ZAREWA & ANOR v. FALGORE & ORS
(2020)LCN/15831(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Monday, September 21, 2020
CA/KN/EPT/SHA/135/2020
Before Our Lordships:
Abubakar Datti Yahaya Justice of the Court of Appeal
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Amina Audi Wambai Justice of the Court of Appeal
Between
1. MAGAJI DAHIRU ZAREWA 2. ALL PROGRESSIVES CONGRESS (APC) APPELANT(S)
And
1. JIBRIN ISMA’IL FALGORE 2. PEOPLES DEMOCRATIC PARTY (PDP) 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION RESPONDENT(S)
RATIO:
CHARACTERISTICS OF A WELL DRAFTED ISSUE FOR DETERMINATION IN A BRIEF OF ARGUMENT
It is trite that the characteristics of a well drafted issue for determination in a brief of argument are precision, brevity, accuracy and clarity – Uwaifo Vs Uwaifo (2005) 3 NWLR (Pt 913) 479, Iloabachie Vs Iloabachie (2005) 13 NWLR (Pt 943) 695. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
POSITION OF LAW ON DISCONTINUANCE OF MATTER IN COURT
Where leave is required, it may be effected by an oral or formal application on notice and such leave is at the discretion of the trial Judge to grant or refuse – Giwa Vs John Holt Ltd (1930) 10 NLR 77, Obienu Vs Orizu (1972) 2 ECSLR 600, Izieme Vs Ndokwu (1976) NMLR 280, Eronini Vs Iheuko (1989) 2 NWLR (Pt 101) 46, Aghadiuno Vs Onubogu (1998) NWLR (Pt 548) 16, Messrs. NV Scheep Vs The MV ‘S.Araz’ (2000) 15 NWLR (Pt 691) 622, Babatunde Vs Pan Atlantic Shipping and Transport Agencies Ltd (2007) 13 NWLR (Pt 1050) 113, Ekudano Vs Keregbe (2008) 4 NWLR (Pt 1077) 422, Umeanadu Vs Attorney General of Anambra State (2008) 9 NWLR (Pt 1091) 175. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
POSITION OF LAW ON MOTION FILED OUT OF TIME
The law that is the counter affidavit and written address, having been filed out of time, remained inchoate, invalid and incompetent unless and until the motion for extension of time and for the deeming order was moved and granted by the High Court of Kano State – Ebhonu Vs Ebhonu (2017) LPELR 42416(CA), Nna Vs Ajuzieogu (2018) LPELR 44179(CA), Amadu Vs Imma (2018) LPELR 44927(CA) and Chinda Vs INEC (2019) LPELR 47902(CA). HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
LEGAL EFFECT OF A NOTICE OF DISCONTINUANCE ONCE DULY AND VALIDLY FILED
It is settled law that a notice of discontinuance once duly and validly filed cannot be recalled as the suit ceases to exist the moment it is effectively discontinued, subject to payment of costs, and all that remains is for the trial Court to strike out the suit formally – Obienu Vs Orizu (1972) 2 ECSLR 606, The Vessel “Saint Roland” Vs Osinloye (1997) 4 NWLR (Pt 500) 387 and Ansa Vs Cross Lines Ltd (2005) 14 NWLR (Pt 946) 645. In Efet Vs INEC (2011) 7 NWLR (Pt 1247) 423, the Supreme Court made the point thus:
“Withdrawal or discontinuance of an action connotes the termination or removal of that action from the cause list of that Court. It exists no more before that Court. It has slumped down, fainted and ultimately died, only waiting for resurrection where there will be one.” HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
WHAT CONSTITUTE AN ABUSE OF COURT PROCESS
The law is that what constitutes an abuse of process is not the commencement of another suit with similar reliefs, on similar grounds and against the same parties during the pendency of an earlier suit, but the commencement of the second suit with the intention of prosecuting both suits simultaneously or concurrently. Thus, the Courts have held that where the earlier suit is discontinued, even if this was done after the commencement of the second suit, there is no abuse of process – Ikine Vs Edjerode (1996) 2 NWLR (Pt 431) 468, The M.V. “S. Araz” Vs Scheep (1996) 5 NWLR (Pt 447) 204 and Ikine Vs Edjerode (2001) 18 NWLR (Pt 745) 466. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
POSITION OF LAW ON FRONTLOADING OF DOCUMENTS
The more predominant opinion of this Court on the point, however, is that which holds that in none of the provisions mandating frontloading of documentary evidence was it stated that documents not so frontloaded will not be admissible in evidence and that, thus, once the facts of the documents are clearly pleaded and the documents are listed in the list of documents to be relied on and they are relevant and in admissible form, it would be wrong for a trial Tribunal to refuse to admit them in evidence. This opinion was expressed in the cases of Chime Vs Egwuonwu (2008) 2 LRECN 575, Chime Vs Ezea (2008) 2 LRECN 673, Olaniyan Vs Oyewole (2008) 5 NWLR (Pt 1079) 114, Lasun Vs Awoyemi (2009) 16 NWLR (Pt 1168) 513, Lawal Vs Magaji (2009) LPELR 4427(CA), Chime Vs Onyia (2009) 2 NWLR (Pt. 1124), Omidiran Vs Patricia (2010) LPELR 9160 (CA), Ibrahim Vs Ogunleye (2010) LPELR 4556 (CA), Ogboru Vs Uduaghan (2011) 2 NWLR (Pt 1232) 538, Dahiru Vs Kigbu (2019) LPELR 48783(CA). HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
ADMISSIBILITY OF DOCUMENTARY EVIDENCE IN ELECTION MATTERS
Explaining the rationale for this predominant opinion, this Court in its judgment in the case of Orji Vs INEC (2020) LPELR 49525(CA) delivered on the 9th of January, 2020, stated thus:
“Learned Counsel for the Appellants has argued that Exhibits R3-R10 were inadmissible because they were not frontloaded in line with the provisions of Paragraph 12(3) of the First Schedule to the Electoral Act. However, even though the word shall is used in the provisions, the omission to accompany a Reply with copies of documentary evidence, does not render documents which have been clearly, specifically and distinctly pleaded and to be relied on by a Respondent in the Reply, inadmissible in evidence. The established position of the law on admissibility of documents in evidence is, generally, that such documents must be pleaded by the party seeking to make use of them as evidence at a trial. This is an additional practice requirement for admissibility of documents in evidence after the statutory conditions set out in Sections 1 and 83 of the Evidence Act, 2011, which applies to Election Petitions. This Court, in the case of A.N.P.P. Vs Usman (2008) LPELR-3786, citing Ojukwu Vs Obasanjo (2004) 1 EPR, 626 @ 673, restated the law that:-
‘Documentary evidence is one of the vital methods by which the Petitioner is required to substantiate his allegation in this petition. The general rule that governs the admissibility of documentary evidence is applicable to documents to be tendered in Election Petitions.’
In Okonji Vs Njokanma (1999) 14 NWLR (Pt. 638) 250, (1999) 12 SCNJ 259 @ 275, Achike, JSC, laid down the main criteria governing the admissibility of a document in evidence as follows: –
(a) Is the document pleaded
(b) Is it relevant to the inquiry being tried by the Court; and
(c) Is it admissible in law …
The underlining principle in the requirements of the law on the admissibility of a document intended to be used as evidence in judicial proceedings, is to give sufficient notice and adequate opportunity to the other party to a case to know the nature of the evidence to be tendered by his opponent to enable him prepare to meet the case against him. It is to avoid the element of surprise by ambush in the trial of the case. This is the purport of the provision of Paragraph 12(3) of the First Schedule to the Electoral Act, 2010 in the requirements that copies of documentary evidence shall accompany the Reply of a Respondent to an election petition. It is primarily meant to enable a Petitioner know the nature of documentary evidence to be relied on by the Respondent in defence of the Petition brought by the Petitioner so as to enable him react or respond to the defence, as may be necessary…
The specific pleading of document by title, description or names, to be relied on by a Respondent in his Reply to the petition which was duly served on a Petitioner in line with the requirements of the provisions of the First Schedule to the Electoral Act, substantially and adequately meets and satisfies the primary purport or essence of the provisions of Paragraph 12(3) of the Schedule, for the purpose of the admissibility of such documents.
In the circumstances, the Tribunal is right on the admissibility of Exhibits R3-R10 and that the documents are admissible in law, relying on Chime v. Onyia (2009) 2 NWLR (Pt. 1124).” HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
POSITION OF LAW ON INTERPRETATION OF FRONTLOADING OF DOCUMENTARY EVIDENCE IN AN ELECTION
This predominant opinion of this Court is in tandem with the position that has been maintained by the Courts over the years that a provision of the Rules of Court should never be interpreted in a manner that will prevent the Court from doing substantial justice between the parties in the dispute submitted for adjudication – State Vs Gwonto (1983) 1 SCNLR 142, Marine Management Associates Inc Vs National Maritime Authority (2012) 18 NWLR (Pt 1333) 506, Uwazuruike Vs Attorney General, Federation (2013) 10 NWLR (Pt 1361) 105, Garan Vs Olomu (2013) 11 NWLR (Pt 1365) 227, Ikechukwu Vs Nwoye (2014) 4 NWLR (Pt 1397) 227; Adama Vs State (2018) 3 NWLR (Pt 1605) 94, Saliu Vs Federal Republic of Nigeria(2018) 3 NWLR (Pt 1605) 161. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
POSITION OF LAW ON THE INTERPRETATION OF THE DOCTRINE OF SUBSTANTIVE JUSTICE IN GOVERNING ELECTION TRIBUNALS
The fact that the doctrine of substantial justice should govern Election Tribunals in the interpretation of their Rules of Procedure was re-emphasized by the Supreme Court in Abubakar Vs Yar’Adua(2008) 4 NWLR (Pt 1078) 465 where Niki Tobi, JSC stated at pages 511 to 512 thus:
“Rules of Court are meant to be obeyed. Of course, that is why they are made. There should be no argument about that. But there is an important qualification or caveat and it is that their disobedience cannot or should not be slavish to point that the justice in the case is destroyed or thrown overboard. The greatest barometer, as far as the public is concerned, is whether at the end of the litigation process, justice has been done to the parties. Therefore, if in the course of doing justice some harm is done to some procedural rule which hurts the rule, such as paragraph 7 of the Practice Direction, the Court should be happy that it took that line of action in pursuance of justice. This Court cannot myopically or blindly follow the Practice Directions and fall into a mirage and get physically and mentally absorbed or lost. Let that day no come.
…full opportunity should be given to parties in the interest of justice without due regard to technicalities. Gone are the days when Courts of law were only concerned with doing technical and abstract justice based on arid legalism. We are now in days when Courts of law do substantial justice in the light of the prevailing circumstances of the case. It is my hope that the days of the Courts doing technical justice will not surface again.
And what is more, election petitions are sui generis and should be treated in that domain or realm. If Courts of law are bound to do substantial justice in ordinary civil matters, how much less in an election petition …” HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
POSITION OF LAW WHERE NO COUNTERCLAIM IS FILED
The rule of practice is that where no counterclaim is filed, a reply is generally unnecessary if its sole object is to deny allegations contained in the statement of defence. The proper function of a reply is to raise, in answer to the defence, any matters which must be specifically pleaded, which make the defence not maintainable or which otherwise might take the defence by surprise or which raise issue of fact not arising out of the defence or, where because of the defence filed, the plaintiff proposes to lead evidence in rebuttal or to raise issues of fact not arising out of the two previous pleadings – Bakare Vs Ibrahim (1973) 6 SC 205, Akeredolu Vs Akinremi (1989) 3 NWLR (Pt 108) 164, Obot Vs Central Bank of Nigeria (1993) 8 NWLR (Pt 310) 140, Dabup Vs Kolo (1993) 9 NWLR (Pt 317) 254, Ishola Vs Societe Generale Bank (Nig) Ltd (1997) 2 NWLR (Pt 448) 405, Unity Bank Plc Vs Bouari (2008) 7 NWLR (Pt 1086) 372. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
WHEN NO REPLY IS FILED TO CLAIMANTS CLAIM
In fact, the law is that where the facts pleaded in a statement of defence or reply to a petition are not such that have been taken care of by the averments in a statement of claim or petition, and a plaintiff or petitioner fails to file a reply to contest those facts, the facts will be treated as unchallenged and deemed to have been admitted – Achilihu Vs Anyatonwu (2013) 12 NWLR (Pt 1368) 256, Mabamije Vs Otto (2016) 13 NWLR (Pt 1529) 171. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
WHEN A LETTER OF RESIGNATION OF AN EMPLOYEE TAKES EFFECT
The law is settled that a letter of resignation of an employee takes effect from the date it is delivered to and received by an employer or its agent – Benson Vs Onitiri (1960) SCNLR 177, Yesufu Vs Governor of Edo State (2001) 13 NWLR (Pt 731) 517, West African Examination Council Vs Oshionebo (2006) 12 NWLR (Pt 994) 258. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This judgment is in respect of the appeal of the Appellants and the cross appeal of the first and second Respondents against the rulings and judgment of the National and State Houses of Assembly Election Petition Tribunal sitting in Kano State delivered in Petition No EPT/KN/SHA/01/2020 by the Chairman and the Honorable Members of the Tribunal on the 24th of July, 2020.
The petition leading up to the appeals arose out of the re-run election conducted by the third Respondent on the 25th of January, 2020 for the seat of Member of Kano State House of Assembly representing Rogo Constituency of Kano State. The first Appellant was the candidate of the second Appellant in the said re-run election while the first Respondent was the candidate of the second Respondent. At the conclusion of the re-run election, the first Appellant was declared as the elected Member of Kano State House of Assembly representing Rogo Constituency with a total of 26,730 votes as against the first Respondent, his closest rival, with 26,362 votes. By a petition filed on the 15th of February, 2020, the first and second Respondents challenged the declaration and return of the first Appellant on the following grounds:
i. That the first Appellant whose election was questioned was at the time of the election, not qualified to contest the election.
ii. That the election was invalid by reason of corrupt practices or noncompliance with the provisions of the Electoral Act.
iii. That the first Appellant was not duly elected by majority of lawful votes cast at the election.
The third Respondent herein, the Independent National Electoral Commission, as the first respondent to the petition, filed a Reply to the petition on the 10th of March, 2020 and to which the first and second Respondents herein, as petitioners, filed a Reply on the 16th of March, 2020. The first Appellant, as the third respondent to the petition filed his Reply to the petition on 14th of March, 2020 and to which the first and second Respondents herein, as petitioners, filed a Reply on the 23rd of March, 2020. The records of appeal show that the first and second Respondents abandoned the second and third grounds of the petition in the course of trial in the lower Tribunal, and this much was found by the lower Tribunal in the judgment. The petition was contested only on the first ground, i.e. the non-qualification of the first Appellant to contest the election at the time of the re-run election.
The case of the first and second Respondents on the first ground of the petition was that as 25th of January, 2020 when the re-run election took place, the first Appellant was the Director General of Kano State Drugs and Consumables Supply Agency, an agency created under the Kano State Drugs and Medical Consumables Supply Agency Law of 2009. It was their case that the office of Director General of Kano State Drugs and Consumables Supply Agency occupied by the first Appellant came with the definition of ‘public service’ within the contemplation of Section 318 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). It was their case that the first Appellant did not resign from the office as the time of the re-run election and that he continued to collect the salary and emoluments attached to the office and they pleaded the pay slips of the first Appellant for the months of November and December 2019 in proof of the assertion. They pleaded the several attempts they made via several letters to obtain the certified true copies of the letter of appointment of the first Appellant and of the pay-slips from the relevant government offices and that all their attempts were rebuffed.
In his response, the first Appellant averred that he resigned his appointment as the Director General of Kano State Drugs and Consumables Supply Agency with effect from the 23rd of December, 2019 by a letter dated the 20th of December, 2019 addressed to the Secretary to the Kano State Government and delivered on the same 20th of December, 2019. It was his case that by a letter dated the 30th of December, 2019, the Secretary to the Kano State Government approved his resignation with effect from the 23rd of December, 2019 and that the Secretary to the Kano State Government also addressed a letter dated the same 30th of December, 2019 to the Permanent Secretary, Salary and Wages Directorate under the office of the Head of Service notifying them of his resignation and directing that his salary should be stopped with effect from the 1st of January, 2020. It was his case that he ceased to be the Director General of Kano State Drugs and Consumables Supply Agency with effect from 23rd of December, 2019 and was thus qualified to contest the re-run election of 25th of January, 2020 and he pleaded the letters as documents he will rely on at the trial and he listed them in his list of documents.
In their Reply to the Reply of the first Appellant, the first and second Respondents reiterated their assertion that the first Appellant was the Director General of Kano State Drugs and Consumables Supply Agency as at 25th of January, 2020 and averred that the first Appellant received the salary and emoluments for the office in January 2020 and that he withdrew the money and spent it for his personal use and did not return same. It was their case that they would rely on the statement of the first Appellant’s GT Bank Account and that the purported resignation letter was concocted and fabricated.
The records show that the first Appellant filed a notice of motion before the lower Tribunal on the 31st of March, 2020 praying for the striking out of the first ground of the petition, i.e. the ground challenging the qualification of the first Appellant to contest the re-run election, on the basis that it amounted to an abuse of process. The first Appellant contended on the motion that the issue of qualification of a candidate to contest an election was both a pre-election and a post election matter and in respect of which both the High Court and the Election Tribunal have jurisdiction to entertain and determine. It was his case on the motion that the first Respondent had filed an Originating Summons in the High Court of Kano State on the 14th of January, 2020 challenging the qualification of the first Appellant to contest the re-run election of the ground of his employment as Director General of Kano State Drugs and Consumables Supply Agency. It was his case that upon the service of the Originating Summons on him, he caused to be filed a motion on notice dated the 14th of February, 2020 praying for extension of time to file a counter affidavit and a written address in response thereto. It was his case that first Respondent filed a motion dated the 11th of March, 2020 seeking to amend the Origination Summons and that this action was still pending as at the time the first and second Respondents filed the present petition raising the same issue of qualification of the first Appellant to contest the re-run election. A copy each of the Originating Summons, motion for extension of time to file counter affidavit and motion to amend the Originating Summons were attached as exhibits to the application. Counsel to the first Appellant filed a written address on the motion.
The first and second Respondents filed a counter affidavit to the motion of the first Appellant on the 9th of April, 2020 wherein they contended that the Originating Summons was yet to be fixed for hearing and that the first Appellant had not joined issues on the Originating Summons as his motion for extension of time to file a counter affidavit and written address had not moved and that the motion to amend the Originating Summons had also not been heard. It was their case that the first Respondent caused a notice of discontinuance to be filed on the 16th of March, 2020 terminating the case on the Originating Summons and that the action was no longer pending and did not thus constitute an abuse of process. A copy of the notice of discontinuance was attached to the counter affidavit. Counsel to the first and second Respondents filed a written address on the counter affidavit.
The records show that the first and second Respondents also filed a notice of motion before the lower Tribunal on the 14th of April, 2020 praying for an order disallowing the first Appellant from using and relying on the documents pleaded in his Reply to the petition and listed in the list of documents attached to the Reply on the ground that the first Appellant failed to accompany the Reply with copies of the said documents, contrary to the provisions of the Rules. Counsel to the first and second Respondents filed a written address in support of the application. Counsel to the first Appellant responded to the application by a written address filed on the 27th of April, 2020.
The records show that the lower Tribunal took arguments on the motion of the first Appellant filed on the 31st of March, 2020 and the motion of the first and second Respondents filed on the 14th of April, 2020 on the 30th of April, 2020 and it reserved its Rulings thereon till the conclusion of the hearing of the substantive petition.
The matter proceeded to trial on the substantive petition and in the course of which the first and second Respondents called witnesses and tendered documents in proof of their case on the non-qualification of the first Appellant to partake in the re-run election. Some of the documents tendered by the first and second Respondents were photocopy of the first Appellant’s letter of appointment as Director General of Kano State Drugs and Consumables Supply Agency, and photocopies of his pay slips for the months of November and December 2019. Counsel to the first Appellant objected to the admissibility of the documents and the lower Tribunal admitted the documents tentatively as Exhibits P15, P16 and P17 and reserved its ruling on the objection to the time of judgment in the matter.
The first Appellant too led evidence in proof of his case that he was qualified to participate in the re-run elections and he tendered three documents, his letter of resignation from the office of Director General of Kano State Drugs and Consumables Supply Agency dated the 20th of December, 2019, the letter from the office of the Secretary to Kano State Government dated 30th of December, 2019 approving the resignation and the letter dated the 30th of December, 2019 addressed by Secretary to the Kano State Government to the Head of Service, Kano State. Counsel to the first and second Respondents objected to the admissibility of the documents and the lower Tribunal admitted the documents tentatively as Exhibits R1, R2 and R3 and reserved its ruling on the objection to the time of judgment in the matter.
At the conclusion of trial of the substantive petition and after the parties had rendered their final addresses, the lower Tribunal delivered judgment and in which it considered the motions filed by the parties and their objections to the admissibility of documents. The lower Court held in the judgment that the provision of the Rules governing procedure before the Election Tribunal directing parties to accompany their processes with copies of the documentary evidence sought to be relied on at trial was mandatory and failure of the first Appellant to accompany his Reply with copies of the document he pleaded and listed in his list of documents was wrongful. The lower Tribunal granted the motion of the first and second Respondents filed on the 14th of April, 2020 praying that the first Appellant be disallowed from relying on those documents and it expunged the three documents tendered by the first Appellant and marked as Exhibits R1, R2 and R3.
The lower Tribunal further held that the notice of discontinuance filed by the first Respondent effectively terminated the matter commenced by way of Originating Summons before the High Court of Kano State challenging the qualification of the first Appellant to partake in the re-run election. The lower Tribunal held that the first ground of the petition challenging the qualification of the first Appellant to partake in the re-run election did not thus amount to an abuse of process and it dismissed the motion of the first Appellant filed on the 31st of March, 2020 praying for an order striking out the first ground of the petition.
The lower Tribunal considered the petition on the merits and Counsel to the first Appellant contended in the final written address that the issue of the payment of January salary for the office of Director General of Kano State Drugs and Consumables Supply Agency to the first Appellant raised by the first and second Respondents in their Reply to the Reply of the first Appellant to the petition was a new issue and to which the first Appellant had no opportunity of replying to and should be discountenanced. The lower Tribunal held that issue of payment of January salary to the first Appellant was not a new issue. It expunged the photocopy of the first Appellant’s letter of appointment as Director General of Kano State Drugs and Consumables Supply Agency, and the photocopies of the pay slips of the first Appellant for the months of November and December 2019 tendered by the first and second Respondents as Exhibits P15, P16 and P17 on ground that they were photocopies of public documents and not certified true copies.
The lower Tribunal found that the case made out by the first and second Respondents in the evidence on the non-qualification of the first Appellant to partake in the re-run election preponderated over that of the first Appellant and it held that the first Appellant was not qualified to stand as candidate in the election and it ordered the first Appellant to vacate the seat of the Rogo Constituency in the Kano State House of Assembly. It declared the first Respondent the winner of the rerun election and ordered the third Respondent to issue him a certificate of return and the Speaker of the Kano State House of Assembly to swear him in as the duly elected Member representing Rogo Constituency of Kano State.
The Appellants were dissatisfied with the judgment and they caused their Counsel to file a notice of appeal dated the 1st of August, 2020 and containing nine grounds of appeal against it. The first and second Respondents were dissatisfied with the portion of the judgment expunging the documents they tendered as Exhibits P15, P16 and P17 and they caused their Counsel to file a notice of cross appeal dated the 13th of August, 2020 and containing two grounds of appeal against it. The appeal and the cross appeal shall be considered separately.
The Appeal
In arguing the appeal before this Court, Counsel to the Appellants filed a brief of arguments dated the 11th of August, 2020 on the 17th of August, 2020. Counsel to the first and second Respondents, in response, filed a brief of arguments dated the 20th of August, 2020 on the 21st of August, 2020 and to which the Appellants filed a Reply brief dated the 23rd of August, 2020 on the same date. The third Respondent filed a brief of arguments dated the 20th of August, 2020 on the 21st of August, 2020. Counsel to the first and second Respondents filed an additional list of authorities on the 8th of September, 2020. At the hearing of the appeal, Counsel to the parties relied on and adopted their respective briefs of arguments as their oral submissions in the appeal.
Counsel to the Appellants distilled five issues for determination in the appeal and these were:
i. Whether or not the learned trial Tribunal Judges were not wrong in refusing to strike out Ground 1 of the Petition for being an abuse of Court process.
ii. Whether or not the learned trial Tribunal Judges were not wrong in expunging the first Appellant’s documents pleaded, listed and tendered in evidence at Exhibits R1, R2 and R3 respectively from its record on the ground that they were not attached to his Reply.
iii. Whether or not the learned trial Tribunal Judges were not wrong when they held that the issue of payment of salary of January 2020 was not a fresh issue even though same was introduced for the first time by the first and second Respondents in their Reply to the first Appellant’s Reply thereby foreclosing the first Appellant’s right to respond to this particular issue.
iv. Whether or not the learned trial Tribunal Judges were not wrong in holding that the first and second Respondents established their claim that as at January 2020, the first Appellant was still the Director General of Kano State Drugs and Consumables Supply Agency and therefore not qualified to contest the re-run election held on 25th of January, 2020.
v. Whether or not the learned trial Tribunal Judges were not wrong in nullifying the election of the first Appellant and declaring the first Appellant as the winner of the re-run election held on the 25th of January, 2020, in disregard of Section 140(2) of the Electoral Act, 2010 (as amended) as well as decided authorities on the specific point.
Counsel to the first and second Respondents conceded that there are five issues for determination in the appeal and he agreed with the context of the five issues formulated by Counsel to the Appellants, but decided to reformulate them in his own words. The Court will not bother reproducing the reformulated issues for determination.
Counsel to the third Respondent, on his own part, formulated one issue for determination in the appeal and it was:
Whether the first Appellant was qualified to contest the re-run election for Member representing Rogo in the Kano State House of Assembly held on 25th January, 2020?
This appeal is the Appellants’ and they best understand their grievances against the judgment of the lower Tribunal and are thus in the prime position to formulate the issues for determination in the appeal. This Court will adopt the five issues for determination formulated by Counsel to the Appellants in context, but not in form because, aside from the first issue for determination, the issues for determination are narratives and they lack all the distinctive qualities of a well-crafted issue for determination. It is trite that the characteristics of a well drafted issue for determination in a brief of argument are precision, brevity, accuracy and clarity – Uwaifo Vs Uwaifo (2005) 3 NWLR (Pt 913) 479, Iloabachie Vs Iloabachie (2005) 13 NWLR (Pt 943) 695. An issue for determination must be concise and devoid of irrelevant complexities and frivolities and must be such as to ease the comprehension of matters to be adjudicated upon by the Court – Ezeugo Vs State (2013) 9 NWLR (Pt 1360) 508. The issues for determination as formulated by Counsel to the Appellant are not concise, precise and/or brief.
The five issues for determination are reformulated thus:
i. Whether the learned trial Tribunal Judges were not wrong in refusing to strike out Ground 1 of the Petition for being an abuse of Court process.
ii. Whether the learned trial Tribunal Judges were not wrong in expunging the documents tendered by the first Appellant as Exhibits R1, R2 and R3.
iii. Whether the learned trial Tribunal Judges were not wrong when they held that the fact of the payment of salary of January 2020 to the first Appellant as the Director General of Kano State Drugs and Consumables Supply Agency averred by the first and second Respondents in their Reply to the first Appellant’s Reply was not a fresh issue.
iv. Whether, on the strength of the pleadings and evidence led on record, the learned trial Tribunal Judges were not wrong in finding that the first and second Respondents made out a credible case of non-qualification of the first Appellant to contest the re-run election held on 25th of January, 2020.
v. Whether the learned trial Tribunal Judges were not wrong in nullifying the election of the first Appellant and in declaring the first Appellant as the winner of the re-run election held on the 25th of January, 2020.
The appeal will be considered under these five issues for determination and the issues will be resolved seriatim.
Issue One
Whether the learned trial Tribunal Judges were not wrong in refusing to strike out Ground 1 of the Petition for being an abuse of Court process?
In arguing the first issue for determination, Counsel to the Appellants reiterated the facts canvassed on the motion of the first Appellant praying to strike out the first ground of the petition before the lower Tribunal and he referred to the cases of Onyebuchi Vs INEC (2002) FWLR (Pt 103) 453 and Dingyadi Vs INEC (No. 3) (2011) All FWLR (Pt 573) 1842 to emphasize the seriousness and effect of an abuse of Court process. Counsel stated that the Petition in the lower Tribunal was filed after the filing of the Originating Summons in the High Court by the first Respondent challenging the qualification of the first Appellant to contest the re-run election, the same issue canvassed in first ground of the Petition, and that the law does not allow an individual or group of individuals to pursue its perceived rights and claims through multiple actions in different Courts and that doing so amounts to making a mockery of the law and amounts to an abuse of the processes of the Court and he referred to several cases law authorities including Mabamije Vs Otto (2016) All FWLR (Pt 828) 883, Allanah Vs Kpolokwu (2016) All FWLR (Pt 830) 1207.
On what constitutes abuse of process, Counsel referred to and quoted from the cases of Chindo Vs Isah (2011) 4 NWLR (Pt 1236) 27, Dingyadi Vs INEC (No. 2) (2010) 18 NWLR (Pt 1224) 154 and O.S.S.I.E.C. Vs NCP (2013) 9 NWLR (Pt 1360) 451 and stated that, on the basis of the case law authorities, the raising of the issue of non-qualification by the first and second Respondents in the Petition in the lower Tribunal amounted to a multiplicity of action and that since the Petition was the latter action in time, it is the raising of the issue in its first ground that amounted to an abuse of process and ought to be struck out. Counsel stated that the reliance placed by the lower Tribunal on the Notice of Discontinuance filed by the first Respondent in the action before the High Court of Kano State to hold that the action had been terminated was wrong as the lower Tribunal did not consider the import and purport of the provisions of Order 23 Rule 1(3) of the High Court of Kano State Rules 2014 which provides that where a defence has been filed in a suit, such a suit cannot be withdrawn automatically except with the leave of Court.
Counsel stated that since it has been established that issues had been joined by the parties in the suit before the High Court of Kano State, the matter could be not determined without a prior application for leave having been made and granted by that Court. Counsel stated that where the provisions of a statute and/or rules of Court, which is a specie of subsidiary legislation, are clear and simple, they should be given their plain and unambiguous meaning and he referred to the cases of Nobis- Elendu Vs INEC (2015) 16 NWLR (Pt 1485) 197 and Ardo Vs Nyako (2014) 10 NWLR (Pt 1416) 591, amongst others. Counsel stated that the Notice of Discontinuance filed was not sufficient proof that the said suit had been withdrawn and struck out and that the only valid proof is an enrolled order of the High Court of Kano State granting leave to the first Respondent to withdraw the suit and then striking out the suit and he referred to the case of Ugwuoke Vs FRSC (2019) LPELR 46611.
Counsel stated that the lower Tribunal failed to appreciate that the mere discontinuance of the action in the High Court by a Notice of Discontinuance after the filing of the Petition did not cure the defect of abuse of process and that, in the circumstances of the matter, it is the subsequent suit, the election petition, that amounted to an abuse of Court process and he referred to and quoted from the cases of Dingyadi Vs INEC (2010) 48 WRN 1 and Ikenya Vs Bwacha (2011) LPELR 19747(CA). Counsel invited the Court to exercise its powers under Section 15 of the Court of Appeal Act to do what the lower Tribunal ought to have done, strike out the first ground of the Petition of the first and second Respondents. Counsel urged the Court to resolve the first issue for determination in favour of the Appellants.
In response, Counsel to the first and second Respondents reiterated the facts on the application and emphasized that what the first Appellant filed in the case before the High Court of Kano State was a motion seeking for extension of time to file a counter affidavit and a written address to the Originating Summons and that the motion was yet to be moved and that as such it was incorrect that the parties had joined issues on the Originating Summons. Counsel stated that the Originating Summons had not been fixed for hearing by the High Court of Kano State and that in such circumstances, upon the filing of the Notice of Discontinuance, the action became terminated, defunct, ceased to exist, was lifeless and had rested in peace and was buried, without the need for any further action by the parties and he referred to and quoted from several case law authorities including Tailor Vs Balogun (2012) LPELR 19673(CA), PDP Vs Dayo (2013) LPELR 20794(CA), amongst others.
Counsel stated that from the cases cited by Counsel to the Appellants, an abuse of process is said to occur where a party pursues two similar actions simultaneously, concurrently and/or at the same time and this was not what happened in the present case as the first Respondent discontinued the case commenced by Originating Summons before the High Court of Kano State. Counsel stated that the reference made to the provisions of Order 23 Rule 1(3) of the High Court of Kano State Rules was inapposite as the provisions of the Order would only come into effect where the parties have joined issues in a case. Counsel stated that in the present case, the first Appellant had only filed a motion for extension of time to file his response to the Originating Summons and that until the extension of time was granted the counter affidavit and written address filed by the first Appellant in that case were not valid processes and he referred to the case of Ochegbudu Vs Agbala (2014) LPELR 22650(CA). Counsel urged the Court to resolve the first issue for determination in favour of the first and second Respondents.
Counsel to the third Respondent did not proffer any arguments on the first issue for determination.
In deliberating on the motion of the first Appellant seeking for the striking out of the first ground of the Petition for amounting to an abuse of process, the lower Tribunal stated in the judgment thus:
“In the instant case, the 3rd Respondent did not file any further and better affidavit disputing Exhibit ‘A’, the Notice of Discontinuance filed by the Petitioners before the High Court of Justice, Kano, or that after the filing of Exhibit ‘A’ the case before the Kano High Court still proceeded. In the absence of anything contrary to Exhibit ‘A’, we are of the considered view that the said Exhibit is a prima facie evidence that the case of the Petitioners challenging the qualification of the 3rd Respondent to contest the re-run election had been discontinued before the High Court of Justice Kano and we so hold. Having so held, this Election Tribunal is in the circumstance seised with the requisite jurisdiction to hear the determine ground one of the petition … The 3rd Respondent’s application is therefore refused.”
The questions of whether or not the first Respondent required leave of the High Court of Kano State to discontinue the action before it and the purport of Order 23 Rule 1(3) of the High Court of Kano State Rules were not raised or canvassed before the lower Tribunal and the lower Tribunal did not pronounce on it. The Appellants sought for and obtained the leave of this Court to raise them as a new issue in this appeal and this Court will commence its consideration of the first issue for determination in the appeal from those questions.
Discontinuance of actions in the High Court of Kano State is governed by the provisions of Order 23 of the High Court of Kano State Civil Procedure Rules of 2014. The provisions of the Order 23 relevant to the present discourse are Order 23 Rules 1(1) and 1(3). They read thus:
“Rule 1(1): A Plaintiff may at any time before the receipt of the defence or after the receipt thereof, before taking any other proceeding in the action, by notice in writing duly filed and served, wholly discontinue his claim against all or any of the defendants or withdraw any part or parts of his claim…
Rule 1(3): Where a defence has been filed, the Plaintiff may with leave of a Judge discontinue the proceedings or any part thereof on such terms and conditions as the Judge may order.”
These provisions, and provisions similar to them, have been subject of interpretation in a long line of decided cases and the consensus is that discontinuance of a suit may or may not be with the leave of Court depending entirely on the stage of the proceedings the suit is being discontinued. A plaintiff may without leave of Court, discontinue a suit against all or any of the defendants or withdraw any part of his claim even after the receipt of the defence, but before the date fixed for the hearing of the suit. However, from and beyond the stage after the date fixed for the hearing of the suit, the plaintiff may discontinue only with the leave of Court and subject to conditions that may be imposed by the Court. Where leave is required, it may be effected by an oral or formal application on notice and such leave is at the discretion of the trial Judge to grant or refuse – Giwa Vs John Holt Ltd (1930) 10 NLR 77, Obienu Vs Orizu (1972) 2 ECSLR 600, Izieme Vs Ndokwu (1976) NMLR 280, Eronini Vs Iheuko (1989) 2 NWLR (Pt 101) 46, Aghadiuno Vs Onubogu (1998) NWLR (Pt 548) 16, Messrs. NV Scheep Vs The MV ‘S.Araz’ (2000) 15 NWLR (Pt 691) 622, Babatunde Vs Pan Atlantic Shipping and Transport Agencies Ltd (2007) 13 NWLR (Pt 1050) 113, Ekudano Vs Keregbe (2008) 4 NWLR (Pt 1077) 422, Umeanadu Vs Attorney General of Anambra State (2008) 9 NWLR (Pt 1091) 175.
In the present case, and as stated in the earlier part of this judgment, sequel to the filing of the Originating Summons in the High Court of Kano State by the first Respondent, the first Appellant filed a motion seeking for an extension of time to file his counter affidavit and written address in response and for an order deeming the processes as properly filed and served. The counter affidavit and written address were attached as exhibits to the motion. The law that is the counter affidavit and written address, having been filed out of time, remained inchoate, invalid and incompetent unless and until the motion for extension of time and for the deeming order was moved and granted by the High Court of Kano State – Ebhonu Vs Ebhonu (2017) LPELR 42416(CA), Nna Vs Ajuzieogu (2018) LPELR 44179(CA), Amadu Vs Imma (2018) LPELR 44927(CA) and Chinda Vs INEC (2019) LPELR 47902(CA). It is an agreed fact amongst the parties that the motion for extension of time was never moved. Thus, contrary to the assertion of Counsel to the Appellants, the first Appellant did not file and/or serve any legally viable and recognizable defence to the Originating Summons at any point in time. The parties did not join issues on the Originating Summons.
Further and more importantly, it is also an agreed fact amongst the parties that the High Court of Kano did not at any time fix a date for the hearing of the Originating Summons and that the matter did not at any time come up for hearing before the High Court. Thus, by the provisions of Order 23 of the High Court of Kano State Civil Procedure Rules of 2014, the first Respondent did not require the leave of the High Court of Kano State to discontinue the action. The Appellants did not contest that the first Respondent filed a Notice of Discontinuance dated the 16th of March, 2020 before the High Court of Kano State discontinuing the case commenced by Originating Summons; the notice was attached and referred to as Exhibit A in these proceedings. It is settled law that a notice of discontinuance once duly and validly filed cannot be recalled as the suit ceases to exist the moment it is effectively discontinued, subject to payment of costs, and all that remains is for the trial Court to strike out the suit formally – Obienu Vs Orizu (1972) 2 ECSLR 606, The Vessel “Saint Roland” Vs Osinloye (1997) 4 NWLR (Pt 500) 387 and Ansa Vs Cross Lines Ltd (2005) 14 NWLR (Pt 946) 645. In Efet Vs INEC (2011) 7 NWLR (Pt 1247) 423, the Supreme Court made the point thus:
“Withdrawal or discontinuance of an action connotes the termination or removal of that action from the cause list of that Court. It exists no more before that Court. It has slumped down, fainted and ultimately died, only waiting for resurrection where there will be one.”
In other words, the action before the High Court of Kano State ceased effectively to possess any life and it became moribund and dead on the 16th of March, 2020 when the first Respondent filed the Notice of Discontinuance.
The Petition leading up to this appeal was filed on the 15th of February, 2020, before the filing of the Notice of Discontinuance discontinuing the action before the High Court of Kano State on the 16th of March, 2020. Counsel to the Appellants predicated the bulk of his arguments on whether or not the first ground of the Petition amounted to an abuse of process on the fact that the action before the High Court of Kano State was still in existence as at the time of the filing of this Petition. Counsel proceeded from this understanding to contend that the mere fact of filing this Petition and the raising of an issue on non-qualification of the first Appellant to partake in the re-run election therein at a time when an action raising a similar issue was pending before the High Court of Kano State constituted the issue so raised in the Petition into an abuse of process. However, even the case law authorities relied upon by Counsel in arguing the point did not support this understanding. The law is that what constitutes an abuse of process is not the commencement of another suit with similar reliefs, on similar grounds and against the same parties during the pendency of an earlier suit, but the commencement of the second suit with the intention of prosecuting both suits simultaneously or concurrently. Thus, the Courts have held that where the earlier suit is discontinued, even if this was done after the commencement of the second suit, there is no abuse of process – Ikine Vs Edjerode (1996) 2 NWLR (Pt 431) 468, The M.V. “S. Araz” Vs Scheep (1996) 5 NWLR (Pt 447) 204 and Ikine Vs Edjerode (2001) 18 NWLR (Pt 745) 466.
The first ground of the Petition of the first and second Respondents did not constitute an abuse of process, in the circumstances of this case, and the finding of the lower Tribunal on the point was correct and on firm ground. The first issue for determination in the appeal is resolved against the Appellants.
Issue Two
Whether the learned trial Tribunal Judges were not wrong in expunging the documents tendered by the first Appellant as Exhibits R1, R2 and R3?
In arguing this issue for determination, Counsel to the Appellants noted that the three documents expunged by the lower Tribunal were the first Appellant’s letter of resignation from the office of Director General of Kano State Drugs and Consumables Supply Agency dated the 20th of December, 2019, the letter from the office of the Secretary to Kano State Government dated 30th of December, 2019 approving the resignation and the letter dated the 30th of December, 2019 addressed by Secretary to the Kano State Government to the Head of Service, Kano State, which were tentatively admitted as Exhibits R1, R2 and R3. Counsel reiterated that the documents were expunged for the mere reason that copies thereof were not filed along with the Reply of the first Appellant. Counsel stated that the facts of the documents were copiously pleaded in the Reply and the documents were listed on the List of Documents to be relied on at trial and that the first and second Respondents were aware that the first Appellant would rely on the documents at trial and of the nature of their contents and were not taken by surprise.
Counsel stated that the lower Tribunal did not allow itself to be guided by the decision of this Court in the case of Chime Vs Egwuonwu (2008) LRECN 575 where it was held that neither the Electoral Act, including the Schedule thereto, nor the Evidence Act made any provision to the effect that if a document is not frontloaded, it cannot be tendered in evidence and he quoted copiously from the decision. Counsel stated that the documents were relevant, were pleaded and were listed and that the lower Tribunal also failed to take cognizance of the decision of this Court in Dahiru Vs Kigbu (2019) LPELR 48783(CA) which restated the principles of doing substantial justice and avoiding technical justice particularly in the interpretation and construction of the provisions of the First Schedule to the Electoral Act 2010 (as amended). Counsel also referred to the case of INEC Vs Yusuf (2019) LPELR 48890(SC) on the interpretation of the provisions of the First Schedule to the Electoral Act 2010 (as amended) and stated that the First Schedule to the Electoral Act 2010 (as amended) did not suspend or supersede the provisions of the Evidence Act which based the admissibility of documents on relevance, pleading and being in admissible form, as laid down in the case of Okonji Vs Njokanma (1999) 14 NWLR (Pt 638) 250.
Counsel urged the Court to hold that the decision of the lower Tribunal expunging the said documents on the ground that they were not filed to accompany the Reply of the first Appellant was wrong in law and to resolve the second issue for determination in favour of the Appellants.
In response, Counsel to the first and second Respondents referred to and reproduced the provisions of Paragraphs 12(3) and 41(8) of the First Schedule to the Electoral Act 2010 (as amended) on the filing of copies of documents along with pleadings and he quoted from the case of Abubakar Vs Nasamu (2011) LPELR 1831(SC) in asserting that the provisions were in the nature of statutory provisions and stated, relying on the cases of Omoijahe Vs Umoru (1999) LPELR 2045 (SC) and Kanu Vs Asuzu (2015) LPELR 24376(CA), that being statutory provisions they must be given their plain and ordinary meaning. Counsel stated that the doing word used in both provisions is “shall” and that this connotes a command, duty and mandatoriness and that the provisions require total compliance and he referred to the cases Yakubu Vs Ibrahim (2016) LPELR 41496(CA), Mamman Vs Bwacha (2015) LPELR 40624(CA) and Oke Vs Mimiko (2013) LPELR 20645(SC).
Counsel referred to the case of Ayedatiwa Vs Victor (2015) LPELR 40285(CA) on the purport of Paragraph 41(8) of the First Schedule to the Electoral Act 2010 (as amended) and stated that what the Appellants failed to understand is that election petition is sui generis and while non-compliance with a provision may be considered an irregularity and pardoned in an ordinary civil case, it is a catastrophe in an election related matter and he referred to the cases of Aji Vs Danlele (2015) LPELR 40362(CA) and Aribisala Vs Adeyanju (2008) LPELR 41021(CA). Counsel stated that reference to the case of Chime Vs Egwuonwu supra by Counsel to the Appellants was inapposite as the case was decided on the basis of the Electoral Act 2006 and the Practice Directions made pursuant thereto in 2007 and which did not contain provisions similar to those applicable in the presence case. Counsel stated that reference by Counsel to the Appellants to the case of Dahiru Vs Kigbu (2019) LPELR 48783(CA) was also not helpful to the case of the Appellants as the matter concerned the competence of a Reply filed without accompanying documents, and not whether the documents not filed along with the Reply will be allowed to be used in evidence at the trial.
Counsel concluded his arguments by urging the Court to affirm the decision of the lower Tribunal expunging the said documents, Exhibits R1, R2 and R3, and to resolve the second issue for determination in favour of the first and second Respondents.
Counsel to the third Respondents did not proffer and arguments on this issue for determination.
In deliberating on the question of whether or not to expunge the documents which had earlier been tentatively admitted as Exhibits R1, R2 and R3, the lower Tribunal referred to and reproduced the provisions of Paragraphs 12(3) and 41(8) of the First Schedule to the Electoral Act 2010 (as amended) and stated thus:
“We are therefore in complete agreement with the Petitioners’ submissions and all the authorities relied upon to the effect that and reproduced the provisions of Paragraph 12(3) of the First Schedule to the Electoral Act 2010 (as amended) is a mandatory provision of a statute which must be complied with by any respondent in the sui generis election matter; failure of which the respondent cannot be allowed to place before the Tribunal any such unaccompanied documentary evidence. This Tribunal is also mandated under Paragraph 41(8) not to receive in evidence at the hearing any such unfiled documentary evidence along with the reply of the respondent.
With the above provisions of the First Schedule to the Electoral Act and the cases cited in reliance by the Petitioners’ Counsel …, Exhibits R1, R2 and R3 and any other exhibit tendered in evidence from the Bar or through any other witnesses of the 3rd Respondent which have not been filed along with the 3rd Respondent reply to the petition are all inadmissible in Law and we so hold and they are therefore expunged in the record of this proceeding. The submission of the 3rd Respondent to allow them use the said unfiled documentary evidence on the interest of substantial justice is hereby refused.”
Now, the question of whether or not documents, whose copies were not filed along with pleadings or replies in election matters, could be tendered and admitted in evidence in the course of the hearing is not new. It has come before this Court many times in the past. It must be acknowledged that there is a polarity of opinions of this Court on the point. Thus, in Ukpo Vs Ngaji (2008) 3 LRECN 505, this Court, citing the cases of Ojugbele Vs Lamidi (1999) 10 NWLR (Pt 621) 167 and Ladipo Vs Oduyoye (2004) 1 EPR 705, held that the provisions requiring frontloading of copies of documentary evidence were mandatory and that therefore non-compliance was not a mere irregularity but a violation of the law.
The more predominant opinion of this Court on the point, however, is that which holds that in none of the provisions mandating frontloading of documentary evidence was it stated that documents not so frontloaded will not be admissible in evidence and that, thus, once the facts of the documents are clearly pleaded and the documents are listed in the list of documents to be relied on and they are relevant and in admissible form, it would be wrong for a trial Tribunal to refuse to admit them in evidence. This opinion was expressed in the cases of Chime Vs Egwuonwu (2008) 2 LRECN 575, Chime Vs Ezea (2008) 2 LRECN 673, Olaniyan Vs Oyewole (2008) 5 NWLR (Pt 1079) 114, Lasun Vs Awoyemi (2009) 16 NWLR (Pt 1168) 513, Lawal Vs Magaji (2009) LPELR 4427(CA), Chime Vs Onyia (2009) 2 NWLR (Pt. 1124), Omidiran Vs Patricia (2010) LPELR 9160 (CA), Ibrahim Vs Ogunleye (2010) LPELR 4556 (CA), Ogboru Vs Uduaghan (2011) 2 NWLR (Pt 1232) 538, Dahiru Vs Kigbu (2019) LPELR 48783(CA).
Explaining the rationale for this predominant opinion, this Court in its judgment in the case of Orji Vs INEC (2020) LPELR 49525(CA) delivered on the 9th of January, 2020, stated thus:
“Learned Counsel for the Appellants has argued that Exhibits R3-R10 were inadmissible because they were not frontloaded in line with the provisions of Paragraph 12(3) of the First Schedule to the Electoral Act. However, even though the word shall is used in the provisions, the omission to accompany a Reply with copies of documentary evidence, does not render documents which have been clearly, specifically and distinctly pleaded and to be relied on by a Respondent in the Reply, inadmissible in evidence. The established position of the law on admissibility of documents in evidence is, generally, that such documents must be pleaded by the party seeking to make use of them as evidence at a trial. This is an additional practice requirement for admissibility of documents in evidence after the statutory conditions set out in Sections 1 and 83 of the Evidence Act, 2011, which applies to Election Petitions. This Court, in the case of A.N.P.P. Vs Usman (2008) LPELR-3786, citing Ojukwu Vs Obasanjo (2004) 1 EPR, 626 @ 673, restated the law that:-
‘Documentary evidence is one of the vital methods by which the Petitioner is required to substantiate his allegation in this petition. The general rule that governs the admissibility of documentary evidence is applicable to documents to be tendered in Election Petitions.’
In Okonji Vs Njokanma (1999) 14 NWLR (Pt. 638) 250, (1999) 12 SCNJ 259 @ 275, Achike, JSC, laid down the main criteria governing the admissibility of a document in evidence as follows: –
(a) Is the document pleaded
(b) Is it relevant to the inquiry being tried by the Court; and
(c) Is it admissible in law …
The underlining principle in the requirements of the law on the admissibility of a document intended to be used as evidence in judicial proceedings, is to give sufficient notice and adequate opportunity to the other party to a case to know the nature of the evidence to be tendered by his opponent to enable him prepare to meet the case against him. It is to avoid the element of surprise by ambush in the trial of the case. This is the purport of the provision of Paragraph 12(3) of the First Schedule to the Electoral Act, 2010 in the requirements that copies of documentary evidence shall accompany the Reply of a Respondent to an election petition. It is primarily meant to enable a Petitioner know the nature of documentary evidence to be relied on by the Respondent in defence of the Petition brought by the Petitioner so as to enable him react or respond to the defence, as may be necessary…
The specific pleading of document by title, description or names, to be relied on by a Respondent in his Reply to the petition which was duly served on a Petitioner in line with the requirements of the provisions of the First Schedule to the Electoral Act, substantially and adequately meets and satisfies the primary purport or essence of the provisions of Paragraph 12(3) of the Schedule, for the purpose of the admissibility of such documents.
In the circumstances, the Tribunal is right on the admissibility of Exhibits R3-R10 and that the documents are admissible in law, relying on Chime v. Onyia (2009) 2 NWLR (Pt. 1124).”
This predominant opinion of this Court is in tandem with the position that has been maintained by the Courts over the years that a provision of the Rules of Court should never be interpreted in a manner that will prevent the Court from doing substantial justice between the parties in the dispute submitted for adjudication – State Vs Gwonto (1983) 1 SCNLR 142, Marine Management Associates Inc Vs National Maritime Authority (2012) 18 NWLR (Pt 1333) 506, Uwazuruike Vs Attorney General, Federation (2013) 10 NWLR (Pt 1361) 105, Garan Vs Olomu (2013) 11 NWLR (Pt 1365) 227, Ikechukwu Vs Nwoye (2014) 4 NWLR (Pt 1397) 227; Adama Vs State (2018) 3 NWLR (Pt 1605) 94, Saliu Vs Federal Republic of Nigeria(2018) 3 NWLR (Pt 1605) 161.
The fact that the doctrine of substantial justice should govern Election Tribunals in the interpretation of their Rules of Procedure was re-emphasized by the Supreme Court in Abubakar Vs Yar’Adua(2008) 4 NWLR (Pt 1078) 465 where Niki Tobi, JSC stated at pages 511 to 512 thus:
“Rules of Court are meant to be obeyed. Of course, that is why they are made. There should be no argument about that. But there is an important qualification or caveat and it is that their disobedience cannot or should not be slavish to point that the justice in the case is destroyed or thrown overboard. The greatest barometer, as far as the public is concerned, is whether at the end of the litigation process, justice has been done to the parties. Therefore, if in the course of doing justice some harm is done to some procedural rule which hurts the rule, such as paragraph 7 of the Practice Direction, the Court should be happy that it took that line of action in pursuance of justice. This Court cannot myopically or blindly follow the Practice Directions and fall into a mirage and get physically and mentally absorbed or lost. Let that day no come.
…full opportunity should be given to parties in the interest of justice without due regard to technicalities. Gone are the days when Courts of law were only concerned with doing technical and abstract justice based on arid legalism. We are now in days when Courts of law do substantial justice in the light of the prevailing circumstances of the case. It is my hope that the days of the Courts doing technical justice will not surface again.
And what is more, election petitions are sui generis and should be treated in that domain or realm. If Courts of law are bound to do substantial justice in ordinary civil matters, how much less in an election petition …”
In the present case, the three documents in question, i.e. the first Appellant’s letter of resignation from the office of Director General of Kano State Drugs and Consumables Supply Agency dated the 20th of December, 2019, the letter from the office of the Secretary to Kano State Government dated 30th of December, 2019 approving the resignation and the letter dated the 30th of December, 2019 addressed by Secretary to the Kano State Government to the Head of Service, Kano State, were succinctly pleaded by the first Appellant in the Reply to the Petition, with their descriptions and particulars and the nature of their contents stated, they were listed in the List of Documents filed by the first Appellant along with the Reply and they were presented in admissible form before the lower Tribunal. Additionally, a look through the records of appeal shows that the documents were not new or strange to the first and second Respondents as they were attached to the proposed counter affidavit exhibited in the motion for extension of time filed and served by the first Appellant in response to the Originating Summons of the first Respondent before the High Court of Kano State. It is elementary that a Court has the power to look at documents in its records to resolve an issue before it – Gamau Vs Zailani (2019) LPELR 47665(CA).
The lower Tribunal was clearly in error in expunging the three documents, in the circumstances of this case. The decision of the lower Tribunal on the point is hereby set aside and this Court re-admits the three documents as Exhibits R1, R2 and R3. The second issue for determination is resolved in favour of the Appellants.
Issue Three
Whether the learned trial Tribunal Judges were not wrong when they held that the fact of the payment of salary of January 2020 to the first Appellant as the Director General of Kano State Drugs and Consumables Supply Agency averred by the first and second Respondents in their Reply to the first Appellant’s Reply was not a fresh issue.
In arguing this issue for determination, Counsel to the Appellants stated that the first and second Respondents did not plead the fact of the payment of January 2020 salary to the first Appellant in the Petition and that it was in their Reply to the Reply of the first Appellant to the Petition that the fact of the payment and of the withdrawal of same by the first Appellant for his use were pleaded for the first time. Counsel stated that a petitioner’s reply is not a repair kit to amend an election petition or smuggle in facts which ought to have been raised in a petition and a petitioner should not be allowed to bring in substantive facts in a reply to rebuild, expatiate or enlarge his petition in any manner and he referred to the cases of Airhiavbere Vs Oshiomole (2012) LPELR 19797 and Maduabum Vs Nwosu (2010) 623 and quoted from the cases of Adepoju Vs Awoduyilemi (1999) 2 NWLR (Pt 603) 364, APC Vs PDP (2015) 15 NWLR (Pt 1481) 1 and Orji Vs Ugochukwu (2009) 14 NWLR (Pt 1161) 207.
Counsel stated that having not made any reference to the payment of January 2020 salary to the first Appellant in the Petition, the first and second Respondents should not have been allowed to do so in their Reply and that the lower Tribunal was wrong when it found that the fact of the January 2020 salary payment was a response to facts pleaded in the Reply of the first Appellant. Counsel stated that the lower Tribunal failed to realize that by allowing the introduction of the fact of payment of the January 2020 salary in the Reply of the first and second Respondents for the first time, the first Appellant was denied the opportunity to respond thereto adequately. Counsel stated that this amounted to ambushing the first Appellant and was a clear breach of the first Appellant’s right to fair hearing and that the law is that proceedings carried out in breach of the right of fair hearing of one of the parties renders everything done null and void and he referred to the several case law authorities on the point, including Achuzia Vs Ogbomah (2016) 11 NWLR (Pt 1522) 59 and Audu Vs Federal Republic of Nigeria (2013) LPELR 19897(SC).
Counsel urged the Court to strike out the pleading of the fact of the payment of January 2020 salary to the first Appellant as well as the evidence of sixteenth petitioners’ witness and the GT Bank Statement of Account of the first Appellant, tendered as Exhibit P44, which were predicated on the averment. Counsel urged the Court to resolve the third issue for determination in favour of the Appellants.
In his response, Counsel to the first and second Respondents stated that the fact of the payment of January 2020 salary was related to the issue of whether or not the first Appellant had resigned his appointment with the Kano State Government as the 25th of January, 2020 when the re-run election took place and that it was averred in response to the assertion in the Reply of the first Appellant that he resign his appointment with effect from 23rd of December, 2019 and that his salary was stopped with effect from the 1st of January 2020, and he reproduced the relevant paragraphs of the pleadings. Counsel stated that the first and second Respondents did not raise a new issue by the assertion of payment of January 2020 salary and that they only responded to new facts pleaded by the first Appellant in his pleadings and that they were entitled to do so and he referred to the case of Turaki Vs Sankara (2011) LPELR 9203(CA).
Counsel stated that the issue of breach of right of fair hearing raised by the Counsel to the Appellants was a mere red herring as the first Appellant was given an unhindered opportunity to interrogate the evidence led by the first and second Respondents in proof of the averment and that while Counsel to the Appellants did not object to the tendering of the GT Bank Statement of Account of the first Appellant, Exhibit P44, he cross examined the sixteenth petitioners’ witness comprehensively thereon. Counsel urged the Court to uphold the finding of the lower Tribunal that no new issue was raised in the averment of the fact of payment of January 2020 salary to the first Appellant and to resolve the third issue for determination in favour of first and second Respondents.
Counsel to the third Respondent did not also address the third issue for determination in his brief of arguments.
In deliberating and resolving the issue of whether or not the fact of the payment of January 2020 salary raised a new issue, the lower Tribunal stated in the judgment thus:
“The contention by the 3rd Respondent Counsel that the issue of January salary of the 3rd Respondent was a new issue raised by the Petitioners cannot be accepted by this Tribunal. This is because the 3rd Respondent in Paragraph 8 of his Reply to the Petition avers thus:
‘The 3rd Respondent states further that upon the receipt of 3rd Respondent’s resignation letter and issuance of approval letter, the Secretary to the Kano State Government issued a letter dated 30th day of December, 2019 addressed to the Head of Civil Service drawing the attention of the Permanent Secretary, Salary and Wages Directorate under the office of the Head of Service directing him to stop the 3rd Respondent’s monthly salary effective from the 1st day of January 2020, not as alleged by the Petitioners. …’
In the reply to the 3rd Respondents Reply to the Petition, the Petitioners in Paragraphs 6 and 7 thereof joined issues with the 3rd Respondent thus:
Paragraph 6 – Paragraph 8 of the 3rd Respondent’s reply is denied and in answer, the Petitioners state that the 3rd Respondent was a Public Officer as at the 23rd day of December, 2019 up to the 25th of January, 2020 (when the rerun took place), as he received, utilized and withdrew his salary for the month of December, 2019 as well as January 2020.
Paragraph 7 – Further and in addition to paragraph 6 above, the Petitioners will lead evidence at the trial to show that the 3rd Respondent withdrew the said salary and used it for his own personal use. He did not resign his appointment as Director General and/or Managing Director of the Kano Drugs and Consumables Supply Agency and that is the reason why he did not return the salary for the month of December 2019 and January 2020. A copy of the 3rd Respondent’s statement of account with the Guaranty Trust Bank Plc indicating exactly when the 3rd Respondent withdrew his salaries for the months of December, 2019 and January 2020 is pleaded and will be relied upon at the trial.’
From the above quoted paragraphs from both the 3rd Respondent reply to the petition and the Petitioners’ reply to the 3rd Respondent’s reply, it is very clear that it is the 3rd Respondent that raised the issue of a letter directing stoppage of the salary of the 3rd Respondent effective from 1st day of January, 2020. In the circumstance, we hold that the Petitioners did not raise any new issue in their reply.”
It must be stated from the onset that the averment of payment and utilization of January 2020 salary by the first Appellant in the Reply of the first and second Respondents did not raise a new issue. It was only a new fact pleaded in furtherance of the issue of the non-resignation of the first Appellant from his appointment prior to the re-run election of January 25, 2020 canvassed in the first ground of the Petition. Thus, the entire argument of Counsel to the Appellants that the averment raised a new issue is totally baseless.
Now, an election petition is a civil proceeding and the rules of pleadings governing ordinary civil proceedings apply to it. The function of a Reply under the law of pleadings, be it a Reply to a Statement of Defence in a civil action or a Reply to a Reply in an Election Petition, have been stated and restated by the Supreme Court. The rule of practice is that where no counterclaim is filed, a reply is generally unnecessary if its sole object is to deny allegations contained in the statement of defence. The proper function of a reply is to raise, in answer to the defence, any matters which must be specifically pleaded, which make the defence not maintainable or which otherwise might take the defence by surprise or which raise issue of fact not arising out of the defence or, where because of the defence filed, the plaintiff proposes to lead evidence in rebuttal or to raise issues of fact not arising out of the two previous pleadings – Bakare Vs Ibrahim (1973) 6 SC 205, Akeredolu Vs Akinremi (1989) 3 NWLR (Pt 108) 164, Obot Vs Central Bank of Nigeria (1993) 8 NWLR (Pt 310) 140, Dabup Vs Kolo (1993) 9 NWLR (Pt 317) 254, Ishola Vs Societe Generale Bank (Nig) Ltd (1997) 2 NWLR (Pt 448) 405, Unity Bank Plc Vs Bouari (2008) 7 NWLR (Pt 1086) 372.
In other words, a plaintiff or a petitioner is entitled to plead new facts in a reply to the statement of defence of a defendant or the reply to petition of a respondent, which countermand or contradict the case made out by the defendant or respondent in his defence and show that the case is not plausible. In fact, the law is that where the facts pleaded in a statement of defence or reply to a petition are not such that have been taken care of by the averments in a statement of claim or petition, and a plaintiff or petitioner fails to file a reply to contest those facts, the facts will be treated as unchallenged and deemed to have been admitted – Achilihu Vs Anyatonwu (2013) 12 NWLR (Pt 1368) 256, Mabamije Vs Otto (2016) 13 NWLR (Pt 1529) 171. As rightly pointed out by the lower Tribunal in the excerpt of the judgment reproduced above, the first Appellant pleaded the fact of the stoppage of his salary with effect from January 1, 2020 in support of his defence that he resigned effectively from the 23rd of December, 2019 and it was in response to and to contradict this averment that the first and second Respondents averred in their Reply that the fact pleaded was incorrect as the first Appellant was paid salary at the end of January 2020. This was within the right of the first and second Respondents to do under the law of pleadings. The argument of Counsel to the Appellant that the averment in the Reply of the first and second Respondents breached the first Appellant’s right of fair hearing is obtuse. The lower Tribunal was very correct when it found that the averment did not raise any new issue and was a valid averment. The third issue for determination is resolved against the Appellants.
Issue Four
Whether, on the strength of the pleadings and evidence led on record, the learned trial Tribunal Judges were not wrong in finding that the first and second Respondents made out a credible case of non-qualification of the first Appellant to contest the re-run election held on 25th of January, 2020.
In arguing the issue for determination, Counsel to the Appellants stated that the first and second Respondents sought for declaratory reliefs in their Petition before the lower Tribunal and they were entitled to succeed only on the strength of their case and not on the weakness of the defence or even on admission made by the defence and he referred to several cases including Ngige Vs INEC (2015) 1 NWLR (Pt 1440) 281 and Dumez Nig Ltd Vs Nwakhoba (2009) All FWLR (Pt 461) 842. Counsel stated that it was glaring from the records that the first and second Respondents predicated their entire case that the first Appellant was still the Director General of the Kano State Drugs and Consumables Supply Agency as at 25th of January, 2020 on the payment of January 2020 salary to the first Appellant by the Kano State Government. Counsel stated that the first and second Respondents led no evidence to show that the first Appellant collected, withdrew and utilized the said January 2020 salary after it was paid into his account, contrary to the finding of the lower Tribunal.
Counsel stated that the lower Tribunal ignored the evidence led under cross examination of the sixteenth petitioners’ witness, the staff of GT Bank Plc who tendered the statement of account of the first Appellant showing the transfer of the January 2020 salary into the account from the Kano State Government. Counsel stated that the said witness led evidence under cross examination that payment of salaries by Kano State Government was done electronically without the knowledge of the recipients and that the recipients do not know until they receive an alert from the Bank notifying them of the payment and that payment of salary does not signify that the recipient had not resigned and that the first Appellant had no power to stop the payment of his salary unless the salary was stopped from source. Counsel stated that in view of the evidence given by the witness under cross examination, and which evidence the first Appellant could utilize to buttress his defence, it is difficult to discern how the lower Tribunal came to the conclusion that the first and second Respondents discharged the onus on them to prove that the first Appellant was still in employment as at 25th of January, 2020.
Counsel stated that the first Appellant led cogent and credible evidence in rebuttal of the case of the first and second Respondents through the documents tendered as Exhibits R1, R2 and R3 showing that he duly resigned his appointment with the Kano State Government with effect from 23rd of December, 2019 by a letter dated and received on the 20th of December, 2019. Counsel stated, on the authority of the case of Yesufu Vs Governor of Edo State (2001) LPELR 354(SC), that the letter of resignation took effect from the date it was received by the Kano State Government and that the payment of the January 2020 salary, an act over which the first Appellant had no control, cannot be placed at the doorstep of the first Appellant and cannot derogate from the letter of resignation, irrespective of whether or not the first Appellant did not write a letter to Kano State Government complaining about the payment of the salary. Counsel urged the Court to hold that the finding of the lower Tribunal that the first and second Respondents made out a credible case on the non-qualification of the first Appellant to contest in the re-run election is perverse and to resolve the fourth issue for determination in favour of the Appellants.
In response, Counsel to the first and second Respondents stated that their case on the non-qualification of the first Appellant for the re-run election was predicated on their assertion that the first Appellant failed to resign his appointment with the Kano State Government by reason of the fact that he was paid salaries for the months of December 2019 and January 2020 and he did not return the salaries. Counsel stated that the first and second Respondents led evidence in proof of this assertion in the testimonies of the first Respondent, the fourteenth petitioners’ witness, and the staff of GT Bank Plc, the sixteenth petitioners’ witness, the evidence of the first Appellant, the seventh respondents’ witness, under cross examination and in the GT Bank Statement of Account of first Appellant tendered as Exhibit P44. Counsel stated that the evidence of the witnesses on the fact that the first Appellant was paid salaries for December 2019 and January 2020 was not challenged and it was not the evidence of the first Appellant under cross examination that he returned the salaries.
Counsel stated that these facts raised the presumption that the first Appellant was still in the employment of Kano State Government as at January 2020 and this was what prompted the lower Tribunal to hold that the first and second Respondents had discharged the onus of proof on them and that the onus shifted to the first and second Appellants to rebut the presumption. Counsel stated that with the expunction of the documents tendered by the first Appellant as Exhibits R1, R2 and R3, there was nothing left in the evidence of the first Appellant to rebut the presumption raised by the first and second Respondents that he was still in the employment of the Kano State Government as at January 2020 and that the lower Tribunal came to the irresistible conclusion that the first and second Respondents made out a credible case to sustain their claim.
Counsel stated that the situation in this case was akin to those in the cases of Zubairu Vs Mohammed (2009) LPELR 5124(CA) and Jafaru Vs Usman (2008) LPELR 8591(CA) where a person who alleged that he had resigned his employment continued to receive salaries and he withdrew and utilized the salaries for personal use, this Court deduced therefrom that the alleged resignation was a ruse and that the person never resigned. Counsel urged the Court to, on the strength of the admissible evidence led at the trial, find and hold that the lower Tribunal came to the right decision on this issue for determination and to resolve same in favour of the first and second Respondents.
Counsel to the third Respondent did attempt to make some comments on this issue for determination, but the comments were directionless and consisted of ramblings that did not in any way address the points argued by the Appellants.
In deliberating on the facts constituting this issue for determination, the lower Court traversed through the evidence of the sixteenth petitioners’ witness and the contents of the GT Bank Statement of Account of the first Appellant, Exhibit P44, and continued thus:
“With the above pieces of evidence from PW16 and Exhibit P44, we are of the considered view that even though it is not within the powers of the 3rd Respondent to stop the electronic payment of his salary by the Kano State Government, the Petitioners have discharged the burden placed on them as far as the issue of resignation and the collection of salary for the month of December, 2019 as well as January 2020 by the 3rd Respondent is concerned…
Having … held that the Petitioners have discharged the burden of proof placed on them … on the issue of collecting salaries for the months of December, 2019 and January, 2020, the burden of proof now shifts on the 3rd Respondent to prove that he resigned his appointment as the Managing Director of the Kano State Drugs and Medical Consumables Supply Agency 30 days before the re-run election held on the 25th of January, 2020 and that he did not collect, withdraw and utilize the salary for the month of January 2020 paid into his account on the 29th of January 2020, four (4) days after the re-run election or that he had receipted back to Kano State Government the said salary collected by him or paid into his account…
We had earlier in this judgment expunged Exhibits R1, R2 and R3 … In the circumstance, there is no documentary evidence properly placed before this Tribunal in support of the oral evidence of RW7, the 3rd Respondent, that he did resign his appointment 30 days before the re-run election …
It is equally in evidence from the Petitioners through Exhibit P44 that the 3rd Respondent collected his salary as the Managing Director of the Kano State Drugs and Medical Consumables Supply Agency for the month of January 2020 but there is no corresponding evidence that the salary paid into his account was paid back to the Kano State Government on or before the holding of the re-run election on the 25th of January, 2020 to support his purported resignation since the 20th of December, 2019. To worsen the situation of the 3rd Respondent, that January 2020 salary was paid into his account on the 29th of January, 2020 but he did not complain or even make an observation or receipted back the salary paid into his account to the authorities concerned…
With the above oral evidence by the 3rd Respondent and having failed to place before the Tribunal his resignation documents, coupled with his failure to show that the salary for the month of January, 2020 paid into his account was refunded to the Kano State Government, this Tribunal holds that the 3rd Respondent has failed to discharge the onus on him of proving that he in fact resigned his appointment … and/or that the January 2020 salary collected or received by him in his account was paid back to the Kano State Government before the re-run held on the 25th of January, 2020.”
In resolving this issue for determination, this Court will give credence to the documents tendered by the first Appellant as Exhibits R1, R2 and R3 which were wrongly expunged by the lower Tribunal. The case of the first and second Respondents before the lower Tribunal was that the first Appellant was not qualified to contest the re-run elections held on the 25th of January, 2020 as he was still in the employment of the Kano State Government as the Director General of the Kano State Drugs and Medical Consumables Supply Agency as at that date. The first Appellant countered that the assertion was incorrect as he had resigned his appointment and has ceased to hold that office with effect from the 23rd of December, 2019.
The onus of proof of the assertion that the first Appellant had not resigned his appointment with the Kano State Government as at 25th January 2020 was on the first and second Respondents and, where they succeed in doing this, the onus would shift to the first Appellant to prove that he had resigned his appointment as at that date. This is the way the burden of proof works and shifts in a civil action – Lawal Vs All Progressives Congress (2019) 3 NWLR (Pt 1658) 86 and Okin Vs Okin (2019) 11 NWLR (Pt 1682) 138.
The first and second Respondents led evidence through the fourteenth and the sixteenth petitioners’ witnesses and the statement of account of the first Appellant, Exhibit P44, that the first Appellant was paid salaries for the months of November and December 2019 and for January 2020 by the Kano State Government and they urged the lower Tribunal to conclude therefrom that the first Appellant was thus still in the employment of Kano State Government as at 25th of January, 2020. Now, the case of the first Appellant was that he resigned his appointment on the 23rd of December, 2019. Therefore, the payment of his salaries for the months of November and December 2019 was irrelevant to the determination of the issue submitted for adjudication before the lower Tribunal as the first Appellant was entitled to be paid those salaries. The only relevant evidence to the case of the first and second Respondent was the payment of the salary for January 2020.
The notes of evidence show that the first and second Respondents did not lead any evidence to prove that the first Appellant collected, withdrew, and utilized the January 2020 salary after it was paid and did not return it to the Kano State Government. Thus, the lower Tribunal, with respect, goofed when it shifted the onus to the first Appellant to “prove that he resigned his appointment as the Managing Director of the Kano State Drugs and Medical Consumables Supply Agency 30 days before the re-run election held on the 25th of January, 2020 and that he did not collect, withdraw and utilize the salary for the month of January 2020 paid into his account on the 29th of January 2020, four (4) days after the re-run election or that he had receipted back to Kano State Government the said salary collected by him or paid into his account…”
Also, the evidence before the lower Tribunal was that the January, 2020 salary was paid into the account of the first Appellant on the 29th of January, 2020 and thus the lower Tribunal, with respect, also goofed when it condemned the first Appellant for not leading “evidence that the salary paid into his account was paid back to the Kano State Government on or before the holding of the re-run election on the 25th of January, 2020 to support his purported resignation since the 20th of December, 2019.” How could the first Appellant have paid back money paid into his account on the 29th of January 2020 before the re-run election held on the 25th of January, 2020?
The first Appellant in support of his case on resignation tendered his letter of resignation from the office of Director General of Kano State Drugs and Consumables Supply Agency dated the 20th of December, 2019 addressed to the Secretary to the Kano State Government, the letter from the office of the Secretary to Kano State Government dated 30th of December, 2019 addressed to him approving the resignation and the letter dated the 30th of December, 2019 addressed by Secretary to the Kano State Government to the Head of Service, Kano State directing that payment of the salary of the first Appellant as Director General of Kano State Drugs and Consumables Supply Agency be stopped with effect from 1st of January, 2020 and they were admitted as Exhibits R1, R2 and R3 respectively. Exhibit R1 showed that the first Appellant resigned his appointment with effect from the 23rd of December, 2019 and evidence was led to show that the letter was received by the office of the Secretary to Kano State Government on the 20th of December, 2020. It is noted that the first and second Respondents led no evidence to challenge, contest or countermand the genuineness and/or authenticity of any of the three letters.
The task before the lower Tribunal in this case was to evaluate the evidence led by the first and second Respondents vis a vis the evidence led by the first Appellant side by side. The lower Court was enjoined to place the evidence of payment of the January 2020 salary to the first Appellant against Exhibits R1, R2 and R3 on an imaginary scale and then weigh them together to see which side is heavier than the other, in terms of quality, not quantity. Then to apply the relevant laws to the facts or evidence adduced, in order to reach a decision. This is a time honoured procedure designed to mete out justice to both parties before the Court and the procedure is crucial in its observance – Mogaji Vs Odofin (1978) 4 SC 91, Adeleke Vs Iyanda (2001) 13 NWLR (Pt 729) 1, Okoko Vs Dakolo (2006) 14 NWLR (Pt 1000) 401, Tippi Vs Notani (2011) 8 NWLR (Pt 1249) 285, Momoh Vs Umoru (2011) 15 NWLR (Pt 1270) 217.
The law is settled that a letter of resignation of an aemployee takes effect from the date it is delivered to and received by an employer or its agent – Benson Vs Onitiri (1960) SCNLR 177, Yesufu Vs Governor of Edo State (2001) 13 NWLR (Pt 731) 517, West African Examination Council Vs Oshionebo (2006) 12 NWLR (Pt 994) 258. Thus, the first Appellant’s letter of resignation took effect from the 23rd of December, 2019 as stated in the letter of resignation received by the Secretary to the Kano State Government on the 20th of December, 2020. The Supreme Court has held that, on the issue of resignation, where a duly received and acknowledged letter of resignation is confronted only by evidence of payment of salary and nothing more, the letter of resignation preponderates. This was in the case of Ibrahim Vs Abdallah (2019) 19 NWLR (Pt 1701) 293 at 315 C-E where the Court, per Abba-Aji, JSC, opined thus:
“On the issue that the cross Respondent/Appellant as Plaintiff had no locus standi to institute this suit at the Federal High Court because he is still a public officer working with the Nigeria Customs service as Assistant Superintendent of Customs (1) contrary to Section 66(f) of the Constitution, the evidence before me is that the cross Respondent exhibited his letter of resignation and acknowledgement of same, which suffices to preponderate evidence in his favour that he had duly resigned his appointment from the date it was received as endorsed thereon. Besides, apart from the pay slip which the cross Appellant relies on, there is no rebuttal to such evidence and claim. Resignation need not be formally accepted before it took effect… A notice of resignation is effective, not from the date of the letter or from the date of the purported acceptance, but from the date the letter was received by the employer or his agent… There is absolute power to resign and no discretion to refuse to accept the notice …” (underlining for emphasis)
The rationale for this position is simply this; since, as stated by the Supreme Court, there is absolute power to resign and no discretion to refuse to accept the notice of resignation, where a person has taken the steps he is required by law to take, in this case, submit his letter of resignation, the refusal, failure, neglect of the relevant officials to do their part, for example, stopping the payment of his salary, should not be visited on the person. This is particularly more so in this case as the salary in issue was only a month’s salary and there was evidence led by the sixteenth petitioners’ witness under cross-examination that the payment of the salary was made electronically without any input from or knowledge of the first Appellant and that the first Appellant could not have stopped the payment by himself. And the first Appellant saw to it that a letter, Exhibit R3, was addressed by the Secretary to the Kano State Government to the Head of Service, Kano State directing that the payment of his salary be stopped with effect from 1st of January, 2020. It is unjust and unconscionable to visit the dereliction of duty on the part of Head of Service of Kano State in paying the January 2020 salary on the first Appellant, in these circumstances.
The lower Tribunal was clearly in error when it found that the case made out by the first and second Respondents preponderated over that made out by the first Appellant. This Court finds and holds that the first and second Respondents did not make out a credible case to support their assertion that the first Appellant was not qualified to contest the re-run elections. The fourth issue for determination is resolved in favour of the Appellants.
Issue Five
Whether the learned trial Tribunal Judges were not wrong in nullifying the election of the first Appellant and in declaring the first Appellant as the winner of the re-run election held on the 25th of January, 2020
This issue revolves around the meaning and import of Section 140(2) of the Electoral Act 2010 (as amended). The resolution of the fourth issue for determination in this appeal in favour of the Appellants has turned this issue for determination into an academic and hypothetical question. It is not in the habit of the Courts to indulge in academic exercises or in the answering of hypothetical questions –Ecobank (Nig) Ltd Vs Honeywell Flour Mills Plc (2019) 2 NWLR (Pt 1655) 55, Kurma Vs Sauwa (2019) 3 NWLR (Pt 1659) 247, Usman Vs State (2019) 15 NWLR (Pt 1696) 411. The Court will discountenance the fifth issue for determination, but considers it pertinent to point out that Section 140 (2) of the Electoral Act 2010 (as amended) has since been set aside by the Federal High Court in a judgment delivered in the case of Labour Party Vs INEC on the 21st July, 2011 in Suit No FHC/ABJ/CS/399/2011. This judgment was judicially noticed and applied by the Supreme Court in the case of Jev Vs Iyortyom (2015) 12 SC (Pt II) 98 at pages 115-116 and by this Court in the case of Kakale Vs Aliyu (2019) LPELR 48812(CA). Thus, as at now, Section 140 (2) is no longer a valid part of the Electoral Act 2010 (as amended).
This Court finds some merits in the appeal of the Appellants and this takes us to the cross appeal of the first and second Respondents.
The Cross Appeal
In arguing the cross appeal, Counsel to the first and second Respondents filed a Cross Appellant brief of arguments dated the 20th of August, 2020 on the 21st of August 2020. In response, the Counsel to the Appellants filed a notice of preliminary objection challenging the competence of the cross appeal as well as a first and second Cross Respondents’ brief of arguments dated the 24th of August, 2020. Counsel to the first and second Respondents filed a Cross Appellants’ Reply brief of arguments dated the 27th of August, 2020. The third Respondent did not file any process on the cross appeal. At the hearing of the appeal, Counsel to the first and second Respondents and Counsel to the Appellants argued the notice of preliminary and adopted the arguments in their respective briefs of arguments on the cross appeal.
The contention of the first and second Respondents on the cross appeal is against the expunction of the photocopy of the letter of appointment of the first Appellant as the Director General of the Kano State Drugs and Consumables Supply Agency and photocopies of the pay slips for the payment of the salaries of the first Appellant for the months of November and December 2019 tendered as Exhibits P15, P16 and P17. Now, it was never in contest in the matter that the Appellant was appointed the Director General of the Kano State Drugs and Consumables Supply Agency, and as such the tendering of his letter of appointment was of no significance. Further, this Court found, in resolving the appeal of the Appellants, that the payment of the salaries of the first Appellant for the months of November and December 2019 was irrelevant to the determination of the question submitted before the lower Tribunal for adjudication.
What these findings mean is that the resolution of the cross appeal either way will have no effect on the outcome of this appeal. It is trite law that a Court has no business delving into the issues that are not crucial and which are merely theoretical and of no practical utilitarian value such that its determination makes no practical or tangible addition to the outcome of the case and pronouncing on it is an exercise in futility and cannot have any effect on the decision of the Court- Agbakoba Vs Independent National Electoral Commission (2008) 18 NWLR (Pt 1119) 489, Independent National Electoral Commission Vs Atuma (2013) LPELR- 20589(SC). This postulation is premised on the fact that Courts of law deal with live issues which will have bearing in one way or the other on the outcome of a case – Mamman Vs Salaudeen (2005) 18 NWLR (Pt 958) 478, State Vs Azeez (2008) 14 NWLR (Pt 1108) 348, Abdullahi Vs Military Administrator, Kaduna State (2009) 15 NWLR (Pt 1165) 417. Considering and pronouncing on the cross appeal will be a wasteful exercise in the circumstances of this appeal and this Court thus declines to do so. The cross appeal will be struck out.
Conclusion
In conclusion, the appeal succeeds and it is hereby allowed while the cross appeal is struck out. The portion of rulings and judgment of the National and State Houses of Assembly Election Petition Tribunal sitting in Kano State delivered in Petition No EPT/KN/SHA/01/2020 by the Chairman and the Honorable Members of the Tribunal on the 24th of July, 2020 which had been found by this Court to be perverse are hereby set aside, along with the final orders made in favour of the first Respondent therein. In their stead is substituted a judgment dismissing the claims of the first and second Respondents before the lower Tribunal. The parties shall bear their respective costs of this appeal. These shall be the orders of this Court.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in advance, the leading Judgment of my learned brother Abiru JCA just delivered, to which I entirely agree with. This Court is a Court of law as well as of equity, and as such, is predominantly concerned with doing justice to the parties that appear before it. It therefore means that rigid adherence to arid legalism is not its pastime. When Rules of practice are made, they are meant essentially to ensure that justice is done and seeing to be done. When an interpretation of the Rules of practice would lead to injustice, lack of fairness or absurdity, this Court will distance itself from that ignoble path.
Elections are sensitive and crucial activities forming part and parcel of democracy. Election Petitions, especially in this country, are fought with passion and determination by political actors. The Courts must maintain their impartiality and level headedness to avoid being embroiled into the arena of disputes, which desperate parties constantly try to draw them into. In doing this, the wishes of the people must not be thwarted by employing technicalities in the application of rules of procedure. An opportunity should be offered to parties to present their cases, so that due determination on the merit would be the ultimate objective.
Where a party in his Reply to a Petition, pleads documents, describes them and are contained in a list of Documents to be relied upon by that party, I cannot see how they should be excluded from admissibility on the ground that they were not front-loaded along with the Reply, pursuant to Paragraph 12(3) of the First Schedule to the Electoral Act 2010, as amended. In the instant appeal, the Respondents as Petitioners, were well aware of the documents in question – Exhibits R1, R2 and R3 – as they were the subject of the affidavit in opposition to the Originating Summons filed by the Respondents before the High Court Kano, even though there was an application for extension of time to so file them. The point I am making, is that the Respondents were very much privy to the documents in question and so were not at all taken by surprise. They could, and had the time to study the documents and prepare whatever answers they had in respect of them. Expunging the exhibits from the record, the way the Tribunal had done, tantamounts to slavish adherence to technicality, resulting in shutting out the Appellants. It was a rigid and an unfair interpretative pasture of the Rules of practice. It amounts to a gross denial of justice, which will not be sanctioned by this Court. The exhibits were wrongly and unfairly expunged from the record. I re-admit them in evidence as Exhibits R1, R2 and R3.
In respect of the issue of resignation which the Tribunal said was non-existent and which led it to disqualify the 1st Appellant, it is obvious that such was the result of expunging the Exhibits wrongly. If they had been part of the record of the Tribunal, it would have been in a position to consider them. It would have then seen that the Appellant had written his resignation letter on 20th December 2019. It was received and approved by the Secretary to the Kano State Government. The letter of resignation was received on the 20th December 2019 and that is the effective date of his resignation – See IBRAHIM VS. ABDALLAH (2019) 19 NWLR (PT.1701) 293. That is more than thirty days before the re-run election was conducted. Where then is the lack of qualification?
A lot of heat had been generated concerning the payment of the salaries of January 2020 to the 1st Appellant and his utilization of same. The letter of the Secretary to Kano State Government had directed his salary to be stopped. If an official of Government neglected or failed to carry out the instructions, that cannot be visited on the Appellant. As regards his utilization of the January 2020 salary, there is no evidence that before the January 2020 salary was paid, the account of the Appellant was reading zero and when the January 2020 salary went into the account, he withdrew it, leaving nothing in the account. If that had been the case, one would be in a position to say the Appellant had indeed utilized, the salary of January 2020 paid to his account. Since that is not the position, it can never be found fairly and correctly, that the 1st Appellant even utilized the January 2020 salary. But even at that, it would not establish that he did not resign his appointment. At best, it would have been money he was not entitled to and could be recovered from him by appropriate means. It would not have been, that he did not resign his appointment from 20th December, 2019.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Having said this, I also hold that this appeal partly but substantially, succeeds. I set aside the Judgment of the Tribunal in respect of its expunging Exhibits R1, R2 and R3 and its disqualification of the 1st Appellant to contest the election. I note that an Order was made, pursuant to that Judgment, for the Certificate of Return to be issued to the 1st Respondent and for him to be sworn in as Member of Kano State House of Assembly representing Rogo Constituency. I set aside that Order and in its stead, I direct The Independent National Electoral Commission, to issue a Certificate of Return to the 1st Appellant and swear him as such.
AMINA AUDI WAMBAI, J.C.A.: I had a preview of the comprehensive and lucid lead judgment just delivered by my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU JCA, and I agree entirely with his reasoning and conclusion.
By Exhibits R1, R2 & R3 which were wrongly expunged by the lower Court and now reinstated by this Court, it is beyond argument that the 1st Appellant resigned his appointment as the Director General of Kano State Drugs & Consumables Supply Agency with effect from 23rd December 2019 when his letter of resignation was received by the Secretary to the Kano State Government, the approval of which was communicated by the letter written on 30th December 2019 by Secretary to the State Government who directed the Head of Service to stop the payment of salary of the 1st Appellant with effect from 1st January, 2020.
Per force of law, the 1st Appellant resigned his appointment as the Director General, Kano State Drugs & Consumables Supply Agency the date his letter of resignation was received by the Secretary to Kano State Government on the same 23rd December 2019. The 1st Appellant’s notice of resignation took effect from the 23rd December, 2019 and not from 30th December, 2019 when the resignation was accepted by his employer. This is the effect among others, of the Supreme Court decision in the case of IBRAHIM VS. ABDALLAH (2019) 19 NWLR (PT. 1701) 293 per Abba Aji JSC where his lordship stated:
“A notice of resignation is effective, not from the date of the letter or from the date of the purported acceptance, but from the date the letter was received by the employer or his agent…”
The question of the payment of his January salary as conceded by the PW16 in cross-examination was not within the control of the 1st Appellant who had properly given notice of his resignation and his salary ordered to be stopped by the appropriate authority. The record clearly shows that PW16 admitted that the January salary in question was paid electronically and without any input or knowledge of the 1st Appellant. How then can the Appellant be blamed for the payment of the January 2020 salary into his account of which he had no knowledge or input?
The 1st Appellant having done all that he was by law expected to do and with no clear evidence, inspite of the heavy weather by the Respondents, that the 1st Appellant utilized the money, all evidence preponderates in favour of the 1st Appellant that he resigned his appointment and ceased to be a Civil Servant from the 23/12/2019, and was eminently qualified to contest the re-run election conducted on 25th January, 2020 for the seat of Member of Kano State House of Assembly representing Rogo Constituency of Kano State.
On this premises and the fuller reasons in the illuminating lead judgment, I also allow the appeal and abide the consequential orders therein.
Appearances:
Chief (Sir) M. N. Duru with him, Ibrahim Aliyu Nassarawa, M. M. Yakassai, A. S. Gadanya, S. S. Gezawa, M. Idris, A. T. Falola, B. Y. Gambo, N. A. Isa and L. O. Joseph For Appellant(s)
I. G. Waru with him, M. U. Waru, R. M. Ahmad and G. B. Harris for the 1st and 2nd Respondents
Hassan Aminu for the 3rd Respondent For Respondent(s)
