Ali Peters V. Atigwe David O. & Ors (1999)

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UBAEZONU, J.C.A.

The 1st appellant (Ali Peter S.) who is the only appellant in this appeal and will hereinafter be referred to as “the appellant” in the rest of this judgment and the respondent (Atigwe David O.) were contestants at the Enugu State House of Assembly election held on the 9th day of January, 1999 for the Igboeze North II constituency. At the end of the exercise the appellant was declared the winner. In consequence of the said declaration, the respondent filed a petition before the Election Tribunal which, in effect, annulled the said election and ordered a fresh election. Dissatisfied with the said decision, the appellant has appealed to this court on three grounds of appeal. He has also through his counsel filed a brief of argument. In his said brief, the appellant has formulated two issues for determination viz:

“1. Whether the issue of qualification or disqualification can be made a ground for questioning an election under Decree No.3 of 1999 or whether the tribunal has the jurisdiction to enquire into the issue of qualification or disqualification of a person whose nomination was screened, cleared and declared valid by the officers of INEC without appealing to INEC.

2. Even if the issue of qualification or disqualification can be made a ground for questioning the appellant’s election whether the petitioner discharged the burden placed on him by proving that the 1st appellant was required under his contract of service, to pay one month’s salary in lieu of notice and if so whether non-payment of same vitiated his resignation.”

Arguing the issue No. 1, it is submitted that by virtue of Schedule 5 paragraph 6(3) of Decree No.3 of 1999 the decision of the Resident Electoral Commissioner or the Electoral Officer that a candidate has been validly nominated cannot be the ground of an election petition under the Decree. The Resident Electoral Commissioner or the Electoral Officer, it is argued, is the proper authority concerned with validating or invalidating nomination of a candidate for election under Schedule 5 paragraph 6(1) of the Decree. Learned counsel submits that paragraph 6(3) of Schedule 5 overrides section 134(1) of the Decree. He refers to and relies on Alhaji Muhailladu Egbu Enagi v. Dr. Musa Inuwa (1992) 3 NWLR (Pt.231) 548 at 565; Francis Doukpolagha v. Rufus Ada George (1992) 4 NWLR (Pt.236) 444 at 458; Sunday Chime v. Ben Collius Ndu (1993) 2 NWLR (Pt.277) 533.

On issue No.2, the appellant contends that matters relating to the resignation of the appellant form part of the public service contract of service. The terms of such service are always documented and are contained in the letter of appointment or Service Rules. The onus is on the petitioner to prove the terms and conditions of service of the 1st respondent. The oral evidence of P.W.1 is inadmissible. He refers to section 76 of the Evidence Act. Furthermore, it is submitted that Exhibits 1 and D1 are sufficient proof of the resignation of the respondent.

On the issue of payment of one month salary in lieu of notice, it is submitted that the evidence of the respondent on the matter was not challenged or contradicted.

On being served with the appellant’s brief, the respondent filed his own brief in which he formulated two issues for determination thus:

“(i) Is qualification or disqualification a ground on which a successful candidate’s election can be challenged under Decree No.3 of 1999.

(ii) Did the appellant who was a public officer under Igboeze North Local Government Council resign his appointment as required before contesting an election under Decree No.3 of 1999 for the Enugu State House of Assembly.”

On issue No.1, the respondent submits that the qualification or disqualification of a successful candidate who has contested an election under Decree No.3 of 1999 is a valid ground for an election petition. He relies on sections 18 and 19 of the Decree and section 134(1)(3) of the self same Decree. It is submitted that Schedule 5 paragraph 6(3) of the Decree deals with validating of nomination. It has nothing to do with election. Learned counsel draws a distinction between section 91 of Decree No. 50 of 1991 and section 134 of the Decree No.3 of 1999. He refers to Kalu Anya v. Iyayi (1993) 9 SCNJ (Pt.1) 57, (1993) 7 NWLR (Pt.305) 290: A.G. Lagos State v. Dosumu (1989) All NLR 504, (1989) 3 NWLR (Pt.111) 552. Counsel contends that Schedule 5 paragraph 6(3) does not oust the jurisdiction of the Election Tribunal.

Arguing the issue No.2, counsel submits that in Exh. 1, the purported letter of resignation dated 6th December, 1998 the appellant informed the Local Government Service Commission that he had resigned. The said letter, counsel argues, did not give any notice of resignation nor did it direct that any salary was paid in lieu of notice. In spite of the letter, the appellant’s name was in the payroll for December, 1998 salary which was duly signed and collected but later returned on 8th January, 1999 on the eve of the election. There was an erasure at a place for the signature of the recipient for the salary. This, counsel submits, is to avoid identification of the recipient of the salary. It is submitted that there is no sufficient evidence to show that the appellant in fact resigned. Learned counsel refers to and relies on Aondoakaa v. Ayegwea (1989) NEPLR 39; Adeniyi v. Council, Yaba College of Technology (1993) 6 NWLR (Pt.300) 426, (1993) 7 SCNJ (Pt.11) 304 at 366; Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) 599; Howard v. Pickford Tool Co. Ltd. (1951) 1 K.B. 417; Heyman v. Darwins (1949) A.C. 356 at 361.

In court, both counsel adopted their respective briefs. Mr. Eze, Learned counsel for the appellant contends, as in his brief, that paragraph 6(3) of Schedule 5 to Decree No.3 of 1999 overrides section 134(1) of the said Decree. He refers to paragraph 6(2) of schedule 5 to the Decree and submits that one of the things to be considered by INEC is whether the candidate was qualified or not. He described section 134(1) of the Decree as a mere “window dressing.” He equates section 134(1) to section 91(1) of the Decree No.50 of 1991 and relies on the decision of the Court of Appeal on that section of the 1991 Decree. He says that it is immaterial that the exclusion clause is contained in the schedule and submits that the schedule is as good and effective as the substantive law. He refers to Prof Olatunbosin v. NIFOR (1988) 3 NWLR (Pt.80) 25, (1988) 6 SCNJ 38 at 51.

On the second issue he submits that Exhs. 1 and D1 are sufficient to determine the appointment of the appellant with his employer. In Exh. D1 the Chairman of the Local Government endorsed “resignation accepted.

Chief Ifebunandu, learned counsel for the respondent says that contracts with statutory flavour can only be determined as provided by the statute. He refers in particular to Exhs. 2 and 3 showing that the appellant collected his December 1998 salary. He submits that section 134(1) is not ousted by Schedule 5 paragraph 6(3) of the Decree.