Hajiya Jummai Jafaru & Anor V. Mohammed Usman & Ors (2008)
LawGlobal-Hub Lead Judgment Report
MARY U. PETER-ODILI, J.C.A.
This is an appeal against the decision of the Niger State Governorship and Legislative Houses Election Petition Tribunal delivered on 11th day of July 2007. The petition was in respect of the return of one Mohammed Usman (the 1st Respondent) as the House of Assembly member representing Chanchaga constituency in the Niger House of Assembly. The Appellants as petitioners filed an 8 paragraph petition while the 1st and 2nd Respondents filed a 6 paragraph reply to the petition. The Tribunal in a considered judgment dismissed the petition and the Appellants being dissatisfied have appealed to the Court of Appeal.
FACTS BRIEFLY STATED
On the 23rd of April 2007 the Appellants as petitioners before the Tribunal filed an 8 paragraph petition challenging the election and return of the 1st Respondent as member representing Chanchaga Constituency in the Niger State House of Assembly. The ground of the petition was that as at 14/4/2007 the 1st Respondent was not qualified to stand election into the office under reference as he had not resigned from the service of the Niger State Government. The Appellants in proof of their petition called 5 witnesses and also tendered 5 exhibits admitted in evidence.
The 1st and 2nd Respondents on the other hand denied the petitioner’s claim in their 6 point reply to the petition 1st and 2nd Respondents also called one witness and tendered 3 exhibits admitted in evidence. On the 5th day of June 2007 tribunal settled the issue for determination in the petition as follows:-
“Whether by the provisions of section 107 (1) (f) of the 1999 Constitution of the Federal Republic of Nigeria the 1st Respondent was qualified to contest in the election of 14th April 2007 into the Niger State House of Assembly”.
The Appellants’ by a brief of Argument dated 13th August 2007 and filed on 14th August 2007 formulated three issues for determination which are:-
- Whether the Tribunal was right when it held that the 1st respondent resigned his appointment 30 days before the election of 14/4/07.
- Is the burden of proving a valid notice of retirement on the petitioners, or on the respondents in this case?
- Was the Lower Tribunal right in law when it stopped one of the petitioners’ witnesses from concluding his evidence – in – Chief?
The 1st and 2nd Respondents filed a brief on 20/8/07 and framed four issues which are as follows:-
- Whether based on the evidence before the Tribuna/1st Respondent was not qualified for the election of 14/4/2007 into the Niger State House of Assembly.
- Whether service and receipt of letter of disengagement by the principal of the 1st Respondent is valid and effective.
- Whether receipt of salary by the 1st Respondent annulled his disengagement from the services of the Niger State Government.
- Whether the Tribunal was right to have refused to allow PW1 to conclude his evidence in the manner it was designed
The Appellant on the 24/8/07 filed a Reply brief. I see that it would be easier to utilise the issues as couched by the Appellants.
ISSUE NO 1
WHETHER THE TRIBUNAL WAS RIGHT WHEN IT HELD THAT THE 1ST RESPONDENT RESIGNED HIS APPOINTMENT 30 DAYS BEFORE THE ELECTION OF 14/4/07.
Learned counsel for the Appellants stated that at the time the 1st Respondent contested the election on 14/4/07 into the Niger State House of Assembly, for Chanchaga Local Government Constituency he was still a public officer being a teacher at the Government Day Secondary School, Maitumbi, Minna. That Section 107 (I) (f) of the 1999 Constitution required him to resign, withdraw or retire from service “thirty days before the date of election”. That the employer of the 1st respondent was the Niger State Civil Service Commission, while the agent of the employer is the Niger State Secondary Schools Board, where PW2 works as the Secretary and the said PW2 had told the Tribunal that the 1st Respondent was a member of staff and that he, PW2 had not received any notice of retirement, disengagement or withdrawal from service from him as at 14/4/07. That it was because he, PW2 did not receive any notice of retirement from the 1st respondent that he did not pass any instruction to the accountant of the Board, PW3 to stop the salary of the 1st respondent and so the 1st respondent continued to be paid his salaries and allowances up to 30/3/07 which was confirmed by the PW4.
Learned counsel for the Appellant said on the authority of M.M. Kwapyong & Ors. v. Daniel Daniang (1989) 1 NEPLR 99 that a resignation is effective not from the date of the purported acceptance, but from the date on which the letter was received by the employer or his agent. That the purported notice of retirement served by the 1st respondent on the principal of the School where he taught cannot be effective and valid in law as the Principal who testified was neither the employer nor the agent of the employer of the 1st respondent. That the employer of the 1st respondent is the Civil Service Commission and the agent of that employer being the Secondary Schools Boards as the Principal himself is an employee and under the Secondary Schools Board. That a proper notice of retirement should therefore be taken to those, or either of those, who can give effect to it, by stopping an employee’s salary or giving him a notification of retirement from service.
Learned counsel for the Appellant said there is a duty to retire from service, but there is no corresponding duty to accept retirement. He cited Mele v. Mohammed (1999) 3 NWLR (pt. 595) 425. He stated on that there is abundant and unchallenged evidence before the lower court tribunal that, even after purportedly resigning his appointment, the 1st respondent continued to collect his salaries and allowances up to 30/3/07 about 15 days to the election of 14/4/07. He stated that collection and not payment of salary is the antithesis of “intent” to retire from service. That if the employer was not aware that an employee has left service, or if the employer made a mistake in paying the salary of a retired employee into his bank account, then the employee must not surreptitiously go and collect it, if he had truly and honestly resigned his appointment. That the evidence of PW4 that the 1st respondent collected his March 2007 salary from his bank account on 30/3/07 was not controverted, challenged or even denied.
The learned counsel for the 1st and 2nd Respondents contended that exhibit R1, the resignation letter was first submitted to the principal Government Day Secondary School Maitumbi on the 2nd January 2007 while he took a copy to the Secondary Education Board. That the Principal of the School who testified as RW1 confirmed receipt of the said letter on the 2nd January 2007 which he endorsed while the 1st Respondent retained a copy in his personal file in the school.
Learned counsel further stated that there is also a finding by the tribunal that 1st Respondent tendered his letter of disengagement on the 2nd January 2007 and ceased going to the school where he was teaching, which finding was not appealed against and so that finding of fact is deemed to be correct. He cited Biariko v. Edeh – Ogwuile (2001) 4 SCNJ 332 at 353; Yusuf v. Governor of Edo State (2001) FWLR (pt. 60) 1422 at 1434 – 1435; Adefemi v. Abegunde (2004) 15 NWLR (pt. 895) 1 at 27 – 28; Benson v. Onitiri (1960) NSCC 52 at 62.
Learned counsel for 1st and 2nd Respondents said resignation and or disengagement from service takes effect from the date the letter is received by the employer and no formal acceptance and or notification is required under Section 107 (I) (f) of the 1999 constitution had been complied with to clothe the 1st Respondent with the qualification to stand for the election into the State House of Assembly. That the receipt of the letter of disengagement from 1st Respondent by the principal of the Secondary School where 1st Respondent was teaching was valid and effective. That 1st Respondent who was on a provisional appointment vide exhibit R2 is deemed to have resigned his appointment on the 2nd January 2007 notwithstanding that exhibit R1 is headed retirement from service. He referred to Kwapyong & ors v. Daniel Daniang (1989) 1 NEPLR 99 at 106.
It was further submitted for the Respondents that the 1st Respondent’s withdrawing the March salary paid from his bank account about two weeks before the election of 14th April 2007 cannot invalidate such resignation since he had ceased to be a civil servant with the Niger State Government the moment the notice of his disengagement was received by the Principal of the School on 2nd January 2007. That the implication is that the money as salary paid and withdrawn by the 1st Respondent from his bank account was payments without consideration. He cited Kwapyong v. Daniel (supra) 107 – 108; Obo v. Commissioner of Education Bendel State (2001) FWLR (pt. 38) 1226 at 1235 – 1237.
The summary of the arguments and facts in this Issue one is that the 1st Respondent had sent in his letter of resignation through the Principal of the School where he was staff and that was in January 2007 and stopped going to work. Curiously however he continued to receive his monthly salaries up to March and precisely two weeks to the election date of 14/4/07. Also brought out to assist the 1st Respondent is the fact that the 1st Respondent was on provisional appointment and as was contended for him he would not therefore be caught up by the Constitutional requirement to resign 30 days to the election. I am not easily swayed by the matter of the provisional appointment having the effect that would obviate the application of the Constitutional requirement for a candidate to have disengaged 30 days to the date of the election. This is so as the provisional status could be rectified or cured and so that status would not invalidate the appointment. See Benson v. Onitiri (1960) NSCC 52.
Also no argument can be presented positively against there not being an absolute power to resign and no discretion to refuse to accept. That is once the resignation letter has come in within time the fact that acceptance thereof by the relevant officer or establishment has not been made goes to no issue as to whether or not the resignation is effective for the purpose of the constitutional provision for qualification for election. See Adefemi v. Abegunde (2005) 15 NWLR (pt. 895) 1 at 28; Benson v. Onitiri (1960) SCNLR 177.
Resignation from employment is by the giving of the required length of notice or payment in lieu of notice.
By virtue of Section 107 (1) (f) of the 1999 Constitution 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. Adefemi v. Abegunde (2004) 15 NWLR (pt. 895) 1.
The Constitution is the basic law of the land which can neither be added to nor taken from by any other legislation or enactment except by due process of Constitutional amendment. The right of a candidate to resign his appointment thirty days before the election cannot be taken away or interfered with by the conditions of service or any other legislation or statutory provision except the Constitution itself. See Adefemi v. Abegunde (2004) 15 NWLR (pt. 895) 1 at 29; Tukur v. Government of Gongola State (1989) 4 NWLR (pt. 117) 517; Oloba v. Akereja (1988) 3 NWLR (pt. 84) 508; Adisa v. Oyinwola (2000) 10 NWLR (pt. 674) 116
.
On the face of it the resignation letter presented on 2nd January 2007 according to the 1st Respondent would have been more than adequate for an election that would take place on 14/4/07. However it is difficult to accept the validity of such a resignation if at all where the same person who was said to have resigned continued to receive his salary. It lends credence to the argument of the Appellant that there was no resignation. That is, it can safely be presumed that the 1st Respondent never tendered any resignation but was waiting if he succeeded in the election to rectify the process in keeping with the requirement to resign 30 days before the election. His salary being paid into his account from January to the end of March as can be deduced from the evidence and he on his part made no objection instead he withdrew and utilised the funds as normal showed he was still a member of staff as at the time of the election in which he stood as candidate to the utter disregard of Section 107 (I) (f) of the Constitution which enjoined him to resign thirty (30) days to the date of Election. The conclusion therefore is that he was not qualified to stand as candidate for the election.
Where a candidate is disqualified after being elected, naturally the votes cast for him at the election would not count for any purpose whatsoever. However, the other candidate who opposed him at the election cannot be declared returned automatically without more and this is notwithstanding that he secured the next highest number of votes. He is required to further show that the electors were aware of the factors that gave rise to the disqualification, therefore the Appellant or whoever who have scored the next highest number of votes cannot be declared returned. See Mohammed v. Ali (1989) 1 NWLR (pt. 103) 349; Mele v. Mohammed (1999) 3 NWLR (pt. 595) 425 at 436.
From the forgoing it is easy to see that the 1st Respondent not being qualified to stand the election, the issue NO 1 is resolved in favour of the Appellant and on the authority of Mele v. Mohammed (1999) 3 NWLR (pt. 595) 425 at 436 there is need for fresh election to be ordered. This issue NO 1 having settled the fundamental question as to the qualification or otherwise of the 1st Respondent to contest that February 14th, 2007 election it would be unnecessary to go into issues 2 and 3 which have become clearly academic. This appeal is allowed and the judgment of the Niger State Governorship and Legislative Houses Election Petition Tribunal delivered on 11th July 2007 is hereby set aside. I order fresh election for membership into the State House of Assembly for Chanchaga Constituency in the Niger State House of Assembly, within 90 days.
I make no order as to costs.
Other Citations: (2008)LCN/2654(CA)
