Sylvester Udemezue
Judging strictly by the plain wording of the provisions of section 134(2)(b) of the Constitution, I hold the respectful view that 25 percent votes in Abuja IS NOT a sine-qua-non (is not indispensable). [See: “A Candidate With The Highest Number Of Votes Cast In A Presidential Election, Does Not Need Up To 25 Percent Of Abuja Votes As A Mandatory Condition Precedent To Being Declared The Winner”, By Sylvester Udemezue (28 February 2023; https://thenigerialawyer.com/a-candidate-with-the-highest-number-of-votes-cast-in-a-presidential-election-does-not-need-up-to-25-percent-of-abuja-votes-as-a-mandatory-condition-precedent-to-being-declared-the-winner/)]. Apart from the reasons I gave in this article, I have advanced more reasons in an upcoming article, which is Part 2 and in which I took time to discuss all issues, especially the argument for and against, and I reached a conclusion. To be published before 16 April 2023.
However, there is one very strong point that supports the argument of those who advocate that FCT is to be treated differently for the purpose of interpretation of section 134(2)(b) CFRN, 1999, and that 25% percent votes in the FCT is essential for victory as a Presidential Candidate. Section 301 of the Constitution of the Federal Republic of Nigeria, 1999, provides:
“Without prejudice to the generality of the provisions of Section 299 of this Constitution in its application to the Federal Capital Territory, Abuja, this Constitution shall be construed as if – (a) references to the Governor, Deputy Governor and the Executive Council of a State (howsoever called) were references to the President, Vice President and the Executive Council of the Federation (howsoever called) respectively;”
The legal and reasonable implications of the provisions of section 301(a) are that:
1️⃣. The President of the Federal Republic of Nigeria doubles as the Governor of the FCT, Abuja;
2️⃣. The Vice President of the Federal Republic of Nigeria doubles as the Deputy Governor of the FCT, Abuja;
3️⃣The Executive Council of the Federal Republic of Nigeria is the State Executive Council for the FCT, Abuja; and
4️⃣. However, the President exercise much of his powers in the FCT through his appointment representative: the Minister of the FCT, Abuja. See sections 147 and 302
Now, the argument could be made that it’s reasonably necessary for anyone who wants to be the President of Nigeria to have at least 25 percent of the votes cast in the FCT Abuja, because:
(🅰) since the Present and his Vice President are the Governor and Deputy Governor respectively of the FCT Abuja and (🅱) since the Minister specifically in Charge of the FCT Abuja is appointed by the President, then
it’s only only reasonable, fair and equitable that that FCT Abuja residents should have a good say in the election of the duo.
🟥This appears to be a very strong argument that could be put forward in support that a person who wants to be President should get at least 25 percent votes in the FCT Abuja. If you must be my Governor, and also be the one who appoints the Minister that would administer my affairs, then I should have sufficient say (that’s, play more than a passing role) in your election.
Permit me to say again, what a strong, reasonable argument.
Unfortunately, it’s respectfully submitted, the express wording of section 134(2)(b) CFRN 1999 doesn’t appear to expressly reflect this position/argument. But, one could hang onto the interpretation principle that says that all sections of the Constitution dealing with a particular subject should not be interpreted in isolation but as complementary to each other, to render this argument impregnable.[See: R. Randall Kelso, “Styles of Constitutional Interpretation and the Four Main Approaches to Consitutional Interpretation in American Legal History,” 29 Val. U. L. Rev. 121 (1994).
Available at: https://scholar.valpo.edu/vulr/vol29/iss1/2]. Besides, the decision of the Supreme Court of Nigeria in the case of SKY BANK V IWU (2017) LPELR42595(SC)* says a great deal of a lot in support this argument. In that case [SKYE BANK V. IWU (2017) LPELR-42595(SC)] Hon Justice NWEZE, J.S.C ( pp. 26-32, paras. B-F ) has this to say on
INTERPRETATION OF STATUTE – RULES OF INTERPRETATION OF CONSTITUTION- Rules governing the interpretation of Constitutional provisions:
“This Court, like other commonwealth Courts which operate a written Constitution, has admirably warehoused a robust corpus of what may be termed “the jurisprudence of constitutional interpretation.” The decisions are truly legion – they are numerous. Examples include: A-G, Bendel State v. A-G, Federation and Ors [1981] N.S.C.C. 314, 372-373. Buhari v. Obasanjo [2005] 13 NWLR (Pt. 941) 1, 281; F.R.N. v. Osahan [2006] All FWLR (Pt. 312) 1975, 2019; Savannah Bank Ltd Ajilo [1989] 1 NWLR (Pt. 97) 305, 326; A.D.H. Ltd v. A.T. Ltd (No. 2) [2007] ALL FWLR (Pt. 392) 1781; A-G, Abia State v. A-G, Federation [2005] All FWLR (Pt. 275) 414, 450; A-G, Ondo State v. Ekiti State [2001] FWLR (Pt. 79) 1431, 1472-1473, etc They include: Ndoma Egba v. Chukwuogor and Anor (2004) 2 S.C. (Pt. 1) 107; A-G, Ogun v. Aberuagba [1985] LPELR-3164 (SC); A-G, Federation v. A-G, Lagos State [2013] LPELR-SC. 340/2010; Obi v. I.N.E.C. (2007) All FWLR (Pt. 378) 1116, 1213; Ifezue v. Mbadugha & Anor. [1984] All NLR 256; Kalu v. Odili [1992] 6 SCNJ 76; Ojukwu v. Obasanjo (2004) All FWLR (Pt. 222) 1666; N.U.R.T.W. v. R.T.E.A.N. [2012] 10 NWLR (Pt. 1307) 170; Governor of Kwara State v. Dada ([2011) All FWLR (Pt. 592) 1638. Courts, elsewhere in the commonwealth, have espoused the same approaches, Martin v. Hunter 1 Wheat 304, 4 L. Ed 97; Cooper v. Telfair 4 Dal 14, 1 L. Ed; United States v Lefkowitz 285 US 452, 52 S, Ct. 420, 76 L. Ed. 877; United States v Classic 313 US 299, 61, S. Ct, 1031, 85 L. Ed. 1368; Lake County v. Rollins 130 US 662, 9 S. Ct. 651; Fairbank v. United States 181 US 283, 21 S. Ct. 648, 45 L. Ed, 862; United States v. Sharpnack 355 US 286, 78 S. Ct. 291, approvingly, cited in A-G, Bendel State v A-G, Federation and Ors (supra); A-G For North South Wales v. B.E.U.N.S.W. (1908) 6 C.L.R. 469, 611-612, approvingly, adopted in Bank of New South Wales v. The Commonwealth (1947-1948) 76 C.L.R. 1, 332. From an intimate reading of the alluring reasoning in these decisions, the following broad rules, among others, may be concreted: ?(a) there is the very fundamental prescription that, in interpreting the Constitution – which is the supreme law of the land – mere technical rules of interpretation of statutes are, to some extent, inadmissible in a way so as to defeat the principles of government enshrined therein, Nafiu Rabiu v. State [1980] N.S.C.C. 292, 300; A-G for North South Wales v. B.E.U.N.S.W. (supra), approvingly, adopted in Bank of New South Wales v. The Commonwealth (supra). Accordingly, where the question is whether the Constitution “has used an expression in the wider or in the narrower sense… this Court should, whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the text or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the objects and purpose of the Constitution, Nafiu Rabiu v State (supra). (b) as a corollary, all sections are to be construed together and hence, it is impermissible to construe sections in isolation, A-G, Federation v. Abubakar (2007) All FWLR (Pt. 389) 1264, 1289-1291; Elelu-Habeeb v. A-G, Federation (2012) LPELR-SC.281/2010; I.N.E.C. v. Musa [2003] 3 NWLR (Pt. 806) 72, 102; A.T. Ltd. v. A.D.H. Ltd [2007] 15 NWLR (Pt. 1056) 118, 166-167; Marwa and Ors v. Nyako (2012) LPELR-7837 (SC). (c) where the words are clear and unambiguous, a literal interpretation will be applied, that is, they will be accorded their plain and grammatical meaning; N.E.W. Ltd v. Denap Ltd (supra); Ojokolobo v Alamu (supra); Olanrewaju v. Governor of Oyo State (supra); Egbe v. Yusuf (supra); Yarokun v. Adeleke (supra); Ahmed v. Kassim (supra). (d) however, where there is inherent ambiguity in any section, a holistic interpretation would be resorted to in order to arrive at the intention of its framers, A-G, Federation v. Abubakar (supra); Elelu-Habeeb v. A-G, Federation (supra); I.N.E.C. v. Musa (supra); A.T. Ltd. v. A.D.H. Ltd (supra); Marwa and Ors v. Nyako (supra); Obi v. I.N.E.C. (supra); Ojukwu v. Obasanjo (supra). (e) since the draftsperson is not known to extravagate words or provisions, it is anathematic to construe a section in such a manner as to render other sections redundant or superfluous, N.U.R.T.W. v. R.T.E.A.N. (supra) 212; (f) as a follow-up to the rule against “ambiguity,” if the words of a statute are ambiguous, then the Law Maker’s intention must be sought, first, in the statute itself, then in other legislation and contemporary circumstances and by resort to the mischief rule. The A-G of Ekiti State and Ors v. Adewumi and Anor [2002] 1 SC 47, 51; Ugwu v. Ararume [2007] 12 NWLR (Pt. 1048) 365; (g) in all, the proper approach to the construction of the Constitution “should be…one of liberalism; a variation on the theme of the general maxim ut res magis valeat quam pereat. As such, it would be improper to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction, equally, in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends, Nafiu Rabiu v. State (supra) 300-301; A-G of North South Wales v. B.E.U.N.S.W. (supra) 611-612; Bank of New South Wales v. The Commonwealth (supra) 332. Only recently, this Court summed up these prescriptions in Saraki v. F.R.N. [2016] 3 NWLR (Pt. 1500) 531, 631-632, in these words [per Nweze, JSC]: ?”…one of the guiding posts in the interpretation of the provisions of the Nigerian Constitution is that the principles upon which it [the Constitution] was established, rather than the direct operation or literal meaning of the words used, measure the purpose and scope of its provisions, Global Excellence Communication Ltd v. Duke [2007] 16 NWLR (Pt. 1059) 22; A-G, Bendel v. A-G, Federation [1982] 3 NCLR 1. Above all, the rationale of all binding authorities is that a narrow interpretation that would do violence to its provisions and fail to achieve the goal set by the Constitution must be avoided. Thus, where alternative constructions are equally open, the construction that is consistent with the smooth working of the system, which the Constitution, read as a whole, has set out to regulate, is to be preferred, Dapianlong v. Dariye [2007] 8 NWLR (Pt. 1036) 239. The principle that underlies this construction technique is that the Legislature would legislate only for the purpose of bringing about an effective result, I.M.B. v. Tinubu [2001] 15 NWLR (Pt. 740) 690; Tukur v. Government of Gongola State [1999] 4 NWLR (Pt. 117) 517, 579; Aqua Ltd v. O.S.S.C. [1985] 4 NWLR (Pt. 91) 622; Ifezue v. Mbadugha and Anor [1984] 15 NSCC 314; Nafiu Rabiu v. The State [1980] 8 -9 SC 130. This approach is consistent with the ‘living tree’ doctrine of constitutional interpretation enunciated in Edward v. Canada [1932] AC 124 which postulates that the Constitution ‘must be capable of growth to meet the future,’ N. K. Chakrabarti, Principles of Legislation and Legislative Drafting, (Third Edition) (Kolkata: R., Cambray and Co. Private Ltd, 2011) 560, citing Graham, “Unified Theory of Statutory Interpretation,” in Statute Law Review Vol. 23, No.2, July, 2002 at 91-134. I, therefore, endorse the position that the construction of any document [and this includes the construction of the precious and organic document known as the 1999 Constitution] is a holistic endeavour, United Sav. Ass’n of Tex v. Timbers of In wood Forest Assocs Ltd 484 U.S. 365, 371 (1988) (per Scalia, J), see, generally, A. Scalia and G. Garner, Reading Law: The Interpretation of Legal Texts (St, Paul, MN: Thomson/West, 2012) 167-168; also, Abegunde v. The Ondo State House of Assembly [2015] Vol. 244 LRCN 1, 374.”
Critical Question Arising:
Should Section 134(2)(b) be considered as it is, or must one have recourse to other provisions of the Constitution related to the status and governance of the FCT, Abuja. This and more are considered in details in my upcoming paper, Revisiting The Question of Whether 25% Votes In the FCT, Abuja Is Indispensable For Victory in A Presidential Election In Nigeria”
By Sylvester Udemezue (Udems)
08109024556.
[email protected].
(26/03/2023)
