By Chinua Asuzu
The whether-fragment is the commonest, darkest, ugliest, and worst method of stating issues.
The whether-fragment “states what should be a direct question as an indirect question in the form of a statement fragment. But that’s the least of the problems. The whether-question is invariably either highly abstract and therefore incomprehensible or else factually convoluted and therefore incomprehensible.” Bryan A. Garner, ‘LawProse Lesson #158: Whether ‘whether’ causes problems for writers,’ 9 April 2014, lawprose.org.
When highly abstract, the whether-fragment is a surface issue. When factually convoluted, the whether-fragment degenerates into “a tale told by an idiot, full of sound and fury, signifying nothing.” William Shakespeare, Macbeth, Act V, Scene 5.
The factually convoluted version of the whether-fragment discloses a devotion to misery.
Issues should throw light on the dispute. The whether-fragment throws darkness.
Attempts to simplify or shorten a whether issue produce a surface issue. “A reader would need to plough through a whole brief to feel comfortable answering [a surface issue].” Bryan A. Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts, 3rd ed. (OUP, 2014), 96.
A surface issue is insufficiently informative for judicial comprehension, never mind consideration. A surface issue is abstract.
In Okpala v Ibeme [1989] 2 NWLR (Part 102) 208 (SC), 220G–H, Nnaemeka-Agu JSC stressed that an issue for determination “should not be framed in the abstract but in concrete terms.” An abstractly framed issue statement produces a surface issue.
Grammatically, whether issues are not questions. They are not even sentences—they are ungrammatical sentence fragments.
Never begin an issue statement with the word whether. That’s the archetypal whether-fragment.
A whether-fragment can also start without the word whether, which is instead inserted at the beginning of a mid-issue clause, typically following a comma, buried in the formulation. The mid-formulation whether issue, like its more common issue-starting variety, never makes a sentence.
An example of a whether-fragment not beginning with whether is found in Obidigbo v Obiano [2015] 1 NWLR (Part 1441) 471 (CA), 481 (Agube JCA): “Having regard to specific allegations made by the appellants in paragraphs 6(12) (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (13) (14) and (15) of the petition, whether the tribunal was correct when it struck out the paragraphs on the ground that all the alleged supplying of false information on oath to INEC by the 1st respondent as a result of the multiple registration by him cannot be pronounced upon by the tribunal.”
This Obidigbo formulation is indecipherable. It’s “highly abstract and therefore incomprehensible.” It’s extensive cross-referencing is insensitive to judicial wellbeing and workload.
Forbid the whether-fragment.
This ban on the whether-fragment is no ban on the word whether.
In discussing the issue in a precedent or prior case, you can say “The issue, in that case, was whether ….”
In the analysis or discussion section of your brief or judgment, you can use the word whether.
