Mamman Musa & Anor V. Mohammed Abdullahi & Ors (2008)
LawGlobal-Hub Lead Judgment Report
OYEBISI FOLAYEMI OMOLEYE, J.C.A.
: This is an appeal against the judgment of the National Assembly/Governorship and State House of Assembly Election Petition Tribunal, Niger State holden at Minna. The judgment was delivered on 6/8/2007.
The brief feds of this case are that the 1st Appellant, the candidate of the 2nd Appellant, PDP contested “inter alia “with the 1st Respondent, the candidate of ANPP, the 2nd Respondent the election into the Niger State House of Assembly for the Bosso Local Government Constituency on the 14th day of April, 2007 general elections. The 1st Respondent was declared the winner by the 3rd Respondent, the returning officer and an agent of the 4th Respondent, INEC.
The 1st and 2nd Appellants aggrieved with the outcome of the Said election, filed a petition at the lower Tribunal on the ground that the 1st Respondent was not qualified to participate in the election because he failed to resign his appointment as a public officer with the Niger State Government thirty (30) days before the said 14th April, 2007 general election. The 1st and 2nd Respondents filed their Reply to the petition appropriately.
The case went to trial and the lower Tribunal in its considered judgment delivered on 6/8/2007 dismissed the petition of the Appellants as lacking in merit. It is against the said judgment that the Appellants filed this appeal.
The Amended Notice of Appeal of the Appellants dated 16/8/07 was filed on the same date. It contained five (5) grounds of appeal.
These with their particulars are as follows and I quote verbatim:
“GROUNDS OF APPEAL
- The Tribunal erred in low when it held that Section 149 (d) of the Evidence Act operated against the Appellants in this case.
PARTICULARS
i. The Tribunal held on page 11 of its judgment thus “For the same reason that they (petitioners) deem it necessary to call PW1, PW2 and PW3 as witnesses, it is the duty of the petitioners to also as witness the staff officer, who was the immediate boss of 1st respondent, and to whom he claimed he gave his letter of resignation .. ”
“We hold under S. 149(d) Evidence Act that the petitioners failed to call the staff officer as a witness because his evidence would have shown that 1st respondent resigned his appointment as he claimed”.
b. The petitioners never alleged or claimed that the 1st respondent gave (or did not give) any letter of retirement to the staff officer. In fact, the petitioners did not mention the phrase ”staff officer” either in their pleading or evidence.
c. The story of the 1st respondent giving his notice of withdrawal from service to the staff officer of his ministry was first weaved and contrived by the 1st and 2nd respondents in paragraph 3(b) of their reply, and paragraph 4 of the statement on oath of the of respondent.
d. There, is not a scintilla of evidence that the staff officer, (if there was one) was the “immediate boss” of the 1st respondent.
e. The law is trite that he who alleges the existence of a fact has the burden of proving that fact.
- The lower Tribunal erred in law when it held that the failure of the petitioners to file a reply under paragraph 16(1). Electoral Act, amounted to an admission of the respondents’ case.
PARTICULARS
a. The Tribunal held, at page 10, paragraph 2 of its judgment thus:
“Since the petitioners herein have failed to file a petitioners’ reply to challenge the claim by the 1st respondent that he resigned his appointment through a letter dated 14/12/06, which was received and endorsed by the staff officer of the Ministry we take that claim as having been admitted.”
b. The matter of the staff officer came up for the first time only on 25/5/07, when the 1st and 2nd respondents filed their Joint reply. That was eleven (11) days after the time allowed the petitioners to file their petition had elapsed.
c. Having the evidence (If the staff officer in the petitioners’ reply (including his statement on oath as required by the practice direction, 2007), would be introducing new facts or grounds, or adding to the contents of the petition or amending them altogether. In fact, that attempt will run counter to the provisions of paragraph 4 (1), 1st schedule, of the Electoral Act, 2006.
d. By the provisions of paragraph 16 (1) of the 1st schedule of the Electoral Act, 2006, the petitioners cannot, (under the guise of filing a reply to the respondents’ reply), introduce new facts, or grounds to their petition, or add to, or amend it.
- The lower Tribunal was wrong in law when it held that the 1st respondent was qualified to contest the election into the Niger State House of Assembly, held on 14/4/07.
PARTICULARS
a. S.107(1)(f) of the 1999 constitution requires the 1st respondent, a public officer, to withdraw from service 30 days before he could contest for the election of 14/4/07
b. The Tribunal believed the evidence of the 1st Respondent that he submitted his letter of withdrawal from service (exhibit R4) to the staff officer of the Ministry where he worked, even though the 1st respondent himself stated, under cross-examination, that he had no evidence that submitted exhibit R4 to the staff officer, and that the later did not endorse on it.
c. The Tribunal also fell into error when it held that collection (not payment) of salary for March 2007 could not affect the 1st respondents’ qualification to contest election on 14/4/07 Collection of salary (after notice of withdrawal from service) would not portray an intention to truly leave service
- The lower Tribunal erred in law when it admitted exhibit R4 (1st respondent purported letter of withdrawal from service) in evidence.
PARTICULARS
a. The Tribunal held on page 10, paragraph 2 of its judgment that:
“We are satisfied that exhibit R4 was properly admitted under the provisions of SS. 95, 109 and 111 Evidence Act”
b. Exhibit R4 was purportedly certified by the staff officer of the ministry of Science and Technology Minna, on “21/6/07′: that is after the petitioners had called their last witness and closed their case on 20/6/07.
c. The purported certification on exhibit R4 was Procured by the 1st respondent “a person interested at a time when proceeding were pending involving a dispute as to (a) fact” which the certification might tend to established Exhibit R4 is clearly inadmissible under S. 91 (3) of the Evidence Act.
5 The Judgment is against the weight of evidence.”
The Appellants learned counsel from the above grounds of appeal formulated three (3) issues for the determination of the appeal in their Appellants’ brief of argument filed on 29/8/07. These read thus:
“i. Who has the duty to establish evidence in proof of a particular claim or allegation contained in a pleading?
ii. Was the Tribunal right, in law, when it held that the 1st respondent in this case was qualified to contest the election of 14/4/07?
iii. Was exhibit R4, (1st respondent’s purported letter of resignation), properly admitted in evidence in this case?”
In response to the brief of argument of the 1st & 2nd Respondents, a Reply brief of argument was also tried on 7/9/07 for the appellants by their learned counsel.
On the other hand, for the 1st and 2nd Respondents, their teamed counsel filed the 1st & 2nd Respondents’ brief of argument on 4/9/07. In it, three (3) issues were identified for the determination of the appeal. They are as follows:
“i Whether in view of the pleadings before the tribunal the petitioners hadn’t a duty to call the staff officer to dispute the 1st respondent:” claim as to the receipt of the letter of resignation.
ii. Whether by the evidence before the tribunal 1st respondent was not qualified to contest the 14th April, 2007 election as envisaged by S. 107 (1) (f) of the 1999 constitution.
iii. Whether the tribunal was right in admitting exhibit R4 in evidence.”
The appeal was heard on 21/1/08. That day, Mr. Ndagi Musa, the learned counsel for the Appellants adopted and relied on both the appellants’ brief and Reply brief of argument. He urged this Court to allow this appeal.
Replying, Mr. S. Musa, learned counsel for the 1st & 2nd Respondents adopted and relied on the 1st & 2nd Respondents’ brief of argument. He urged this Court to dismiss this appeal and affirm the judgment of the lower Tribunal.
It is pertinent to state that the 3rd & 4th Respondents did not file any brief of argument despite service on them of all the processes in the appeal and indeed hearing notices in respect thereof.
I shall utilize the issues formulated by the Appellants in the resolution of this appeal.
ISSUE ONE
“Who has the duty to establish evidence in, proof of a particular claim or allegation contained in a pleading” The Appellants’ case at the trial Tribunal was that the 1st Respondent was not qualified to contest the election. In proving the claims contained in the petition, PW1 and PW2 the Permanent Secretary and Director of Personnel Management respectively, in the Ministry of Science and Technology, Minna gave evidence that they did not receive the 1st Respondent’s notice of retirement from service. PW3, the Ministry’s Accountant also testified that she paid into the account of the 1st Respondent, his salaries up until March, 2007 because she did not receive any instruction from her superiors, in the Ministry not to pay the 1st Respondent’s salary.
The defence of the 1st Respondent was that he served his notice of withdrawal from service on the staff officer of the Ministry.
‘This is paragraph 3(b) of the 1st & 2nd Respondents’ Joint Reply to the petition. He however did not call the said staff officer to establish the claim. The Law has long been settled that any pleading not substantiated by evidence goes to no issue. Consequently, he who asserts must prove his assertion. Reliance on this legal principle was placed on the cases of:
(1) CAP Plc. v. Vital Inv. Ltd (2006) 46 WRN p. 74 and
(2) Obun Vs Ebun (2007) 6 WRN p. 105.
So also in civil cases, the burden of proof, that is evidential burden, is never static. It shifts and preponderates. The burden of proof rests on the party asserting the affirmative. Reference was made to the cases of:
(1) Omotosho Vs. Bank of the North Ltd (2006) 44 WRN & p.144;
(2) Ajudua Vs. Nwogu (2004) 37 WRN p.54;
(3) Buhari Vs. Obasanjo (2005) 50 WRN p. 1 and
(4) S.P.D.C Vs. Emehuru (2006)-13 WRN p. 151.
However, the legal burden itself is fixed and static. That is, the legal burden is always fixed by the pleadings. A party is obliged to plead the fact it wants to prove in evidence; to this effect the burden does not shift. This difference was marked out in the case of:
Omotosho Vs. Bank of the North supra.
Therefore, by the provisions of paragraph 3(b) of the 1st & 2nd Respondents’ Joint Reply, a legal burden was created which burden is borne by the 1st & 2nd Respondents. They must first adduce credible evidence to prove the, assertion therein. Thereafter, the evidential burden would then shift to the Appellants to disprove the assertion. The trial Tribunal was therefore wrong to have prematurely shifted the burden and placed it on the Appellants.
The defence of the 1st & 2nd Respondents was predicated on the evidence of the staff officer. Their failure to call the staff officer would be unfavourable to them. Hence, the provisions of Section 149 (2) of the Evidence Act operate against the 1st & 2nd Respondents.
Furthermore, by the provisions of paragraph 42 of the First Schedule to the Electoral Act, 2006, and paragraph 2 of the Practice Direction, No. 1, 2007, the Respondents are expected to prepare their replies to the petition and give evidence in defence thereof as if they were petitioners themselves. The Respondents’ defence must be solid, unassailable and on the merits. They are not expected to lurk in the shadows hoping for a mis-step or default on the part of the Appellants.
It was also not permitted by the provisions of paragraph 16(1) for the Appellants to file a Reply to the Joint Reply of the 1st & 2nd Respondents as this will amount to introducing new grounds and thereby amending their petition. What is more the Appellants would not only have been out of time, it will be legally impossible for them to prove a non-existing fact. That is, since the 1st & 2nd Respondents did not adduce evidence by calling the staff officer to whom the 1st Respondent claimed he submitted his resignation letter, there was really nothing to disprove by the Appellants.
The Appellant learned counsel in furtherance of his contention submitted that the trial Tribunal’s pronouncement that the staff officer was the immediate boss of the 1st Respondent was speculative as there is no evidence in that respect. It is trite that a court shall base its decisions not on speculation but all concrete proven evidence adduced before it. He referred to the case of: Archibong v. Ita (2004)13 WRN p.1
Replying, the 1st &, 2nd Respondents’ learned counsel submitted that the complaint of the Appellants was that at ail material times before the 14th April, 2007 general election, the 1st Respondent was still in the employment of the Niger State Government being a staff of the Ministryof Science and Technology, Minna. This assertion was denied in the 1st & 2nd Respondents’ Reply to the petition. In paragraph 3(b) of the 1st & 2nd Respondents’ said Reply, a fresh fact was raised that the 1st Respondent actually resigned from his employment vide a letter. The letter was received by the staff officer of the Ministry. The letter was tendered in evidence at trial as Exhibit R4.
It became imperative by the provisions of Section 149 (d) of the Evidence Act for the Appellants to call the staff officer who received the letter of resignation as witness. Failure to call the staff, officer was not in favour of the Appellants. Also by the provisions of paragraph 16(1) of the First Schedule to the Electoral Act, 2006, where there is fresh Issue of fact such as the one raised in paragraph 3(b) of the 1st & 2nd Respondents’ Reply and the fresh fact was not in the main petition, the Appellants as petitioners must file a Reply in answer, The Appellants are therefore deemed to have been admitted the said fresh fact by their failure to file a Reply in answer to the fresh fact contained in paragraph 3(b) of the 1st & 2nd Respondents’ Reply to the petition. Reliance on this position taken by the 1st & 2nd Respondents’ counsel was placed on the case of: Iyere v. Bendel Feeds & Flour Mill Ltd (2001) All FWLR (Pt.37) p.1166 at pgs.1177 – 1178paras. H-A.
Pursuant to the provisions of Section 119(d) of the Evidence Act, there is a presumption in favour of the 1st & 2nd Respondents.
The Appellants failed to filed a Reply to the petition. They ought to have amended their petition accordingly and called the Ministry’s staff of Officer to give evidence to rebut the said fresh fact. I have considered the submissions of both counsel in support of and against this issue. What calls for determination under this issue is who is to establish by evidence the fact that the 1st Respondent resigned his employment with his former employer, the Niger State Government before contesting for the election to the Kogi State House of Assembly representing the Bosso Local Government Constituency.
By virtue of the provisions 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 any State and he has not resigned, withdrawn or retired from such employment thirty (30) days before the date of election. See the case of; Adefemi v. Abegunde (2004) 15 NWLR (Pt.895) p.1.
The Constitution is the basic law of the land, no other legislation, enactment or statute can add to or take away anything From it except by the due process of constitutional amendment, Consequently, the requirement that a public officer who intends to contest an election has to resign his appointment thirty days before the election is a command that must be obeyed. It is a condition precedent. It can not be altered or tampered with by any other legislation or statutory provisions except the Constitution itself. Not even the Electoral Act.
See the cases of:
(1) Adefemi Vs. Abegunde Supra at p.29; (2) Tukur Vs. Government of Gongola State (1989) 4 NWLR (pt.117) p.517;
(3) Oloba v. Akereja (1988) 3 NWLR (Pt.84)p. 508 and (4) Adisa vs. Oyinwola (2000) 10 NWLR (Pt. 674) p.116.
It is trite that resignation from employment is by the giving of the required length of notice or payment in lieu of notice. Hence, 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 the cases of:
(1) Adefemi v. Abegunde supra at p.28 and (2) Benson Onitiri (1960) SCNLR p.177.
It is an established common law principle that civil cases are decided on preponderance of evidence and the balance of probabilities. To put it in another way, the standard of proof required in civil cases is that of preponderance of evidence only. When such a matter is put on an imaginary scale and it tilts to one side, the side to which it tilts has the weightier material and the facts and law elicited would then preponderate in favour of the facts that the party is putting across. This common law principle was codified in the Evidence Act in its Section 135, which provides that he who asserts must prove. In civil cases basically and primarily, it is the plaintiff who asserts, the burden therefore is upon him to prove his case with cogent and credible evidence. The plaintiff therefore has the burden of proving his claim and his case is liable to be dismissed where he fails to discharge the burden. See the cases or:
(1) Amadi v. Orisakwe (2005) 7 NWLR (pt.924) p.385; (2) Onwuchekwa Vs. Ezeogu (2002) 18 NWLR (Pt.799) p.33
(3) Ayinde v. Abiodun (1999) 8 NWLR (pt.614) p.587; (4) Mogaji v. Odofin (1978) 4 SC p.91;
(5) Onwuama Vs. Ezeokoli (2002) 5 NWLR (pt.760) p.35 and
(6) Motunwase v. Sorungbe (1988) 5 NWLR (pt.92) p.90.
The learned counsel for the Appellants labouriously canvassed about the shifting nature of the burden of proof in civil cases. The law that is trite in this regard is simply that where in a case the plaintiff discharges the burden of proof on him, the burden shifts to the defendant to rebut the plaintiff’s case. See the case of: Dabo v. Abdullahi (2005) 7 NWLR (Pt.923) p. 181. The question that calls for determination in the instant case is whether the Appellants discharged this primary burden by adducing credible evidence so as to tilt the scale to their side. The case of the Appellants is that the 1st Respondent was a public officer at the time he participated in the election under consideration. Hence, the 1st Respondent was not qualified to participate in the said election. In this regard, I refer to page 2 of the record containing the claims of the 1st & 2nd Respondents in which they prayed the trial Tribunal in paragraph 8(9) of their petition to determine as follows:
“That the 1st Respondent (a public officer) was not qualified to contest the election having not resigned his appointment at least 30 days before the date of the elections.”
From the above stated claim, the burden is on the Appellants to prove that the 1st Respondent did not resign his appointment thirty (30) days before the said elections.
I am at one with and indeed endorse the submissions of the 1st & 2nd Respondents’ learned counsel that the evidence of the witnesses and the documents tendered by the Appellants did not establish their claim. The submissions of learned counsel for the Appellants that the burden of prove had shifted to the 1st & 2nd Respondents do not hold any water. Their Reply brief of the learned counsel for the 1st & 2nd Respondents to my mind is an extension of his submissions in the main brief. The submissions in the said Reply brief therefore did not improve the arguments for the Appellants.
The learned counsel for the 1st & 2nd Respondents contended that the Appellants ought to have amended their petition after receiving their (the 1st & 2nd Respondents’) Reply to the petition. With great respect to the learned counsel for the 1st and 2nd Respondents, this position is not legally sound when it comes to election matters.
The Appellants’ learned counsel’s submission is the correct position of the law that for whatever reason, the Appellants could not in law file a reply to the main Reply of the 1st & 2nd Respondents outside the statutory thirty (30) days period allowed for the presentation of an election. For an application for all substantial or material alteration or amendment brought after the expiration of the thirty days will be refused. See the cases of:
(1) Jang Vs. Dariye (2003) 15 NWLR (Pt.843) p. 436;
(2) Dickson v. Dalat (2004) 1 EPR p.243 and
(3) Obi-Odu v. Duke (No.2) (2005) 10 NWLR (pt.932) p.105.
However this argument has nothing to do with burden of the Appellant to prove that the 1st Respondent did not resign his appointment as a public officer. The 1st Respondent tendered in evidence Exhibit R4, his letter of resignation; even if he did not tender the letter it would still not mater.
For in law, failure of a defendant to prove or even his refusal to testify can not alleviate the primary burden on the plaintiff to prove his claim. See the cases of:
(1) Garba v. Janfa (1999) 8 NWLR (pt.614) p.257 and (2) Umeojiako v. Ezenamuo (1990) 1 NWLR (pt.126) p.25Better still, the 2nd Respondent’s production of his letter of resignation placed further challenge on the Appellants to disprove the letter.
Issue was specifically joined by the appellants and the 1st & 2nd Respondents that the 1st Respondent did not resign his appointment.
The burden was on the Appellants to clearly and satisfactorily prove that the 1st Respondent did not resign his appointment. They failed to discharge the burden. There was no evidence on the printed record that the 1st Respondent drew salaries after he submitted Exhibit R4, his letter of resignation, I agree with the trial Tribunal that it followed that the issue joined had to be resolved against the appellants. See the cases of:
(1) Onwuchekwa v. Ezeogu supra and (2) A.C.B. Plc. v. Emostrade Ltd. (2002) 8 NWLR (pt.770) p.501 at p.516.
As earlier on postulated in this judgment, once the resignation letter has come in within time the fact that acceptance thereof has been made by the relevant officer is legally immaterial. Without equivocation, the answer to Issue one is in the negative.
Consequently, issue one fails, it is resolved in favour of the 1st & 2nd Respondents.
“Was the Tribunal right, in law, when it held that the 1st Respondent in this case was qualified to contest the election of 14/4/07”.
This issue is a continuum of issue one. I have adequately dealt with the constitutional requirement for qualification for contesting an ejection. I do not want to belabour this point by recapitulating the submissions of counsel in this respect, for this will amount to tautology.
For ease of reference, Section 107 (1) (f) of the 1999 Constitution states thus:
“107-(1)No person shall be qualified for election to a House of Assembly if-
(a) …
(b) …
(c) …
(d) …
(e) …
(f) 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 on the face of it, Exhibit R4, the resignation letter was presented on 14th December, 2006. This was clearly more than adequate time for an election that took place on 14/4/07.
The answer to issue two is definitely in the affirmative, consequently this issue is equally resolved in favour of the 1st & 2nd Respondents.
ISSUE THREE
“Was exhibit R4, (1st respondent’s purported letter of resignation), properly admitted in evidence in this case?”
The Appellants’ learned counsel submitted that the Tribunal itself agreed that Exhibit R4 was certified on “21/6/07″. See page 90, line 29 of the record. The petition was filed on 4/5/07. The petitioners called their last witness and closed their case on 20/6/07.
See the last line of page 40 of the record. It is clear that the signing and certification of Exhibit R1 was procured by the 1st Respondent when the proceedings in the lower Tribunal were not only pending, but when they were very close to the end. Furthermore, the 1st Respondent was the key target of the petition, and so, he was a person ‘interested” in the case. And the fact sought to be established by him in Exhibit R4 was that he gave his letter of retirement to the staff officer of the Ministry of Science and Technology, Minna. Yet, he had already admitted in his evidence under cross-examination that there was no evidence that he gave the letter to the staff officer. Consequently, Exhibit R4 is inadmissible by virtue of the provisions of Section 91 (3) of the Evidence Act. Exhibit R4 remains inadmissible even if the petitioners raised no objection to its admissibility at the lower Tribunal. He relied on the Cases of: Okeke v. Obidife All NLR p.113 and Ikenye v. Ofune (1985) 2 NWLR (pt.5) p.1.
Replying on this issue the 1st and 2nd Respondent’s learned counsel submitted that Exhibit R4, the letter of withdrawal from service was addressed to the Chairman Civil Service Commission but routed through the staff officer and the Permanent Secretary of the Ministry of Science and Technology Minna. Exhibit R4 was pleaded by the 1st – and 2nd Respondent in paragraph 3(b) of their Joint Reply and to that extent relevant in the determination of the petition. From the record of the Tribunal it is also not in dispute that the original of Exhibit R4 which was in the personal file of the 1st Respondent in the custody of the Ministry, and it could not be produced inspite of Exhibits R1, R2 and R3 which requested for the production of the said original letter. See page 91 lines 12 – 11 of the record.
He contended that Exhibit R4 became a public document the moment it was submitted, received and filed away in the 1st Respondent’s personal file with the Ministry by the staff officer as the Ministry is a public institution and the duty of the staff officer is of public nature. See the case of: Edoziem Vs. Onwuzuruike (2005) All FWLR (Pt. 290) P.1597 p.160Z pargs. C – E.,
Proceeding further, learned counsel for the 1st & 2nd Respondents referred to the provisions of Sections 95 & 89 of the Evidence Act that secondary evidence can be given where notice to produce a document has not yielded the desired result. What is more, the genuineness of Exhibit R4 was not in any way questioned by the Appellant. See the case of Daggash v. Bulama (2004) All FWLR (pt. 212) p.1666 at 1701 paras. D – F
I have given diligent consideration to the submissions of the learned counsel for both parties under this issue.
It is trite that in civil proceedings as in the instant case, it is a general rule that where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact- see Section 91(1) of the Evidence Act. The exception to this general rule is that where the original document can not be produced, a copy of the original document or of the material part thereof certified to be a true copy in such manner as may be specified in the order as the court may approve, may be produced in lieu thereof- see Section 91(2) (b) of the Evidence Act. These are referred to as primary and secondary evidence respcctively. To put it in another way, the contents of documents may be proved either by primary or secondary evidence. Furthermore, Section 97 (1) (a) (i) of the Evidence Act provides that secondary evidence may be given of the existence, condition or contents of a document where the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved.
In the instant case, the 1st Respondent relied on his letter of resignation, Exhibit R4 as evidence the he actually resigned. The learned counsel for the Appellants invoked the provisions of Section 91(3) of the Evidence Act against the 1st & 2nd Respondent relating to the certification of Exhibit R4. With due respect to him, I do not share his view. Truly, by virtue of Section 91(3) any document made in anticipation of a suit is inadmissible. This Section however is not applicable to Exhibit R4 in the instant case. There is nothing on the printed record to show that the letter was made subjudice or in anticipation of the suit or in disobedience of an order of the trial Tribunal or any other Court.
Even if the 1st Respondent did not tender Exhibit R4 in evidence, the Appellant, were under a duly to prove that the 1st Respondent did not resign his appointment before participating in the said election. The fact that the letter was pleaded placed the ball in the court of the Appellants to adduce concrete evidence to disprove the contents of it. The complaint of the Appellants in this appeal regarding the admissibility of the exhibit is not in order; it is improper, and this Court will not be favourably disposed to accepting and allowing it without complying with the laid down due procedure and process in that regard. Issue three (3) is bound to fail, it is resolved in favour of the 1st & 2nd Respondents as well.
In the final analysis, this appeal has no merit. It fails and is accordingly dismissed. The judgment of the trial Tribunal delivered on 6/8/07 is sustained.
There shall be no order as to cost.
Other Citations: (2008)LCN/2668(CA)
