According to multiple sources, one of the issues giving the All Progressives Congress (APC) presidential and vice presidential candidates, Alhaji Bola Ahmed Tinubu and Senator Kashim Ibrahim Shettima, respectively, sleepless nights is the controversial 25% votes in the Federal capital Territory (FCT), Abuja.

Former Resident Electoral Commissioner (REC) for the Independent National Electoral Commission (INEC) in Akwa Ibom, Mike Igini, in a video was heard saying Nigeria’s Constitution mandated a candidate to score 25 percent of the Federal Capital Territory (FCT) before being declared winner in presidential election.

In a video clip seen by News Band, the former INEC REC during an interview with Arise Television, said it is a “compulsory question” for a candidate to have 25% votes in the FCT before being declared President-elect.

Many other legal authorities have also backed the notion that 25% votes are required in the FCT to win a presidential election in the country, including a former Attorney-General of the Federation (AGF) Michael Koase Aondoakaa.

INEC was even accused of deducting the scores of the Labour Party/Peter Obi, while trying to make up for the 25 per cent deficient result of Tinubu in Abuja.

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[ARCHIVES] Supreme Court upheld candidates must win 25% votes in 24 states, plus 25% in FCT in Buhari versus Obasanjo 2005

In response to the petition filed at the Presidential Election Petition Court (PEPC) by Mr. Peter Gregory Obi and his Labour Party (LP), Tinubu/Shettima also expectedly towed the line of INEC, saying that they don’t need 25% to win the election.

Below are excerpts of what Tinubu/Shettima told the Presidential Election Petition Tribunal in their closing defence:

ISSUE 3

Section 134(2)(b) of the Constitution provides that:

“A candidate for an election to the office of President shall be deemed to have been duly elected where, there being more than two candidates for the election-(a) he has the highest number of votes cast at the election; and (b) he has not less than one-quarter of the votes cast at the election each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja.”

May we draw the attention of the court to the fact that there is no punctuation (comma) in the entire section I 34(2)(b) of the Constitution, particularly, immediately after the ‘States’ and the succeeding ‘and’ connecting the Federal Capital Territory with the States. In essence, the reading of the subsection has to be conjunctive and not disjunctive, as the Constitution clearly makes it so. Pressed further, by this constitutional imperative, the FCT is taken ‘as if it is the 37th State, under and by virtue of section 299 of the Constitution. With much respect, any other interpretation different from this will lead to absurdity, chaos, anarchy and alteration of the very intention of the legislature.

Our courts have always adopted the purposeful approach to the interpretation of our Constitution, as exemplified in a host of decisions, including but not limited to Nafiu Rabiu v. State (1980) 12 NSCC 291 at 300-301. Coincidentally, these sections of the Constitution were considered by the Supreme Court in the celebrated case of Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1 at 105 and the apex court held thus:

“This provision appears clear to me. Where a candidate wins the highest number of votes cast in at least two-thirds of the 36 States in the Federation and the Federal Capital Territory Abuja, he is deemed to be elected …I do appreciate any ambiguity in the provision and even if there was one, this court is bound to adopt a construction which is just, reasonable and sensible. (See Maxwell on the Interpretation of Statutes, 12th Edition, Chapter 10). In my view, it would lead to absurdity and manifest injustice to nullify the election for the entire nation because of the nullification (sic) of the election of one State, some Local Government Areas, Wards and Units. Such a devastating result could hardly have been contemplated by the framers of the Constitution. It is my conclusion therefore that the cancellation of the election in Ogun State and the other smaller components does not substantially affect the election of the 1st and 2nd respondents. In the event, this petition fails and same is dismissed with costs which I assess at N5,000 in favour of each set of respondents.”

The court went on to hold thus, at page 242 of the report:

“The purport of section 134(2)(b) of the 1999 Constitution, which stipulates that where there are more than two candidates for an election to the office of President of the Federation, a candidate shall be deemed to have been elected where 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 and the Federal Capital territory of the Federation, is that a winning candidate should have the required majority. Consequently, once a winning candidate has attained the required majority, it cannot be argued that because there was no election in one State, or because the election in a State is voided, the entire election must be voided unless where the result in that State, had then been an election, would have affected the final result of the election. In the instant case, the fact that the election in Ogun State was voided by the Court of Appeal did not mean the entire election was invalid. The Court of Appeal was therefore right when it did not invalidate the entire election.”

At page 274 of the report, Edozie, JSC.,further held thus:

“In my view, the words of Section 134(2)(b) of the 1999 Constitution are clear precise and unambiguous. The invalidation of election in any number of states does not affect the basis of the calculation of 2/3 of all the states in the Federation and the FCT. Abuja. The contention of the learned Senior Counsel for the appellants is with respect erroneous”

Arising from the foregoing, are very salient and fundamental constitution takeaways, as sanctioned by the apex court:

i. That even if results of elections are cancelled in more than one State (including the FCT), that election is not rendered invalid, provided, the winning candidate meets the constitutional requirements of one-quarter of the votes cast in two-thirds of the 37 States contemplated.

ii. Anything to the contrary would be devastating, and such was never contemplated by the framers of the Constitution.

iii. All the winning candidate needs, is majority of the votes, and even if there was no election in one State (including the FCT), or even if the election of a State/States (including the FCT) is/are voided, the entire election cannot he voided or cancelled.

Be it further noted that Buhari v. Obasanjo (supra), was an affirmation of the judgement of the Court of Appeal, regarding the interpretation of section 134(2)(b) of the Constitution and the result of the presidential election in Ogun State, where the erstwhile President, Chief Olusegun Obasanjo hails from, was voided, meaning that the presidential candidate himself did not have any vote from his State, including his own vote. It is our further submission that the constitutional provisions afore-quoted are very straightforward, direct, clear and simple; thus, they call for no extraneous interpretation, other than applying the literal rule of interpretation. See Awolowo v. Shagari (supra).

It is further submitted that the legislature is presumed not to make any law that intends what is unreasonable. According to Maxwell, on the Interpretation of Statutes, 12th edition, by P. St. J. Langan (Tripath) page 199 “An intention to produce an unreasonable result is not to be imputed to a statute.” The author goes further to state that “if there is nothing to modify, alter or qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words and sentences.

In Nokes v. Doncaster Amalgamated Collieries Ltd. (1940) A.C. 1014 (P.C.) at page 1022, it was held 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 justified in adopting a narrower construction.”

Similarly, in Magor and St. Mellons Rural District Council v. Newport Corporation (1952) A.C. (H.L.) 189 at 191, the court held that: “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 in a voyage of discovery are strictly limited”

The nagging question arises, going by the petitioners’ posture, that is, assuming a candidate scores majority of the votes cast in all the 36 States and does not secure 25% in the FCT, does the Constitution then expect the absurdity that such a candidate will not be declared the winner? The answer will naturally be in the negative. In the celebrated case of Bush v. Gore 531 U.S. 98 (2000), where the US Supreme Court was faced with the task of pronouncing on whether or not a manual recount of the votes in Florida should be ordered as already pronounced by the Supreme Court of Florida, the court, while upturning the decision of the Florida Supreme Court, held that that decision went against the “legislative wish”, and that the particular legislation in issue was/is very simple, calling only for a literal and definitive interpretation to bring about the true intention and will of the legislature.

At page 114-115, the court held thus: “Isolated sections of the code say wolf ail of more than one interpretation, but the general coherence of the legislative scheme may am k altered by judicial interpretation so as to wholly change the statutorily provided apportionment of responsibility among these various bodies… The Florida Supreme Court’s interpretation of the Florida election laws impermissibly distorted them beyond what a fair reading required, in violation of Article II. This inquiry does not imply a disrespect for state courts but rather a respect for the constitutionally prescribed role of state legislatures.

To attach a definitive weight to the pronouncement of a state court, when the very question at issue is whether the court has actually departed from the statutory meaning, would be to abdicate our responsibility to enforce the explicit requirements of Article II”. Be it noted that in this particular election in the USA, Bush, narrowly defeated Gore with 1784 votes in the popular ballot in the contested State of Florida, whereas, in the present instance, the respondent beats the petitioners to a distant third position by a whooping 2,693,193 votes.

In order to appreciate the fact that the Constitution never intended or intends that the States should be inferior to the FCT, may we draw the attention of the Court to several specific provisions of the Constitution buttressing this truism.

While the States have Governors who are christened Chief Executives by the Constitution and who are elected by the electorate of their respective States, the FCT has a Minister who is appointed by the President under Section 302 of the Constitution, just as he also appoints other Ministers under section 147(2) of the Constitution; while the Governor of each State has a constitutional term of 4 years, subject to reelection for another term of 4 years under Section 180(2) of the Constitution, the FCT Minister has no such constitutional tenure and can be hired and fired by the President at any time, just as the Governor can hire and fire any of his commissioners at any time.

The FCT Minister cannot even appoint commissioners; while the Constitution makes similar provisions for qualification and disqualification of President and Governors, the only qualification for appointment as FCT Minister is if he is qualified to contest election into the House of Representatives.

See sections 131, 177 and 147(5) of the Constitution, respectively; while a state Governor enjoys constitutional immunity from prosecution for any offense while in office under section 308 of the Constitution, the FCT Minister does not have such immunity and can be prosecuted while in office; while the constitution provides that all States shall have equal number of three Senators per State by virtue of section 48 of the Constitution, only one is provided for the FCT; while each State has an Attorney-General who is the Chief Law Officer of the State, a position so created by section 195 of the constitution, the FCT has no such a Chief Law Officer, and it is the Attorney-General of the Federation that covers its prosecution; while a State Governor is empowered by section 271(1) of the Constitution to appoint a Chief Judge and Judges for a State upon approval by the State House of Assembly, it is the President who appoints for FCT under section 256(1) of the Constitution; while each State has a House of Assembly created by the Constitution to make laws for the State, it is the National Assembly made up of persons from the States that makes laws for FCT.

See section 299 of the Constitution; in a federating system of government like the one Nigeria runs, it is the federating States that come together to form a federation, ceding part of their powers and donating them to the center.

See. Attorney General of Ogun State v. Aberuagba & On. (1985) 1 NWLR (Pt. 3) 395 at 405; section 9(2) of the Constitution, which permits amendment to the Constitution itself by an Act of the National Assembly only with the approval by the votes of not less than two-thirds of all the States, without recourse to the FCT. In short, it cannot be imagined that the FCT is superior to the States, in terms of votes or voters or any other consideration whatsoever.

More specifically, it has been held by our superior courts in a litany of decisions that the FCT is not superior by any means to any State of the federation. See Ibori v. Ogboru (2005) 6 NWLR (Pt.920) 102 at 137-138 (CA), Bakari v Ogundipc & 3 Ors. (2021) 5 NWLR (Pt. 1768) 1 at 37 (SC). By parity of reasoning, it has also been held in several decisions that the FCT High Court enjoys similar status or recognition like the High Court of any other State. See Mailantarki v. Tongo (2018) NWLR (Pt. 1614) 69 at 86-87, Audu v. APC (2019) 17 NWLR (Pt.1702) 379 at 398, 399, and 400 and Dalhatu v. Turaki

Now, section 66 of the EA which refers to sections 133, 134, and 179 of the Constitution speaks of election to the office of President or Governor, meaning that the position at the Federal level, as anticipated and contemplated by the Constitution rhymes with what obtains at the State level, including the votes cast at each of the State capitals, without any discrimination, as between the votes and voters in each State capital and the votes and voters outside the State capitals.

By the imperative of this statutory provision, it cannot be argued that the votes and voters at the FCT are more superior than those of other voters in other States of the federation, since the Constitution does not so provide. While the petitioners did not even discharge the burden placed on them to demonstrate their assertion that a candidate in a presidential election should win 25% of the votes in the FCT before he can be declared winner, the respondents tendered Exhibit RA 19 titled Report of the Committee on the Location of the Federal Capital Territory, to demonstrate the fact that no such thing was ever contemplated. See also section 179(2)(b) of the Constitution.

In concluding our arguments on this issue, we urge the court to hold that any election where the electorate exercise their plebiscite, there is neither a ‘royal’ ballot nor ‘royal’ voter; and that residents of the FCT do not have any special voting right over residents of any other State of the federation, in a manner similar to the concept of preferential shareholding in Company Law.

We urge this court to resolve this issue against the petitioners and in favour of the respondents.

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