Okumagba V. Egbe (1964)

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BAIRAMIAN JSC

In January, 1964, four persons, namely the appellant, the respondent, one Mrs Nkune, and one Mr Neequaye, gave in their names as candidates for election in a certain constituency of the Mid West. It is enough to say that the appellants symbol was the umbrella, and Mr Neequayes the bicycle. The Electoral Officer rejected the appellant and so informed him; after that the appellant changed the symbol on his motor van from the umbrella to the bicycle, and went about with his supporters telling people that Mr Neequaye had withdrawn his candidature, and that he, the appellant, had taken up the bicycle as his symbol on the Prime Ministers instructions.

There is no need to give the text of the charge as first laid; as amended it reads:-

‘That you on the 31st day of January 1964 in the Warri Magisterial District before the Election into the Midwestern House of Assembly knowingly published false statement of the withdrawal of Mr Neequaye a candidate for the said election into the Warri Urban Constituency for the purpose of procuring the election of another candidate namely the said Mr Neequaye and thereby committed an offence punishable under regulation 60 (b) of the Parliamentary Electoral Regulations, 1960.’

The said regulation reads as follows:

‘Every person who … (b) before or during an election, knowingly or recklessly publishes any false statement of the withdrawal of a candidate at such election for the purpose of promoting or procuring the election of another candidate; shall be guilty of an offence and shall be liable on conviction to a fine of one hundred pounds or to imprisonment for one year or both such fine and imprisonment.’

The learned Chief Magistrate who tried the case (F. O. M. Atake, Esq.) inferred that the appellants aim was to swell the votes for Mr Neequaye by inducing his own followers to vote for the bicycle instead of the umbrella. The Chief Magistrate concedes that:-

‘on the grammar of regulation 60(b) the person whose withdrawal was falsely published and the person whose election is sought to be procured must be two different persons.’

He then goes on to cite from p. 6 of Maxwell on the Interpretation of Statutes (10th ed.) these words:-

‘But judges are not always prepared to concede as plain language that which involves absurdity and in consistency,’

A little lower down he says that the regulation:-

‘aims against the mischief of anyone publishing false statement about the withdrawal of a candidate for an election in order to procure the election of a candidate for that election. It is unfortunate that the legal draftsman used the words another candidate instead of any candidate. But draftsmen are no gods that can foresee the various aspects of that which they proceed to put into legal language.

It will be clearly absurd well knowing the object for which the legislature intended regulation 60(b) to say that on a grammatical interpretation the person who is alleged to have withdrawn cannot, and must not be the same person whose election is to be procured and so no offence is committed on the facts disclosed in this case. This case has demonstrated beyond doubt that the mischief aimed at by regulation 60(b) can be perpetrated with the man falsely alleged to have withdrawn and the man whose election is sought to be procured being the same and one person. In the circumstances I am of the view that the facts found proved in this case fall within the purview of regulation 60(b).”

They would if the regulation had said ‘any candidate’: but it says ‘another candidate’, which admittedly means a candidate different from the one of whom it was falsely stated that he had withdrawn his name.

The learned judge who heard the appeal from conviction (Rhodes-Vivour J.) says in his judgement:-

‘I have adopted the word ‘Any’ as did the Chief Magistrate in place of Another because I find that it not only harmonises with the context but satisfies the spirit and scope of the statute. I do not think this could be stretching the spirit and scope too far, nor that it does violence to them, because to my mind the section must be read with some regard also to reality.’

Hence this further appeal to the Supreme Court.

In this Court the respondents learned counsel began by supporting the High Court judgment, but conceded, rightly and properly, that the regulation did not cover such a case as the one in hand. We allowed the appeal, and said we would give reasons later, which we shall do now.

It may be unfortunate that the draftsman used the words another candidate, but they are the words which the legislature enacted, and admittedly in view of those words the regulation contemplates the case of a lie that a candidate had withdrawn his name being published to help a different candidate to win, but does not cover the trick played by the appellant of lying that a candidate had withdrawn his name, to help that very same candidate to win-a trick which the learned Chief Magistrate says the draftsman could not foresee.

Feeling that the appellant deserved to be punished, the Chief Magistrate replaced the words another candidate by the words any candidate and thus enabled himself to punish the appellant. In effect he amended the regulation; but amendment is the function of the legislature, and the courts cannot fill a gap which comes to light by altering the words of a regulation to make it read in the way they think it should have been enacted. As Lord Bacon said in his essay on Judicature, the office of a judge is jus dicere, not jus dare -to state the law-not to give law-and the courts below should not have gone in for judicial legislation.’

The learned Chief Magistrate invoked the argument from absurdity for the course he took. That should be used with great caution, for what may seem absurd to one may not seem absurd to another, and with respect we cannot look on the plain sense of the regulation as absurd merely because it does not cover the facts of the present case. It may be deficient, but it cannot on that account be branded as absurd, and the argument from absurdity was misapplied to bend the regulation to a sense it could not bear, and the decisions of the courts below had to be set aside.

Other Citation: (1964) LCN/1185(SC)