Nicholas Oluyemi & Anor V. Ajewole Edward Asaolu & Ors (2008)

LawGlobal-Hub Lead Judgment Report

O. O.ADEKEYE, J.C.A.

This appeal emanated from the judgment of the Ekiti State Governorship and Legislative houses Election Tribunal delivered on the 31st of October 2007. In the considered judgment the Tribunal dismissed the petition med by the Appellants – Nicholas Oluyemi and the Peoples Democratic Party, against the return of the 1st

Respondent, Ajewole Edward Asaolu as the winner of the election into the Ekiti State House of Assembly in the Ekiti South West 1 Constituency.

Being aggrieved by the decision of the lower Tribunal, the Appellant lodged an appeal in this court on the 19th of November 2007. In giving a resume of the background facts of the case, the 1st Appellant and the 1st Respondent contested the election held on the 14th of April 2007 into the Ekiti State House of Assembly. The 1st Appellant contested under the banner of Peoples Democratic Party (PDP) the 2nd Appellant and the 1st Respondent contested as candidate of the 2nd Respondent, Action congress (AC). The 3rd and 4th Respondents had the constitutional role to conduct the Election. At the conclusion of the election, the 1st Respondent was declared the winner with 4,093 votes while the 1st Appellant scored 3,342 votes. The Petitioners registered their displeasure to the return declared by the 3rd and 4th Respondents by filing a Petition before the Ekiti State Governorship and Legislative Houses Election Tribunal on the 26thof April 2007.

The ground specified in the Petition was as follows:

“(a) That the 1st Respondent was at the time of the election not qualified to contest the election.

In the alternative –

(b) That the election is invalid by reason of corrupt practices and non-compliance with the provision of the Electoral Act 2006. ”

In support of (a) above the 1st Petitioner/Appellant averred in his pleadings that the 1st Respondent who was prior to his election an employee of Ekiti State Local Government Service Commission did not resign his appointment 30 days before the date of the election, as stipulated in the provisions of the 1999 Constitution.

The 1st Respondent filed a Reply where he raised a preliminary objection to the hearing of the petition on the following grounds –

“(1) That the Petitioner lacks locus standi to file the petition.

(2) That Tribunal/Court lacks jurisdiction to entertain the petition

(3) The petition is incompetent. ”

On the 20thof May 2007, the 1st and 2nd Respondents filed a formal application to challenge the jurisdiction of the Tribunal to entertain the petition. The gist of the application was that the PDP had failed to substitute one Olagoke Egunjobi with the 1st Petitioner within the period stipulated by the Electoral Act 2006, in that premises – he did not have the locus to present the petition. On the 10th of July 2007 the Tribunal gave a considered Ruling and found that the 1st Petitioner/Appellant disclosed his locus to file the petition. When the petition proceeded to trial – the Petitioners/ Appellants called five witnesses and the 1st and 2nd Respondents called three witnesses. Documents were tendered to establish that the 1st Respondent resigned his appointment within the time stipulated by the 1999 Constitution. In the judgment delivered at the close of trial on the 31st of October 2007, the lower Tribunal found that the 1st Respondent under Section 144 (1) of the Electoral Act 2006, was by virtue of the fact th he scored votes at the election a candidate de facto. He did not acquire the locus to present the petition as he was not a candidate de jure owing to the fact that his name was not on the list of nominated candidates on 14th of March 2007 – precisely 30 days before the election date.

The Appellant in his notice of appeal raised seven grounds of appeal initially and two additional grounds by order of this Court. At the hearing of the appeal on the 8th of April 2008, the learned counsel for the Appellant adopted the Respondents’ brief and relied on the four issues identified therein for determination in this appeal.

The issues are as follows –

“(1) Whether the Tribunal was not in error when it assumed jurisdiction over the validity of the pre-election nomination of the 1st Petitioner by the 2nd Petitioner to contest the election.

(2) Whether the Tribunal’s finding on the 1st Petitioner’s locus was not erroneous particularly given 1st and 2nd Respondents admission of and the Tribunal’s own finding on the 1st Petitioner’s candidature at the election.

(3) Whether the refusal of the Tribunal to admit the staff file of the 1st Respondent with his employers in evidence and the marking of same as PW5RJ did not in the circumstances of the case occasion a miscarriage of justice to the Appellants.

(4) Whether there was any basis for the Tribunals belief of the evidence of DW3 regard being had to the inadmissible nature of Exhibit DW2C and the Tribunal’s misconception of the nature and contents of Exhibit PW4C”

In the Respondents’ brief filed on the 22nd of February 2008, and adopted by the 1st and 2nd Respondents at the hearing of the appeal on the 8th of Apri1 2008 – two issues were settled for determination as follows –

“(1) Whether the Tribunal was right or wrong in holding that the 1st Petitioner was not a candidate at the election of 14th April 2007 and as such lack locus standi to institute the petition.

(2) Whether the Tribunal properly appraised evaluated and jettisoned evidence placed before it before coming to a decision on the matter. ”

I intend to adopt and be guided by the four issues raised by the Appellants for the purpose of this appeal.

Issue No. One

Whether the Tribunal was not in error when it assumed jurisdiction over the validity of the pre-election nomination of the 1st Petitioner by the 2nd Petitioner to contest the election.

The learned counsel for the Appellants submitted on this issue, that nomination and substitution raised in the objection by the 1st and 2nd Respondents as stated above are pre-election matters. The tribunal was therefore wrong to have assumed jurisdiction over a pre-election issue of validity of nomination of candidates. The learned counsel cited the cases: A.C. v. I.N.E.C (2007) 18 NWLR Pt. 1065 at Pg. 60; Ayogn v. Nnamani (2006) 11 NWLR Pt. 981 Pg. 160. The unreported decision of the Court of Appeal in the case of Senator Effiong Bob v. Chief I. Umeh Albert & 3 Ors Appeal No. CA/A/97/M/2007 delivered on Tuesday 3rd July 2007. Also that the jurisdiction of the Tribunal is constitutional and as provided in Section 2S5 (2) of the Constitution of the Federal Republic of Nigeria 1999.

In objecting to the locus standi of the 1st Petitioner/Appellant to file the petition, the 1st and 2nd Respondents focused on who the candidate of the 2nd Petitioner/Appellant PDP at the election ought to be – as between one Victor -Egunjobi and the 1st Appellant. That Victor Egunjobi was the candidate nominated by 2nd Appellant and not the Petitioner, according to the list of candidate issued by INEC Exhibit DW2B dated the 14th of March 2007, being 30 days before the election as stipulated in Section 35 of the Electoral Act 2006. The Tribunal examined Exhibit DW2B – the list of validly nominated candidates to arrive at the conclusion that the 1st Appellant was not a validly nominated candidate for the Ekiti South West 1 Constituency for the House of Assembly Election on the l4th of April 2007. By stating that the 1st Appellant was not a validly nominated candidate – the Tribunal agreed with the 1st and 2nd Respondents that Victor Egunjobi was the validly nominated candidate. The learned counsel concluded that by this finding the Tribunal strayed into an arena over which it had no jurisdiction – which is the validity or otherwise of the 1st Appellant’s nomination by the party. This court is urged to resolve this issue in favour of the Appellants.

The 1st and 2nd Respondents’ counsel delved into the definition of locus standi and laid emphasis on the fact that where a Petitioner lacks locus standi, his action is incompetent and the jurisdiction of the court to entertain same is eroded. The fundamental aspect of locus standi is that it focuses on the party seeking to get his complaints before a court and not on the issues he wants to have adjudicated. In this appeal one Victor Olajide Egunjobi was the Peoples Democratic Party candidate for the Ekiti South West Constituency 1 House of Assembly seat for the House of Assembly election of the 14th of April 2007. Exhibit DW2B, INEC’s list of candidates sponsored by the political parties that participated in the House of Assembly election confirmed this. The list was compiled by INEC on l4th of March 2007 – which was 30 days to the election. At the return of the election the 1st Appellant’s name was declared by INEC – and on that basis he presented a petition before the lower Tribunal to challenge the return of the 1st Respondent herein. The Tribunal had to look into the sponsorship of the 1st Appellant so as to determine whether he was a candidate in the election in view of Section 144 (1) of the Electoral Act. In the pleadings of the parties – the 1st Appellant pleaded that he was a candidate while the 1st and 2nd Respondents admitted in paragraph 2 of their Reply to the Petition that the Peoples Democratic Party is a Registered Political Party but did not sponsor the 1st Appellant within the stipulated time frame. A copy of the sponsored candidates list was pleaded.

The Tribunal in the course of determining the issue of locus standi of the 1st Appellant had to delve into pre-election issues.

The learned counsel finally submitted that the issue of the 1st Appellant’s locus standi as raised by the 1st and 2nd Respondents does not fall within the precinct of pre-election matters. By virtue of Section 285 of the 1999 Constitution, all disputes arising out of election comes within the jurisdiction of Election Petition Tribunal. The court is urged to resolve this issue in favour of the 1st and 2nd Respondents.

Issue No. Two

Whether the Tribunal’s finding on the 1st Petitioner’s locus was not erroneous particularly given IS’ and 2nd Respondents admission of and the Tribunals own finding on the 1st Petitioner’s candidate at the election.

On this issue learned counsel for the Appellants submitted that locus standi to institute an action is essential to the competence of a court to entertain an action. It is the pleadings that must be examined in other to determine whether a Petitioner has disclosed a locus under the Electoral Act 2006. The 1st Petitioner/Appellant pleaded in paragraphs 1, 3 and 4 of the Petition as follows –

“(1) Your 1st Petitioner, Nicholas Oluyemi was a House of Assembly candidate in Ekiti Southwest I Constituency of Ekiti State in the House of Assembly election held on 14th of April 2007.

(3) Your Petitioner states that the candidate and their scores as declared by the Resident Electoral Commissioner Ekiti State for the House of Assembly Election in Ekiti Southwest I Constituency are as follows:

Action Congress (AC) Edward Ajewole Asaolu 4,093 Peoples Democratic Party (PDP) Nicholas Oluyemi 3,342 Labour Party (LP) Oluwole Fanimi 108 Democratic Peoples Party (DPP) Boluwaji Oguntamore 90

(4) The 1st Respondent who was sponsored by the Action Congress (2nd Respondent) was returned as elected. ”

The above pleadings of the 1st Appellant satisfied the provision of Section 144 (1) of the Electoral Act – to the effect that he was a candidate in an election. In the Ruling of the Tribunal delivered on the 10th of July 2007, it held that the pleading of the 1st Appellant satisfies the provisions of Section 144 (1) (a) of the Electoral Act 2006. In the Ruling the Tribunal found that the 1st Petitioner had pleaded his locus to present the petition. It is trite that no court is permitted except in some clearly defined circumstances of which the facts of this matter do not fall into, to revisit and overrule its own decisions made in the same matter between the same parties. The effect of the Tribunals finding of the 31st of October 2007 is a complete revisit and reversal of its decision of 10th July 2007. The Tribunal was functus officio as regards issue of locus standi, hence it lacked the jurisdiction to entertain and pronounce as it did in its judgment of 31st October 2007.

The learned counsel further expressed that the Tribunal misapplied the distinction between Candidate De jure and Candidate De facto as enunciated by the Supreme Court in the unreported case of Hon. Rotimi Ameachi v. Celestine Omehia. There was no legal contest between the 1st Appellant and the Victor Olajide Egunjobi whose name appeared on Exhibit DW2B – a list of the validly nominated candidate of political parties. There was no complaint before the Tribunal by the 2nd Petitioner or Olajide Egunjobi who by assertion of the 1st and 2nd Respondents was the real candidate of 2nd Appellant disclaiming the candidature of the 1st Appellant. This makes the difference between this case and Ameachi’s case where unlawful substitution was in issue. The 1st and 2nd Respondents had admitted the candidature of the 1st Appellant at the election in their Reply to the petition, but denied that he was sponsored by the 2nd Appellant within the stipulated time frame.

The Appellants cited cases as follows: Disu v. Ajilownra (2000) 14 NWLR Pt. 1000 Pg. 783; Nnamani v. Nnaji (1999) 7 NWLR Pt. 610 Pg. 313 at Pg. 329; Zimit v. Mahmoud (1993) 1 NWLR Pt. 267 Pg. 71; Obi-Odu v. Duke (No.1) (2005) 10 NWLR Pt. 932 Pg. 81.

The learned counsel for the Respondents replied that there is no survival for a suit before a court where the Plaintiff lacked locus as the term locus standi denotes legal capacity to institute proceedings in a court of law. The Tribunal made a direct finding that the 1st Petitioner satisfied Section 144 of the Electoral Act 2006 as regards locus standi to present a petition, but the issue of the 1st Appellant’s locus standi was not fully determined but left to be decided during the full trial of the petition. In effect, the Tribunal has not become functus officio. The Tribunal also held that in the course of hearing the petition on merit it would look into the qualification of the Petitioner. The 1st and 2nd Respondents raised preliminary objection to the effect that the Petitioners – now Appellants lacked locus standi to file the petition and that the lower Tribunal lacked jurisdiction to entertain the petition and that the petition is incompetent. The Tribunal concluded that the tenor of the reply of the Petitioner is in consonance with an admission that the 1st Petitioner was a candidate in the election. The issue of the 1st Appellant’s locus standi as raised by the 1st and 2nd Respondents does not fall within the precinct of pre-election matters, as all disputes arising out of election comes within the jurisdiction of the Election Petition Tribunal. The bone of contention of the Respondents is whether a party who was not a candidate at an election can present a petition or given the facts and circumstances of this case, the 1st Appellant has the right or legal capacity to present the petition before the lower Tribunal. DW4 a witness of the INEC testified that the election was done in substantial compliance with the conduct of an election – and that the list of all candidates was contained in DW2B. The Appellants did not lead any evidence that the 1st Appellant was the sponsored candidate of the 2nd Appellant at the election except a counter-affidavit filed and documents attached on the 11th of June 2007 to show that the 2nd Appellant withdrew the name of its former candidate and substituted it with that of 1st Appellant. Vide page 240 of the Record. The lower Tribunal did not attach any probative value to them as they were not certified, nor dated and unsigned. The court is urged to resolve this issue against the Appellants.

Issue No. Three

Whether the refusal of the Tribunal to admit the staff file of the 1st Respondent with his employers in evidence and the marking of same as PW3 RJI did not in the circumstances of the case occasion a miscarriage of justice to the Appellants The Appellants in their submission on this issue narrated that before the Tribunal they sought to tender the original file of the 1st Respondent with his employer as evidence. The file was to be tendered through PW5 the Director Personnel of the Ekiti State Local Government Service Commission who had been subpoenaed to give evidence. There was no dispute that the 1st Respondent was employed by the Local Government Service Commission but seconded to the Ekiti South Local Government. There was evidence from DW5 that the Ekiti Local Government Service Commission did not receive any letter of resignation from the 1st Respondent and an attempt to tender his staff file through the witness to support his evidence was opposed by the Respondents’ counsel. The Tribunal agreed with the Respondents’ counsel and rejected the document marking same PW5RJI. The Tribunal wrongly rejected the file as its admission was vital to ascertaining whether the 1st Respondent resigned his appointment at the time required by the Constitution.

The learned counsel for the Appellants referred to paragraph 13 of the pleadings in the petition where the Petitioner averred that it shall rely on the 1st Respondent’s file with the Local Government Service Commission at the trial of this action. The file was relevant to the action and being the original makes it admissible. The reason given by the Tribunal in rejecting PW5RJI was that one original file had already been tendered as PW4C through PW4. The Appellants gave reasons why the finding of the Tribunal in rejecting Exh.PW5RJI was wrong are that:

(1) The file with the employer of the 1st Respondent – The Ekiti Local Government Service Commission is the original staff file and not the file with the Ekiti South West Local Government.

(2) The 1st Respondent was employed by the Ekiti Local Government Commission and seconded to the Ekiti South West Local Government.

(3) Not been the original staff file – the admission of PW4C should therefore not have been a bar against the admission of PW5RJI.

(4) The Tribunal should not have rejected the file if it was relevant to the issue before the court as admissibility of a document is different from the weight to be attached to it.

The learned counsel emphasized that the rejection of PW 5RJI had occasioned a miscarriage of justice for reasons that –

(a) The letter of resignation should have been considered in PW5RJI – his original file and not in PW4C. So also the evidence of D W2 AND DW3 as regards his letter of resignation should have been related to the file PW5RJI and not PW4C which was not the original file with his employer.

(b) The evidence of DW2 that the letter of resignation filed with the Ekiti South West Local Government for onward transmission to Ekiti Local Government Commission was not pleaded, and hence the Tribunal wrongly applied and relied on it.

(c) The complaint of the Petitioners/Appellants was that the 1st Respondent did not resign his appointment with the Ekiti Local Government Service Commission.

(d) The 1st Respondent only pleaded that he resigned his appointment with the Ekiti South Local Government. The evidence of DW2 that his resignation letter must pass to the State Local Government Service Commission through the Director of Administration of the Ekiti South West Local Government was not pleaded and that makes it an afterthought.

(e) Such evidence must be discountenanced and expunged from record.

(f) The 1st Respondent gave evidence that he was only posted to the Ekiti South West Local Government and not employed by them.

(g) The only way the fact of the resignation of the 1st Respondent could have been ascertained was to look at the 1st Respondent’s file with his employers which was wrongly rejected by the Tribunal.

The court is to resolve this issue in favour of the Appellants. The Appellants cited the case: Torti v. Ukpabi (1984) 1 SCNLR Pg. 214.

The learned counsel representing the Respondents amplified on the gravamen of the Appellants’ case which is that the 1st Respondent was not qualified to contest for the House of Assembly election in Ekiti South West Constituency I because he did not resign his appointment with the Ekiti State Local Government Service Commission. The Respondents joined issues with the Appellants. The learned counsel for the Respondents concluded that on the sum total of the evidence before the Tribunal the allegation that the 1st Respondent did not resign his appointment

was not made out. PW4 one Apostle Olomu – the Director of Administration with the Ekiti West Local Government through whom Exhibit PW4C was tendered – said that Ashaolu the 1st respondent is a staff of Ekiti State Local Government Service Commission posted to Ekiti South West Local Government. He tendered what was produced as the original file of Edward Ashaolu – PW4C. During the trial the Respondents objected to the admissibility of PW4C on grounds of being doctored, mutilated, altered and incomplete. The appellants insisted on tendering another original file when PW4C had already been tendered original file as backed up by the pleadings of the Appellants. The Appellants contended also that the Tribunal was in error by placing reliance on the letter of resignation of the 1st Respondent being a photocopy. Further the resignation letter pleaded were supposed to be dated 13/11/06, whereas DW2C was dated 1/11/06, on this score placing reliance on DW2C has occasioned a miscarriage of justice. The Tribunal gave a Ruling in respect of the admissibility of DW2C which in the opinion of the counsel for the Respondent cannot be faulted. The learned counsel to the Respondents submitted that the original of this resignation letter could be found in the me. The 1st and 2nd Respondents caused a notice to be served on the former employer of the 1st Respondent – Ekiti South West Local Government to produce the original copy – which they refused and neglected to produce before the tribunal. The law is that in the circumstance the party seeking to rely on that document can tender any copy with him for admission. The Appellant attacked the evidence of DW3 as the officer who receives incoming mails in his official capacity and he received DW2C on 13/11/06 and acted on it by filing same and passing it thereafter to the PAS head of Department of Administration. The Tribunal believed the evidence of the DW3.

The question of credibility and reliability of the evidence of witnesses is the principal duty of a trial court – after watching the demeanour of witnesses. The learned counsel regarded Exhibit PW4C 13 and PW4C 14 written by PW4 as an afterthought. PW4 admitted in his evidence that Exhibits PW4C 13 and PW4C 14 have been doctored and re-written. The learned counsel for the Respondents expressed that the Appellants have the burden to prove that the 1st Respondent did not duly resign his appointment with the Ekiti State Local Government Service Commission as authorized by the Constitution.

The issue of writing a resignation letter through the Ekiti South West Local Government Service Commission is purely an administrative procedure – which the DW3 has a duty to explain being the modus operandi of exchanging or dispatching of letters within the Local Government Service Commission.Where a party pleads wrongful admission of evidence, he must go further to show how same has affected the decision. In order to nullify an election based on non-qualification the Petitioners must not only plead the fact that the said candidate was not qualified to contest the elective post – but must prove that the non-qualification is known to all the electorate in the Constituency. The Appellants’ case was affected by dearth of evidence before the Tribunal consequently it must in this court fail in its entirety.

The court is urged to resolve this issue in favour of the Respondents. The Respondents cited cases in support of the entire submission on Issue 3 as follows:

Buhari v. Obasanjo (2005) All FWLR (Pt. 273) 1; (2005) WRN 1; Olusile v. Maiduguri Metropolitan Council (2004) 4 NWLR Pt. 863 Pg. 290; Adefemi v. Abegunde (2004) 15 NWLR Pt. 895 Pg. 1; Bolanle v. State (2005) 7 NWLR Pt. 925 Pg. 431; Njiokwuemeni v. Ochei (2004) 15 NWLR Pt. 895 Pg. 196; Ojodo v. NEPA (2005) afwlr Pt. 285 Pg. 545; Hausa v. State (1994) 6 NWLR Pt. 350 Pg. 281; Ibidokun v. Adaralode (2001) 12 NWLR Pt. 727 Pg. 268; Mele v. Muhammed (1999) 3 NWLR Pt. 595 Pg. 425.

Issue No. Four

Whether there was any basis for the Tribunals belief of the evidence of DW3 regard being had to the inadmissible nature of Exhibit DW2C and the Tribunals misconception of the nature and contents of Exhibit DW4C.

The Appellants, in support of the assertion that the 1st Respondent failed to resign his appointment with the Local Government Service Commission, called PW4 and PW5 and tendered Exh. PW4C. The 1st Respondent gave evidence as DW2. He called DW3 who testified that he collected the letter of resignation and filed same in Exh. PW4C. The said letter could not be found in Exh. PW4C. The Tribunal had to decide whether the 1st Respondent gave his resignation letter to DW3 who then put same in Exh. PW 4C the staff file of 1st Respondent with Ekiti South West Local Government. The Tribunal in the evidence before it had to rely on documents and evidence of witnesses to arrive at the truth. Such documents are-

(1) Exh. D W2C – Photocopy of t he purported letter of resignation oft he 1st Respondent.

(2) Exh. PW4C – Staff file of the 1st Respondent with the Ekiti South West Local Government Council.

(3) Exh. PW4C 13 – One of the contents of Exh. PW4C written by PW4 reporting that the 1st Respondent had absconded from work since July 2006.

(4) Exh. PW4C 14 with same contents as PW4C 13.

According to the finding of the Tribunal DW3 received a copy of the letter of resignation of the 1st Respondent as DW2C and put it in his staff file PW 4C. That PW4C had been tampered with and renumbered by unidentified persons. Exhibit DWC2 was inadmissible – and wrongly admitted by the Tribunal as –

(1) A photocopy of the original proper foundation had to be laid for its admissibility.

(2) The letter sought to be tendered was dated 1/11/06 while the letter pleaded and referred to on oath was dated 13/11/06

(3) The original of the letter being a public document only certified true copy of it could be the only secondary evidence admissible.

The Tribunal however admitted DW2C as exhibit.

The 1st Respondent pleaded a letter dated 13/11/06 as his letter of resignation, at the trial the 1st Respondent sought to tender a letter dated 1/11/06. A letter dated 1/11/06 cannot be said to have established the existence of another letter dated 13/11/06. The 1st Respondent having chosen to plead a specific date as the date on his letter of resignation he must in the absence of an amendment to his pleading be bound by that date. The principle of construction of pleadings as a whole cannot avail him. In effect if the 1st Respondent pleaded events of 13/11/06 but gave evidence of events of 1/11/06 means that his evidence contradicts his pleadings making it liable to be expunged. At the trial DW2 testified that he gave his letter of resignation to DW3 who in turn testified that he put the letter in PW4C and took it to the Director of Administration. This evidence demonstrates that the original of DW2C was a public document, and this makes a certified true copy of it admissible as evidence. Since that was not the position the Tribunal ought not to have acted on it being inadmissible evidence. The Tribunal held that it could not have been a public document since it was not received, acted upon and kept in Exhibit PW4C1- C14. If the original of DW2C was not a public document as it has not been acted upon by the officials of the Local Government then proper foundation ought to have been led to make it admissible. This is against the evidence that PW4 and PW5 denied the existence of DW2C in the circumstance the 1st and 2nd Respondents were entitled to tender the copy they had in their possession. Such copy cannot be an ordinary copy but a certified true copy. Since Exhibit DW2C was wrongly admitted it ought to have been expunged from record. Since the lower court had failed to expunge Exhibit DW2C from record, this court has the power to exclude Exh. DW2C wrongly admitted. The error of the Tribunal in going outside the evidence led it to place undue influence on the testimony of DW3 instead of PW4C14 which stated clearly that the 1st Respondent had abandoned his duty post without resigning and on the me PW4C instead of PWSRJI rejected. In the circumstance of the case can it be said that the failure to expunge Exhibit DW2C had not occasioned a miscarriage of justice. Evidence of DW3 was that the 1st Respondent was with him in the open registry when he received DW2C, while there was no evidence of receipt of the said letter of resignation – the log book was not produced by the 1st respondent in buttress of his case. If Exh. DW2C had been expunged and not considered by the Tribunal it would not have arrived at its decision that DW3 was a witness of truth or that a resignation letter was written and given to DW3. This court is invited to look into the documents Exhibit DW2C and come to its own conclusion. It is trite that if a trial court fails to properly evaluate the evidence before it an appellate court will intervene in order to save the situation. The court is urged to resolve issue four in favour of the Appellants. The Appellants cited cases as follows: INEC v. Ray (2004) 16 NWLR Pt. 862 Pg. 92; Lipede v. Sonekan (1995) 1 NWLR Pt. 374 Pg. 668; Odunsi v. Bamgbala (1995) 1 NWLR Pt. 374 Pg. 641; Abraham v. Olorunfemi (1991) NWLR Pt. 165 Pg. 53; Ohiaeri v. Akazueze (1992) 2 NWLR Pt. 221 at Pg. 30; Fasina v. Ogunkayode (2005) 12 NWLR Pt. 938 Pg. 147; Brossette Manufacturing Nigeria Ltd (Automobile & Egnr. Ind. Nig. Ltd M/S v. Ola Ilemobola Ltd & 3 Ors. (2007) 14 NWLR Pt. 1053 Pg. 109; UBN LTD v. SAX (1994) 4 NWLR Pt. 339 Pg. 390; Odogwu v. Onoche (2002) 8 NWLR Pt. 769 Pg. 254; Bunge v. Govt. River State (2006) 12 NWLR Pt. 995 Pg. 573.

The learned counsel for the Respondents had considered the legal points raised by the Appellants in this issue under issue number three. The Respondents by way of submission now conclude that given the entire circumstance of this case, the facts before the court, the role of pleadings, the quantum of evidence required in a petition of this nature and the factors that guide the courts in coming to a decision in a matter, it is abundantly clear that the Appellants’ case is irremediably bad and marred from the word go. There is no evidence to prosecute it, the case is legally unsustainable. The court is urged to resolve this issue in favour of Respondents.

I have carefully considered the submission of the counsel on the issues raised for determination of this court in this appeal. First and foremost I owe it a duty to commend the diligence and industry of the learned counsel for the parties in the preparation of their highly academic and brilliant briefs. I have found them of immense value in understanding the lines towed by the parties in the petition before the lower Tribunal. I have decided to consider issues one and two, on the one hand, three and four together not only for ease of reference, but because the issues are clearly interwoven. Argument in the issues overlap into the subsequent ones.

Issues One and Two

(a) Whether the Tribunal was not in error when it assumed jurisdiction into the validity of the pre-election nomination of the 1st Petitioner to contest the election.

(b) whether the Tribunals finding on the 1st Petitioner’s locus standi not erroneous particularly given 1st and 2nd Respondents admission of and the Tribunal’s own finding on the 1st Petitioner’s candidature at the election. At the election held on the 14th of April 2006 into the State House of Assembly Ekiti, at the Ekiti South west Constituency I, the 1st Appellant contested on the platform of Peoples Democratic Party, 2nd Appellant and the 1st respondent as the candidate of Action Congress – the 2nd Respondent. The 1st Respondent won the election with 4,093 votes while the 1st Appellant scored 3,342 votes. The 1st Appellant filed a petition before the Ekiti State Governorship and Legislative Houses Election Tribunal.

The 1st Appellant averred in the pleading as ground for the petition as follows:

“(a) That the 1st Respondent was at the time of the Election not qualified to contest the election, being an employee of the Ekiti State Local Government Service Commission did not resign his appointment 30 days before the date of the election as stipulated by the provisions of the Constitution of the Federal Republic of Nigeria 1999. The Petitioners/Appellants raised as an alternative in the petition.

(b) That the election is invalid by reason of corrupt practices and noncompliance with the provisions of the Electoral Act 2006.

The alternative ground was abandoned while parties to their appeal concentrated on the main ground of non-qualification of the 1st Respondent. The 1st Respondent in his reply to the petition raised a preliminary objection to the hearing of the petition on the following grounds:

(1) That the Petitioner lacks locus standi to file the petition.

(2) That the Tribunal lacks jurisdiction to entertain the petition.

(3) That the petition was incompetent.

By another application both Respondents challenged the jurisdiction of the Tribunal to entertain the petition. The gravamen of the application was that the candidate of the Peoples Democratic Party as at 14/3/07 – 30 days before the election, was one Victor Olagoke Egunjobi and not the 1st Petitioner Nicholas Oluyemi. As the 2nd Petitioner – PDP had failed to substitute the said Olagoke Egunjobi with the 1st Petitioner within the period stipulated under the Electoral Act 2006. The 1st Petitioner did not have the locus to present the petition. The tribunal heard argument on the objection from the parties and delivered a considered Ruling on the 10th of July 2007. The Tribunal in the Ruling delivered on the 10th of July 2007, held that the 1st Petitioner disclosed his locus to file the petition as the 1st Petitioner was a candidate in the election. The Tribunal made a direct finding that the pleading of the 1st Petitioner satisfied the provisions of Section 144(1) of the Electoral Act 2006 as regards locus to present a petition. The Tribunal thereafter merely struck out and did not dismiss the objection. At pages 2 and 10 of the Supplementary Record of Appeal filed on 25/1/08 the Tribunal held:-

“For now we are compelled to limit the determination of the issue of locus standi to that specific provision of Section 144(1) (a) of the Electoral Act 2006. This is not to say that the issue of the Petitioners non-qualification will not be looked into at the appropriate stage which is at trial. In conclusion, the Respondents have properly pleaded the matter of the Petitioners’ non-qualification to contest the election. The matter must end for now. The motion of the 1st and 2nd Respondent is accordingly struck out.”

I have to state the provision of Section 144(1) of the Electoral Act 2006 on which the Ruling of the Tribunal was premised. It reads as follows-

144(1) “An election petition may be presented by one or more of the following persons:

(a) A candidate in an election

(b) A political party which participated in the election.

(2) The person whose election is complained of is in this Act referred to as the Respondent, but if the Petitioner complaints of the conduct of an Electoral Officer, a Presiding Officer, a Returning officer or any other person who took part in the conduct of an election such officer or person shall for the purpose of this Act be joined in the election petition in his or her official status as a necessary party provided that where such officer or person is shown to have acted as an agent of the Commission, his non-joinder as aforesaid will not on its own operate to void the petition if the Commission is made a party. ”

In the Petition filed by the 1st and 2nd Petitioners/Appellants on 26/4/2007, paragraphs 1 and 3 reads:

“(1) Your Petitioner Nicholas Oluyemi was a House of Assembly Candidate in Ekiti South West I Constituency of Ekiti State in the House of Assembly election held on 1 4th of April 2007.

(3) Your Petitioner states that the candidates and their scores as declared by the Resident Electoral Commissioner Ekiti South for the House of Assembly Election in Ekiti South West 1Constituency are as follows –

Action Congress (AC) Edward Ajewole Asaolu 4,093.

Peoples Democratic Party (PDP) Nicholas Oluyuemi 3,342 Labour Party (LP) Oluwole Fanimi 108 Democratic Peoples Party Boluwaji Oguntamore 90. ”

At the close of trial – the Tribunal gave judgment on the 31st of October 2007, and contrary to the Ruling of 10th July 2007, found that though the 1st Petitioner was by virtue of having scored votes at the election a candidate de facto – he was nonetheless without locus to present the petition as he was not a candidate de jure owing to the fact that his name was not on the list of validly nominated candidates as at 14/3/07.

The Tribunal had’ to make a finding on the issue of the candidature of 1st Petitioner to contest the election and consequently to file the petition or matters relating to the election because the 1st and 2nd Respondents made this an issue in their Reply to the petition. In paragraph 1 of the Reply at page 29 of the Record and grounds A – F of the application – filed by them on pages 53 -54 of the record, the Respondents portrayed that –

(1) The Petitioner lacked the locus to file the petition as one Victor Olajide Egunjobi and not the 1st Petitioner was the validly nominated candidate of the PDP

(2) That it was the name of the said Victor Olajide Egunjobi that was sent to INEC and not that of the 1st Petitioner.

(3) That at the close of business on the 14th of March 2007 the 2nd Petitioner (PDP) had not withdrawn the name of Victor Olajide Egunjobi and substituted same with the name of the 1st Petitioner.

Moreover, I cannot overlook that crucial aspect of locus standi which denotes legal capacity to institute proceedings in a court of law. The fundamental aspect of locus standi is that it focuses on the party seeking to get his complaints before a court and not on the issues he wants to have adjudicated. See Adesanya v. President of Nigeria (1981) 5 SC 112; A. G. Adamawa v. A. G. Federation (2005) 18 NWLR Pt. 958 Pg. 581; Thomas v. Olufosoye (1985) 1 NWLR Pt. 78 Pg.669.

The Tribunal at Pg. 338 of the Record said-

“How the issue of locus as raised by the 1st and 2nd Respondents does not question who the actual candidate of the PDP ought to be. It has rather raised the question of the competence or standing of the 1st Petitioner to maintain an election. ”

The Tribunal in resolving the questions raised by the Respondents considered Sections 33, 34 and 35 of the Electoral Act 2006 in conjunction with Section 144(1) (a) of the same Act. Section 33 deals with the issue of Nomination by political parties, Section 34 allows a political party to change its candidate not later than 60 days to the election and Section 35 enjoins INEC to display the list of validly nominated candidates not less than 30 days before the election. In the exercise of the powers as contained in Section 35 of the Electoral Act – INEC issued Exh. DW2B which was dated 14th March 2007.

I shall now proceed to consider the relevant aspect of the judgment of the Tribunal. At page 339 of the Record the Tribunal held that-

“in the exercise of its power under Section 35 of the Act, INEC issued Exhibit DW2B. It is dated 14th March 2007, being 30 days before the election. Exhibit DW2BD contains the name of validly nominated candidates for the Ekiti South West Constituency I. the seat subject of the petition. The name of the 1st Petitioner is not on Exhibit DW2B2. The testimony of DW4 the Electoral Officer/Returning Officer for the Constituency is clear on this. So on the face of Exh. D W2B2, the 1st Petitioner was not a candidate dejure.”

At page 338 the Tribunal said that –

“The question to determine therefore in order to arrive at a resolution of this issue is whether the 1st Petitioner was a candidate in the election. There can be no doubt that the 1st Petitioner contested the election and scored some votes. So de facto he was a candidate. But was he a candidate dejure? If he was not a candidate dejure then his having de facto contested the election would not make him a candidate within the eyes of the law and for him to come within the ambit of Section 144 (1) of the Act.”

I have to reiterate the position of the law that the Election Tribunals under our system of legal jurisprudence is a creation of statute – and their jurisdiction is well defined by that law creating them. They are covered by Section 285 of the 1999 Constitution of the Federal Republic of Nigeria Part III under the Judicature.

Contemporary cases and pronouncement of courts, and the Electoral Acts particularly 2002 and 2006 have created a dichotomy in the jurisdiction over Election and Election related matters. The classification or grouping into two clearly different camps referred to in the legal arena as Pre Election and Post Election Matters. Pre Election matters are the issues relating to disqualification, nomination, substitution and sponsorship of candidates in other words – provided for in sections 32-35 of the Electoral Act and specified in Section 285 of the Constitution.

Jurisdiction of the lower Tribunal in this case in hand is as provided in Section 285 (2) of the 1999 Constitution, which reads-

“There shall be established in each State of the Federation one or more election tribunals to be known as the Governorship and Legislative Houses Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any Legislative Houses.”

The thrust of the issues for determination in this appeal – which brevi manu is whether the Petitioners/Appellants had the locus standi to present the petition at the lower Tribunal. This has become an issue as the name of the 2nd Appellant’s sponsored and nominated candidate which appeared on the published list of contestants for all political parties by INEC, Exh. DW2B in this petition is one Victor Olajide Egunjobi. The Petitioners/Applicants attached to their counter affidavit in defence, the application of the Respondents on their locus standi to present the petition, documents to show that the 2nd Appellant – PDP had withdrawn the name of the former candidate and substituted it with that of 1st Petitioner/ Appellant. The Tribunal at pages 339-340 of the Record rejected the documents as lacking in probative value. It is note worthy that this is different from a situation where the Appellants lacked explanation as to his nomination as a contestant in the 14th April 2007 election.

What therefore is locus standi with particular emphasis on Election matters. Generally speaking Locus Standi is a condition precedent to any action before a court of law and it is a fundamental issue as it goes to the root of the entire action and it ought to be decided at the earliest stage. Locus standi goes to affect the jurisdiction of the court before which the action is instituted. If the party instituting the action does not have the locus standi to bring the action, the action is incompetent and the jurisdiction of the court to entertain the action becomes a nullity. The term locus standi denotes the legal capacity to institute proceedings in a court of law. The right of a person to present a petition is not a common law right but a right created by statute. Hence in order to determine whether or not an election petition discloses locus standi or legal right of the Petitioner to bring the action, the provisions of Section 144 (1)(a) of the Electoral Act and Paragraph 4(1)(a) and (b) of the First Schedule to the Electoral Act must be considered together.

For a Petitioner to have a right to present a petition he must first qualify to be his party’s candidate for the election and then be the candidate that contested the election. These facts must be clearly pleaded in order to comply with Paragraph 4 (1) and if they are not so pleaded the petition is incompetent. The 1st Petitioner pleaded his legal capacity to present the petition under Section 144 (1) (a) of the Electoral Act 2006. I have restated this earlier on in this judgment.

Section 4 (1) of the First Schedule to the Electoral Act 2006 covers the contents of the election, the relevant section reads-

“4(1) An election petition under this Act shall-

(a) Specify the parties interested in the election

(b) Specify the right of the Petitioner to present the election petition.

Paragraph 2 of the Petition reads-

“Your 2nd Petitioner – Peoples Democratic Party is one of the Registered political parties in Nigeria. The 2nd Petitioner sponsored the 1st Petitioner for the post of Honourable member of the Ekiti State House of Assembly in Ekiti South West I Constituency. ”

In an election petition, which is sui generis, being in a unique or peculiar class of its own, the right of access to court is as provided by the law guiding the conduct of elections. Under Section 144 (1) of the Electoral Act a petition may be presented by a candidate in the election or a political party in the election. The Petitioner or its candidate means a party or its candidate. Candidate refers to the one sponsored by the political party at the election. The law still remains that a political party has the supreme right to nominate its candidates. The 2nd Appellant has not come forward to deny the candidature of the 1st Petitioner. More importantly is the fact that Victor Olajide Egunjobi whose name is supposed to be on the INEC list of candidates for the election has not contested or protested the issue of his substitution. The issue of sponsorship or nomination or substitution of candidates is an intra-party affair to which is not justiciable – and hence the tribunal cannot dabble into it. See Onuoha Okafor (1983) 2 SCNLR 244; Adebusoye v. Oduyoye (2004) 1 NWLR Pt. 854 Pg. 406; Dalhatu v. Turaki (2003) 15 NWLR Pt. 843 Pg. 310; Ibrahim v. Gaye (2002) 13NWLR Pt. 784 Pg. 267; Ararume v. INEC (2007) 9 NWLR Pt. 1038 Pg.127; Ugwu v. Ararume (2007) 12 NWLR Pt. 1048 Pg. 367. Furthermore the issue of Nomination which is the act of suggesting or proposing a person by name to an election body as a candidate for an elective office. This forms part of the preliminary matters before the actual election is conducted. Exh. DW2B2 – list of candidates by INEC relied upon by the Tribunal is required as a proof of preliminary steps before the actual election is conducted. The Tribunal has no power to constitute itself into an investigation body to look into it. See Tsoho v. Ibrahim (1999) 4 NWLR Pt. 600 Pg. 657; Okonkwo v. INEC (2004) 1 NWLR Pt. 854 Pg. 242; Rimi v. INEC (2005) 6 NWLR Pt. 920 Pg. 56; Abana v. Obi (2004) 10 NWLR PT. 881 Pg. 319; Onuoha v. Okafor (1983) 2 SCNLR Pg. 246; AC v. INEC (2007) 18 NWLR PT.1065 Pg. 50.

In arriving at its conclusion that the 1st Petitioner/Appellant has no locus to present the petition, the Tribunal in its judgment applied the principle in the case of Rotimi Amaechi v. INEC & 2 ORS (2008) 1 SCNJ 1 where it made a distinction between a candidate “de jure” and a candidate “de facto”.

The Tribunal found that though the 1st Petitioner had by reason of having contested the election he was nonetheless not a candidate de jure since his name did not appear on the list of nominated candidates as at the close of work on the 14th of March 2007. The question now is whether the case of Ameachi v. INEC (supra) is on all fours with the case in hand so as to make the issue of candidate de jure and candidate de facto as pronounced there applicable? My answer to the above question is in the negative for the following reasons –

(a) Issue of nomination of a candidate is a pre-election matter and not an election matter.

(b) The fact that election had taken place before the judgment of a regular court on an issue of nomination and substitution does not take the case out of the jurisdiction of the regular court by effluxion of time.

(c) That none of the provisions of Section 145 of the Electoral Act 2006 under which Election Petition could be brought can accommodate the pre-election issue of nomination of a candidate.

(d) There was no complaint before the Tribunal by the 2nd Petitioner – the Party which sponsored the 1st Petitioner.

(e) No complaint before the Tribunal or any regular court by Victor Olajide Egunjobi challenging the legality of his substitution with the 1st Petitioner.

(j) There was no objection by INEC tot he 1sr Petitioner contesting through DW4.

Amaechi’s case was hinged on nomination and substitution of a candidate for election by a political party within that political party. Amaechi contested the breach of his right derived from the 1999 Constitution of Nigeria and Section 34 of the Electoral Act 2006. The principle can only be relevant to any suit brought by Victor Olajide Egunjobi while defending his right to contest an election deprived by his party – the 2nd Appellant. The Tribunal was totally wrong to invoke an investigative procedure relating to a pre-election issue for which it is not constituted to conclude that the 1st Petitioner/ Appellant has no locus standi to present the petition. Whereas what is required by a Petitioner in proving his locus to present an election shall be reflected in his pleadings. The facts disclosed in his pleadings must be such as would be enough to place him in the category of persons entitled under Section 144 (1) of the Electoral Act 2006 to present a petition. The facts pleaded in paragraphs 1, 2, 3 and 4 of the Petition categorically show that the 1st Petitioner/Appellant was a candidate in the election. Going further under Section 144 of the electoral Act 2006 – he was the candidate of his party – the 2nd Petitioner/Appellant allowed him to contest an election and to present a petition on its platform. It is the law that when a Petitioner pleads that he was a candidate in an election, and also pleads his score thereat, he has the locus to present an election petition. See: Nnamani v. Nnaji (1999) 7 NWLR Pt. 610 Pg. 313; Visu v. Ajilowura (2006) 14 NWLR Pt. 1000 Pg. 783; Okonkwo v. Ngige (2006) 8 NWLR Pt. 981 pg. 119; Uba v. Ukachukwu (2004) 10 NLWR Pt. 881 pg. 224; Waziri v. Danbovi (1999) NWLR Pt. 598 Pg. 239; Rimi v. INEC (2004) All FWLR Pt. 210 Pg. 1312.

The evidence of the witness for 3rd and 4th Respondents, DW4 an INEC officer in Ekiti South West Local Government, though identified Exhibit DW2B as the list of all candidates also testified that the 1st Appellant and 1st Respondent contested the election. She went further to say that INEC has a document in respect of the nomination of the 1st Appellant. The 1st Petitioner/Appellant was awarded 3,342 votes by INEC which means that he was a candidate in the election. In sum, the fact that the 1st Appellant stated in his petition that he was a candidate in the election, and the 2nd Petitioner/Appellant a political party in the election show that they have the requisite locus standi to file the petition. The Respondents should be cautious not to confuse Section 144 (1) of the Electoral Act relating to presentation of a petition and the qualification to contest an election under Section 177 (c) of the 1999 Constitution. The latter which has to do with the qualification of a candidate can only be relevant where the qualification of a candidate is in issue. The right to present a petition is quite different from the qualification of a person to occupy the office contested for. There was no evidence before the lower Tribunal that Appellant was not sponsored by his party at the time he contested the election. I hold that the petition filed by the Appellants at the lower tribunal is competent. From the foregoing, the lower Tribunal was in error when it held that the 1st Petitioner/ Appellant was only a de facto candidate in the election. The 1st issue is therefore resolved in favour of the Appellants.

Issue Nos. 3 & 4

(3) Whether the refusal of the Tribunal to admit the staff file of the 1st Respondent with his employers in evidence and the making of same PW5RJI did not in the circumstances of the case occasion a miscarriage of justice.

(4) Whether there was any basis for the Tribunal’s belief of the evidence of DW3 regard being had to the inadmissible nature of Exhibit D W2C and the Tribunal’s misconception of the nature and contents of PW4C.

The main ground of the petition of the Petitioners/Appellants read-

(1) That the 1st Respondent was at the time of the election not qualified to contest. This ground is in accordance with Section 145 (1) (a) of the Electoral Act 2006 which states as follows –

145(1) “An election may be questioned on any of the following grounds –

(a) That a person whose election is questioned was at the time of the election not qualified to contest the election. ”

The gravamen of the Appellants’ case in the petition was that the 1st Respondent was not qualified to contest for the House of Assembly Election in Ekiti South West Constituency I because he did not resign his appointment with the Ekiti Local Government Service Commission. The 1st Respondent was employed by the Local government Service Commission but seconded to the Ekiti South West Local Government.

The averments in the pleadings of the Appellants in the petition particularly paragraphs 8, 9, 10, 11, 12 and 13 reads-

“Paragraph 8

The Petitioners aver that the 1st Respondent was and is still in the service of the Ekiti State Local Government Service Commission who employed and deployed him to Ekiti South West Local Government.

Paragraph 9

That the 1st Respondent is currently a Higher Executive Officer at Ekiti South West Local Government.

Paragraph 10

The Petitioners state that the 1st Respondent refused and/or neglected to resign from the service or employment of the Local Government Service Commission thirty (30) days before the House of Assembly Election held on 14th of April 2007 as required by the Constitution of the Federal Republic of Nigeria 1999.

Paragraph 11

The Petitioners shall rely on the letter dated 6th March 2007 by the Ekiti South West Local Government confirming that the 1st Respondent is still in the service of the Local Government Service Commission as Higher Executive Officer at Ekiti South West Local Government. A copy of the said letter is hereby pleaded and shall be relied upon at the trial.

Paragraph 12

The Petitioners state that the appointment of the 1st Respondent has not been terminated either by the Local Government Service Commission or Ekiti South West Local Government.

Paragraph 13

The Petitioners shall rely on the content of 1st Respondent’s staff file with the Local Government Service Commission at the trial of this action. ”

Qualification and disqualification is a constitutional issue, the conditions for qualification are as stipulated in the Constitution.

The relevant provision of the 1999 Constitution applicable is Section 107 (f), which reads –

“107 (1) No person shall be qualified for election to a House of Assembly if –

Sub-section (f): He is a person employed in the service of the Federation or of any State and he has not resigned, withdrawn or retired from such employment thirty days before the date of election. ”

The purpose and effect of the foregoing Section is that a public officer who has not resigned, withdrawn or retired from such employment thirty days before the date of the election stands disqualified. The resignation envisaged by the Constitution is disengagement from public service by the intending candidate by any of the modes stated, thirty days to the date of the election.

In establishing that the 1st Respondent did not comply with the foregoing provision of the law, the Petitioners/Appellants called five witnesses of notable importance to the Petitioners’ case are PW4 and PW5 who are officials of the Ekiti South West Local Government and Ekiti Local Government Service Commission.

The 1st Petitioner/Appellant was prior to his involvement in politics posted to Ekiti South West Local Government by the Ekiti Local Government Service Commission.

The 1st and 2nd Respondents called three witnesses and the 3rd and 4th Respondents called one witness the INEC officer in Ekiti South West Local Government as DW4.

The documentary evidence available to the Tribunal are –

(a) Exhibit DWC2 – the photocopy of the purported letter of resignation submitted by the 1st Respondent. The 1st Respondent gave evidence as DW2.

(b) PW4C – the staff file of the 1st Respondent with the Ekiti South West Local Government Council.

(c) Exhibit PW4C 13 one of the contents of PW4C written by PW4 reporting that the 1st Respondent had absconded from work since July 2006.

(d) PW4C 14 similar in contents to PW4C 13.

There was another staff me of the 1st Respondent with his employer the Ekiti Local Government Service Commission which the 1st Appellant sought to tender as the original me of the 1st Respondent. The Appellants subpoenaed the Director Personnel of Ekiti State Local Government Service Commission to give evidence and tender same as PW5. The witness gave evidence that the Commission had never received any letter of resignation from the 1st Respondent and sought to tender his me in proof of this fact. The file sought to be tendered was in custody of Ekiti State Local Government Service Commission. There was an objection to the tendering of the Commission me as another original of the 1st Respondent me was tendered in the trial by the Petitioners. The case of the Petitioners/Appellants was conducted by the learned counsel on their instruction. The Appellants at that stage attempted to tender two original staff files in respect of the employment of the 1st Respondent. In the interest of justice, and in accordance with the equity of the case – the two files should have been pleaded based on their relevance to the petition. There arose a scenario where the Appellants pleaded as follows in the petition –

Paragraph 13 reads as follows:

“The Petitioners shall rely on the content of 1st Respondent’s staff file with the Local Government Service Commission. ”

He turned round contrary to the pleadings to tender the staff file PW4C with the Ekiti South West Local Government through PW4. It would have been more appropriate for the 1st Respondent to tender Exhibit PW4C to establish the issue that he proper1y carried out his resignation according to Section 107 (f) of the Constitution.”

According to the evidence before the Tribunal what the Petitioners were supposed to tender according to paragraph 11 of the Petition is the letter dated the 6th of March 2007 issued by the Ekiti South West Local Government confirming that the 1st Respondent was still in the service of the Ekiti South West Local Government as Higher Executive officer. The letter was pleaded and there was an indication that it would be relied upon at the trial.

There was no averment in the pleadings of Petitioners/ Appellants in respect of PW4C already admitted in evidence. I agree with the submission of learned counsel before this court that the original staff file of the 1st Respondent is the one in custody of the Local Government Service Commission and should have been produced in court by the appropriate officer of the Commission PW5 from proper custody of the Commission to be tendered in court. The 1st Respondent pleaded the contents of the file PW4C.

In the surrounding circumstance of the case the file is relevant to the petition as it is the staff file of the 1st Respondent with the office where he was posted by his employer – the Ekiti Local Government Service Commission. He was serving under Ekiti South West Local Government when he left his employment to contest in the election. The file was produced from proper custody of the Ekiti South West Local Government by an official subpoenaed for that purpose. On the other hand PW5RJI was validly pleaded by the Petitioner and the right foundation was laid for it. I cannot pinpoint any miscarriage of justice suffered by the Petitioner/Appellant in rejecting the file PW5RJI the supposed original file of the 1st Respondent with the Ekiti Local Government Service Commission. There is no way the 1st Respondent will tender his letter of resignation directly to the Ekiti Local Government Service Commission. He cannot bypass his temporary employer – the Ekiti South West Local Government – that office has to act as the conduit through which his letter of resignation will be conveyed to his permanent employer. The main purpose of tendering PW5RJI was to substantiate that he did not resign from his employer. I

must observe that before the court what is the temporary or original was not properly identified. PW4 identified the file with the Ekiti South West Local Government as the original. This piece of evidence contradicted the averments in paragraph 13 of the petition. The Tribunal admitted PW4C on the evidence that it is the original staff file of the 1st Respondent with his employer. A letter of resignation submitted at any of the two offices 30 days before the date of the election shall serve as enough notice.

In proving the resignation of a contestant from office the court will attach prime importance to the date of submitting the letter. The Petitioners/Appellants cannot produce two witnesses with contradicting evidence. By virtue of Section 137 of the Evidence Act he who asserts must prove.

Another bone of contention is the evidence of DW3. In establishing that the 1st Respondent followed the procedure for resignation before taking on a political office he gave evidence as DW2, whereupon he tendered his letter of resignation as DW2C. He called a witness, DW3 one Idowu Aluko, who testified that he personally collected the letter of resignation from the 1st Respondent and put it in Exhibit PW4C, the file tendered before the Tribunal as the staff file of the 1st Respondent. On perusing PW4C – I observed that it is the staff file with the Ekiti South West Local Government. The contents of the file relate to his employment and performance of his duty. Worthy of note in the file is the complaint about his habitual absenteeism from office in pursuance of his political ambition vide Exhibits PW4C 14 and PW4C 13.

The 1st Respondent refuted the allegation of absconding from duty with reference to his letter of resignation dated 1/11/06, whereas he pleaded that it was dated 13/11/06. Coincidently this letter covered the period of his alleged absence from duty. In paragraph six of his statement on oath he made it clear that he did not neglect or refuse to resign his appointment, but he voluntarily resigned his appointment months before the election. In the staff file of the 1st Respondent Exh. PW4C, the letter of resignation which DW3 testified that the filed there is missing.

Moreover, there is an alteration to the numbering of the pages as from page 8 with entries dated the 28th of July 2006. The 1st Respondent’s letter of resignation dated 1/11/ 06 was entered in the file on 13/11/ 06 according to the endorsement appearing on the file jacket. The big question is whether the alteration in the numbering of the pages of the documents has anything to do with the missing letter of resignation. The letter of resignation was dated 1/11/06 and registered in the file with the Ekiti South West Local Government on the 13/11/06. The pleadings of the 1st Respondent put the date on the letter as 13/11/06. The Appellant made heavy weather of the date pleaded about the letter. The dates 13/11/06 and 1/11/06 are not strange to the letter tendered to prove the resignation of the 1st Respondent. The letter was dated 1/11/06 while it was submitted and accepted at the Ekiti South West Local Government Service Commission on the 13/11/06. The endorsement on his file reflected this. This mix up in the date does not make its content unreliable of less potent as affecting the period of his disengagement under the Constitution. I do not regard it as a situation in which Section 125 of the Evidence Act can be invoked. Section 125 Evidence Act reads-

“When any document bearing a date has been proved, it is presumed to have been made on the day on which it bears date, and if more document than one bear date on the same day, they are presumed to have been executed in the order necessary to effect the object for which they were executed, but independent proof of the correctness of the date will be required for the circumstances are such that collusion as to the date might be practiced and would if practiced, injure any person, or defeat the objects of any law. ”

The time lag for filing letter of resignation under Section 107(f) of the 1999 Constitution is 30 days to the election held on 14/4/07. This letter was filed on the 13/11/07 – well ahead of the stipulated time.

The provision of the Evidence Act as to tendering of documents is trite and specified in the relevant sections. Contents of documents can only be proved by primary evidence or secondary evidence, Section 93 of the Evidence Act. Secondary evidence of the contents of documents referred to in paragraph (a) of subsection (1) of the Section 97 of this Act, shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to a legal practitioner employed by such party, such notice to produce as is prescribed by law and if no notice is prescribed by law, then such notice as the court considers reasonable in the circumstance of the case. The 1st Respondent served such notice on his employer – the Ekiti Local Government Service Commission on the assumption that the letter of resignation was already in its custody.

By virtue of Sections 97 (1) and (2) only certified true copy of a secondary evidence is admissible of a public document. In the case in hand – the status of Exhibit DW2C cannot be determined as PW4 and PW5 testified that they did not see it let alone act on same. In effect it is not yet a public document by virtue of Section 109 of the Evidence Act. A public document is as specified in Section 109 of the Evidence Act. The issue of admissibility of a document is governed by the Evidence Act and the relevance of the document to the subject of the suit. A court is expected in all proceedings before it to admit and act only on evidence admissible in law. By virtue of Sections 94, 95 and 96 of the Evidence Act a photocopy of a document is inadmissible in evidence if the whereabouts of the original document is not explained. See Made v. Olukade (1976) 2 SC 183; Daggash v. Bulama (2004) 14 NWLR PT. 892 Pg. 144.

The three criteria which governs the admissibility of a document in evidence are –

(a) Is the document pleaded

(b) Is it relevant to the inquiry being tried by court, and

(c) Is it admissible in law.

See Okonji v. Njokanma (1999) 14NWLR Pt. 638 Pg. 250.

Exhibits DW2C is a photocopy of the letters of resignation of the 1st Petitioner. In explaining the whereabouts of the original to the tribunal – there is evidence on record that DW3 accepted the letter of resignation submitted by the 1st Respondent on 13/11/06. He put it in the file as page 11 in Exhibit PW4C. This letter not only disappeared from the file – PW4C the pages of the file were tampered with and re-numbered by unknown persons. The official of the Ekiti South Local Government who came to tender PW4C from the custody of the Local Government claimed unawareness of the letter. The Tribunal adjudged DW3 as a witness of truth based on watching his demeanour and body language while giving evidence on oath.

The whereabouts of the letter in PW4C was satisfactorily explained to the lower Tribunal by the 1st Respondent and DW3.

It is trite that parties are bound by their pleadings and hence cannot deviate from them. It is the case they present based on their pleadings that must be considered by court. Evidence led on facts not pleaded goes to no issue. See Akanni v. Odeiide (2004) 9 NWLR Pt. 879 Pg. 575; Hashidu v. Goje (2003) 15 NWLR Pt. 843 Pg. 352; Iwuoha v. NIPOST Ltd. (2003) NWLR Pt. 822 Pg. 308; Ajadi v. Ajibola (2004) 16 NWLR Pt. 898 Pg. 91; Aderemi v. Adedre (1966) NMLR Pg. 398. In the evidence before the court the Petitioner pleaded that it was going to rely on contents of the original staff with the Local Government Service Commission at the trial vide page 10 of the Record of appeal. The 1st and 2nd Respondents pleaded the contents of the 1st Respondents staff file with the Ekiti South West Local Government Service Commission at page 30 of the record. At the trial the Director of Administration Ekiti South West Local Government was invited to give evidence and produce the original file of the 1st Respondent. The witness produced the document. The Tribunal in its Ruling delivered on 21/8/2007 gave a considered ruling on the issue of admissibility of the file and admitted it in evidence as PW4C on the ground that it was pleaded and there was nothing before the court to show that it was not inadmissible.

PW5 a Director of Personnel with the Local Government Service Commission was also subpoenaed to give evidence on behalf of the Local Government Commission. He made an effort to tender another staff file of the 1st Respondent with the Local Government commission. He confirmed that the Appellant was employed by the Local Government Service Commission posted to Ekiti South West Local Government Commission. An attempt made by this witness to tender the file was met with opposition on ground that the Petitioner pleaded one staff file of the Respondent and that had been tendered as PW4C.

Two different original files were not pleaded. The Tribunal held on steadfastly to the fact that PW4C was rightly and properly tendered as the original staff file of the 1st Respondent. The Appellant viewed the inadmissibility of the other file with the Local Government Service Commission as fatal to the case of the Appellant. In actual fact the Tribunal had enough room to admit the two files in evidence. As the file PW4C was relevant of the Respondents’ case before the Tribunal and PW5RJI was equally relevant to the case of the petitioner. Inadmissibility of the file PW5RJI has not to my mind left a lacuna in the case of the Appellant from the circumstance of the case but it has not occasioned any miscarriage of justice as I have earlier on remarked. Exhibit PW4C was relevant to the case of each party. Documents required to prove disqualification or non-qualification of the appellant are available in Exh.PW 4C. Wrongful admission of inadmissible evidence is not of itself a ground for the reversal of any decision. Similarly the wrongful exclusion of admissible evidence is not of itself a ground for the reversal of any decision. All these are dependent on the view held by the appellate court on whether the evidence wrongly admitted or excluded would have the effect of changing the decision even if admitted or excluded. See Abubakar v. Chuks (2007) 18 NWLR Pt. 1066 Pg. 386.

In the petition before the lower Tribunal it was saddled with the responsibility of deciding whether the 1st Respondent did tender a letter of resignation DW2C in compliance with Section 107(f) of the 1999 Constitution so as to qualify him to contest for the 14/4/07 Election into Ekiti South West Constituency 1. His trump card was the evidence of DW3. In their evidence the Petitioners/ Appellants held on tenaciously to the fact that the 1st Respondent did not resign his appointment in the service. As observed by the learned counsel for the Appellants the Tribunal was faced with the opposing testimony of the witnesses called by the parties in prosecution and defence of their case. The Tribunal believed the testimony of DW3 that he put the letter in Exhibit PW4C and endorsed the file to that effect. The endorsement was not subjected to any form of alteration – though the file itself was tampered with and the letter DW2C extracted and the pages renumbered. The lower Tribunal said at pages 344-345 of the Record that-

“It is our finding that regard being had to the documentary evidence.

Exhibit PW4C, the testimony ofDW3, that he had recovered a letter of resignation submitted by the 1st Respondent on 13th November 2006 and put as page 11 in Exhibit PW4C is highly credible. We had the opportunity of seeing D W3 and watching his demeanor.

His body language clearly showed that he is a witness of truth. In the circumstance therefore we must hold that the testimony of DW3 is credible enough to establish that the letter of resignation of the 1st Respondent was received at the Ekiti South West Local Government on 13th November 2006. ”

I must re-emphasise the position of law that the question of credibility and ascription of probative value to the evidence of witnesses is the principal duty of a trial court and not that of an appellate court in the case of Bolanle v. State (2005) 7 NWLR Pt. 925 Pg. 431 it was held that –

“The assessment of the credibility of a witness is a matter within the Province of the trial court as it is only the court that has the advantage of seeing, watching and observing the witness in the witness box. The court also has the liberty and privilege of believing him and accepting his evidence in preference to the evidence adduced by the defence on the issue of credibility of witnesses, the appraisal of the evidence and the confidence to be reposed in the testimony of any witness. An appellate court, on the printed evidence cannot usurp the essential function of the trial court which saw, heard and watched the witnesses testified. ”

That has been the position of the law and I have no reason to take a different outlook in the circumstance of this case. This court also believes the evidence of DW3. See Odofin v. Ayoola (1984) 11 SC 72; Sanni v. Ademiluyi (2003) 3 NWLR Pt. 807 Pg. 381; Ajadi v. Ajibola (2004) 16 NWLR Pt. 898 Pg. 91; Wali v. Bafarawa (2004) 16 NWLR Pt. 898 Pg. 1; Haruna v. Modibbo (2004) 6 NWLR Pt.900 Pg. 487; Nnachi v. Ibom (2004) 16 NWLR Pt. 900 Pg. 614.

What amounts to resignation of appointment in compliance with Section 107 (f) of the 1999 Constitution? Ordinarily under the common law concept, resignation from employment is by the giving of the required length of notice in the contract of employment or payment in lieu of the notice. Election matters are sui generis. They are in a unique class of their own. The jurisdiction of an election tribunal to deal with election matters is of very special nature different from that in ordinary case. The procedure adopted is based on the policy that time is very much of essence. The courts are more than often cautious that the general principles which should be strictly adhered to are not invoked or employed to perpetrate injustice. See Buhari v. Yusuf (2003) 14 NWLR Pt. 841 Pg. 446; Abubakar v. INEC (2004) 1 NWLR Pt. 854 pg. 207; Samamo v. Anka (2000) 1 NWLR Pt. 640 Pg. 283.

In election matters and for the purpose of Section 107(f) of the 1999 Constitution, resignation is dated from the date notice is received. There is absolute power to resign and no discretion to refuse to accept the notice.

It may result in injustice to the candidate to insist that there must be approval of the resignation before it could take effect.Particularly those in authority who ought to give such approval can deliberately delay or refuse the grant of such approval until after the election thereby doing injustice to the candidate. I have no doubt in my mind that seeking any approval, or asking for resignation of the 1st Respondent to await the approval of the authority in the Ekiti Local Government Service Commission through his immediate boss in the Ekiti South West Local Government would have suffered not only inordinate delay, but also earn him on a recommendation for dismissal from service going by the contents and comments in Exhibit PW4C his staff file. See Adefemi v. Abegunde (2004) 15 NWLR Pt. 895 Pg. 1; Benson v. Onitiri (1960) SCNLR Pg. 177; Kalu v. Odili (1992) 5 NWLR Pt. 240 Pg. 130.

In sum this court finds no reason to interfere with the judgment of the lower Tribunal on Issues numbers 3 and 4. It is our conclusion that the 1st Respondent has resigned his appointment in substantial compliance with Section 107 (f) of the 1999 Constitution. The issues are resolved in favour of the Respondents. In the final analysis, the appeal succeeds in part. The order of the lower Tribunal in the main petition over the issue of non-qualification is affirmed.

No order as to costs.

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Other Citations: (2008)LCN/2807(CA)