Hajiya Jummai Jafaru & Anor V. Mohammed Usman & Ors (2008)

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MARY U. PETER-ODILI, J.C.A.

This is an appeal against the decision of the Niger State Governorship and Legislative Houses Election Petition Tribunal delivered on 11th day of July 2007. The petition was in respect of the return of one Mohammed Usman (the 1st Respondent) as the House of Assembly member representing Chanchaga constituency in the Niger House of Assembly. The Appellants as petitioners filed an 8 paragraph petition while the 1st and 2nd Respondents filed a 6 paragraph reply to the petition. The Tribunal in a considered judgment dismissed the petition and the Appellants being dissatisfied have appealed to the Court of Appeal.

FACTS BRIEFLY STATED

On the 23rd of April 2007 the Appellants as petitioners before the Tribunal filed an 8 paragraph petition challenging the election and return of the 1st Respondent as member representing Chanchaga Constituency in the Niger State House of Assembly. The ground of the petition was that as at 14/4/2007 the 1st Respondent was not qualified to stand election into the office under reference as he had not resigned from the service of the Niger State Government. The Appellants in proof of their petition called 5 witnesses and also tendered 5 exhibits admitted in evidence.

The 1st and 2nd Respondents on the other hand denied the petitioner’s claim in their 6 point reply to the petition 1st and 2nd Respondents also called one witness and tendered 3 exhibits admitted in evidence. On the 5th day of June 2007 tribunal settled the issue for determination in the petition as follows:-

“Whether by the provisions of section 107 (1) (f) of the 1999 Constitution of the Federal Republic of Nigeria the 1st Respondent was qualified to contest in the election of 14th April 2007 into the Niger State House of Assembly”.

The Appellants’ by a brief of Argument dated 13th August 2007 and filed on 14th August 2007 formulated three issues for determination which are:-

1. Whether the Tribunal was right when it held that the 1st respondent resigned his appointment 30 days before the election of 14/4/07.
2. Is the burden of proving a valid notice of retirement on the petitioners, or on the respondents in this case?
3. Was the Lower Tribunal right in law when it stopped one of the petitioners’ witnesses from concluding his evidence – in – Chief?

The 1st and 2nd Respondents filed a brief on 20/8/07 and framed four issues which are as follows:-

1. Whether based on the evidence before the Tribuna/1st Respondent was not qualified for the election of 14/4/2007 into the Niger State House of Assembly.
2. Whether service and receipt of letter of disengagement by the principal of the 1st Respondent is valid and effective.
3. Whether receipt of salary by the 1st Respondent annulled his disengagement from the services of the Niger State Government.
4. Whether the Tribunal was right to have refused to allow PW1 to conclude his evidence in the manner it was designed

The Appellant on the 24/8/07 filed a Reply brief. I see that it would be easier to utilise the issues as couched by the Appellants.

ISSUE NO 1

WHETHER THE TRIBUNAL WAS RIGHT WHEN IT HELD THAT THE 1ST RESPONDENT RESIGNED HIS APPOINTMENT 30 DAYS BEFORE THE ELECTION OF 14/4/07.

Learned counsel for the Appellants stated that at the time the 1st Respondent contested the election on 14/4/07 into the Niger State House of Assembly, for Chanchaga Local Government Constituency he was still a public officer being a teacher at the Government Day Secondary School, Maitumbi, Minna. That Section 107 (I) (f) of the 1999 Constitution required him to resign, withdraw or retire from service “thirty days before the date of election”. That the employer of the 1st respondent was the Niger State Civil Service Commission, while the agent of the employer is the Niger State Secondary Schools Board, where PW2 works as the Secretary and the said PW2 had told the Tribunal that the 1st Respondent was a member of staff and that he, PW2 had not received any notice of retirement, disengagement or withdrawal from service from him as at 14/4/07. That it was because he, PW2 did not receive any notice of retirement from the 1st respondent that he did not pass any instruction to the accountant of the Board, PW3 to stop the salary of the 1st respondent and so the 1st respondent continued to be paid his salaries and allowances up to 30/3/07 which was confirmed by the PW4.

Learned counsel for the Appellant said on the authority of M.M. Kwapyong & Ors. v. Daniel Daniang (1989) 1 NEPLR 99 that a resignation is effective not from the date of the purported acceptance, but from the date on which the letter was received by the employer or his agent. That the purported notice of retirement served by the 1st respondent on the principal of the School where he taught cannot be effective and valid in law as the Principal who testified was neither the employer nor the agent of the employer of the 1st respondent. That the employer of the 1st respondent is the Civil Service Commission and the agent of that employer being the Secondary Schools Boards as the Principal himself is an employee and under the Secondary Schools Board. That a proper notice of retirement should therefore be taken to those, or either of those, who can give effect to it, by stopping an employee’s salary or giving him a notification of retirement from service.

Learned counsel for the Appellant said there is a duty to retire from service, but there is no corresponding duty to accept retirement. He cited Mele v. Mohammed (1999) 3 NWLR (pt. 595) 425. He stated on that there is abundant and unchallenged evidence before the lower court tribunal that, even after purportedly resigning his appointment, the 1st respondent continued to collect his salaries and allowances up to 30/3/07 about 15 days to the election of 14/4/07. He stated that collection and not payment of salary is the antithesis of “intent” to retire from service. That if the employer was not aware that an employee has left service, or if the employer made a mistake in paying the salary of a retired employee into his bank account, then the employee must not surreptitiously go and collect it, if he had truly and honestly resigned his appointment. That the evidence of PW4 that the 1st respondent collected his March 2007 salary from his bank account on 30/3/07 was not controverted, challenged or even denied.