Section 285 thereof specifically provides for election tribunals to adjudicate in election petitions disputes from the State legislative positions to the presidential contests. Danger is looming at any point the courts declare their helplessness and decline to invoke their powers to “right any wrong.”
In the past few months, reports of decamping from other political parties to the ruling All Peoples Congress (APC) are frequent. One wonders why a party that has reduced Nigeria to rubbles, made the country the world’s poverty capital and a killing field should be so attractive. APC won the presidential election in 2015 when Nigeria was the third fastest-growing economy in the world, next to China and India. The economy went into the doldrums immediately thereafter and the next moment, it sank into recession. Escalation of poverty profile, unprecedented unemployment level, grave insecurity, severe sufferings and hardships point to the lies that surround sordid claims of marginal economic recovery.
Insecurity grievously expanded from just few States in the North to everywhere in Nigeria. Nigeria became the third most terrorized nation in the world next to Afghanistan and Iraq. Within this period, also Nigeria became a failed State and strong agitations for self-determination became the past time of every major tribe in the country. The worst is that by the level of incompetence, ignorance, nepotism and impunity demonstrated so far by the same people, that party has no solution to Nigeria’s quagmire. The party sought for power without knowing what to do with it. But there is a discovery of the loopholes in law that appears to make it impossible for any Governor or President declared a winner by the Independent National Electoral Commission to be removed by the courts no matter the electoral atrocities that propelled him to “victory.” People now rush where, if anyone to secures “victory” by all crooked means and noxious means, chances of sustaining the evil will be very high. This is not suggestive that the Peoples Democratic Party (PDP) is the most suitable alternative. Nigerians need to appreciate technocrats must displace the politicians that have wasted the lives and destinies of the people.
The truth is that the political class is not for the people anymore. They are disconnected from the people and are concerned more with how to perfect looting, lying and deception. The judiciary, the bastion of democracy, has become the highway by which restoration of hope can speak. But there are some bottlenecks that abort judicial intervention in electoral disputes. This is what hoodlums in governance want to explore to entrench themselves in power to the detriment of the people. Some pronouncements from the Supreme Court of Nigeria on the apparent imperfections of Nigeria’s electoral regime appear to give such electoral fraudsters hope. In Atiku Abubakar & anr v INEC & 2 ors [2020] All FWLR (Part 1052) 898 pages 984-985 paras G-E, Muhammad CJN in his lead judgment declared.
With regards to the evidence of PW60, it is clear that he was not on the field to gather the data he used to compute the results he intended the lower court to use to enter judgment for the 1st appellant. In the case of Atiku Abubakar & ors v Umaru Musa Yar’adua & ors [2008] All FWLR (Part 404) 1409, [2008] 19 NWLR (Part 1120) 1 at 173, paras E-G, this court per Niki Tobi JSC (of blessed memory) held as follows.
A petitioner who contests the legality or lawfulness of votes cast in all election and subsequent result must tender in evidence all the necessary documents by way of forms and other documents used at the elections. He should not stop there. He must call witnesses to testify that the illegality and unlawfulness substantially affected the result of the election. The documents are among those in which the results of the votes are recorded. The witnesses are those who saw it all on the day of the election and those who picked the evidence from eye-witnesses too… It is not enough for the petitioner to tender only the documents. It is incumbent on him to lead evidence in respect of the wrong doings or irregularities both in the conduct of the election and recording of the votes, wrong doings and irregularities which affected substantially the result of the election.
In the above case, what appeared to be an intelligent shortcut of getting an expert to study the results from eleven focal states and tendering the study through one of the Petitioner’s witnesses could not help the situation, even when INEC did not say the results used in the computation were not genuine. The Supreme Court said thus.
Clearly, the PW60 was not available in the eleven (11) focal states which he sought to establish the anomalies or irregularities which the appellants pleaded. The documents used to analyse the results were not made or signed by him. In the process, he even contradicted himself. The court below said this much on page 6169 of the record as follows: The witness PW60 testified that he used duplicate copies (red copies) of form EC8As to carry out his job and that he utilized Forms EC8A, EC8Bs and EC8C series. Under cross-examination he recoiled and stated that he in fact used certified true copies of EC8As. He did not know Form EC8C.
The said PW60 apart from not being an eye-witness in respect of the areas he testified, he contradicted himself on a material issue i.e. the type of forms used to make the calculations, I am surprised how the single witness was able to detect irregularities and malpractices in polling units he was not present.
The learned law lord declared the law as it is, but it is obvious that no petitioner can in the circumstances feel happy that even though he lost the case, justice was done. There are other pronouncements by the CJN in the above case on presumption of correctness and regularity in favour of a winner and the virtual impossibility of proving errors in presidential and governorship results, to wit.
The law is trite that there is a presumption of correctness and regularity in favour of the results of election declared by the Independent National Electoral Commission in the conduct of an election. This means that except it is proved or rebutted that such results are not correct, they are accepted for all purpose by the Election Tribunal or court. The onus of course is on the petitioner to prove the contrary. See Buhari v Obasanjo; Wike v Peterside [2016] 7 NWLR (Part 1512) 452 at 532-533.
There is no doubt the task of establishing a petition on the ground of non-compliance is a herculean and daunting one placed on the petitioner by law. A petitioner who desires and urges the court to set aside the result of an election petition on ground of non-compliance with the Electoral Act has the onerous duty of proving the alleged non-compliance by calling witnesses from each of the polling units complained of. It has to be noted that he does not just call any witness. He must present eye-witness, i.e. those who were present at the various polling units across the election area. In the instant case, the entire country. It is indeed a daunting task. See Andrew v INEC [2018] 9 NWLR (Part 1625) 507; Edankumoh v Mutu [1999] (620) 633 at 653. This court observed this much in Buhari v Obasanjo [2005] 13 NWLR (Part 941) 1 at 299 paragraphs F-H per Pats-Acholonu JSC that –
The very big obstacle that anyone who seeks to have the election of the President or Governor upturned is the very large number of witnesses he must call due to the size of the respective constituency. In a country, like our own, he may have to call about 250, 000 – 300,000 witnesses. By the time the court would have heard all of them with the way our present law is couched, the incumbent would have long finished and left his office and even if the petitioner finally wins, it will be an empty victory bereft of substance.
I hasten to say that the above decision was rendered when there was no time frame for the hearing and determination of election petitions. It is more difficult now under the present legal regime…where the Election Tribunal or court has 180 days to hear and determine petitions. Where is the time to call such number of witnesses? I say this to demonstrate the frustration of a petitioner seeking to set aside the election on ground of non-compliance.13 (underlining mine for emphasis)
With the language of the law as the learned law lord pointed out above, the door is shut against an aggrieved petitioner even before he files his processes to challenge a presidential or governorship election. Another smart way that a counsel for a petitioner would have used was getting INEC to certify the results of the election and the collation sheets and tender them from the Bar without having to call all the numerous witnesses. But there is another startling roadblock. In the same Abubakar v INEC, the Supreme Court declared.
On issue of dumping of documents on the court below, the learned counsel for the appellant submitted that there was no need to call the makers of those documents tendered from the Bar because they were public documents duly certified. On page 37, paras 7.17 of their Brief, it is submitted thus.
The Court of Appeal based only on presumption held that the appellant required to call witnesses who have knowledge on the exhibits tendered even the said exhibits are certified true copies. We submit that the lower court did not only ignore its duty, but its judgment also jettisoned trite position of law that when a public document is duly certified, there is no need whatsoever to call the makers of such documents or those knowledgeable on it to testify. We commend the case of Magaji v Nigeria Army [2008] 8 NWLR (Part 1089) 338.
The version of the law I know on the subject (i.e. if there are other versions) is that when documents are tendered from the Bar, such documents have no probative value until the makers of such documents are called to testify on the document and they are subjected to cross-examination oil (sic) them it cannot be as argued by the learned silk for the appellants above. Whether it is a certified public document or any other document, the need for the maker to testify and be cross examined on it has not yet been jettisoned by this court. I have read the case of Magaji v Nigeria Army relied upon by the appellants. This court did not state as the appellant wants us to believe
These pronouncements have swept away the essence of certification of documents and tendering them from the Bar. Everything has been trashed down to documentary hearsay. This appears to be justified by section 37 of the Evidence Act, 2011 which provides thus:
Hearsay means a statement-
(a) Oral or written made otherwise than by a witness in a process; or contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for purpose of proving the truth of the matter stated in it.
(b) Contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for purpose of proving the truth of the matter stated in it.
There is nothing in this provision which specifically nullifies the admissibility of certified INEC results or even the originals from booth results not denied by INEC. But by these Supreme Court pronouncements, it is useless certifying polling booth results and collation documents since they have no probative value unless tendered though their makers. It also means since there is no time for fielding between 250,000 to 300,000 witnesses, it is needless filing any election petition to challenge any questionable return by INEC. It means also that there is no provision for a statistician or any election expert to study results from say eleven States or more, as in the above case, and coming to court or tribunal to testify of irregularities, forgeries, wrong entries of figures in any election or collation document. So, Nigerians do need not to see good governance to make a decision on whom to vote for. Rather, the worst of the political class needs to simply strategize to install sophisticated rigging machinery to outwit their opponents. That is the essence of the popular statement, “declare me winner and let whoever does not like it go to court” because that vandal knows that the tribunals and courts are terribly castrated and therefore impotent. This is the worst that can ever happen to a nation. This misfortune projects gangsters into governance. Their only qualification is that they are super riggers and their language for myriads of economic challenges is “empowerment.” They lack transformative ideas and they cannot trust anyone with such ideas but cannot rig elections and cannot kill to subvert the sacredness of popular will.
But what of section 146(1) of the same Evidence Act, 2011 which provides thus with respect to presumption in favour of certified true copies of documents:
(1) The court shall presume every document purporting to be a certified true copy or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer in Nigeria who is duly authorized in that behalf to be genuine, provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.
(2) The court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed, the official character which he claims in the document.
By the foregoing presumption in favour of certified true copies of public documents, election results duly certified by the same electoral body – the Independent National Electoral Commission, which organized and conducted the election and is a usual statutory party in an election petition, can be tendered from the Bar to obviate the need to call hundreds of thousands of witnesses to prove a presidential or governorship election petition. If the tribunals and courts can apply the statutory presumption of correctness of results prepared by INEC, they should also apply the presumption statutorily preserved for results and other documents duly certified by INEC. If there is no legislative solution to this hidden but also very “conspicuous” misfortune, there is no need filing election petitions. The obvious consequence is that Nigeria will continue to sink as hoodlums parading as leaders continue to lay siege on the politics and governance to disadvantage of the people and at the cost of the future.
Another crucial point is burden of proof in election petitions. When INEC declares a result, there is a presumption that the result is correct. This presumption is rebuttable and the onus is on the petitioner to disprove or rebut the presumption. In other words, the burden is on the person who denies the correctness and authenticity of the return of a candidate to rebut the presumption of correctness in favour of the return.14 Ogunbiyi JCA (as he then was) declared in Awuse v Odili:15
The law is trite that the consideration of the respondent’s case did not arise until and unless the petitioner had made out a case. In other words, a duty lied on the petitioner who alleged, to succeed on the strength of his own case and not on the weakness of the defence.
Section 285 of the 1999 Constitution (as amended) which limits the trial duration of election petitions to 180 days imposes an unfair burden on a candidate that merely contested an election but did not conduct it, had no custody of essential result documents, did not appoint polling clerks and other adhoc staff at each polling station, cannot attest to the competence and impartiality of collation officials. INEC should prove that it substantially complied with the law and election guidelines in conducting an election. The Commission must certify every form from each polling booth to every collation centre and publish as it is declaring its result and returning a candidate. These will make INEC accountable to, not just the candidates, but the entire citizenry.
The law that states that when the Electoral commission declares a result, there is a presumption of that the result is correct21 MUST be interpreted not to apply to election petitions. Presently, the burden is on the person who challenges the correctness and authenticity of the result to rebut the presumption of correctness in favour of the return. In furtherance of this, the National Assembly should amend sections 131 and 132 of the Evidence Act 2011 upon which this injustice has been predicated to exclude their operations to election petitions. These provisions declare:
131
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
132 The burden of proof in a suit or proceeding lies in that person who would fail if no evidence at all were given on either side.
By these provisions, the entire burden to rebut the presumption of correctness of any result is on the petitioner even if the result was manufactured to secure the return of a favoured or fraudulent candidate. Oftentimes, it is not easy to accomplish this, more so with the time constraints and other road blocks against a petitioner. The amendment as aforesaid is to transfer the burden of proof to the Commission which must give a credible and transparent account of the correctness of the process it conducted and thus convince the citizens and the court that, barring minimal or negligible infractions arising from inevitable human factors, it was substantially impartial and independent in discharging its statutory duties. This will, inter alia, stop stealing of election result sheets from a State by desperate politicians and using same in another State to smuggle in false figures to secure a return by all means and at the same time load the petitioner with the burden of proof of invalidity of same and to what extent that fraud or blunder affected the overall score.
If the judiciary abdicates its constitutional responsibility saddled upon it by sections 6 and 285 of the 1999 Constitution (as amended), the consequential disaster will be irredeemable. The courts must realise that the people are the source of state authority and that the worst that can be done is that disregarding the fundamental provision that sovereignty belongs to the people from whom Government, through the Constitution derives all its power and authority. One formidable tool at the disposal of the Judiciary is the purposive rule of interpretation. It is better explaining further through the decisions of courts. In PDP v Mohammed & ors [2015] LPELR-40859 @ 33-34, paras. B-E, Abiru JCA declared:
It is trite that in the interpretation of statutes, a Court must not give an interpretation that would defeat the intention and purpose of the law makers, and it should adopt a holistic approach and interpret the provisions dealing with a subject matter together to get the true intention of the law makers – Abia State University, Uturu Vs Otosi (2011) 1 NWLR (Pt 1229) 605, Ayodele Vs State (2011) 6 NWLR (Pt 1243) 309, National Union of Road Transport Workers Vs Road Transport Employers Association of Nigeria (2012) 10 NWLR (Pt 1307) 170, Attorney General, Federation Vs Attorney General, Lagos State (2013) 16 NWLR (Pt 1380) 249. Also, inclusive in the principles governing construction of statutes is the need for Courts to adopt a purposive and creative approach. Courts must interpret statutes by implication to give effect to the true intention of the law makers – Abdulraheem vs Olufeagba (2006) 17 NWLR (P 1008) 280 at 355, Peoples Progressive Alliance vs Saraki (2007) 17 NWLR (Pt 1064) 453. The purposive approach is an approach to statutory and constitutional interpretation under which common law Courts interpret an enactment in the light of the purpose for which it was enacted. It is essential that in interpreting the words of a statute, the Court must consider the object of the statute – Elabanjo vs Dawodu (2006) 15 NWLR (Pt 1001) 76 at 138H. The Court must guide itself with the essence of a provision in giving meaning to words of that provision. Once an interpretation meets the purpose of the provision of an enactment, then it is fine, and it is irrelevant that other possible interpretations of the provision exist – Rivers State Government vs Specialist Konsult (2005) 7 NWLR (Pt 923) 145.
Nigeria has the most expensive and one of the worst National Assemblies in the world but it will be uncharitable to accuse them of deliberately allowing clauses in Nigeria’s electoral legislations to call for 250,000 to 300,000 witnesses in a governorship or presidential election dispute. From the totality of the forgoing, Nigeria is doomed if, in spite of sections 6 and 285 of the 1999 Constitution (as amended), the intervention of courts and the tribunals are technically aborted because circumstances have rendered the courts impotent in exercising jurisdiction over election disputes to the advantage of the most fraudulent of the candidates. But the courts are traditionally jealous of their jurisdictions. This protectiveness can be anchored on section 6 of the Constitution, which confers judicial powers on the Judiciary and section 285 which create the constitutional framework and time frame for trials and appeals in election petitions disputes. This can be further sustained by the purposive rule of interpretation of the Electoral Act, 2010 (as amended) and the relevant provisions of the 1999 Constitution that create the platform for conduct of elections.
In so submitting, it is pertinent to note that election petitions are sui generis, that means, they are governed by special laws that are, inter alia, devoid of technicality. In Mohammadu Buhari & anr v INEC & ors [2008] LPELR 814 @ 96-97, paras. D-C Niki Tobi JSC declared.
The whole concept of Election Petitions being sui generis, in my view, is to project the peculiarity of the petition in terms of the reliefs sought, the time element and the peculiar procedure adopted for the hearing of the petition and all that. The Practice Directions, 2007, is a classic example of referring to Election Petitions as sui generis. No single Section of the Act or paragraph of the Schedule to the Act can qualify for the latinism, sui generis. It is the total jurisprudence of election that is sui generis, not a section of the Act or Schedule to the Act.
In view of the above, a special approach ought to be adopted in interpretation of the provisions of the Electoral Act and indeed the sections of the Constitution that pertain to conduct of elections. Neither the 1999 Constitution (as amended) nor the Electoral Act, 2010 (as amended) expressly nor impliedly contemplate that between 250,000 and 300,000 witnesses would testify to prove non-compliance with the provisions of the law on conduct of elections. There is no express provision of the said Electoral Act specifically compelling reliance on sections 37, 38, 131, 132 and 146(1) of the Evidence Act, 2011 in adjudicating on election petitions. The outcome of the application of these provisions of the Evidence Act, 2010 is the one that terribly corrodes or erodes the integrity of the tribunals and the courts and irritates innocent bystanders.
The courts should not fold their hands and watch Nigeria go extinct. The way out is a resort to purposive rule of interpretation. Though from all indications, the political class appears poised to take advantage of impending electoral disaster, it cannot be concluded that that was the intention of the legislature. In Marwa & anr. v Murtala Nyako & ors. [2012] All FWLR (Part 622) 1621 @ 1670 paras C-G the Supreme Court held.
The object of interpreting statute or the constitution is to discover the intention of the legislature, which intention is usually deduced from the language used. The golden rule of interpretation of constitutional provisions is that words of constitution must prima facie be given their ordinary meanings if the words are not ambiguous. The approach of the 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 magi, valeat quam pereat. It is not the duty of the court 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 sense of such provisions will serve to enforce and protect such ends. (highlighting ours for emphasis).
From the above pronouncement, if, by any rule of interpretation, the obvious ends of the Constitution and indeed the Electoral Act would be defeated, then that interpretation must be avoided. One of the radically advancing judicial systems in the world is that of India and an Indian jurist, Justice G. P. Singh in his book (2010) “Principles of Statutory Interpretation” 12th Edition at page 3 says: A statute is an edict of the Legislature and the conventional way of interpreting or construing a statute is to seek the ‘intention’ of its maker. A statute is to be construed according “to the intent of them that make it and the duty of the judicature is to act upon the true intention of the Legislature – mens or sentential legis. See also Vishnu Pratap Sugar Works (Private) Ltd v Chief Inspector of Stamp, U.P AIR 1968 SC 102 @ 104; Institute of Chartered Accountants of India v Prince Warehouse AIR 1998 SC 74, Maunsell v Olins [1975] 1 All ER 16 @ 19 HL.
The learned and erudite jurist continued at page 7 of the Book: Legislation in a modern state is actuated with some policy to curb some public evil or to effectuate some public benefit. The legislation is primarily directed to the problems before the Legislature based on information derived from past and present experience.
The position in India is similar to that of England. In R (on the application of Quintavalle) v Secretary of State for Health, [2003] 2 All ER 113 @ 118, the Houses of Lords, per Lord Bingham declared: Every statute other than a pure consolidating statute is, after all, enacted to make some changes, or address some problem, or remove some blemish or effect some improvement in the national life. The court’s task, within the permissible bounds of interpretation, is to give effect to parliament’s purpose. So, the controversial provisions should be read in the context of the statute as a whole and the statute should be read in the historical context of the situation which led to its enactment.
Accordingly, ‘purpose’ has become a cardinal principle in interpretation of statutes in advancing democracies. Justice Singh referred to the above and succinctly summarises it thus: at page 12 of his Book:
The intention of the Legislature thus assimilates two aspects: in one aspect it carries the concept of ‘meaning’, ie. what the words mean and in another aspect, it conveys the concept of ‘purpose and object’ or the ‘reason and spirit’ pervading through the statute. The process of construction, therefore, combines both literal and purpose approaches. In other words, the legislative intention ie the true or legal meaning of an enactment is denied by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed. See State of Hrmachal Pradesh v Kailash Chand Mahajan AIR [1992] SC 1277 @ 1300.
The purpose or object of an enactment relates to the mischief to which the enactment is directed and its remedy, legislative intention relates to the legal meaning of the enactment. The formulation of the two have received the approval of the Indian Supreme Court which called it the cardinal principle of construction in Union of India v Elphinstone Springing and Wearing Co Ltd AIR [2001] SC 724 @ 740; [2001] 4SCC 139, District Mining Officer v Tata Iron and Steel Co. AIR [2001] SC 3134 @ 3152.
If the present unfortunate scenario is sustained, it means once INEC declares any candidate as having been elected, the powers exercisable by the courts and the tribunals pursuant to sections pursuant to sections 6 and 285 of the 1999 Constitution (as amended) become an empty shell since the petitioners in governorship and presidential contests will need to call between 250,000 and 300,000 witnesses to succeed in any complaint of con-compliance with the Electoral Act. It means presumption of correctness of even forged results by desperate and fraudulent candidates. It means duly certified INEC results will be treated as documentary hearsay and therefore inadmissible if the same petitioner does not call hundreds of thousands of INEC staff whether permanent or ad hoc as witnesses to prove their genuineness when they were fraudulently disregarded during collation. The systemic rot in our political culture can effectively be addressed by a purposive approach to constitutional and statutory interpretation, as espoused above. The Indian Supreme Court in Reserve Bank of India v Peerless General Finance and Investment Co. [1987] 1 SCC 424 (Part 450) AIR 1987 SC 1023 declared: Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives colour. Neither can be ignored. Both are important. That interpretation must match the contextual. A statute is best interpreted when we know why it was enacted.
A literal and mechanical construction should be disregarded if it conflicts with some essential requirements of democracy enshrined in the Constitution and if it is a slap on fair play, justice and common sense which the legislature could never have intended to throw over board. It is trite that the courts are generally enjoined to apply constructions that are agreeable to justice and reason. Also, in determining either the general object of the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should, in all cases of doubtful significance be pressured to be the true one. Danckwets LJ declared in Artemiou v Procopiou [1966] 1 QB 878 @ 888: An intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available.
It is also important to draw attention to what the Supreme Court of Nigeria has declared in Marwa & anr v Murtala Nyako & ors supra that where a court is faced with alternatives in the course of interpreting the constitution or statute, the alternative construction that is consistent with smooth running of the system shall prevail. Therein, Onnoghen JSC (as he then was) in his lead judgment declared:
I am guided by the principles of interpretation of the provisions of the constitution which enjoins the court to interpret the constitution as a whole taking into consideration, related sections as stated in A. T. Ltd v A. D. H. Ltd [2007] 15 NWLR (Pt, 1056) 119 at 166-167, thus: It is settled law that when a court is faced with the interpretation of a constitutional provision, the entire provision must be read together as a whole so as to determine the object of that provision, secondly, it is settled principle of law that where a court is faced with alternatives in the course of interpreting the constitution or statute, the alternative construction that is consistent with smooth running of the system shall prevail as held in Tukur v Government of Gongola State [1989] 4 NWLR (Pt 117) 517 at 579; I must remember that this court has said it several times that the provisions of the Constitution ought to be read and interpreted as a whole.
Finally, I must approach from a view point that since the decision of this court in Rabiu v Kano State [1981] 2 NCLR 293, this court has opted for the principle of construction often expressed in the maxim, ut re magis valeat quam pereat. This means that even if the alternative constructions are equally open, I shall opt for the alternative which is to be consistent with the constitution read as a whole as set out to regulate, and not to the alternative which will disrupt the smooth development of the system.
In Attorney-General of Lagos State v Attorney-General Federation & ors. [2003] LPELR-620 @ 180-182 paras. C-B, Uwaifo JSC declared: 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. Chief Ifeoma Chinwuba, the learned Attorney General of Anambra State, certainly urges on this court that interpretative approach to Section 20 of the 1999 Constitution in the present case. So by her courtesy, for which I again express my gratitude, the relevant proceedings of the Constitutional Committee were made part of her argument on behalf of the 5th defendant, but in support of the plaintiff. I think this is an appropriate case to make use of that information.
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.” At page 61, Lord Browne-Wilkinson who gave the leading opinion said: “Although the courts’ attitude to reports leading to legislation has varied, until recently there was no modern case in which the court had looked at parliamentary debates as an aid to construction. However, in Pickstone v. Freemans Plc (1988) 2 All ER 803, (1989) AC 66 this House, in construing a statutory instrument, did have regard to what was said by the minister who initiated the debate on the regulations. Lord Keith after pointing out that the draft regulations were not capable of being amended when presented to Parliament, said that 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 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 materials that bears on the background against which the legislation was enacted. There is nothing in law that takes electoral disputes outside the compass of the purposive rule of interpretation. The purposive approach to interpretation involves the consideration of three factors: the language of the provision, the context in which the language is used and the purpose of the legislation or statutory scheme in which the language is found. Since the Supreme Court of Canada’s decision in Re Rizzo & Rizzo Shoes Ltd., 1998 1 S.C.R. 27, Canadian Courts have echoed the mantra that the modern approach to statutory interpretation involves a “textual, contextual and purposive analysis of the statute or [the] provision in question.” See also Ayr Farmers Mutual Insurance Co. v. Wright, 2016 ONCA 789.
Every citizen qualified to contest an election has a right to do so and this interest must be protected by law. When it is inordinately breached, the court has a duty to intervene when called upon. To abdicate from this duty by construing into the applicable law a situation of judicial helplessness, any judgment it delivers on the basis of this is devoid of justice. In Chigozie Eze & ors v Attorney-General of Abia State [2015] All FWLR (Part 791) 1399, the Supreme Court held that: It is a general principle of law of great antiquity to the effect that where there is a violation of right, there must be a remedy. Put in another way, ubi jus ibi remedium – meaning where there is a right there is a remedy – See Bello v Attorney-General, Oyo State [1986] 5 NWLR (pt 45) 828; F.B.N. Plc v Associated Motors Co. Ltd [19998] 10 NWLR (Pt. 570) 441; Labode v Otugu [2001] FWLR (Pt. 43)207, [2001] 7 NWLR (Pt 712) 256; Oyekanmi v NEPA [2000] 12 SC (Pt 1) 76 @ 84, [2001] FWLR (pt. 34) 404.
Failure of justice is the route to chaos as the losers and their supporters resort to self-help and cause general mayhem that endangers the security of the people and the machinery for due administration of justice. In every clime, it is impossible to have peace without justice. Society is the victim if power is acquired when the electoral system lacks integrity, accountability and transparency. The devastation of Nigeria and the deplorable condition of Nigerians now is a regrettable example.
Olehi is an Owerri based legal practitioner and Notary Public.
