Idaye C. Opi
12 March 2007
opinion
Lagos — On the recent Court of Appeal decision on the implication or non-implication of the decamping of Vice-President Atiku Abubakar from PDP to AC:
I read with a lot of zeal the article Appeal's Judgement on 'Atiku-Obasanjo Feud Narrow Interpretation of Law' by Mr. Fred Agbaje on page 82 of The Guardian of Tuesday, February 27, 2007. With due respect to Mr. Agbaje, whose comments on national issues I have come to admire, I do not think I am with him on the subject article.
First, it is subjudice for Mr. Agbaje to have come up with this write up at a time when the question is already before the Supreme Court. It will be recalled that shortly after the Court of Appeal delivered its judgment on 20/02/07, the Federal Government 's legal team announced its intention to and has in fact filed an appeal at the Supreme Court. The appeal has been fixed for hearing on 05/03/2007. Naturally, I would have stopped here. But instead I have chosen to join issues with Mr. Agbaje because he has already let the cat out of the bag. The deed has been done and there is the need to balance the opinions by hearing "the other side". Otherwise, Mr. Agbaje may be seen to have been allowed to escape with the legal opinions expressed in the write up.
The gist of Mr. Agbaje's submission on the construction or interpretation of the 1999 Constitution of the Federal Republic of Nigeria is that the Court should not interpret the Constitution in a narrow and pedantic sense. Rather the Court should regard the Constitution as a living organism, which contains in itself the seed of future growth and development. He was reacting to the interpretation of SS.68 (1)(g) and 109(1)(g) of the 1999 Constitution which is on the tenure of members of the State and National Assembly. The Court of Appeal in its judgment held that the provisions are limited in their application only to the members of the State and National Assembly and not the office of the Vice-President. Mr. Agbaje in his article criticized this judgement, describing it as a narrow interpretation of the Constitution.
Mr. Agbaje's submission on liberal interpretation of the Constitution is conceded but one must hasten to add that this principle must of necessity interplay with other known principles or canons of interpretation for us to achieve the desired result. For purposes of this write up, I will make reference to only two of such canons or principles. There are several others, including the 12 point rule by Justice Obaseki JSC in ATTORNEY-GENERAL OF BENDE STATE v ATTORNEY GENERAL OF THE FEDERATION (1981) 10 SC1, the 4 point rule by Ogundare JSC in Ishola v Ajiboye (1994) 7-8 SCNJ (pt 1) 1, etc.
The first principle in construction or interpretation, which is also known as the golden or literary rule states that where the words are clear and unambiguous, their natural or literary meanings should be preferred. Hear the Supreme Court in NDOMA-EGBA v CHUKWUOGOR (2004) All FWLR pt. 203 p. 2043 at 2047 Ratio 2. The literal rule is the golden metewand of interpretation when the words of a statute are plain and unambiguous. Such words should be given their ordinary plain meaning. It is not in such circumstances permissible to refrain from its meaning, even though it gives unreasonable or unfair result, and to go outside what the words themselves actually convey, in an attempt to consider what other things they ought to be capable of meaning.
Also see the following cases: African Newspapers Limited v The Federal Republic of Nigeria (1985) 2 NWLR pt. 6 p. 137; INTERNATIONAL BANK FOR WEST AFRICAN LTD. v IMANO (NIG.) LTD. (1988) 3 NWLR (pt. 85) 633; Egbe v Alhaji (1990) 1 NWLR (pt. 28) 546; EKEOGU v ALIRI (1991) 3 NWLR (pt. 179) 258.
The only exception to this rule is where the natural meaning of the words will lead to absurdity. In other words, the Court need not go beyond the golden rule, unless it will lead to absurdity. See Adefemi v Abegunde (2004) All FWLR pt. 203 pg. 2109 at 2115 Ratio 7; See OGBUNYIYA v OKUDO (2001) FWLR pt. 72 pg. 1987
The other canon of interpretation in mind is the strict construction principle. It states that where a statute tends to deprive a citizen of his right or ousts the jurisdiction of the Court, it must be construed strictly. See Ndoma-Egba v Chukwuogor (supra) Ratio 3 on pg. 2047; Constitutional Law and Jurisprudence in Nigeria by Sebastine Tar. Hon (2004) pg. 19.
In his writeup, Mr. Agbaje cited with approval a quotation by one M. C. J. Kagazi on the Constitution of India. However Mr. Agbaje did not supply the context within which the said M. C. J. Kagazi gave the quotation. He did not also inform the reader whether the said quotation was in reference to a similar provision in the Indian Constitution as in SS.68(1)(g) and 109(1)(g) of the 1999 constitution of the Federal Republic of Nigeria. I shall return to this shortly.
Mr. Agbaje's excursion into the constitutional history of Nigeria made quite an interesting reading. He concluded his constitutional analysis by suggesting that political flirtation or carpet crossing was the bane or mischief of our political development, hence the said provisions in the 1999 Constitution to remove the mischief. But did the writer avert his mind to the possibility that there may exist an alternative conclusion to the one he reached in his constitutional analysis? This question is key to this discussion.
What if the framers of the 1999 Constitution intended to create a dichotomy just the way the words appeared in the constitution? In other words, supposing the real and deliberate intention of the Constitution is to limit sections 68(1)(g) and 109(1)(g) to the members of the state and National Assemblies and no more? Is there anything absurd in that? Certainly not. Instead there is wisdom in this line of reasoning. Most of the provisions in the 1999 Constitution concerning the President and the Vice-President on one hand and the Governor and the Deputy Governor on the other are similar as against provisions in relation to members of the State and National Assembly. A few examples will suffice:-
- The President and Vice President can be impeached the same way the Governor and his Deputy can. See SS. 413 and 188 of the 1999 constitution. This provision does not apply to state or federal legislators as they cannot be impeached.
- A member of the State or National Assembly can be recalled if found wanting by his constituency. See SS. 69 and 110 of the 1999 constitution. Again this provision does not apply to the President, Vice-President, Governor and Deputy Governor as occupants of these offices can never be recalled by their constituencies.
- The President, Vice President, the Governor and Deputy Governor all enjoy constitutional immunity while in office. This does not apply to members of the state or national assembly, who do not have the same constitutional immunity. One can go on and on to show deliberate dichotomies created by the constitution between the offices of the President, Vice-President, Governor and Deputy Governor on one hand and members of the legislature (state or federal) on the other hand.
This writer is of the strong conviction that both sections 68(1)(g) and 109(1)(g) are deliberate provisions, which reflect the intention of the framers of the constitution. This is because after the elections and swearing in, the President, Vice President, Governor and his Deputy become statesmen, towering above the parties that brought them to power. For instance, the entire country becomes the constituency of the President and the Vice-President. Similarly the entirety of a given state becomes the constituency of the Governor and his Deputy. This perhaps explains why occupants of these offices cannot be recalled by the local constituencies which mid-wifed their emergence into national prominence. Ditto for their political parties too.
After all, Mr. Agbaje conceded the point that this same provision was in the 1979 Constitution. If the provision was a mistake in the 1979 Constitution, why was the same provision reproduced verbatim in the 1999 Constitution? Why didn't the framers of the 1999 Constitution amend it? It follows therefore that the mischief rule advocated by Mr. Agbaje is inapplicable here because the rule presupposes a situation where a new law or provision is made by parliament to remove a mischief which existed in a previous law.
Mr. Agbaje also dwelt on the sanctity of party programmes and manifestoes, suggesting that it is desirable for the party in power to fulfill its campaign promises which may become compromised when a member of a joint ticket as in President, Vice-President, Governor and Deputy Governor, defects or carpet crosses to another political party. In reply, I will refer Mr. Agbaje to the provisions of S. 146(2) of the Constitution, which state that where the office of the President and his Vice-President are vacant, the Senate President should assume the position of the President of the country. In the states, the Speaker of the State House of Assembly assumes the position of Governor under a similar circumstance in relation to the Governor and his deputy. See S. 191(2). Now there is nowhere in the Constitution which suggests that the Senate President or the Speaker of the State House of Assembly must belong to the same political party as the President or the Governor as the case may be. There is none whatsoever!
Again, this writer is of the strong conviction that as statesmen at the level of President, Vice-President, Governor and Deputy Governor, party programmes and manifestoes (though very important and desirable) should not be ex-changed for the stability of the polity. The corporate existence of Nigeria is above party programmes and manifestoes. As parties and manifestoes come and go, the Nigerian State must be stable and remain in existence to give expression to the different parties and manifestoes that are churned out from time to time.
Now back to the liberal interpretation of the Constitution as advocated by Mr. Agbaje. He relied on some decided cases in his submission, one of which is PDP v INEC (1999) II NWLR pt. 626 p. 200 at p. 207. He quoted the dictum of the Supreme Court in that case. Here Mr. Agbaje missed the point. The facts of that case are different from the one under consideration. In that case, there was a clear example of absurdity if the Supreme Court as the highest court in the land had not risen up to the occasion. There would have been created an unnecessary vacuum in the governance of Adamawa State when Abubarkar Atiku accepted to join Chief Olusegun Obasanjo in the PDP presidential ticket. That is not the case here. The same Supreme Court authority relied on by Mr. Agbaje also supports the golden rule and the principle on strict construction. See Ratios 3 and 5 on pp. 206 and 207 respectively.
It is trite that the dicta or pronouncements of courts must not be considered in isolation of the facts which gave rise to them. The pronouncement of courts, even the Supreme Court, is the product of dispassionate and matured consideration of the facts of a given live case. Therefore, where the facts are not similar the same pronouncement may not be apposite. Therefore, lifting such pronouncements off the pages of law reports without applying them to similar facts, is improper at law. See Nigerian National Petroleum Corporation v Anwuta (2000) FWLR Pt. 26 Pg. 1768 at 1774 Ratio 8.
In conclusion, the point must be made that what Mr. Agbaje is suggesting (and I hope I'm wrong) is that the Court should begin the usurpation of the functions of the legislature in the guise of liberal interpretation. Happily, it has been settled long ago that the Court cannot and should not substitute its opinions for that of the legislature. See the American Constitutional case of Marbery v Maddisson. The Court must limit itself to its constitutional role of interpreting the law and nothing more. See PDP v INEC (supra) where the Supreme Court cautioned that:
A court has no power to fill any gap disclosed in a legislation, for to do so would be to usurp the functions of the legislature. (See Ratio 7 in p. 207)
It is submitted that, the mischief rule and the liberal rule of interpretation should be employed very very sparingly by the courts. In fact, it is advisable not to use them at all, unless it is absolutely necessary. This is because both canons of interpretation represent the very few instances in constitutional law where the court will allow itself to "make law", pending a formal amendment by the legislature. They are to be used in situations of grave and extreme helplessness, where a lot would go wrong in the polity if the court "waits" for parliament to remove a mischief or enact a desired amendment. And such situations arise only and only where the golden rule is inapplicable or where its application will lead to absurdity. Therefore where the words in a statute are clear and unambiguous, and the literally rule does not lead to absurdity, there is definitely no need for the Court to embark on "judicial legislation" in order to give expression to the Judge's opinion of what the law should be.
In my humble opinion, the golden rule and the rule on strict interpretation are very apt as they both compliment each other in this matter. Having read Mr. Agbaje's article, I am not persuaded to agree that any absurdity will result from the clear interpretation of SS.68(1)(g) and 109(1)(g) of the constitution, which the Court of Appeal has handed down in the matter. Let us await the final pronouncement by the Supreme Court.
- Mr. Opi is Managing Partner, Opi, Opia & Associates, Port Harcourt
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