Mallam Yahaya Abdulkarim & Ors V. Mahmuda Aliyu Shinkafi & Ors (2008)

LawGlobal-Hub Lead Judgment Report

HUSSEIN MUKHTAR, J.C.A

The petitioners/appellants had, filed a petition dated 15th May 2007, and sought for nullification of the election and return of the 1st and 2nd respondents in the April 14th 2007 gubernatorial election as Governor and Deputy Governor and returning the 1st and 2nd appellants as Governor and Deputy Governor of Zamfara State respectively.

The 1st and 2nd petitioners/appellants were sponsored by the Peoples Democratic Party (hereinafter referred to as ‘the PDP’) to contest the governorship election in Zamfara State held on the 14th April 2007, while the 1st and 2nd respondents were correspondingly candidates fielded by the All Nigeria Peoples Party (hereinafter referred to as ‘the ANPP’) for the office of Governor and Deputy Governor of Zamfara State respectively.

Sequel to the April 14th 2007 election the 1st and 2nd respondents were returned as Governor and Deputy Governor respectively by the 4th respondent, the Independent National Electoral Commission (hereinafter referred to as ‘INEC’).

Being dissatisfied with election result and return of the 1st and 2nd respondents, the appellants filed a petition before the Governorship and Legislative Houses Election Tribunal Zamfara State (hereinafter referred to as ‘the tribunal’) on the ground that the 2nd respondent who was the running mate of the 1st respondent in the governorship election for Zamfara State was, at the time of the election, disqualified to contest the said election for the following reasons:

“1. The 2nd respondent as at the time of the election held on the 14th day of April 2007 did not resign his appointment as a Commissioner in the public service of Zamfara State.

2. The 2nd respondent has been drawing salaries and allowances of the office of Commissioner in the public service of Zamfara State.
3. The 2nd respondent has been indicted for embezzlement and/or fraud by an administrative panel of enquiry which indictment has been accepted by the Federal Government of Nigeria. The Government white paper on the report of the administrative panel of enquiry on alleged corrupt practices by some public officers and some persons is hereby pleaded.”

The petitioners/appellants, therefore, relied on the above two main grounds in seeking for their return as winners of the April 14th 2007 governorship election in Zamfara State as against the 1st and 2nd respondents. The petitioners/appellants sought for the following singular relief before the tribunal:

“WHEREOF your petitioners pray that it may be determined that the said 1st respondent was not duly elected and/or returned and that his election was void and that the said 1st petitioner was elected and ought to have been returned as the candidate duly elected as Governor of Zamfara State” (see page 13 of the Record of appeal)

At the hearing of the petition, three witnesses P.W. 1, P.W.2 and P.W.3 were called by the appellants who testified and their statements on oath were tendered and admitted as exhibits A, B and C. The petitioners/appellants’ counsel further tendered from the bar a document purported to be the Zamfara State payroll report for the months of March and April 2007 showing that the 2nd respondent was paid salaries for the months of March and April 2007 and therefore did not resign his appointment as a commissioner when the election was held. However, the tribunal rejected those documents on the ground that they did not come from proper custody and were not appropriately certified by a public officer having custody of the original pay poll reports, and were marked as R1 and R2 respectively. The presentation of the petitioners’ case was dead-locked after the rejection of those two exhibits on 23rd August 2008 when the petitioners counsel asked for a further adjournment, but the tribunal in its ruling refusing the adjournment observed thus:

“This tribunal has already over-indulged the petitioners in this trial.

The several long adjournments sought and granted in this petition are on record and speak for us. If the adjournments have not been of any use up to this stage of the trial, then we don’t see what use a further adjournment for the same purpose can still be in the trial. We agree with the counsel for the 1st – 3rd respondents that there are no good reasons for the adjournment sought and we refuse it. The petitioners may proceed with the trial.”

The petitioners’ counsel then said he had nothing more to say and their case was thereupon closed. The respondents did not call evidence but simply relied on the petitioners’ case. Written addresses were ordered and deemed adopted upon filing by all the learned counsel representing the petitioners and the two sets of respondents in which one common issue was raised for determination, i.e.; whether the petitioners have established that the 2nd respondent who was the running mate of the 1st respondent for the office of the Governor of Zamfara State was, at the time of the gubernatorial election, disqualified from contesting that election.

In its judgment delivered on the 27th September 2007, the tribunal held that although the respondents had not led evidence on their pleadings thereby effectively abandoning all the averments therein, the petitioners were only entitled to succeed upon proof of the alleged disqualification of the 2nd respondent. The tribunal observed that the office of Commissioner, which was held by the 2nd respondent, was not a public office in the employment of the State as envisaged by section 182 (1) (g) of the Constitution of the Federal Republic of Nigeria 1999 (hereinafter referred to as ‘the 1999 Constitution’.) The 2nd respondent was therefore not disqualified, on that ground, from contesting the election.

On the allegation of embezzlement of public funds, the tribunal further held that the petitioners did not adduce evidence showing that the 2nd respondent was indicted for embezzlement by an administrative panel of enquiry, which was accepted by the Federal Government. Both grounds of the petition thus failed, which led to the dismissal of the petition.

Dissatisfied with that decision the petitioners/appellants filed a notice of appeal challenging the tribunal’s judgment on seven grounds, which are reproduced hereunder minus the particulars thereof:

“1. The judgment of the tribunal is against the weight of evidence.

2. The tribunal erred in law by wrongly rejecting in evidence the certified true copies of the Zamfara State Pay Roll Reports for the months of March and April 2007 in which the 2nd respondent drew salaries and allowances thereby occasioning a miscarriage of justice.
3. The tribunal below erred in law by holding that the petitioners/appellants had not by their pleadings and evidence established a prima facie case deserving of any defence from the respondents on the issue of resignation.
4. The tribunal fell into grave error when in its judgment it held thus:

a Commissioner who is only a political appointee of the governor of a State, is not a public officer within the ambit of section 182 (1) (g) of the Constitution and therefore not required to resign from that office 30 days before any election as contemplated under that section …’

5. The tribunal erred in law by failing to consider and resolve the issue of disqualification of the 2nd respondent on indictment for embezzlement and fraud by an administrative panel of inquiry adequately raised by the parties in pleading and final addresses thereby occasioning miscarriage of justice.
6. The tribunal erred in law when in its judgment it held thus:

‘In the course of that conference, objections were successfully taken to some paragraphs of the petition, together with the grounds and prayers relevant thereto, for disclosing no reasonable cause of action.’

7. The tribunal as it cited in its judgment erred when it suo motu struck out the second leg of the petitioners/appellants’ prayers seeking to declare and return the petitioners/appellants as duly elected even though it was not part of the respondents prayer in the consolidated motions.”

The appellants, by leave granted on the 22nd January 2008 filed and argued the following two additional grounds of appeal:

“8. The Honourable tribunal erred in law when both the chairman and the members failed to sign and date the full ruling of 13th July 2007 in which the tribunal struck out paragraphs 11, 12, 13, 14, 15 and 16 of the appellants’ petition and breached the appellants’ right to fair hearing and trial

9. The Honourable tribunal erred in law as both the chairman and the members failed to sign and date the full final judgment delivered on 27th September 2007”

The learned counsel for the 1st to 3rd respondents has raised preliminary objection to grounds 2 to 7 of the appeal, which he argued in their brief at pages 9 – 11 after raising issues for determination in the main appeal. He, however, did not argue the objection at the hearing of the appeal before arguments in the main appeal were taken. Instead, he waited until the learned counsel for the appellants’ adopted his brief and concluded oral argument, before the 1st – 3rd respondents’ counsel adopted his brief and at last urged the court to uphold the preliminary objection and dismiss the appeal. One wonders whether under the present circumstance and scenario there exists any competent preliminary objection to be countenanced.

By order 10 rule 1 of the Court of Appeal Rules 2007 a respondent wishing to rely on preliminary objection to the hearing of an appeal must give the appellant three clear days notice thereof before the hearing of the appeal. Twenty accompanying copies of the notice with the grounds for the objection must be filed, within the same time, at the registry of the Court. The 1st – 3rd respondents did not only fail to comply with this provision but in fact failed to argue the said preliminary objection prior to the hearing of the appeal. A party who gave notice of preliminary objection in his brief, as done by the 1st – 3rd respondents must seek for leave to argue the objection before commencement of hearing of the appeal.

See TIZA v. BEGHA (2005) 15 N.W.R.L. (pt. 949) 616 at 633 paras E-G; OKOLO v. DBN (1998) 2 NWLR (pt 539) 618; AREWA TEXTILES PLC v. ABDULLAHI & BROS MUSAWA LTD (1998) 6 NWLR (pt 554) 508; AJIDE v. KELAWI (1985) NWLR (pt. 12) 248.

The 1st to 3rd respondents’ counsel having failed to argue the objection prior to the hearing of the appeal is deemed to have effectively abandoned such an objection and it is accordingly discountenanced.

From the nine grounds of appeal, the appellants’ counsel raised seven issues for determination as follows:

“1. Whether or not the tribunal was wrong in law to have struck out paragraphs 11, 12, 13, 14, 15 and 16 of the appellants’ petition and whether the decision of the tribunal has denied the appellants’ right to fair hearing on the merit. (This issue arises from grounds 6 and 7 of the appeal.)

2. Whether the tribunal was wrong in law to have suo motu raised and resolved the issue of 2nd respondent’s confession to embezzlement of the public fund before the EFCC for determination in favour of the 2nd respondent by an administrative panel of inquiry, which was not raised and canvassed by the parties. (This issue is related to ground 5 of the appeal.)
3. Whether the tribunal was wrong in law to have rejected in evidence the two certified true copies of Zamfara State pay roll report for the months of March and April 2007 for reason of proper custody. (This issue arises from ground 2 of the notice of appeal.)
4. Whether the tribunal was correct in law to have held that the 2nd respondent being a serving Commissioner in the public service of Zamfara State is not a public servant/officer within section 182 (1) (g) of the 1999 Constitution and not required to resign from that office 30 days before any election. (This issue emanates from ground 4 of the appeal.)
5. Subject to the resolution of issue no 4 above, whether the 2nd respondent did resign his appointment 30 days before the governorship election of 14th April 2007. (This issue arises from ground 3 of the appeal.)
6. Whether the tribunal, on the evidence before it, properly evaluated or appraised the evidence of PW1, PW2, PW3 including exhibits A, B and C tendered by the appellants, when it dismissed the petition. (This is related to ground 1 of the appeal.)
7. Whether the unsigned and undated ruling of 13th July 2007 and the unsigned and undated final judgment of 27th September 2007 amount to nullity.” (This issue arises from grounds 8 and 9 of the appeal.)

The learned counsel for the 4th to 19th respondents adopted the same issues raised by the appellants, while the 1st -3rd respondents’ counsel raised six similar issues. The seven issues, which have been adopted by all the learned counsel are therefore adopted for the determination of the appeal.

ISSUE ONE

The first issue challenges the striking out of paragraphs 11, 12, 13, 14, 15 and 16 of the petition for non-disclosure of reasonable cause of action. The learned counsel for the appellants argued those paragraphs pleaded various electoral malpractices such as over-voting, multiple voting and stuffing of ballot boxes in private houses, etc in paragraphs 11 and 12, which also pleaded how election was avoided by intimidation, undue influence, bribery, impersonation, connivance and manipulation of result. Paragraph 13 pleaded that elections did not hold in some polling stations such as Dansadau, Dangunbi, Bindi e.t.c. in Maru Local Government, but results were faked in such polling stations, while paragraphs 14, 15 and 16 pleaded that the election was held on a Sunday in some polling units like Mayana, Galadima, Sabongari in Gusau Local Government Area. It was submitted for the appellants that these averments question noncompliance with the Electoral Act 2006 but the appellants were denied the opportunity to lead evidence to prove the non-compliance.

Both learned counsel for the 1st – 3rd respondents and the 4th-19th respondents submitted that the tribunal was right in striking out the stated paragraphs during the pre-hearing conference because the averments in those paragraphs did not state the details of the irregularities complained of and in particular failed to show how the alleged irregularities affected the election results and therefore did not disclose reasonable cause of action.

Section 146 of the Electoral Act 2006 leaves no room for doubt that irregularity in an election can only ground a petition if it has substantially affected the result of the election. Where the petitioner questions the result of an election on ground of non-compliance with the provisions of the Electoral Act, sufficient particulars must be given to show how the non-compliance affects the result substantially. Likewise where the petitioner questions an election result on the ground that the respondent was not elected by majority of lawful votes cast at the election, the petitioners must go a mile further to show the votes accredited to the respondent and the number of votes alleged to be invalid and reason(s) for their invalidity and by mathematical exactitude subtract such allegedly invalid votes from the respondent’s score and show how remaining valid votes will qualify the petitioner as winner of the election as against the respondent who has been returned. However, mere wild-cat allegation of electoral malpractice or invalidity of votes without showing how the result of the election will thereby be affected substantially will not, in my humble view, constitute a reasonable cause of action.

For the petitioners to show reasonable cause of action the allegation or averments in the petition must show certain fact or combination of facts which, if proved, would give the petitioner an enforceable right in law or which discloses an actionable wrong. An allegation of non-compliance with the Electoral Act or corrupt practices simplicita falls short of constituting a reasonable cause of action.

Moreover, the appellants in paragraph 4 of the petition, which has not been struck out, raised a similar issue but failed to call evidence thereon. For the avoidance of doubt the said paragraph 4 reads:

“The election was invalidated by reasons of non-compliance with provisions of the Electoral Act 2006 and the non-compliance substantially affected the results of the election.”

This paragraph was not struck out but no evidence was called by the petitioners/appellants to prove that there were such electoral malpractices or noncompliance with the provisions of the Electoral Act substantially affecting the result of the election. Even the amended reply brief filed on the 24th January 2008 has not salvaged the averments in paragraphs 11 to 16 of the petition from their irredeemable none disclosure of reasonable cause of action. In WALI v. BAFARAWA (2004) 16 NWLR (pt 898) 1 at p. 43 paras. A-E my learned brother Thomas, JCA, observed thus:

“It is not just any slight or inconsequential electoral malpractice that will invalidate the result of an election. For a petitioner to succeed in an election petition founded on corrupt practices and undue influence, the petitioner must prove the following:

a. that the respondent was the person who actually committed the alleged corrupt practice or undue influence;

b. where the act was alleged to have been committed by the agent, that he was authorized by the respondent;

c. that the act was committed with express consent or knowledge of a person who was acting under the general or special authority of the respondent; and

d. ,that the alleged corrupt practices or undue influence has substantially affected the outcome of the election.

In the instant case, the allegation of corrupt practices and undue influence was not properly proved beyond reasonable doubt and therefore the election of the 1st and 2nd respondents was not invalidated by reason of corrupt practices or undue influence.”

The tribunal’s decision in its ruling delivered on the 13th July 2007 by striking out paragraphs 11 to 16 is not shown to be perverse since the pleaded facts even if proved by evidence would not have grounded an actionable wrong under the Electoral Act 2006. In EJIWUNMI VS COSTAIN (W.A) PLC (1998) 12 NWLR (pt. 576) 149 at 162 C-F my learned brother Musdapher JCA (as he then was) expressed the following views:

“Applying the above tests to the grounds in the instant case. In my view grounds 1,2 and 3 complain whether the respondent has a cause of action against the appellant. What amounts to a cause of action is a question of the application of the law to the stated facts. It has nothing to do with the evaluation of the facts at that stage. The grounds complain on the legal standing of the respondent to institute the action. This to my mind is a question of pure law. The complaint under ground 4 was the wrong application of the law in the trial Judge refusing to dismiss the action when no reasonable cause of action is revealed and when the competence of the respondent to a judicial remedy was raised. These are all matters of jurisdiction or the competence of the Court to deal with the matter having regard to the ’cause of action’ and the respondent’s legal standing.”

Appling the facts deposed to in the petitioners/appellant’s paragraphs 11 to 16 which were struck out by the tribunal against the provisions of the Electoral Act 2006 especially sections 145 (1) and 146, one only gets a very dim view of anything amounting to a reasonable cause of action in those averments. I, therefore, have no hesitation in resolving the first issue against the appellants, and grounds 6 and 7 of the appeal from which the issue was distilled have consequentially failed.

ISSUE TWO

The second issue questions the propriety of the tribunal suo motu raising and resolving the issue of the 2nd respondent’s confession to embezzlement of public funds before the Economic and Financial Crime Commission (EFCC), which was not raised and canvassed by the parties.

The learned counsel for the appellants argued that the issue raised and canvassed was the indictment of the 2nd respondents for embezzlement and fraud by an administrative panel of enquiry which was allegedly accepted by the Federal Government and which the tribunal did not make any finding thereon but instead suo motu raised the issue of confession by the 2nd respondent before the EFCC and resolved same in favour of the 2nd respondent. The appellants however admitted that the allegation of embezzlement by the 2nd respondent was raised in the petition but they did not argue it because the officials of the EFCC refused to avail the appellants of the 2nd respondent’s confessional statement. It was submitted for the appellants that the tribunal only embarked on a voyage of discovery by making that finding despite the fact that such issue was not raised before it. See EDEWOR VS EWEGBA & ORS (1987) 2. S.C. 49 at 99; OKPULOR VS THE STATE (1990) 7 NWLR (pt. 164) 581 at 590; AJAKAWO VS ANSALDO NIG LTD (1991) 2 NWLR (pt. 173) 357 at 372. The appellants’ counsel urged the court to set aside the decision of the tribunal on the issue of confession on embezzlement by the 2nd respondent, which is based on its views. See EJE DIKE VS OBIORA 13 WACA 270 at 273-274.

The appellants’ counsel further submitted as follows:

“The appellants submitted before the tribunal and still submit before this court that based on the state of pleadings the 2nd respondent had admitted the fact that the indictment which made the 2nd respondent to apply to Federal High Court to quash the indictment, and that being the case the appellants have no evidential burden to prove that indictment by administrative panel of enquiry.”

See DR. AUGUSTINE MOZIE VS CHIEF MBAMALU (2006) 27 NSCQR 425 at 439. The appellants’ counsel submitted that matters admitted by pleading need no further proof. He urged the court to hold that the tribunal’s judgment is perverse for failure of the tribunal to avert its mind to the issue of the 2nd respondent’s indictment by an administrative panel of enquiry and set the judgment aside. The appellants’ amended reply brief serves no useful purpose on this and other issues as it is merely repetitive and that is not the purpose of a reply brief. A reply brief may only be necessary when a fresh issue especially one of law is raised in the respondent’s brief, which provokes the need for reply. It is therefore limited to answering the new points raised in the respondent’s brief and is neither expected to introduce fresh issues nor indulge in repetitive arguments. My learned brother Tobi, JCA (as he then was) in ISO VS ENO (1999) 2 NWLR (pt.590) 204 at 218 para F commented thus:

“No repetition in a reply brief ever improves an appellant’s brief but rather vexes the mind of the Judge, for making the Judge to waste valuable time”

Arguing on this issue the learned counsel for the 1st – 3rd respondents, in his issue four, submitted that issues were clearly joined on whether the 2nd respondent was indicted for fraud or embezzlement and the appellants were under a duty to lead evidence to prove that allegation but failed to so do. The failure of the tribunal to consider the issue of indictment therefore, he added, did not occasion a miscarriage of justice, since the appellants did not lead evidence on the issue.

The learned counsel for the 4th to 19th respondents submitted that the appellants raised the issue of indictment by EFCC and an administrative panel and the respondents pleaded that the Federal High Court quashed both and the CTC of the judgment was annexed, which was not denied by the petitioners/appellants. He further argued that since the issue was fully canvassed after being raised by the appellants, the tribunal’s ruling on that issue could not amount to a voyage of discovery or making case for the parties. He contended that the tribunal was right in resolving the issue, which was placed before it by pleadings, evidence and final address of counsel.

Nothing could be more puzzling than this incredible situation where the petitioners/appellants have alleged in their petition that the 2nd respondent was indicted by an administrative panel of enquiry for embezzlement of public funds and also by EFCC which has been accepted by the Federal Government and the respondents have vehemently denied that assertion, only for the findings of the tribunal on that same issue to be captioned as a voyage of discovery. Whether the alleged indictment was by an administrative panel of enquiry or by EFCC, only led evidence before the tribunal will establish such a fact, which has been denied.

It is an elementary principle of law that he who asserts bears the burden of proof.

The petitioners/appellants having alleged that the 2nd respondent was indicted for embezzlement or fraud by an administrative panel of enquiry, which has been accepted by the Federal Government and in respect of which issues have been joined, have the task of proving what they asserted. Where they fail to prove their assertion, as in the instant case, the tribunal is justified in dismissing that allegation. The tribunal’s reference to alleged confessional statement of the 2nd respondent at EFCC in dismissing the unproven allegation of embezzlement is inconsequential. It does not change the position of the law that the tribunal must throw an un-established allegation away, and that was exactly what it did. Let me refer to the views of my learned brother I. T. Muhammad, JCA (as he then was) in KALGO v. KALGO (1999) 6 NWLR (pt 608) 639 at 645 paras F-G where the learned Jurist observed thus:

“By virtue of sections 136 and 137 of the Evidence Act, he who asserts must prove. In the instant case, since the appellant was unable to prove the alleged facts, the tribunal was right to throwaway his case on those facts. Where a party failed to prove the facts alleged, the trial court or tribunal is to throwaway his case on those alleged facts.”

See also AKUN v. MANGU LGC (1996) 4 NWLR (pt. 441) 207; OKOROAFOR v. ABAWORONINI (1996) 2 NWLR (pt. 430) 278; TSOKWA & SONS LSTD v. UBN LTD (1996) 10 NWLR (pt 478) 281; EDESOMWAN v. OGBEFUN (1996) 4 NWLR (PT 442) 266.

The tribunal was justified in throwing away the allegation of embezzlement of public funds by the 2nd respondent, which the petitioners/appellants did not call evidence in proof thereof.

Let me observe that the issue of the alleged indictment of the 2nd respondent for embezzlement of public funds or fraud by an administrative panel of enquiry and accepted by the Federal Government, which has been vehemently denied, is a very serious and complex issue bordering on his constitutional and fundamental right to fair hearing as guaranteed by section 36 (1) and (5) of the 1999 Constitution. An indictment for embezzlement or fraud per se does not extinguish the 2nd respondent’s right to be presumed innocent until he is tried and convicted for the alleged offence by a court or tribunal of competent jurisdiction and duly constituted in such a manner as to secure its independence and impartiality. A mere indictment by an administrative panel not being a court or tribunal of competent jurisdiction on embezzlement or fraud against a candidate in an election as a ground for disqualification is strongly deprecatory. The right to make such a far reaching finding is exclusively appertaining to judicial power by the conglomeration of sections 6 (1) (5) and (6) and 285 of the 1999 Constitution and also section 32 (4), (5) and (6) of the Electoral Act 2006. The Supreme Court in ACTION CONGRESS v. INEC (2007) 12 NWLR (pt. 1048) 220 at pp. 259-260 held that:

“Section 137 (1) (i) of the 1999 Constitution which disqualifies a person from contesting election to the office of President if he has been indicted for embezzlement or fraud is not self-executing. To be invoked against any candidate the disqualification therein provided would require an inquiry as to whether the tribunal or administrative panel that made the indictment is of the nature or kind contemplated by section 137 (1) (i) read together with other relevant provisions of the Constitution, in particular section 36 (1) which provides that ‘In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law, and constituted in such manner as to secure its independence and impartiality’ as well as section 36 (5) of the said Constitution which states that ‘Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.’

The disqualification in section 137 (1) clearly involves a deprivation of right and a presumption of guilt for embezzlement or fraud in derogation of the safeguards in section 36 (1) and (5) of the Constitution. The trial and conviction by a court is the only constitutional permitted way to prove guilt and therefore the only ground for the imposition of criminal punishment or penalty for the criminal offences of embezzlement or fraud. Clearly the imposition of the penalty of disqualification for embezzlement or fraud solely on the basis of an indictment for those offences by an Administrative Panel of Enquiry implies a presumption of guilt, contrary to section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999, whereas, conviction for offences, and imposition of penalties and punishments are matters appertaining exclusively to judicial power.”

The learned Justices of the Supreme Court did not leave room for equivocal perception of their views on this important constitutional issue to ensure avoidance of the horrible consequence caused by the hitherto narrow interpretation of the law on this vital issue. Courts of law shall extend to the inherent jurisdiction of the court, to all matter between persons or governmentMusdapher, JSC at p. 266 paras A-C expressed the following views:

“The indictment of embezzlement against a person to deprived him of the right granted by section 131 of the Constitution to contest or vie for the post of the President of the Republic is a very serious matter and the issue can only be pronounced by the judicial branch. Such serious issues are riddled with complex questions of law and facts which are by the provisions of the Constitution in the exclusive preserve of the judiciary, no executive body should have the power or the competence to unravel such serious and far reaching complex issues without a proper recourse to the proper judicial process.”

His lordship Ogbuagu, JSC also observed thus:

“What I am saying or stressing in effect is that if such power to disqualify a candidate, is vested in the respondent without having to go to court, with humility and respect, it will be irreconcilable with the power and jurisdiction vested in the courts and/or Election Tribunals by sections 6 (1),6 (5), 239 and 285 of the Constitution and section 32 (4), (5) and (6) of the electoral Act, 2006. In fact, pursuant to subsection 6 of the Act, the respondent does not even have the power to fine the political party. It is after the finding of a fact, by a court of competent jurisdiction of the guilt of the political party that the said court will convict and sentence it accordingly. Again, under subsection (j) where the candidate has presented a forged certificate to the respondent, the respondent has no constitutional power even by implication, to disqualify such a candidate. In effect, trials, convictions and sentencing for offences under the Constitution and the Act, in my respectful view, are matters exclusively vested in the courts.”

Tabai, JSC further expatiated this development or the law at pages 293 –

294 paras G-F where the learned Jurist equally observed thus:

“As I stated above each of the grounds for disqualification pertains to a person’s civil rights and obligations. Where the alleged facts constituting the ground for disqualification are admitted by the person against whom they are made, then he stands disqualified on his own admission. But where they are denied or contested by the person, then there is a disputes as to whether or not there exist, as against that person, the denial of the allegations constituting the ground for the person’s disqualification raises a fundamental dispute or Issue affecting his civil right and obligations. Who or which organ of government has the constitutional authority to settle and determine this issue? Is it the court or Independent National Electoral Commission (respondent)? Section 6 (6) (a) and (b) of the Constitution which I have reproduced above provides to the effect that the judicial powers vested in the c or authority and to all actions and proceedings relating to any person for the determination of any question as to his civil rights and obligations. In my view, allegations constituting a ground for the disqualification of a person under section 137 (1) of the Constitution, once denied or contested raises a dispute or issue which determination is reserved for the courts or other tribunals established by law and properly constituted. See 137 (2) of the Constitution, which I have reproduced above, appears to throw more light on the requirement for rigorous proof of the disabilities in subsection 1 of section 137 of the Constitution. The provision shows that even where, for instance, there is proof that a person wishing to contest election to the office of President or Vice-President had been tried, convicted and sentenced, for an offence such as those in section 137 (1) (d) and (e), the fact of that conviction and sentence cannot be used to disqualify him IF there is a pending appeal against the decision. The manifest spirit of the provision is that to constitute a person’s disqualification the allegations constituting the ground for disqualification must be proved finally and conclusively. In other words, so long as the person genuinely and faithfully contests his conviction and sentence through the appeal process which has not been exhausted the fact of that conviction cannot be used to disqualify him.”

My learned brother Muhammad, JSC also observed in high-pitched terms as follows:

“Having quoted the provisions of section 137 of the Constitution, I come to the conclusion that nothing in that section that empowers INEC (the respondent) to disqualify any candidate especially the 2nd appellant from contesting the election as a presidential candidate. By virtue of section 6 (1) and (6) of the Constitution, it is only a court of law that can exercise a function, which is exclusively adjudicative in nature. Section 32 (5) of the Electoral Act, 2006 provides as follows:

‘If the court determines that any of the information contained in the affidavit is false the court shall issue an order disqualifying the candidate from contesting the election.’

If the legislature had wanted the function of disqualifying candidate to lie with INEC, I am sure it will not abdicate its responsibility. It would have made it explicitly clear in the stature. Secondly where there are serious allegations of embezzlement or fraud, the matter is beyond the power of an Administrative Panel. It has to be pronounced upon by courts of law, as the allegations are of serious nature requiring proper judicial processes in all their ramifications.”

This pronouncement has marked a quantum ‘leap on disqualification of a candidate to contest an election on the mere indictment by an administrative panel of enquiry which does not only usurp the judicial powers of the courts under S. 6 (6) of the 1999 Constitution but also tantamount to infringement of the candidate’s fundamental right to fair hearing under section 36 of the Constitution. It is a serious matter that gives compelling reason for the application of full judicial process in all its facets.

Thus, even if the appellants had succeed in leading evidence on indictment by an administrative panel or enquiry, whether accepted or rejected by the Federal Government, it would have fallen short of establishing an evidence of disqualification of the 2nd respondent to contest the election.

The 2nd issue is similarly resolved against the appellant and the related ground five of the appeal accordingly fails.

ISSUE THREE

The third issue puts to question the tribunals rejection in evidence of certified true copies of Zamfara State pay roll reports for the months of March and April 2007 by which the petitioners seek to establish the fact that the 2nd respondent was paid salary as a Commissioner in Zamfara State up to April 2007 when the election in question was held.

The appellant’s counsel said he offered explanation before the tribunal when objections were raised in the course of tendering the pay rolls for March and April in evidence stating that the originals of the two pay roll reports were already tendered and admitted by the tribunal in another case, and that since the originals were with the secretary of the tribunal, the secretary made and certified the copies which were tendered from the bar.

The learned counsel for the appellants argued that the two pay rolls tendered were duly pleaded and is relevant and admissible regarding the resignation of the 2nd respondent before contesting the election on 14th April 2007. The tribunal’s rejection of those documents, he added, was therefore wrongful. See OKONJI v. NJOKAMA (1999) 14 NWLR (pt. 638)250. The appellants’ counsel submitted that admissibility of any document in evidence strictly depends on relevance and the pay rolls tendered being relevant ought to have been admitted. See OGBUANINYA v. OBI OKWUNDO (1979) 6-9 S.C. 32. The appellants’ counsel further submitted that once a document is relevant, the question of proper custody is irrelevant. See TORTI v. UKPABI (1984) 1 S.C.N.L.R. 214 where the Supreme Court per Eso, JSC commenting on the admissibility of documents and proper custody said”

“Admissibility should be based on relevance and not proper custody and that once it is admissible the court is not concerned with proper custody of how the document was obtained.”

See also ALLI VS ALESINLOYE (2000) 6 NWLR (pt. 660) 177 at 215.

The court is urged to hold that the certification by the tribunal registry of documents tendered in previous proceedings before the tribunal suffices as due certification thereof and to further hold that the Zamfara State pay roll for March and April 2007 are admissible, and admit same in evidence. The appellants’ counsel further urged the court to hold that the 2nd respondent having received salaries in the months of March and April 2007 was disqualified from contesting the election of 14th April 2007 having not resigned his appointment 30 days before the election and that his election and return with the 1st respondent should be nullified.

The learned counsel for the 1st -3rd respondents who raised the same issue as his second issue for determination and the 4th – 19th respondents’ counsel alike both argued that the Zamfara State pay roll reports for the months of March and April 2007 were not certified by an appropriate public officer as required by section 111 of the Evidence Act. They argued that the tribunal secretary is not a public officer having the custody of the original document who could issue CTC of those documents under section 112 of the Evidence Act. The 1st – 3rd respondents’ counsel submitted that the tribunal rightly rejected the two pay rolls as not certified in accordance with section III of the Evidence Act.

It was common ground that the Zamfara State pay roll reports tendered and rejected are public documents and a certified true copy thereof issued by an officer having the custody of the original suffices to give those documents a pass mark. If the secretary of the tribunal is in custody of the original pay roll record of Zamfara State, he can issue a CTC of same and it is admissible in evidence. However, the secretary issued a copy from documents tendered in another case as claimed by the learned counsel for the appellants. The law governing the admissibility of documentary evidence is subject to the purpose and purport for which the document is tendered. In this case the certified pay roll records were tendered as documents tendered and admitted in previous judicial proceedings and relevant in subsequent proceedings in which the two documents have been tendered but rejected. The documents which were exhibits kept by the secretary of the tribunal could properly be tendered and admitted in subsequent proceedings to establish the truth of the contents therein in circumstance where the witness through whom it was earlier tendered is dead or cannot be found, or is incapable or giving evidence, or is kept out of the way by the adverse party or when an unreasonable delay or expense will be occasioned in securing his attendance. The tribunal may then admit a copy of the document in question produced and certified by the registrar or secretary of the tribunal having the custody of the document subject to three further conditions as provided by section34 (1) of the Evidence Act. These are:

a. That both the earlier and the later proceedings were between the same parties or their representatives in interest;

b. That the adverse party in the first proceeding had the right and opportunity to cross examine (irrespective of whether the right was exercised or not); and

c. That the question in issue was substantially the same in the first as in the second proceedings.

These are the necessary pre-conditions for tendering certified true copies of the Zamfara State pay rolls for March and April 2007, in the circumstance in which those exhibits were tendered as documents tendered and admitted in previous proceedings. In this case the previous proceeding in which those exhibits were tendered and admitted was not mentioned and that renders the parameters regarding the other conditions incapable of being ascertained. It follows that the necessary foundation for tendering those documents in evidence was far from being laid and the tribunal was justified in rejecting the two documents in evidence in the circumstance in which they were tendered i.e. on ground of lack of foundation and not custody of the documents tendered. The Supreme Court in OKONJI v. NJOKANMA (supra) cited by the learned counsel for the appellants at p 270 paras A-C observed that:

“A document may be admissible in evidence if it satisfies the prescribed conditions for admissibility for a purpose yet those conditions may be wholly unsatisfactory if such document is sought to be admitted in evidence for yet a difference purpose. This is another way of saying that even if a document is admissible under certain provisions of the Evidence Act that does not ipso facto make the same document admissible for all intents and purposes because where such document is intended in proof of a specific item under the relevant law, the specific requirements or provisions under that law must be satisfied to the hilt in order to effectuate the reception of that document in evidence.”

The compelling necessity for the application of section 34 (1) of the Evidence Act when documents from previous proceedings are tendered to prove the truth of the contents therein in subsequent proceedings was further observed by my learned brother Achike, JSC at pages 272-273 paras F-A where the learned lord stated thus:

“The sum total of what we are trying to establish is that the statement made by one Obidi in suit 1/193 in exhibit ‘B’ which is crucial to the respondents’ case that could have been admitted in evidence under section 34 (1) of the Evidence Act had the proper foundation been laid both in the respondents’ pleadings and in evidence. If the matter of admissibility of exhibit ‘B’ rested simply on whether exhibit ‘B’ was a relevant, genuine and public document, no doubt, the cumulative effect of the provisions of sections 111, 112 and 130 of the Evidence Act would ordinarily have given the admissibility of exhibit ‘B’ the necessary pass mark. But, on the contrary, the admissibility of exhibit ‘B’ was predicated on the strict compliance with the provisions of section 34 (1) which the lower court, as we had earlier shown, neglected to give any consideration whatsoever.

Having fully examined the arguments agitated by both learned counsel, I am clearly of opinion that the lower court was in error to have affirmed the admissibility of exhibit ‘B’ in evidence by merely placing reliance only on sections 111, 112 and 130 of the Evidence Act whereas such exercise ought to have been rooted and predicated on strict compliance with section 34 (1) of the Evidence Act.”

The pay roll reports obtained from the tribunal’s secretary did not meet the admissibility standards of section 34( 1) or any other provision of the Evidence Act and were thus rightly rejected by the tribunal. This leads me to resolving the third issue against the appellants and ground 2 to which the issue is related consequently fails.

ISSUES 4 and 5

Issues four and five, which are covered by the 1st – 3rd respondents’ third issue are similar and inter-related and will therefore be treated together.

It was argued for the appellants that the 2nd respondent was not qualified to contest the election of 14th April 2007 because he did not resign his appointment as a Commissioner in the public service of Zamfara State 30 days before the election. The learned counsel for the appellants submitted that the tribunal was wrong in its interpretation of section 318 (1) of the 1999 Constitution by holding that a commissioner is a political appointee and not a public officer within the ambit of section 182 (1) (g) of the 1999 Constitution. A Commissioner, he further submitted, is a public officer who must resign his appointment at least 30 days before election as provided by section 182 (1) (g) of the 1999 Constitution. He contended that the meaning of public officer of a state under section 318 of the Constitution means service in any capacity in the state and that includes a commissioner. Reference was made to the case of AONDANKAA v. AYEAGWEH (1989) 1 NEPLR 39 at 56, DOUKPOLAGHA VS ALAMIEYESIGHA (1999) 6 NWLR (pt 607) 502 where it was held per Akintan, J.C.A. (as he then was) that:

“It is ridiculous to hold the view that mere holding of a part-time chairmanship of a limited liability company in which a State Government or Federal Government or any government for that matter holds a controlling share will amount to a person employed in the public service within the meaning of section 38 (1) (f) of Decree No 3 of 1999 to prevent him from contesting the governorship election. What is envisaged under section 38 (f) is a full time staff.”

See also MOHAMMED v. IBRAHIM (1998) 6 NWLR (pt 553) 228; MELE v. MOHAMMED (1999) 3 NWLR (pt 595) 425.

The appellants’ counsel urged the court to hold that the 2nd respondent being a public officer and having failed to resign his appointment at least 30 days before the election was not qualified to contest that election. He added that the evidence of P.W. 1, 2 and 3 and exhibits A, B and C tendered before the tribunal has sufficiently discharged the burden, on the appellants, of proving that the 2nd respondent was a public officer in the service of Zamfara State Government and did not resign his appointment within 30 days before the election which disqualified him from contesting the governorship election held on the 14th April 2007. The respondents’ failure to adduce evidence to debunk the appellants’ evidence effectively tantamount to proving the appellants’ case. See NEWBREED ORGANISATION LTD v. ERHOMOSSELE (2006) 26 NSCQR 47 at 721 BURAIMOH v. BAMGBO (1989) 3 NWLR (pt 109) 352.

The appellants’ counsel finally submitted that the disqualification of the 2nd respondent equally affects the respondent because the disqualification of a nominee associate of a governorship candidate also affects the governorship candidate. He urged the court to nullify the election of the 1st and 2ndrespondents and on the horns of a dilemma asked the court to either order for a bye-election or in the alternative declare the 1st appellant as duly elected governor of Zamfara State. See MU’AZU v. BALEWA (infra p. 30)

The learned counsel for the 1st -3rd respondents submitted that the 2nd respondent was only a political appointee who does not fall within the ambit of section 182 (1) (g) of the 1999 Constitution. He drew a distinction between public officers within and outside the employment of the state civil or public service.

Surprisingly he said there is no appeal against this issue. One wonders why he has to bear the trouble of arguing it if it is not an issue properly distilled from a ground of appeal (ground 4). This issue was in fact properly raised in this appeal.

The learned counsel for the 1st – 3rd respondents argued further that section 182 (1) (g) of the 1999 Constitution does not apply to the 2nd respondent who was not employed in the service of Zamfara State. It was submitted for the 1st to 3rd respondents and the 4th to 19th respondents alike that the provision of section 182 (1) (g) of the Constitution only applies to persons employed in the public service of Zamfara State. The word “public service” he added is synonymous with “Civil Service” and the two phrases are used interchangeably even in the Constitution. See OKOMO OIL PALM LTD v. OKPAME (2007) 3 NWLR (PT. 1020) 71 at 86 paras B-E.

He called the aid of section 318 (1) of the 1999 Constitution, which defines public service of a state as “the service of the state in any capacity in respect of the Government of the State.” The emphasis in section 182 (1) (g) of the Constitution, it was further submitted, is on “employment.” In other wards it is not just enough to be a “public officer” but the 2″d respondent has to be in the employment of Zamfara State Government before the provision of section 182 (1) (g) of the Constitution could be invoked to determine his disqualification.

The provision of section 182 (1) (g) of the 1999 Constitution is free from ambiguity. It clearly provides thus:

” 1) No person shall be qualified for election to the office of Governor of a State if..

g) Being a person employed in the public service of the Federation or of any State, he has not resigned, withdrawn or retired from the employment at least thirty days to the date of the election.”

The disqualification to contest an election to the office of the Governor of a State under paragraph (g) of section 182 (1) of the Constitution is only in relation to “a person employed in the public service of the Federation or a state but who failed to disengage from such service at least 30 days before the date of the election.

The issue therefore, is whether the 2nd respondent as a Commissioner was employed in the public service of Zamfara State. The Governor under section 192 of the 1999 Constitution appoints a Commissioner. The word “appoint” used in section 192 of the Constitution is defined in the Oxford Advanced Learners Dictionary 6 Edition at p. 46 to mean:

“to choose somebody for a job or position of responsibility” It is therefore a political responsibility, which the Governor appoints persons of his choice to and who hold such office wimpishly at the Governor’s pleasure. It is different from an employment in the State Civil Service, which is done by contract of employment in which the rights and responsibilities of both the employer and the employee are clearly set out. The word “employ” is defined in the same dictionary at p. 379 as meaning:

“to give somebody a job to do for payment”

It is therefore contractual in nature. A commissioner is clearly not a person employed in the public service of the State, but merely appointed by the Governor at the latter’s absolute pleasure. He has no rights or obligations attached to public officers employed in the service of the State. By the provision of section 318 public service of a State means service of the State in any capacity in respect of the Government of the State. Thus a commissioner though a public servant by this definition is not employed in the State public service but appointed. The class of public officers under section 182 (1) (g) therefore excludes the office of a commissioner. In DADA v. ADEYEYE (2005) 6 NWLR (pr 920) 1 at pp. 19-20 paras H-A it was held that:

“By virtue of section 318 (1) of the 1999 Constitution, public service of a State means the service of the State in any capacity in respect of the Government of the State. Section 318 (1) further provides for non-political offices in the Government of the State. However, the Governor of a State is not in public service of the State within the meaning of section 318 (1) of the 1999 Constitution. The Deputy Governor, the Speaker and all other political office holders are also not in the public service of the State.”

The court further observed at p. 23 paras B-C of the same judgment that:

“Section 318 (1) (d) of the 1999 Constitution defines public service of a State to include service as staff of any Local Government council.

This means that a staff of any Local Government council is a public servant. In the instant case, the respondent was appointed the Chairman of Ifedayo Local Government Council. The appointment was approved by the House of Assembly of Osun State. It was evident that by this appointment the 1st respondent was not made a staff of the Local Government Council. This is because the appointment was political and the 1st respondent was not employed and issued letter of employment by the Local Government Service Commission. ”

The 2nd respondent was indeed a public officer as a commissioner in the Government of Zamfara State but one has to get down to the real nitty-gritty difference between a “public officer in the service of a State” and a “public officer employed in the service of a State.” The two are definitely not the same though the later includes the former but not the other way round. It must be understood and appreciated that only a public officer employed in the service of the Federation or a State is caught by the provision of section 182 (1) (g) of the 1999 Constitution which a Commissioner is not. Thus, the principle in the case of BALEWA v. MU’AZU (1999) 5 NWLR (pt 604) 636 that the same virus that disqualifies his running mate affects the governor, is not applicable to this case. It is only applicable where the running mate is disqualified.

The 4th and 5th issues are equally resolved against the appellants. This leads to the collapse of grounds 3 and 4 of the appeal to which those issues are related.

ISSUE SIX

The sixth issue challenges the evaluation and appraisal of the evidence adduced by the P.W.1, P.W. 2 and P.W. 3 including exhibits A, B and C tendered by the petitioners/appellants upon which the tribunal dismissed the petition.

The learned counsel for the appellant contended that the evidence of P.W. 1- 3 and exhibit A, Band C tendered and admitted before the tribunal established a case of none resignation of the 2nd respondent before the governorship election of 14th April 2007 but the tribunal did not make any assessment to say it either believed or disbelieved lead evidence. See MOGAJI v. ODOFIN (1978) 5 S.C. 91 at 93; HASHIDU v. GOJE (2006) 2 EPR 789 at 814. It was submitted that the tribunal failed to evaluate the evidence and determine which side of the imaginary scale preponderates before dismissing the appellants’ petition. He cited the case of AKINGBOYE v. SALISU (1999) 7 NWLR (pt 611) 134 at 452-453 paras A-C; WALI v. BAFARAWA (2004) 16 NWLR (pt 898) 1 at 53 where Ogbuagu, JCA (as he then was) observed that:

“The law is well settled that complaints dealing with critical examination of evidence of witnesses, assessment of their evidence, non-finding on specific facts in respect of evidence, non-giving of proper or any appraisal to the totality of evidence and attaching weight to evidence means that the judgment complained about is against the weight of service.”

The appellants’ counsel urged the court to either remit the case for trial de novo or appraise the evidence of P,W. 1-3 and exhibits A, Band C and hold that the 2nd respondent did not resign his appointment as a Commissioner before contesting the election and was therefore, disqualified. He again urged the court to hold that the indictment for embezzlement against the 2nd respondent has been established thereby disqualifying him from contesting the election.

The learned counsel for the 1st to 3rd respondents raised the same issue as his first issue for determination in their amended brief of argument filed on 4th February 2008. He observed that the three exhibits A, Band C tendered were the written front-loaded depositions of the P.W. 1, 2 and 3 respectively, and that the appellants failed to tender the documents pleaded in their petition on the alleged disqualification. However, failure to lead evidence on an averment in the pleadings simply tantamount to abandoning the depositions on which no evidence is adduced. The appellants therefore, abandoned the documents pleaded that have not been tendered. But it does not mean that the evidence tendered will not be evaluated on their face value. It was further submitted for the 1st – 3rd respondents that the evidence of the P.W. 1, 2 and 3 was based on hearsay, as they had no personal knowledge on the resignation of the 2ndrespondent. He urged the Court to reject the hearsay testimonies of the P.W. 1-3 as being inadmissible in evidence. See section 77 of the Evidence Act and OGBEIDE v. OSULA (2004) 12 NWLR (pt 886) 86 at 115. DAGASH v. BULAMA (2004) 14 NWLR (pt 892) 144 at 241.

The 1st -3,drespondents counsel urged the Court to reject the evidence of the P.W. 1, 2 and 3 both in chief and under cross examination as worthless and bereft of any probative value, as was done by the tribunal.

The learned counsel for the 4th -19th respondents adopted his argument on issues 4 and 5 that equally cover issue six.

The evidence of P.W. 1,2 and 3 and their written depositions exhibits A, B and C were considered by the tribunal, which found that a commissioner was not a public officer employed in the service of a state within the contemplation of section 182 (1) (g) of the Constitution, and which effectively rendered the evidence of P.W. 1,2 and 3 and exhibits A, Band C non-combatant (see pages 1063-1064 of the Record of Appeal, vol. 4.)

The tribunal also explained, in its judgment the several adjournments granted to the petitioners to produce evidence of the alleged indictment for embezzlement of public funds against the 2nd respondent from 23rd July 2007 when they opened their case, but the petitioners in a saggy mode of prosecution could not produce any more evidence until they were refused further adjournment on the 23rd August 2007 and were so non-plussed in the nostrum of derailment. The petitioners/appellants’ counsel told the tribunal that they had nothing more to say and their case was closed. The respondents then chose to rest their cases on that of the petitioners, which they were entitled to so do. The tribunal did not see any evidence placed before it establishing disqualification of the 2nd respondent to contest the April 14th 2007 election upon which judgment could be entered for the petitioners and in its passing remarks commended the respondents for not wasting its valuable time to defend the bamboozled case of the petitioners/appellants. One wonders what further degree of appraisal or evaluation of evidence the tribunal was expected to do.

The tribunal is expected in its duty of adjudication to confine itself to the issues raised by the parties and decide the case on the evidence before it and the law applicable to the facts and circumstances of the case.

Ordinarily, the court will not interfere with findings of fact by the tribunal, which had the opportunity of taking evidence at the trial, except where it has reached wrong conclusions or made a wrong decision on the evidence, or its findings are perverse by not flowing from the evidence adduced and accepted in the trial proceedings. The Supreme Court in ALLI v. ALESINLOYE (supra) at pp. 209-210 paras G-A per Iguh, JSC has held thus:

“An appellate court will not ordinarily interfere with the findings of fact made by the trial court which are supported by evidence except in circumstances such as where the trial court has not made a proper use of the opportunity of seeing and heating the witnesses at the trial or where it has drawn wrong conclusions from accepted credible evidence or has taken an erroneous view of the evidence or the findings of fact are perverse in the sense that they do not flow from the evidence accepted by it. In the instant case where none of the circumstances enumerated above exists to warrant any interference by the Court of Appeal, the Court was in grave error when it disturbed the findings of the trial court on basis which are entirely groundless”

The tribunal, in this case, has neither transgressed the bounds of the evidence before it nor is its findings perverse. The court therefore will not interfere with the evaluation of evidence and the findings thereon not being perverse. The sixth issue is accordingly resolved against the appellants and ground one of the appeal consequently rails.

ISSUE SEVEN

The last issue questions the validity of the tribunal’s unsigned and undated ruling delivered on the 13th July 2007 and the final judgment delivered on the 27th September 2007. The appellants’ counsel, however, at the hearing of the appeal, abandoned this issue after seeing and satisfying himself from the original record of proceedings transmitted from the registry of the tribunal that both the ruling and the judgment delivered by the tribunal on the 13th July and 27th September 2007 respectively were duly signed and dated by the Chairman and the members of the tribunal. It is therefore no longer a live issue and same is accordingly discountenanced, including grounds 8 and 9 of the appeal to which the seventh was related.

From the above appraisal and in view of the failure of all the grounds of appeal, my way towards dismissing this appeal is well focused. The appeal is completely devoid of merit and its only obvious fate perforce is dismissal. I affirm the ruling and judgment of the tribunal delivered on the 13th July and 27th September, 2007 respectively and accordingly hereby dismiss the appeal with cost assessed at N30,000.00 to the 1st, 2nd and 3rd respondents against the appellants.

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Other Citations: (2008)LCN/2776(CA)