Sugun Maimele V. Alhaji Tijani Goni Mohammed & Ors (1999)
LawGlobal-Hub Lead Judgment Report
CHUKWUMA-ENEH, J.C.A.
This appeal emanates from the decision of the Local Government Council Election Tribunal of Borno State sitting at Maiduguri in the election petition presented by Alhaji Tijjani Mohammed (as the petitioner) against the declaration of Sugun Mai Mele as the winner of the election for the chairmanship seat of Guzamala Local Government Council. At the Election Tribunal the 1st respondent in this appeal was the petitioner and contested the election as a candidate of the All People’s Party (APP) while the appellant herein (i.e, the 1st respondent before the tribunal) contested as a candidate under the platform of the People’s Democratic Party (PDP).
The main complaints of the petitioner as articulated in his amended petition were founded on firstly, non qualification of the 1st respondent to contest the election as he was still a senior staff of Mobbar Local Government Damasak and did not properly “withdraw or resign his appointment”, Secondly, on various acts of corrupt practices, irregularities, violence and electoral offences, and thirdly, on the inconclusiveness of the elections. For each of these grounds the petitioner set forth copious and prolix facts in support. Amongst other things, he particularly highlighted the lateness of the INEC staff at the Local Government Council Headquarters hence the election materials could not be distributed timely enough and voting had to protract to the next day being Sunday 6/12/98 at various centres including Ari Gambori, Kadure, Adduwa, Hassanti Noram and Kadiyyi, violence at most polling units; tampering with the ballot boxes, impersonation by presiding officers including one Baba Shehu as PDP agents at Mastaphari polling unit; rampant voting without accreditation at Wamri and Kiugarwa Wards; excess returns from Kadugre; Bossoma Guworam polling units.
As regards the inconclusiveness of the elections the petitioner relied on the failure to conduct elections at all at certain centres including Aduwa Ward.
The background of this petition would not be complete without setting forth the reliefs sought in the amended petition thus:
(a) a declaration that the 1st respondent is not a person qualified and ought to have been disqualified from contesting the said elections;
(b) a declaration that the 1st respondent was not duly elected with majority of lawful votes cast at the elections as his election is null and void and of no effect whatsoever:
(c) a declaration that the petitioner was duly elected and ought to have been returned as the votes cast in favour of the 1st respondent are wasted votes and the petitioner being the only qualified candidate who came second in terms of votes cast at the election;
(d) an order returning the petitioner as duly elected;
(e) in the alternative to all the above, an order of fresh and or bye elections in the whole local government area:
(f) any further relief the tribunal may deem fit to make in the circumstances;
(g) cost of the petition;
The 1st respondent filed his reply in which he traversed all the allegations of facts contained in the amended petition. It is particularly noteworthy that paragraph 7c of the amended petition regarding the proper withdrawal from service or resignation of appointment by the 1st respondent was specifically denied and put in issue. It was also averred that the election was conducted within the stipulated time and that there were no incidence of corrupt practices, violence, irregularities or electoral offences. As for the rest of the respondent’s i.e 2nd to 4th, they joined issues with the petitioner on the averments in the amended petition.
At the hearing, the petitioner called 15 witnesses and the 1st respondent 11 witnesses while 2nd and 4th respondents called 2 witnesses. Learned counsel on both sides submitted written addresses. And in a considered judgment, the tribunal upheld the reliefs (a and e) as per the amended petition and nullified the election
on the ground that the appellant “Alhaji Tijjani Mohammed did not properly retire from his employment with the Local Government Services Board in accordance with the Revised Local Government Staff Regulation 1986 in that he paid one month’s salary in lieu of notice instead of paying three months salary”.
In the result, the appellant has brought this appeal challenging the whole decision of the tribunal based on three grounds of appeal set out in the notice and grounds of appeal. However, the matter did not rest there, as the 1st respondent has also cross-appealed against that part of the tribunal’s decision more specifically on the conduct of the election and the court order made thereof. He has predicated his complaints on two grounds of appeal. Both parties filed and adopted their respective briefs before this court.
The appellant has formulated two issues for determination in the main appeal as follows:
- Having regard to the provisions of section 11 (1) (f) of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 was the tribunal right in applying the provisions of the Borno State Revised Local Government Staff Regulation 1986 to the determination of the qualification of the appellant to hold the office of the chairman? If the answer to issue No. 1 is in the positive, then the determination of issue No.2 will arise it.
lf the tribunal had read the entire provisions of Chapter 11 part 1 of the Borno State Revised Local Government Staff Regulations dealing with retirement or resignation together, would it not have come to the conclusion that the appellant was right in paying one month’s salary in lieu of notice?
The 1st respondent in the respondent’s brief of argument adopted the issues for determination as formulated above. To avoid unnecessary repetition of myself in considering issues on the cross-appeal, I have opted to also set further the issues formulated in the cross-appeal to wit:
- Whether the irregularities which were proved and demonstrated before the tribunal were substantially enough to nullify the conduct of the election.
- Whether the tribunal can only nullify the election of the cross-respondent without consequently ordering the cross-appellant as the duly elected Chairman of Guazamala Local Government Area.
The appellant’s counsel has adverted to the cross-appeal in his brief.
Learned counsel in the main appeal in canvassing his grounds under issue No. I, with respect, totally misconceived the import of s.11 (1) (f) of Decree No. 36 of 1998 vis-a-vis Regulation 25 of the Revised Local Government Staff Regulations, 1986. For ease of reference I reproduce the two provisions in so far as they are relevant to the instant appeal as follows:
“S11 (1)(f) A person shall not be qualified to hold the office of chairman if:-
(a) [not applicable]
(b) ”
(c) ”
(d) ”
(e) ”
(f) he is a person employed in the public service or civil service of the Federation or of any State, or of any Local Government Councilor Area Council and has not resigned, withdrawn or retired from such employment 30 days before the date of election”.
Regulation 25
“25 An officer may retire, or the Local Government may at its own discretion with the approval of the Local Government Services Board, dispense with his services, on realising the age of forty-five, subject to three month’s notice on either side by or payment of three month’s salary in lieu of notice.
In such cases the officer shall be eligible for pension and gratuity in accordance with the pension enactment in force at the material time”.
Learned counsel for the appellant according to his brief is of the view that Regulation 25 of the Revised Local Government Staff Regulations, 1986 has no relevance and is inapplicable to the circumstances of the appellant because the provision of s.11 (1) (f) of Decree 36 of 1998 has superceded Regulation 25 of the Revised Local Government Staff Regulations, a mere subsidiary legislation and further-more, that a person employed in the public service or civil service of the Federation or any State or any Local Government Councilor Area Council who has not resigned, withdrawn, retired from such employment 30 days before the date of election is disqualified from holding the office of the chairman. To strengthen his argument in this regard he further contended that the appellant having paid one month’s salary in lieu of notice and the same having been accepted by the Local Government Services Board his employers, he had satisfied the provision of the Decree No. 36 of 1998 and thus was duly qualified to contest the election. Meanwhile, if I must say, no difficulties whatsoever is anticipated in construing the provisions of s. 11 (1) (f) of Decree No. 36 of 1998. From the wording it ought to present no problems of interpretation. It is clear and free from any ambiguity and therefore, admits of literary interpretation. My reaction to these submissions is that for purposes of determining whether a candidate for election under this Decree has effectively resigned, withdrawn or retired from his employment (i.e as regards the modus) one has necessarily to look beyond the confines of s. 11 (1) (f) of Decree 36 of 1998 in the instant appeal more appropriately to Regulation 25 of the Revised Local Government Staff Regulation 1986 and that is in deciding the appellant’s retirement. Section 11(1) (f) has not made provision as to how and when a candidate for election has to resign, withdraw or retire from his employment.
As for Regulation 25 again, I hold the same view of it as respecting s.11 (1) (f) above that the language is clear and simple and construing it literarily, it requires an officer who was intent to retire with pension and gratuity or where the Local Government Services Board is intent to retire an officer for 3 (three) month’s notice to be given on either side. The implication of this is that a candidate subject to the Revised Local Government Staff Regulation, 1986, desirous to contest an election under Decree 36 of 1998 has to make his application for resignation, withdrawal or retirement in good time to allow matters of his disengagement to be in place 30 days before the date of election. Simply put, in the instant matter the 1st respondent’s retirement has to commence 30 days to the date of the election proper, in this case 5/12/98. It is to be noted that the Borno State Revised Local Government Staff Regulation, 1986 deals with appointment, promotions, transfers, retirements etc, of all persons employed by the Borno State Local Government and at all materials binds the appellant and is relevant in determining whether the appellant had been regularly disengaged from his employment as an internal auditor 30 days to the date of the election.
For all this, therefore my answer to issue No. 1 is in the positive.
On Issue No.2: in this respect, it is pertinent to determine the place of Exh. “A” in this matter and whether it was proper for the appellant in addition to pay one month’s salary in lieu of notice as contended by him. I have carefully perused through Exh. “A”. I find it rather disconcerting that Exh. “L” was admitted to make the case that the appellant paid one month’s salary in lieu of notice. I shall come back to Exh. “L” later in the course of the judgment. Exh. “A”, a short letter is reproduced here for ease of reference as follows:
“Administration Department
Mobber Local Government Damasak
3rd November, 1998.
The Chairman
Local Government Service Commission
Maiduguri
Borno State.
U.F.S.
The Sole Administrator
Mobber Local Government
Damasak.
VOLUNTARY RETIREMENT FROM SERVICE
With due respect and honour, I wish to forward herewith the aforementioned subject matter.
I joined the Local Government Service in 1982 and presently serving Mobber Local Government as an Internal Auditor on Grade Level (GL. 09).
The request became extremely necessary in order to participate in the transition programme that is on course. I would be grateful if the effective date would be 03/11/98.
Grateful if you accord the urgency it deserves, please.
Yours faithfully,
SUGUN MAI MELE
INTERNAL AUDITOR”.
Exh. “A” – on the subject-matter of voluntary retirement from service, speaks for itself, it is pleaded in paragraph 4(d) of the 1st respondent’s reply thus:
“d Again contrary to the claim of the petitioner in paragraph 7c, in respect of proper withdrawal from service or resignation from appointment, the 1st respondent avers that he had prior to contesting the election properly and effectively retired from public services having submitted his letter of voluntary retirement and the same having been approved by the appropriate authority vide letter Ref. No. LGSC/TR/P/S/223/96 of 17th November, 1998 signed by Alhaji Warila A. Biu Director of Personnel Management in the Local Government Service Commission. The said letter which was copied to the 1st respondent is hereby pleaded”
This paragraph of the 1st respondent’s reply was not amended at the hearing. However, midstream in the 1st respondent’s case before the tribunal, the 1st respondent appeared to deviate completely from his case as pleaded in paragraph 4(d) of the reply and proceeded in his evidence to allege paying one month’s salary in lieu of notice as per Exh. “L”. It is crucial to emphasis that this vital aspect of his case, if at all, was not pleaded and was rightly in my view, even though cursorily referred to by the tribunal in its judgment, accorded no weight as it went to no issue. See Overseas Construction Ltd. v. Creek Enterprises Ltd. (1985) 3 NWLR (Pt.13) 407; Edukugho v. Awani (1965) ANLR 277 and Emegokwue v. Okadigbo (1973) 1 All NLR (Pt.1) 379. I think that there are good reasons for the conclusion reached on this issue by the tribunal when it summurised thus:
“Going by the above provisions and the various submissions made as to the appropriate interpretation to be given firm view that the one month’s notice or salary in lieu of notice does not satisfy this requirement which expressly requires either 3 months’ notice or three months’ salary in lieu of notice. The 1st respondent having just paid one month salary in lieu of notice is in clear breach of the above regulation which governs his employment, with the Local Government Services Board. We therefore find no difficulty in upholding the submission of learned counsel for the petitioner that the 1st respondent intended to retire from service but without giving the requisite three months’ notice or three months’ salary in lieu of notice…”
Let me observe, in addition, that this appeal has not directly confronted this court with the issues of the effective dates of Exhs. “A” and “L” (i.e when actually did they become operative) if at all, as regards the 1st respondent’s purported retirement or resignation and payment of the one month’s salary in lieu of notice. All the same, these questions do not longer become any more important following from the conclusion reached herein.
Learned appellant’s counsel has also contended that Regulations 26, 27, 28 and 29 of the Revised Local Government Staff Regulation 1986 have to be read together with Regulation 25 relied on by the tribunal in reaching its decision. He has submitted that the tribunal should found that a month’s salary paid in lieu of notice and accepted by the appellant’s employers was in order. Even at the risk of repeating myself, the point has been made herein and rightly in my view, that the issue of paying one month’s salary in lieu of notice was not the 1st respondent’s case before the tribunal as it was not pleaded. The whole exercise went to no issue.
Besides, learned counsel, with respect, appears to be improperly raising issues not taken before the tribunal and it is not allowed: See Uwegba v. A.-G. Bendel State (1986) 1 NWLR (Pt. 16) 303. Short of making the final order of this court on the main appeal, the foregoing has amply taken care of the two issues raised in the main appeal. I will return to it for the order of this court later in this judgment.
On the cross-appeal, before coming to examine the provision of paragraph 28(1) of Schedule 4 of Decree 36 of 1998 and its relative bearing if any on the issues of corrupt practices and non-compliance with the Decree taken in the cross-appellant’s brief and the findings of the tribunal thereon, I must have to state that I find it totally incorrect for his counsel to make the claim he did make in his brief thus:
“The tribunal at p. 92 of the record of proceedings conceded that the cancelled results in the 4 polling units totalled 1,420 votes and accreditation and voting outside the official lime of 8.00 a.m. – 2.30 p.m. with votes totalling 2,267 as per Exh. G – G60.”
Issue No.1 in the cross-appeal is premised on the tribunal’s wrongful reliance on the provision of paragraph 28(1) of Schedule 4 of the Decree to “allow the irregularities” already conceded by it. The tribunal as can be seen from the following passage of its judgment made no such concessions. It held:
“On the 2nd issue touching on irregularities, violence and offences against the Decree petitioner has dwelt extensively on accreditation and voting outside the official time of 8.00 a.m. to 2.30 p.m. He has also come out with figures of votes totalling 2, 267 which he extracted from Exhs. G-G 60. All we can point out here is that the Decree allows adjournment of polls in cases of riot etc. Paragraph 28(1) of Schedule 4 provides…
“With the uncontradicted evidence before us that election was conducted peacefully despite the late arrival of officials and material and that in some areas elections were postponed to the next-day with the consent and knowledge of all the parties and the fact that there was no election malpractice we hereby discountenance the submission of Airadion that accreditation of voters outside the official hours of 8.00 to 2.30 p.m. on 5/12/98 coupled with Sunday voting has affected the election in any way. We find no merit whatsoever on this ground …” (Italics mine for emphasis)
If I may repeat, the tribunal discountenanced the cross-appellant’s case on the issue of corrupt practices and non-compliance. These are solid findings of fact and which this court will not treat lightly nor interfere unless they are perverse and have occasioned a miscarriage of justice. These have not been shown. However, I agree with cross-appellant’s counsel that paragraph 28(1) of Schedule 4 of the Decree has no relevance in this regard as there is no evidence of interruption or obstruction by riot or violence. Having so concluded, there is no ground based on the record for supposing that the tribunal reached its conclusion on these issues by applying the provision of paragraph 28(1) of Schedule 4 of the Decree. Issue No. 1 must therefore fail. On Issue No. 2. It is the case of the cross-appellant that since he and the appellant were the only candidates that contested the election and since the appellant has been disqualified by the tribunal, it ought to have declared the cross-appellant as duly elected having secured the next majority of number of votes and he relies on paragraph 28(1) of Schedule 5 of Decree 36 of 1998 which provides thus:
“At the conclusion of the hearing, the Election Tribunal shall determine whether a person whose election or return is complained of or any other person, and what person, was validly returned or elected, or whether the election was void, and shall certify the determination to the Electoral Officer, Resident Commissioner on the Commission”.
The foregoing is clear and unambiguous and does not call for the assistance of any rules of statutory interpretation. From a line of decided cases that considered equivalent provisions as the instant one – where a person is disqualified after being elected naturally the votes cast for him at the election would not count for any purpose whatsoever. See Alhaji Mohammed v. Malama Ali & Anor. (1989) 1 NWLR (Pt.103) 349. However, the other candidate who opposed him at the election cannot be declared returned automatically without more and this is notwithstanding that he secured the next highest number of votes. He is required to further show that the electors were aware of the factors that gave rise to the disqualification. See Dashe v. Adamu Bawa (1989) 1 NEPLR 71 at 73.In the instant appeal the appellant as found by the tribunal did neither retire nor resign effectively from his employment 30 days to the election i.e 5/12/98. It was also found that he scored the highest number of votes.There is, however, no evidence that the electors had knowledge of these facts which disqualified 1st respondent before casting their votes.
Consequently, my answer to the two issues formulated in the cross-appellant’s brief is in the affirmative.
In sum, I do not find any merits in both the main appeal and the cross-appeal.
I accordingly dismiss the two appeals i.e. the main appeal and cross-appeal.
I make no order as to costs.
Other Citations: (1999)LCN/0610(CA)