Ali Peters V. Atigwe David O. & Ors (1999)
LawGlobal-Hub Lead Judgment Report
UBAEZONU, J.C.A.
The 1st appellant (Ali Peter S.) who is the only appellant in this appeal and will hereinafter be referred to as “the appellant” in the rest of this judgment and the respondent (Atigwe David O.) were contestants at the Enugu State House of Assembly election held on the 9th day of January, 1999 for the Igboeze North II constituency. At the end of the exercise the appellant was declared the winner. In consequence of the said declaration, the respondent filed a petition before the Election Tribunal which, in effect, annulled the said election and ordered a fresh election. Dissatisfied with the said decision, the appellant has appealed to this court on three grounds of appeal. He has also through his counsel filed a brief of argument. In his said brief, the appellant has formulated two issues for determination viz:
“1. Whether the issue of qualification or disqualification can be made a ground for questioning an election under Decree No.3 of 1999 or whether the tribunal has the jurisdiction to enquire into the issue of qualification or disqualification of a person whose nomination was screened, cleared and declared valid by the officers of INEC without appealing to INEC.
- Even if the issue of qualification or disqualification can be made a ground for questioning the appellant’s election whether the petitioner discharged the burden placed on him by proving that the 1st appellant was required under his contract of service, to pay one month’s salary in lieu of notice and if so whether non-payment of same vitiated his resignation.”
Arguing the issue No. 1, it is submitted that by virtue of Schedule 5 paragraph 6(3) of Decree No.3 of 1999 the decision of the Resident Electoral Commissioner or the Electoral Officer that a candidate has been validly nominated cannot be the ground of an election petition under the Decree. The Resident Electoral Commissioner or the Electoral Officer, it is argued, is the proper authority concerned with validating or invalidating nomination of a candidate for election under Schedule 5 paragraph 6(1) of the Decree. Learned counsel submits that paragraph 6(3) of Schedule 5 overrides section 134(1) of the Decree. He refers to and relies on Alhaji Muhailladu Egbu Enagi v. Dr. Musa Inuwa (1992) 3 NWLR (Pt.231) 548 at 565; Francis Doukpolagha v. Rufus Ada George (1992) 4 NWLR (Pt.236) 444 at 458; Sunday Chime v. Ben Collius Ndu (1993) 2 NWLR (Pt.277) 533.
On issue No.2, the appellant contends that matters relating to the resignation of the appellant form part of the public service contract of service. The terms of such service are always documented and are contained in the letter of appointment or Service Rules. The onus is on the petitioner to prove the terms and conditions of service of the 1st respondent. The oral evidence of P.W.1 is inadmissible. He refers to section 76 of the Evidence Act. Furthermore, it is submitted that Exhibits 1 and D1 are sufficient proof of the resignation of the respondent.
On the issue of payment of one month salary in lieu of notice, it is submitted that the evidence of the respondent on the matter was not challenged or contradicted.
On being served with the appellant’s brief, the respondent filed his own brief in which he formulated two issues for determination thus:
“(i) Is qualification or disqualification a ground on which a successful candidate’s election can be challenged under Decree No.3 of 1999.
(ii) Did the appellant who was a public officer under Igboeze North Local Government Council resign his appointment as required before contesting an election under Decree No.3 of 1999 for the Enugu State House of Assembly.”
On issue No.1, the respondent submits that the qualification or disqualification of a successful candidate who has contested an election under Decree No.3 of 1999 is a valid ground for an election petition. He relies on sections 18 and 19 of the Decree and section 134(1)(3) of the self same Decree. It is submitted that Schedule 5 paragraph 6(3) of the Decree deals with validating of nomination. It has nothing to do with election. Learned counsel draws a distinction between section 91 of Decree No. 50 of 1991 and section 134 of the Decree No.3 of 1999. He refers to Kalu Anya v. Iyayi (1993) 9 SCNJ (Pt.1) 57, (1993) 7 NWLR (Pt.305) 290: A.G. Lagos State v. Dosumu (1989) All NLR 504, (1989) 3 NWLR (Pt.111) 552. Counsel contends that Schedule 5 paragraph 6(3) does not oust the jurisdiction of the Election Tribunal.
Arguing the issue No.2, counsel submits that in Exh. 1, the purported letter of resignation dated 6th December, 1998 the appellant informed the Local Government Service Commission that he had resigned. The said letter, counsel argues, did not give any notice of resignation nor did it direct that any salary was paid in lieu of notice. In spite of the letter, the appellant’s name was in the payroll for December, 1998 salary which was duly signed and collected but later returned on 8th January, 1999 on the eve of the election. There was an erasure at a place for the signature of the recipient for the salary. This, counsel submits, is to avoid identification of the recipient of the salary. It is submitted that there is no sufficient evidence to show that the appellant in fact resigned. Learned counsel refers to and relies on Aondoakaa v. Ayegwea (1989) NEPLR 39; Adeniyi v. Council, Yaba College of Technology (1993) 6 NWLR (Pt.300) 426, (1993) 7 SCNJ (Pt.11) 304 at 366; Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) 599; Howard v. Pickford Tool Co. Ltd. (1951) 1 K.B. 417; Heyman v. Darwins (1949) A.C. 356 at 361.
In court, both counsel adopted their respective briefs. Mr. Eze, Learned counsel for the appellant contends, as in his brief, that paragraph 6(3) of Schedule 5 to Decree No.3 of 1999 overrides section 134(1) of the said Decree. He refers to paragraph 6(2) of schedule 5 to the Decree and submits that one of the things to be considered by INEC is whether the candidate was qualified or not. He described section 134(1) of the Decree as a mere “window dressing.” He equates section 134(1) to section 91(1) of the Decree No.50 of 1991 and relies on the decision of the Court of Appeal on that section of the 1991 Decree. He says that it is immaterial that the exclusion clause is contained in the schedule and submits that the schedule is as good and effective as the substantive law. He refers to Prof Olatunbosin v. NIFOR (1988) 3 NWLR (Pt.80) 25, (1988) 6 SCNJ 38 at 51.
On the second issue he submits that Exhs. 1 and D1 are sufficient to determine the appointment of the appellant with his employer. In Exh. D1 the Chairman of the Local Government endorsed “resignation accepted.
Chief Ifebunandu, learned counsel for the respondent says that contracts with statutory flavour can only be determined as provided by the statute. He refers in particular to Exhs. 2 and 3 showing that the appellant collected his December 1998 salary. He submits that section 134(1) is not ousted by Schedule 5 paragraph 6(3) of the Decree.
The two issues formulated by the appellant and the respondent are substantially the same. The two issues in each brief bring out the real issues in this appeal viz:
(1) Is qualification or non-qualification of a candidate a ground for election petition under Decree No.3 of (1999) (hereinafter referred to in the rest of this judgment simply as “the Decree”).
(2) Did the appellant resign his appointment as required by the Decree?
My above posers adequately encompass the four issues in both briefs. I shall deal with the first issue first.
I shall start by saying that a provision in the schedule of an enactment is as good as any provision in the enactment. It has the same legal validity or force as any other provision in the enactment. None can override the other unless the enactment so expressly says. Let me now deal with paragraph 6(3) of Schedule 5 to the Decree. It is an all important provision for the purposes of this appeal. I shall set it out verbatim. It provides:
“(3) Notwithstanding any other provision of this Decree or any other law, the decision of the Resident Electoral Commissioner or the Electoral Officer, that a candidate has been validly nominated under sub-paragraph (2) of this paragraph shall not be the ground of an election petition under this Decree.” (Italics mine)
Mr. Eze, learned counsel for the appellant has, in a strong and brilliant advocacy, argued that the said paragraph of the schedule overrides section 134(1) of the Decree. He describes section 134(1) as a mere “window dressing”. I admire his ingenuity. I do not however agree with him. Section 134(1)(a) of the Decree provides as follows:-
“134(1) An election may be questioned on any of the following grounds, that is-
(a) that a person whose election is questioned was, at the time of the election not qualified, or was disqualified from being elected;” (Italics mine).
The schedule, i.e., Schedule 5 paragraph 6(3) and the section i.e. section 134(1) (a) talk about two different things. While the schedule talks about nomination, section 134(1)(a) talks about election. While the schedule deals with the powers of the Electoral Commissioner or the Electoral Officer, section 134(1) deals with the grounds on which a party may bring an election petition before an Election Petition Tribunal. Thus, both the matter dealt with by each provision of the law and the body to deal with it are different. Learned counsel for the appellant pitched his attack on section 134(1) of the Decree by the use of the word “Notwithstanding” in paragraph 6(3) of Schedule 5 and contends that by the use of that word any other provision in the Decree which is in conflict with paragraph 6(3) of Schedule 5 is wiped out. There is however no conflict between the paragraph in the schedule under consideration with section 134(1) of the Decree. As I have pointed out, they deal with different things and therefore cannot be in conflict with each other.
They are like two parallel straight lines on the same plane, which we learn in geometry, will never meet.
Before I go into the decided cases, let me point out the sense or need in the two provisions of the law. Schedule 5 paragraph 6(3) is designed to make the decision of the Resident Electoral Commissioner or Electoral Officer to be final, before the election, over the issue of the nomination of a candidate so that the election may not be stalled. But for this provision candidates or political parties may challenge the nomination of a candidate in the tribunal and thereby delay, frustrate or even stop the particular election. The intendment of the law is to ensure that nothing stops the holding of an election. After the election, candidates may then have a field day in the tribunal. It is at this stage i.e. after the election that section 134(1) comes into effect and becomes operational. The submission that paragraph 6(3) of Schedule 5 overrides S.134(1) of the Decree or that section 134(1) of the Decree is a mere “window dressing” is therefore not well founded.
Learned counsel for the appellant has referred to a number of decided cases based on Decree No. 50 of 1991. The most important of those cases is Enagi v. Inuwa (supra). He argues that section 91 (1) of Decree 50 of 1991 is similar to section 134(1) of Decree No.3 of 1999 yet the Court of Appeal (Kaduna Division) in Enagi v. Inuwa (supra) held that the Election Tribunal had no jurisdiction to enquire into the qualification of the candidate. For a proper comparison of the two provisions of the Decree. I reproduce hereunder the provisions of S.91 (1)(a) of Decree No.50 of 1991. The provisions of paragraph 6(3) of schedule 5 of Decree No.3 of 1999 have been reproduced earlier in this judgment. Decree 50 of 1991 provides:
“91 (1) An election may be questioned on the following grounds;
(a) that the person whose election was questioned was at the time of the election not qualified or was disqualified from being elected to the office of Governor or as a member of a Legislative House:
Provided that the power of the Chief Electoral Officer of the Federation or any officer delegated by him in that behalf as to the validity of nominations under paragraph 5(3) of Schedule 5 to this Decree shall not be ground for such election petition.”
It will be noticed that the proviso in Decree No.50 of 1991 is omitted in the Decree No.3 of 1999. Moreover, even with the proviso in Decree No.50 of 1991, I have my doubts as to whether the Court of Appeal sitting at Kaduna in 1992 came to a correct decision. I am aware of the fact that this court ought to follow its earlier decisions unless the earlier decision is given per incuram or the earlier decision is wrong. With great respect, the interpretation of section 91 (1) of Decree 50 of 1991 in the Enagi case by the Court of Appeal Kaduna Division) is wrong. The proviso merely deals with the power of the Chief Electoral Officer as to the validity of nominations. Section 91 (1) (a) of Decree No.50 of 1991 is clear and unambiguous in its provision. It creates a right to questioned an election on the ground that the person whose election is questioned was at the time of the election, not qualified or was disqualified from being elected. Neither the courts nor the decision in Enagi v. Inuwa (supra) can take away that right. It is only the law makers that can take away that right by amending Decree 50 of 1991. In case there is a misconception in the proviso in the Decree No. 50 of 1991 to the effect that the tribunal had no jurisdiction to inquire into qualification as decided by Enagi v. Inuwa (supra) the law makers have done the right thing by removing the proviso in the Decree No. 3 of 1999, Thus the decision in Enagi v. Inuwa (supra) is no longer relevant in the present circumstances. Even if it is still relevant, I shall not follow it.
It is important to note that the prohibition imposed by paragraph 6(3) of Schedule 5 to the Decree relates only to the decision of the Resident Electoral Commission or Electoral Officer as to whether a “candidate has been validly nominated sub-paragraph (2)” of paragraph 6. Sub-paragraph 2 of paragraph 6 provides that the
The Resident Electoral Commissioner or the Electoral Officer shall be entitled to declare the nomination form invalid only on one or more of the following grounds-
…
…
(f) That the candidate does not possess any of the qualifications required under this Decree”.
It would seem therefore that the Resident Electoral Commissioner or Electoral Officer will declare the nomination form invalid only if the “candidate does not possess any of the qualifications required by the Decree”. Thus, a candidate who possesses one or more of the qualifications but does not possess others could still have his nomination form declared valid. Such a candidate thus gets over the hurdle of nomination. But when it comes to an election petition, the tribunal can enquire into the other qualifications which the candidate may not have or disqualification which may amend the candidate.
Another important provision of the Decree is section 131. It gives the tribunal wide powers, to the exclusion of any other court or tribunal, to hear and determine any question as to whether
“(a) any person has been validly elected at an election under this Decree….”
A candidate who has not got all the qualifications prescribed by the Decree or who is disqualified has not, in my view been “validly elected” under the Decree. The decision of the Resident Electoral Commissioner or the Electoral Officer cannot restrict the jurisdiction of the tribunal under the Decree.
Learned counsel for the appellant raises, yet, another interesting point of law. He argues that paragraph 6(3) of Schedule 5 to the Decree is an exclusion clause. He submits that by its operations the provisions of section 134(1) are excluded. An exclusion clause in a statute is one which prohibits or nullifies the operation of a particular provision of the statute.
An exclusion clause must be clear and specific as to what it excludes, prohibits or nullifies. Where a section of a statute is in conflict with the other, neither section operates as an exclusion clause to the other. Paragraph 6(3) of Schedule 5 to the Decree is not an exclusion clause to section 134(1)(a) of the Decree.
In the light of all the above, I come to the inevitable conclusion that the qualification or disqualification of a candidate is a ground for election petition under the Decree. The tribunal therefore rightly went into the issue of the qualification or disqualification of the appellant.
The next question is whether the appellant resigned his appointment as required by the Decree.Section 18 of the Decree sets out the qualifications which a candidate for the election must possess. Section 19 of the said Decree sets out the disqualifications which if any of them afflicts a candidate he cannot be qualified for election under the Decree. For our purposes, section 19(1)(e) of the Decree is relevant. It provides:
19(1) No person shall be qualified for election to a House of Assembly if-
(e) being a person employed in the public service of the Federation or of any State, or of any Local Government or Area Council, he has not resigned, withdrawn or retired from the employment at least 30 days to the date of the election or” …” (Italics mine)
It is not in dispute that the appellant was a person employed in the public service of the Local Government of Igboeze North. This point is conceded by both sides. The question for consideration before the tribunal and therefore before this court is whether “he has not resigned, withdrawn or retired from the employment at least 30 days to the date of the election”. Whether he has or has not done the above is a matter of evidence. The onus was on the respondent who was the petitioner in the tribunal to prove that the appellant had not resigned, withdrawn or retired from the said employment. Exh. 1 with the endorsement “resignation accepted” would have gone a long way in proving the resignation of the appellant.
There is however, abundant evidence in the record, the effect of which detracted seriously from the probative value of Exh.1. At page 27 of the record, P.W.1 Emmanuel Ugu Madu, a Director of Personnel at the Local Government Service Commission Enugu testified in part as follows:
“A staff of the Local Government Service Commission can only resign his appointment by giving one month notice of intention to resign or pays one month salary in lieu of notice. The 1st respondent (now appellant) did not do any of the above. As is (sic) to say he did not give one month notice or paid one month salary in lieu of notice”.
(words in the bracket supplied by me).
Exh.2 which is the payroll for December 1998 contains the name of the appellant – see pages 28-29 of the record. Under the cross-examination of P.W.3 he however said that the reason why the appellant did not claim his December salary was that he had resigned his appointment with the Local Government. In another breadth the same witness (P.W.3) said that “As a cashier it is not known that Peter S. Ali has resigned.” On resumption of his evidence P.W.1 testified as follows at page 36 of the record:
“The commission has not accepted that the 1st respondent (now appellant) has resigned. He did not pay one month salary in lieu of notice. And he did not give one month notice either”. (Words in bracket supplied by me).
Under cross-examination, P.W.1 said as follows:
“There (sic) is no where in the letter Exh. 1 that the 1st respondent (now appellant) was giving one month notice to the commission or to Igboeze North Local Government…
If the 1st respondent (appellant) has paid one month salary in lieu of notice I should know because he would have mentioned it in his letter or resignation.” (Words in bracket supplied by me).
From the above evidence it is clear that Exh.1 is either a ruse or has no evidence value in proof of the fact that the appellant has resigned his appointment.
The tribunal considered all the facts before it and came to the conclusion that there was not a valid resignation of the appellant from the services of the Igboeze North Local Government. I have no reason to disturb that conclusion which the tribunal arrived at.
Let me make an observation on a point of law which learned counsel on both sides did not avert their minds to and therefore was not considered by the tribunal. Section 19(1)(e) provides that a candidate for the election is disqualified if “he has not resigned, withdrawn or retired from the employment”. (underlining mine). Nobody considered what withdrawing from an employment amounts to. The use of the word “withdrawn” in the Decree is not for fancy nor is it a “window dressing” with due apologies to counsel for the appellant. All the parties concentrated on resignation and paying one month’s salary in lieu of notice. What does withdrawing from a service means? Must a servant give notice or pay one month’s salary in lieu of notice in order to withdraw from an employment? I have raised this point in order to agitate counsel’s mind on a future occasion. Since however it was not raised in the tribunal and not made an issue here it remains a non issue.
In the final analysis, this appeal fails and is hereby dismissed with N3,000 costs to the respondent. The order for a fresh election as ordered by the tribunal is hereby affirmed.
Other Citations: (1999)LCN/0485(CA)
