A CRITIQUE OF THE SUPREME COURT CASE OF GEN. BUBA MARWA & ORS v ADMIRAL MURTALA NYAKO & ORS (2012) LPELR-SC.141/2011 (CON)

 

ABSTRACT

The Supreme Court case of Marwa & Ors. v Nyako & Ors. otherwise known as the 5 Governor's case has marked a reference point in the annals of Nigerian jurisprudence. Prior to this decision, the position of persons, particularly governors, who emerge winners of re-run elections after the annulment of their initial elections, as regards the computation of their tenure in office was uncertain. In this case, the Supreme Court, after a thorough review of the relevant provisions of the Constitution and judicial precedents, came to the conclusion that in the computation of the tenure, time begins to run from the date the governor was sworn-in pursuant to the nullified election and not from the date he was sworn-in pursuant to the re-run election. This paper seeks to review this decision in the light of the socio-political situation of Nigeria, towards ascertaining whether the decision is capable of fostering sustainable democracy in Nigeria.

 

INTRODUCTION

Before now, Nigerian jurisprudence is replete with plethora of cases addressing various questions and challenges arising from the election of public officers, but this is a case sui generis, in that prior to it, no case has dealt with the question of when the tenure of a governor who won a re-run election after the nullification of his previous election begins to run. Be that as it may, no legal problem or issue must defy a legal solution. In Amaechi v INEC, Oguntade JSC quoted with approval the dictum of Lord Denning M.R in the case of Packer v Packer where he had declared: "If we never do anything which has not been done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes on and that will be bad for both."

Thus, it is a cardinal function of law to find a solution to all man-made problems, after all, law has a very wide tentacle. The Supreme Court has taken a bold stride in handling this novel situation. The decision has once again proved the law to be both conservative and dynamic, though the issue that necessarily arises is as to whether this decision has succeeded in addressing the legal and socio-political challenges associated with such matters towards fostering sustainable democracy in Nigeria.

 

THE FACTS OF THE CASE

On the 1^st of September 2010, INEC caused to be published in national daily newspapers that it would conduct gubernatorial elections in all the states of the Federation including the states of the five governors in January 2011. Consequent upon this publication, the five governors commenced personal actions by originating summons in the Federal High Court Abuja, seeking among other prayers, declarations that their various tenures in office as elected governors of the affected states would only expire after four years calculated from the time they assumed office after the re-run or fresh elections and not four years as calculated by the electoral body from the time they assumed office on the 29^th of May 2007. These independent actions were consolidated.

The trial court found in favour of the plaintiffs'/governors which judgment was upheld by the Court of Appeal. Being dissatisfied with the decisions of the two lower courts, INEC appealed to the Supreme Court. After a thorough review of the relevant provisions of the Constitution and judicial precedents, the court reversed the judgments of the two lower courts and held as follows:

1. That the tenure of the governors started to run from the day they took the first oath of office pursuant to the election that was later nullified and not the second oath taken pursuant to the re-run election.
   
2. That the Supreme Court is not bound by decisions of the lower court in matters where that court is the final court of appeal as the Supreme Court is the highest court of the land. Thus, the court can consider the wide nature of the decision of the lower court as to the 'voidity' of the elections.
   
3. That the provisions of the amended Constitution cannot apply retrospectively.
   

AN ACADEMIC REVIEW OF THE 5 GOVERNORS' CASE

It is unarguably trite that the Supreme Court is the final court of the land and no appeals can lie from its decisions to any other court, authority or person, subject to the powers of the president of governor of a state with respect to prerogative of mercy. Indeed, it is beyond contestation that as a general rule, once a court makes a decision in a case, it becomes functus officio and lacks jurisdiction to revisit the decision (subject to the few instances where the law allows the same court to amend or set aside its decision e.g. judgments given without jurisdiction, correction of accidental slips, etc.). Thus, it follows that the decision in the present case is final of the case, just as it is final of the Supreme Court. However, this definitely does not and cannot prevent academic reviews cum appraisal of the decisions of the apex court towards ascertaining how much it fosters sustainable democracy in Nigeria. To this end, a perusal of the judgment of the Supreme Court in this case elicits the following issues:

1. Whether the alternative construction/golden rule of interpretation was applicable in the case, in preference to the literal rule?
   
2. Which of the decisions of Obi v INEC (supra) and Ladoja v INEC was applicable in the circumstances of the case?
   
3. When does the tenure of a governor re-elected pursuant to a re-run election after his initial election was annulled commence? Is it as from the date he took the oath of office and oath of allegiance pursuant to the annulled election or is it as from the date he took the oath of office and oath of allegiance pursuant to the re-run election? What is the essence of the oaths taken pursuant to the re-run election? Can an oath of office and oath of allegiance sworn pursuant to an invalid election form the basis for the computation of term of a governor validly re-elected at a re-run election? Can the four-year tenure of a governor consist of two different elections, and if yes, will this same position obtain where one of the elections is void and the other valid?
   
4. Is the decision in Labour Party v INEC inconsistent with the decision in this instant case?
   
5. Is the oath of office and oath of allegiance the only relevant factor to be considered in the computation of the tenure of a governor? What is the importance of the declaration of assets/liabilities and the oaths of allegiance and of office to the tenure of a governor?
   
6. What is the meaning of the term 'first elected person under this constitution' and 'last elected person under this constitution' as contained in Sec. 180(2) CFRN 1999 (as amended)?
   
7. Must the tenure of an elected governor be a term of four years with an option of re-election for another four year term in all circumstances?
   
8. Does the Supreme Court have jurisdiction to construe the import of a Court of Appeal judgment entered pursuant to a governorship election petition matter, and if so, whether same was relevant for purposes of determination of the appeal in this case?
   
9. Can the provisions of the amended Constitution apply retrospectively?
   

 

ISSUE 1, 2, 3 & 6

The literal rule of interpretation is to the effect that where the words of a statute are clear and unambiguous, they must be given their ordinary grammatical meaning. However, the golden rule of interpretation is to the effect that where the application of the plain grammatical interpretation of the provisions of a statute would produce absurd or unjust result, the courts may instead, apply the words with a secondary meaning which they are capable of bearing so as to avoid such absurdity or injustice. Indeed, the golden rule is consistent with the alternative construction approach, which is to the effect that where a statutory provision is capable of having two distinct meanings, one consistent with the statute read as a whole and the other capable of disrupting the smooth running of the system, the former construction is to be preferred and adopted.

Now, Sec. 180(2) CFRN (supra) provides that "subject to the provisions of subsection (1) of this section the governor shall vacate office at the expiration of a period of four years commencing from the date when –

1. in the case of a person first elected as governor under this constitution, he took his oath of allegiance and oath of office; and
   
2. the person last elected to that office, took the oath of allegiance and oath of office or would, but for his death, have taken such oaths."
   

Considering the facts of this case, an application of the literal rule would mean that the tenure of the governors started when they took the oath of allegiance and oath of office pursuant to their being validly elected as governors (i.e. pursuant to the re-run election since the first election was nullified). See the case of Obi v INEC (supra). Conversely, an application of the golden rule would mean that the tenure of the governors started when they took the oath of allegiance and of office pursuant to the very first election (the fact that it was later nullified and a re-run held notwithstanding). See the case of Ladoja v INEC (supra). The issue that naturally arises from the above is as to which of these two interpretations is consistent with a holistic reading of the relevant provisions of the Constitution because the alternative, purposive and liberal construction approaches on the interpretation of the Constitution requires that only the interpretation that is consistent with a holistic reading of the Constitution should be applied.

The relevant provisions of the constitution are as follows:

Sec. 14(2)(a) – "…sovereignty belongs to the people of Nigeria from whom government through this constitution derives all its powers and authority."

Sec. 180(1) – "Subject to the provisions of this constitution, a person shall hold the office of the governor of a state until –

1. when his successor in office takes the oath of that office; or
   
2. he dies while holding such office; or
   
3. the date when his resignation from office takes effect; or
   
4. he otherwise ceases to hold office in accordance with the provisions of this constitution."
   

Sec. 180(3) – "If the Federation is at war in which the territory of Nigeria is physically involved and the President considers that it is not practicable to hold elections, the National Assembly may by resolution extend the period of four years mentioned in subsection (2) of this section from time to time, but no such extension shall exceed a period of six months at any one time."

Sec. 182(1) – "No person shall be qualified for election to the office of the governor of a State if …

(b) he has been elected to such office at any two previous elections;"

Sec. 180(5) – "A person elected to the office of the governor of a state shall not begin to exercise the functions of that office until he has declared his assets and liabilities as prescribed in this Constitution and has subsequently taken and subscribed the oath of allegiance and oath of office prescribed in the seventh schedule of this Constitution."

It must be noted that the Supreme Court held that the latter of the two conflicting interpretations to Sec. 180(2) CFRN (i.e. that the tenure of the governors started when they took the oath of allegiance and of office pursuant to the very first election that was later nullified) was consistent with a holistic construction of all the above provisions since:

1. Adoption of the converse interpretation may lead to the perpetuation of the stay of a person in office as a governor if he could only succeed at an election and all subsequent re-run elections to be returned as winner by INEC despite the fact that all the elections are fraught with a fundamental vice which can and does lead to their nullification subsequently by the court.
   
2. That under no guise can the tenure of a governor be extended beyond the constitutionally guaranteed four-year term with an option of re-election for another single tenure of four years. This period starts to count from the very moment the person assumes the office of governor for the very first time (whether pursuant to a validly conducted or invalidly conducted election). Any break for whatever reason in between the period is not to be countenanced in the computation of the tenure except the break had the effect of permanently ousting the person from office and bringing in a new person.
   
3. That when an election is nullified, only the election qua election is affected. Every other thing done pursuant to same (including the oaths of office and oath of allegiance, and also all exercise of governmental powers) by the person whose election was nullified stands. Thus, the nullified election was voidable ab initio and not void ab initio.
   

The above reasoning by the apex court appears to be the correct position if the following points are considered:

1. An election, prior to its nullification, is not void. Since the election is presumed valid until set aside, it follows by parity of reasoning that that valid election gives the oath of allegiance and oath of office credence. This oath of allegiance and oath of office is a condition precedent to the acts of the governor which still remain valid even after his elections has been nullified. See the case of Balonwu v Gov. of Anambra State. It follows that this oath that conditions the acts must necessarily be alive if the acts still remain alive after the nullification. Conversely, if the acts while in office were to be dead, then the oath will equally be dead (though this is not the case here since the acts are valid).
   
2. By the provisions of the Constitution namely Sections 181(1) & 191(1), the
   taking of the oath of allegiance and oath of office simpliciter cannot guarantee a person's enjoyment of a four year tenure. A person must have been "first elected" consequent upon which the oath is administered. In essence, being "first elected" coupled with the oath of allegiance and oath of office is what guarantees a four year tenure. A person whose election is nullified and who subsequently wins the re-run election ordered by the court does not qualify as a person "first elected" on the basis of the re-run election. He only qualifies as a person "first elected" via the nullified election, the nullification notwithstanding. From the foregoing, the second oath of allegiance and oath of office administered after the re-run election, since it is not coupled with being "first elected", cannot guarantee a four year tenure in office.
   
3. The decision in Ladoja v INEC (supra) applies in the instant case in that it is not compulsory that a governor must enjoy an unbroken tenure of four years. It is immaterial that something occurs which temporarily keeps the governor out of office for a period of time. Since the previous oath still subsists, his tenure continues to run from the date he swore to those oaths until the expiration of four years. The tenure of a governor cannot and should not under any guise be extended beyond the time provided for by the Constitution. The Constitution does not insist on an unbroken tenure. However, this does not ipso facto mean that a governor's tenure may be predicated on two different elections, whether or not one is invalid as that issue remains a moot point.
   

Laudable as the above reasoning may seem, it is however submitted that this is not actually consistent with a holistic reading of all the relevant provisions above, in the light of generally established principles of law under Nigerian jurisprudence. The following points must be noted:

1. An act may be set aside by the courts either on the ground that it was void ab initio, or that it was voidable. Once such an act is set aside, it becomes a nullity. When a thing is a nullity, it has no legal consequences and binds no one under any circumstance.
   
2. All subsequent acts purportedly predicated on such an act so declared void would also collapse (whether or not such subsequent acts were regularly done). However, as an exception to the above rule, the legislature may, through the vehicle of a statutory provision and on grounds of public policy, deem such subsequent acts as having been validly performed.
   
3. An apt example is the position under Sec. 39(1) - (3), CAMA, Cap. C20, LFN, 2004. Under those provisions, Sec. 39(1) outrightly prohibits companies from engaging in ultra vires transactions and thus, they are void. However, by Sec. 39(3), if the ultra vires act has been completed and wholly performed, it shall not be declared invalid. All executory (i.e. yet to be completed ultra vires transactions) are clearly unaffected by Sec. 39(3) and are thus invalid.
   
4. Another example is the position under public international law. Art. 2(4), UN Charter prohibits the use of force against the sovereignty of any state. No rights (e.g. claim over the territory of the state) can be derived from such a void act. However, in a bid to prevent chaos and anarchy in the international order, where a substantial number of states recognize the claim, it is thereby validated, even though the U.N Security Council and General Assembly may yet sanction the offending state.
   

In view of the above, can the position under our electoral laws be any different? It is submitted that the answer is definitely in the negative. Clearly, the term void when applied to an election can mean nothing other than the fact that as a general rule, no legal consequences can flow from that exercise. Indeed, everything done pursuant to that election (including the oaths sworn and any exercise of governmental powers), "ordinarily" ought to be invalid. Put differently, if the election is invalid, the oath is invalid and if the oath is invalid the acts done ordinarily, ought to be invalid. However, for reasons of public policy, Sec. 143, Electoral Act, 2010 as interpreted by the apex court in Balonwu v Gov. Anambra State (supra), deems valid all acts of the person in the exercise of the functions of the office of the governor. But it must be noted that applying the expressio unis est exclusio alterius maxim of interpretation, only the particular thing mentioned (i.e. acts of the person while in office) is saved. Every other thing not mentioned is excluded and thus collapses with the annulled election. By Sec. 185(1) CFRN (supra), it is clear that an elected governor cannot start performing the functions of his office until he has sworn the oaths of office and allegiance. It is unarguably true that the oaths are pre-conditions to the exercise of the powers of the office of a governor and thus, are not acts done in exercise of the functions of the office of the governor. It therefore follows by parity of reasoning, just like day follows night, that whereas the latter is validated by the above statutory provision, the former (i.e. oaths) must collapse with the annulled election, since it was not expressly mentioned in that provision.

This view is in tandem with the reasoning of the Court of Appeal per Garba JCA in this case, that a person who was not validly elected cannot validly subscribe to the oaths of office and allegiance. It then follows that a person cannot be said to be the "first elected person under this Constitution" as stipulated in Sec. 180(2), unless he was validly elected in accordance with the provisions of the Constitution and the Electoral Act. The term "last elected person under this condition" will invariably refer to the situation flowing from Sec. 181(2) where both the governor and deputy governor elects die or are unable to assume office before the inauguration of the House of Assembly. It is submitted that in such a case, anyone who emerges the winner of the election to be conducted becomes the last elected person whose tenure would start from the date the deceased governor and deputy governor elects took the oaths or would have taken them but for their death.

Since a valid election is a pre-condition for the validity of the requisite oaths, and validly sworn oaths are one of the pre-conditions for the exercise of the functions of the office of a governor, it follows that the former of both conflicting interpretations, which is to the effect that tenure of the governors started when they took the oath of allegiance and oath of office pursuant to their being validly elected as governors (i.e. pursuant to the re-run election since the first election was nullified) is more consistent with a holistic reading of all the relevant provisions and established principles of law under Nigerian jurisprudence. Therefore, invalid oaths (i.e. oaths of allegiance and office sworn pursuant to an invalid election) cannot form the basis for the computation of the tenure of a governor, otherwise, there will be no need for another oath after the re-run elections.

It is clearly illogical and unacceptable to assert that the tenure of a governor can be predicated on two different elections, let alone a situation where one is invalid and the other valid, all in justification of the reasoning that the Constitution does not insist on an unbroken tenure. If a valid election is a pre-condition to the taking of valid oaths and by Sec. 185(1) CFRN (supra), such oaths are conditions precedent to the exercise of the functions of the office of a governor, it follows that without a valid election there is no tenure such that a governor's tenure starts upon a valid election and the fulfillment of all other conditions precedent to the exercise of the functions of that office. The invalid election is useless for all intents and purposes though the harsh consequences of this position is mitigated as stated above on policy grounds.

It follows that the decision in Ladoja v INEC (supra) is inapplicable to the present case. In that case, the temporary removal of Ladoja from office was predicated on an illegal impeachment. The consequence of the declaration of the impeachment as void ab initio is that at the material time, he was never impeached and was at all material times the de jure governor. If this is so, it follows that his tenure was not halted by the purported impeachment as to warrant an extension covering the period of the impeachment. In the instant case, the implication of the declaration that the first election is a nullity is that the respondents were never validly elected as governors and were thus never de jure governors as opposed to Ladoja's case. This reasoning is consistent with the decision in Obi v INEC (supra). Thus, they became validly elected governors only after they won the re-run elections. Clearly, the ratio in Obi's case is apt and was applicable.

 

ISSUE 4

It must also be stated that the decision of the Supreme Court in Labour Party v INEC is quite inconsistent with that given by the same court in the present case. In Labour Party v INEC (supra), it was unequivocally stated that the law regards whatever was purportedly done as not having taken place at all. In the eyes of the law, the election was void ab initio such that the re-run election ordered is in essence, a fresh election. In the instant case, the Supreme Court unequivocally stated that an election which was later nullified was only voidable and not void. From the above, it follows that the apex court is guilty of approbation and reprobation (an act which the law frown at).

 

ISSUE 5

From the provisions of Sec. 185(1) CFRN (supra), it is crystal clear that a person elected as governor cannot start performing the functions of his office until he has declared his assets and liabilities and swears to the oath of allegiance and oath of office. Thus, they are conditions precedent to the valid exercise of the functions of the office of the governor. Indeed, the sequence of events ought to be this: An election – declaration of assets and liabilities – oaths of allegiance and of office – assumption of office.

 

The first three events are conditions precedent to the exercise of the functions of the office of the governor hence, the Constitutional characterization of the last out of the three (i.e. the swearing-in ceremony) as the reference point for computation of the tenure of a governor. "It is therefore the declaration and oaths that ushers in the governor into office" per Adekeye JSC. If the above conclusion as reached by the learned Justice is correct, what then is the basis for her decision that these events are mere ceremonies or formalities that are secondary to the tenure or functions of the office of a governor?" The Constitution itself has made these events a primary condition to be fulfilled before the governor can function as a governor, and has also dictated that they form the reference point for purposes of computation of his tenure per Onnoghgen JSC. Unless the Justices of the Supreme Court did set out to contradict themselves in this case, it is humbly submitted that the decision of Adekeye JSC does not represent the law on this point. However, this view of Adekeye JSC on the issue may be regarded as obiter dicta, since it was a mere passing remark, having adopted the reasoning and conclusions as contained in the lead judgment including the orders made therein as hers.

 

ISSUE 7

While interpreting the provisions of the Constitution, the Supreme Court came to the conclusion per Onnoghen JSC that, "From the totality of the relevant provisions of the 1999 Constitution including Sec. 180 (1-3) and 182(1)(b), a person first elected as governor of a state shall vacate his office at the expiration of a period of four years commencing from the date he took the first oath of allegiance and oath of office, though he could be re-elected for another tenure of four years giving him a maximum two tenures of eight years. No person elected under the 1999 CFRN can remain in that office for a day longer". To further buttress this point, the learned Justice stated that this time was as fixed as the 'rock of Gibraltar'. How true is the above assertion?

It is trite that in the construction of a statutory provision, the entire statute is to be read as a whole. Indeed, a community reading of Sec. 180(1) & (2), and 191(1) & (2) CFRN (supra) reveals the following:

1. That Sec. 180(2) which fixes the time limit at four years is subject to the provisions of Sec. 180(1). This means that the provisions of the former will override the latter on any point of inconsistency.
   
2. That by Sec. 180(1), a governor shall hold office until his successor takes the oath of that office. Thus, any event that prevents the emergence of a successor before the expiration of the four years (e.g. failure to hold elections), or which prevents the successor in office from swearing to the oath of allegiance and oath of office (e.g. bodily or mental incapacity) will definitely have the effect of extending the stay of the incumbent governor beyond four years.
   
3. That by Sec. 191(1), The deputy-governor of a state shall hold the office of governor of a state if the office of governor becomes vacant by reason of death, resignation, impeachment, permanent incapacity or removal of the governor from office for any other reason in accordance with Sec. 188 & 189 of the Constitution. Such a person is definitely not a "person first elected under this Constitution" as envisaged by Sec. 180(2)(a). Thus, upon completion of the tenure of the deceased or incapacitated governor, the person is entitled to contest fresh elections, with an option of re-election.
   
4. That by Sec. 191(2), where any vacancy occurs in the circumstances mentioned in Sec. 191(1) and during that period, the office of deputy-governor is also vacant, the Speaker of the House of Assembly of the state shall hold the office of governor of the state for a period of not more than three months during which elections shall be conducted. Indeed, the Speaker is not barred from contesting as candidate in that election. The Speaker or any other person who emerges the winner of the election is definitely not a "person first elected under this Constitution" as envisaged by Sec. 180(2)(a). Indeed, the person shall hold office only for the unexpired term of office of the previous governor. Clearly, upon expiration of that tenure, nothing prevents the person from now contesting fresh elections and if he wins, he becomes a "person first elected under the Constitution" and is thereby entitled to a tenure of four years with an option of re-election. Thus, the tenure is not as fixed as the rock of Gibraltar after all.
   

However, it is arguable that the assertion about the tenure being fixed like the rock of Gibraltar is only relevant for purposes of preventing the employment of the Constitution to attain the unconstitutional end of a person remaining in office in perpetuity. It does not apply to other instances where unforeseen circumstances affect the tenure of a governor.

 

ISSUE 8

The Supreme Court per Onnoghen JSC stated thus: "It is not in doubt that the lower court was the final court in governorship election petition matters and that its decision on such matters binds the election petition tribunals and courts below it in the hierarchy of courts. The above notwithstanding, this court, the Supreme Court of Nigeria, is not bound by the decisions of the lower court in matters where that court is the final court of appeal as this court is the final court in the land whose decisions are binding on all and sundry." What is the real import of this statement?

It simply means that the decisions of the Court of Appeal are not final of governorship election petition matters such that their judgments can be pronounced upon by the Supreme Court. It is trite that by Sec. 246(1) & (3) CFRN (supra) the decisions of the Court of Appeal on such matters are final. This simply means that it is binding on all persons and authorities. The Supreme Court cannot be more powerful than the Constitution. Indeed, by Sec. 1(1) & (3) CFRN (supra), the above opinion of the Supreme Court is null and void to the extent of its inconsistency with the provisions of the Constitution.

Moreso, it is trite that the only way the Supreme Court can assume jurisdiction to review and pronounce on a judgment of the Court of Appeal (i.e. in those cases where an appeal from the latter can lie to the former) is by way of an appeal properly brought before it based on that judgment. Otherwise, the Supreme Court lacks jurisdiction to go about picking holes and pronouncing on decisions of the Court of Appeal when there is no valid appeal from those decisions to it.

However, it must be emphasized that the pronouncement by the Supreme Court on this issue is supportable if they meant that the rationes expressed in decisions of the Court of Appeal in such cases are not binding on the apex court, the Supreme Court being the final and Supreme Court. In the instant case, it is submitted that the Supreme Court lacked jurisdiction to pronounce on a decision of the Court of Appeal with relation to the annulment of the first election (even if it could) since there was no appeal to it from that decision.

 

ISSUE 9

The Supreme Court rightly held that the new amendment is not relevant in determining this case. This is because the Constitution, like any other law, does not have a retrospective effect but operates prospectively as held in Olaniyi v Aruyehum. This proposition is correct since in modern times, laws are not made to have a retrospective effect but are created to take care of new situations rather than situations overtaken by events unless the contrary is expressed.

 

JUDICIAL PASSIVISM OR JUDICIAL ACTVISIM: AN IRRECONCILIABLE CONCLUSION

There has been a vociferous and unending controversy as to whether the power of the court begins and ends with the interpretation of law. The unrepentant exponents of judicial positivism argue that by the ancient doctrine of separation of powers, it amounts to usurpation of legislative functions for the court, under the guise of interpretation, to enact, re-write, amend, change, expand, add, subtract or insert what the law-maker failed to insert, as the statute must not be extended beyond its crude and proper limits in other to fill lacuna in the law to meet the 'perceived' justice of an individual case. If there is a gap in a statute, the proper remedy lies in a legislative amendment.

On the contrary, the protagonists of judicial activism ceaselessly maintain that law-making is an inherent and inevitable part of the judicial process. Thus, even though a judge is concerned with the interpretation of a statute, there is a scope for him to develop and amend the law, after all, it is he that infuses life and blood into the dry skeleton of the statute as enacted by the legislature and creates a living organism out of it to appropriately meet the needs of the expanding society. While the language of the law does not change, the changing circumstances in the progressive society for which it is designed dictates that it yield to fuller imports.

In the final analysis, the relevant question remains, in our indigenous legal system, which should hold sway? Is it judicial activism of judicial passivism? However, it must be noted that in choosing between the two approaches, the judge must take into account the present political, social, economic, cultural and other physical factors which may directly or indirectly affect the Nigerian polity. Be that as it may, the judge should not innovate at pleasure but must draw his innovation from consecrated principles and in accordance with the spirit and letters of the law. Thus, whenever a voyage is undertaken to decipher the spirit and intendment of any enactment, the rule of interpretation which best ensures justice should be adopted. This is because, at every given time, the purpose of law is the attainment of justice.

Thus, in any matter to be decided upon by any court, it should be ensured that the law goes side by side with the justice of the case. To achieve this end, it must also be constantly borne in mind that the spirit of the law does not dwell in technicalities, formalities or bare words. The law exists for justice and inflexibility may defeat this end. Whenever there is a contest between law and justice, our courts are enjoined to make the latter prevail by all means, after all, this is the ultimate reason for the evolution of equity.