Alhaji Abdulla Mohammed & Anor V. Dr. Ramalan Ibrahim & Ors (1998)

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IBRAHIM TANKO MUHAMMAD, J.C.A.

At the Kaduna State Local Government Election Tribunal the petitioners filed a petition against the respondents. The endorsement on the petition reads as follows:

“The petitioners question the declaration of the 2nd respondent by the 3rd respondent as the winner of the GIWA Local Government Council Chairmanship election on the following grounds:-

A. The 1st respondent was at the time of the election not qualified to be elected as chairman Giwa Local Government Council as he did not lawfully resign his appointment from office as Civil Servant/public Officer against the relevant provisions of the Local Government (Basic Constitutional and Transitional provisions) Decree, 1997 and other relevant laws.

B. The election at Giwa Local Government Area was avoided by corrupt practices, malpractices and irregularities against the Local Government (Basic constitutional and Transitional provisions) Decree, 1997.

C. The 2nd Respondent was not duly elected by a majority of lawful votes cast at the Giwa Local Government Council Chairmanship election held on the 15th day of March, 1997.”

Oral evidence was taken by the Election Tribunal at the end of which it regarded grounds “B” and “C” as “abandoned and unproved”. On ground “A” however, the Election Tribunal invalidated the election which enthroned the 1st respondent as the Chairman, Giwa Local Government Area of Kaduna state and ordered that a fresh election be conducted. Dissatisfied with that decision, the 1st respondent appealed to the Kaduna state Election Appeal Tribunal (the Appeal Tribunal) which allowed the appeal and set aside the judgment of the Election Tribunal. The petitioners/appellants were not satisfied with that decision. They filed their petition to the Government for a review.

In compliance with the provision of section 91(b) and (c) of the Local Government (Basic constitutional and Transitional provisions) (Amendment) Decree No.2 of 1998, the Honourable Attorney General of the Federation filed a written brief of argument. The appellants filed a brief too. Both 1st and 2nd respondents also filed a joint brief. Issues were formulated in each of the briefs. The issues appear to be the same and I shall consider this review in line with the issues formulated by the Hon. Attorney General which read as follows:

“1. Whether the 1st appellant/respondent properly resigned his appointment in the Public service and was therefore not disqualified by section 11(1)(f) of Decree No.7 of 1997.

2. whether the Appeal Tribunal was right when it returned the 15th Appellant/Respondent (sic) as the duly elected chairman of Giwa Local Government, Kaduna state.”

The submission of the Hon. Attorney General and that of learned counsel for the appellants on issue No. 1 is that 1st respondent did not resign his appointment as at the time he contested the election. The learned Justices of the Appeal Tribunal placed undue weight on Exhibit PIA (iii) a letter from Major General Mamman Kontagora (Rtd) sale Administrator of Ahmadu Bello University, Zaria accepting the resignation of appointment by the 1st respondent. In his brief, the learned S.A.N. for the respondents argued that it was the Election Tribunal that went wrong as it interfered with the contract between the parties. He submitted further that the 1st respondent was not a staff of Ahmadu Bello University on his assumption of office as Chairman, Giwa Local Government Area.

I will start by considering the decision of the Election Tribunal and then that of the Appeal Tribunal. In their decision, the Chairman and members of the Election Tribunal had this to say:

“The 2nd respondent is a public officer whose employment is regulated by Exhibits P2. Since under Clause 3(f)(ii) of Exhibits P2 he can only resign or terminate his appointment by giving three months notice or paying salary in lieu of notice for three months, which he has not done. He is deemed to still be in the public service of the Ahmadu Bello university. His resignation will become effective three months from 28th February, 1997 when it was received at the office of the Sole Administrator.

On the authorities above the acceptance of the Resignation cannot be back dated to 30th January, 1997 to defeat the intendment of section 11(1)(f) of Decree No. 7 of 1997.

In the result, ground A of the petition succeeds. We accordingly invalidate the election of the 2nd respondent under section 95(1) of Decree No.7 of 1997 and order fresh election for the office of the Chairman Giwa Local Government council of Kaduna State.”