The Obligation As To Spread In A Presidential Election

I have read an article by Barr. Olukayode Ajulo on Section 134(2) of the Constitution that I both agree and disagree with, if indeed, I clearly even get Barr. Ajulo’s drift, in the first place.

This is because, in my humble opinion, Ajulo seems to have written very many unnecessary words into his article, quite apart from executing his intervention in a style replete with problems of its own.

Before delving into the nitty-gritty of Section 134(2), Ajulo starts off with a rather bewildering preamble in which amongst other perplexing and quite untenable submissions, he avers that it is “indelicate for” a lawyer to “publicly criticize the opinions” of “senior lawyers revered as authorities in their” field.

He then adds a most intimidating list of some of our most cerebral and respected senior colleagues as “oracles of the law”, as if to say they ought never be questioned, at least on points of law.

Then he goes into what I consider to be rather unnecessary and quite out of place polemics that do not assist what in the end apparently turns out to be his core argument, at all.

First of all, the notion that there are any lawyers so eminent as to be beyond questioning is balderdash and a most unlawyerly approach to the law.

There are simply no such lawyers anywhere in the world, never have been and, never will be.

In fact, there are absolutely no such judges in the entire world, have never been and never will be!

In short, it is not even remotely possible for any lawyer or judge to be beyond challenge.

The very idea that there could possibly be any jurist or legal luminary, either historically or contemporarily, of such stature as to be unchallengeable is complete nonsense.

Indeed, the likes of Lord Mansfield, Lord Coleridge, Lord Denning, Lord Irikefe, Lord Esho, Lord Obaseki Lord Oputa or Lord Tobi would be aghast at the abomination that sought to remove any human beyond questioning.

In any case, legal training and practice, not only dictate but also necessitate that absolutely no authority is beyond reproach or interrogation.

The foundation of our profession is jurisprudence which is simply legal philosophy, and Ajulo seems to have forgotten the fallacies he must have learnt at university, wherefore he seemingly invites us unto the nauseating fallacy of authority, prestige or reputation, all of which are completely disdained by lawyers everywhere.

That said, Ajulo, nevertheless, apparently seems to say it is not necessary for the leading presidential candidate in an election of more than two contenders to score 25% in the FCT.

If that is the case, he is correct, even though part of what he avers before so concluding is patently wrong and, in fact, without foundation in law.

Ajulo wrongly avers that the Constitution prescribes winning in 25 states of 37 states which is absolutely absurd and totally false.

There are only 36 states – that the Constitution provides that the FCT be treated as a state does not make it one: all it does is to accord it the status of a state for all reasonable purposes necessary thereto.

In any case, even if the intendment of Section 134(2) is for the FCT to be taken as a 37th state, all that would still be required would just be 25% in 24 states and most certainly not 25 states as submitted by Ajulo, if one even gets him correctly.

Clearly, even though he notes the difficulty in determining the exactitude of two-thirds of 37 states, Ajulo has not averted his mind to how the law approaches obligations of such problematic certitude.

What the law does with such situations is not for a higher but for a lesser obligation to be imposed.

In short, where the duty or obligation to be performed by any person is impossible to precisely determine, apportion or perform, the law imposes a lower quantum without these drawbacks, rather than a higher one.

That is the law in all Common Law jurisdictions and, in any case, absolutely any jurisdiction I am familiar with across the entire world.

Funny enough, even in Awolowo Vs Shagari, the landmark 1979 case Ajulo cites to buttress his point on the difficulty of determining the proper obligation with respect to an obligation of problematic certitude, their Lordships of the Supreme Court Bench, actually resolved the problem by ruling that two-thirds of the then 19 states is not 13 and for all practical purposes, effectively accepted that it is 12 even though we all know that mathematically 12 is only two-thirds of 18!

While in such scenarios as two-thirds of 37, a mathematician would round up a fraction, from and above 0.5 to a whole number, 1, the law actually prescribes that it be rounded down to absolute zero.

Thus even if the mathematical obligation under Section 134(2) was 24.999 ad infinitum states, the law rounds it right down back to 24 states!

This is clearly to avoid the imposition of obligations repugnant to natural justice, equity and good conscience, or, duties that are unjust, unfair, simply impractical or otherwise unworkable, or, howsoever unreasonable upon any person.

As I have stated elsewhere, including in a rejoinder to an article by Adeyinka Kotoye, SAN, in which he predicted his intervention on a rather unimpressive fixation on the denotation of the word “and”, the Constitution only sought to upgrade the FCT to the status of a state only in so far as it is necessary to do so, and certainly not to elevate it above any of the states, as those ridiculously happing on getting at least 25% in the FCT as a must in order to be returned elected as President have been canvassing.

As such, the correct obligation is still 24 of 36 states, provided that the FCT shall suffice as a state if the leading candidate has scored one quarter in only 23 of the 36 states, properly so-called, but has also done so in the FCT, which, thereupon, shall be accounted a state for the purpose of Section 134(2).

Needless to say, in this election the one and only candidate that made that cut is our President-elect and incoming President, Asiwaju Bola Tinubu, who actually very much surpassed it.

Can we all now move to more germane issues and rest this storm in a teacup about Section 134(2) and the FCT?

Onokpasa, a lawyer and member, All Progressives Congress, APC, Presidential Campaign Council, writes from Abuja.

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