Justice Kayode Eso, who died on November 16, 2012, was the only member of the Supreme Court panel who delivered a dissenting judgment on September 26, 1979 in the Chief Obafemi Awolowo's petition challenging the declaration of Alhaji Shehu Shagari as the winner of the August 11, 1979 presidential election.
Though, as Chief Akinjide submitted, section 34 introduced a fraction – that is, two-thirds, no sate in the Federation (including Kano), as I have earlier said, has, under the Electoral Decree, or any other legislation for that matter, been grouped into three equal physical areas. Nor did the FEDECO in any known exercise group any State into three physical areas for the purpose of the election. The only material before the Returning Officer for the purpose of this Appeal is the units of the local government areas of Kano but then this is no help as there is nothing to assist in grouping these local government areas into three equal pans.
So what could be the number in the intention of the law maker in prescribing "two-thirds" of all the States in the Federation knowing fully well there are 19 states and no state has been divided into units of 3? The evidence before the Tribunal is that there are 38,760 possible "two-thirds" of Kano State going by the local government areas, the only units before the Returning Officer and that it would take at least one year, in the absence of a computer to declare the result of a Presidential Election. The Returning Officer must, in the intent of the legislator, be a simple man with ordinary common sense. He is definitely not a student of, what one of the witnesses referred to as "representation of geometrical problem by mathematical graphics, and mechanical vibrations."
If it is the intent of the legislator that the Returning Officer should work out what two-thirds of Kano State is under that circumstance, then the work he is given to undertake is, in the words of William Shakespeare, (Richard II Act II Scene 11)
"numbering sands and drinking oceans dry."
In that case, to expect him to find two-thirds of Kano State physically for the purpose of the election will lead to manifest absurdity.
The next question is, faced with this, how is FEDECO to compute the words – In each of at least two-thirds of nineteen States?
Answer:
Once it is accepted -
(1) that the word "State", as used in the sub-section, means a physical territorial area;
(2) the Legislator of the Electoral Decree was aware there are nineteen States in the Federation before making the Decree;
(3) there is no provision for the division of a State into units of three or multiples of three in the Decree or in any other enactment;
(4) it is impracticable and absurd to use the permutations and combinations of the local government areas to get units of three or multiples of three;
(5) the FEDECO itself, conscious of its responsibility, never divided States into units of three or multiples of three; and
(6) the Decree requires that the extent of the geographical spread of the votes received by the candidate should be measured only by the quantum of physical States, the obvious thing the FEDECO and the Returning Officer should do, and my unhesitating answer to the question, what should they do, is to interprete the words "in each of at least two-thirds of nineteen States" to mean in each of at least 13 States.
This, with the greatest respect, can be the only intention of the Legislator. And so, the words in the subsection, "not less than one-quarter of the votes cast at the election in each of at least twothirds of all the States in the Federation" must mean "not less than one-quarter of the votes cast at the election in each of at least thirteen States in the Federation."
Chief Akinjide, I have said, drew the attention of the Court to the Companies Decree 1968 No. 51, First Schedule, paragraph 39 of "Articles of Association Preceding Memorandum of Association" which is the form prescribed by section 13 of the Decree. I have already set out the provision of the form. Chief Akinjide submitted that If the lawmakers wanted the votes in all the 13 States to be taken into account or If they want an approximation either by lowering or raising the figure, they would have said so.
Firstly apart from the Directors in the Companies Decree aforesaid being legal persons, they are human persons and it is inconceivable that human beings should be dismembered fractionally for the purpose of retiring from office. But, more importantly is the fact that the Electoral Decree, section 34A(1)(c)(ii) comes into construction principally because those words of approximation are absent. It is the very reason that all concerned including the Tribunal and this court are seeking to find the intention of the Legislator from the words used in the enactment. If there has been a proviso, there would probably have been no problem whatsoever but what happens where there is no such proviso. An end is not put into the matter. The only logical thing one does is to construe the provision by seeking the intention of the lawmakers from the words he has used in the enactment making sure the interpretation does not lead to absurdity. With respect, it is that interpretation I have just completed by answering the question which I earlier posed – "Under the Decree, should two-thirds of Kano State mean two- thirds of the physical area of Kano State?"
