Hon. Jibril Zubairu & Anor. V. Lliyasu Isah Mohammed & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

AMINA ADAMU AUGIE, J.C.A.

The 1st Appellant was the candidate of the 2nd Appellant at the election to Membership of the Kaduna State House of Assembly for Magajin Gari Constituency of Birnin Gwari Local Government, held on 14th April 2007.

The 1st Respondent, who was the candidate of the 2nd Respondent at the said election, was returned as the duly elected Member representing the said Constituency. Dissatisfied with the outcome of the election, the Appellants filed a Petition at the Tribunal wherein they prayed for-

1. A DECLARATION that the 1st Respondent having not validly retired/disengaged from his employment in the public service at least 30 days before the date of the election on 14th day of April 2007, is disqualified from contesting election as a member of Kaduna State House of Assembly representing Magajin Gari Constituency, Birnin Gwari Local Government.

2. AN ORDER setting aside the declaration of the 1st Respondent as the winner of the Kaduna State House of Assembly election for Magajin Gari Constituency conducted on 14th April 2007.

3. A DECLARATION that the 1st Petitioner is the winner and duly elected Member of the Kaduna State House of Assembly representing Magajin Gari Constituency, Birnin Gwari Local Government having scored a majority of lawful votes cast at the election conducted on 14th April 2007.

The “Grounds and Facts upon which the Petition Relies” are that-

The election in Magajin Gari Constituency Birnin Gwari Local Government, were invalid by reason of non-compliance with the provisions of the electoral Act 2006, which substantially affected the outcome of the election.

ii) The election in Magajin Gari Constituency Birnin Gwari Local Government, were invalid by reason of corrupt practices.

iii) The 1st Respondent was not duly elected by a majority of lawful votes cast at the election.

iv) The 1st Respondent was at the time of the election disqualified from contesting the election.

After the pre-hearing Conference, the Appellants called 4 witnesses at the trial that followed, and tendered a number of documents in evidence. The 1st and 2nd Respondents called 5 witnesses but did not tender any documentary evidence while the 3rd – 13th Respondents did not call any witnesses or tender any documentary evidence. Thereafter, written addresses were filed and exchanged and in its Judgment delivered on the 16th day of January 2008, the Tribunal held inter alia that the 1st Respondent “duly resigned his appointment as required by law” and that he was at the time of the election qualified to contest the election.

Aggrieved, the Appellants appealed to this Court with a Notice of Appeal containing three Grounds of Appeal, and with the leave of this Court, the Appellants filed three additional Grounds of Appeals.

Briefs of arguments were duly filed and exchanged, and in the Appellants’ brief prepared by Samuel Atung, Esq., the following three issues were formulated as arising for determination in this appeal –

i. Whether from the state of pleadings and evidence adduced in the Petition the trial Tribunal is right to have applied the principle of law enunciated in Alawode V. Semoh (1959) SCNLR 91 and Saude V. Abdullahi (1989) 4 NWLR (Pt. 116) 387 at 436 & 437 in arriving at its conclusion that the 1st Respondent had validly resigned his appointment with Kachia Local Government and Kaduna State Local Government Service Commission at least 30 days before the election in the light of glaring evidence of his having received salaries up to March 2007.

ii. Whether in the entire circumstances of this Petition the Hon. Tribunal was right in refusing to place evidential value on Exhibit B, which is the Form EC8A (1) for BATC polling unit; and ALTERNATIVELY

iii. Whether the trial Tribunal was right in not ordering fresh election in BATC 012 polling unit having made a finding that the election at the said polling unit was aborted merely because the Appellants did not prove that the 1st Respondent or his agent committed any act of malpractice or corrupt practice or noncompliance in contravention of any provisions of the Electoral Act or that he was unlawfully deprived of votes in relation to the said polling unit.

On their part, the 1st and 2nd Respondents reframed the 1st Issue and adopted the Appellants’ Issues (ii) and (iii) in their brief settled by J. A. Achimugu, Esq. The Appellants’ Issue (i) was reframed as follows –

“Whether the Hon. Tribunal was justified by the evidence before it to have found that the 1st Respondent validly resigned his appointment thirty (30) days before the election which held on 14/4/07 notwithstanding its reference to the cases of Alawode V. Semoh (1959) SCNLR 91 and Saude V. Abdullahi (1989) 4 NWLR (Pt. 116) 387 at 436 & 437”. The 3rd – 13th Respondent however submitted in their brief prepared by Ekeada Ihuoma K. that the Issues that arise for determination are –

1. Whether the Tribunal erred in law in holding that the 1st Respondent duly resigned his appointment as required by the law and was at the time of the election into the Kaduna State House of Assembly representing Magajin Gari Constituency qualified to contest.

2. Whether the Tribunal erred in refusing to place any evidential value on Exhibit B which is the Form EC8A(1) for BATC polling unit.

Obviously, the issue of whether the 1st Respondent was qualified or not must be resolved first because at the end of the day, if he was not qualified, then he had no business standing for election in the first place.

The Appellants’ position is that the 1st Respondent “was at the election disqualified from contesting the election” – (Ground iv) of their Petition). The lower Tribunal, however, disagreed with them and held as follows –

“The only fact in dispute between the parties is whether or not the 1st Respondent continued to draw on his salary even after he purportedly tendered his letter of resignation. The legal position is that resignation from employment is by giving the required length of notice or payment in lieu of notice. Resignation dates back from the date the notice is received. There is absolute power to resign and no discretion to refuse to accept the notice of resignation. It must be emphasized that where a person has taken steps he is required by law to take, in this case, submit his letter of resignation, the refusal, failure, neglect of the relevant officials to do their part, in this case, stop the payment of his salary cannot be visited on the person. This principle of law has been applied in the commencement of an action or initiation of a process. See ALAWODE V SEMOH (1959) SCNLR 91 and SAUDE V ABDULLAHI (1989) 4 NWLR (PT. 116) 387 AT 436 and 437. It is the view of this Tribunal that this principle of law applies with equal force here. What was required of the 1st Respondent by S.107(1)(f) of the Constitution is to resign his appointment 30 days before the election. From the pleadings of the parties and evidence led, we are of the view that the 1st Respondent has duly resigned his appointment as required by law. – – “. (Highlight mine).

The Appellants’ contention is that the Tribunal’s findings are “perverse”. It was submitted that the Tribunal was bound by the pleadings before it, citing Udengwu V. Uzuebu (2003) FWLR (PT. 179) 1173, that it is an admitted fact that the election was conducted on the 14th April, 2007 and the 1st Respondent received his salary up to March, 2007; that the burden of proof shifted to the 1st and 2nd Respondents to lead evidence that the payments received as salary were made in error or that it was the duty of his employers to stop the payment of his salary, as claimed; and, citing Alaki V. Shaaho ( 1999) 3 NWLR (Pt.595) 387, that the 1st Respondent “cannot eat his cake and yet purport to have it.

It was further argued that as Petitioners, it was not for them to establish that the 1st Respondent received salary up to March, 2007, citing RCC (NIG) LTD V. R.P.C LTD (2005) ALL FWLR (Pt.265) 1020,’ that “he who asserts must prove” so it was for the 1st & 2nd Respondents to establish that the payments made up to March, 2007 were made in error, citing UBA Plc V. Jargaba (2007) 11 NWLR (Pt. 1045) 247.

The Appellants therefore urged this Court to resolve this issue in their favour and to hold that there was no basis in law for the application by the lower Tribunal of the principles of law enunciated by the Supreme Court in Alawode V. Semoh (supra) and Saude V. Abdullahi (supra), because both cases merely deal with commencement of actions.

The 1st and 2nd Respondents however argued that the Appellants admitted against their interest that the 1st Respondent resigned his appointment from 1st February, 2007, and that the payments made by the 1st Respondent’s employer in error was refunded to the employer, and since facts admitted need no proof, it was not for them to lead evidence outside the said admissions, citing Atanze V. Attah (1999) 3 NWLR (Pt. 596) 647 and NBA V. Fobur (2006) AFWLR. (Pt. 333) 1739.

It was further submitted that no evidence was led nor any reference made by the Appellants to the payment vouchers in Exhibit E, the certified true copy of the 1st Respondent’s file tendered from the bar, and that it is not part of the duty of the lower Tribunal to make inquiry into Exhibit E by examining same at Judgment stage when Exhibit E had not been examined in the Court, citing Ejiogu V. Onyeaguocha (2006) AFWLR (PT. 317) 467 at 490 and Habib Nig. Bank Ltd. V. Gifts Unique Nig. Ltd. (2005) AFWLR (Pt.241) 234 at 253 – 257

Arguing in the alternative, they submitted that if this Court holds “that Exhibit E constitutes the evidence in proof of such payment, the same Exhibit E contains evidence of the refunds made for such wrong payments”; that when an employee serves his employer with a letter of retirement or resignation, it is not his obligation to direct or compel his employer to stop the payment of his salary; and that the lower Tribunal’s reference to the cases of Alawode V. Semoh (supra) and Saude V. Abdullahi (supra) did not occasion any miscarriage of justice in this case, citing Ajibola V. Ajadi (2004) AFWLR (Pt. 220) 1273 at 1289.

The 3rd – 13th Respondents also argued that the burden of proof did not shift to the 1st and 2nd Respondents. It was submitted that even though the 1st Respondent was not called as a witness and his witness statement was never adopted, it is not within the 1st Respondent’s power to stop his employers from erroneously paying his salary into his account; and that the Appellants failed to proffer adequate and credible evidence to discharge the burden on them, thus, there was no duty on the 1st Respondent to lead evidence of facts pleaded in his pleadings.

Now, the outcome of this appeal is hinged on the pleadings filed by the parties. Pleadings play an essential role in the litigation process. The law presumes that a person who comes into litigation should have a case to answer, and a party’s case is made at the stage of the pleadings. A Plaintiff states his case in the Statement of Claim and a Defendant states his case in the Statement of Defence. Obviously, if the Defendant decides not to give evidence to vindicate the Statement of Defence, the Court is entitled to hold that the evidence of the Plaintiff is unchallenged – see Ogunyade V. Oshunkeye (2007) 15 NWLR (Pt. 1057) 218 SC, where the Supreme Court per Mukhtar, JSC, also observed as follow-

“It is merely stating the obvious that pleadings do not have the brain and the mouth to talk and so they need the human being with the automation of the brain, mind and mouth to express the contents of the pleadings in open Court. Where the human being fails to talk for the Statement of Defence, that seems to be the end of the road for the Defendant “,

Pleadings not only define the issues in dispute between the parties, they also highlight matters in which there is agreement between them, and an admitted fact need not be proved by the other party – see Balogun V. Egba Onikolobo Comm. Bank (Nig.) Ltd. (2007) 5 NWLR (Pt. 1028) 584.

The Petition is the originating process in election matters, and it covers the function of a Statement of Claim in an ordinary civil action. The Respondent’s pleading is the Reply to the Petition, which is required to traverse the allegations in the Petition denied by the Respondent.

In this case, the Appellants, as Petitioners before the lower Tribunal, pleaded as follows in paragraphs 15.1 to 15.6 of their Petition –

15.1 – – that “the 1st Respondent being employed in the public service did not validly retire or disengage from his employment as a permanent and pensionable staff with the Kaduna State Local Government service Board posted to Kachia Local Government at least 30 days before the date of election”.

15.2 – – That “by the condition of service governing his employment the 1st Respondent is expected to serve his employers 3 MONTHS NOTICE or pay 3 MONTHS salary in lieu thereof as a condition precedent for a valid retirement or disengagement from service. However, the 1st Respondent handed over to his employers a letter of retirement dated 30th October, 2006 on the 6th day of November, 2006 long after the commencement of the purported notice of retirement said to be effective from 1st November 2006 to 31st January, 2007. The Petitioners hereby plead and shall at the trial rely on the 1st Respondent’s letter of retirement”.

15.3 – – That “it was not practicable and it cannot by any stretch of imagination be said that the 1st Respondent has validly retired or disengaged from his employment in the public service at least 30 days from the date of the House of Assembly elections conducted on the 14th day of April, 2007”.

15.4 – – That “the 1st Respondent’s employers up to the date of the election and beyond have not accepted or acceded to his retirement from the public service”.

15.5 – – That “the 1st Respondent’s salary with Kachia Local Government has continued to run up to at least the month of MARCH, 2007. The Petitioners hereby plead and shall at the trial rely on the 1st Petitioner’s (sic) records of employment, Including files, letter of employment, condition of service etc., in the custody of both the Kaduna State Local Government Service Board and Kachia Local Government”. (Highlight mine).

On their own part, the 1st & 2nd Respondents pleaded as follows in paragraphs 9 to 12 of their Joint Reply to the Appellants’ Petition –

(9) The 1st Respondent retired from the services of the Local government Service Board 30 days before the date of the election which held on 14th April, 2007. The 1st Respondent will found on his letter of retirement dated 30/10/06 at the trial.

(10) There is no requirement of any law or contract to the effect that the 1st Petitioner’s retirement can only become effective upon the acceptance of his retirement by his employer.

(11) It is not the responsibility of the 1st Respondent to pay himself any salary or to instruct his former employer to determine the payment of his salary after his retirement.

(12) All payments made to the 1st Respondent after his retirement in error for the months of February and March, 2007 were refunded to his former employer through Kachia Local Government Treasury and appropriate receipts issued in evidence of the refund. The 1st Respondent will found on the Treasury receipts of the refund at the trial.” (Highlight mine).

The Appellants’ case appears to be that the 1st Respondent could not have retired from service 30 days before the date of the election because his salary was still being paid up to March 2007, and it would seem that the 1st Respondent in his paragraph (12) did in fact admit that his employer continued to pay his salary into his account up to March 2007.

In finding for the 1st Respondent, the lower Tribunal relied on the decisions of the Supreme Court in Alawode V. Semoh (supra) and Saude V. Abdullahi (supra), but I have to agree with the Appellants that the decision in those cases have absolutely no relevance to this case. The issue in Alawode V. Semoh (supra) was – “What constitutes the ‘commencement’ of an Action?” and Ademola, FCJ, held as follows-

“The test for the commencement of an action – – appears to me to be this: has the Plaintiff done all that is required of him by law to commence his action? In England, all he has to do is to buy the writ and endorse it. In Nigeria he has to make an application to the Registrar and pay the necessary fees. From then on, his responsibility ceases and what is left to be done is a domestic affair of the Court and its staff. From the time the Plaintiff, in Nigeria, delivers his application to the Registrar – – and he pays the necessary fees, it will, in my view, be correct to say that an action or a suit has been commenced”.

The same question – “when is an action commenced? – came up in Saude V. Abdullahi (supra), and relying on its decision in Alawode V. Semoh (supra), the Supreme Court arrived at the very same answer.

My question now is – what has the decisions of the Supreme Court relating to commencement of action got to do with this Election Petition? This appeal emanated from an Election Petition filed by the Appellants at the lower Tribunal, wherein they alleged that the 1st Respondent was not qualified to stand for election because he had not complied with Section 107(1)(f) of the 1999 Constitution, which clearly stipulates that – “No person shall be qualified for election into a House of Assembly if – (f) He is a person employed in the public 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 the election”.

The issue in this case has nothing to do with commencing an action, rather it has everything to do with whether the 1st Respondent resigned, withdrew or retired from his employment 30 days before the election. And contrary to the arguments canvassed by the two sets of Respondents, the fact that the 1st Respondent’s salary was still being paid into his account up to March 2007 presents a likelihood that he had not retired, and so the onus was on him to prove that the payments were made in error and that he had refunded the money to his employer as he asserted in paragraph 12 of the Joint Reply to the Appellants’ Petition.

By Section 137(1) of the Evidence Act, the burden of first proving the existence or non-existence of a fact lies on the party against whom the Judgment of the Court would be given if no evidence were produced on either side, and sub-section (2) of the same Section 137 further says –

“If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom the Judgment would be given if no more evidence were adduced; and so on successively, until all the issues in the pleadings have been dealt with”.

The 1st Appellant testified and adopted his witness statement on oath. The Appellants also tendered Exhibit E, which contained payment vouchers showing emoluments paid to the 1st Respondent after he said he retired. The 1st Respondent did not testify. His witness statement on oath was not adopted and there are no treasury receipts in evidence.

In arguing that they did not need to back up the assertions in their pleading with evidence, the 1st and 2nd Respondents referred this Court to the following reply of the 1st Appellant while being cross-examined –

“The 1st Respondent resigned from 1st November, 2006 to 31st January, 2007. The election took place on 14th April, 2007. From 1st February, 2007 to 14th April,2007 is 71 days. The 1st Respondent did not leave more than 30 days before the election. He is still in service because he collected the salaries for February and March, 2007. His employers still paid his salary despite his resignation on 1st February, 2007. That payment of salary to him was not in error. I saw through the 1st Respondents’ Reply to the petition that he refunded the money.” (Underlining by the 1st and 2nd Respondents).

It is the 1st and 2nd Respondents’ contention that the above reply is an admission against the Appellants’ interest that the 1st Respondent was paid salary in spite of his resignation from 1st February, 2007 and not because he did not resign from his employment 30 days before the election; and that it is also an admission of their paragraph (12) that any salary paid was refunded to his employer. They further argued that the Appellants merely dumped Exhibit E on the lower Tribunal and failed in their obligation to demonstrate at the trial that there were payment vouchers in Exhibit E, which were signed by the 1st Respondent for February and March 2007, and for which no refunds were made.

In other words, the 1st and 2nd Respondents are passing the buck. They are shifting the burden that is theirs to carry unto the Appellants. What the lower Tribunal and Respondents failed to grasp is that once the 1st Respondent admitted that his salary was actually paid for two months after he was supposed to have retired, the burden shifted to the Respondents to prove that the payments were made in error, and were “refunded to his former employer”, as they asserted in paragraph 12 of their Joint Reply to the Petition. They even added in the same paragraph that “the 1st Respondent will found on the Treasury receipts of the refund at the trial.” But what did the 1st Respondent do? Nothing; he did not testify, not to mention producing any receipts to back up his assertion.

As I pointed out earlier, the onus of proof in a trial such as this one shifts from one party to the other, depending on the nature of the case and evidence adduced by either party. In other words, where a party has offered enough evidence and the other party would be the one to lose if no evidence is adduced in rebuttal, the onus of proof would shift to that other party. In this case, the onus shifted to the Respondents to prove that the allegation leveled against the 1st Respondent that he had not retired from service, at least 30 days from the election, was not true.

He failed to capitalize on the opportunity given to him to clear the air, and therefore has himself to blame for losing out completely, because in the absence of any evidence from him, the law says that the Appellants’ allegation remain unchallenged and thus must be accepted as the truth. All a party to a case needs to establish is that his story is more likely to be true than the other party, and that is exactly what the Appellants did.

Clearly, the lower Tribunal placed the burden of proof of the fact in issue in this case on the wrong party, and that usually leads to a miscarriage of justice – see P.H.M.B. V. Ejitagha (2000) 11 NWLR (Pt 677) 154 SC, Adedeji V. Oloso (2007) 5 NWLR (Pt. 1026) 133 SC, and Onobruchere V. Esegine (1986) 2 SC 385, where Oputa, JSC, said-

“Once it is found that there had been a misapprehension as to the onus of proof and a misdirection casting such onus on the wrong party, I think it will be reasonably fair to assume the likelihood of a miscarriage of justice”.

Misdirection as to the onus of proof is a very serious error, indeed, and to say that the lower Tribunal in this case definitely erred, is to put it mildly, because this error has resulted in a candidate who was not qualified to contest the election in the first place remaining in office for two years purporting to “represent” his constituency in the House of Assembly, which is unfortunate and a proven instance of a miscarriage of Justice.

The question now is – what is the effect of this blunder in this proceeding? In the case of Onobruchere V. Esegine (supra), the Supreme Court ordered a re-trial because the fundamental complaint was misdirection on the onus of proof. In this case, the Appellants urged this Court to set aside the decision of the lower Tribunal and grant the reliefs sought in paragraph 17 of their Petition. I am inclined to accede to the Appellants. I cannot grant all the reliefs sought, but I am of the view that this is a proper situation in which to invoke Section 16 of the Court of Appeal Act – see Obi V. INEC (2007) 11 NWLR (Pt 1046) 565 SC.

In my view, all the conditionalities that will enable this Court invoke the provisions of the Section 16 of the Court of Appeal Act and act accordingly, is present in this case. It is not necessary to itemize them. Suffice it to say that my primary consideration is time. The election that culminated in the Petition and this appeal took place on 14th April, 2007. Today is the 14th of May, 2009 and to remit this case to another Tribunal for re-trial will undoubtedly lead to injustice and hardship to the parties.

Before I go further, I must quickly say that the Appellants’ relief 3, praying that the 1st Appellant be declared the winner of the said election, cannot be granted by this Court. The 1st Respondent was not qualified to stand for the election that took place on the 14th of April 2007, and he was therefore not validly elected. The only order that this Court can make in the circumstances is to nullify the election and order fresh elections – see Section 147(1) of the Electoral Act 2006, which provides-

(1) Subject to subsection (2) of this Section, if the Tribunal or Court – – determines that a candidate who was returned as elected was not validly elected on any ground, the Tribunal shall nullify the election.

(2) If the Tribunal or the Court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the Election Tribunal or the Court, as the case may be shall declare as elected the candidate who scored the highest number of valid votes cast at the election – –

In other words, where the Tribunal or Court nullifies an election on the ground that a candidate did not meet the requisite qualification, it cannot return the Petitioner as duly elected. – see Mele V. Mohammed (1999) 3 NWLR (Pt. 595) 425 and Ejiogu V. Irona (2009) 4 NWLR (Pt. 1132) 513 the Port-Harcourt Division of this Court per Garba, JCA held as follows –

“Once an election was nullified under subsection (1) there would no longer be any results to be declare and returned for any or all the candidates that contested the said election. The nullification of the election means the nullification of all the results in respect of all the candidates that contested the election. As a result the only reasonable, fair and just consequential order to follow such nullification is that legally, no valid and lawful election was conducted in the constituency in question. Otherwise, the electorates in that constituency would unquestionably be denied their guaranteed constitutional to vote by being disenfranchised”..

Galadima, JCA, further held as follows in the same case –

” The germane issue is on knowledge by the electorate of the 1st Respondent’s disqualification. No oral evidence on the fact that the electorate knew of the 1st Respondent’s disqualification before the date of the election was given or adduced at the trial of the Petition. In these circumstances, there was no evidence upon which the lower Tribunal could rely upon to apply the provision of sub-section 2 of Section 147 of the Electoral Act, 2006 and justify the declaration of the Appellant as the candidate who scored the highest number of votes cast at the election”.

In this case, there is no evidence on record that that the electorate in the Magajin Gari Constituency of Birnin Gwari Local Government Area of Kaduna State knew of the 1st Respondent’s disqualification before the election that took place on the 14th of April, 2007 and in the circumstances, this Court can only order fresh elections.

The end result of the foregoing is that this appeal is allowed in part. The decision of the lower Tribunal in its Judgment delivered on the 16th of January, 2008 is hereby set aside. In its stead, I do hereby enter Judgment for the Appellants on the following terms –

1. I do hereby declare that 1st Respondent having not retired from his employment at least 30 days before the date of the election on 14th day of April 2007 is disqualified from contesting election as a Member of Kaduna State House of Assembly representing Magajin Gari Constituency, Birnin Gwari Local Government.

2. The declaration by the 3rd Respondent of the 1st Respondent as the winner of the said election is hereby set aside.

3. The 3rd Respondent is hereby ordered to conduct fresh elections, without the 1st Respondent, for Membership of the Kaduna State House of Assembly representing the Magajin Gari Constituency, Birnin Gwari Local Government

4. The 1st and 2nd Respondents are to pay costs assessed at N30,000.00 in favour of the Appellants-

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Other Citations: (2009)LCN/3254(CA)