the court is to interpret the words that the legislature has used; those words may be ambiguous, but, even if they are, the power and duty of the court to travel outside them on a voyage of discovery are strictly limited.

Fatayi-Williams, CJN in delivering the judgment of the court said.  Considering the words used in the subsection again, we are satisfied that they are plain enough and unambiguous.  Hence to apply them as provided by the legislature will not in our view, create any absurdity.

The same Fatayi-Williams said that this case must not serve as precedent to like cases.  This statement is costly.  Although an obiter dictum, it gives the impression that the case was a political one. Awolowo v. Shagari was again cited with approval in Oviawe v. Integrated Rubber Products, where Mohammed, JSC reading the lead judgment said”.


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