In Re Federal High Court Versus State High Court: Who Should Correct This Error Of Transposition In The Nigerian Constitution?

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/ 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> 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.