By Sylvester Udemezue (udems)
![image](/2021/03/sjk.jpg")
Background
![image](/2021/01/payne-alex.jpg")
A question from one of my students, a Hardworking Learning
Colleague (HLC) on March 10, 2021 at 01.14pm went thus:
“Good afternoon, sir. I hope you`re good. There is a
difference between section 272(3) [of the Constitution] as
interpreted in your slide and section 272 (3) in my [own copy of
the] 1999 Constitution, reprint 2018. Sir, which one should I
follow? Thank you, sir”.
The present commentary is an open answer to my said student, an
opinion to the reading public, a charge to Government printers and
proofreaders, and, finally, a piece of counsel to distinguished
members of the National Assembly.
In its original form, the Constitution of the Federal
Republic of Nigeria, 1999 provides in section 239 (1) that “Subject
to the provisions of this Constitution, the Court of Appeal shall,
to the exclusion of any other court of Law in Nigeria, have
original jurisdiction to hear and determine any question as to
whether – (a) any person has been validity elected to the office of
President or President; (b) the term of office of the President or
the Vice-President has ceased; or (c) the office of President or
Vice-President has become vacant”. By these provisions, the
Court of Appeal becomes clothed with exclusive jurisdiction to hear
and determine elections petition relating to the office of the
president or Vice-President, that is, whether any person has been
validity elected to the office of President or President. The
Presidential Election Petition Tribunal (PEPT) for Nigeria is the
Court of Appeal.
However, the Constitution did not make it clear which court should
have jurisdiction to hear and determine disputes bothering on (i)
whether the office a Senator, a member of the House of
Representatives or a member of a House of Assembly has become
vacant or (ii) whether tenure of office of a a Senator, a member of
the House of Representatives, a member of a House of Assembly of a
State or a Governor or Deputy Governor of a State has ceased. It
was this lacuna/mischief, among others, that the Constitution of
the Federal Republic of Nigeria (First Alteration) Act, 2010 (the
first amendment to the 1999 Constitution) came to cure
Section 27 of the Constitution of the Federal Republic of
Nigeria (First Alteration) Act, 2010, whose Marginal Note is
“Alteration of Section 251”, provides:
“Section 251 of the principal Act is altered by inserting
immediately after the existing subsection (3) a new subsection
“(4)” —
(4) The Federal High Court shall have and
exercise jurisdiction to determine any question as to whether the
term of office or a seat of a member of the Senate or the House of
Representatives has ceased or his seat has become vacant”.
It must be recalled that all provisions of sections
249, 250, 251, 252, 253 and 254 in Part 1C of Chapter VII
of the said “principal Act” (that is, the Constitution of the
Federal Republic of Nigeria, 1999) deal/relate exclusively with the
“Federal High Court”.
Section 28 of the Constitution of the Federal Republic of
Nigeria (First Alteration) Act, 2010, whose Marginal Note is
“Alteration of Section 272”, provides:
“Section 272 of the principal Act is altered by inserting
immediately after the existing subsection (2) a new subsection
“(3)” —
The Federal High Court shall have and exercise
jurisdiction to determine any question as to whether the term of
office or a seat of a member of the House of Assembly of a State ,
a Governor or Deputy Governor has ceased or become vacant”.
It must equally be recalled that all provisions of sections 270,
271, 272, 273 and 274 in Part 2A of Chapter VII of the said
“principal Act” (that is, the Constitution of the Federal Republic
of Nigeria, 1999) deal/relate exclusively with/to the “High Court
of a State”, the implication of this being that no provisions of
any of the named sections has anything to do with any court other
than the High Court of a State. This being the case, the provisions
of section 272 and all amendments thereto have to do with only the
High Court of a State. Accordingly, reference to “Federal High
Court” in the new section 272 (3) ought to be seen as a mere
typographical error of transposition or a mere slip by the affected
Legal Draftsman, the Government Printer of the Proofreader. The
makers of the Constitution and of the First alteration must have
intended in section 272(3) to write “High Court of a State” and not
“Federal High Court”. This is so, I think, especially in view of
the fact that the new section 251(4) has already made provisions
similar to those in section 272(3), to capture similar jurisdiction
of the Federal High Court in respect of a member of the Senate or
of the House of Representatives. Section 272(3) must therefore be
taken to be targeted at conferring on the High Court of a State
(with respect to a member of the House of Assembly of a State, or a
Governor or Deputy Governor of a State), jurisdiction similar to
that conferred on the Federal High Court by section 251(4).
In view of the above, the appropriate interpretation for
sections 251(4) and 272(3) should be as follows,
respectively:
a) Section 251(4): The Federal High Court shall
have jurisdiction to determine whether the office of a Senator or
of a Member of the House of Representatives has become vacant or
whether the seat of a Senator or a Member of the House of
Representatives has become vacant.
b) Section 272(3): The High Court of a State
shall have jurisdiction to determine whether the office of a member
of the House of Assembly of a State or of the Governor or Deputy
Governor of a State has become vacant or whether the seat of a
member of the House of Assembly of a State or the Governor or
Deputy Governor of a State has become vacant.
Relevance of the Golden Rule of Statutory
Interpretation
The Golden Rule, which is a modification of the Literal Rule of
Statutory Interpretation, appears relevant here. Emphasis of the
literal rule is usually on deciphering the literal meaning of a
word or words used in a statute; the rule is usually less concerned
about whether such literal application may lead to ambiguity and
absurdity. The golden rule thus tries to give an interpretation
that avoids such anomalous and absurd consequences that may
sometimes arise from literal interpretation. Accordingly, where
literal interpretation may lead to ambiguity or absurdity, the
literal meaning of such words is usually modified or avoided in
order to get at the original intention of the framers of the
statute with a view to delivering justice. This rule of
interpretation aims at giving effect to the spirit of the law
because being carried away by mere mechanical and grammatical
meaning may not lead us to the justice of the situation. In the
instant case, it is obvious that sticking to the word “Federal High
Court” which had mistakenly found its way into the provisions of
section 272(3) CFRN, 1999 would obviously deprive the “High Court
of a State” an opportunity to adjudicate in disputes pertaining to
whether the office of the Governor or Deputy Governor of a State or
of a member of the House of Assembly of a State, has become vacant
or whether the tenure of office of any of the named persons has
ceased, and this may negate the intention of the makers of the
constitution who in the First Alteration had set out to reserve
such jurisdiction, albeit not not exclusively, for the High Court
of a State.
Purposive Interpretation to the Rescue
Explaining the import of the purposive rule of interpretation ,
the Supreme Court in Marwa v Nyako (2012)
LPELR-7837(SC) explained (Per ADEKEYE, J.S.C (pp. 171-172, paras.
D-A) by way of emphasis, that the objective of the purposive
approach is to give effect to the legislative
purpose of the enactment by interpretation of the words to
accord with such purpose. After all, said the apex court, the law
of statutory interpretation is clear that Courts invoke their
interpretative jurisdiction to vindicate the intention of the law
makers. The Courts cannot plant their judicial mind or thoughts in
place of the intention of the lawmakers. See also A-G
Lagos State v. Eko Hotels Ltd. (2006) 18 NWLR (Pt.1011)
pg.378. The case of Abubakar v Yar`ardua (2008)
LPELR-52(SC) is more straight to the point in explaining the
usefulness of the Purposive approach to constitution
interpretation. Hear Niki Tobi (p. 113, paras. D-F):
“I should say that the purposive rule of interpretation will
not avail a Judge where the intention of the lawmaker is clear,
precise and unequivocal, so much so that, a person can say “Yes
this is what the lawmaker has in his mind.” The purposive rule does
not allow the Judge to destroy the intention of the lawmaker, in
the language of Lord Denning, “the Judge must not alter the
material at which it is woven, but he can and should iron out the
creases”.
I think all the factor or conditions precedent to resort to
the purposive approach are present in the present case. A look at
the pronouncement of the apex court (per UWAIFO, J.S.C (pp.
180-182, paras. C-B) in Ag Lagos v AG Federation
(2003) LPELR-620 (SC) would help drive this point home:
“The court is entitled to take account of and use such materials
or information which it considers will help it to determine the
true intendment of a statutory or constitutional provision in a
purposive interpretative approach; or which will lead it to assess
the correctness of a meaning it has, through the usual canons of
interpretation, given to such a provision. This is particularly so
of a provision which is either ambiguous or seems to have become
controversial. … In Pepper v. Hart (1993) 1 All ER 42, the House of
Lords took that course. Lord Bridge of Harwich observed at page 50:
“The courts now adopt a purposive approach which seeks to give
effect to the true purpose of legislation and are prepared to look
at much extraneous material that bears on the background against
which the legislation was enacted.” …it was ‘entirely
legitimate for the purpose of ascertaining the intention of the
Parliament to take into account the terms in which the draft was
presented by the responsible minister and which formed the basis of
the acceptance’ (see (1988) 2 All ER 803 at 807, (1989) AC 66 at
112)”.
The Liberal Interpretation Approach Left
Out?
Another true guide/course which can produce stability in
constitutional law is to read the language of the Constitution
itself, no doubt generously and not pedantically but as a whole;
where the question is whether the Constitution has used an
expression in the wider or in the narrower sense, in my view, this
court should whenever possible, and in response to the demands of
justice, lean to the broader interpretation, unless there is
something in the text or in the rest of the Constitution to
indicate that the narrower interpretation will best carry out the
objects and purposes of the Constitution. In Nafiu
Rabiu v. The State (1980) 8-11 SC 130 at pages 148-149,
Udo Udoma, JSC said, “My Lords, it is my view that the approach of
this Court to the construction of the Constitution should be, and
so it has been, one of liberalism, probably a variation on the
theme of the general maxim ut res magis valeat quam pereat. I do
not conceive it to be the duty of this Court so to construe any of
the provisions of the Constitution as to defeat the obvious ends
the Constitution was designed to serve where another construction
equally in accord and consistent with the words and sense of such
provisions will serve to enforce and protect such ends.”
Accordingly, as suggested by Fatai-Williams JSC, in
Adesanya v The President (1981) LPELR-147(SC), when
interpreting the provisions of our Constitution, not only should
the Courts look at the Constitution as a whole, they should also
construe its provisions in such a way as to justify the hopes and
aspirations of those who have made the strenuous effort to provide
us with a Constitution. See also Attorney-General v. Commonwealth
of Australia (1975) 135 C.L.R. page 1 at page 17; AG Federation v.
Abubakar (2007) LPELR-3(SC).
What is an “Error”?
In Olanrewaju v UNILAG (2014)
LPELR-24093(CA), an error was defined (per ABUBAKAR, JCA (pp.
40-41, paras. F-A) as “an assertion or belief that does not conform
to objective reality, is a belief that what is false is true, or
what is true is false, it may simply be regarded as a mistake. See
Blacks Law Dictionary Eighth edition page 585.” In Ibrahim v Gwandu
(2013) LPELR-22838 (CA), the Court of Appeal explained that an
error or mistake “is referred to as something done by a person
which is incorrect or which should not have been done”, See Ugwu v.
Ararume (2007) 12 NWLR (Pt. 1048) 367 at 513, per Muhammad, JSC.”
(Per OGBUINYA ,J.C.A ( Pp. 28-29, paras. F-A). Finally, in Ugwu v
Ararume (2007) LPELR-24345(SC), the Supreme Court said (per TOBI
,J.S.C (p. 44, paras. E-F) of an error or a mistake, that “an error
is a mistake. It is the state or quality of being wrong or
mistaken. Although error is a more formal word in usage than
mistake, they are synonyms.”
How/When Are Errors Deemed Corrected?
There is no doubt that there is an error in section 272(3) CFRN,
1999, when the drafters of the Constitution wrote “Federal High
Court” instead of “High Court a State” as they ought to have
written. The error reflects copiously in the original copy of the
Constitution of the Federal Republic of Nigeria (First Alteration)
Act, 2010 as well as in the harmonized copy of the
“Constitution of the Federal Republic of Nigeria, 1999, as
amended 2018” (incorporating the first to fourth
amendments to the Constitution), as printed by the Government
printer. This error has left on the lips of unsuspecting citizens
and observers, the needless question, is it the Federal Court that
has jurisdiction to hear and determine cases bothering on whether
the office of a member of the House of Assembly of a State or of
the Governor or Deputy Governor of a State has become vacant or
whether the seat of a of a member of the House of Assembly of a
State or the Governor or Deputy Governor of a State has become
vacant? Or should we simply ignore the error and accord the said
section 272(3) an interpretation that reasonably accords with the
presumed intentions of the framers of the Constitution (namely,
replace “Federal High Court” with “High Court of a State) relying
on the Golden Rule, based on my explanation above? Indeed, below is
a hard question: how should this error be corrected, especially
considering the Supreme Court`s observation or admonition in the
case of Husseni v Mohammed
(2014)LPELR-24216(SC) where the court warned that admission of
existence of an error or mistake is not the same as correction of
the error or mistake. Said Hon Justice Sylvester NGWUTA, JSC (page.
22, paras. C-D):
“My noble Lords, the admission of error or mistake is not
synonymous with the correction of the error or mistake. Unless the
mistake identified and admitted, is corrected by laid down
procedure, it persists and will persist as error or mistake
irrespective of a purported correction by the party at
fault.”
Options on How To Correct The Error
Four Options Stare Us in the face:
a) To ignore the noticed typographical error and move on as if
it does not exist nor did it happen. This means, we should
interpret section 272(3) as having awarded the “High Court of a
State” jurisdiction in the mentioned cases. This means interpreting
the “Federal High Court” in section 272(3) as “High Court of a
State”, importing the Liberal, Purposive and the Beneficial methods
of interpretation. Note however that since section 272(3) begins
with the expression “Subject to the provisions of
section 251 and other provisions of this
Constitution…”, any situation of conflict between the
two sections must be resolved in favour of section 251. This could
also mean that awarding jurisdiction to the High Court of a State
in those instances does not preclude the Federal High Court from
exercising jurisdiction over such cases; it is clear from the
wording of section 272(3) that an exclusive jurisdiction is not
contemplated.
b) To allow the Attorney-General of the Federation to intervene
to direct the Government printers to correct the error which is
obviously typographical. Unfortunately, to the best of my knowledge
and honest belief, there is hardly any law enabling the
Attorney-General in this regard. Neither Section 2 of
the Revised Edition (Laws of the Federation of Nigeria) Act, 2007
nor Section 22 (1) of the Interpretation Act, CAP123, LFN,
2004 would be of any help since, respectfully, since
the present scenario which clearly falls outside their
contemplation; both sections cover cases of legislation
inadvertently omitted from compiled Laws of Nigeria. Section 2 of
the Revised Edition (Laws of the Federation of Nigeria) Act, 2007
provides that “any inadvertent omission, alteration, or amendment
of any existing statute shall not affect the validity and
applicability of the statute.” (https://laws.lawnigeria.com/2018/04/23/lfn-revised-edition-laws-of-the-federation-of-nigeria-act-2007/[1]
accessed March 11, 2021). Section 22 (1) of the Interpretation Act,
CAP123, LFN, 2004 provides that “where an enactments amended by the
insertion or omission of words or by the substitution of words for
other words, then on printing the enactment at any time after the
enactment takes effect, the person authorized to print the
enactment shall, if so directed by the Attorney-General of the
Federation, print the enactment as so amended.” (<https://www.lawyard.ng/wp-content/uploads/2016/01/INTERPRETATION-ACT.pdf[2]> accessed March 11,
2021). Accordingly, the Attorney-General has no role to play in
correcting this error.
c) Resort to the cumbersome procedure set out in section
9 of the Constitution.
“(1) The National Assembly may, subject to the provision of
this section, alter any of the provisions of this Constitution. (2)
An Act of the National Assembly for the alteration of this
Constitution, not being an Act to which section 8 of this
Constitution applies, shall not be passed in either House of the
National Assembly unless the proposal is supported by the votes of
not less than two- thirds majority of all the members of that House
and approved by resolution of the Houses of Assembly of not less
than two-thirds of all the States. (3) An Act of the National
Assembly for the purpose of altering the provisions of this
section, section 8 or Chapter IV of this Constitution shall not be
passed by either House of the National Assembly unless the proposal
is approved by the votes of not less than four-fifths majority of
all the members of each House, and also approved by resolution of
the House of Assembly of not less than two-third of all States. (4)
For the purposes of section 8 of this Constitution and of
subsections (2) and (3) of this section, the number of members of
each House of the National Assembly shall, notwithstanding any
vacancy, be deemed to be the number of members specified in
sections 48 and 49 of this Constitution”.
d) To submit the question in form of a suit to a Court of law
for purposes of making a pronouncement to correct the error. As
straightforward as this route may appear, it is riddled with
thorns, gullies and potholes on the road to success. The question
of existence of a cause of action may be thrown up. There is no
live case upon which the suggested suit may be based. In an earlier
commentary, I had noted as follows:
“…it is trite that a Court of Law does not sit over a
hypothetical matter, as this amounts to a mere academic exercise.
As already settled by the same Supreme Court, for a court’s
jurisdiction to hear and determine a case brought before it, can
get validly activated, the claimant or applicant must establish
that there is a cause of action, and that he (the claimant) has the
legal standing to institute the action, although in certain public
interest and human right cases, existence of locus standi could be
dispensed with. What cannot be dispensed with, however, is prior
existence of a cause of action, and this is because a suit is filed
in court for purposes or remedying an wrong allegedly done to the
claimant. The existence of a valid action presupposes that (1) a
legal right exists which (2) had been violated (3) leading to some
injury on a person or thing (4) which is legally remediable. In a
long line of cases, including OSHOBA v. AMUDA, (2). MOBIL v.
LASEOA, (3) CHEVRON v. LONESTAR, (4). BELLO v. AG, OYO), the
Supreme Court has recognized the indispensability of existence of a
cause of action (a real controversy) to the activation of the
court’s jurisdiction”. (see ‘The Planned Supreme Court Suit
Over Virtual Court Hearing In Nigeria: A Suggestion’ by
Sylvester Udemezue (published in the The Nigeria nVoice, June 06,
2020) .
In a related later article, published by Dnllegalandstyle on
June 07, 2020, under the title, ‘Re: Lagos Drags FG to
Supreme Court Over Virtual Hearing – Please, Where is The
“Dispute”’, I had gone ahead to pose the following
questions, flowing from my conclusions in the commentary published
the previous day: “…can a cause of action be said to have arisen or
to exist in the absence of any real life disputes? Can a court of
law now act on a mere academic exercise, based on an anticipated,
imagined or mere apprehension of a dispute?”
Conclusion & Advise to the National
Assembly
The option of Constitution amendment appears to be the most
viable option, unless we wait for a live dispute to arise thus
providing the cause of action needed to confer jurisdiction upon a
court, which could now deliver a pronouncement to resolve the
controversy. One thing cannot be denied: an error exists, which has
distorted the intentions of the makers of the Constitution and for
as long as this error remains uncorrected, so long would this
argument persist between my students and I. Dear National Assembly
members, would you not act fast? I thank God that a process is
ongoing for constitution amendment; the NA should cash in on the
ongoing process to effect this minor error-correction to wipe out
all this controversy. Thank you for your cooperation, distinguished
Senators and Honorable Members.
Respectfully,
Sylvester Udemezue (udems)
08109024556, udemsyl@gmail.com.
11 March 2021.
By Sylvester Udemezue (udems)
Background
A question from one of my students, a Hardworking Learning
Colleague (HLC) on March 10, 2021 at 01.14pm went thus:
“Good afternoon, sir. I hope you`re good. There is a
difference between section 272(3) [of the Constitution] as
interpreted in your slide and section 272 (3) in my [own copy of
the] 1999 Constitution, reprint 2018. Sir, which one should I
follow? Thank you, sir”.
The present commentary is an open answer to my said student, an
opinion to the reading public, a charge to Government printers and
proofreaders, and, finally, a piece of counsel to distinguished
members of the National Assembly.
In its original form, the Constitution of the Federal
Republic of Nigeria, 1999 provides in section 239 (1) that “Subject
to the provisions of this Constitution, the Court of Appeal shall,
to the exclusion of any other court of Law in Nigeria, have
original jurisdiction to hear and determine any question as to
whether – (a) any person has been validity elected to the office of
President or President; (b) the term of office of the President or
the Vice-President has ceased; or (c) the office of President or
Vice-President has become vacant”. By these provisions, the
Court of Appeal becomes clothed with exclusive jurisdiction to hear
and determine elections petition relating to the office of the
president or Vice-President, that is, whether any person has been
validity elected to the office of President or President. The
Presidential Election Petition Tribunal (PEPT) for Nigeria is the
Court of Appeal.
However, the Constitution did not make it clear which court should
have jurisdiction to hear and determine disputes bothering on (i)
whether the office a Senator, a member of the House of
Representatives or a member of a House of Assembly has become
vacant or (ii) whether tenure of office of a a Senator, a member of
the House of Representatives, a member of a House of Assembly of a
State or a Governor or Deputy Governor of a State has ceased. It
was this lacuna/mischief, among others, that the Constitution of
the Federal Republic of Nigeria (First Alteration) Act, 2010 (the
first amendment to the 1999 Constitution) came to cure
Section 27 of the Constitution of the Federal Republic of
Nigeria (First Alteration) Act, 2010, whose Marginal Note is
“Alteration of Section 251”, provides:
“Section 251 of the principal Act is altered by inserting
immediately after the existing subsection (3) a new subsection
“(4)” —
(4) The Federal High Court shall have and
exercise jurisdiction to determine any question as to whether the
term of office or a seat of a member of the Senate or the House of
Representatives has ceased or his seat has become vacant”.
It must be recalled that all provisions of sections
249, 250, 251, 252, 253 and 254 in Part 1C of Chapter VII
of the said “principal Act” (that is, the Constitution of the
Federal Republic of Nigeria, 1999) deal/relate exclusively with the
“Federal High Court”.
Section 28 of the Constitution of the Federal Republic of
Nigeria (First Alteration) Act, 2010, whose Marginal Note is
“Alteration of Section 272”, provides:
“Section 272 of the principal Act is altered by inserting
immediately after the existing subsection (2) a new subsection
“(3)” —
The Federal High Court shall have and exercise
jurisdiction to determine any question as to whether the term of
office or a seat of a member of the House of Assembly of a State ,
a Governor or Deputy Governor has ceased or become vacant”.
It must equally be recalled that all provisions of sections 270,
271, 272, 273 and 274 in Part 2A of Chapter VII of the said
“principal Act” (that is, the Constitution of the Federal Republic
of Nigeria, 1999) deal/relate exclusively with/to the “High Court
of a State”, the implication of this being that no provisions of
any of the named sections has anything to do with any court other
than the High Court of a State. This being the case, the provisions
of section 272 and all amendments thereto have to do with only the
High Court of a State. Accordingly, reference to “Federal High
Court” in the new section 272 (3) ought to be seen as a mere
typographical error of transposition or a mere slip by the affected
Legal Draftsman, the Government Printer of the Proofreader. The
makers of the Constitution and of the First alteration must have
intended in section 272(3) to write “High Court of a State” and not
“Federal High Court”. This is so, I think, especially in view of
the fact that the new section 251(4) has already made provisions
similar to those in section 272(3), to capture similar jurisdiction
of the Federal High Court in respect of a member of the Senate or
of the House of Representatives. Section 272(3) must therefore be
taken to be targeted at conferring on the High Court of a State
(with respect to a member of the House of Assembly of a State, or a
Governor or Deputy Governor of a State), jurisdiction similar to
that conferred on the Federal High Court by section 251(4).
In view of the above, the appropriate interpretation for
sections 251(4) and 272(3) should be as follows,
respectively:
a) Section 251(4): The Federal High Court shall
have jurisdiction to determine whether the office of a Senator or
of a Member of the House of Representatives has become vacant or
whether the seat of a Senator or a Member of the House of
Representatives has become vacant.
b) Section 272(3): The High Court of a State
shall have jurisdiction to determine whether the office of a member
of the House of Assembly of a State or of the Governor or Deputy
Governor of a State has become vacant or whether the seat of a
member of the House of Assembly of a State or the Governor or
Deputy Governor of a State has become vacant.
Relevance of the Golden Rule of Statutory
Interpretation
The Golden Rule, which is a modification of the Literal Rule of
Statutory Interpretation, appears relevant here. Emphasis of the
literal rule is usually on deciphering the literal meaning of a
word or words used in a statute; the rule is usually less concerned
about whether such literal application may lead to ambiguity and
absurdity. The golden rule thus tries to give an interpretation
that avoids such anomalous and absurd consequences that may
sometimes arise from literal interpretation. Accordingly, where
literal interpretation may lead to ambiguity or absurdity, the
literal meaning of such words is usually modified or avoided in
order to get at the original intention of the framers of the
statute with a view to delivering justice. This rule of
interpretation aims at giving effect to the spirit of the law
because being carried away by mere mechanical and grammatical
meaning may not lead us to the justice of the situation. In the
instant case, it is obvious that sticking to the word “Federal High
Court” which had mistakenly found its way into the provisions of
section 272(3) CFRN, 1999 would obviously deprive the “High Court
of a State” an opportunity to adjudicate in disputes pertaining to
whether the office of the Governor or Deputy Governor of a State or
of a member of the House of Assembly of a State, has become vacant
or whether the tenure of office of any of the named persons has
ceased, and this may negate the intention of the makers of the
constitution who in the First Alteration had set out to reserve
such jurisdiction, albeit not not exclusively, for the High Court
of a State.
Purposive Interpretation to the Rescue
Explaining the import of the purposive rule of interpretation ,
the Supreme Court in Marwa v Nyako (2012)
LPELR-7837(SC) explained (Per ADEKEYE, J.S.C (pp. 171-172, paras.
D-A) by way of emphasis, that the objective of the purposive
approach is to give effect to the legislative
purpose of the enactment by interpretation of the words to
accord with such purpose. After all, said the apex court, the law
of statutory interpretation is clear that Courts invoke their
interpretative jurisdiction to vindicate the intention of the law
makers. The Courts cannot plant their judicial mind or thoughts in
place of the intention of the lawmakers. See also A-G
Lagos State v. Eko Hotels Ltd. (2006) 18 NWLR (Pt.1011)
pg.378. The case of Abubakar v Yar`ardua (2008)
LPELR-52(SC) is more straight to the point in explaining the
usefulness of the Purposive approach to constitution
interpretation. Hear Niki Tobi (p. 113, paras. D-F):
“I should say that the purposive rule of interpretation will
not avail a Judge where the intention of the lawmaker is clear,
precise and unequivocal, so much so that, a person can say “Yes
this is what the lawmaker has in his mind.” The purposive rule does
not allow the Judge to destroy the intention of the lawmaker, in
the language of Lord Denning, “the Judge must not alter the
material at which it is woven, but he can and should iron out the
creases”.
I think all the factor or conditions precedent to resort to
the purposive approach are present in the present case. A look at
the pronouncement of the apex court (per UWAIFO, J.S.C (pp.
180-182, paras. C-B) in Ag Lagos v AG Federation
(2003) LPELR-620 (SC) would help drive this point home:
“The court is entitled to take account of and use such materials
or information which it considers will help it to determine the
true intendment of a statutory or constitutional provision in a
purposive interpretative approach; or which will lead it to assess
the correctness of a meaning it has, through the usual canons of
interpretation, given to such a provision. This is particularly so
of a provision which is either ambiguous or seems to have become
controversial. … In Pepper v. Hart (1993) 1 All ER 42, the House of
Lords took that course. Lord Bridge of Harwich observed at page 50:
“The courts now adopt a purposive approach which seeks to give
effect to the true purpose of legislation and are prepared to look
at much extraneous material that bears on the background against
which the legislation was enacted.” …it was ‘entirely
legitimate for the purpose of ascertaining the intention of the
Parliament to take into account the terms in which the draft was
presented by the responsible minister and which formed the basis of
the acceptance’ (see (1988) 2 All ER 803 at 807, (1989) AC 66 at
112)”.
The Liberal Interpretation Approach Left
Out?
Another true guide/course which can produce stability in
constitutional law is to read the language of the Constitution
itself, no doubt generously and not pedantically but as a whole;
where the question is whether the Constitution has used an
expression in the wider or in the narrower sense, in my view, this
court should whenever possible, and in response to the demands of
justice, lean to the broader interpretation, unless there is
something in the text or in the rest of the Constitution to
indicate that the narrower interpretation will best carry out the
objects and purposes of the Constitution. In Nafiu
Rabiu v. The State (1980) 8-11 SC 130 at pages 148-149,
Udo Udoma, JSC said, “My Lords, it is my view that the approach of
this Court to the construction of the Constitution should be, and
so it has been, one of liberalism, probably a variation on the
theme of the general maxim ut res magis valeat quam pereat. I do
not conceive it to be the duty of this Court so to construe any of
the provisions of the Constitution as to defeat the obvious ends
the Constitution was designed to serve where another construction
equally in accord and consistent with the words and sense of such
provisions will serve to enforce and protect such ends.”
Accordingly, as suggested by Fatai-Williams JSC, in
Adesanya v The President (1981) LPELR-147(SC), when
interpreting the provisions of our Constitution, not only should
the Courts look at the Constitution as a whole, they should also
construe its provisions in such a way as to justify the hopes and
aspirations of those who have made the strenuous effort to provide
us with a Constitution. See also Attorney-General v. Commonwealth
of Australia (1975) 135 C.L.R. page 1 at page 17; AG Federation v.
Abubakar (2007) LPELR-3(SC).
What is an “Error”?
In Olanrewaju v UNILAG (2014)
LPELR-24093(CA), an error was defined (per ABUBAKAR, JCA (pp.
40-41, paras. F-A) as “an assertion or belief that does not conform
to objective reality, is a belief that what is false is true, or
what is true is false, it may simply be regarded as a mistake. See
Blacks Law Dictionary Eighth edition page 585.” In Ibrahim v Gwandu
(2013) LPELR-22838 (CA), the Court of Appeal explained that an
error or mistake “is referred to as something done by a person
which is incorrect or which should not have been done”, See Ugwu v.
Ararume (2007) 12 NWLR (Pt. 1048) 367 at 513, per Muhammad, JSC.”
(Per OGBUINYA ,J.C.A ( Pp. 28-29, paras. F-A). Finally, in Ugwu v
Ararume (2007) LPELR-24345(SC), the Supreme Court said (per TOBI
,J.S.C (p. 44, paras. E-F) of an error or a mistake, that “an error
is a mistake. It is the state or quality of being wrong or
mistaken. Although error is a more formal word in usage than
mistake, they are synonyms.”
How/When Are Errors Deemed Corrected?
There is no doubt that there is an error in section 272(3) CFRN,
1999, when the drafters of the Constitution wrote “Federal High
Court” instead of “High Court a State” as they ought to have
written. The error reflects copiously in the original copy of the
Constitution of the Federal Republic of Nigeria (First Alteration)
Act, 2010 as well as in the harmonized copy of the
“Constitution of the Federal Republic of Nigeria, 1999, as
amended 2018” (incorporating the first to fourth
amendments to the Constitution), as printed by the Government
printer. This error has left on the lips of unsuspecting citizens
and observers, the needless question, is it the Federal Court that
has jurisdiction to hear and determine cases bothering on whether
the office of a member of the House of Assembly of a State or of
the Governor or Deputy Governor of a State has become vacant or
whether the seat of a of a member of the House of Assembly of a
State or the Governor or Deputy Governor of a State has become
vacant? Or should we simply ignore the error and accord the said
section 272(3) an interpretation that reasonably accords with the
presumed intentions of the framers of the Constitution (namely,
replace “Federal High Court” with “High Court of a State) relying
on the Golden Rule, based on my explanation above? Indeed, below is
a hard question: how should this error be corrected, especially
considering the Supreme Court`s observation or admonition in the
case of Husseni v Mohammed
(2014)LPELR-24216(SC) where the court warned that admission of
existence of an error or mistake is not the same as correction of
the error or mistake. Said Hon Justice Sylvester NGWUTA, JSC (page.
22, paras. C-D):
“My noble Lords, the admission of error or mistake is not
synonymous with the correction of the error or mistake. Unless the
mistake identified and admitted, is corrected by laid down
procedure, it persists and will persist as error or mistake
irrespective of a purported correction by the party at
fault.”
Options on How To Correct The Error
Four Options Stare Us in the face:
a) To ignore the noticed typographical error and move on as if
it does not exist nor did it happen. This means, we should
interpret section 272(3) as having awarded the “High Court of a
State” jurisdiction in the mentioned cases. This means interpreting
the “Federal High Court” in section 272(3) as “High Court of a
State”, importing the Liberal, Purposive and the Beneficial methods
of interpretation. Note however that since section 272(3) begins
with the expression “Subject to the provisions of
section 251 and other provisions of this
Constitution…”, any situation of conflict between the
two sections must be resolved in favour of section 251. This could
also mean that awarding jurisdiction to the High Court of a State
in those instances does not preclude the Federal High Court from
exercising jurisdiction over such cases; it is clear from the
wording of section 272(3) that an exclusive jurisdiction is not
contemplated.
b) To allow the Attorney-General of the Federation to intervene
to direct the Government printers to correct the error which is
obviously typographical. Unfortunately, to the best of my knowledge
and honest belief, there is hardly any law enabling the
Attorney-General in this regard. Neither Section 2 of
the Revised Edition (Laws of the Federation of Nigeria) Act, 2007
nor Section 22 (1) of the Interpretation Act, CAP123, LFN,
2004 would be of any help since, respectfully, since
the present scenario which clearly falls outside their
contemplation; both sections cover cases of legislation
inadvertently omitted from compiled Laws of Nigeria. Section 2 of
the Revised Edition (Laws of the Federation of Nigeria) Act, 2007
provides that “any inadvertent omission, alteration, or amendment
of any existing statute shall not affect the validity and
applicability of the statute.” (https://laws.lawnigeria.com/2018/04/23/lfn-revised-edition-laws-of-the-federation-of-nigeria-act-2007/[1]
accessed March 11, 2021). Section 22 (1) of the Interpretation Act,
CAP123, LFN, 2004 provides that “where an enactments amended by the
insertion or omission of words or by the substitution of words for
other words, then on printing the enactment at any time after the
enactment takes effect, the person authorized to print the
enactment shall, if so directed by the Attorney-General of the
Federation, print the enactment as so amended.” (<https://www.lawyard.ng/wp-content/uploads/2016/01/INTERPRETATION-ACT.pdf[2]> accessed March 11,
2021). Accordingly, the Attorney-General has no role to play in
correcting this error.
c) Resort to the cumbersome procedure set out in section
9 of the Constitution.
“(1) The National Assembly may, subject to the provision of
this section, alter any of the provisions of this Constitution. (2)
An Act of the National Assembly for the alteration of this
Constitution, not being an Act to which section 8 of this
Constitution applies, shall not be passed in either House of the
National Assembly unless the proposal is supported by the votes of
not less than two- thirds majority of all the members of that House
and approved by resolution of the Houses of Assembly of not less
than two-thirds of all the States. (3) An Act of the National
Assembly for the purpose of altering the provisions of this
section, section 8 or Chapter IV of this Constitution shall not be
passed by either House of the National Assembly unless the proposal
is approved by the votes of not less than four-fifths majority of
all the members of each House, and also approved by resolution of
the House of Assembly of not less than two-third of all States. (4)
For the purposes of section 8 of this Constitution and of
subsections (2) and (3) of this section, the number of members of
each House of the National Assembly shall, notwithstanding any
vacancy, be deemed to be the number of members specified in
sections 48 and 49 of this Constitution”.
d) To submit the question in form of a suit to a Court of law
for purposes of making a pronouncement to correct the error. As
straightforward as this route may appear, it is riddled with
thorns, gullies and potholes on the road to success. The question
of existence of a cause of action may be thrown up. There is no
live case upon which the suggested suit may be based. In an earlier
commentary, I had noted as follows:
“…it is trite that a Court of Law does not sit over a
hypothetical matter, as this amounts to a mere academic exercise.
As already settled by the same Supreme Court, for a court’s
jurisdiction to hear and determine a case brought before it, can
get validly activated, the claimant or applicant must establish
that there is a cause of action, and that he (the claimant) has the
legal standing to institute the action, although in certain public
interest and human right cases, existence of locus standi could be
dispensed with. What cannot be dispensed with, however, is prior
existence of a cause of action, and this is because a suit is filed
in court for purposes or remedying an wrong allegedly done to the
claimant. The existence of a valid action presupposes that (1) a
legal right exists which (2) had been violated (3) leading to some
injury on a person or thing (4) which is legally remediable. In a
long line of cases, including OSHOBA v. AMUDA, (2). MOBIL v.
LASEOA, (3) CHEVRON v. LONESTAR, (4). BELLO v. AG, OYO), the
Supreme Court has recognized the indispensability of existence of a
cause of action (a real controversy) to the activation of the
court’s jurisdiction”. (see ‘The Planned Supreme Court Suit
Over Virtual Court Hearing In Nigeria: A Suggestion’ by
Sylvester Udemezue (published in the The Nigeria nVoice, June 06,
2020) .
In a related later article, published by Dnllegalandstyle on
June 07, 2020, under the title, ‘Re: Lagos Drags FG to
Supreme Court Over Virtual Hearing – Please, Where is The
“Dispute”’, I had gone ahead to pose the following
questions, flowing from my conclusions in the commentary published
the previous day: “…can a cause of action be said to have arisen or
to exist in the absence of any real life disputes? Can a court of
law now act on a mere academic exercise, based on an anticipated,
imagined or mere apprehension of a dispute?”
Conclusion & Advise to the National
Assembly
The option of Constitution amendment appears to be the most
viable option, unless we wait for a live dispute to arise thus
providing the cause of action needed to confer jurisdiction upon a
court, which could now deliver a pronouncement to resolve the
controversy. One thing cannot be denied: an error exists, which has
distorted the intentions of the makers of the Constitution and for
as long as this error remains uncorrected, so long would this
argument persist between my students and I. Dear National Assembly
members, would you not act fast? I thank God that a process is
ongoing for constitution amendment; the NA should cash in on the
ongoing process to effect this minor error-correction to wipe out
all this controversy. Thank you for your cooperation, distinguished
Senators and Honorable Members.
Respectfully,
Sylvester Udemezue (udems)
08109024556, udemsyl@gmail.com.
11 March 2021.