By Taiwo Abiodun-Oni
I must first make a disclaimer to the effect that the content of this piece is merely academic and is not intended to act subjudice to the inherent powers of adjudication vested in the Nigerian Presidential Electoral Tribunal by both the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Electoral Act, 2022.
Consequent upon the above disclaimer, I shall continue.
Peter Obi was one of the candidates for the Presidential election that held on the 25th of February, 2023 in Nigeria. He represented the Labour Party and was adjudged to score 6,101,533 by the Independent National Electoral Commission.
Peter Obi through his team of lawyers have just submitted an election petition to challenge the results of the election. His petition has highlighted three grounds which are represented in lay-terms as:
a. That Bola Ahmed Tinubu was at the time of the election not qualified to contest.
b. That the election of Bola Ahmed Tinubu was invalid by reason of non-compliance with the Electoral Act.
c. That Bola Ahmed Tinubu did not satisfy the 25% votes cast in the FCT.
To make this effective, I shall write separate pieces on each of these grounds and i shall thereafter pass a verdict on and the winner for this round is Ground ‘c’- That Bola Ahmed Tinubu did not satisfy the 25% votes cast in the FCT
Ground ‘c’ of Peter Obi’s petition is hinged upon the provisions of Section 134(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). For clarity, I have paraphrased this provision below:
Section 134(2)(b) of the Nigerian Constitution states that . The provision states that the winner of the election must satisfy two conditions:
- The candidate must have the highest number of votes cast at the election; and
- The candidate must have 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 (FCT).
The following are some notable cases where this section has been relied on:
NOW, one particular word that has oftentimes stirred controversy on this constitutional requirement is the use of the conjunction “…AND Federal Capital Territory’.
In legal terms, the conjunction “and” is a conjunction used to connect two or more words, phrases, or clauses, indicating that all the connected elements are required to be present or to happen simultaneously. In legal documents, the use of “and” can have significant implications, particularly in contracts and statutes. For example, in a contract, the use of “and” can be used to make certain obligations conditional upon one another. If the language of the contract states that party A will perform X “and” party B will perform Y, this means that both parties are required to perform their respective obligations for the contract to be fulfilled.
In Nigerian case law, the use of “and” has been the subject of various interpretations by the courts. In the case of Ifezue v. Mbadugha (2006) 9 NWLR (Pt. 979) 222, the Nigerian Supreme Court held that the use of the conjunction “and” in a statute should be interpreted conjunctively. This means that when the word “and” is used, the connected elements must all be present for the statute to apply.
In foreign case law, the use of “and” has also been the subject of interpretation. In the case of R. v. Hicklin (1868) L.R. 3 Q.B. 360, the English Court of Queen’s Bench held that the word “and” should be interpreted conjunctively. In this case, the court was interpreting a statute that made it an offense to publish any obscene book, pamphlet, or paper “and” the court held that this meant that all three elements (book, pamphlet, or paper) must be present for the statute to apply.
In the case of Attorney General of the Federation v. Abubakar (2007), the Supreme Court of Nigeria affirmed the status of the FCT as a separate entity with a unique legal framework. The court held that the FCT is not part of any state, and that it is subject to the exclusive jurisdiction of the Federal Government. Similarly, in the case of Attorney General of the Federation v. Attorney General of Abia State (2002) 6 NWLR (Pt. 764) 542, the Supreme Court of Nigeria provided some guidance on the allocation of revenue generated within the FCT, Abuja. The court held that revenue generated in the FCT should be treated as if it were generated within a state of the federation for the purpose of allocation.
Another example is the case of Gwagwa v. Chief Judge, Federal Capital Territory, Abuja & Ors (2000) 3 NWLR (Pt. 648) 169, where the Court of Appeal of Nigeria dealt with the question of whether the FCT High Court had jurisdiction to hear a land dispute case originating from an area council within the FCT. The court found that the FCT High Court indeed had jurisdiction over such matters, as it is vested with the same powers as a state high court under Section 299 of the Constitution.
These cases demonstrate how Nigerian courts have applied the provisions of Section 299 of the Constitution in their decisions, treating the FCT, Abuja as if it were one of the states of the federation
By virtue of the above case laws, today, the courts have ruled that pursuant to Section 299 of the constitution, that the FCT should be treated as a state. That is the law. Thus, the FCT can be considered as a state, therefore, getting 25 per cent in 24 states as required to be president, without the FCT, is no hinderance to being declared winner of the presidential election.
CLARIFYING SOME NUANCES
One fundamental nuance that must be clarified in other to determine whether a candidate must get 25% in FCT before he can be declared as President despite scoring achieving 25% in more than 24 other States of the Federation.
In addition to this,
Section 134(3) further clarifies the requirement:
“(3) In default of a candidate duly elected in accordance with subsection (2) of this section, there shall be a second election in accordance with subsection (4) of this section at which the only candidates shall be – (a) the candidate who secured the highest number of votes cast at the election; and (b) one among the remaining candidates who secured a majority of votes in the highest number of States, so however that where there are more than one candidate with a majority of votes in the highest number of States, the candidate among them with the next highest total of votes cast at the election shall be the other candidate for the election.”
Is the intention of the draftsmen of the constitution to grant the FCT a sort of FILIBUSTER POWER to render the victory of any candidate who doesn’t attain 25% in it useless?
What happens if a second election is conducted and the winner by total votes again does not score, 25% again in the FCT, do we conduct a third election?
What is the spirit of law (the volkgeist) on this issue?
To answer this question, I must turn to the Mischief rule of statute interpretation.
The mischief rule, also known as the rule in Heydon’s Case, is a principle of statutory interpretation that seeks to determine the legislator’s intention by identifying the problem or “mischief” that the statute was intended to remedy. This rule requires the court to consider the following four aspects: (1) the common law before the statute was enacted, (2) the mischief or defect the common law did not address, (3) the remedy provided by the statute, and (4) the true reason for the remedy. By identifying the mischief the statute intended to address, the court can interpret the statute in a way that effectively suppresses the mischief and advances the remedy.
LETS APPLY THIS RULE
- The common law before the statute was enacted: Prior to the enactment of the 1999 Nigerian Constitution, Nigeria was governed under different constitutions, such as the 1963 and 1979 Constitutions. The 1979 Constitution had a similar provision in Section 34A(2), which stated that a presidential candidate must have at least 25% of the votes in two-thirds of all the states in the Federation. However, it did not specifically mention the FCT, Abuja, in this context.
- The mischief or defect the common law did not address: The 1979 Constitution did not expressly address the status of the FCT, Abuja, regarding the 25% vote requirement for presidential candidates. The ambiguity could lead to confusion or debates over whether the FCT should be treated the same as the other states of the Federation when applying the 25% vote requirement. See Shagari’s Case.
- The remedy provided by the statute: The 1999 Nigerian Constitution addresses this issue by including Section 299, which treats the FCT, Abuja, as if it were one of the states of the Federation. This provision clarifies the FCT’s status and implies that the same requirements applicable to the states would also apply to the FCT. In the context of the 25% vote requirement, Section 134(2) of the 1999 Constitution specifies that a presidential candidate must have “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.”
- The true reason for the remedy: The primary reason for this remedy is to ensure that a presidential candidate has broad support across the country, including the FCT, Abuja. Including the FCT in the 25% vote requirement prevents a candidate from being elected based solely on regional or ethnic support, which could exacerbate regional tensions and undermine national unity. Furthermore, it reinforces the equal status of the FCT as a political and administrative entity within the Nigerian Federation.
Considering the mischief rule, one could argue that the intention behind Section 134(2) is to ensure that a presidential candidate has broad support across the country, preventing a candidate from being elected based solely on regional or ethnic support. In this case, the mischief is the potential risk of electing a president without nationwide support, which could exacerbate regional tensions and undermine national unity.
With regards to the Federal Capital Territory (FCT), Abuja, it is important to note that Section 299 of the Nigerian Constitution treats the FCT as if it were one of the states of the federation. Therefore, it would be reasonable to infer that the requirement of obtaining 25% of votes in at least two-thirds of all the states would apply to the FCT as well.
Thus, based on the guidelines provided by Heydon’s Case, the Nigerian Constitution of 1999 aims to cure the mischief of potential regionalism and lack of nationwide support for a presidential candidate by including the FCT, Abuja, in the 25% vote requirement. As a result, a presidential candidate would need to obtain at least 25% of the votes in the FCT, Abuja, along with the 25% vote requirement in other states, to be duly elected.
It is essential to note that the interpretation of these provisions ultimately depends on the Nigerian courts. The courts would consider various factors, including the mischief rule and the specific circumstances of each case, to determine whether a presidential candidate is required to obtain 25% of the votes in the FCT to be duly elected.
PETER OBIS’ PETITION WILL FAIL ON GROUND ‘C’