IN THE SUPREME COURT OF NIGERIA
On Wednesday, the 26th day of September 1979
SC. 62/1979
Between
CHIEF OBAFEMI AWOLOWO ................ PETITIONER/APPELLANT
And
ALHAJI SHEHU SHAGARI & 2 ORS. .................... RESPONDENTS/DEFENDANTS
Following the decision of the Military to return the Government of the Federal Republic of Nigeria to the civilians, elections to fill five elective offices under the new Constitution were conducted. The election to fill the office of the President was held on the 11th day of August 1979 and of the 5 candidates who contested (namely: the Petitioner/Appellant, Chief Obafemi Awolowo-UPN; Dr Nnamdi Azikiwe-NPP; Alhaji Aminu Kano-PRP; Alhaji Ibrahim Waziri-GNPP; and Alhaji Shehu Shagari-NPN) the 1st respondent, Alhaji Shehu Shagari was on the 16th day of August 1979 declared elected on the ground that the votes cast in his favour satisfied the provisions of Section 34 A (1)(c)(i) and (ii) of the Electoral Decree 1977 (No. 73) as amended.
The provisions of Section 34A(1)(c)(i) and (ii) provides that a Presidential candidate will be deemed to have been duly elected to such office where he has the highest votes cast at the election; and he has not less than one quarter of the votes cast at the election in each of, at least, two-thirds of all the States in the Federation.
In an election petition presented to the Presidential Election Tribunal in Lagos following the election of the 1st respondent as duly elected President of the Federal Republic of Nigeria, the petitioner contended that the election of the first respondent was invalid by reason of non-compliance with the provisions of Part II of the Electoral Decree, 1977 which include the provisions of Section 34A(1)(c)(ii) of the said Decree because although the first respondent received the highest total votes of 5,688,857 votes at the said election, he had less than one-quarter of the votes cast at the election in each of at least two-thirds of all the States in the Federation.
The Petitioner then prayed that the Tribunal should determine that the 1st Respondent was not duly elected or returned and that his election or return was void; and also that the 2nd and 3rd Respondents be ordered to arrange for an election to be held in accordance with Section 34A(3) of the Electoral (Amendment) Decree (Decree 32 of 1979).
In his evidence before the Tribunal, the petitioner called only one witness - Professor Ayodele Awojobi-a Professor of Engineering at the University of Lagos and an applied mathematician who testified that there are 38,760 possible two-thirds of Kano State going by Local Government Area and that in the absence of a computer, it will take at least one year to declare the result in respect of two-thirds of Kano State. Exhibits T1, T2 and T3 respectively were tendered showing the Declaration of the result, analysis of votes cast State by State for each candidate and analysis of votes cast in Kano State at the election.
The tribunal having considered evidence and submissions by both sides dismissed the petition in its entirety.
Aggrieved by this decision, the appellant appealed to the Supreme Court. The highlight of the grounds of appeal which bordered mainly on the interpretation and application of Section 34A(1)(c)(ii) are that:
1. The Election Tribunal misdirected itself in law in construing two-thirds of 19 States as 12?instead of 13 States when in law and especially within the context of Section 34A(1)(c)(ii) of the Electoral Decree 1977 as amended, a State being a corporate body or a legal person cannot be fractionalised.
2. The Election Tribunal misdirected itself when it held that the dominant requirement in the election is the number of votes cast in each of the States, "two-thirds State" would be synonymous with two-thirds of the total votes cast in that State and not the physical or territorial area of such State.
3. The Election Tribunal misdirected itself when it took the total votes cast for the 1st respondent in Kano State viz 243,423 instead of two-thirds thereof viz, 162,282 to determine whether or not the first respondent scored at least a quarter or 25 per cent of the total votes cast in two-thirds of Kano State viz 203,460.
HELD:
(1) In considering the meaning of the provisions of Section 34A(1)(c)(ii) of the Electoral Decree, we must realise that we are interpreting a particular statute passed under special circumstances. For the purpose of the Decree under consideration, a Returning Officer in our view should be primarily concerned with the total number of votes cast by the voters in each of the 19 States of the Federation, bearing in mind that the entire Federation is each candidate's constituency. From the total number of votes cast throughout the country he will identify the candidate who has the highest number of votes cast by the voters at the election. After this he (the Returning Officer) will find the votes which this candidate has scored in each State. This has been done in Exh. T2.
(2) It is at this stage that the Returning Officer ought to determine what is two-thirds of 19 States. This is a matter of law as it deals with the interpretation of the provisions of Section 34A(1)(c)(ii) of the Decree. It is also relevant to point out that anybody called upon to interpret any kind of Statute should not for any reason, attach to its statutory provision, a meaning which the words of the statute cannot reasonably bear. If the words are capable of more than one meaning then the person interpreting the statute can choose between these meanings, but beyond that he must not go.
(3) We endorse the view that where in construing general words the meaning of which is not entirely plain, there are adequate reasons for doubting whether the legislature could have been intending a certain wide interpretation as would disregard fundamental principles, then a judge may be justified in adopting a narrower construction.
(4) The 3rd Respondent appears to have followed the principles of construction as enunciated above with unassailable justification. This is because the Federal Military Government divided the Federation into 19 States in 1976 by the States (Creation and Transitional Provisions) Decree. The Decree which came into force on 3rd February, 1976, also specified the geographical area of each of the 19 States. Less than two years later, on 29th December 1977 to be precise, the same Government promulgated the Electoral Decree (No. 73 of 1977) the original Section 34(2)(i)(b) contained the provision of not less than one quarter of all the votes cast at the election in each of at least two-thirds of all the States within the Federation. Now although the section was later amended by the Electoral (Amendment) Decree (Decree No. 32 of 1978) the said provision was not amended as it could have been done using words similar to those used in paragraph 39 of Table C of Schedule 1 of the Companies Decree 1968 (Decree No. 51 of 1968) which states that where the number is not 3 or a multiple of 3 then the nearest to one-third shall be considered. That being the case, the Federal Military Government must be deemed to know that two-thirds of 19 States will be 122/3 of States.
(5) If the number 13 which is the nearest to two-thirds of a State had been intended the Federal Military Government would have said so in clear terms. In any case, as between 13 States and 122/3 States, the figure of 122/3 considering all the circumstances, appears to us to be the intention of the Federal Military Government in the context of sub-paragraph (ii) of Sub-section (1)(c) of Section 34A.
(6) Furthermore, it is, we think, fallacious to talk of fractionalisation of the physical land area of a State when the operative words of Section 34(1)(c)(ii) relate undoubtedly to the votes cast by the voters in the State at the election.
(7) It is also fallacious to talk of scaling down the votes cast for the 1st respondent in Kano State by one-third. That argument, if we may say so, overlooks the clear and unambiguous words of Section 34(1)(c)(ii) which provide 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 State in order to determine whether the votes received by him are not less than one-quarter of two-thirds of all the votes in Kano State.
(8) We are prepared to say that the respondent was in error of his interpretation of what constitutes two-thirds of nineteen States. Moreover, until election returns can be computerized in this country, the "mathematical canon of interpretation" put forward by Professor Awojobi (1st petitioner's witness) in his testimony before the Tribunal will remain impractical and legally unacceptable.
(9) Quite apart from the compliance with the provisions of Section 34A(1)(c)(ii) of the Decree as found by us, even if we had found that there had been non-compliance with the said provision we would have evoked the provisions of Section III Sub-section (1) of the Decree which provides that non-compliance with Part II of the Decree did not affect the result of the election, and held that the election to the office of the President was conducted substantially in accordance with the provisions of Section 34A(1)(c)(ii) which is within Part II of the Decree.
(10) A close look at Section 110 Sub-section (1) shows that of all the stated grounds (five in all) on which a presidential election may be questioned, it is only when the petition is questioned on the ground of "non-compliance with any of the Provisions of Part II of the Decree" that a Tribunal and indeed this court, can still dismiss the petition on the ground of the provision of Section II Sub-section (1) of the Decree as already stated above.
Appeal dismissed.
Obaseki J.S.C. (also dismissed the appeal but for different reasons from the lead judgment).
HELD:
(1) It appears to me that when reference was made in Section 34A(1)(c)(ii) to one-quarter of the votes cast at the election in each of at least two-thirds of all the States in the Federation, the intention must be the votes cast within the geographical area set out under the Constitution and where Kano State is concerned within the geographical area of Kano State. Moreover, registers of votes were compiled from a house to house registration of all eligible voters throughout the Federation unless a registered voter is within the proper geographical area, his vote will not be taken. I therefore find myself unable to accept the proposition that votes are synonymous with States or that two-thirds of a State can be ascertained by a calculation of what two-thirds of the total votes cast in the State is.
(2) The construction that two-thirds of 19 States in the Federation is 12 2/3 States may be correct in the abstract but in relation to the Constitution and the Electoral Decree, it is unreal. Certainly, in relation to the Presidential Election now the subject of appeal, the FEDECO did not delimit any two-thirds State whether in Kano or elsewhere. FEDECO used 13 States as a criteria for voting and calculated two-thirds of the total votes cast in the 13th State to ascertain whether the votes cast for the 1st respondent in the whole 13th State was up to 25 per cent of two-thirds of the total votes cast in the whole State. This is a departure from justice in mathematics and is a serious violation of the Electoral Decree 1977 as amended.
(3) Where there are two possible meanings conveyed by words of a Statute it is the most reasonable one that should be adopted. Where the other meaning leads to absurdity or evinces internal contradiction, that meaning should be dropped for the first as the legislature never intends to be absurd or contradictory. The word "each" in the Sub-section (1)(c)(i) of Section 34A qualifies a whole State and not a fraction of a State and to interpret it otherwise is to overlook the disharmony between the word "each" and the fraction "two-thirds". Two-thirds of nineteen, to avoid any disharmony gives thirteen.
(4) Arising from the interpretation that two-thirds of all the States in the Federation refers to the land area and not the votes the result of the voting in Kano State can only mean what is stated in Exhibit T1 and T2 and nothing else. This is so having regard also to the provision of Section 34 of Electoral Decree 1977 which provides that votes in any election to the office of President or Governor shall be given by ballot and the results shall be ascertained by counting the votes given to each candidate.
(5) Finally, the reference to "state" in sub-section 2 of the Section 34A when it is required to ascertain the second candidate for any possible electoral college election to be held in each house of the National Assembly and in the House of Assembly of every State under the provisions of Sub-section 3 and 4 of Section 34A of the Electoral Decree further lends support to the above view.
(6) As FEDECO appears to have regarded the number of States in which the 1st respondent was to satisfy the requirement under Sub-section (1)(c)(ii) as 122/3 the 1st respondent must satisfy the requirement under Sub-section (1)(c)(ii) as 122/3 the 1st respondent must satisfy the requirement of the Sub-section but the evidence on proper and close examination shows that there was compliance with the provisions of Section 34 in respect of only 12 States. In respect of the remaining two-thirds States, there was no evidence of its situation, its geographical area and boundaries, there was no evidence of the voting, of the counting and of the votes received by the 1st respondent there to enable compliance with the provision of Section 34 and as such, the result declared in respect of two-thirds States was more in the imagination than in reality.
(7) It might have been possible for the 1st respondent to receive all the votes he received in the whole of Kano State in the imaginary two-thirds State if it had been delimited, ascertained and identified but he was not given the opportunity by FEDECO and the fact that the Election Tribunal was left to the exercise of delimiting two-thirds of Kano State from the vote boldly testifies to this fact. I am firmly of the opinion that it is not the intention of those who promulgated the Electoral Decree that votes should be collected outside the area of each of two-thirds of 19 States to ensure the attainment of the qualifying percentage in each State.
(8) In my view, that which the law has forbidden was what has been done in the ascertainment of what percentage of votes received by the 1st respondent in two-thirds of Kano State is of the assumed total votes cast in two-thirds of Kano State. If that was the intention of the Supreme Military Council it would have been so expressed in the Decree in very clear words. I have looked in vain to find the words in any portion of the Statute-the Electoral Decree 1977 as amended.
(9) Once a petitioner alleges a particular non-compliance and averred in his prayer that it was substantial, it is his duty so to satisfy the court or tribunal having cognisance of the question. The petitioner's witness-Professor Ayodele Awojobi's evidence in my view could not and did not help the tribunal to determine whether the non-compliance complained of affected the result.
(10) I think that when the Decree speaks of "affecting the result" it means tilting the result in favour of the petitioner. In the Presidential election where the whole country constitute the constituency, the onus on the petitioner is enormous and in the absence of any amendment to the provision of Section III of the Electoral Decree, no tribunal in any petition by a weak presidential opponent, can justifiably invalidate any election for non-compliance on a minimal scale.
(11) There is no evidence that the non-compliance with Section 34A(1)(c)(ii)-one of the provisions of Part II, has affected the result (i.e. but for the non-compliance the petitioner would have won) to enable the tribunal to declare the result invalid. The Appellant has failed to satisfy the tribunal and this court that the non-compliance has affected the result of the election or has prevented a majority of votes in his favour.
Appeal dismissed.
Eso J.S.C. (dissenting)
HELD:
(1) In my respective view, when Section 34A of the Electoral Decree makes reference to "States", "State" there can only have the same meaning as it has in other sections of the Decree and this can only be physical or territorial but not otherwise. Where a candidate has the highest number of votes, he is not to be deemed elected. He has scaled only one hurdle. There is still a second one-his votes must have a wide geographical spread. That geographical spread can only be measured by a quantum of physical states. I cannot find any other way of measuring it either in the Decree or elsewhere. The Decree provides no other method. The legislature attaches utmost importance to this territorial spread. So whether the presidential candidate has no rival, one rival or more than one rival in the contest, he cannot be deemed elected until the already mentioned conditions are met i.e.-majority votes and geographical spread of votes.
(2) In my view, the number of votes scored by the candidate or candidates should be ascertained by counting (as provided for by Section 34 of the Decree) firstly, to determine who has the majority votes or the highest number of votes as the case may be and secondly, to determine the extend of his territorial support. This extent could only be known from the quantum of physical States. Wherein he has scored more than 25 per cent of the total votes. So quantum of States is not secondary, it is as important as quantum of votes. The interpretation that should be placed on sub-section 34A(1)(c)(ii) in its ordinary grammatical sense, therefore is that a Presidential Candidate should have at least one-quarter of the votes which have been cast for all the candidates in not less that 122/3 physical States.
(3) In determining the number in the intention of the law maker in prescribing two-thirds of all the States in the Federation knowing fully well there are nineteen States and no state has been divided into units of three, the evidence before the Tribunal is that there are 38,760 possible "two-thirds" of Kano State going by the local government areas (the only units before the Returning Officer) and it would take at least one year, in the absence of a computer, to declare the result of a Presidential Election. If it is the intent of the legislator that the Returning Officer should work out what two-thirds of Kano State is under that circumstance then to expect him to find two-thirds of Kano State physically for the purpose of the election will lead to manifest absurdity.
(4) If it is agreed that (i) the word "State" as used in that subsection means physical territorial area; (ii) the legislator of the Electoral Decree was aware there are 19 States in the Federation before making the Decree; (iii) there is no provision for the division of a State into units of three or multiples of three in the Decree or in any other enactment; (iv) it is impracticable to use the permutations and combinations of the local government areas to get units of three or multiples of three and (v) the FEDECO itself, conscious of its responsibility, never divided the State into units of three and; (vi) the Decree requires that the extent of the geographical spread of the votes received by the candidate should be measured only by the quantum of physical States, then the obvious thing the FEDECO and the Returning Officer should do is to interpret the words "in each of at least two-thirds of 19 States" to mean in each of at least 13 States. Thus the words in the sub-section "not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the States in the Federation" must mean "not less than one-quarter of the votes cast at the election in each of at least thirteen States in the Federation."
(5) There is nowhere under the Electoral Decree nor under any other known enactment for that matter where the word "State" has been made synonymous with the number of votes cast and not the physical or territorial area of the State. If the literal meaning of the words used in Section 34A(1)(c)(ii) are sought and the words "two-thirds States" are made synonymous with two-thirds of the total votes cast in that State, the learned Tribunal is definitely substituting quantum of votes for the second prerequisite of the election of the President which requires a geographical spread that has to be measured by the quantum of States.
(6) It is my view that to be logical, the interpretation of the word "State" in the Decree must be the same throughout, otherwise it cannot be just. What is good for Kano State for the purpose of interpretation must be good for all the other 12 States and vice versa. The Tribunal having held that the wording of the sub-section is not ambiguous nor will the application of the words lead to absurdity or work injustice could not rightly give the same word, even in the same section of a Decree, different interpretations. With the greatest respect to the learned Tribunal, it fell clearly into a serious error when it equated the words "two-thirds States" with "two-thirds of the total votes cast in that State" and not the physical or territorial area of such State.
(7) If it was the intention of the legislature to provide only one hurdle-that is, issue of votes simpliciter, it would have done so. But rather than limit the prerequisite to only a score of the highest votes, it made the issue of territorial spread measurable only by a quantum of States so prominent that it is compulsory whether the candidate has a rival or not at the election. What the learned Tribunal has done amounts to an amendment of the legislation and amendment is the function of the legislature: the courts cannot alter the words of a regulation to make it read the way they think it should have been enacted. The office of a judge is jus dicere not jus dare.
(8) At the very best, the Tribunal could only have taken an imaginary two-thirds area of Kano and ascribe to that imaginary area two-thirds of the imaginary votes cast in Kano. But in finding whether the first respondent scored one-quarter of those votes in the imaginary area, the Tribunal must also first find two-thirds of the total score of the 1st Respondent before comparing it with one-quarter of the scores in the imaginary two-thirds area. This is the only way of finding a correct simple proportion. To scale down by one-third the total votes obtained before comparing it with the total votes scored by the first Respondent without having his own also correspondingly scaled down by the same one-third is to give the 1st Respondent less than the responsibility he has to perform under the Decree.
(9) The fallacy in the finding of the Tribunal is to be found in the fact that if their mathematical proportion is right, then one of the Presidential candidates must have scored more than 100% of the votes in Kano. This can never be right. Again if the Tribunal is right and two-thirds is synonymous, with two-thirds of the votes cast in the State, then it would be correct to obtain the 122/3 States by taking two-thirds of all the votes cast in each of the 19 States.
Going on the above, therefore, the 1st Respondent did not satisfy the provision of Part II of the Electoral Decree 1977 to wit: Section 34A(1)(c)(ii).
(10) If the 1st Respondent has not satisfied Section 34A(1)(c)(ii) then Section 34(a)3 prescribes that the Electoral Commission shall within 7 days of the results of the elections held under the sub-sections, arrange for an election by electoral college. Where it is necessary to have an election under Section 34A and that election has not been held, then there cannot be a "return". Return has been defined as the declaration of the result of an election in accordance with the appropriate provisions of the Decree and "result of the election" means success of one candidate over others.
(11) It is my view that this result could not be known until that second election has been held and it is not within the realm of the court to conjecture what the result of that election held under Sub-section 3 of Section 34(A) would be.
(12) The declaration of "return" under Section 68 of the Decree is to be done after counting the votes and ascertaining the result of the polls. If votes still have to be counted as provided for by Section 34A(3) before ascertaining the results and declaration of the election, it is my respectful view that the stage has not been reached when one could invoke Section 111 of the Decree as an election has to be held first before it could appear to the Tribunal that the election was conducted substantially in accordance with the provisions of Part II and that the result of that election has not been affected by such non-compliance.
Appeal allowed.
G. O. K. Ajayi, S.A.N. with him A. A. Adesanya, B. Omoruwa, A. Adebanjo, O. Ajayi, P. I. Ijewere, A. O. Sogbesan, M. O. Awoniyi, J. Y. Odebela, S. Eghbobahiem, A. A. Ajibulu, S. A. Ehiwario, T. Ayanlaja, Y. Adefula, A. Soyode (Mrs), E. E. Osifo, O. Odunowo, T. Adesanya, O. Ayandipo, A. Aka-Bashorun, M. A. Omisade, A. Akinboro, O. N. Rewane, C. Okwesa, A. Ogunsola (Miss), for the Appellant.
R. Akinjide, S.A.N. with him W. Odje, S.A.N., G. Alatishe, E. C. Osamor, A. Ainoa, H. Kusamotu, F. Okuunu, T. Oyagbola, T. Coker, O. Awotesu, A. Fayokun, A. Adeoti, for the 1st Respondent.
S. S. A. Ojomo (Assistant Director of Litigation, Federal Ministry of Justice) and Mrs S. R. A. Osijo, for the 2nd and 3rd Respondents.
Cases referred to:-
1. Akinfosie v. Ijose 5 F.S.C. 192.
2. Animashaun v. Osuma & Ors (1972) All N.L.R.; (Part) 363.
3. Attorney-General v. Lockwood (1842) 9 M & W 378.
4. Becke v. Smith (1836) 2 M & W 191.
5. Christopherson v. Litinga (1864) 33 L.J.C.P. 121.
6. Coker v. Oyalowo.
7. Curtis v. Storin (1889) 22 QBD 517.
8. Ealing London Borough v. Race Relations Board (1972) AC 342.