Awolowo vs Shagari: Finding The Two-Third of 19 States (II)
Rehashing a notorious litmus test on the constitutional requirements for validly emerging as Nigeria's President
Awolowo Goes To The Court (II)
Dissenting Judgements
Postscript: Tinubu and Section 133 (b) of the 1999 Constitution
4. Awolowo Goes To Court
Obafemi Awolowo | Brittanica
Following the decision of the Tribunal, the petitioner, Chief Obafemi Awolowo, appealed the judgement at the Supreme Court.
The Supreme Court was made up of seven judges who heard the case. The judges were: Atanda Fatayi-Williams, C.J.N., Ayo Irikefe, Mohammed Bello, Chukwunweike Idigbe, Mohammed Lawal Uwais J.J, Andrews Obaseki and Kayode Eso J.J. Judgement over the appeal was delivered on September 26,1979.
However, while 5 judges supported the interpretation of the tribunal, 2 other judges dissented.
At the Supreme Court, the parties agreed on some fundamental issues:
There was no doubt that, Alhaji Shehu Shagari, the first respondent, satisfied Section 34 A 34A (I) C) (i) of the Electoral Decree by receiving the highest votes cast at the election;
There was an agreement that the first respondent scored one-quarter (25%) of the votes cast in twelve states, viz., Bauchi, Bendel, Benue, Borno, Cross River, Gongola, Kaduna, Kwara, Niger, Plateau, Rivers and Sokoto.
The main issue for determination at the Supreme Court was the correct interpretation of Section 34A (I) C) (i) (ii) of the Electoral Decree which contained the clause “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”.
Mr. G.O.K. Ajayi, S.A.N., Chief Obafemi Awolowo’s lead counsel, canvassed his arguments on three major standpoints:
On a proper interpretation of the section, two-thirds of nineteen states of the federation could not give anything less than thirteen.
He added that to qualify to be declared as President, a candidate must not only have the highest number of votes cast, he must also receive one-quarter of the votes cast in each of at least thirteen states of the federation;
Assuming that two-thirds of 19 states is 12 and two-thirds, the first respondent, Alhaji Shehu Shagari, must be seen to have one-quarter of the votes cast in 12 and two-third states and that the two-third state must be identifiable.
He added that the mathematical process by which FEDECO determined one-quarter of the two-third state by scaling down the total votes cast in Kano state to two-thirds of the original votes cast in Kano state was not prescribed by the Electoral Decree;
He ended his submission by urging the Court to hold that failure to comply with provisions of Section 34A (I) C) (i) (ii) of the Electoral Decree was a non-compliance which affected the result of the election on the first ballot.
The appellant also provided Professor Ayodele Awojobi, a well-known Applied Mathematician and Professor of Engineering at the University of Lagos to testify on the mathematical logic of finding the two-third of Kano State.
The Mathematician testified as follows:
“I see Exhibit T2. Under Kano State, the average total votes cast for the NPN was 19.94%. I see Exhibit T3. There are 38,760 possible two-third of Kano State going by the Local Government Area. In the absence of a computer, it will take at least one-year to declare the result in respect of two-third of Kano State”.
In his reply, Chief Richard Akinjide S.A.N., leading counsel for Alhaji Shehu Shagari, the first respondent, gave a reply stating that the real issue before the Court was the correct interpretation of Section 34A (I) C) (ii) of the Electoral (Amendment) Decree of 1978.
He submitted that dominant word in the clause “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” is “votes” and that the subsection expressly introduced percentages and fractions before prescribing the exact criteria and precise qualification for the election of a President.
Chief Richard Akinjide S.A.N., then canvassed his arguments on four major standpoints:
That there being nineteen states in the federation, the word “each” in the subsection qualified the result of two-thirds of nineteen to be twelve two-third states;
To qualify to be validly elected under the subsection, Alhaji Shehu Shagari needed to only be concerned about two-third of the votes cast in the thirteenth state, which was Kano State;
The votes Alhaji Shehu Shagari received in the whole of Kano State was to be set against two-third of the total votes cast in the State to ascertain whether it came up to 25% or one-quarter of the total state-wide votes;
Lastly, that the appellant did not sufficiently prove that there was non-compliance with the electoral provisions.
After both the appellant and the respondents had canvassed their arguments and provided witnesses before the Supreme Court, the declared as to the correct interpretation of Section 34A (I) C) (i) (ii) that:
In the case in hand legal authorities have been cited before us in support of one canon of interpretation or another when considering the meaning of the provisions of Section 34A (I) C) (i) (ii) of the Electoral Decree. It has even been urged upon us albeit without much success to seek the aid of a well known Nigerian scholar and Applied Mathematician.
But at the end of the day, we must realise that we are interpreting a particular statute passed under special circumstances.
For the purpose of the Decree under construction, a Returning officer, in our view, should be primarily concerned with the total number of votes cast by the voters in each of the 12 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 exhibit T2.
It is at this stage that the Returning Officer ought to determine what is two-third of nineteen states. This is a matter of law as it deals with the interpretation of the provisions of 34A (I) C) (i) (ii) of the Decree. It is also relevant, we think, 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 for which the words of the statute cannot reasonably bear. If the words used are capable of more than one meaning then the person interpreting the statute can choose things between these meanings, but beyond that he must not go.
Not only is the meaning of the general words used in Section 34A plain enough there is also no reason for doubting the intention of the Federal Military Government.
After this statement, the Supreme Court compared the provision in question with paragraph 39 of table C of schedule 1 of the Companies Decree 1968 where it was provided that: “If their number is not three or a multiple of three, then the number nearest to one-third shall retire from office, the Court came to a conclusion:
That being the case, the Federal Military Government must be deemed to know that two-thirds of nineteen states will be twelve two-third states. If the number thirteen, which is the number nearest to two-thirds of a state, had been intended, the Federal Military Government would have said so in clear terms.
In any case, between thirteen states and twelve two-thirds states, the figure of twelve two-thirds, considering all the circumstances, appears to us to be the intention of the Federal Military Government in the context of sub-paragraph (i) of sub-section (i) (c) of Section 34 A.
Thus, the Court agreed with the Tribunal that Alhaji Shehu Shagari fully satisfied the provisions of the Section 34 A 34A (I) C) (i) of the Electoral Decree.
5. Dissenting Judgements
Meanwhile, two other judges of the Supreme Court did not agree with the position of the majority.
In his dissenting judgement, Kayode Eso, J., disagreed with the majority judgement both on the interpretation of Section 34A (I) c) (ii) and the non-compliance provisions. While attempting to interpret Section 34A (I) c) (ii), the eminent jurist posed three questions:
i) Under the Decree, should two-thirds of Kano State mean two-thirds of the physical or territorial area of Kano State?
ii) Should two-thirds of Kano State be, as the Tribunal has held (and as was so ably defended by Chief Akinjide), synonymous with two-thirds of the total votes cast in that State and not the physical or territorial area of that State? Or
iii) Should the thirteenth state be the whole of Kano State—territorial and physical as Mr. Ajayi contended?
The learned Judge answered the first question by saying:
In other words, Kano State is divided though not equally into eight divisions/districts. These eight divisions or districts form the units comprising Kano State under the Constitution and though Kano State is a whole unit yet as I have said, though not necessarily equal units.
One thing is important however. Every unit is physically identifiable and the territorial area of each unit is a matter for mere conjecture. But there is no means here whereby those units could be grouped into three equal parts. The Decree does not provide for that and no other Decree or enactment is known to have provided for such three equal divisions.
In my respectful 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.
In my respectful view, that geographical spread can only be measured by a quantum of physical states. I can not find any other way of measuring it either in the Decree or elsewhere. The Decree provides no other method. The subsection specifically states that the votes shall be cast in the quantum of states.
No 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.
In answering his second question whether “two-thirds of Kano State is synonymous with two-thirds of the total votes cast in that state’, Kayode Eso J. held that:
In my very respectful opinion what the learned Tribunal has done is to read into the sub-section what is not there. There is nowhere under the Electoral Decree nor under 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 (i) c) (ii) are sought and the words ‘two-thirds state’ 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 pre-requisite of the election of the President which required a geographical spread that has to be measured by the quantum of states. With respect, this constitutes a major departure from the purpose of the Decree.
In short, Kayode ESO JSC (as he then was) was of the opinion that a winner of the election must have gotten one-quarter of the votes cast in, at least, thirteen states of the federation.
According to M. Olu Adediran following his analysis of Justice Kayode Eso’s dissenting judgement, he stated that:
It follows logically from the answers of the first two questions that the learned judge came to the inevitable conclusion that when the subsection provides “not less than one-quarter of the votes cast in each of at least two-thirds of all the states of the Federation, it requires not less than one-quarter of the votes cast in each of at least thirteen states in the Federation.
On his part, Justice Obaseki stated:
“The word “each” in the subsection (i) c) ii) of section 34 A 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”.
6. Postscript: Tinubu and Section 133(b) of the 1999 Constitution
An extract of Atiku Abubakar’s petition at the Presidential Election Tribunal
I have written all this ‘story’ because it serves as a rich historical television to view the fallout from Nigeria’s recently concluded 2023 presidential election.
Section 133 (b) of Nigeria’s 1999 Constitution states that:
A candidate for an election to the office of President shall be deemed to have been duly elected to such office where, being the only candidate nominated for the election-
a) he has a majority of YES votes over NO 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
Following the election, The Independent National Electoral Commission (INEC) went ahead to declare Bola Ahmed Tinubu, the presidential flag-bearer of the All Progressives Congress (APC), as the winner of the presidential election even though he failed to win one-quarter (25%) of the votes in the Federal Capital Territory, Abuja. Tinubu only scored 18.99% of the votes in the FCT and therefore that did not literally meet the “and” qualification of Section 133 (b).
On its part, INEC maintains that Tinubu need not score one-quarter of the total votes cast in the FCT since he got one-quarter of the votes cast votes in 29 states of the federation, which was more than two-third states of the federation (or 24 states). It further argues that, by virtue of Section 299 of the 1999 Constitution, the FCT is considered as one of the states of the federation.
However, Tinubu’s major challengers, Atiku Abubakar of the People’s Democratic Party (PDP) and Peter Obi of the Labour Party (PDP) have gone to the Presidential Election Tribunal to challenge Tinubu’s victory, just like Obafemi Awolowo did in 1979. Among other things, Atiku petitions the Tribunal on the invalidity of Tinubu’s victory because he failed to win 25% of the total votes cast in the FCT. Obi also maintains, among other things, that Tinubu’s failure to secure 25% of the total votes cast in the FCT nullifies him from being validly elected as Nigeria’s preside in the 2023 presidential election.
Whichever way the Tribunal decides, one cannot but smirk at the recurring constitutional hurdles of national spread with regards to being validly elected as Nigeria’s president. In any case, why are the legal provisions never absolutely clear?
Well, your guess is as good as mine.