By Fred Latimore Oghenesivbe Esq.
Nigerian Democracy has substantially drifted under the All Progressives Congress, APC, Federal Government led by President Muhammadu Buhari.
I say so because we are faced with major infraction and/or deliberate act of impunity that is inconsistent with the provisions of Section 3(3) of the 1999 Constitution of the Federal Republic of Nigeria,1999, as amended, which singled out the Federal Capital Territory, FCT Abuja, as the seat of federal government, a mini Nigeria and Centre of Unity with specific attributes, characteristics and geographical specialty.
The constitution clearly stipulates that FCT should be treated as if it were a state but not as a state because of the special status which it enjoys as the centre of Unity, making it the ethnic and religious hub that explains the totality of our unity in diversity.
The difference between any other state in Nigeria and the FCT is visibly in their features. Whereas the 36 states of the federation are governed by an elected Executive Governor, the FCT does not have a governor, it’s under the control of any incumbent President.
There exist House of Assembly in each state of the federation except FCT. The National Assembly make Laws for the FCT, a departure from what entails in the States.
In the light of the above, names of all states in Nigeria are listed in Section 3(1):
There shall be 36 states in Nigeria, that is to say, Abia, Adamawa, Akwa Ibom, Anambra, Bauchi, Bayelsa, Benue, Borno, Cross River, Delta, Ebonyi, Edo, Ekiti, Enugu, Gombe, Imo, Jigawa, Kaduna, Kano, Katsina, Kebbi, Kogi, Kwara, Lagos, Nasarawa, Niger, Ogun, Ondo, Osun, Oyo, Plateau, Rivers, Sokoto, Taraba, Yobe and Zamfara.
This section which identified states in Nigeria did not mention the FCT Abuja. The reason is obvious, FCT is not a state but must be accorded the recognition as if it were a State. Taken further, Section 297 and 298 of the constitution explained the status of FCT. SEE s.297 & 298 of CFRN 1999, as amended.
While the ownership of land is vested in the governor of States, that of the FCT Abuja is vested in the President of Nigeria. That’s why it is mandatory for a presidential candidate to Garner 25% of votes cast in 24 states plus 25% in FCT to be declared President-Elect. This is made sacrosanct by the constitution and INEC or it’s Chairman must never ignore this all important requirement.
It’s on record that APC and Tinubu polled 16% of votes in FCT, PDP and Atiku had 19% while LP and Obi polled 61% of the total votes cast in the FCT. It’s glaring that Tinubu’s 16% is not the requirement stipulated in the constitution. What is required is 25% of votes in FCT plus 24 other states, period!
What Prof Yakubu and INEC did was to assume that the FCT is part of the 36 states, therefore 25% votes in FCT is no longer necessary so long APC and Tinubu won in 24 states. No, that’s not what the constitution stipulated.
Tinubu MUST Garner the required 25% votes in FCT and in 24 other states of the federation to emerge as President-Elect. This is the legal lacuna which the Supreme Court resolved in precious decisions, saying that the word AND is conjunctive, holding the 24 states and FCT together to make 25.
I read Prof Mike Ozekome’s lengthy but well researched legal article and opinion on the subject matter and I concur with his brilliant and spotless submissions. I strongly recommend that you read the article trending on social media.
Note the status of the FCT as a mini Nigeria and centre of Unity with no Governor, no House of Assembly and does not conduct governorship and House of Assembly elections. Power is vested in the President while the FCT minister is the administrative head, acting as proxy for Mr President.
These are distinct features that INEC Chairman may not have averted his mind to. This is also the reason why FCT was not listed as one of the states of the federation in section 3(1) of the CFRN, 1999, as amended, rather FCT status and characteristics were explained in Section 297 and 298 of the constitution. It’s very clear and the literal rule of interpretation is required and not the mischief rule
The legislative powers of the FCT is vested in the National Assembly, it make Laws for the FCT. Therefore, for a candidate to be declared President-Elect, he or she must score 25% of votes cast in 24 states and FCT, the major hub of ethnicity, religion and culture of the geographical entity called NIGERIA.
FCT is not a state but should be treated and accorded recognition as if it were a State. Therefore, Bola Ahmed Tinubu cannot be President of Nigeria until he’s able to poll the 25% of total votes cast in FCT in addition to 24 other states in Nigeria.
I wish to humbly reproduce Prof Mike Ozekome’s article below:
THE 25% OF FCT, ABUJA AS A LEGAL CONUNDRUM
By Prof. Mike Ozekhome, SAN, CON, OFR,
FCIArb, LL.M, Ph.D, LL.D, D. Litt.
Election is a process that must be carried out within the bounds of the laws of the land. In Nigeria, elections are held every four years.
Extant laws are made to ensure that it is only the candidate that has the overwhelming support and acceptance of majority of Nigerians that becomes the President.
That is what democracy is all about. Democracy as a concept, was popularised on 19th November, 1863, by Abraham Lincoln, a former American President, during his Gettysburg Declaration, as government of the people, by the people and for the people.
Sundry legal issues have arisen from the conduct of the 2023 general elections which held on Saturday, 25th February, 2023. Did the election reflect the mantra of section 14(2) of the 1999 Constitution to the effect that “sovereignty belongs to the people of Nigeria?” I think not.
My humble opinion is that the 2023 Presidential elections dwarfs and diminishes the 2007 Presidential Elections (which the then President, Umaru Musa Yar’Adua, had admitted) in all indices of a fundamentally flawed election.
THE 2023 PRESIDENTIAL ELECTIONS
The 2023 Presidential elections witnessed massive turnout as Nigerians were interested in voluntarily electing leaders of their choice. The polls were however bedevilled by large-scale irregularities, bare-faced manipulations and brazen non-compliance with extant laws governing the electoral process in Nigeria.
INEC even shut down its portal for over 24 hours due to what it called technical hitches and glitches. The main issue that is currently trending is whether or not, Asiwaju Bola Ahmed Tinubu (“Tinubu”), the Presidential candidate of the All Progressive Congress (APC) did not meet the constitutional requirement of polling at least not less than one quarter (1/4) of votes cast in the elections in at least two third (2/3) majority of all the States of the Federation and the Federal Capital Territory (FCT)…
And whether he should have been declared the winner of the Presidential elections as done by the Independent National Electoral Commission (INEC). This legal conundrum has suffered several commentaries from Jurists, Scholars, political analysts; and even the not so informed.
This rather lengthy dissertation is my humble contribution as a Nigerian to the current debate. It is interesting to note that amidst this legal uncertainty, Asiwaju Bola Ahmed Tinubu, the APC candidate, was nonetheless declared “winner” and even presented with the “Certificate of Return” as “President-elect” of the Federal Republic of Nigeria.
This was done by INEC on Wednesday, 1st of March, 2023. The collation, declaration and issuance of certificate of return, I humbly submit, all run counter to the provisions of sections 25, 47(2), 60(1), (2), (4) and (5); 62; 64(4)(a) & (b); 70; and 148 of the Electoral Act; paragraph 38 of the INEC Guidelines and Regulations; paragraphs 2.8.4; 2.9.0; and 2.9.1; of the INEC Manual For Election Officials, 2023; and judicial authorities.
Results from the manually transmitted results as collated and declared by INEC on the 1st day of March, 2023, showed that Tinubu, the candidate of the APC, on the face of it, was said to have secured the highest number of votes cast at the presidential election.
He is said to have garnered a total of 8,794,726, to allegedly defeat his closest rivals, Waziri Atiku Abubakar of the Peoples Democratic Party (PDP), who was said to have got a total of 6,984,520; with Mr. Peter Obi of the Labour Party (LP), being ascribed with 6,101,533 votes.
However, in the Federal Capital Territory, Abuja, where we have total valid votes of 478,923, Tinubu, the candidate of the APC, was said to have secured only 90,902 (19.76%) of the votes cast at the FCT; with Atiku alleged to have 74,194 (16.13%); and Peter Obi said to have 281,717 (61.23%). Did Tinubu win? Let us discuss.
ELECTING A PRESIDENT WHERE THERE ARE TWO OR MORE PRESIDENTIAL CANDIDATES
The Constitution is the birth certificate of any Nation. It is the organic law, the fons et origo and the grundnorm. See ROSSEK V. ACB LTD (1993) 8NWLR (PT 312) 382; DAPIALONG V. DARIYE (2007) 8 NWLR (PT 1036) 332.
For purposes of clarity and better appreciation of issues, section 134(2) of the 1999 Constitution provides as follows:
“A candidate for an election to the office of President shall be deemed to have been duly elected, where, there being more than two candidates for the election-
(a) He has the highest number of votes cast at the election; and
(b) 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 and the Federal Capital Territory, Abuja.” (Emphasis added)
The above provisions have been interpreted differently by several lawyers and non-legal minds. Some opine that it is not mandatory that a candidate must secure 25% votes in the Federal Capital Territory. Others disagree. I am of the latter school of thought.
A skeletal digest of the section reveals that the law provides for two limbs of requirements that are conjunctive and not disjunctive; that is, (a) the candidate must have the majority of votes cast at the election; and (b) he must have not less than one-quarter of the votes cast at the election in each of at least two-thirds of all States of the Federation AND the Federal Capital Territory, Abuja.
Furthermore, there are two instances contemplated in the provision dealing with where there are only 2 candidates; and where there are more than 2 candidates. In both situations, any of the candidates must satisfy both conditions of 25% in 24 States; and 25% in the FCT, Abuja. One without the other cannot work.
Please, note that sub section (3) provides that where the candidates still fail to satisfy the requirements, there shall be a second election in accordance with sub section (4); and the candidates shall be the highest vote scorer, followed by the next highest vote scorer; and this elections shall be held within 7 days of the results of the forgoing elections subject to fulfilment of the above usual conditions.
Accordingly, by sub section (5), where a candidate is not still elected, then within another 7 days, the National Electoral Commission (INEC) shall conduct another election; and this time, if a candidate simply has a majority of the votes cast, he shall be declared winner. In other words, this time around, the second limb of satisfying the 2/3 of States of the Federation and FCT, no longer arises.
THE 25% CONSTITUTIONAL REQUIREMENT AND LEGAL AND GOVERNANCE ISSUES ARISING THEREFROM
The gravamen of this discourse is the mathematical exactitude of the requirement of 25%. The wordings of the Constitution are quite clear and unambiguous. They demand for not less than one-quarter of the votes cast at the elections in each of at least 2/3 of all the States; AND the Federal Capital Territory.
By a judicial mathematical analysis, 2/3 of 36 States is equal to 24 States, and in addition, the FCT, Abuja. As an example, if I request to see 24 Corpers in my law firm AND OKON, it means I want to see 25 persons in all; but Okon must be one of the 25 persons. So if 25 persons in my law firm show up, without Okon, have I had all the persons I want to see? The answer is NO. To satisfy my request, Okon must show up in addition to the 24, thus making the 25 persons I desire to see.
What the law states is that the candidate must have 25% of votes in those States; and the FCT, Abuja. The law does not contemplate that the candidate must win those States. The jurisprudence behind this provision is to ensure that the President as the Numero Uno citizen of the Nation, enjoys a reasonable range of widespread acceptance by majority of the people he seeks to govern, including those inhabiting the seat of power where he would govern from.
To know whether a candidate must win 25% of 24 States aside the FCT, Abuja, to be declared as winner, we must consider the provisions of section 134 against the background of a community reading of sections 2(2), 3(1) & (4), 48, 297, 298, 299, 301, and 302 of the 1999 Constitution.
We shall now replicate this sections verbatim ad literatim before dabbling into the legal gymnastics of interpretation in the light of decided judicial authorities and scholarly ingenuity.
Section 2(2) CFRN:
“Nigeria shall be a Federation consisting of States and a Federal Capital Territory.”
The section did not just say “states”. It added “And the Federal Capital Territory”.
Section 3(1) & (4) CFRN:
“(1)There shall be 36 states in Nigeria, that is to say, Abia, Adamawa, Akwa Ibom, Anambra, Bauchi, Bayelsa, Benue, Borno, Cross River, Delta, Ebonyi, Edo, Ekiti, Enugu, Gombe, Imo, Jigawa, Kaduna, Kano, Katsina, Kebbi, Kogi, Kwara, Lagos, Nasarawa, Niger, Ogun, Ondo, Osun, Oyo, Plateau, Rivers, Sokoto, Taraba, Yobe and Zamfara.”
The FCT, Abuja was not mentioned here. However, in section 3 (4) The Federal Capital Territory, Abuja, is as defined in Part II of the First Scheduled to this Constitution.” It was thus treated separately.
Section 48 CFRN:
“The Senate shall consist of three Senators from each State and one from the Federal Capital Territory, Abuja.”
Here, the FCT, Abuja was recognised as different from other states.
Section 297 CFRN:
“(1)There shall be a Federal Capital Territory, Abuja the boundaries of which are as defined in Part II of the First Schedule to this Constitution.
(2)The ownership of all lands comprised in the Federal Capital Territory, Abuja shall vest in the Government of the Federal Republic of Nigeria”.
The above provisions clearly identified the FCT, Abuja, and its lands as distinct and different from states.
Section 298 CFRN:
“The Federal Capital Territory, Abuja shall be the Capital of the Federation and seat of the Government of the Federation.”
This section gives the FCT, Abuja, a special status as “the Capital of the Federation and the seat of the Government of the Federation”. No other state was accorded this special status.
Section 299 CFRN provides that:
“The provisions of this Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation; and accordingly-
(a) all the legislative powers, the executive powers and the judicial powers vested in the House of Assembly, the Governor of a State and in the courts of a State shall, respectively, vest in the National Assembly, the President of the Federation and in the courts which by virtue of the foregoing provisions are courts established for the Federal Capital Territory, Abuja;
(b) all the powers referred to in paragraph ‘a’ of this section shall be exercised in accordance with the provisions of this Constitution; and
(c) the provisions of this Constitution pertaining to the matters aforesaid shall be read with such modifications and adaptations as may be reasonably necessary to bring them into conformity with the provisions of this section.”
Section 301 CFRN:
“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;
(b) references to the Chief Judge and Judges of the High Court of a State were references to the Chief Judge and Judges of the High Court, which is established for the Federal Capital Territory, Abuja by the provisions of this Constitution; and
(c) references to persons, offices and authorities of a State were references to the persons, offices and authorities of the Federation with like status, designations and powers, respectively; and in particular, as if references to the Attorney-General, Commissioners and the Auditor-General for a State were references to the Attorney-General, Ministers and the Auditor-General of the Federation with like status, designations and powers.”
Both sections 297 and 301 clearly donates all the attributes and powers of a state (Legislative, Judicial, Executive Offices, designations and powers) to the FCT as a separate legal entity.
Section 302 CFRN provides that:
“The President may, in exercise of the powers conferred upon him by section 147 of this Constitution, appoint for the Federal Capital Territory, Abuja a Minister who shall exercise such powers and perform such functions as may be delegated to him by the President, from time to time.”
The above provisions were pronounced upon and upheld in BAKARI V. OGUNDIPE (2020) LPELR – 4957 (SC), (PER BODE RHODES-VIVOR, JSC, rtd).
Thus, the FCT, Abuja, like any state in the Federation, has its own courts, distinct Chief Judge, a Senator; executive powers exercised by the President for it, similar to Governors of states, legislative powers vested on the NASS, instead of states with Houses of Assembly; with a Minister as its administrative Head rather than a Governor. It is distinct from states.
This Constitution imbroglio becomes easy to untie when we recall some precedents.
In AWOLOWO V. SHAGARI & 2 ORS (1979) FNLR Vol. 2, the apex Court considered Section 34A(1)(c)(ii) of the Electoral Decree which is impari material, except that it did not add “And the FCT, Abuja.” It held:
“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
i.He has the highest number of votes cast at the election; and
ii.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.”
The difference between this Decree and Section 134 of the Constitution being considered is the addition of “and the Federal Capital Territory, Abuja’’ under our extant 1999 Constitution.
In AWOLOWO’S CASE, Fatayi-Williams, CJN, held that Section 34(1)(c)(ii) of the Decree was a clumsily worded section which was nevertheless devoid of any semantic ambiguity. In that same case, Obaseki, J.S.C., construed the meanings of the word “each” and the words “States in the Federation”.
Heheld that the word “each” in subsection (1)(C)(ii) of section 34A qualified “a whole State”; and that the words “States in the Federation referred to the land area and not votes. For the avoidance of doubt, we shall reproduce the exact words of the learned Justice; thus:
“The word ‘each’ in the subsection (1) (c)(ii) of Section 34A qualifies a whole State and not a fraction of a State and to interpret otherwise is to overlook the disharmony between the word ‘each’ and the fraction ‘two-thirds’. …
Looking at the subsection still further, the words ‘States in the Federation’ can only refer to the land area and not the votes. Arising from the interpretation that 2/3 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 ‘T’ and ‘T2’ and nothing else. …”
By way of extrapolation, the “land area” of the FCT must be distinguished from the land area of each of the 24 States of the Federation.
THE DEFINITION OF THE FEDERAL CAPITAL TERRITORY, ABUJA
The Federal Capital Territory is defined in Part II of the First Schedule to the Constitution. The definition is in relation to Sections 3 (Chapter I) and 297 (Chapter VIII) of the Constitution. Section 299 of the 1999 Constitution which is in Chapter VIII, flows directly from the provisions of Section 297 of the Constitution.
Section 299 of the Constitution states that “the provisions of this Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation.” Part 11 of the Constitution also defines the FCT as a land area of its own, separate and distract from the land mass of any other State.
Consequently, the 1999 Constitution has introduced a new dimension different from the 1979 Constitution, by adding a further requirement of 25% in “and the Federal Capital Territory, Abuja.”
In BABA-PANYA V. PRESIDENT, FRN (2018) 15 NWLR (Pt 1643), 423), it was held that the FCT is to be treated like a State and that it is not superior or inferior to any State in the Federation.
The facts of this case are that the Appellant had filed a suit at the Federal High Court, Abuja, asking the court to determine whether by the combined provisions of Section 147(1), (3),(14) and 299 of the 1999 Constitution, the indigenes of the FCT, Abuja, are entitled to Ministerial appointment…
And whether the continued refusal or failure by previous and current Presidents to so appoint an indigene of FCT, Abuja, as Minister of the Federation was tantamount to a flagrant violation of the Constitution. The court held that:
“By the combined effect of the provisions of Sections 299, 147(1) and (3) and 14(3) of the Constitution of the Federal Republic of Nigeria, 1999, it is obligatory or mandatory for the president of Nigeria to appoint at least one Minister from the indigenes of FCT, Abuja as a Minister to represent them in the Federal Executive Cabinet of the Federation.
Failure to appoint any Minister from amongst the indigenes of FCT, Abuja, is a fragrant violation of the Constitution. The provisions are aimed at ensuring equal and fair participation of all States in the recognition of the diversity of the people of this country and the need to forge national unity, promote a sense of belonging among all the peoples in the Federation. …”
The gravamen of this judgment is simply that whatever is applicable to States in the Federation shall equally be applied to the FCT. If the Constitution therefore requires votes cast in at least two-thirds States in the Federation “and the FCT, Abuja,” it is compulsory that every candidate must meet that requirement of “and the FCT, Abuja,” before he is declared the winner. Tinubu did not. It was therefore unconstitutional and illegal for him to have been declared President-elect and presented with a Certificate of Return by INEC.
THE STATUS OF THE FCT IN THE CONSTITUTION
Flowing from the above, let us now examine section 299 of the 1999 Constitution.
In BAKARI V. OGUNDIPE (2021) 5 NWLR (Pt. 1768) 1, the apex court of the land held:
“By virtue of section 299(a), (b), of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the provisions of the Constitution shall apply to the Federal Capital Territory, Abuja, as if it were one of the States of the Federation…
And accordingly all the Legislative powers, the executive powers and the judicial powers vested in the House of Assembly, the Governor of a State and in the courts of a State shall respectively, vest in the National Assembly, the President of the Federation and in the courts which by virtue of the provisions are courts established for the Federal Capital Territory, Abuja…
All the powers referred to in paragraph of the section shall be exercised in accordance with the provisions of the Constitution; and the provisions of the Constitution pertaining to the matters aforesaid shall be read with such modifications and adaptations as may be reasonably necessary to bring them into conformity with the provisions of the section.
By virtue of the provisions of section 299 of the Constitution, it is so clear that Abuja, the Federal Capital of Nigeria, has the status of a State. It is as if it is one of the States of the Federation.” (Pp. 36-37, paras. E-A). See also, with approval, the following authorities;
NEPA vs. ENDEGERO (2002) LPELR-1957(SC). BABA-PANYA vs. PRESIDENT, FRN (2018) 15 NWLR (pt. 1643)395; (2018) LPELR-44573(CA), IBORI V. OGBORU (2005) 6 NWLR (Pt. 920) 102.
There is no ruckus or brouhaha with the clear position of the courts as stated above. This is because the Constitution is clear on the separate and distinct status of the FCT. It is treated as any other State in Nigeria.
Consequently, a community reading of sections 2(2), 3(1)(4), 297, 299, 301 and 302, shows that the contemplation of the draftsman was indeed to consider FCT as separate and distinct from any other State in the Federation.
It must be borne in mind that, “Judex est lex loquens”, (i.e, the Judge is the speaking law”). In other words, the law is what the courts say it is, and “nothing more pretentious” – Oliver Wendell Holmes Jr. We must note that, the primary responsibility of the Judiciary is “jus decere”; and not “jus devere” (to interpret laws and not to make laws). We are constrained, at this juncture, not to dabble into some jurisprudential schools of thoughts.
CANONS OF INTERPRETATION VIS-A-VIS THE 25% CONUNDRUM
Let us now examine some canons of interpretation as they pertain to this analysis.
The primary canon of interpretation of the Constitution is the “literal rule” as held by the apex court in A.G, ABIA STATE V. A.G FEDERATION (2022) 16 NWLR (PT. 1856) 205. SEE ALSO N.P.A PLC V. LOTUS PLASTIC LTD. (2005) 19 NWLR (PT. 959)158; GANA V. S.D.P (2019) 11 NWLR (PT. 1684) 510; A.G, LAGOS STATE V. A.G, ABIA STATE V. A-G FED. (2018) 17 NWLR (PT. 1648) 299 AT 412; MARWA & ORS V. NYAKO & ORS (2012) LPELR-7837(SC).
Accordingly, where words are clear and unambiguous, the court must so interpret them without any further ado; or going outside them. In KASSIM V. SADIKU (2021) 18 NWLR (pt. 1807) 123, the Supreme Court held that:
“where a statute of the Constitution or a subsidiary legislation,…prescribes a procedure for seeking remedy or the doing if anything or act, and the language used is clear and unambiguous, that is the only procedure open to the parties concerned, and any departure therefrom will be an exercise in futility. See also INAKOJU V. ADELEKE (2007) 4 NWLR (PT. 1025) 427; S.B.N LTD V. AJILO (1989) 1 NWLR (pt. 97) 305.
A court is not to go on a voyage of discovery when words are clear in Statute. See ARAKA V. EGBUE (2003) 17 NWLR (PT. 848)1; ABACHA V. FRN (2014) 6 NWLR (PT. 1402) 43; KRAUS THOMPSON ORGANIZATION V. N.I.P.S.S (2004) 17 NWLR (pt. 901) 44.
It is thus trite law that where a provision of a statute is clear and unambiguous, only its natural meaning, and not any other, is to be given to its interpretation.
See A-G., ABIA STATE V. A-G., FEDERATION (2002) 17 WRN 1; (2002) 6 NWLR (PT. 763) 264 AT 485 – 486, TEXACO PANAMA INC. V. SHELL P.D.C.N. LTD. (2002) 14 WRN 121; (2002) 5 NWLR (PT. 759) 209 AT 227 – 228, TASHA V. U.B.N. PLC. (2003) 36 WRN 64; (2002) 3 NWLR (PT. 753) PAGE 99 AT 106, O.A.U. ILE-IFE V. R. A. OLIYIDE AND SONS LTD. (2001) 7 NWLR (PT. 712) PAGE 456 AT 473, AKPAN V. UMALI (2002) 23 WRN 52; (2002) 7 NWLR (Pt.767).
It is only where the literal interpretation of a section is impossible without doing violence to the law that the court should start engaging other rules of interpretation. There is none here.
Happily, the word “AND” and “EACH” have enjoyed judicial pronouncements with great erudition. In BUHARI V. INEC (2008) 19 NWLR (PT.1120) 246, the Supreme Court held, per Tobi JSC,:
“The final word I should examine briefly is the conjunction “and” joining the larger part of the Subsection with the smaller part of “that the non-compliance did not affect substantially the result of the election.” The word “and”, being a conjunction, performing the function of joining two expressions or sentences which could be inseparable, integrated, joint or matched…” See Ndoma-Egba v. Chukwuogor (2004) 2 S.C. (Pt. I) 107; (2004) 6 NWLR (Pt. 869) 382.”
On the word, “EACH”, on the other hand, the Supreme Court in EYISI & ORS v. STATE (2000) LPELR-1186(SC), held:
“each” means being one of two or more distinct individuals; each one. See Black’s Law Dictionary (sixth Edition) where “each” is defined as “a distributive adjective pronoun, which denotes or refers to every one of the persons or things mentioned; every one or two or more persons or things, composing the whole, separately considered”. Per SYLVESTER UMARU ONU, JSC (Pp 15 – 15).
The “Mischief Rule” is only employed where the old law did not provide for a matter and an interpretation is to cure or remedy that mischief. See UGWU V. ARARUME (2007) 12 NWLR (PT. 1048) 365; WILSON V. A.G. BENDEL STATE (1985) 1 NWLR (PT. 4) 572; GLOBAL EXCELLENCE COMMUNICATIONS LTD. V. DUKE (2007) 16 NWLR (PT. 1059) 22, 47-48; AGBAJE V. FASHOLA (SUPRA) @ 1338 C-E; A.G. LAGOS STATE V. A.G. FEDERATION (2003) 12 NWLR (Pt. 833) 1.
The argument of those who have misconstrued section 134(2)(b) of the Constitution is to the effect that the use of the word “ALL” in the first limb of the said provision treats the Federal Capital Territory, Abuja, as one of the component states of the Federation.
The proponents of the view erroneously believe that since the FCT is treated as a State of the Federation, it means there is no additional requirement to meet the 25% constitutional requirement therein. They surprisingly find solace in several decisions of the apex court where the FCT was treated and referred to as a State of the Federation, including:
OKOYODE V. FCDA (2005) LPELR-41123(CA) (PP. 7-13 PARAS. A-A). With due respect, these cases actually firm up the FCT, Abuja, as a separate state that must be accorded every respect and status accorded the other 36 states.
Thus, section 134(2)(b) of the Constitution after generally stating all the States of the Federation where the 25% requirement is a sine qua non for a presidential candidate to be deemed duly elected, rather than exclude the FCT, Abuja, as one of the States of the Federation where the 25% is a requirement for a presidential candidate, went further to specifically use the word “and”, to include the FCT as one of the States of the Federation where the 25% constitutional requirement is a sine qua non.
It is settled law that the use of the word “and” is conjunctive in interpretation of Statutes. The implication is that after meeting the 25% requirements in 2/3 of the States of the Federation, the candidate must go further to meet the said 25% requirement in the FCT, Abuja, before he can be deemed duly elected.
GENERAL AND SPECIFIC PROVISIONS OF A STATUTE
Assuming, but not conceding, that the use of the word “ALL” encompasses the FCT, Abuja, as one of the component States of the Federation, it becomes an issue of whether a general provision of a statute can override a specific provision in the statute. The specific mention of the FCT, Abuja, overrides the general mention of all the other States of the Federation in the said provision. SEKANDE & ORS V. ARUBIELU & ORS (2013) LPELR-22801(CA) (PP. 22 PARAS. E), it was held thus:
“The law is that where specific provisions of a statute are subsequent to general provisions, the specific provisions will prevail. See AKPAN VS. STATE (1986) 3 NWLR part 27 p.225.” Per DANIEL-KALIO, J.C.A.
In BUHARI V. OBASANJO (2003) All N.L.R. 168, the apex Court, without, directly deciding on the issue of “And” used in section 134, held thus:
“This provision appears clear to me. Where a candidate wins the highest number of votes cast in at least two thirds of the 36 States in the Federation and the Federal Capital Territory, Abuja, he is deemed to be elected …, I do not appreciate any ambiguity in the provision and even if there was one, this Court is bound to adopt a construction which is just, reasonable and sensible. (See Maxwell on the Interpretation of Statutes, 12th Edition, Chapter 10).”
Thus, their Lordships merely made general statement on the section which has been an enigma. They recognised that a candidate must score 25% votes in 24 states in Nigeria; “and the FCT, Abuja”.
It is to be noted that the 36 states can be collectively called “states” without mentioning their individual names, just like section 134 did. This is because in all respects, they share the same characteristics of being states. However, the FCT, Abuja, differs in character, form and content, from the 36 states. That is why it is specifically mentioned by name.
Section 299 of the CFRN states that the provisions of this Constitution shall apply to the FCT, Abuja, “AS IF IT WERE ONE OF THE STATES OF THE FEDERATION”. The careful and indeed, unambiguous, wording of this section suggests that the FCT is NOT a State, but should rather be treated as if it were one. Thus, in seeking 25% in 2/3 of ALL THE STATES of the Federation AND the FCT, the Constitution clearly distinguished the FCT as a separate entity or a special territory, wherein the Presidential candidate need obtain at least 25% of the total votes cast in the election.
The reason for this is not far-fetched, as Abuja is the melting pot which unites all ethnic groups, tribes, religions, backgrounds, and other distinct qualities and characteristics in our plural society. It is indeed a conglomerate of the different and distinct peoples in Nigeria, which according to Prof Onigu Otite, has about 474 ethnic groups; that speak over 350 languages.
Abuja is regarded as the “Centre of Unity”, which is testament to its inclusiveness of all tribes, religions, backgrounds and ethnicity. Simply put, Abuja is a territory or land mass made up of individuals from every State and virtually from all Local Government Areas in the country. It is itself made up of 6 Area Councils distinct from the 768 LGCs in Nigeria, thus bringing the total to 774 LGCs in Nigeria.
Therefore, scoring 25% of votes cast in the FCT is a Presidential candidate’s testament to being widely accepted by majority of the Nigerian people.
The framers of the Constitution certainly desired for Nigeria, a President that is widely accepted with a national spread and not one that has only the support of his tribe or region. Hence they provided in the Constitution the sections relating to the election of the President because of our peculiarities as a multi-diverse, multi-facetted nation.
The provisions contained in Section 134 of the Constitution are meant to reflect this. In the same light, the framers of the Constitution viewed the FCT as a melting pot, a sort of mini-Nigeria. Thus, like a commentator posited, the position or status of the FCT assumes that of a COMPULSORY question that a presidential candidate must answer in the electoral examination.
Whilst it is true that a literal reading of section 299 of the Constitution of the Federal Republic shows that the Federal Capital Territory is not a State, but from the words, “as if it were one”, contained in the provision, section 229 actually indeed grants the FCT benefits accruing to states in Nigeria and ensures its treatment as such with respect to legislative, judicial and executive powers.
Section 299 does not for the purpose of section 134 confer on the FCT the status of a subordinate of a State. The provision – like most in the Constitution – displays the Federal Capital Territory as distinct from any other state; and as such requires a Presidential candidate to not only attain 25% (a quarter) of the votes in two-third of the 36 states in Nigeria but also attain 25% (a quarter) of the votes in the FCT in order to be duly elected as such.
To me, the only logical conclusion is that sections 134 and 299 are not mutually exclusive or contradictory. Rather, section 299 actually supports and complements section 134. To show this distinctiveness, FCT has never conducted any elections, either for Gubernatorial candidates, or for State Houses of Assembly Members as done by States.
Rather, in accordance with section 301 of the Constitution, the FCT is governed by the President with an appointed Minister as his proxy in the form of Minister of the FCT. Likewise, the FCT does not have its own State House of Assembly, but rather legislates through the National Assembly. This therefore speaks to its distinct status, which is not affected by section 299.
Whether Abuja is regarded as a full State, pseudo-State, quasi-State, or semi-State, is immaterial. Even if it is none of these, what matters is the intention of the Constitution-makers. If, in their wisdom, they decided to reckon with the votes cast in even a single LGA in Nigeria, along with votes cast in the 36 States recognized under the 1999 Constitution, for the purpose of deciding the winner of a Presidential election, then the 6 Area Councils in the FCT cannot be treated lesser or ignored..
Once that intention can be deduced from the plain, simple and ordinary grammatical meaning of the WORDS USED then, as in the present scenario, then they have to be followed. See EZE v. UNIJOS (2021) 2 NWLR Pt. 1760 pg. 208 SC; KASSIM v. ADESEMOWO (2021) 18 NWLR Pt. 1807 pg. 67 SC; N.U.P v. INEC (2021) 17 NWLR Pt. 1805 pg. 305 SC; A.P.C v. E. S. I. E (2021) 16 NWLR Pt 180 pg. 1 SC and AGUMA v. A. P. C (2021) 14 NWLR Pt. 1796 pg. 351, S.C.
There can be no room to resort to other aids of interpretation which only become necessary and resorted to in the event of ambiguity in the words used in the Statutes. I respectfully submit that none exists in the provisions of section 134(2)(b). Asiwaju Bola Ahmed Tinubu having not met the 25% votes threshold in the FCT, Abuja, was definitely not qualified to have been declared President-elect by INEC.
Thus, INEC ought not to have declared Tinubu as the winner of the 2023 Presidential election. Doing so Nicodemously, especially as it did in the wee hours of the morning of 1st March, 2023, when innocent Nigerians were fast asleep, puts a bigger question mark on the integrity and credibility of the said declaration. Presenting Tinubu with a Certificate of Return, was, I humbly submit, odious and putrid. Tinubu therefore carries with him and on his neck, a very heavy moral burden in the form of an albatross.
Governing a country of 219.7 million people (as at 3rd March, 2023), goes well beyond mere legal calisthenics. It borders more on the process’ credibility, acceptability, legitimacy and the high moral grounds of the candidate. The current eerie, and mournful mood in Nigeria, without any form of celebration or jubilation, represents nothing but peace of the graveyard. It is ominous and foreboding. It requires no violent street protests, demonstrations, barricades, rallies, pamphleteering or leafleteering. It is a loud silence. I so humbly submit.
* Fred Latimore Oghenesivbe is the Executive Assistant on Communications to Delta State Governor