Dr. Abdulaziz Labo Mahuta V. Abdulkadir Moh’d Nasir & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

BABA ALKALI BA’ABA, J.C.A.

This is an appeal against the judgment of the National Assembly Election Tribunal, holden at Katsina, Katsina State delivered on the 24th day of August, 2007 wherein the appellant’s petition was dismissed.

The appellant was the candidate of the ALL NIGERIA PEOPLES PARTY (ANPP) at the 21st April, 2007, National Assembly Election into the House of Representatives, representing Malumfashi/Kafur Federal Constituency of Katsina State, While the 1st respondent was the candidate of the Peoples Democratic Party (PDP).

The 1st respondent was the former Chairman of the Malumfashi Local Government Area of Katsina State up to the 7th day of April, 2007, when his tenure of office as the Chairman expired.

The Governor of Katsina State appointed all the Local Government Chairmen including the 1st respondent as the Chairman/Care-taker Committee of the Malumfashi Local Government Area of Katsina State. The 1st respondent was regarded the Chairman/Caretaker Committee of the Malumfashi Local Government Area of Katsina State at the time he contested the election into the House of Representatives, representing Malumfashi/Kafur Federal Constituency of Katsina State, followlng his appointment by the Governor through a press release.

At the conclusion of the said election, the 1st respondent was declared and returned as the successful candidate in the election into the House of Representatives representing Malumfashi/Kafur Federal Constituency of Katsina State.

Unhappy with the declaration and return of the 1st respondent, the appellant as petitioner filed a petition before the Katsina State National Assembly Election/Governorship and Legislative Houses Election Tribunal, Katsina State dated the 16th day of May, 2007, filed on the 18th day of May, 2007, to be found at pages 3 – 8 of the record.

The main ground of the petition appears to be paragraphs 11, 12, 13 and 13f of the petition, the statement of claim which reads as follows:-

“11. Your Petitioner states that the 3rd Respondent returned the 1st Respondent as winner without any legal justification as the duly elected member of Federal House of Representatives representing Malumfashi/Kafur Federal Constituency of Katsina State.

12. Your Petitioner states that the ground upon which this petition is brought is that the 1st Respondent was at the time of the election not qualified to contest the election.
13. Your Petitioner states that the facts upon which the petition is predicated are as follows:-

13f.The 1st Respondent was prior to the 8th day of April, 2007 the Chairman of Malumfashi Local Government Area under the platform of the Peoples Democratic Party whose tenure of office expired on the 7th April, 2007.

WHEREOF THE PETITIONER PRAYS

i) That it be determined that the 1st Respondent was not qualified to contest election into the Federal House of Representative in Malumfashi/Kafur Federal Constituency on the 21st day of April, 2007.

ii) AN ORDER nullifying the declaration and return of the 1st Respondent as winner of the National Assembly election held in Malumfashi/Kafur Federal Constituency of Katsina State on the 21st day of April, 2007.

iii) That it be determined that your Petitioner be declared winner and validly elected and ought to be the member House of Representative representing Malumfashi/Kafur Federal Constituency of Katsina State in place of the disqualified 1st Respondent. ”

The 1st respondent in his reply, dated the 18th day of June, 2007, filed on the 21st day of June, 2007 at pages 35 – 37 of the record denied the claims of the petitioner particularly in his paragraphs 2, 3, 4 and 5 of his statement of defence – reply as follows:-

“SAVE AND EXCEPT as may herein be expressly admitted, the 1st Respondent denies each and every allegation of fact contained in the Petition as if same is herein set out seriatim and specifically traversed.

2. Paragraphs 1, 2(a), 5, 6, 7, 8, 10, 11, 12 and 13 of the Petition are denied and the Petitioner is put to the strictest proof thereof.

3(i)The alleged appointment of the 1st Respondent as a member of the Transition Committee for Malumfashi Local Government Area by the then Governor of Katsina State Alh. Umaru Musa Yar’adua was never conveyed to the 1st Respondent by means of any letter or legal instrument of appointment.

(ii) A fortiorari, the 1st respondent did not accept the alleged appointment or otherwise act or function in the said office after 7th April, 2007.

(iii) The 1st Respondent was not sworn into office as a member of the alleged Transition Committee for Malumfashi Local Government Area pursuant to the alleged appointment. Indeed no Transition Committee member was sworn or inaugurated into office until on or about 22nd May, 2007 i.e. well after the election.

(iv) Assuming (but not conceding) that the Press Release dated 7/4/07 allegedly issued by the Katsina State Government constituted an effective or legal appointment of the 1st Respondent to the office of a member of the Transition Committee for Malumfashi Local Government Council, the 1st Respondent shall contend that the appointment was a political appointment which did not constitute an employment in the Public Service of the Federation or of Katsina State.

(v) Further to paragraph 3(iv) hereof, the 1st Respondent was not required to resign, withdraw or retire from the alleged appointment or office 30 days before the National assembly Election held on 21st April, 2007.

4. The 1st Respondent shall contend further that he was not disqualified from contesting the election into the Federal House of Representatives held on 21st day of April, 2007 and that he was duly returned at the election having scored the majority of lawful votes at the poll.
5. The 1st Respondent shall contend that the Petitioner is not entitled to be returned elected at the election or to any of the reliefs sought in the petition. ”

The 2nd and 3rd respondents reply, statement of defence reads as follows:-

“SAVE AND EXCEPT as may herein be expressly admitted, the 2nd and 3rd Respondents deny each and every allegation of fact contained into the Petition as if same is herein set out seriatim and specifically traversed.

2. The 2nd and 3rd Respondents denies paragraphs 11, 12 and 13 of the petitioner’s petition and put him to the strictest proof thereof.
3. In further answer to paragraphs 11 of the petitioner’s petition, the 2nd and 3rd Respondents avers that the 1st Respondent was legally justified and duly elected member of the Katsina State House of Assembly representing Rimi Local Government Area of Katsina State .
4. In further answer to paragraphs 12th and 13th of the petitioner’s petition, the 2nd and 3rd Respondents avers that the 1st Respondent was qualified to contest the said election has he has satisfied all the conditions required by law.”

As issues have been joined by the parties to this appeal in their pleadings, hearing commenced in the petition. The appellant testified as the petitioner and the 1st respondent also testified on his own behalf and called’ one witness. The evidence of the appellant as the petitioner is at pages 61 – 62 of the record. The proceedings reads:-

“Dr. Abdulaziz Labo Mahuta sworn to speak the truth and says as follows:

My names are Abdulaziz Labo Mahuta I live at No.19 Galadima Wudi Road Malumfashi I am a medical practitioner.

On 18th May 2007 I had filed a sworn statement on oath I want it to be adopted in this Petition.

Tribunal:

Statement on oath of Dr. Abdul Aziz Labo Mahuta sworn to on 18th May 2007 is admitted in evidence and marked as Exhibit P1.

SIGNED

CH 23/7

Payment Voucher for the months of March and April 2007 which is subpoened for Malumfashi Local Government is admitted and marked as Exhibit P2(a) and (b) .

SIGNED

CH 23/7

‘”Publication of Daily Trust of 9th April 2007 is admitted in evidence and marked as Exhibit P3.

SIGNED

CH 23/7

That’s all.

Cross Examination by Uyi:

I had worked with the Ministry of Health. Before I started work I was given a letter of Appointment.

I voluntarily took up the job after I had accepted the appointments. I have not seen the 1st Respondent’s Letter of Appointment as a member of Caretaker Committee. I have not seen his Letter of Acceptance too.

That’s all.

Kalaks: I will not know if he was appointed as a Civil Servant.

That’s all.

Re Examination: Nil.”

At page 62 of the record R.W.1, Mohammed Yusuf Bello testified as follows:-

“My names are Mohammed Bello Yusuf I live at No.2 Isa Kaita Road G.R.A. Katsina State. I am the Chairman of Katsina State L.G. Service Commission. On 21st June 2007 I made a statement on oath.

I wish to adopt same.

(Tribunal: Statement on oath of Muhammed Bello Yusuf sworn to on 21st June 2007 is admitted in evidence and marked as Exhibit R1.

SIGNED

CH 23/7

That’s all.

Cross Examination by Kalaks: Nil.”

The 1st respondent, Abdulkadir Moh’d Nasir testified on his own behalf at pages 63 – 64 of the record as follows:-

“I am Abdulkadir Moh’d Nasir I live at 48B Aliyu Road Malumfashi. I am a Member of the House of Representative and the 1st Respondent in this Petition.

I made a statement on oath dated 21st June 2007.

I wish to adopt same.

Tribunal: Statement on oath of Abdulkadir Moh’s Nasir made on 21st June 2007 is admitted in evidence and marked as Exhibit R2.

SIGNED

CH 23/7

Kalaks: No question for him

Taiwo: My tenure came to an end on 7th April 2007 as Chairman of Malumfashi L.G.

He looks at Exhibit P2(a) and (b) (Payment Voucher for the months of i March and April 2007).

The first name there is Abdulkadir Nasir is on the two documents. I bear those names.

I have only one signature.

The signature on March Voucher is not mine.

Abubakar Labo signed against the March Voucher. It was done on my behalf I authorized him to do so.

That’s all.

Re examination: None.

Uyi: That’s the case for the 1st Respondent.

Kalaks: We are not calling any witness.”

.The Tribunal in its judgment delivered on the 24th day of August, 2007, inter alia held:-

“In the instant case, the 1st Respondent was not even employed by any of the organs of Malumfashi Local Government Authority. He was only appointed member of the Transition Committee by the then Governor of Katsina State, Alhaji Umaru Musa Yar’adua which appointment was a political one.

It should also be pointed out, that the 1st Respondent could not possibly have resigned his appointment as the Chairman or member of Transition Committee thirty days before the date of election because, at the time of the purported appointment on the 8th April, 2007 it was less than 7 days to the election which was held on the 21st April 2007. In other words, assuming the 1st Respondent was so, appointed then going by the Petitioner’s contention, the 1st Respondent ought to have resigned 23 days before the appointment. The law does not intend the impossibility. At the relevant time, that was 30 days before the election, the 1st Respondent was a duly elected Chairman of Malumfashi Local Government who need not resign his appointment before contesting the election.

In the result, having regard to the pleadings and evidence adduced in support and after putting the totality of the evidence adduced by both sides on imaginary scale, this Tribunal is satisfied, that the probative value of the evidence adduced by the 1st Respondent and his witness is heavier in favour of the said 1st Respondent on the balance of probabilities against the petitioner’s led evidence.

This Tribunal therefore holds, that there is no merit in this petition in that the petitioner has failed to prove the grounds upon which the petition is brought. In the particular facts and circumstances of this case the petition stands to be and is therefore hereby dismissed accordingly.”

The appellant was dissatisfied with the judgment of the Tribunal as a result, a notice of appeal was filed on the 12th day of September, 2007, containing four grounds of appeal to be found at pages 109 – 112 of the record.

Briefs of argument were filed and exchanged between the parties in accordance with the rules of practice and procedure of this Court.

At the hearing of the appeal which came up on the 20th day of April, 2009, counsel to the parties adopted their respective briefs without advancing any oral argument.

From his four grounds of appeal, the learned counsel for the appellant, Taiwo Abe, Esq., formulated four issues for determination in this appeal at pages 4 – 5 of the appellant’s brief dated the 6th day of February, 2008, filed on the 7th day of February, 2008 as follows:-

“(i) Whether the evidence of appointment of the 1st Respondent as chairman transition committee for Malumfashi vide the certified true copy of the Daily Trust Publication tendered as exhibit P3 was admissible in law against the 1st Respondent (formulated or distilled from Ground one of the Notice of Appeal).

(ii) Whether the evidence that the 1st Respondent after the expiration of his tenure as the elected chairman of ( Malumfashi Local Government on 7/4/07 was in the public service employment of Katsina State Government by continuing to collect his monthly salary of April, 2007 vide exhibit P2 (a) and (b) was not so disqualified from contesting the 21st April, 2007 National Assembly Election. (Formulated or distilled from Ground two of the Notice of Appeal).

(iii) Whether the appointment of the 1st Respondent as the chairman transition committee for Malumfashi Local Government Area was not an employment in the public service of Katsina State within the meaning and intendment of the provisions of S.66(1)(f) and Section 318(1)(c) of the 1999 Constitution (distilled from ground 3 of the Notice of Appeal).

(iv) Whether the 1st Respondent was qualified to contest the 21st April 2007 National Assembly election into the House of Representatives having not resigned, withdrawn or retire from his Public Service Employment in Katsina State 30 days prior to the date of the election. ”

The learned counsel for the 1st respondent, Napoleon O. Idenala, Esq, in the 1st respondent’s brief dated the 7th day of July, 2008, deemed filed by the order of this Court dated 12th day of January, 2009 formulated a single issue as follows:-

“Having regard to the pleadings of the parties and the evidence led in respect of same, whether the Lower Tribunal was not right when it held that the Appellant had failed to establish the allegation that the 1st Respondent was not qualified to contest the lection(sic) and accordingly dismiss the Petition.”

The 2nd and 3rd respondents counsel, Oluwole Osaze Uzzi, Esq, on the other hand, also formulated a single issue in their joint brief of argument dated the 7th day of October, 2008, deemed filed on the 12th day of January, 2009 by order of this Court. The issue is as follows:

“Whether, from the totality of evidence before it, the Tribunal was right in holding that the 1st Respondent was not disqualified from contesting the 21st April, 2007 National Assembly Election. ”

The main purpose of formulation of issues for determination is to enable the parties to narrow the issue or issues in controversy in the grounds of appeal filed in the interest of accuracy, clarity and brevity. See OGBUYINYA & ORS VS. OBI OLARDO & ORS (1990) 4 NWLR (PT.146) 581 at 568. An appellate court can only hear and decide on issues raised on the grounds of appeal filed before it and an issue not covered by any ground of appeal is incompetent and liable to be struck out. See MANAGEMENT ENTERPRISES VS OTOSANYA (1998) 2 NWLR (PT.55) 179.

It is a fundamental function of court to do justice to parties who appear before it in its pursuit of due and proper administration of Justice. It can not close its eyes to obvious errors committed by counsel as a result of inexperience or ignorance where such errors can lead to injustice if left uncorrected. So far as it will not lead to injustice to opposite side, an appellate court possesses the power and in the interest of justice, reject, modify or reframe any or all issues formulated by the parties, after a careful consideration of the issues as set out in the brief and grounds of appeal filed. This power of an appellate court has never been in doubt as long as the issue reframed is anchored on the grounds of appeal filed, the opposite party can not complain. See the case of OGBUYINYA & ORS. VS. OKUDO & ORS. (1991) 4 NWLR (PT.146) 551 and BANKOLE VS. PELU (1990) 8 NWLR (PT.211) 523.

After a careful examination of the grounds of appeal, issues formulated by the parties in this appeal as well as the judgment appealed against, I am of the humble view that the main issue in this appeal relates to the evidence adduced by the parties in this appeal. In that regard, I propose to exercise the power given to this court as an appellate court to frame a single issue for the determination of this appeal. The issue is as follows:

“Whether the judgment of the Tribunal can be sustained having regard to the evidence adduced by the appellants/petitioners before the Tribunal?”

It is the submission of the learned counsel for the appellant that the appellant having successfully tendered the Daily Trust Publication in evidence marked exhibit ‘P3’, evidencing the appointment of the 1st respondent as the Transition Committee Chairman of the Malumfashi Local Government Area as from the 8th day of April, 2007 by the Governor of Katsina State under the provisions of Section 80(a) of the Katsina State Local Government Law, 2000 (as amended), being admissible evidence has complied with the provisions of Section 137(2) of the Evidence Act, Cap 112, Laws of the Federation of Nigeria, 1990.

According to the learned counsel for the appellant, the tendering and admission of the Daily Trust Newspaper Publication has successfully shifted the onus of disproving the 1st respondent’s appointment as Chairman of Malumfashi Local Government Area by the Government of Katsina State on the 1st respondent. He submitted that the burden of proof lies on the party against whom judgment will be given if no more evidence is adduced.

It is argued by the learned counsel for the appellant that the Tribunal was in error in holding that the Certified True Copy of the Daily Trust Publication exhibit ‘P3’ was a mere hearsay, and in insisting that a letter of appointment ought to have been pleaded and tendered before the Tribunal by the appellant in proof of the alleged appointment of the 1st respondent by the Governor of Katsina State.

According to the learned counsel for the appellant, the Daily Trust Publication exhibit ‘P3’ was duly certified by the appropriate authority in accordance with the provisions of Sections 93 and 94(1) of the Evidence Act, Cap 112, Laws of the Federation of Nigeria, 1990 as a result its authenticity was not disputed by the 1st respondent.

It is contended by the learned counsel for the appellant that relying on exhibit ‘P3′, the appellant as petitioner has discharged the onus of proof placed on him by the provision of Section 137(1) of the Evidence Act, Cap 112, Laws of the Federation of Nigeria. Pointing out that neither the Katsina State Government nor the 1st respondent disputed the publication in the said Daily Trust of the 9th day of April, 2007.

In conclusion, the learned counsel for the appellant, urged the court to resolve the issue in favour of the appellant and allow the appeal.

Responding to the submission of the learned counsel for the appellant, the learned counsel for the 1st respondent, submitted that the appellant had woefully failed to establish his allegation that the 1st respondent was appointed a member of the Transition Committee for Malumfashi Local Government Area by the Governor of Katsina State on the 8th day of April, 2007. He stated that the appellant under cross-examination admitted that he had never seen the purported letter of appointment of the 1st respondent as a member of the Care-taker Committee for the Malumfashi Local Government Area. Reference was made to page 62 of the record by the learned counsel for the 1st respondent where the appellant admitted that he had never seen the letter of acceptance of the 1st respondent to the purported appointment as the Chairman of the Transition Committee of the Malumfashi Local, Government Area of Katsina State.

The learned counsel for the 1st respondent referred and placed reliance on the authority of OKHUAROBO VS. EGHAREVBA (2002) 5 S.C. (PT.1) 141 at 162 and DADA VS. ADEYEYE (2005) 6 NWLR (PT.920) 1 at 20, where, it was held that as the 1st respondent was not given a letter of appointment by the State or Local Government Service Commission, he was not a staff of the Ifedayo Local Government Council.

It was further held in Dada (supra) that as the 1st respondent held a political appointment at the relevant time so he is not caught by the provisions of Section 318 of the Constitution.

The learned counsel for the 1st respondent, in the alternative submitted that assuming without conceding that the 1st respondent was appointed a member of the said Transition Committee for the Malumfashi Local Government Council of Katsina State, such an appointment does not make one an employee or staff of the public service of the State or the Local Government to warrant his resignation 30 days before the election and referred to Section 318 of the Constitution on interpretation. Relying on the authority of BAKARE VS. N.R.C (2007) ALL FWLR (PT.392) 1597 at 1600, learned counsel for the 1st respondent, submitted that where a word in a statute is unambiguous, the word must be given its ordinary and natural meaning unless the meaning may lead to absurdity which is not the case in the interpretation of Section 318 of the Constitution of the Federal Republic of Nigeria, 1999.

Concluding his submission, learned counsel for the 1st respondent submitted that the Tribunal was therefore right in its judgment when ,it held that the appellant had failed to prove that the 1st respondent was not qualified to contest the election and in dismissing the petition.

The learned counsel for the 2nd and 3rd respondents in their joint brief of argument stated that the lone ground upon which the appellant sought to persuade the Tribunal to nullify the election of the 1st respondent as the winner of the election to the House of Representatives representing Malumfashi/Kafur Federal Constituency was that the 1st respondent was not qualified to contest the said election on the ground that the 1st respondent was at the time of the election, a member of the Transition Committee of the Malumfashi Local Government Area of Katsina State which according to the appellant made the respondent, an employee in. the public service. That as contended by the learned counsel for the appellant, the 1st respondent ought to have resigned, withdrawn or retired from the said office thirty (30) days before the election.

It is submitted by the learned counsel for the 2nd and 3rd respondents, that it is the duty of the appellant who asserts to prove the allegation of disqualification relying on the provisions of Sections 135 – 137 of the Evidence Act. Reference was made to the case of OCHIN VS. EKPECHI (2000) 5 NWLR (PT.656) 225. He stated that the appellant testified before the Tribunal and relied on his statement on oath and the three documents tendered in evidence and marked exhibits “P1”, “P2A”, P2B” and “P3” respectively. He further submitted that from the totality of the evidence the appellant did not meet the standard of proof or discharged the onus of proof placed on him.

It is argued that the appellant merely relied on the press release, the publication in the Daily Trust but failed to tender the said Press Release in evidence.

Reference was made to the cases of OGBU VS. ANI (1994) 7 – 8 S.C.N.J. 363 at 383 and PRINCEWILL VS. STATE (1994) 6 NWLR (PT.353) 703 at 715 on the necessity of adducing evidence by a party in support of his case. Learned counsel for the 2nd and 3rd respondents further argued that since the appellant failed to prove that the 1st respondent was in the employment of either the Katsina State Government or Malumfashi Local Government Area Council, the question of resignation, withdrawal or retirement does not even arise. He concluded his submission by urging the Court to hold that the 1st respondent was qualified to contest the said election and urged this Court to affirm the decision of the Tribunal.

It is clear that the contention of the appellant against the election of the 1st respondent is mainly on qualification or disqualification to contest the election as a member of the House of Representative, representing Malumfashi/Kafur Federal Constituency. That being the case, my task on this appeal, is to determine from the evidence adduced before the Tribunal, applying the provisions of the Constitution of the Federal Republic of Nigeria as well as the Electoral Act, relating to qualification or disqualification in determining whether or not the 1st respondent was qualified or disqualified from contesting the said election.

In the exercise of the powers conferred on the Hon. President of the Court of Appeal, by Section 285(3) of the Constitution of the Federal Republic of Nigeria, the Provisions of Section 50 of the 1st Schedule to the Electoral Act, 2006 and all other provisions conferred on the President of the Court of Appeal, to issue the Election Tribunal and Court Practice Directions 2007 which came into effect on the 3rd of April, 2007.

Paragraph 1(b), (c) and 2 of the Election Tribunal and Court Practice Directions, 2007, provides:

“1(1) All petitions to be presented before the Tribunal or Court shall be accompanied by:

(b) written statements on oath of the witnesses; and

(c) copies or list of every document to be relied on at the hearing of the petition.

(2) The respondents’ reply shall be a statement in summary form and shall be supported by copies of documentary evidence, list of witnesses and the written statements on oath.”

In compliance with the said Election Tribunal and Court Practice Directions, 2007, the appellant as petitioner in his sworn deposition contained at pages 10 – 13 of the record deposed as follows:-

“I Dr. Abdulaziz Labo Mahuta, Male, Adult, Muslim of Malumfashi Local Government of Katsina State do hereby make oath and state as follows:

1. That I am a registered member of All Nigeria Peoples Party (ANPP) a duly registered political party in Nigeria and was the candidate sponsored by the party for the 21st April National Assembly election in Katsina State who ought to have been duly declared and returned as the winner in the said election as the member representing Malumfashi/Kafur Federal Constituency in the House of Representative.
2. That the 1st respondent is the person declared winner and was so returned by the 3rd respondent having purportedly scored the highest votes in the National Assembly Election in Malumfashi/Kafur Federal Constituency of Katsina State, even though he was not qualified to contest in the said election as a candidate of the Peoples Democratic Party which sponsored him for the said election.
3. That the 2nd respondent is a Corporate body established by law and charged with the responsibility to inter-alia receive the list of candidates which the political parties nominated for elections as well as to conduct the elections that took place on the 21st day of April, 2007 in respect of which this petition is filed.
4. That ANPP conducted primaries for the election of its candidate for the National Assembly election in Malumfashi/Kafur Federal Constituency of Katsina State and the petitioner ultimately emerged winner.
5. That the National Assembly Election in Malumfashi/Kafur Federal Constituency was conducted on the 21st day of April 2007 among (6) six candidates with their respective scores as follows:

Name of Candidates

(i) Abdulkadir Mohd Nasir 138,410

(ii) Mohd Aminu 2,512

(iii) Abdullahi Ibrahim Kaita 313

(iv) Muntari Shehu 55

(v) Dr. Abdulaziz Labo Mahuta 26,193

(vi) Musa Yahaya 146

9. That the 3rd respondent unlawfully and without any basis in law returned the 1st respondent as the person duly elected in the said election.
10. That the 1st respondent was not qualified as a candidate to contest the National Assembly election being an employee in the public service of Katsina State as from the 8th day of April, 2007 pursuant to the Directive of the Katsina State Governor – Alh. Umaru Musa Yar’adua made on the 7th day of April 2007 as contained in the Press Release issued by the Press Secretary to the State Governor – Habibu Garba Matazu dated 7/4/07.
11. That the 1st respondent who was prior to the 8th day of April, 2007, the Chairman of Malumfashi Local Government Area of Katsina State, continued as a member of the Transition Committee for the Local Government before, during and after the election and did not resign, withdraw or retire his appointment 30 days to the date of the election as required by law but continued with his public service appointment with Katsina State.
12. That the status of the 1st respondent clearly disqualified him from contesting for a seat in the National Assembly on the 21st day of April 2007 when the election was conducted and was purportedly returned as winner by the 3rd respondent unlawfully, illegally and same being invalid.
13. That my prayers are:

i) AN ORDER of this Tribunal nullifying the declaration and return of the 1st respondent (ABDULKADIR MOHD NASIR) on the grounds that he was NOT qualified to contest the election into the National Assembly representing Malumfashi/Kafur Federal Constituency in the house of Representatives.

ii) AN ORDER that I was validly elected and ought to be declared winner as member representing Malumfashi/Kafur Federal Constituency of Katsina State in the House of Representatives in place of the disqualified 1st respondent.

In the Alternative, I pray for:

(a) AN ORDER that fresh/new National Assembly election into the House of Representative be held in Malumfashi/Kafur Federal Constituency on a date to be appointed by the 2nd respondent.”

The sworn deposition of the 1st respondent is at pages 38 – 40 and it reads as follows:

“I, Abdulkadir Moh’d Nasir, Adult, Male, Muslim, Nigeria citizen of Malumfashi Local Government of Katsina State do hereby make oaths and state as follows:

1. That I was the candidate of the Peoples Democratic Party at the National Assembly election for Malumfashi/Kafur Federal Constituency held on 21st day of April, 2007.
2. That I was declared duly elected and returned by Independent National Electoral Commission having obtained the majority of lawful votes cast at the election.
3. That my purported appointment as a member of the Transition Committee for Malumfashi Local Government Area by the then Governor of Katsina State Alh. Umaru Musa Yar’adua was never conveyed to me by means of any letter or legal instrument of appointment.
4. That I did not accept the appointment as alleged by the petitioner or otherwise act or function in the said office after 7th April, 2007.
5. That I was not sworn into office as a member of the alleged Transition Committee for Malumfashi Local Government Area pursuant to the alleged appointment. Indeed, I know as a fact that no Transition Committee member was sworn or inaugurated into office until on or about 22nd May, 2007 i.e. well after the election .
6. That assuming (but not conceding) that the Press Release dated 7/4/07 allegedly issued by the Katsina State Government constituted an effective or legal appointment to the office of a member of the Transition Committee for Malumfashi Local Government Council, the appointment was a political appointment which did not constitute an employment in the Public Service of the Federation or of Katsina State.
7. Further to paragraph 6 above, I aver that even if there was such an appointment (which is not conceded) I would not be required to resign, withdraw or retire from the alleged appointment or office 30 days before National Assembly Election held on 21st day of April, 2007.
8. That my particulars as submitted to the 2nd respondent were published by the 2nd respondent prior to the election but the petitioner did not at any time challenge my nomination or complain about my purported ineligibility .to contest the election as provided under the Electoral Act.
9. That I aver that I was not disqualified from contesting the election into National Assembly held on 21st April, 2007 and that I was duly returned at the election having scored the majority of lawful votes at the poll.
10. The petitioner is not entitled to be returned elected at the election or to any of the reliefs sought in the petition. ”

The respondent called one witness who also deposed to a sworn statement on oath at pages 41 – 42 of the record as follows:

“I, Mohammed Bello Yusuf, adult, male, Muslim, Nigerian citizen of GRA Katsina do hereby make oaths and state as follows:

1. That I am the Chairman in the Katsina State Local Government Service Commission by virtue of which I am conversant with the facts and information deposed to herein.
2. That I have the authority of the Commission to depose to this affidavit.
3. That the Commission is responsible for the employment, posting, promotion and discipline of staff of the Local Government Councils in Katsina State.
4. That all staff of the Local Government Councils in the State on Grade Level 07 and above are employed and issued letters of employment by the Commission while Junior Staff of the Councils may be employed and issued ‘letters of employment by the respective Councils on behalf of the Commission.
5. That only staff employed and issued letter of employment by or on behalf of the Commission as deposed to above are staff of the Local Government Council in respect of which they are employed or deployed.
6. That all political office holders or appointees at the Local Government Councils in the State including persons occupying the offices of the Chairman and members of Local Government Councils or Sole Administrators of Local Government Councils, or Chairman and members of Local Government Transition Committee are not employed by the Commission and are not staff of the Local Government Councils.
7. That further to paragraph 3 – 7 above, I know as a fact that the 1st respondent who is a former Chairman of Malumfashi Local Government Area or Council was never a staff of the said Council.”

The basis of the appellant’s contention in this appeal is the provisions of Section 66(1)(f) of the Constitution of the Federal Republic of Nigeria,1999, which reads:

“66(1) No person shall be qualified for election to the Senate or to the House of Representatives if-

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

Section 110(f) of the Electoral Act, 2006, inter alia provides:-

“(f) If he is a person employed in the public service of the Federation or of any State or Area Council (other than a person holding .elective office} and he has not resigned, withdrawn or retired from such employment 30 days before the date of election.” (emphasis mine)

Section 318(d) of the 1999 Constitution of the Federal Republic of Nigeria, defines Public Service of a State as follows:

“Public Service of a State” means the service of the State in any capacity in respect of the Government of the State and includes service as-

(d) Staff of any Local Government Council.”

From the sworn deposition of the 1st respondent particularly in paragraphs 3, 4, 5 and 7, reproduced in this judgment, the 1st respondent has denied being appointed a Chairman/Care-taker Transition Committee for Malumfashi Local Government Area of Katsina State and contended that even if he had been so appointed, the appointment was a political appointment hence the provisions of Section 66(i)(f) of the Constitution does not affect his qualification to contest the said election. In the sworn deposition of R.W.1, Mohammed Bello Yusuf, particularly in paragraphs 2, 3, 4, 5 and 7, the said witnesses stated the mode of appointment in the Local Government Area which in all cases is supported by a letter of appointment, emphasizing that in the case of a political appointment like that of the 1st respondentno letter of appointment is issued. ”

The said witness averred that the 1st respondent was the former Chairman of Malumfashi Local Government Area of Katsina State, a political appointment.

The referred averments of both the 1st respondent and R.W.1, were never disputed by the appellant who did not file a further affidavit in reply to the said averments. Also, no letter of appointment or acceptance was exhibited to the sworn deposition of the appellant in support: of his petition.

The appellant as the petitioner placed heavy reliance on exhibits “P2A”, “P2B” and “P3 before the Tribunal. Exhibit “P3” is the publication of a Press Release by the Press Secretary to the Secretary to Government of Katsina State contained in the Daily Trust Newspaper of the 9th day of April, 2007, is clearly in respect of political appointment. However, there is no evidence that the said appointment was conveyed to the 1st respondent and accepted by him.

It is an elementary law which needs no citation of any authority that he who asserts must prove the allegation by credible evidence.

It is also the law, that pleading is not evidence.In the instant appeal, the 1st respondent denied being disqualified by the provision of Section 66(1)(f) of the Constitution of the Federal Republic of Nigeria, 1999, being a political office holder and the onus is on the appellant as petitioner to adduce credible evidence to prove the allegation, but he has failed to do so. See CHIEF SAMUEL OLUYEMI BALAYE VS. GENERAL OLUSEGUN OBASANJO & 59 ORS (1999) 4 NWLR (PT.599) 476 at 494.

It is elementary law that where a statute is clear, the duty of the Court is to give the clear provision literary or ordinary interpretation.

While counsel may look out for favourable interpretation, the Court will stick to the plain words of the statute and interpret it to indicate the clear intention of the draftsmen.

In view of the aforesaid, the finding of the Tribunal that the appellant as petitioner failed to prove the grounds upon which the petition was brought cannot be faulted.

In the result, I hold that this appeal lacks merit and is hereby dismissed. The judgment of the National Assembly Election/Governorship and Legislative Houses Tribunal, Katsina State, delivered on the 24th day of August, 2007 in Petition No. NA/HR/EPT/KTS/30/2007 is hereby affirmed with costs assessed at N30,000.00 to the 1st respondent against the appellant.

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Other Citations: (2009)LCN/3335(CA)