AIDA NATH OGWUCHE & HON. FRANCIS OTTA AGBO & ORS

Legalpedia Citation: (2024-04) Legalpedia 92767 (SC)

In the Supreme Court of Nigeria

Holden At ABUJA

Wed Feb 22, 2023

Suit Number: SC.CV/119/2023

CORAM

John Inyang Okoro Justice of the Supreme Court of Nigeria

Amina Adamu Augie Justice of the Supreme Court of Nigeria

Mohammed Lawal Garba Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria

PARTIES

AIDA NATH OGWUCHE

APPELLANTS

HON. FRANCIS OTTA AGBO
PEOPLES DEMOCRATIC PARTY (PDP)
INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, ELECTION, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The appellant herein is a civil servant in the employment of Federal Inland Revenue Services (FIRS), an agency of the Federal Government. Following her appointment on 26-2-2020 as Principal Special Assistant to the Governor of Benue State, on 18-8-2020 she applied to FIRS for leave of absence without pay to proceed on secondment to take up the said political office appointment. FIRS approved the application and granted her a two years leave without pay with effect from 21-9-2020.

By a letter dated 28-2-2022, the appellant wrote to the Government of Benue State resigning her appointment as Principal Special Assistant to the Governor on Abuja Liason to enable her contest the then forthcoming primary election of the 2nd respondent’s candidate for 2023 general election of member of House of Representatives for Ado/Okpowu/Ogbedibo Federal Constituency of Benue State. The resignation was received on the same 28-2-2022 as the receipt stamp on its face shows. By a letter dated 7-3-2022, the Government of Benue State informed the appellant that the Governor of Benue State had accepted her said resignation.

On 30-3-2022, the appellant purchased and filled expression of interest and nomination forms to contest the 2nd respondent’s primary election of its candidate of member House of Representatives for Ado/Okpokwu/Ogbadibo Federal Constituency. She submitted the forms to the 2nd respondent on 19-4-2022 as the receipt stamp on the forms show. The appellant along with other aspirants was screened on 27-4-2022 by the Screening Committee of the 2nd respondent, issued a letter clearing her as qualified to contest in the primary election which held on 23-5-2022. The appellant scored majority of the votes cast in the election and was declared winner of the election. Having won the primary election, she wrote a letter dated 25-5-2022 to FIRS, resigning her public service employment with the agency. The letter was received on 26-5-2022 as the receipt stamp on it shows. On 16-6-2022, the 2nd respondent submitted the appellant’s name to INEC as its candidate for the 2023 general election of member House of Representatives for Ado/Okpokwu/Ogbadibo Federal Constituency as the acknowledgment of receipt of same by INEC shows.

The respondents herein contested the status of the petitioner seeking the declaration that she was not qualified to contest for the election because she did not resign the employment of the public service 30 days before the election.

The trial Court rendered its judgment dismissing the 1st respondent’s claims and holding that the appellant need not resign her employment with the Federal Inland Revenue Services (FIRS) before participating as an aspirant in the 2nd respondent’s primary election of its candidate for the 2023 general election of member House of representatives for Ado/Okpokwu/Ogbadibo Federal Constituency in Benue State.

Dissatisfied with the judgment of the trial Court, the 1st respondent herein filed a notice of appeal against the judgment of the trial Court to the Court of Appeal. The Court of Appeal rendered its judgment allowing the appeal as successful and setting aside the decision of the trial Court after finding that the appellant did not resign from her employment in the public service before venturing into active politics and holding that this is contrary to S.66(1) (f) of the 1999 Constitution and Rule 030 423 of the Public Service Rules.

Dissatisfied with the judgment of the Court of Appeal, the appellant herein on 13-1-2023 filed a notice of appeal commencing this appeal in this Court. A second notice of appeal was filed by the appellant on 23-1-2023.

HELD

Appeal allowed

ISSUES

Whether the Court of Appeal was not wrong in its interpretation of Section 66(1)(f) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) when it interpreted disqualification of candidates to contest election to the National Assembly to mean disqualification of aspirants to contest for selection as candidates to be sponsored by the political party in intra-party primary elections?
Whether the Court below was not wrong to have reviewed, considered and determined the appeal only on the basis of the issues raised by the 1st Respondent while neglecting those raised by the Appellant, and whether that approach adopted by the Court below did not occasion a denial of fair hearing to the Appellant?
Whether the Court below was not wrong in law when it held that the 1st Respondent had the right in law to question the pre-primary screening and clearance of the Appellant by the 2nd Respondent to participate in the primaries of the 2nd Respondent for the selection of its candidate for election?

RATIONES DECIDENDI

LEAVING EMPLOYMENT – THE THREE METHODS OF LEAVING EMPLOYMENT IN THE PUBLIC SERVICE TO QUALIFY FOR ELECTION TO THE NATIONAL ASSEMBLY

S.66 (1)(f) of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution) which provides that “no person shall be qualified for election to the Senate of the House of Representatives if – (f) He is a person employed in the public service of the Federation or of any state and has not resigned, withdrawn or retired from such employment thirty days before the date of election.”

It is glaring that this provision prescribes three alternative methods of leaving employment in the public service of the Federation of a State thirty days before the date of election to qualify for election to the National Assembly. The three are – resignation or withdrawal or retirement. Leaving by any of the three methods, thirty days before the date of election qualifies a person for election to the Senate or House of Representatives. There is nothing in the provision requiring that you can leave by only resignation. While resignation and retirement involve completely and permanently leaving the public service, withdrawal from employment ordinarily means a temporary leave of absence or ceasure from or going away or departure or retreat from service. In any case, the word “withdrawn” is used in the above provisions of the Constitution without any words limiting its meaning or application to either permanently or temporarily leaving the public service. So the withdrawal can be permanent or temporary. – Per E. A. Agim, JSC

COURT OF APPEAL – WHEN THE COURT OF APPEAL IS BOUND TO FOLLOW THE DECISIONS OF THE SUPREME COURT

The Court of Appeal is bound to follow the previous decisions of the Supreme Court or its previous decisions (until it departs from it) only if:

(i) the question resolved in the precedent case is the same as the question to be resolved in the pending case.

(ii) The resolution of that question was necessary to the determination of the precedent case and the present case depends on the resolution of that question for its determination.

(iii) The significant or material facts in the precedent case are also present in the pending case, and

(iv) No additional facts appear in the pending case that might be treated as significant.

It is not every fact in the precedent and pending case that must be considered to determine if the two case are factually similar.

Only facts that are significant or relevant to the resolution of the question in the precedent case and the pending case that should be considered. The precedent case and the pending case do not have to be identical in all facts. – Per E. A. Agim, JSC

CASE – WHETHER A CASE IS AN AUTHORITY ONLY FOR WHAT IT DECIDES

The learned Justices of the Court below in giving interpretation to the words employed by the drafters of the said provision, viz: resigned, withdrawn and retired have laid so much weight on the authority of Modibbo Vs. Usman (2020) 3 NWLR (Pt.1712)470 which I was privileged to write the lead judgment. Their Lordships seem to have lost sight of the trite position of the law that a case is an authority only for what it decides. See Anyakorah Vs. PDP & Ors (2022) LPELR- 56876(SC), Aliyu Vs. Namadi & Ors (2023) LPELR- 59742(SC), Izeze Vs. INEC & Ors (2018) LPELR-44284 (SC). – Per J. I. Okoro, JSC

PETITIONER – DUTY OF THE PETITIONER TO FILE ACTION TO CHALLENGE THE STATUS OF THE APPELLANT WITHIN 14 DAYS

The 1st Respondent, upon perceiving the likelihood of a breach of the provision of the Constitution ought to have filed the action challenging the purported none disengagement from public service by the Appellant within 14 days of the accrual of cause of action as prescribed by Section 285(9) of the Constitution. See Modibbo Vs. Usman (supra), APM Vs. INEC & Ors (2021) LPELR-58375 (SC).

The 1st Respondent, having failed to file an action to challenge the status of the Appellant within 14 days of her clearance on 27/4/2022, had lost the right of action to institute the suit. In other words, the suit commenced on 2/6/2022 was statute barred. – Per J. I. Okoro, JSC