Chief Akindele Ojo Sunday V. Oyedele Samuel Olugbenga & Ors (2008)
LawGlobal-Hub Lead Judgment Report
JOHN AFOLABI FABIYI, J.C.A.
This is an appeal against the judgment handed out by the Governorship and Legislative Houses Election Petition Tribunal sitting at Ibadan, Oyo State of Nigeria on 6th August, 2007. Therein, the Tribunal, presided over by Bage, J., as he then was, dismissed the appellant’s petition against the return of the 1st respondent as the member of the Oyo State House of Assembly representing Afijio Constituency.
It is apt to recapitulate the background facts of the matter leading to this appeal briefly. The appellant herein, as Petitioner at the Tribunal, contested the 14th April, 2007 election into the Oyo State House of Assembly for Afijio constituency on the platform of the All Nigeria Peoples Party herein referred to as the ANPP (for short). The 1st respondent contested the election into the stated constituency under the banner of the Action Congress – AC (for short). On completion of the electoral process, the 3rd and 4th respondents returned the 1st respondent as the duly elected member of the above stated constituency representing Afijio constituency of Oyo State of Nigeria.
The appellant felt unhappy with the return of the 1st respondent and subsequently filed his petition at the lower Tribunal on 7th May, 2007, As contained in paragraph 7(iii) of the petition, the complaint of the petitioner reads as follows:-
“At all time material to this petition the 1st Respondent who was a person employed in the public service of Oyo State did not disengage and/or validly disengage from the public service of Oyo State prior to his participation in the above election.”
The grounds of the petition, as can be found in paragraph 8 of the petition read as follows:
“8(a) At all time material to this petition the 1st Respondent was not qualified to contest the above named election;
(b) The 1st Respondent did not satisfy the statutory requirements for this election.”
In essence, the 1st and 2nd respondents in their joint reply denied the assertion by the petitioner that the 1st respondent did not validly resign his employment before contesting the election of 14th April, 2007 into the Afijio House of Assembly Constituency.
At the trial of the petition before the lower Tribunal, parties adduced evidence to support their respective stand points. A letter of resignation dated 26-12-06 was admitted as Exhibit PE1. Exhibit PE2 is a letter written by Akinyele local Government forwarding Exhibit PE1 to the Chairman, Oyo State Local Government Service Commission. It is dated 19-3-07. Exhibit PE3 is another letter written by Akinyele local Government to the 1st Respondent for the refund of salary paid into his bank account by mistake. Same is depicted in the salary voucher which was admitted as Exhibit PE4. Exhibit PE5 is the same in ure as Exhibit PE2. A letter approving retirement is Exhibit RE1.
Both sides adduced oral evidence. Thereafter, learned counsel for the parties addressed the lower Tribunal. In its considered judgment delivered on 6-8-07, the tribunal dismissed the petition. The Tribunal upheld the election and return of the 1st respondent after finding that he validly disengaged his employment before contesting the election conducted on 14-4-07.
The Petitioner felt unhappy with the stance of the lower Tribunal and appealed to this court. This was followed by the filing of briefs of argument on behalf of the parties. On 6-10-08 when the appeal was taken, learned counsel for the parties adopted their respective briefs of argument and further expatiated on same.
The issues submitted for determination on behalf of the appellant read as follows:-
“ISSUE ONE
Was the lower tribunal right in holding that the 1st respondent’s letter of resignation dated 26/12/06 and received by the 1st respondent’s employer on 19-3-2007 became effective on 28-12-2006 when it was handed over to the Chairman of Akinyele Local Government for onward transmission to the 1st respondent’s employer.
ISSUE TWO
Whether or not the lower tribunal was right in rejecting as speculative the evidence of the appellant that the 1st Respondent’s letter of resignation was written between late February and the middle of March, 2007.
ISSUE THREE
Whether or not the lower tribunal was right in holding that the 1st respondent had validly or legally resigned from the public service of Oyo State for at least a period of thirty days before contesting the 14th April, 2007 election into the Oyo State House of Assembly in Afijio Constituency having regard to the totality of the evidence before the Election petition tribunal.
ISSUE FOUR
Whether or not the lower tribunal was right by not expunging from its record in the course of writing its judgment for being unconditionally inadmissible exhibit RW4.”
The two issues formulated on behalf of the 1st and 2nd respondents for a due determination of the appeal read as follows:-
“(a) Whether or not Exhibit PE1 tendered by the appellant constituted a valid letter of resignation by the 1st respondent.
(b) Whether receipt of Exhibit PE1 by Akinyele Local Government where the 1st respondent worked before his resignation constituted a valid receipt by Oyo State Local Government Service Commission.”
On behalf of the 3rd-5th respondents, the lone issue, succinctly decoded, reads as follows:
“Whether or not Exhibit PE1 constituted valid letter of resignation.”
On behalf of the appellant, it was submitted that a letter of resignation becomes effective when the employee has given notice of his resignation to his employer and the letter is received by the employer. Learned counsel cited the cases of Dada v. Adeyeye (2005) 6 NWLR (Pt. 920) 1 at page 21; Benson v. Onitiri (1960) SCNLR 177 at pp. 189-190; Mele v. Mohammed (1999) 3 NWLR (Pt. 595) 425; Adefemi v. Agunbiade (2004) 15 NWLR (Pt. 895) 1 at p. 28; WAEC v. Oshionebo (2006) 12 NWLR (Pt. 994) 258.
Learned counsel felt that the letter of resignation dated 26-12-06 routed through the Akinyele Local Government Service Commission on 28-12-05 was received by the Local Government Service Commission of Oyo State on 19-3-07.
On behalf of the 1st and 2nd respondents, learned counsel also relied on the authorities enunciated in Benson v. Onitiri (supra) and observed that both parties agreed that the Local Government Service Commission of Oyo State was the employer of the 1st respondent. He pointed it out that there was no dispute that the 1st respondent served with the Akinyele Local Government before he wrote Exhibit PE1 which was received on 28-12-05 thereat.
It is of moment in this appeal to now reproduce the provisions of section 107(i)(f) of the 1999 Constitution with which the 1st respondent must comply. It reads as follows:-
“107(i)(f) – No person shall be qualified for election to a House of Assembly if 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 election.”
Let me further state it here that by virtue of section 145(1) of the Electoral Act, 2006 an election may be questioned on the ground –
“That a person whose election is questioned was at the time of election not qualified to contest the election.”
It is clear to me that a notice of resignation is effective, not from the date of the letter or from the date of the purported acceptance, but from the date the letter was received by the employer or his agent. Refer to W.A.E.C. v. Oshionebo (2006) 12 NWLR (Pt. 994) 258.
Put bluntly, resignation takes effect from the date notice is received by the employer or its agent. See Adefemi v. Abegunde (supra) at p. 28.
In Benson v. Onitiri (supra), Ademola, OF (as then called) pronounced as follows:-
“Further, it is clear on the authority of Riodan v. The War Office (1959) 3 All E.R 522, 588 that resignation dates from the date notice was received. There is absolute power to resign and no discretion to refuse to accept notice. In the present case, I do not think it matters to whom the notice of resignation was addressed, whether to the Minister who made the appointment or to the Board, on which Benson was serving … I am of the view that notice of resignation to either of them is good, nor do I think it necessary for the Board or anybody else to reply that the resignation is accepted.”
For more elucidation on the point under consideration, the Supreme court further held in the same case of Benson v. Onitiri (supra) as follows:-
“That there is common law right to resign unless there is reason to show that the holder of the office cannot and the appellant’s common law right remains unfettered as the Lagos Town Planning Law was silent on resignation. The appellant was entitled to send his notice of resignation to LEDS, a Corporation which he was serving and which had right to receive it and since the LEDS sent a copy thereof to the Ministry and the Permanent Secretary dealt with it, notice to the permanent Secretary is notice to the Minister since it is a matter not requiring the exercise of the Minister’s personal discretion. The effective date of resignation was when the Permanent Secretary in the absence of the Minister accepted the notice of resignation and considered and treated the appellant as having resigned.”From the evidence on record, it is clear to me that at the material time, the 1st respondent was working with Akinyele Local Government. He submitted his letter of resignation to the Local Government for onward transmission to the Local Government Service Commission of Oyo State; the employer of the 1st respondent. Same was received by the Local Government Authority on 28-12-06.
In my considered opinion, the lower Tribunal was right in finding that the letter of resignation which was delivered to officials of the local Government on 28-12-06 was enough to put an end to the furore generated by the appellant. The Local Government can be likened to LEDB in Benson v. Onitiri (supra) which is on all fours with the case in hand.
The lower Tribunal rightly followed the doctrine of stare decisis in following the decision of the Supreme Court in Benson v. Onitiri. Stare decisis stipulates that a point of law that has been settled by a superior court should be followed. There is sense in it to avoid confusion. See Royal Exchange Assurance Nig. Ltd. v. Aswani iles Ind. Ltd. (1991) 2 NWLR (pt. 176) 639 at 672. It is not proper to refuse to follow the decision of a superior court. A lower court must tow the line. See Atolagbe v. Awumi & ors. (1997) SCNJ 1 at pp. 20, 24 & 35.
I need to further reiterate the point that since the letter of resignation – Exhibit PE1 was received by Akinyele local Government authority on 28-12-06; such ends any plausible argument in respect of the valid resignation of the 1st respondent from employment of the Local Government Service Commission of Oyo State. To say it clearly, he validly resigned his employment before contesting the election conducted on 14-4-07.
The next point raised by the appellant relates to the payment of January, February and March 2007 salaries into the bank account of the 1st respondent. It is manifest in the record of appeal that the stated salaries were repaid to the Local Government since witnesses on both sides confirmed that salaries were paid by mistake. There is no big deal in this issue. Refer to Kwapyong & anr. v. Daniel Daniang (1989) 1 NEPLR 104 at p. 109.
I resolve the real two issues against the appellant. I come to the conclusion that the appeal is devoid of merit. I hereby dismiss it and affirm the judgment handed out by the lower Tribunal on 6th August, 2007. The appellant shall pay N30, 000 costs to the 1st Respondent.
Other Citations: (2008)LCN/2950(CA)
