CHIEF OBAFEMI AWOLOWO v. ALHAJI SHEHU SHAGARI & 2 ORS (SC.62/1979) [1979] 49 (26 September 1979);

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.

9. Escoigne Properties Ltd. v. Inland Revenue Commissioners (1988) A.C. 549.

10. Gun v. Sharpe (1974) QB 808.

11. Gibson and Johnson v. Minet and Fector (1971) H B1 569.

12. Hackney Case 2 O'M & H H77.

13. Heydon's case.

14. Ishington Case 17 TLR 210.

15. Jones v. Director of Public Prosecution (1962) A.C. 635.

16. Magor v. St. Mellons Rural District Council v. Newport Corporation (1952) A.C. (H.L.) 189.

17. Marquess of Canden v. Inland Revenue Commissioners (1914) 1 K.B. 641.

18. Mitchell v. Torrup 1766 Park 227.

19. Morgan v. Simpson (1975) 1 Q.B. 151.

20. Nokes v. Doncaster Amalgamated Collieries Ltd (1940) A.C. 1014 (P.C.).

21. No-Nail Cases Proprietary Ltd v. No-Nail Boxes Ltd (1944) 1 K.B. 629.

22. Okunmagba v. Egbe (1965) 1 All N.L.R. 62.

23. Prophet v. Platt Brothers & Co. Ltd (1961) 2 All E.R. 644.

24. R v. Anderson (1972) 1 QB 304 (1971) 3 All E.R. 1151.

25. R v. Calder and Boyar Ltd (1969) 1 QB 151 (1968) 3 All E.R. 644.

26. R v. City of Lodon Court Judge (1892) 1 QB 273.

27. R v. Stamford (1972) 2 AB 391 (1972) 2 All E.R. 430.

28. Seaford Court Estates Ltd v. Asher (1949) 2 KB 481.

29. Sorunke v. Odebunmi (1960) 5 F.S.C. 175.

30. Stork v. Frank Jones (Tripton) (1978) 1 WLR 231.

31. Stowell v. Lord Zouch (1569) 1 Plowd 369.

32. Sussex Peerage Claim (1844) CL Fin 85.

33. Thompson v. Goold & Co. (1910) A.C. 509.

34. Vickers, Son and Maxim Ltd v. Evans (1910) A.C. 444.

Statutes referred to:-

1. Ballot Act of United Kingdom 1872.

2. Electoral (Amendment) Decree No. 32 of 1979.

3. Electoral Decree No. 73 of 1977.

4. Parliamentary and Local Government Electoral Regulations 1955 WRLN 266.

5. States (Creation and Transitional Provisions) Decree No. 12 of 1976.

FATAYI-WILLIAMS, C.J.N: -In an election petition presented to the Presidential Election Tribunal in Lagos following the declaration by one F. L. O. Menkiti, the Returning Officer at the Presidential Election (now third respondent), that Alhaji Shehu Shagari had been duly elected President of the Federal Republic of Nigeria, Chief Obafemi Awolowo (now appellant) contended as follows:

1. That in the election held on the 11th day of August, 1979, Chief (Dr) Nnamdi Azikiwe, Chief Obafemi Awolowo, Alhaji Aminu Kano, Alhaji Waziri Ibrahim and Alhaji Shehu Shagari were candidates;

2. The said Mr F. L. O. Menkiti, duly returned Alhaji Shehu Shagari was the duly elected President of the Federal Republic of Nigeria;

3. That the said Alhaji Shehu Shagari was at the time of the election not duly elected by a majority of lawful votes at the election as he was not satisfied Section 34A sub-section 1(c)(ii) of the Electoral Decree, 1977, which has been inserted by Section 7 of the Electoral (Amendment) Decree, 1978;

4. That although the said Alhaji Shehu Shagari received 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; and

5. That the election of the said Alhaji Shehu Shagari 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.

The petitioner thereupon prayed-

(i) That the Tribunal should determine that the said Alhaji Shehu Shagari (who we shall hereinafter refer to as the 1st respondent) was not duly elected or returned and that his election or return was void; and

(ii) That Alhaji Ahmadu Kurfi, the Chief Electoral Officer of the Federation, and Mr F. L. O. Mentiki, the Returning Officer at the Presidential Election (hereinafter referred to respectively as the 2nd and 3rd respondents), be ordered to arrange for an election to be held in accordance with the provisions of Section 34A(3) of the Electoral (Amendment) Decree (Decree No. 32 of 1979).

In their respective replies to the petition, the 1st, 2nd and 3rd respondents denied all the averments in paragraphs 3, 4 and 5 of the petition and contended that the 1st respondent was duly returned by a majority of lawful votes totalling 5,688,857. The 1st respondent also contended:

(a) That the election was conducted in actual compliance, or alternatively, in substantial compliance with the provisions of the Part II of the Electoral Decree 1977, as amended, and that the non-compliance (which the 1st respondent denies) does not affect the result of the election;

(b) That, at the said election, he:

(i) obtained the highest votes cast; and

(ii) had 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, that is in 19 States;

(c) That the statutory power to arrange or to hold an Electoral College or Electoral Colleges is vested only in the Electoral Commission and the 2nd and 3rd respondents have no power to arrange for an election to be held in accordance with the provisions of S. 34A(3) of the Electoral (Amendment) Decree No. 32 of 1979 and the Electoral Commission is not a party to the present proceedings; and

(d) That even if, contrary to his contention, it is permissible for the 2nd and 3rd respondents to arrange for the holding of electoral colleges, the 1st respondent contends that the 2nd and 3rd respondents cannot lawfully exercise such powers under S.34A(3) of the Electoral (Amendment) Decree No. 32 of 1979 as prayed by the petitioner.

In his evidence before the Tribunal given in support of his petition, the petitioner testified as follows:

"I as a lawyer and a politician am conversant with the provisions of the Electoral Decree. There are 2 requirements before one can be declared a winner at the Presidential Election namely where there are more than two candidates, the first requirement, the winning candidate must score the highest number of votes and in addition he must score 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. There are nineteen States in the Federation as at now. Each of at least two-thirds of all the States in the Federation is 13. The 1st respondent scored not less than 25% in the following 12 States, Bauchi, Bendel, Benue, Borno, Cross River, Gongola, Kaduna, Kwara, Niger, Plateau, Rivers and Sokoto. The result of the election was announced on 16th August, 1979. As far as the records show, no candidate scored not less than 25% of the votes cast in 13 States. 1st respondent was declared as having won the Presidential Election by the 3rd respondent. I disagree with the result declared on the Election and that is why I am here for it to be nullified. I am therefore asking the Tribunal (1) that the purported election of 1st respondent Alhaji Shehu Shagari be declared void and (2) that the FEDECO should hold the election which should have followed on the failure of all the candidates to win at the first ballot."

(the underlining is ours)

To questions asked under cross-examination, the petitioner testified further as follows:

"of the five candidates at the election, the 1st respondent scored the highest votes, and none of the other four candidates obtained more than 25% in more than six States. I know that I did not score more than 25% of the votes cast in more than 6 States. I cannot speak for the others. I said that two-thirds of 19 is 13 and I will say that two-thirds of 20 is 14. I will also say that two-thirds of 21 is 14. I say all these in relation to States. I say that in Exh. T2 the votes of the various candidates are stated. In getting the percentage of the votes scored by each candidate State by State, votes scored by each were used. It is correct to state that the 1st respondent scored 25% of the votes cast in 12 States because of the total votes scored in those States. I now see Exh. T3. There is a breakdown therein of the number of votes scored by each candidate in each Local Government Area in Kano State. It is also correct to say that it was because of number of votes that 1st respondent scored in Kano State that he was able to get 19.94%. Each of the Local Government Areas is a unit of the State."

At this stage, it is relevant to point out that the document (Exh. T2) showed that the 1st respondent scored 772,206 popular votes more than those scored by the petitioner.

The petitioner called only one witness-Professor Ayodele Awojobi-a Professor of Engineering at the University of Lagos and an Applied Mathematician. He testified, inter alia, as follows:

"I see Exhibit T2. Under Kano State, the average total votes cast for NPN was 19.94%. I see Exhibit T3. There are 38,769 possible two-thirds of Kano State going by Local Government Area. 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."

(the underlining is ours)

Incidentally, the 1st respondent is a member of the National Party of Nigeria (NPN).

None of the respondents called any evidence.

In their respective submissions, before the Tribunal, both the petitioner and Chief Akinjide, learned Counsel for the 1st respondent, addressed the Tribunal at length as to the interpretation which the Tribunal should ascribe to the words "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" used in Section 34A(1)(c)(ii) of the Electoral Decree (hereinafter referred to as the Decree). Various legal authorities were cited in support including Maxwell's Interpretation of Statutes. As an alternative to his submission that two-thirds of 19 States is 13 States and not 122/3 States as contended by Chief Akinjide for the 1st respondent, the petitioner made an alternative submission which reads:

"On the premise that two-thirds of 19 states is 122/3 States, submit that one-quarter of the votes cast at the election in each of at least 122/3 States is equal to one-quarter of the votes cast at the election in each of the 12 States plus one-quarter of the votes cast in two-thirds of the 13th State which is also equal to one-quarter of the votes cast in this election in each of Bauchi, Bendel, Benue, Borno Cross River, Gongola, Kaduna, Kwara, Niger, Plateau, Rivers and Sokoto States plus one-quarter of votes cast in two-thirds of Kano State, and cannot be equal to one-sixth of the votes cast in Kano State."

After stating that if the Tribunal held that the election was void, the provisions of Section 124(2) of the Decree which provided for the holding of another election became mandatory, the petitioner, presumably faced with the equally mandatory provisions of Section 34A(3) of the Decree, conceded "that second prayer in the petition is otiose." It will be recalled that the second prayer is-

That the 2nd and 3rd respondents be ordered to arrange for an election to be held in accordance with the provisions of Section 34(a)(3) of the Electoral (Amendment) Decree No. 32 of 1979."

In their judgment delivered on 10th September, 1979, the Tribunal observed, rightly in our view, as follows:

"The sum total of the results of that election vis-a-vis the 1st respondent and the petitioner are that the 1st respondent scored the highest number of votes throughout the whole country that is 5,688,857. He also scored at least 25% of votes cast in each of the twelve States namely, Bauchi, Bendel, Benue, Borno, Cross River, Gongola, Kaduna, Kwara, Niger, Plateau, Rivers and Sokoto and in the thirteenth State, Kano, he scored 19.94 percent. The petitioner however scored throughout the country a total of 4,916,651 of the total votes cast and he also scored at least 25% of votes cast in six States of the Federation. Consequently, the 3rd respondent on the 16th August, 1979, after the results of the election in all the States of the Federation had been declared, returned the 1st respondent as the person elected as President of the Federal Republic of Nigeria."

With respect to the averment in paragraph 3 of the petition that the respondent was not duly elected by a majority of lawful votes at the election, the Tribunal made the following finding:

"We have considered the submission of learned Counsel vis-à-vis the evidence before the tribunal and the provision of Section 110(1)(c) of the Decree and we are satisfied in that in-so-far as there is no evidence before us that the 1st respondent was not duly elected by a majority of lawful votes, paragraph 3 of the Petition is not in our view, a proper ground for presenting an election petition within the meaning of Section 110(1)(c) of the Decree. In the circumstances, that paragraph has not been proved."

On the interpretation of the provisions of Section 34A(1)(c)(ii) of the Decree, the Tribunal found further as follows:

"In the first place, we intend to apply to the expression 'two-thirds of all the States in the Federation' which is the gravamen of this Petition, the literal construction of the expression which has been and still is the accepted canon of the statutory interpretation in the highest court in England, and which is also approved by the Supreme Court of Nigeria..

Considering the words used in the sub-section again, we are satisfied that they are plain enough and unambiguous. Fortunately, the petitioner and both counsel for the respondents agree with this view. Hence to apply them as provided by the legislature will not in our view, create any absurdity. Moreover, we cannot find any gap which has been created in the sub-section which if left unfilled will work injustice on any person affected by the sub-section. On the contrary, we are satisfied that to read more into the sub-section is to ask the 1st respondent to bear more burden in order to be elected than what the legislature expressly require him to bear. In our view, that will result in doing an injustice to him.

Having interpreted the expression 'two-thirds of all the States of the Federation' used in Section 34A(1)(c)(i) of the Decree to mean nothing more than two-thirds of nineteen States, that is 122/3 States, it is now left to relate this to the votes scored by the 1st respondent in order to ascertain whether or not the return made by the 3rd respondent in Exhibit T1 that he was duly elected as President was justified and valid.

As 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. It is not disputed that the 1st respondent, Alhaji Shehu Shagari scored 25% of the total votes cast in twelve States, that is Bauchi, Bendel, Benue, Borno, Cross River, Gongola, Kaduna, Kwara, Niger, Plateau, Rivers and Sokoto. But in order to succeed he must also score in addition 25% of the total votes cast in the remaining 'two-thirds state'.

This might be in Kano State where the 1st respondent scored 19.94% of the total votes cast in that State which is 1,220,763. The question therefore is: what then is the total votes cast in two-thirds of Kano State? The obvious answer is 813,842. A quarter or 25% of those votes will then be 203,460.5 votes. According to Exhibit T2, the total votes scored by the 1st respondent is 243,423, this is obviously more than one-quarter of the votes cast in two-thirds of Kano State. In the circumstances, we are satisfied that the 1st respondent has satisfied the provisions of Section 34A(1)(c)(i) and (ii) of the Decree; and we therefore hold that he was duly returned by the 3rd respondent as duly elected President of the Federal Republic of Nigeria."

After observing that there was nothing in the petition alleging that the election was not conducted in substantial compliance with any other portion of Part II of the Decree apart from the complaint with respect to the interpretation put on Section 34A(1)(c)(ii), the Tribunal dismissed the petition.

In the appeal of the petitioner/appellant against this decision, nineteen grounds of appeal were filed. Shorn, however, of all irrelevancies, the main plank of the arguments of Mr G. O. K. Ajayi, who led a team of lawyers for the appellant, was that the Tribunal was in error in its interpretation of the words-

"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 the course of his argument, learned Counsel stated that it was not in dispute:-

(i) that there are 19 States in the Federation.

(ii) that the 1st respondent received not less than one-quarter of the votes cast at the election in twelve of the States;

(iii) that the votes received by the respondent in (ii) above does not entitle him to be declared elected;

(iv) that the sum total of the votes cast for all five presidential candidates in Kano State is 1,220,763;

(v) that the votes received by the 1st respondent in the whole of Kano State was 243,423; and

(vi) that the figure in (v) above, being only 19.94% of the total votes cast in the whole of Kano State, is less than one-quarter of the votes received by all the five presidential candidates in the whole of Kano State.

He agreed that the point in issue was one of law.

Learned Counsel pointed out that the actual point of contention arose out of the decision of the 3rd respondent as contained in paragraphs 2, 3 and 4 of the Declaration of the result of the presidential election (Exh. T1). Paragraphs 2, 3, and 4 read-

"(2) Alhaji Shehu Shagari has satisfied the provision of Section 34A, Sub-section (1)(c)(i) of Electoral Decree No. 73 of 1977, that is to say, he has the highest number of votes cast at the election.

(3) From the details of the State by State results which are annexed herewith and read as follows:

this candidate has also satisfied the provision of Sub-section (1)(c)(ii) of the same Section as 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.

(4) The Federal Electoral Commission considers that in the absence of any legal explanation or guidance in the Electoral Decree, it has no alternative than to give the phrase 'at least two-thirds of all the States in the Federation' in Section 34A Sub-section 1(c)(ii) of the Electoral Decree the ordinary meaning which applies to it. In the circumstances, the candidate who scores at least one-quarter of the votes cast in 12 States and one-quarter of two-thirds, that is, at least one-sixth of the votes cast in the 13th State satisfies the requirement of the Sub-section.

He then submitted that the approach of the 3rd respondent as explained therein was erroneous and contrary to the provisions of Section 34 of the Decree. He contended that the 3rd respondent was also in error in his interpretation of the words "in each of at least two-thirds of 19 States" because a State within a Federation is a territorial unit with its own corporate personality and could not, therefore, be fractionalised. Learned Counsel also submitted that there was no time when the actual number of the two-thirds of the votes cast in Kano State was ascertained and that the figure given by the Tribunal was "romantic" and had no relation to the votes cast.

Another point urged by learned Counsel was that in order to find one-quarter of two-thirds of all the votes in Kano State in relation to the votes cast for any of the candidates, only two-thirds of the votes received by that candidate can be used. As this was not done by the 3rd respondent with respect to the votes of the 1st respondent, his calculation was wrong.

In his reply, Chief Akinjide, who also led a team of lawyers for the 1st respondent, contended that two-thirds of nineteen States must be given its ordinary meaning and that the only answer is twelve and two-thirds States. The Federal Military Government, learned Counsel further submitted, divided the Federation into nineteen States in 1976. It was less than two years later that the Electoral Decree, which made provision in Section 34 for "two-thirds of nineteen States", was promulgated by the same Government. If the Government had wanted a round figure of thirteen States to be used in the computation, they would have said so in clear terms in the Decree as was done in a similar situation in the First Schedule to the Companies Decree, 1968.

Learned Counsel then submitted-

(i) that the dominant word in Section 34A(1)(c)(ii) is the word "votes";

(ii) that the sub-section prescribes the exact criteria and the qualification for the election of the President;

(iii) that the sub-section expressly introduced a percentage and a fraction;

(iv) that the words "at least" add nothing to the meaning of the subsection; and

(v) that the words "in each of" qualify the votes obtained by the candidate before the nineteen States are later divided by two-thirds and that they do not govern the word "State".

Learned Counsel contended that it is a misconception to say that the words govern the word "State". He further submitted that the Federal Military Government used the fraction two-thirds deliberately in order to make the ratio constant, no matter how many states make up the Federation in the future. With respect to the scaling down of the votes of the 1st respondent by one-third as was done in the case of the total votes cast in Kano State, learned Counsel submitted that there should be no scaling down of his votes when interpreting the section because the Decree provides only for a comparison of what the 1st respondent "has" in "votes", with 25% of the votes cast in Kano State to determine whether he has complied with the provisions of Section 34A(1)(c)(ii).

Finally, learned Counsel contended that there was actual compliance with the relevant provisions of Part II of the Decree. He, however, submitted, in the alternative, that if there was non-compliance, it did not materially affect the result of the election referring to the provisions of Section III of the Decree in support of this alternative submission.

It is our view that in most countries with common law jurisdictions such as Nigeria, it is generally accepted that it is the function of the judiciary to interpret the law with the minimum of direction from the legislature as to how they should set about this task. Thus nearly all the principles, precepts and maxims of statutory interpretation are judge-made. Here are some examples. A statute should always be looked at as a whole; words used in a statute are to be read according to their meaning as popularly understood at the time the statute became law; a statute is presumed not to alter existing law beyond that necessarily required by the statute.

Some of these "canons" of interpretation take the form of broad general principles only. Consequently, a common feature of most of them is that they are of little practical assistance in settling doubts about interpretation in particular cases. This partly due to vagueness, but also because, in many cases, where one canon appears to support a particular interpretation, there is another canon, often of equal status, which can be evoked in favour of an interpretation which could lead to a different result.

It is for the above reason that Maxwell's authoritative book on Interpretation of Statutes is not always of much assistance. Indeed, the work contains every conceivable interpretation to suit practically every point of view. We think that is why the learned author of the twelfth edition aptly observed in the Preface-

"Maxwell might well by sub-titled 'the practitioner's armoury'; it is, I trust not taking too cynical a view of statutory interpretation in general, and this work in particular, to express the hope that counsel putting forward diverse interpretations of some statutory provision will each be able to find in Maxwell dicta and illustrations in support of his cases."

In the context of Nigeria, where the rate of promulgation of Decrees has been prolific during the last few years, it would be safe to adhere to the view once expressed by the late Lord Evershed, M.B., that-

"the length and detail of modern legislation has undoubtedly reinforced the claim of literal construction as the only safe rule."

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(1)(c)(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 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.

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, 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 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 between these meanings, but beyond that he must not go. (see Jones v. Director of Public Prosecutions (1962) A.C. 635 at p.662.) Thus, in Nokes v. Doncaster Amalgamated Collieries Ltd. (1940) A.C. 1014 (P.C.) at page 1022, Viscount Simon, L.C., observed, rightly in our view, that-

"Judges are not called upon to apply their opinions of sound policy so as to modify the plain meaning of statutory words, but 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 so wide an interpretation as would disregard fundamental principles, then we may be justified in adopting a narrower construction."

Not only is the meaning of the general words used in Section 34A plain enough, there is no also no reason for doubting the intention of the Federal Military Government. The principles of construction enunciated above, and with which we entirely agree, takes care of the permutation put forward by Professor Awojobi (1st witness for the appellant) and also of the other interpretation put on the words and figures used in the said section by learned Counsel for the appellant.

This is precisely what the 3rd respondent has done in the case in hand and with unassailable justification, if we may say so, for the following reasons. The Federal Military Government divided the Federation into nineteen States in 1976 by the States (Creation and Transitional Provisions) Decree (Decree No. 12 of 1976). The Decree which came into force on 3rd February, 1976, also specified the geographical area of each of the nineteen 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) of which contained the following words-

"he has not less than one-quarter of all the votes at the election in each of at least two-thirds of all the States within the Federation."

Although the section was later amended by the Electoral (Amendment) Decree (Decree No. 32 of 1978) the above words were not amended, except for the deletion of the word "all" in the first line thereof as they could have been amended, by adding a proviso using the words similar to those used in paragraph 39 of Table C of Schedule 1 of the Companies Decree, 1968 (Decree No. 51 of 1968). After providing in the said paragraph that one-third of all the directors for the time being shall retire from office at the first annual general meeting of the company, the paragraph then went on to say that-

"if their number is not three or a multiple of three, then the number nearest to one-third, shall retire from office."

(the underlining is ours)

That being the case, the Federal Military Government must be deemed to know that two-thirds of 19 States will be 122/3 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, as between thirteen 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. Furthermore it is, we think, fallacious to talk of fractionalisation of the physical land area of a State when the operative words of Section 34A(1) (c)(ii) relate undoubtedly to the votes cast by the voters in the State at the election. 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 34A(1)(c)(i) 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 cast in Kano State.

The 3rd respondent, being a layman, has opted for a literal interpretation while the petitioner would want him to go into complicated mathematical calculation. But as Lord Simmonds has rightly pointed out in Magor and St. Mellons Rural District Council v. Newport Corporation (1952) A.C. (H.L.) 189 at p.191-

"The duty of the court is to interpret the words that the legislature has used; those words may be ambiguous, but, even if they are, the power and duty of the court to travel outside them on a voyage of discovery are strictly limited."

Bearing all these in mind, and considering the divergent, but strong views urged upon us by learned Counsel for all the parties as to the correct interpretation of the rather clumsily worded section which, to our mind, is nevertheless, devoid of any semantic ambiguity, we are not prepared to say that the 3rd respondent was in error in his interpretation of what constitutes two-thirds of nineteen States. Moreover, until election returns can be computerised 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.

Quite apart from the compliance with the provisions of Section 34A(1)(c)(ii) of the Decree as found by us, there is indisputable evidence-

(a) that the 1st respondent secured more votes throughout the country than each of the other four candidates;

(b) that he secured 772,206 votes more than those secured by the petitioner/appellant;

(c) that he scored at least 25% of the votes cast in each of twelve and two-thirds States out of the nineteen States in the Federation;

(d) that the country-wide votes referred to in (a) above are more geographically spread than those of any of the other four candidates;

(e) that even in the disputed votes of Kano State, the respondent secured 19.94% of the total votes cast in that State, while the petitioner/appellant secured only 1.23% of those votes. Exh, T2 refers;

(f) that the percentage of 19.94 scored by the first respondent in respect of the votes cast in the whole of Kano State falls short of 25% by only 5.06%.

In view of the above, there is no doubt that, even if we had found that there had been non-compliance with the said provisions, we would have invoked the provisions of Section III Sub-section (1) of the Decree and held that the election, which in the present context means the election to the office of President, was conducted substantially in accordance with the provisions of Section 34A(1)(c)(ii) which is within Part II of the Decree. Section III sub-section (1) reads:

"III (1) An election shall not be invalidated by reason of non-compliance with Part II of the Decree if it appears to the Tribunal having recognisance of the question that the election was conducted substantially in accordance with the provisions of the said Part II and that the non-compliance did not affect the result of the election."

In order to appreciate the far-fetching effect of the sub-section (which is much wider in scope than the apparently similar section construed in Morgan v. Simpson (1975) 1 Q.B. 151 at pp.167-168), reference should also be made to the provisions of the preceding section 110 sub-section (1) which reads:

"110 (1) An election may be questioned on any of the following grounds, that is to say-

(a) that a person whose election is questioned was, at the time of the election, not qualified to be elected;

(b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of Part II of this Decree;

(c) that the respondent was, at the time of the election, not fully elected by a majority of lawful votes at the election;

(d) that the petitioner was validly nominated but was unlawfully excluded from the election."

(the underlining is ours)

A close look at the provisions of 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 that-

"the election was conducted substantially in accordance with the provisions of the said Part II and that the non-compliance did not affect the result of the election."

Finally, we would like to refer briefly to the concession made by the petitioner/appellant in the course of his address before the Tribunal that the second prayer in his petition was "otiose". Realising, as we do, that the word "otiose" means futile, not required, or serving no useful purpose, we do not see the real purpose of this appeal except, perhaps, to enable this Court to interpret the words, percentage, and fraction, used in Section 34A sub-section (1) (c)(ii) of the Electoral Decree.

Be that as it may, and for reasons which we have highlighted in this judgement, we see no reason for disturbing the findings and conclusions of the Tribunal. The appeal therefore fails and it is dismissed. The decision of the Tribunal is affirmed. Costs in favour of the 1st respondent are assessed at N300.00 and in favour of the 2nd and 3rd respondents jointly at N300.00.

OBASEKI, J.S.C.:-I have had the opportunity of reading through the majority judgment and I agree that the appeal should be dismissed but for different reasons.

Following the decision of the Military to return the Government of the Federal Republic of Nigeria to the civilians and the adoption of a new Constitution, the Constitution of the Federal Republic of Nigeria 1979, the Federal Electoral Commission otherwise referred to as Fedeco for short, on instruction from the Supreme Military Council conducted elections to fill the five elective offices under the Constitution to wit; the office of member of the Senate, member of the House of Representatives, member of the House of Assembly of each of the 19 States of the Federation, Governor of each State and President of the Federal republic in accordance of the Electoral Decree (1977 No. 73) as amended.

The election to fill the office of the President was held on the 11th day of August, 1979 and of the candidates who contested the election (namely, Chief Obafemi Awolowo of the UPN; Dr Nnamdi Azikiwe of the NPP; Alhaji Aminu Kano of the PRP; Alhaji Ibrahim Waziri of the GNPP and Alhaji Shehu Shagari of the NPN), 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 34A(1)(c)(i) and (ii) of the Electoral Decree aforesaid, the provisions of which read:

"A candidate for an election into the office of President shall be deemed to have been duly elected to such office where

(i) he has the highest 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."

Exhibit T1-the Declaration of the Result, Exhibit T2-analysis of votes cast state by for each candidate and Exhibit T3-analysis of votes cast in Kano State at the election showed that Alhaji Shehu Shagari received (a) a total of 5,688,857 votes which was higher than any received by any of the other candidates and (b) not less than 25% of the votes cast in 12 States to wit; Bauchi, Bendel, Benue, Borno, Cross River, Gongola, Kaduna, Kwara, Niger, Plateau, Rivers and Sokoto, but 19.94% in Kano State and much less in each of the other 6 States of the Federation of Nigeria.

Following the directives of the Federal Electoral Commission as disclosed in paragraph 4 of Exhibit T1 which reads:

"The Federal Electoral Commission considers that in the absence of any legal explanation or guidance in the Electoral Decree, it has no alternative than to give the phrase

"at least two-thirds of all the States in the Federation" in Section 34A sub-section 1(c)(ii) of the Electoral Decree the ordinary meaning which applies to it. In the circumstances, the candidate who scores at least one-quarter of the votes cast in the 12 States and one-quarter of two-thirds, that is, at least one-sixth of the votes cast in the 13th State satisfies the requirement of the sub-section."

The third respondent herein who was the Returning Officer at the Presidential Election declared Alhaji Shehu Shagari the 1st respondent elected President of the Federal Republic of Nigeria.

Chief Obafemi Awolowo, the appellant herein, who was runner-up, having scored a total vote of 4,916,651 and not less than one-quarter of the votes cast in each of only six States of the Federation, felt aggrieved by the declaration, his main ground being that Section 34A(1)(c)(ii) of the Electoral Decree has not been satisfied and filed his petition before the Election Tribunal (No. 3) Lagos State (hereinafter referred to as the Presidential Election Tribunal) on the 20th day of August, 1979.

The three-man panel Election Tribunal, having heard evidence from the petitioner and one witness, and submissions of the petitioner and counsel for the respondents, delivered a considered judgement on the 10th day of September, 1979 dismissing the petition in its entirety.

The highlight of the judgment which is the main area of controversy and argument in this appeal reads:

"Having interpreted the expression "two-thirds of all the States of the Federation" used in Section 34A(1)(c)(ii) of the

Decree to mean nothing more than two-thirds of nineteen States, that is, 122/3 States, it is now left to relate this to the votes scored by the 1st respondent in order to ascertain whether or not the return made by the 3rd respondent in Exhibit T1 that he was duly elected as President was justified or not.

As 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. It is not disputed that the 1st respondent Alhaji Shehu Shagari scored 25% of the total votes cast in twelve States, that is, Bauchi, Bendel, Benue, Borno, Cross river, Gongola, Kaduna, Kwara, Niger, Plateau, Rivers and Sokoto. But in order to succeed he must also score in addition 25% of the total votes cast in the remaining "two-thirds State".

(underlining mine)

"This might be in Kano State where the 1st Respondent scored 19.94% of the total votes cast in the State which is 1,220,763. The question therefore is what then is the total votes cast in two-thirds of Kano State? The obvious answer is 813,842. A quarter or 25% of those votes will then be 203,460.5 votes. According to Exhibit T2, the total votes scored by the 1st respondent is 243,423 which is obviously more than one quarter of the votes cast in two-thirds of Kano State. In the circumstances, we are satisfied that the 1st respondent has satisfied the provisions of Section 34A(1)(c)(i) and (ii) of the Decree; and we therefore hold that he was duly returned by the 3rd respondent as duly elected President of the Federal Republic of Nigeria."

(underlining mine)

Aggrieved by this decision, the appellant on the 13th day of September, 1979 filed his Notice of Appeal and 19 grounds of Appeal. These grounds are as follows:

(1) The Election Tribunal misdirected itself in law in construing two-thirds of nineteen States as 12? 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 he held as follows:

"As 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"

Whereas there are two dominant requirements in the election, namely-

(i) the votes received by a candidate; and

(ii) the number of States in which he received such votes.

(3) The 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 1st respondent scored at least one-quarter or 25% of the total votes cast in two-thirds Kano State viz 203,460.5 and thereby erroneously concluded:

(a) "In the circumstances, we are satisfied that 1st respondent has satisfied the provisions of Section 34A(1)(c) (i) and (ii) of the Decree and therefore hold that he was duly returned by the 3rd respondent as duly elected President of the Federal Republic of Nigeria."

(b) "It is not disputed that the 1st respondent Alhaji Shehu Shagari scored 25% of the total votes cast in twelve States that is, Bauchi, Bendel, Benue, Borno, Cross River, Gongola, Kaduna, Kwara, Niger, Plateau, Rivers and Sokoto. But in order to succeed he must also score in addition 25% of the total votes in the remaining two-third State. This might be in Kano State where the 1st respondent scored 19.94% of the total votes cast in that State which is 1,220,763. The question therefore is what then is the total votes cast in two-thirds of Kano State. The obvious answer is 813,824. A quarter or 25% of those votes will be 203,460.5. According to Exhibit T2 the total votes scored by the 1st respondent is 243, 423 which is obviously more than one-quarter of the votes cast in two-thirds of Kano State."

PARTICULARS

........

(4) The Tribunal erred in law in excluding evidence in support of the petition that two-thirds of 19 is not less than 13, which evidence is in support of matters properly pleaded and upon which the parties have joined issue when it is observed in its judgement as follows:

"...I said that two-thirds of nineteen states is thirteen. If one is speaking of nineteen in the abstract, then it is 122/3. If we are asked to get two-thirds of nineteen votes, then the answer is thirteen."

This cross-examination having been concluded, another witness was called in the name of Dr Ayodele Awojobi, a Professor in the Faculty of Engineering in the University of Lagos. After stating all his credentials, he was asked by Mr Adesanya as to what meaning the expression

"not less than one quarter of the votes cast at election in each of at least two-thirds of all the States in the Federation conveyed to him as an applied mathematician. Chief Akinjide quickly took objection to that question being answered by the witness. After hearing submissions of learned Counsel for the respondents and the reply of Mr Adesanya, we ruled the question out of order on the ground that the point was not pleaded."

PARTICULARS

........

(5) The Tribunal erred in law in failing to exercise judicially their discretion to amend the petition as follows: "........"

(6) The Tribunal erred in law and failed to interpret properly Section 34A(1)(c)(ii) of the Electoral Decree 1977 as amended by failing to consider in their said interpretation of the section, the vital words "EACH" and "AT LEAST" contained in the said section and held in their judgement as follows:

"The main point for consideration in this matter is construction to be put on the words 'two-thirds of the States of the Federation used in that provision ... States in the Federation" ...In the first place, we intend to apply to the expression two-thirds of all the States in the Federation '...they would have a PROVISO' to take care of any possible contingencies."

PARTICULARS

(i) The Tribunal in effect, treated the words 'EACH' and 'AT LEAST' as mere surplussage.

(ii) The Tribunal was properly directed to the relevance of those words in the petitioner's address.

(7) Withdrawn and struck out.

(8) The Tribunal erred in law and misdirected itself on the facts when it failed in its interpretation of Section 34A(1)(c)(ii) to give proper effect to the preposition IN and thereby came to a wrong interpretation when it held

"In the first place we intend to apply to the expression 'two-thirds of all the States in the Federation'... they would have provided a "PROVISO" to take care of any possible contingencies."

PARTICULARS

(i) The preposition 'IN' can only refer to a geographical territory and NOT to totality of votes.

(ii) Evidence was led to show that using the only relevant territorial division i.e. local government areas none of the possible 38,760 variants of two-thirds of Kano State can give the 1st respondent up to 23% which is less than the required one-quarter.

(9) The judgment is against the weight of evidence.

(10) MISDIRECTION IN LAW

The Tribunal misdirected itself in law when it held as follows:

"As 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 State when:

(i) The number of votes cast in two-thirds of a State is not and cannot be synonymous with two-thirds of the total votes cast in that State and the same can only refer to a physical area of such State.

(ii) There are two dominant requirements of the law with respect to the election viz

(a) the total number of votes received by each of the candidates in all the States; and

(b) the number of States in which he received a specified percentage of all the votes cast for all the candidates in the relevant States.

(11) ERROR IN LAW

Having, on the basis that a State could be fractionised, decided that the sole issue to be determined in the suit would be resolved by the provision of an answer to the question.

"What then is the total votes cast in two-thirds of Kano State?"

The Tribunal erred in law in proceeding to answer in effect not that question but a totally different one viz: What is two-thirds of the total votes cast in Kano State? and thereby came to an erroneous conclusion that the answer in question posed was 813, 842 votes when:

(a) The Tribunal was bound to and should have provided an answer to the question posed to itself;

(b) On the basis that a State could be fractionalised, the Tribunal was bound to determine or be satisfied about the number of votes cast in the area of two-thirds of Kano State and that the votes received by the 1st respondent within the said two-thirds area of Kano State amounted to not less than one quarter of the total votes cast within the said two-thirds area of Kano State.

(12) ERROR IN LAW

The Tribunal erred in law in holding that it was unable to take cognisance of the contention of petitioner that two-thirds of 19 States would be 13 States on the ground that the contention had not been pleaded when:

(i) The same was a contention in law that the aforesaid proposition was the legal meaning of the statutory provisions of Section 34A(1)(c)(ii) of the Electoral Decree 1977 as amended, and not an averment of fact.

(ii) Contentions of law are not required to be pleaded. (Not argued as the contention was considered by the Tribunal.)

(13) ERROR IN LAW

The Tribunal erred in law in rejecting the evidence of Professor Ayodele Awojobi proffered to demonstrate

(i) What meaning should be given, from the stand-point of applied mathematics to the mathematical formula involved in the phrase "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.

(ii) The absurdity of fractionising Kano State or the votes cast therein.

(iii) The error committed by the Third respondent in using the proportion of one-sixth instead of one-quarter of the votes cast in Kano State or any part thereof in arriving at the conclusion that the 1st respondent had complied with Section 34A(1)(c)(ii) when:

(i) The evidence of the said Professor Awojobi was admissible as the opinion of an expert in a matter on which issues had been joined, and upon which the Tribunal had, to form a view.

(ii) The evidence was offered to buttress a contention of law which does not need to be pleaded to the effect that the votes received by the 1st respondent at the election did not meet the requirements of the law for the election of the President of the Republic. (Abandoned)

(14) MISDIRECTION OF FACTS

The Tribunal misdirected itself on the facts when it quoted the petitioner as having said:

"At a certain stage during his testimony, the petitioner, Chief Obafemi Awolowo (PW1) told the Tribunal that the first respondent did not satisfy the requirement of law in that he did not score "at least one-quarter of the votes cast in twelve States and one-quarter of two-thirds, that is at least one-sixth of the votes cast in the thirteenth State."

when in fact the petitioner did not make the said statement during the course of his evidence. (Court's attention drawn to the error in the quotation and left at that.)

(15) ERROR IN LAW

The Tribunal erred in law in holding that there was no ambiguity or absurdity in a situation in which the counting of the votes in a mathematical two-thirds State of the Federation would have to be undertaken when the said exercise would be futile and would certainly lead to absurdity.

(16) ERROR IN LAW

Having decided that of the total votes of 1,220,763 cast in the whole of Kano State, it could only take account of two-thirds thereof i.e. 813, 842 in determining the total votes cast in Kano (as a two-thirds State) for the purposes of determining whether or not the 1st respondent had scored 25% of the votes cast in Kano State, the Tribunal erred in law in not also taking a corresponding two-thirds of the votes cast in favour of the 1st respondent in ascertaining whether or not the 1st respondent had scored 25% of the total votes cast in Kano State and thereby come to a wrong conclusion that the 1st respondent had in fact scored 25% of the votes cast in Kano State.

(17) ERROR IN LAW

The Tribunal erred in law in holding that an amendment of Section 34A(3) of the Electoral Decree 1977 on the enactment of a new Decree would be required before Fedeco could arrange for an Electoral College for an election in accordance with Section 34A(3) aforesaid if the election of the 1st respondent were invalidated when... (Abandoned)

(18) ERROR IN LAW

The Tribunal erred in law in rejecting in evidence the two press releases issued respectively by the Chairman of the Federal Electoral Commission and the Executive Secretary of the same Commission (the 2nd defendant herein) in which they had stated in respect of Fedeco's conditions for the recognition of political parties respectively, inter alia

(a) "...The Associates' Headquarters is situated in the Federal Capital, the Association satisfies the Electoral Commission that it has a properly established office in each of at least two-thirds (that is 13) of the States in the Federation..." and

(b) "...In other words, in addition to having a full fledged head-quarters office at the Federal Capital Associates must have well organised Branch offices in the Capital of at least 13 of the 19 States of the Federation..."

when the said documents were evidence on matters on which issue were joined in the said petition and do not need to be pleaded. (Abandoned)

(19) The Tribunal erred in law in using the figure 813,842 as the basis for ascertaining whether or not the 1st respondent had secured one-quarter of the votes cast in Kano State when

(i) The figure of 813,842 does not represent the sum total of the votes cast for each of the candidates at the election in Kano State.

(ii) The Tribunal (and the Returning Officer) were by law bound, in ascertaining the results of the election, to count and take into account all the votes given to each candidate in each relevant State.

(iii) The sum total of votes given to each of the candidates in Kano State is 1,220,763.

(iv) The figure of 813,842 used in ascertaining the results of the election in dispute herein does not represent the total of votes counted for each of the candidates at the election.

It would appear and in fact it is clear from the contentions of both parties at the hearing of this appeal, that the main issue in this appeal is one of the correct interpretation and application of the provision of Section 34A(1)(c)(ii) of the Electoral Decree 1977 as amended and the proper application of the interpretation to the recorded votes cast. The importance of this provision cannot be over-emphasised and in fact the labours of counsel on both sides of this appeal in the search for the proper interpretation of that section testifies to that fact. Fedeco has put its own interpretation on the section, the appellant another and the Presidential Tribunal yet another.

The appellant's dissatisfaction with the Tribunal's interpretation is twofold, viz

(1) The Tribunal's interpretation resulting in fractionalisation of the 13th State; and

(2) The calculation of the ratio of the votes received by the 1st respondent to the total votes ascribed to assumed two-third area of Kano State.

What then is the correct interpretation of two-thirds of the 19 States of the Federation for the purposes of Section 34A(1)(c)(ii) of the Electoral Decree?

It is unnecessary to set out the facts of this matter in detail as they were not in dispute. However, it will be necessary to set out the important relevant portion of the pleadings filed.

Paragraphs 3, 4, 5 and 6 of the petition set out the important averments of the petitioner and read as follows:

"(3) And your petitioner says that the 1st respondent Alhaji Shehu Shagari, was at the time of the election not duly elected by a majority of lawful votes at the election as he has not satisfied Section 34A sub-section (1)(c)(ii) of the Electoral Decree 1977.

Section 7 of the Electoral (Amendment) Decree 1978 refers.

(4) And your petitioner states that at the election, Alhaji Shehu Shagari received 5,688,857 votes as follows

........

(5) And your petitioner states that the election of the 1st respondent Alhaji Shehu Shagari had less than one-quarter of the votes cast in each of at least two-thirds of all the States in the Federation.

(6) And your petitioner states that the election of the 1st respondent Alhaji Shehu Shagari was invalid by reason of non-compliance with the provisions of Part II of the Electoral Decree 1977 to wit Section 34A (1) (c)(ii). Section 7 of the Electoral (Amendment) Decree 1978 refers.

Wherefore your petitioner prays:

That it may be determined that the said Alhaji Shehu Shagari was not duly elected or returned and that his election or return was void and that the 2nd and 3rd respondents be ordered to arrange for an election to be held in accordance with the provisions of Section 34A(3) of the Electoral (Amendment) Decree 1978.

The 1st respondent filed a reply and for the purposes of this judgment only paragraphs 2, 3, 6 and 7 need be set out.

The 1st respondent in paragraph 2 of his reply denied paragraphs 3,4,5 and 6 of the petition and put the petitioner to the strict proof of all the averments therein. The paragraphs read:

"(2) The 1st respondent denies paragraphs 3, 4, 5 and 6 of the petition and puts the petitioner to the proof of all the averments therein.

(3) With further reference to paragraph 3 of the petition, the 1st respondent says that he was duly returned by a majority of lawful votes and admits receiving a total of 5,688,857 votes.

(6) The 1st respondent avers that the election was conducted in actual compliance, or alternatively, in substantial compliance with the provisions of Part II of the Electoral Decree 1977, as amended and that the non-compliance which the 1st respondent denies does not affect the result of the election.

(7) The 1st respondent avers that at the said election he

(a) obtained the highest vote cast and

(b) had 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 that is 19 States."

The pleadings of 2nd and 3rd respondents differed little from that of the 1st respondent. Of special note are paragraphs 3, 5, and 6 which read as follows:

"(3) The 2nd and 3rd respondents deny paragraph 3 of the petitioner's claim and put the petitioner to the strictest proof thereof. The 2nd and 3rd respondents assert that in accordance with Section 34A(1)(c)(i) and (ii) of the Electoral Decree 1978 the 1st respondent was duly declared elected as President.

(5) The 2nd and 3rd respondents deny paragraph 5 of the petitioner's claim and put the petitioner to the strictest proof thereof.

(6) The 2nd and 3rd respondents deny paragraph 6 of the petitioner's claim and put the petitioner to the strictest proof thereof.

Chief Obafemi Awolowo and a witness, Professor Ayodele Awojobi gave evidence in support of the petition. There was no evidence led for the defence. The petitioner's evidence contains nothing spectacular except that in the main it contradicts the facts pleaded in paragraph 5 of the petition. It established compliance by 1st respondent with Section 34A(1)(c)(ii) to the extent that 12 States of the Federation whereas the petition alleges non-compliance with each of at least two-thirds of the 19 States of the Federation.

Various authorities on rules of interpretation have been cited to us. Having heard counsel's submission and read these various authorities, I think it necessary to emphasise that a decision on the interpretation of one statute generally cannot constitute a binding precedent with regard to the interpretation of another.

The three rules of statutory interpretation which dominate the historical perspective are

(1) The mischief Rule

(2) The literal Rule; and

(3) The golden Rule.

They have been useful aids in the interpretation of statutes in common law countries for centuries.

It has been said that they have been fused so that we now have just one rule of interpretation, a modern version of the literal rule which requires the general context to be taken into consideration before any decision is taken concerning the ordinary meanings of the words.

The mischief Rule is now used to explain what was said by Parliament, not to change it as at the time of Heydons Case. The object of the statute is relevant on all occasions not only when the meaning is doubtful as was said in the Sussex Peerage Case (1844) CL & Fin 85 at p. 143 (6-8 ER).

The Golden Rule can only be invoked when there is internal disharmony in the statute, not in cases in which a literal interpretation would produce results which are absurd or inconvenient for other reasons.

One of the most frequently quoted of the numerous statements of the literal rule is that of Tindal, C.J. when advising the House of Lords on the Sussex Peerage claim (1844) C1 & Fin 85 at 143. It reads:

"The rule of construction of Acts of Parliament is that they should be construed according to the intent of the Parliament which passed the Act. If the words of the Statute are in themselves precise and unambiguous then no more can be necessary than to expound those words in the natural and ordinary sense. The words themselves alone, do in such a case, best declare the intention of the lawgiver. But if any doubt arises from the terms employed by the legislature, it has always been held a safe means of collecting the intention to call in aid the ground and cause of making the statute and to have recourse to preamble which according to Chief Justice Dyer in Stowell v. Lord Zouch (1569) 1 Plowd 369 is a key to open the minds of the makers of the Act, and the mischiefs which they intend to redress."

There is a need to emphasise the point that the proper application of the literal rule does not mean that the effect of a particular word or phrase, clause or section is to be determined in isolation from the rest of the statute in which it is contained.

The 3rd rule, the golden rule, allows for a departure from the literal rule when the application of the statutory words in the ordinary sense would be repugnant to or inconsistent with some other provisions in the statute or even when it would lead to what the court considers to be an absurdity. The usual consequence of applying the golden rule is that words which are in the statute are ignored or words which are not there are read in. Parker C.B. in Mitchell v. Torrup 1766 Park 227 said:

"In expounding Acts of Parliament where words are express plain and clear, the words ought to be understood according to their plain and natural signification and import, unless by such exposition a contradiction or inconsistency would arise in the Act by reason of some subsequent clause from whence it might be inferred the intent of Parliament was otherwise."

Parke, B. said in Becke v. Smith (1836) 2M & W191 at p 195:

"It is a very useful rule in the construction of statute to adhere to the ordinary meaning of the words used and to the grammatical construction unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance in which case the language may be varied or modified so as to avoid such inconvenience, but no further."

It should be emphasised that when the rule is used as a justification for ignoring or reading in words, resort may only be made to it in the most unusual cases for as Lord Mersey observed in Thompson v. Gold & Co. (1910) AC 409 at 420

"It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity, it is a wrong thing to do."

Similarly, Lord Loreburn in Vickers, Son and Maxim Ltd. v. Evans (1910) AC 444 at 445 commented "We are not entitled to read words into an Act of Parliament unless clear reasons for it is to be found."

The statement of Alderson B. in A-G v. Lockwood (1842) 9 M & W 378 at 398 frequently cited today reads:

The rule of law I take it upon the construction of all statutes is, whether they be penal or remedial, to construe them according to the plain literal and grammatical meaning of the words in which they are expressed unless that construction leads to a plain and clear contradiction of the apparent purpose of the Act or to some palpable and evident absurdity.

There are some dicta flatly denying that the courts have any power to reject the natural and grammatical meaning of a word or phrase on the ground that it leads to some result which cannot reasonably be supposed to have been intended by the legislature. This was the case in R v. City of London Court Judge (1892) 1 QB 273 at 290 when Lord Esber said

"If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity. In my opinion, the rule has always been this, if the words of an Act admit of two interpretations, they are not clear; and if one interpretation leads to an absurdity and the other does not, the court will conclude that the legislature did not intend to lead to an absurdity, and will adopt the other interpretation."

The words used in the statute must not be given a meaning they cannot by any stretch of imagination bear and in the words of Eyre C.B. in Gibson and Johnson v. Minet and Fector (1791) H. B1 569 at p.615:

"All latitude of construction must submit to this restriction; namely, that the words may bear the sense which, by construction is put upon them. If we step beyond this line, we no longer construe men's deeds, but make deeds for them."

The duty of a court is so to interpret an Act of Parliament so as to give effect to its intention. The court does not claim the right to order Parliament or its draftsman to observe the rules which the judges laid down. This was certainly emphasised by Du Parcq L.J. in No-Nail Cases Propriety Ltd. v. No-Nail Boxes Ltd (1944) 1 KB 629 at 637 when he said:

"The courts have not and certainly do not claim the right to say to Parliament or its legal draftsman, Observe the rules which we lay down, or, though your meaning may be perfectly clear, we will teach you a lesson by interpreting your language in a sense which you obviously did not intend'."

As to the duty of the court in this regard, Lord Simon of Glaisdale recently in Ealing London Borough v. Race Relations Board (1972) AC 342 at p.360 said:

"It is the duty of a court so to interpret an Act of Parliament as to give effect to its intention. The court sometimes asks itself what the draftsmen must have intended. This is reasonable enough; the draftsman knows what is the intention of the legislative initiator (nowadays almost always an organ of the executives); he knows what canons of constructions the courts will apply, and he will express himself in such a way as accordingly to give effect to the legislative intention. Parliament, of course, in enacting legislation, assumes responsibility for the language of the draftsmen. But the reality is that only a minority of legislators will attend the debates on legislation."

The Decree under consideration was in 1977 enacted by the Supreme Military Council which since 1966 assumed supreme legislative authority in this country. In interpreting the Decree, the duty of the Court is to interpret the words used to convey the intention of the Supreme Military Council and give effect to the intention.

In the discharge of this duty, the extent of the powers of the court is not limitless.

Denning, L.J. in the case of Seaford Court Estates Ltd. v. Asher (1949) 2 KB 481 at p.499 could not contain his feelings about the constraint to which the courts are subject when he said (in a dissenting judgment)) in Magor and St. Mellons Rural District Council v. Newport Corporation (1950) 2 All ER 1226 at 1236:

"We do not sit here to pull the language of Parliament to pieces and make nuisance of it. That is an easy thing to do and it is a thing to which lawyers are too often prone. We sit here to find out the intention of Parliament and of ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis."

These remarks drew the following comments in the House of Lords when the matter was considered there: See (1952) AC 189: (1951) 2 All ER 839 at p.841:

"It is sufficient to say that the general proposition that it is the duty of the court to find out the intention of Parliament-and not only of Parliament but of ministers also-cannot by any means be supported. The duty of the court is to interpret the words that the legislature has used, those words may be ambiguous, but if they are, the power and duty of the Court to travel on a voyage of discovery are limited."

Evidence that every member who voted for a measure put a certain construction upon it cannot affect the meaning which the court must place upon the statute for it is the product not of a number of individuals but of an impersonal Parliament. Lord Denning in Escoigne Properties Ltd. v. Inland Revenue Commissioners (1958) AC 549 at 565 said:

"In this country, we do not refer to the legislative history of an enactment as they do in the United States of America, We do not look at the explanatory memoranda which preface the Bill before Parliament. We do not have recourse to the pages of Hansard. All that the courts can do is to take judicial notice of the previous state of the law and of other matters generally known to well informed people."

The ordinary meaning of words, is a question of fact. It is however very far from being an ordinary fact for legal purposes as it is the subject of judicial notice and the decisions on them become binding precedents so far as the construction of the statute in question is concerned.

This question of fact so far as the law of statutory interpretation is concerned is not one on which evidence can be called on each side.

In Marquess of Camden v. Inland Revenue Commissioners (1914) 1 KB 641, the evidence of a valuer with regard to the meaning of "a nominal rent" was held inadmissible. Phillimore, L.J., disposing of the matter with the remark "it is enough to say that in construing modern statute, not dealing with particular customs of a particular locality, or with the practice of a particular trade, but of general application, evidence such as is sought to be adduced in this case is inadmissible."

See also R. v. Calder and Boyars Ltd. (1969) 1 QB 151 (1968) 3 All ER 644.

R v. Anderson (1972) 1 QB 304 (1971) 3 All ER 1151.

R. v. Stamford (1972) 2 QB 391 (1972) 2 All ER 430.

When it is agreed or contended that statutory words have a technical meaning which is not the case in this appeal, evidence with regard to that meaning in unquestionably admissible and it is generally preferred to information gleaned from other sources such as dictionaries.

See Prophet v. Platt Brothers & Co. Ltd (1961) 2 All ER 644.

Only few situations calling for interpretation of statutes have arisen in the superior courts in Nigeria and in those few cases, the Supreme Court has inclined to the literal rule. This was the case in Okumagba v. Egbe (1965) 1 All NLR 62 and Animashawun v. Osuma & others (1972) All NLR; (Part 1) 363. In the former case, i.e. Okumagba v. Egbe, which was a matter dealing with breaches of Regulation 60(b) of the Parliamentary Regulations 1960 which reads:

"Every person who...before or during an election knowingly or recklessly publishes any false statement of the withdrawal of a candidate at such election for the purpose of promoting or procuring the election of another candidate shall be guilty of an offence etc."

The appellant was charged with knowingly publishing a false statement of the withdrawal of Mr Neequaye, a candidate for the said election into the Warri Urban constituency for the purpose of procuring the election of another candidate namely, Mr Neequaye and thereby committed an offence punishable under Regulation 60(b) of the Parliamentary Electoral Regulations 1960.

The learned Chief Magistrate who tried the case (F. O. M. Atake, Esq.) inferred that the appellants' aim was to swell the votes for Mr Neequaye by inducing his own followers to vote for the bicycle instead of the umbrella and held that:

"It is unfortunate that the draftsmen used the words "another candidate" instead of "any candidate"...It will be clearly absurd well knowing the object for which the legislature intended Regulation 60(b) to say that on a grammatical interpretation the person who is alleged to have withdrawn cannot and must not be the same person whose election is to be procured and so no offence is committed on the facts disclosed in this case..."

He proceeded to convict on the supposition that the mischief aimed at by Regulation 60(b) can be perpetrated when the man falsely alleging to have withdrawn and the man whose election is to be procured is one and the same person. This decision was confirmed by the High Court but on appeal to the Supreme Court, it was reversed and Bairamian J.S.C. delivering the judgment of the Court observed:

"It may be unfortunate that the draftsman used the words 'another candidate' but they are the words which the legislature enacted...but amendment is the function of the legislature and the courts cannot fill a gap which comes to light by altering the words of a regulation to make it read in the way they think it should have been enacted.

As Lord Bacon said in his essay on Judicature, the office of a judge is jus dicere not jus dare-to state the law not to give law-and the courts below should not have gone in for "judicial legislation"

The learned Chief Magistrate invoked the argument from absurdity for the course he took. That should be used with great caution, for what may seem absurd to one may not seem absurd to another and with respect, we cannot look on the plain sense of the regulation as absurd merely because it does not cover the facts of the present case." (underlining mine).

I will now direct my mind specifically to the argument of counsel. Mr G. O. K. Ajayi, learned leading counsel for the appellant, argued 11 of his 19 grounds of appeal to wit grounds 1, 2, 3, 6, 8, 10, 11, 14, 15, 16 and 19 and abandoned the others.

He submitted that on a proper interpretation of the provisions of Section 34A(1)(c)(ii) of the Electoral Decree already set out above, two-thirds of nineteen States of the Federation can only give 13 States and that to qualify to be declared elected President the candidate must have one-quarter of the votes cast at the election in each of at least 13 States in addition to receiving the highest number of votes throughout the Federation and that to ascertain these, there must be actual physical counting.

He further submitted that accepting 122/3 States to be the number of two-thirds of all 19 States, the 1st respondent must score 25% of the votes cast in each of the 122/3 States.

He further drew the court's attention to the fact that there was no controversy with the results either in number or percentages scored by the 1st respondent in each of twelve States but instead of using the same criteria in the 13th State which was Kano, the 3rd respondent purported to use a mathematical process not prescribed by the Electoral Decree. He purported to ascertain the number of two-thirds of the votes cast in Kano State and proceeded to calculate the percentage of the total votes received by the 1st respondent in the two-thirds State by relating the votes received by the 1st respondent from all two-thirds Kano State to the votes obtained by scaling down the total votes cast in Kano State to two-thirds of the original total votes cast in Kano State.

He attacked the procedure adopted and submitted that it was wrong and not within the contemplation of the Electoral Decree.

On the power of the Court under Section III of the Electoral Decree to invalidate the election, he submitted that the issue of invalidating the election, to the extent of repeating the election so far held does not arise in these proceedings and all the petitioner claimed was to declare the return of 1st respondent as President elect on the 1st ballot void. He urged that the failure to comply with the provisions of Section 3A(1)(c)(ii) of the Electoral Decree totally was a non-compliance which affected the result of the election in the first ballot.

He went on further to submit that failure to proceed to the 2nd ballot was a substantial non-compliance with the provisions of Part II as regards conduct of election. He submitted further that this substantial non-compliance was sufficient to invalidate the election whether or not it affected the results and cited as authority the case of Morgan v. Simpson (1975) 1 QB 151.

Chief Akinjide, leading counsel for the 1st respondent replied briefly and stated that the real issue before the Court was the correct interpretation of Section 34A(1)(c)(ii) Electoral Decree 1977 as amended. He submitted that it was common ground that there was no ambiguity in the wording of the sub-section and that the ordinary meaning should be given to the words used. He maintained that the dominant word in the sub-section was the word 'vote' that the sub-section prescribes the exact criteria and precise qualification for the election of a President and that the sub-section expressly introduces percentages and fractions. He submitted that there being 19 States in the Federation, the word 'each' in the sub-section qualifies the result of two-thirds of nineteen and that is twelve and two-thirds States.

This two-third ratio was to be a constant ratio for all times not for this particular period when we have only 19 States.

He went on to contend that although taking two-thirds votes in each of the 19 States would be a wrong construction of the sub-section to qualify for election under the sub-section the 1st respondent was only concerned with two-thirds of the votes cast in the 13th State which is Kano State. The votes he received in the whole State was to be set against two-thirds of the total votes cast in the State to ascertain whether it comes up to 25%.

On the question of non-compliance with Part II, he submitted that the petitioner has not made out any case on which the election can be invalidated on that ground and that the onus was on the petitioner. This he failed to discharge.

A lot of American authorities were cited to us on the definition of States particularly by Mr Ajayi. Chief Akinjide confined himself to the definition in our Constitution and the States (Creation and Transitional Provisions) Decree 1976, Decree No. 12 of 1976. Mr Ajayi's contention was that State being a legal corporate person cannot be fractionalised unless when considered as a geographical area. Chief Akinjide submitted that in the context in which the word State has been used in the Decree, it admits of fractionalisation.

The issue in this appeal revolves round the correct interpretation of the provision of sub-section (1)(c)(ii) of Section 34A of the Electoral Decree and its application to the statistical data provided in Exhibit T2.

It has been suggested that the sub-section has several meanings.

Before setting out on this important task of construing the sub-section, it is necessary to set the provisions down again in full: Section 34A(1)(c)(iii) reads:

"A candidate for an election to the office of President shall be deemed to have been duly elected to such office where

(i) he has the highest number of votes cast at the election

(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.

I must bear in mind the words of Lord Reid in his judgment in Jones v. DPP (1962) AC 635 at 662 when he said:

"It is a cardinal principle applicable to all kinds of statutes that you may not for any reason attach to a statutory provision a meaning which the words of that provision cannot reasonably bear. If they are capable of more than one meaning, then you can choose between those meanings but beyond that you must not go."

It is common ground that there at present 19 States in the Federal Republic of Nigeria. See Section 3 of the Constitution of the Federation as amended by Decree No. 12 of 1976-States (Creation and Transitional Provisions) Decree 1976. Section 1 of the Decree reads:

"There shall on the commencement of this Decree be created States to be known by the names in column 1 of the Schedule to this Decree, the respective areas of which shall be those provinces, divisions or districts named in column 2 of that Schedule and the capitals of which shall be those respectively named in column 3 of that Schedule."

and Section 6(1) reads:

"For Section 3 of the Constitution of the Federation there shall be substituted the following new section

(3) There shall be 19 States that is to say Anambra, Bauchi, Bendel, Benue, Borno, Cross River, Gongola, Imo, Kaduna, Kano, Kwara, Lagos, Niger, Ogun, Ondo, Oyo, Plateau, Rivers and Sokoto."

Section 7 reads:

"This Decree may be cited as States (Creation and Transitional Provisions) Decree 1976 and shall be deemed to have come into force on 3rd February, 1976."

Since this appeal has concentrated on the election results declared in Kano State, I will turn to the Schedule for the description of Kano State. In the Schedule to the Decree the area covered by Kano State was described as:

Kazaure, Kano North-central, Gumel, Hadejia, Kano West, Kano Metropolitan, Kano South-East, Kano South-West.

It therefore does not appear to me that when reference was made in Section 3A(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 voters were compiled from a house to house registration of all eligible voters throughout the Federation. See Section 6 of Electoral Decree 1977. And by Section (1)(i) of the Decree it is provided that:

"(1) Subject to this Decree, the persons entitled to vote at any election in any constituency within the meaning of that expression as used in the Constitution of the Federal Republic (hereinafter referred to as the Constitution) shall be those ordinarily resident there on the qualifying date and on the date of the poll, are citizens of Nigeria of the age of 18 years or upwards and are not subject to any legal incapacity to vote.

Provided that a person shall not be entitled to vote in any constituency unless registered there in the register of voters to be used at the election."

Section 2(1) of the Electoral Decree 1977 defines ordinary residence. It reads:

"A person shall be deemed to be ordinarily resident in a place for the purposes of this Decree if whether or not he has his meals there or is employed elsewhere:-

(a) it is the place where he lives or sleeps or

(b) he has or usually has his home in that place or

Unless a registered voter is within the proper geographical area his vote will not be taken. See Sections 44, 45 and 46 of the Electoral Decree 1977.

All these sections of the Decree emphasise the importance of residence and registration within the geographical area.

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.

The construction that two-thirds of 19 States in the Federation is 122/3 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% 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 Decree-Electoral Decree 1977 as amended. It constituted a flight from the truth and it is the truth the Court seeks in all matters in dispute.

Where there are two possible meanings conveyed by the 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.

It may be observed in passing that Fedeco never at any time fractionalised any of the nineteen States for the purpose of the election of President in keeping with the whole State interpretation and its adoption of two-thirds of 19 in the abstract and the subsequent attempt to solve the problem thereby created by mathematical deduction is one that eludes understanding.

Be that as it may, it is now a fact that Fedeco adopted fractionalisation in theory and declared a result based on qualification in 12?States. Whether the calculation of percentages in the two-thirds State is mathematically correct is another matter.

Looking at the sub-section still further, the words "States in the Federation" can only refer to the land area and not votes.

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 the Electoral Decree 1977 which reads:

"In any election to the office of President or Governor (whether or not contested) and in any contested election to any other elective office, the votes shall be given by ballot and the results shall be ascertained by counting the votes given to each candidate and, subject to Section 34A of this Decree, the candidate to whom the majority of votes has been given shall be declared elected."

(underlining mine)

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 this view. The sub-section, i.e. sub-section 2 of Section 34A reads:

"In default of a candidate duly elected in accordance with paragraph (c) of sub-section 1 of this section, there shall be a second election in accordance with sub-section 3 of this section at which the only candidates shall be

(a) a candidate who secured the highest number of votes at any election held in accordance with the said paragraph (c) of sub-section (1) of this section; and

(b) one among the remaining candidates who has 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 cast in the highest number of States the candidate with the highest total of votes cast at the election shall be the second candidate for the election."

(underlining mine)

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 twelve and two-thirds 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 State, 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 the two-third State was more in the imagination than in reality. 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-third 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 Kano State from the votes boldly testifies to this fact. I am firmly of the opinion that it was 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. In my view, that which the law has forbidden was what has been done in the ascertainment of what percentage the votes received by 1st respondent in two-thirds Kano State is of the assumed total votes cast in two-thirds 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.

Having identified the non-compliance with provision of Section 34 of the Decree in respect of the two-thirds State in Kano State to make up two-thirds of nineteen States it now falls on me to consider the plea raised in paragraph 6 of the reply of the 1st respondent which reads:

"The 1st respondent avers that the election was conducted in actual compliance or alternatively, in substantial compliance with the provisions of the Part II of the Electoral Decree 1977 as amended and that the non-compliance (which the 1st respondent denies) does not affect the result of the election."

This paragraph in effect invoked the provision of Section 111 of the Electoral Decree.

Counsel on both sides addressed us on the extent of the limitation imposed on the powers of the court to invalidate an election for non-compliance with the provisions of Part II of the Decree. That section, Section 111 of the Decree reads:

"An election shall not be invalidated by reason of non-compliance with Part II of this Decree if it appears to the Tribunal having cognisance of the question that the election was conducted substantially in accordance with the provisions of the said Part II and that the non-compliance did not affect the result of the election."

(underlining mine)

This plea was in reply to paragraphs 5 and 6 of the petition. Again, they read:

"(5) And your petitioner states that Alhaji Shehu Shagari 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."

(6) And your petitioner states that the election of the 1st respondent Alhaji Shehu Shagari was invalid by reason of non-compliance with the provisions of Part II of the Electoral Decree 1977 to wit Section 34A(1)(c)(ii). Section 7 of Electoral Decree 1978 refers."

The evidence adduced as already found did not support the facts pleaded in paragraph 5 of the election petition.

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.

See Akinfosile v. Ijose 5 FSC 192 at 199 (a case dealing with Regulation 7 of the Elections (House of Representatives) Regulations 1958 which is in pari materia with Section 111 of the Electoral Decree 1977 as amended).

The petitioner's witness No. 2, Professor Ayodele Awojobi gave evidence of the length of time it would take to declare the result of two-thirds of Kano State as at least one year because from a study of Exhibit T3 he observed that there were 38,760 possible two-thirds of Kano States. This, in my view, could not and did not help the tribunal to determine whether the non-compliance complained of affected the result.

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 this provision of Section 111 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.

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 declare the result invalid. The petitioner pleaded a substantial non-compliance i.e. failure to obtain one-quarter of the votes cast in each of at least two-thirds of all the States in the Federation. But the evidence established this non-compliance in only one State. In other words, the evidence established that the 1st respondent obtained in each of the 12 States one-quarter or more of the votes cast but did not in the 13th State-Kano State. The 3rd respondent claimed that 1st respondent received 25% of the votes in two-thirds Kano State. There is no evidence of counting in two-thirds Kano State.

Counsel for the appellant cited the case of Morgan v. Simpson (1975) 1 QB 151 decided by the Court of Appeal in England in support of his contention that where there is substantial non-compliance with Part II of the Electoral Decree 1977 the election shall be declared invalid and that Section 111 of the Decree cannot save the election. The Court of Appeal was in that case concerned with the interpretation and application of Section 37(1) of the Representation of the People Act 1949 which reads:

"No local government election shall be declared invalid by reason of any act or omission of the returning officer or any other person in breach of his official duty in connection with the election or otherwise of the local elections rules if it appears to the tribunal having cognisance of the question that the election was so conducted as to be substantially in accordance with the law as to elections and that the act or omission did not affect the result."

Whereas our own statute speaks of non-compliance with Part II, the English Statute speaks of any act or omission in breach of his official duty or of the local elections rules. That is not in pari materia with our Section 111.

After a detailed analysis of decided authorities on the provisions of that Act and previous Acts, Lord Denning M.R. at page 162 of the Report stated the position of the law in England as follows:

"Collating all these cases, I suggest that the law can be stated in these propositions:

(1) If the election was conducted so badly that it was not substantially in accordance with the law as to elections, the election is vitiated, irrespective of whether the result was affected or not. That is shown by the case of Hackney Case 2 O' M & H 77 where two out of 19 polling stations were closed all day and 5,000 voters were unable to vote.

(2) If the election was so conducted that it was substantially in accordance with the law as to elections, it is not vitiated by a breach of the rules or a mistake at the polls provided that it did not affect the result of the election. That is shown in the Islington case, 17 TLR 210 where 14 ballot papers were issued after 8 p.m.

(3) But, even though the election was so conducted substantially in accordance with the law as to elections, nevertheless, if there was a breach of the rules or a mistake at the polls-and it did affect the result, then the election is vitiated. That is shown by Gunn v. Sharpe (1974) QB 808 where the mistake in not stamping 102 ballot papers did affect the result."

It is doubtful whether the 1st proposition represents the state of the law in Nigeria. It is my opinion that the second and third propositions do represent the state of the law in Nigeria and to vitiate an election, the non-compliance must be proved to have affected the results of the election. See Sorunke v. Odebunmi (1960) 5 FSC at pp 177 and 178, where Ademola, CJF, delivering the judgment of the Federal Supreme Court said:

"Finally, in considering whether the election was void under the Ballot Act, Lord Coleridge said at page 751 of the judgment:

'If this proposition be closely examined it will be found to be equivalent to this, that the non-observance of the rules or forms which is to render the election invalid, must be so great as to amount to a conducting of the election in a manner contrary to the principle of an election by ballot, and must be so great as to satisfy the tribunal that it did affect or might have affected the majority of the voters, or in other words, the result of the election.

When Lord Coleridge refers to a majority of voters, he cannot mean to say that non-compliance may be overlooked unless it affects over half of the votes cast. He referred to a non-compliance which "affected the majority of voters, or in other words, the result of the election." It cannot be doubted that here Lord Coleridge means that those electors wishing to vote who formed a majority in favour of a particular candidate-must have been prevented from casting a majority of votes in his favour with effect. This does not require that all their votes must have been disallowed; it will be sufficient if enough of their votes are disallowed to give another candidate a majority of valid votes."

In this appeal, 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 with effect and for that reason the appeal must fail.

The appeal is accordingly dismissed with costs to the 1st respondent assessed at N300.00 (three hundred Naira) and to each of the 2nd and 3rd respondents N300.00 (three hundred Naira).

A. O. OBASEKI

JUSTICE, SUPREME COURT

ESO, J.S.C:-It is with the greatest regret that I find myself unable to agree with the majority judgment of the court just read by my Lord, the Hon. the Chief Justice of Nigeria.

On 11th August, 1979, the Federal Electoral Commission, (hereinafter referred to as FEDECO), a body charged with the duty of conducting election into the office (among other offices) of the President of the Federation, conducted an election into that Office.

The Petitioner, Chief Obafemi Awolowo, was the candidate put up by the Unity Party of Nigeria, while the 1st Respondent, Alhaji Shehu Shagari, was the candidate put up by the National Party of Nigeria. There were three other candidates for that election standing on the platforms of three different political parties. The result of the election showed (and this is contained in Exhibit T1 which was tendered by the Petitioner) that the 1st Respondent scored the highest number of votes, after all the votes cast throughout the country had been added together, while the Petitioner scored the next highest. In actual figures, the 1st Respondent scored a total of 5,688,857 votes, while the Petitioner scored a total of 4,916,651 votes. The first Respondent at the same exercise scored at least 25% of the total votes cast in each of the following twelve States-Bauchi, Bendel, Benue, Borno, Cross River, Gongola, Kaduna, Kwara, Niger, Plateau, Rivers and Sokoto; while the Petitioner scored at least 25% of the total votes cast in each of the following six States-Bendel, Kwara, Lagos, Ogun, Ondo and Oyo (see Exhibit T2). In Kano State, the 1st Respondent scored 243,423 votes which, when worked out on a percentage basis against the total votes cast in the whole of Kano State, came to 19.94%.

It was on the basis of the aforesaid score by the 1st Respondent, that the third Respondent, Mr F. L. O. Menkiti, who was the Returning Officer, Presidential Election, declared the 1st Respondent elected as the President of the Federal Republic of Nigeria.

The Petitioner was dissatisfied with this declaration, and he filed a petition at the Electoral Tribunal (No. 3) Lagos State, which Tribunal was seised with the determination of petitions in regard to the Presidential Election. The main complaint of the Petitioner before the Tribunal is contained in paragraph 3 of his petition. It reads-

"(3) that the 1st Respondent, Alhaji Shehu Shagari, was at the time of the election not duly elected by a majority of lawful votes at the election, as he has not satisfied Section 34(A) sub-section (1)(c)(ii) of the Electoral Decree 1977."

He sought the following relief-

"That the said Alhaji Shehu Shagari was not duly elected or returned and that his election or return was void."

(There were in fact two reliefs sought at the Tribunal but the Petitioner abandoned the second.)

The 1st Respondent joined issue with the Petitioner on this averment in paragraph 7 of his reply and therein he said-

"(7) The 1st Respondent avers that at the said election he-

(a) obtained the highest votes cast; and

(b) had 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, that is, in 19 States."

The second and third Respondents also filed a joint reply and joined issue with the Petitioner.

The Tribunal's main task therefore was in the interpretation of the provision of Section 34A(1)(c)(ii) of the Electoral Decree 1977 No. 73 which provides-

"34A (i) A candidate for an election to the office of President shall be deemed to have been duly elected to such office where-

........

(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 learned Tribunal (Kazeem, Aseme and Wali) after taking evidence and hearing legal submissions, in a considered judgment, held, that, in interpreting this provision, the questions for consideration were whether-

(i) there is any ambiguity in the sub-section under consideration,

(ii) the application of the sub-section would result in any ambiguity, and

(iii) any gap has been created by the legislature in the provision, which if left unfilled, will work injustice to the person affected by the provision.

In answering these questions in the negative, they said-

"Considering the words used in the sub-section again, we are satisfied that they are plain and unambiguous. Fortunately the Petitioner and both counsel for the Respondent agree with this view. Hence to apply them as provided by the legislature will not in our view, create any absurdity. However, we cannot find any gap which has been created in the sub-section, which if left unfilled will work injustice on any person affected by the sub-section. On the contrary, we are satisfied that to read more into the sub-section is to ask the 1st Respondent to bear more burden in order to be elected than what the legislature expressly require him to bear. In our view that will result in an injustice to him."

The Tribunal then interpreted the expression "two-thirds of all the States in the Federation" in the sub-section to mean "twelve two-third States." But in relating this interpretation to the votes scored by the 1st Respondent, they held-

"As the dominant requirement in the election is the number of votes cast in each of the States, 'two-thirds State' would by synonymous with two-thirds of the total votes cast in that State and not the physical or territorial area of such State. It is not disputed that the 1st Respondent, Alhaji Shehu Shagari scored 25% of the total votes cast in twelve States...But in order to succeed he must also score in addition 25% of the total votes cast in the remaining two-thirds State.

This might be in Kano State where the first Respondent scored 19.94% of the total votes cast in that State...The question therefore is:-What then is the total votes in two-thirds of Kano State? The obvious answer is 813,842. A quarter or 25% of those votes will then be 203,460.5 votes. According to Exhibit T2, the total votes scored by the 1st Respondent is 243,423, which is obviously more than one-quarter of the votes cast in two-thirds of Kano State. In the circumstances we are satisfied that the 1st Respondent has satisfied the provisions of Section 34A(1)(c)(i) and (ii) of the Decree; and we therefore hold that he was duly returned by the 3rd Respondent as duly elected President of the Federal Republic of Nigeria."

The Petitioner was dissatisfied with this decision of the Tribunal and has, as provided under Section 118(2) of the Electoral Decree, aforesaid, appealed to this Court. There were filed in all, after leave to argue additional grounds of appeal, sought by the Appellant's counsel, has been granted, nineteen grounds of appeal, but six of these were abandoned during the hearing of the Appeal. The Appellant was represented by Mr G. O. K. Ajayi, S.A.N. who was assisted by 20 other counsel on the first day of hearing, and 24 on the following day, while the 1st Respondent was represented by Chief R. O. A. Akinjide, S.A.N. and Dr Mudiaga Odje, S.A.N. These two were assisted by six other counsel on the first day of hearing and by ten on the second day. The second and third Respondents were represented by Mr S. S. A. Ojomo and Mrs R. A. Osijo both of the Federal Ministry of Justice. Two issues arose in the arguments of learned Counsel and they are-

(1) the interpretation to be placed on Section 34A(1)(c)(ii) of the Electoral Decree 1977 No. 73, and

(2) the effect of Section 111 of the Electoral Decree on the matter in the event of the interpretation placed on Section 34A(1)(c)(ii) aforesaid, by the Tribunal, being wrong.

I will consider the first issue, that is, the interpretation of Section 34A(1)(c)(ii) of the Electoral Decree first.

Mr Ajayi submitted on this point that a State, as used in the Electoral Decree, is a territorial unit and in respect thereof, it has an artificial corporate personality like other persons. It has rights and obligations and it can own property. A State, learned Counsel went on, is indivisible. Learned Counsel conceded, however, that one could fractionalise a State but only for certain purposes. But then the fractionalisation must be in regard to the physical territorial area. One could also divide a State, learned Counsel further submitted, into the number of local government areas therein. Mr Ajayi referred the Court to the provisions of the States (Creation and Transitional Provisions) Decree 1976 No. 12, which created for Nigeria nineteen States and submitted that the States thus created were defined by reference to specific land areas. A State under the Constitution has its Legislature as well as its Executive Authority. For the purpose of ascertaining the result of an election by counting the votes as provided for, under the Electoral Decree, it was learned Counsel's submission that a State cannot be fractionalised. When Section 34A (1)(c)(ii) used the word "Each", learned Counsel said, it must mean a whole particular State.

Mr Ajayi next dealt with what he termed the intention of the Legislature in enacting Section 34A(1)(c)(i) and (ii) of the Electoral Decree. He said a person to be elected as President must not only win a majority of the votes cast, he must also win a percentage of votes from a geographical spread, which has to be measured by a quantum of States. If one has to fractionalise a State for the purpose of votes, one must be able to ascertain the physical area of such fraction. But this is not provided for under the Electoral Decree. Counsel urged that there are more than one possible two-third areas in Kano State and it was for FEDECO to delimit for the purpose of the election, if it has so desired, two-thirds of Kano State. As matters stand, however, there is no means by which one could delimit two-thirds area of Kano State.

When asked what the FEDECO should have done in a case of such impossibility, Mr Ajayi replied that the FEDECO should have used the figure "13" in computing two-thirds of all the nineteen States in the Federation.

Learned Counsel then dealt with a question posed by the Tribunal to itself. The Tribunal had asked-"what then is the total votes cast in two-thirds of Kano State?" This the Tribunal answered as being 813,842. It was Mr Ajayi's submission that that figure has no relation with what was actually counted as provided for by Section 34 of the Electoral Decree. The figure has not been ascertained as representing any votes cast in respect of any particular two-thirds area of Kano State as there has been no evidence at all of any delimitation of any two-thirds area of Kano State or counting of votes in such area.

Counsel submitted that where there is impossibility, a reasonable interpretation must be sought and, that reasonable interpretation which the 3rd Respondent should have used, is that "two-thirds of all the States in the Federation" for the purpose of the Electoral Decree are thirteen States.

Another submission by Mr Ajayi is as regards the method of obtaining a proportion of the total votes received by the 1st Respondent in Kano State as against two-thirds of all the votes cast for all the candidates in that State. Learned Counsel submitted that by the Tribunal taking a figure which, admittedly represented two-thirds of the votes cast in the whole of Kano State as basis for the proportional exercise, they have discounted one-third of the total votes cast for all the candidates in Kano State. Yet they did not discount one-third of the votes cast for the first Respondent in completing the exercise.

The Tribunal's explanation for this was that "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. Learned Counsel complained that what the Tribunal did could not be a just exercise. To be correct, they would have had to use the same percentage for the votes cast for the first Respondent in finding a proportion of that against the total score in the State as they used for that total score. To bring out his point more clearly, Mr Ajayi submitted that on the figures used by the Tribunal, then Alhaji Aminu Kano, one of the Presidential candidates, must have scored more than 100% of the votes in that State! Actually, what the Tribunal did was to take two-thirds of all the votes cast in Kano State as a base but one hundred per cent of the votes cast for the first Respondent as a means of working out a proportion. It was by this act that the first Respondent was able to have more than 25% of the votes cast in "two-thirds" of Kano State.

In reply to the submissions made by Mr Ajayi, Chief Akinjide agreed that the real issue is the correct interpretation of Section 34A(1)(c)(ii) of the Electoral Decree (supra). The appellant, learned Counsel said, has conceded that the ordinary interpretation is that of the ordinary meaning of the words used and that there is no ambiguity in the sub-section. Counsel further submitted that-

(a) the dominant word in that sub-section is the word "Votes";

(b) the sub-section prescribes the exact criteria and precise qualification for the election of President; and

I will refer to all these three later.

Chief Akinjide then made submissions on the construction of the words in the sub-section. He said that the words-

"He has" mean "the candidate possesses or obtains."

"not less than" has nothing to do with the fraction "one quarter." The words not less than one-quarter mean one-quarter or more than one-quarter.

"of the votes" mean "of the votes" and there is no dispute about these words.

"in each of" qualify the figure one obtains when one has divided the figure of '19' by two-thirds. The words do not qualify "states".

It was learned Counsel's further submission that the fraction "two-thirds" has been used because the lawmaker intends the ratio to be constant, whether more States are created or not in future in the country. The lawmakers of the States (Creation and Transitional Provisions) Decree 1976 No. 12 are the same lawmakers of the Electoral Decree and so in providing for two-thirds of all the States they knew they were providing for two-thirds of nineteen States.

Counsel submitted that the whole country was one constituency for the purpose of the Presidential election and States were brought in for the purpose of collecting and counting votes.

The President, learned Counsel went on, must possess a wide geographical spread which has to be measured by the votes in the States. The States are the smallest possible units. The votes scored by the 1st Respondent in the 13th State, that is, Kano, amount to geographical spread. Chief Akinjide submitted that when there are more than one possible interpretations placed on a provision, one should take the easiest, provided it would not be unjust, deprivative, or put more burden on the person concerned. Counsel maintained that if the lawmaker wanted all the votes in the 13th State to be taken into account the Decree should have said so. Learned Counsel then referred the Court, as means of comparison, to the Companies Decree 1968, No. 51, Schedule 1, para 39. That Decree provides-

"At the first annual general meeting of the Company, all the Directors shall retire from office, and at the annual general meeting in every subsequent year one-third of the Directors for the time being, or, if their number is not three or multiple of three, then the number nearest one-third, shall retire from office."

Chief Akinjide also referred to the case Magor v. St. Mellons R.D.C., 1952 A.C. 189, 190.

On the question of scaling down the figure obtained by the 1st Respondent in Kano State correspondingly in proportion with two-thirds total taken of all the votes cast for all the candidates in that State, Chief Akinjide said the important thing was the language of Section 34A(1)(c)(ii) of the Electoral Decree. To ask that the score of the 1st Respondent be scaled down is an indirect way of saying that two-thirds of all the States in the Federation should be thirteen.

Mr Ojomo for the 2nd and 3rd Respondents associated himself with the submissions of Mr Akinjide.

Mr Ajayi in reply said he agreed with Mr Akinjide that to take two-thirds of the votes in all the nineteen States as a means of determining the result of the election would be wrong. It follows, counsel submitted that one could not take two-thirds of the votes cast in Kano State as equivalent of two-thirds of that State.

Counsel wound up by submitting that while paragraph (i) of Section 34A(1)(c) of the Electoral Decree requires that the candidate should score the highest number of votes, paragraph (ii) of the sub-section required that the candidate, to be elected, must carry with him two-thirds of all the States in the Federation by scoring one-quarter of the total votes in each of such States. Paragraph (ii) which deals with geographical spread is not subordinate to paragraph (i) which deals with majority votes, counsel concluded.

Now, it has been rightly admitted by all the counsel hereto that the important thing for the determination of this appeal is the interpretation to be placed on Section 34A(1)(c)(ii) of the Electoral Decree. Before one considers the interpretation to be placed on that sub-section, it is pertinent to observe that all counsel also accept that the ordinary meaning of the words used in the sub-section should be applied.

There are some facts which are definitely not in dispute in this case, and they should be stated now-

(1) That by the States (Creation and Transitional Provisions) Decree 1976 No. 12, Nigeria was divided into 19 States.

(2) That the same legislator, that is, the Federal Military Government, which enacted Decree No. 12 of 1976 also enacted the Electoral Decree under reference.

(3) That at the Presidential election, subject matter of this appeal, the 1st Respondent, apart from scoring the highest number of votes had not less than 25% in twelve States.

(4) That in the 13th State, that is Kano State, the 1st Respondent scored 19.94% of the total of all the votes cast for all the five Presidential candidates in that State.

For the President to be deemed elected, where there are more than two candidates, he requires, in addition to scoring the highest number of votes-

"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 question is what are "two-thirds of all the States in the Federation" in the context of the Decree? There is no problem about the first twelve States. The real issue of the appeal is surrounded with the 13th State, that is, in this case, Kano State. For the purpose of interpreting Section 34A(1)(c)(ii) of the Electoral Decree, the questions to be answered must be-

(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 has been so ably defended by Chief Akinjide) "synonymous with two-thirds of the total votes cast in the State and not the physical or territorial area of the State"? or

(iii) should the 13th State be the whole of Kano State-territorial and physical as Mr Ajayi contended?

These, to my mind are in fact the real issues to be resolved in this appeal.

It is my view that in all cases of interpretation of statutes, the interpretation should be according to the intent of them that made them. This has been recognised since the 17th century in the time of Lord Coke (see Coke 4 Inst. 330). In the instant appeal, however, there is no controversy about seeking an interpretation according to the intent of the legislator. For the Tribunal itself said, and I fully endorse their statement-

"We venture to say that if such situation arises in any case, the court should do nothing more than to give effect to the intention of Parliament as expressed in the plain and unambiguous words of the Statute."

(underlining mine)

This Court, in Animashaun v. Osuma & Ors, 1972, All N.L.R. 363, at pp. 372-373, a case also relied upon by the Tribunal has also said-

"It is one of the established canons of construction that no gloss should be put on any of the words used. The function of the Court is to ascertain what the parties meant by the words which they have used... In ascertaining what the parties meant, the court must declare the meaning of what is written in the instrument, not what was intended to have been written.

(underlining mine)

Further, it is an accepted canon of interpretation that a Statute must be construed ut res magis valeat quam pereat, so that the intentions of the legislature may not be treated as vain or left to operate in the air.

"The rules for the construction of statutes" said Bowen L.J. "are very like those which apply to the construction of other documents, especially as regards one crucial rule, viz. that, if it is possible, the words of a statute must be construed so as to give a sensible meaning to them. The words ought to be construed ut res magis valeat quam pereat" see Curtis v. Stovin (1889) 22 QBD as per Bowen L.D. at p517.

Again, a statute should not be interpreted to lead to manifest absurdity; injustice and inconvenience. All these should be avoided. "The general rule" said Willes J. in Christopherson v. Litinga (1864) 33 L.J.C.P. 121 at p. 123" is to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance."

Indeed, in interpreting the provision of Section 34A(1)(c)(ii), the learned Tribunal was conscious of the rule against absurdity. They said-

"Considering the words used in the sub-section again we are satisfied that they are plain enough and unambiguous. Fortunately the Petitioner and both counsel for the Respondents agree with this view. Hence to apply them as provided by the legislature will not in our view create any absurdity."

And so, to go back to the three questions which I have earlier posed for the purpose of interpreting Section 34A(1) (c)(ii).

The first question is, should two-thirds of Kano State mean, under the Decree, two-thirds of the physical or territorial area of the State? I intend to use the canon of construction which was applied by the Tribunal itself and which was accepted by all the sides to this appeal. Mr Ajayi has submitted that a State, as used in the Decree is a territorial unit. This is true but I have no doubt that, for some purposes, a State could be divisible. A good example is in the States (Creation and Transitional Provisions) Decree itself. Section 1 provides-

"There shall on the commencement of this Decree be created States to be known by the names in Column 1 of the Schedule to this Decree the respective areas of which shall be those provinces divisions or districts named in Column 2 of that Schedule and the capitals of which shall be those respectively named in column 3 of that Schedule."

(underlining mine)

By section 6 of the Decree there were nineteen States and the Constitution of the Federation was amended by substituting these nineteen States with the existing States.

However, what is important is that the Schedule to the Decree specifies areas covered by each State and in regard to Kano, they are-

(1) Kazaure;

(2) Kano North-Central;

(3) Gumel;

(4) Hadejia;

(5) Kano West;

(6) Kano Metropolitan;

(7) Kano South-East; and

(8) Kano South-West.

In other words, Kano State is divided, though not equally into eight divisions/districts. These eight distinct 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, there are eight, 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 of fact and not a matter of 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.

Another example of the indivisibility of a State is to be found in the Electoral Decree itself. For the purpose of electing a Governor, the State is divisible into the number of local government areas constituting the State. Again, these local government areas are not necessarily equal nor is there any provision, either in the Decree, or in any other enactment grouping the local government areas into three equal divisions (see section 34A (5)). And yet a third example is in Exhibit T3. This shows the votes recorded for each of the five Presidential candidates in each of the local government areas of Kano State.

In all these cases, every one of the units to which the State is divisible is a physical territorial unit of the State, identifiable and with known boundaries. And so far for the divisibility of States.

In interpreting the word "State" as a physical concept, one could seek aid in other sections of the Electoral Decree. The Electoral Decree, apart from reference to a State in Section 34A also referred to a "State" in some other sections thereof.

Section 5(3) of the Decree talks of "office in a State" and "registration areas within the State." Section 18(3) makes reference to "senatorial districts and the other constituencies within the State."

These are physical territories. 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 the other sections of the Decree and this can only by physical or territorial but not otherwise.

Now, in applying the ordinary grammatical interpretation to Section 34A(1)(c)(ii) of the Decree, one should start, as Chief Akinjide rightly submitted, by examining every word in the sub-section. Before doing that, however, I would like to deal with a very important submission by learned Counsel. Chief Akinjide has submitted that the dominant word in sub-section 34A(1)(c)(ii) is "Votes" and that the word "States" is secondary. The Tribunal also took the same view when they said that the dominant requirement in the election is the number of votes. With great respect to both learned Counsel and the Tribunal, I cannot accept this submission of learned Counsel and the finding of this Tribunal. For, if, as it is agreed, the ordinary meaning should have be given to words in the sub-section, then "State" has been used in contra distinction to votes and the two are not meant to be synonymous. I agree with Chief Akinjide's submission that Section 34A prescribes the exact criteria and precise qualification for the election of the President. What then are these criteria? Section 34A requires that for a candidate to be deemed elected, he shall scale two distinct hurdles-

(i) He shall have, where there are more than two candidates for the election, like the one under examination, the highest number of votes cast at the election; and

(ii) he shall 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.

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 what in fact Chief Akinjide has described as, a wide geographical spread. In my respectful view 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 sub-section specifically states that the votes should be cast IN that quantum of States.

It is to be noted that the legislature attaches the utmost importance to this territorial spread. It is in fact made applicable to every instance of Presidential contest. Where there is even ONLY one candidate, under Section 34A(1) (a), the candidate, though "being the only candidate nominated for the election, must, apart from having

(i) a majority of Yes votes over No votes cast at the election, also have

(ii) 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.

There is the same prerequisite where there are only two candidates. And so, whether the Presidential candidate has no rival, one rival or more than one rival in the contest, he cannot be deemed elected until those two conditions have been satisfied. These are the criteria specifically prescribed by legislation without one being sublimated to the other.

In my respectful view therefore, the number of the 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 of votes or the highest number of votes as the case may be, and secondly, to determine the extent of his territorial support. This extent could only be known from the quantum of physical states wherein he has scored more than 25% of the total votes. And the Law prescribes such quantum. And so, with great respect to learned Counsel for the Tribunal, 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 than 12? physical States.

The next question is how the Returning Officer is to determine two-thirds of the physical area of the 13th State, that is, Kano in the instant case. It is here the intention of the lawmaker should be examined for it is here the issue of the interpretation of the sub-section really arises.

Though, as Chief Akinjide submitted, Section 34 introduced a fraction-that is, two-thirds, no State in the Federation (including Kano), as I have earlier said, has, under the Electoral Decree, or any other legislation for that matter, been grouped into three equal physical areas. Nor did the FEDECO in any known exercise group any State into three physical areas for the purpose of the election. The only material before the Returning Officer for the purpose of this Appeal is the units of the local government areas of Kano but this is of no help as there is nothing to assist in grouping these local government areas into three equal parts.

So what could be the number in the intention of the lawmaker 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 that it would take at least one year, in the absence of a computer to declare the result of a Presidential Election. The Returning Officer must, in the intent of the legislator, be a simple man with ordinary common sense. He is definitely not a student of, what one of the witnesses referred to as

"representation of geometrical problem by mathematical graphics, and mechanical vibrations."

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 the work he is given to undertake is, in the words of William Shakespeare, (Richard II Act II Scene II)

"numbering sands and drinking oceans dry."

In that case, to expect him to find two-thirds of Kano State physically for the purpose of the election will lead to manifest absurdity.

The next question is, faced with this, how is FEDECO to compute the words-in each of at least two-thirds of nineteen States?

Answer:

Once it is accepted-

(1) that the word "State", used in the sub-section, means a physical territorial area;

(2) the Legislator of the Electoral Decree was aware there are nineteen States in the Federation before making the Decree;

(3) 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;

(4) it is impracticable and absurd to use the permutations and combinations of the local government areas to get units of three or multiples of three;

(5) the FEDECO itself, conscious of its responsibility, never divided States into units of three or multiples of three; and

(6) 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,

The obvious thing the FEDECO and the Returning Officer should do, and my unhesitating answer to the question, what should they do, is to interpret the words "in each of at least two-thirds of nineteen States" to mean in each of at least 13 States.

This, with the greatest respect, can be the only intention of the Legislator. And so, 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."

Chief Akinjide, I have said, drew the attention of the Court to the Companies Decree 1968 No. 51, First Schedule, paragraph 39 of "Articles of Association Preceding Memorandum of Association" which is the form prescribed by Section 13 of the Decree. I have already set out the provision of the form. Chief Akinjide submitted that it the lawmakers wanted the votes in all the 13 States to be taken into account or if they want an approximation either by lowering or raising the figure, they would have said so.

Firstly, apart from the Directors in the Companies Decree aforesaid being legal persons, they are human persons and it is inconceivable that human beings should be dismembered fractionally for the purpose of retiring from office. But, more importantly is the fact that the Electoral Decree, Section 34A(1)(c)(ii) comes into construction principally because those words of approximation are absent. It is the very reason that all concerned including the Tribunal and this Court are seeking to find the intention of the Legislator from the words used in the enactment. If there has been a proviso, there would probably have been no problem whatsoever but what happens where there is not such proviso. An end is not put into the matter. The only logical thing one does is to construe the provision by seeking the intention of the lawmakers from the words he has used in the enactment making sure the interpretation does not lead to absurdity. With respect, it is that interpretation I have just completed by answering the question which I earlier posed-"Under the Decree, should two-thirds of Kano State mean two-thirds of the physical area of Kano State?"

I cannot find any other logical interpretation besides the one I have just given as I find every other one to be illogical and, with great respect, leading to absurdity. It is this absurdity, I believe, the Tribunal tried to circumvent in giving their own interpretation which makes "two-thirds state synonymous with the two-thirds of the total votes cast in Kano State and not the physical or territorial area of such state.

This brings me therefore to the second question which I have posed, that is "should two-thirds of Kano State be, as the Tribunal has held... synonymous with two-thirds of the total votes cast in that State" and not the physical or territorial area of the State?

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 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. I have already referred to the States (Creation and Transitional Provisions) Decree 1976, some provisions of the Electoral Decree making reference to States, where States could only be defined by reference to physical and territorial areas.

If the literal meaning of the words used in Section 34A(1)(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 prerequisite of the election of the President which requires 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. We would then have a case where the candidate shall be deemed duly elected it-

(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 in twelve physical States plus one-quarter of two-thirds votes cast in the thirteenth State but not even in two-thirds of the physical area of the State.

Surely, in my view, this is not what the Decree says or is meant to say. Why, for instance, should one measure the thirteenth State by votes and not by physical territory as it has been done with the first twelve States? Why should there be a discriminatory interpretation when it comes to the thirteenth State? It is my view, with respect, 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 twelve States, and vice versa. Failing this, it spells injustice!

Indeed, it appears to me that what the Tribunal did was to try to adopt the canon of interpretation, which neither party urged, and which the Tribunal itself earlier rejected-that is, "purposive" interpretation. 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, in my humble view, give the same word, even in the same section of the 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 State" with "two-thirds of the total votes cast in that State" and not the physical or territorial area of such State.

In Stork v. Frank Jones (Tripton) 1978, 1 W.L.R. 231, a case which the Tribunal itself relied upon, Viscount Dilhorne said-

"If it were the case that it appeared that an Act might have been better drafted, or that amendment to it might be less productive of anomalies, it is not open to the court to remedy the defect. That must be left to the Legislature. It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do..."

If it is 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, as has already been shown, 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 in my respectful opinion amounts to an amendment of the legislation. This Court, as per Bairaimian J.S.C., said in Okumagba v. Egbe (1965) 1 All N.L.R. 62, at p.65-

"but amendment is the function of the legislature, and the courts cannot fill a gap which comes to light by altering the words of a regulation to make it read in the way they think it should have been enacted the office of a judge is jus dicere not jus dare."

(underlining mine)

The Tribunal did not even stop there. I went on and took the figure which represents two-thirds of all the votes cast in Kano State and then compared it, for the purpose of finding a proportional score by the first Respondent with one hundred per cent of the score of that Respondent. In other words, when it discounted the total votes scored by one-third it did not discount the votes cast for the first Respondent at all before using the two figures for purpose of simple proportion. With respect, this is falling into more errors.

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 total 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. It is, in my respectful view, the only way of finding a correct simple proportion. To scale down the total votes obtained by one-third 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 first Respondent less than the responsibility he has to perform under the Decree!

I think, with respect, the Tribunal fell into that error because their premise is faulty. They made the number of votes the dominant requirement. As I have said earlier, they have ignored an equally important requirement-geographical spread measured only by a quantum of States. These are the criteria for the election of the President as provided by Law, unambiguous in their provisions.

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 scored more than 100% of the total votes in Kano State! With deep respect, this can never be right. Again, if the Tribunal is right and two-thirds State 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 nineteen States. Learned Counsel, Chief Akinjide saw the fallacy and said this could not be a right way of calculating the 12 2/3 States. I respectfully agree with him. If it is so, and, that is, if the Tribunal is right, and two-thirds votes cast in each of the nineteen States are taken as the basis, a candidate, to qualify, must have his twenty-five per cent of the two-thirds votes scored in every one of the nineteen States. If he scores less than twenty-five per cent in any one State in such circumstance, he fails. The importance of this however is that the 1st Respondent will, by this method be in a worse position than he is now, for having regard to Ex. T2, while he would score more than 100% in some States, he would not score up to 25% of the two-thirds in seven States!

It seems to me clear therefore that the interpretation placed on the sub-section by the learned Tribunal cannot be right.

And so, having thus disposed of the first two questions, the answer to the third question-should the words "in each of at least two-thirds of all the States in the Federation" mean in the context of the Decree, 13 States-is obviously yes. As I have said earlier, the intention of the Legislature can only be that the one-quarter of the votes should be sought in at least thirteen States.

It is granted that the whole of the Federation is one constituency for the purpose of the Presidential election and what the candidates go out for is to obtain votes. But the prerequisites to being deemed to be elected President whether there is one or more candidates are also very clear. There must be a majority of votes plus a percentage score in a geographical spread to be measured only by States. And as I have already said, the word "State" in the Electoral Decree and also in the States (Creation and Transitional Provisions) Decree 1976 refers to physical territorial areas. The legislator cannot contemplate fractionalising a State for the purpose of Section 34A(1)(c)(ii) of the Electoral Decree when the only provision made in the Decree for units or fractions of a State is in regard to local government areas which do not admit of easy mathematical permutations or combinations to obtain three equal parts. The legislator knew there were nineteen States in the Federation before making provision for two-thirds of the nineteen States and he must be presumed to know what he was doing when he did not also provide for three or a multiple of three equal mathematical groupings of the known units in a State.

It is for all these reasons that I come to the inevitable conclusion that when the sub-section provides-

"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."

it requires not less than one-quarter of the votes cast at the election in each of at least thirteen States in the Federation, and for the same reasons that I also find myself in very respectful disagreement with the reasoning and the conclusion in the majority judgment of this Court just read by my Lord Chief Justice.

I hold therefore that the 1st Respondent did not satisfy the provision of Part II of the Electoral Decree 1977 to wit: Section 34A(1)(c)(ii).

The Respondent's learned Counsel has also raised the point that even if, as I have found, the Respondent has not complied with Part II of the Electoral Decree, the election was conducted substantially in accordance with provisions of the said Part II and his election should not be invalidated.

Section 111(1) reads-

"An election shall not be invalidated by reason of non-compliance with Part II of this Decree if it appears to the Tribunal having cognisance of the question that the election was conducted substantially in accordance with the provisions of the said Part II and that the non-compliance did not affect the result of the election."

The Tribunal, in regard to this point, said-

"It was averred in paragraph 6 of the Reply of the 1st Respondent that the election was conducted in actual compliance, or alternatively in substantial compliance with the provisions of Part II of the Decree and that non-compliance (which the 1st Respondent denies) does not affect the result of the election. There is nothing in the Petition which alleges that the election was not conducted in substantial compliance with any other portion of Part II of the Decree apart from the averment in Paragraph 6 of the Petition which we have already dealt with. Even the Petitioner did not make any submission on this point in his address before us. Although Chief Akinjide addressed us on this point, in view of the decision we have already reached, and the attitude of the Petitioner, to the point raised in that paragraph, we consider it unnecessary to deal with the matter."

Although the Tribunal did not deal with the matter and there is no cross appeal on it by the Respondents, we, nevertheless, asked learned Counsel to address us on the point having regard to its importance.

Perhaps it would be necessary to state a short history of the provision of Section 111 of the Electoral Decree. The case of Coker v. Oyalowo (supra) was in regard to Regulation 116(1) of the Parliamentary and Local Government Electoral Regulations, 1955 W.R.L.N. 266 of 1955. The Regulation provides-

"116 (1) An election shall not be invalidated by reason of non-compliance with these regulations if it appears to the Court having cognisance of the question that the election was conducted substantially in accordance with the principles of these regulations, and that non-compliance did not affect the result of the election."

It is to be noted here that "the substantial conduct of the election" was meant to be in accordance with the principles of the regulations and not necessary the exact provisions of the regulations. This regulation would appear to have been modelled on the English statute of 1872, viz: the Ballot Act 1872 (Parliamentary and Municipal Elections Act). This Act revolutionalised the system of voting at elections in England. It abolished the previous common law system of election by show of hands which was disgraced by abuses of every conceivable kind, and introduced vote by secret ballot prescribed forms and rules and made provision for non-compliance with the rules.

Section 13 of the Act provides:

"(13) No election shall be declared invalid by reason of non-compliance with the rules contained in Schedule 1 to this Act, or any mistake in the use of the forms in Schedule 2 to the Act, if it appears to the Tribunal having cognisance of the question that the election was conducted in accordance with the principles laid down in the body of this Act, and that such non-compliance did not affect the result of the election."

The English Act of 1872 also talks of conduct in accordance with principles laid down in the Act like the Nigerian Electoral Regulations of 1955. One difference between the two is, however, that when the Nigerian Regulation provides for conduct substantially in accordance with the principles, the English Act omits the word "substantially."

However in England, in 1949, the question of conduct in accordance with the principles laid down in the Act gave way to conduct "as to be substantially in accordance with the law as to elections." Section 37 of the Representation of the People Act 1949 (12 and 13 Geo.6c.68) provides:

"37 (1) No local government election shall be declared invalid by reason of any act or omission of the returning officer or any other person in breach of his official duty in connection with the election or otherwise of the local government rules if it appears to the tribunal having cognisance of the question that the election was so conducted as to be substantially in accordance with the law as to elections and that the act or omission did not affect its result."

The difference between this provision and Section 111 of the Electoral Decree is that when the Electoral Decree talks of non-compliance it is a wide one. It is non-compliance with Part II an obviously wider provision than the provision with non-compliance in the English statute which is limited to "any act or omission of the returning officer or any other person in breach of his official duty in connection with election." However when it comes to the provision of conduct of the election, the provision in the Nigerian Decree is in pari materia with the English Act. The Nigerian Decree provides:

"...that the election was conducted substantially in accordance with the provisions of...Part II..."

while the English Statute provides in respect thereof

"...that the election was so conducted as to be substantially in accordance with the law as to elections..."

This similarity is important for as I intend to show what has been questioned by the Appellant in the conduct of the election in that Section 34A(1)(c)(ii) has not been complied with. The question of principles laid down in the law or regulations has disappeared in both countries. The conduct is either substantially in accordance with the law or not, certainly not just with the principles thereof. As Stephenson L.J. put it:

"Gone are the principles laid down in the body of the Act and in their stead is substantial accordance with the law"-see Morgan v. Simpson (1975) 1 Q.B. 151 at p.167.

In that case, Lord Denning M.R. in interpreting section 37 of the Representation of the People Act 1949 laid down the following propositions:

"(1) If the election was conducted so badly that it was not substantially in accordance with the law as to elections, the election is vitiated, irrespective of whether the result was affected or not...

(2) If the election was so conducted that it was substantially in accordance with the law as to elections, it is not vitiated by a breach of the rules or a mistake at the polls-provided that it did not affect the result of the election.

(3) But even though the election was conducted substantially in accordance with the law as to elections, nevertheless if there was a breach of the rules or a mistake at the polls-and it did affect the result-then the election is vitiated."

-ibid p. 164

Stephenson L.J. said:

"This construction seems to be in accordance with the common law and common sense and with the decisions that an election which is conducted in violation of the principles of an election by ballot is no real election and should be declared void, even though it may not, or could not have affected the result."

-ibid p.167

As I have said what the appellant questioned in this instant case is the conduct of the election.

If the first Respondent has not satisfied Section 34A(1)(c)(ii) in that 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 then Section 34A(3) prescribes that the Electoral Commission shall, within 7 days, of the result of the elections held under the sub-sections, arrange for an election by electoral college. The election is no longer by the first electorate of popular votes all over the country. The Electoral College is specified as being composed of:

(a) "all persons who were elected to the Houses of National Assembly ..." and

(b) "all persons who were elected to the House of Assembly of every State in the Federation."

Until the result of this election by the second electorate is known there is no election yet of the President. "The candidate who has a simple majority of all the votes cast at such election" is to be deemed to have been duly elected.

In my respectful view, 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 the election in accordance with the appropriate provisions of the Decree. And as Irvin J., said in Coker v. Oyalowo supra, p.165, it is well settled that the words "the result of the election" means success of one candidate over others.

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. 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 that 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.

It is for all these reasons I find myself in respectful dissent from the majority judgment of this Court just read by my Lord Chief Justice.

The sum total of this is that the Appeal of the Petitioner succeeds and it is hereby allowed. The decision of the Tribunal including its order as to costs is hereby set aside. The Appellant is entitled to his first relief which is hereby granted. Costs of this Appeal in favour of the Appellant are assessed at N300.00 against the first Respondent and N150.00 each against the 2nd and 3rd Respondents respectively.

Costs in the Tribunal are assessed in favour of the Appellant at N750.00 against the 1st Respondent and N100.00 each against the 2nd and 3rd Respondents respectively.

Nigeria LII

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