CORAM
MARY U. PETER-ODILI JUSTICE, COURT OF APPEAL
MARY U. PETER-ODILI JUSTICE, COURT OF APPEAL
MARY U. PETER-ODILI JUSTICE, COURT OF APPEAL
PARTIES
HAJIYA JUMMAI JAFARUPEOPLES DEMOCRATIC PARTY APPELLANTS
MOHAMMED USMANALL NIGERIA PEOPLES PARTYRETURNING OFFICER LOCAL GOVERNMENTINDEPEDENDENT NATIONAL ELECTORAL COMMISSION RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Petitioner/Appellant participated in the Niger State House of Assembly election to represent Chanchaga Constituency. After the election, the 1st Respondent was returned into office as he was declared the winner. Aggrieved with the result of the election, the Petitioner/Appellant presented this petition challenging the election and return of the 1st Respondent on the ground that the 1st Respondent was not qualified to stand election into the office under reference as he had not resigned from the service of the Niger State Government. The tribunal dismissed the Petitioner’s/Appellant’s petition hence, this appeal at the instance of the Petitioner/Appellant.
HELD
Appeal allowed
ISSUES
Whether the Tribunal was right when it held that the 1st respondent resigned his appointment 30 days before the election of 14/4/07Is the burden of proving a valid notice of retirement on the petitioners, or on the respondents in this case 4Was the Lower Tribunal right in law when it stopped one of the petitioners’ witnesses from concluding his evidence – in – Chief.
RATIONES DECIDENDI
SUPREMACY OF THE CONSTITUTION- THE CONSTITUTION CAN NEITHER BE ADDED TO NOR TAKEN FROM BY ANY OTHER LEGISLATION EXCEPT BY DUE PROCESS OF AMENDMENT
‘‘The Constitution is the basic law of the land which can neither be added to nor taken from by any other legislation or enactment except by due process of Constitutional amendment.’’PER. M. U. PETER-ODILI, JCA
DISQUALIFICATION OF CANDIDATE – UPON DISQUALIFICATION OF A DECLARED WINNER THE PERSON WITH THE SECOND HIGHEST VOTES WILL BE DECLARED WINNER IF THE ELECTORS WERE AWARE OF FACTORS LEADING TO THE QUALIFICATION
‘‘Where a candidate is disqualified after being elected, naturally the votes cast for him at the election would not count for any purpose whatsoever. However, the other candidate who opposed him at the election cannot be declared returned automatically without more and this is notwithstanding that he secured the next highest number of votes. He is required to further show that the electors were aware of the factors that gave rise to the disqualification, therefore the Appellant or whoever who have scored the next highest number of votes cannot be declared returned. See Mohammed v. Ali (1989) 1 NWLR (pt. 103) 349; Mele v. Mohammed (1999) 3 NWLR (pt. 595) 425 at 436 .’’PER. M. U. PETER-ODILI, JCA
ELECTION TO A HOUSE OF ASSEMBLY- WHETHER A PERSON EMPLOYED IN THE PUBLIC SERVICE OF THE FEDERATION IS QUALIFIED FOR ELECTION TO A HOUSE OF ASSEMBLY.
‘‘By virtue of Section 107 (l) (f) of the 1999 Constitution no person shall be qualified for election to a House of Assembly if he is a person employed in the public service of the Federation or of any State and he has not resigned, withdrawn or retired from such employment thirty days before the date of election. Adefemi v. Abegunde (2004) 15 NWLR (pt. 895) 1.’’PER. M. U. PETER-ODILI, JCA
RESIGNATION FROM EMPLOYMENT – WHAT DOES RESIGNATION FROM EMPLOYMENT ENTAIL
‘‘Resignation from employment is by the giving of the required length of notice or payment in lieu of notice.’’PER. MARY U. PETER-ODILI, JCA
RIGHT OF RESIGNATION OF APPOINTMENT – A CANDIDATE’S RIGHT OF RESIGNATION OF APPOINTMENT THIRTY DAYS BEFORE THE ELECTION CANNOT BE INTERFERED WITH BY ANY OTHER LEGISLATION EXCEPT THE CONSTITUTION
‘‘The right of a candidate to resign his appointment thirty days before the election, cannot be taken away or interfered with by the conditions of service or any other legislation or statutory provision except the Constitution itself. See Adefemi v. Abegunde (2004) 15 NWLR (pt. 895) 1 at 29; Tukur v. Government of Gongola State (1989) 4 NWLR (pt. 117) 517; Oloba v. Akereja (1988) 3 NWLR (pt. 84) 508; Adisa v. Oyinwola (2000) 10 NWLR (pt. 674) 116 “. PER. M. U. PETER-ODILI, JCA
CASES CITED
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria, 1999