Ali Agada Daniel V. John Adaji & Ors (1998)

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KALGO, J.C.A. 

In

this review, the petitioner, Ali Agada Daniel, contested for the Councillorship post together with three other contestants in the Igo Ward of Ofu local Government of Kogi State on the 15th of March 1997, on UNCP platform. At the end of the voting exercise on that day, the 1st respondent John Adaji scored the highest votes of 1,112 and was accordingly declared the winner by the 2nd respondent.

On the 14th of April 1997, the petitioner challenged the election on the only ground that the 1st respondent was not qualified to contest that election having been dismissed from the public service of the Federation. He supplied sufficient particulars in paragraph 4 of his petition.

The 1st respondent filed a reply to the petition on 5th May 1997 specifically denying that he was ever dismissed from the public service but that he only resigned his appointment with the National Electric Power Authority (NEPA) Sakata in November 1989 and with Hay boney Nigeria Ltd in Abuja in 1993.

Both the petitioner and 1st respondent called evidence at the trial Tribunal. The petitioner was able to produce documents from the District Manager of NEPA Sakata indicating that the 1st respondent was employed there in February 1982 and dismissed in December 1989. These documents were received from the District Manager Sakata vide his covering letter which was tendered and admitted as Exhibit ‘A’ and the other two documents were also tendered and admitted as Exhibits ‘B’ and ‘C’.

The 1st respondent in defence only produced a carbon copy of a letter resignation from NEPA dated 18/11/89 (admitted as Exhibit D) but there was nothing to show that his resignation was accepted or rejected. He was given full opportunity to challenge ‘Exhibits ‘B’ and ‘C’ but failed to do so. He also failed to prove his allegation that the documents were a forgery.

This Tribunal in its judgment delivered on 9th July 1997 found that Exhibits ‘B’ and ‘C’ are genuine, properly certified and admissible in evidence in accordance with the Evidence Law. It therefore held that the 1st respondent was dismissed as in Exhibit ‘B’ and therefore disqualified from contesting the election as he did pursuant to S. 50(1) (g) of the Local Government (Basic Constitutional and Transitional Provisions) Decree 1997 (hereinafter referred to as the Decree). It then declared the election of the respondent null and void but proceeded to declare the Petitioner as the duly elected Councillor for Igo Ward having scored the majority of lawful votes at the election.

The 1st respondent appealed to the Appeal Tribunal on the 14th of July 1997. The parties filed their respective briefs and the Appeal Tribunal after hearing the appeal reversed the decision of the Tribunal and declared the 1st respondent the winner after holding in its judgment that the dismissal of the 1st respondent has not been proved.

I have carefully examined the evidence produced at the trial and read the briefs submitted to the Tribunals and those filed in this court by the Hon. Attorney-General of the Federation and the respondent counsel on this matter. It appears to me that the documents Exhibits ‘A’, ‘B’ and ‘C’ having been obtained as a result of the subpoena of the Tribunal on the District Manager NEPA Sakata are properly before the Tribunal. I am also satisfied that Exhibits ‘B’ and ‘C’ having been certified as true documents on the face of the documents, are genuine and admissible documents produced from proper custody. The 1st respondent has failed to effectively challenge any of them despite the ample opportunity granted to him to do so. I also note that his evidence at the Tribunal was very much consistent with the contents of Exhibits ‘B’ and ‘C.’ Exhibits ‘B’ and ‘C’ are public documents and having been certified are in my judgment properly tendered and admitted in accordance with the provisions of S.111 of the Evidence Act (Cap.112) of Laws of Federation 1990. See Aina v. Jinadu (1992) 4 NWLR (Pt.233) 91.I therefore agree with the finding of the Tribunal that Exhibits ‘B’ and ‘C’ are properly admitted in evidence and that therefore the dismissal of the 1st respondent from the services of NEPA Sokoto in December 1989 as conveyed by Exhibit ‘B’ is undisputable.

I also so find. Also the 2nd schedule to the Pensions Act (Cap.346) Laws of the Federation 1990 sets out names of organisation declared as forming part of the public service of the Federation for the purpose of the Act, and NEPA is included in that list. I therefore find that the 1st respondent was dismissed from the public service of the Federation in December 1989 and is therefore by virtue of the provisions of S.50 (1)(g) of the Local Government (Basic Constitutional and Transitional Provisions) Decree No.7 1997, not qualified to contest the election as he did.

Having found that the 1st respondent was disqualified from contesting the election, the only order the Tribunal could lawfully have made was to declare the whole election as null and void in accordance with the provisions of S. 95(1) of the Decree No. 7 of 1997. It was therefore wrong for the Tribunal to declare the petitioner as duly elected at the election as the whole election was null and void as the winner was disqualified ab-initio

The Appeal Tribunal was clearly wrong from what I said earlier, in holding that Exhibits ‘B’ and ‘C’ were not admissible in evidence and that the Petitioner has failed to prove that the 1st respondent was dismissed from public service of the Federation.

For the reasons stated above, the judgment of the Appeal Tribunal is hereby set aside and the decision of the Tribunal is partially affirmed to the extent that the 1st respondent was not duly elected as he was not qualified to contest the election. Therefore pursuant to the provisions of S.95 (1) of Decree No.7 of 1997, I hereby declare the whole election a nullity.

I make no order as to costs.

Other Citations: (1998)LCN/0448(CA)