Hon. (Barr) Iquo Nyong of Peoples Democratic Party (PDP) V. Elder (Dr) Ini Akpan of Action Congress Party (AC) & Ors (2008)
LawGlobal-Hub Lead Judgment Report
K. B. Akaahs, J. C. A.
The petitioner/Appellant and the 1st Respondent were among other candidates who contested election on the 28th of April, 2007 into the House of Representatives for ikono/ini Federal constituency of Akwa iborn State. The petitioner contested under the platform of the Peoples Democratic Party (PDP) while the 1st Respondent was sponsor by the Action Congress Party (AC). The contestant was vied for the election on the ticket of the Progressive Peoples party (PPA) was Honorable Ukata Sam Akpan. The result of the election as released by the 4th Respondent, independent National Electoral Commission (INEC) were
Elder Dr. Ini Akapn Udoka (AC) 19,232;
Chief Ukata Akpan (PPA) 13, 786
Hon. Barr. Iquo Nyong Inyang (PDP) 13, 0444
Elder Dr. ini Akpan Udoka who scored the highest number of votes cast at the election was decleared winner and returned as the Member of the House of Representatives for the Ikono/lni Federal Constituency seal of Akwa Ibom State.
Dissatisfied with the result of the said election, the Petitioner filed a Petition on the 24th of May, 2007 before the National Assembly Election Tribunal of Akwa Ibom State sitting in Uyo claiming the following reliefs:
- That it may be determined that the 1st Respondent was not duly elected and that his election was merely purported and void as the 1st Respondent was at the time not qualified to contest the election.
- That the Petitioner was validly ejected and ought to be returned having scored the highest number of lawful votes cast at the election. Alternatively
- That it be determined that arising from paragraph 20(1) herein she scored the majority of lawful votes cast at the election and ought to be returned duly elected, the votes credited to the 1st respondent being null and void or that the said election was null and void.
The Petitioner called ’18 witnesses and she testified as PW 19 while the 1st Respondent called 29 witnesses and testified as RW 30. The 2nd – 12th Respondents called two witnesses who testified on their behalf. At the close of evidence the Tribunal ordered the parties to file written addresses and thereafter adopted same. Judgment was delivered on 28th November; 2007 dismissing the Petition.
The Petitioner appealed against the decision on 6 grounds of appeal. The records do not contain the date the Original Notice was filed but learned Senior Counsel for the appellant said the Notice was filed on 12/12/2007. 8 additional grounds of appeal were filed with leave on 11th March, 2008 thus bringing the total number of grounds contained in the Amended Notice to 14 from which a sale issue was formulated in the amended Appellant’s brief as follows:-
1, Whether 1st Respondent was qualified to contest the elections in the terms of Section 66(1) (f) of the 1999 Constitution to wit- whether he had lawfully determined his employment with the University of Uyo as an Associate Professor, 30 days before the Election date and if he did not and was therefore not qualified to contest the elections, what orders should this Honourable Court make in the circumstances?
The 1st respondent adopted the lone issue formulated by the appellant in her amended brief of argument.
The appeal falls to be decided on a very narrow compass. The main thrust of Mr. Paul Usoro, learned Seniors Counsel for the appellant argument is this: to determine if the appellant properly determine his employment, regard must be had to the conditions of employment which must be done to coincide with the end of the academic session so that the students academic programmme will not be disrupted by such resignation.
In paragraph 8 of the Petition it was averred as follows:
“8(1′) The 1st Respondent was at all material time a person employed in the public service of the Federal Government in the capacity of Associate Professor and Head of Department of History and International Studies, at the University of Uyo. The 1st Respondent had not resigned, withdrawn or retired from his employment with the University of Uyo thirty days before the date of the said election. ‘The Petitioner will rely on the letter from the 1st Respondent to the Vice-Chancellor of the University of Uyo dated 2nd February, 2007; his salary pay advice for the months of January, February and March, 2007 and the 1st Respondent’s bank statement from Platinum Habib Bank Plc for the relevant period to show that the 1st Respondent received salary up to and including the month of March, 2007. The Petitioner also pleads the condition of service of the University of Uyo to show that the 1st Respondent did not comply with the stipulations for resignation. The petitioner further pleads notice of meeting dated 26th March, 2007, invitation to the President, Historical Society of Nigeria dated 27th March, 2007 and letter to the Dean, Faculty of Arts dated 2nd April, 2007 all signed by the 1st Respondent and a letter from Platinum Habib Bank Plc addressed to the Bursar, University of Uyo dated 11th April, 2007.
- The Petitioner on noticing that the 1st respondent was not qualified to contest the election promptly took up proceedings to exclude the 1st respondent in Suit No. FHC/ABJ/227/2007 filed at the Federal High Court, Abuja. The case could not however be determined before the election on 28th April, 2007. The election having been concluded it is the Election Tribunal that now has the power over it; accordingly the petitioner has duly filed a notice of discontinuance at the Federal High Court, Abuja, which notice is hereby pleaded. Also pleaded is the Writ/particulars of claim in that suit together with the annexure.
- The electorates in the Federal Constituency knew of the non-resignation, withdrawal and/or retirement of the 1st respondent from the public service and its attendant consequence, the Federal High Court suit having been published in the Midweek Pioneer of 18th April, 2007 which is hereby pleaded.
Mr. Usoro, learned Senior Counsel argued in the Amended Appellant’s brief and orally in amplification of the Brief that consent of Council is a pre-condition for effective resignation and cited the following cases in support: ABALOGU v. SHELL PETROLEUM (2003) 13 NWLR (Pt. 837) 308 at 333 and MELE v. MOHAMMED (1999) 3 NWLR (Pt. 595) 425. He submitted that the case of MELE v MOHAMMED supra is on all fours the same with this case. He contended that the 1st respondent did not apply for consent from the University Council to resign his appointment before 30th September and urged this court to hold that the 1st respondent was not qualified to contest the election. I reply to the oral submission by Assam, SAN, that the case of MELE v MOHAMMED supra was considered in ADEFEMI v. ABEGUNDE (2004) 15 NWLR (Pt. 895), and this court departed from that decision, Mr. Usoro, SAN, submitted that it did not and what the court said in ADEFEMI v. ABEGUNDE supra as regards the relationship between the conditions of service vis-a-vis the provisions of the Constitution was obiter.
Mr. Assam, SAN, leading other counsel for the 1st Respondent relied on the 1st respondent’s brief dated 28/4/08 but deemed filed on 14/5/08 and submitted in oral argument that 1st respondent paid 3 months salary in lieu of notice in compliance with Section 2(1)(4) of the Conditions of Service and this took place 36 days before the election and that this action taken by 1st respondent complied with the decision in MELE v MOHAMMED which in any event had been overruled in ADEFEMI v ABEGUNDE. Having resigned 36 days before the election, he also complied with Section 66(1) (f) of the Constitution. The resignation was accepted by the University of Uyo as contained in Exh. ’12’. He further argued that payment in lieu of notice does not require approval of Council and submitted that the decision in ADEFEMI v ABEGUNDE supra makes the conditions of service totally inapplicable in an election petition brought to question compliance with Section 66(1)(f) of the 1999 Constitution. He therefore urged this court to dismiss the appeal.
Mr. Michael Edet who represented the 2nd-12th respondents adopted and relied on the respondents’ Amended Brief filed on 30/4/08 but deemed filed on 14/5/08 and urged this court to dismiss the appeal.
The 1st respondent who was the Acting Head of Department of History and International Studies in the Faculty of Arts, University of Uyo in a letter dated 17/2/07 addressed to the Vice-Chancellor, University of Uyo (tendered as Exhibit R 31) informed the University of his intention to resign his appointment with effect from 15th March, 2007 to enable him contest election to the House of Representatives. The letter reads:-
“UNIVERSITY OF UYO
UYO, NIGERIA
P.M.B. 1017, Uyo
Akwa Ibom State,
Nigeria.
17 – 02 – 07.
Vice Chancellor,
Prof. A. I. Essien,
B. Sc. (Agric) M. Sc. Ph. D (Ibadan)
Ag. Head of Department
Dr. Ini A. Udoka
B. A. (Hons.) Ph. D (Calabar)
DEPARTMENT OF HISTORY & INTERNATIONAL STUDIES FACULTY OF ARTS
Through:
The Dean,
Faculty of Arts.
Sir,
RESIGNATION OF APPOINTMENT
I write to resign my appointment with the University with effect from 15th March, 2007 to enable me to contest election to the House of Representatives on the platform of the Action Congress (AC).
Thank you, Sir.
Signed: Dr. Ini A. Udoka.
The Dean forwarded the letter to the Vice-Chancellor on 12/3/07. The Vice-Chancellor approved the resignation on 19/3/07 but before then the Bursar had been directed that the 1st respondent’s salary be stopped with effect from 15/3/07 be stopped. On 19/2/07 the 1st respondent issued a cheque drawn on Bank PHB for Five Hundred and Eighty-five Thousand, Seventy-seven Naira and thirty-one kobo (N 585,077.31) in favour of the University representing three months salary in lieu of notice. The teller for the cheque was admitted in evidence as Exhibit R33. The Registrar of the University who is also the Secretary to Council acknowledged receipt of the Resignation of Appointment in his letter with Ref No. UU/REG/DPA/ASE/22/Vol.1/57 of April 12, 2007 addressed to Dr. Ini A. Udoka, Department of History and International Studies, Faculty of Arts, University of Uyo, Uyo. The letter was tendered as Exh. ‘R32′ and the copy Exh-and it read:
“RESIGNATION OF APPOINTMENT”
I write to acknowledge the receipt of your letter on the above subject and to inform you that the Vice-Chancellor has approved your request to resign your appointment to enable you to contest the election to the Federal House of Representatives on the platform of Action Congress. This approval takes effect from March 15, 2007. According to the Senior Staff Conditions of Service, you are required to give three (3) months’ notice or pay three (3) months’ salary in lieu of sufficient notice.
By a copy of this letter the Bursar is being requested to recover from you all your indebtedness to the University (if any) including the three (3) months’ salary in lieu of notice.
You are to hand over to the Dean, Faculty of Arts any University property in your possession, including your Staff Identity Card.
Best wishes.
Signed: John E. Udo
Registrar & Secretary to Council.”
The University Treasury Receipt No. 0025501 of 13/6497 shows that the cheque drawn on Bank PHB for N585, 077. 31k in favour of the University on 19/2/07 had been cleared. The teller was admitted as Exh. ‘R34’.
After writing Exh. ‘R31’ (Resignation of Appointment). The 1st respondent addressed another letter to the Vice-Chancellor on 9th March, 2007 requesting for the appointment of Acting Head of Department to take over from him. This letter Ref. No. UU/FA/DH/Vol.III/15 dated 9th March, 2007 was tendered in evidence as Exh. R25. In the said letter he recommended the appointment of Dr. Otoabasi E. Akpan as Department for History & International Studies, University of-Oyo and it was signed by Mr. John E. Udo, the Registrar & Secretary to Senate. It is Exh. ‘R26’. When the salary for March 2007 was mistakenly paid into his account, the 1st respondent returned it to the University. Mrs. R Ikpatt signed the letter dated May 11, 2007 acknowledging receipt of the cheque for N195, 025.77. The letter Exh. ‘R35′ reads:-
“OFFICE OF THE REGISTRAR
UNIVERSITY OF UYO
P. M. B. 1017, UYO, AKWA IBOM STATE
NIGERIA.
Registrar: John E. Udo, B. Ed. (Sc) Benin; M. A. (Ed) Ife.
May 11, 2007.
UU/REG/DPA/ASE/5/1/184
Dr. Ini A. Udoka
c/o Dept. of History & Int’I Studies
University of Uyo,
Uyo.
RE: RETURN OF SALARY IN FAVOUR OF DR. INI A. UDOKA
ACCOUNT NO. 250 (084100000112)
I write to acknowledge the receipt of the letter Ref. PHB/UYO II/UU.BUR/07 dated May 02, 2007 with the Platinum Habib Bank Cheque No. Mc No. 50261505 in the sum of N195, 025.77 (One Hundred and Ninety five Thousand, and Twenty-five Naira, Seventy seven kobo) being the refund of March 2007 salary inadvertently paid into your current bank account.
Thank you.
Signed: Mrs. R. G. Ikpatt
For: REGISTRAR.
The documentary evidence which was adduced clearly shows that the 1st respondent complied with the Provision of Section 66(1)(f) of the Constitution of the Federal Republic of Nigeria 1999 in resigning his appointment to enable him qualify for election into the House of Representatives which provides as follows:-
“66-(1) No person shall be qualified for election to the Senate or the House of Representatives if-
(a) …
(b) …
(c) …
(d) …
(e) …
(f) he is a person employed in the public service of the Federation or any State and has not resigned, withdrawn or retired from such employment thirty days before the date of the election.”
Learned Senior Counsel for the Appellant argued rather strenuously that the 1st Respondent did not determine his employment as an Associate Professor with the University of Uyo in conformity with Exhibit ’11’, the University’s Regulations Governing the Senior Staff Conditions of 1998 and consequently was not qualified in the terms of Section 66(1)(f) of the 1999 Constitution to contest the elections. He reasoned that in order to answer the question whether he complied with the Constitutional provisions ahead of the elections recourse must necessarily be had to the employment contract between the 1st Respondent and the University as was decided in MELE v. MOHAMMED (1993) 3 NWLR (Pt. 595) 425. He contended that consent of the University Council was not obtained as required by conditions 2.14 of Exh, ’11’ before the purported resignation took effect and condition, 2:14 of Exhibit ’11’ was meant to ensure an ordered disengagement of the University’s academic personnel in a manner that is not, disruptive of the University’s academic calendar with the proviso that the approval of the University Council could and must be obtained in ,the instance, of any academic personnel wanting to disengage howsoever before 30th September of any year.
,
The answer to ‘this submission can be found in the case of ADEFEMI v. ABEGUNDE(224) 15 NWLR (Pt. 895) 1 it was decide per Onnoghen, JCA (as he then was) that the constitution is the basis 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. Regulation 2.14 of the Regulation Governing the Senior Staff Conditions of service which provide that-
Unless the contest of the council be otherwise obtained, a member of the academic Staff shall not his appointment other on the 30th day September in any year, after having given to council due notice in writing of his intention to do so or tender payment in lieu of notice, provided that this section shall not apply where a member of the Senior Staff is under bond to serve the university and in such cases the terms and conditions of the bond shall operate”- cannot be invoked to fetter the clear intention of the framers of the Constitution that a person employed in the public service who wishes to contest election into the Senate or House of Representatives must resign at least 30 days before the election. A right conferred or vested by the Constitution in the instant case i.e. the right of the 1st Respondent to resign his appointment thirty days before the election, cannot be taken away or interfered with by any other legislation or statutory provision except the Constitution itself. Since the two cases – MELE v MOHAMMED supra and ADEFEMI v ABEGUNDE supra were decided by the Court of Appeal, I would rather choose to follow the latter decision because it accords more with the canons of interpretation of Constitutional provisions vis-a-vis other legislative enactments which state that where any provisions of a law are inconsistent with any section of the constitution, they will be void to the extent of their inconsistency with the said section of the Constitution. The Constitution is the fans et origo. It is the grundnorm from which other laws derive their power and efficacy.
The 1st Respondent properly resigned his appointment with the University of Uyo which was more than 30 days before the election into the House of Representatives was held on 28th April, 2007 since his resignation was received on 19/2/07 but was to take effect from 15th March, 2007.
I find that the appeal is totally bereft of any merit and I accordingly dismiss it. Nigerian politicians should cultivate the habit of accepting defeat graciously and not think they must win elections by all means and at all costs. I assess costs of N30, 000.00 in favour of the 1st Respondent against the Appellant.
Other Citations: (2008)LCN/2867(CA)
