CORAM

---

JOSEPH EYO EKANAM -Justice of the Court of Appeal

BINTA FATIMA ZUBAIRU-Justice of the Court of Appeal

PAUL AHMED BASSI-Justice of the Court of Appeal

---

PARTIES

---

1. HON. LINUS ABBA OKORIE

2. LABOUR PARTY

APPELLANTS 

---

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

2. ANI ANTHONY OKORIE

3. ALL PROGRESSIVES CONGRESS (APC)

RESPONDENTS 

---

AREA(S) OF LAW

---

ELECTORAL LAW, CONSTITUTIONAL LAW, EVIDENCE LAW, ADMINISTRATIVE LAW, EMPLOYMENT LAW, CIVIL PROCEDURE, PRACTICE AND PROCEDURE

 

---

SUMMARY OF FACTS

The case arose from a bye-election conducted by INEC for the Ebonyi South Senatorial District seat in the National Assembly on February 3, 2024. The 1st appellant (Hon. Linus Abba Okorie) contested the election under the platform of the Labour Party (2nd appellant). The 2nd respondent (Ani Anthony Okorie), who was employed as a lecturer at the Federal University of Technology, Owerri (FUTO), contested and won the election under the platform of the All Progressives Congress (3rd respondent). The appellants challenged the 2nd respondent’s victory at the National Assembly Election Petition Tribunal, arguing that he was not qualified to contest as he had not properly resigned from his public service position 30 days before the election as required by law. The Tribunal dismissed the petition, leading to this appeal.

 

---

HELD

---

1. The appeal was dismissed for lacking in merit.

2. The Court held that the appellants failed to discharge their burden of proving that the 2nd respondent did not resign his appointment within the specified time.

3. The Court found that the 2nd respondent’s resignation was effective from December 20, 2023, well before the election.

4. The parties were ordered to bear their costs.

 

 

---

ISSUES

---

1.Whether, having regard to the admissible evidence presented by the parties, the Tribunal was correct to hold that the appellants failed to prove that the 2nd respondent was, at the time of the election, not qualified to contest the election.?

 

---

RATIONES DECIDENDI

---

BURDEN OF PROOF IN DECLARATORY RELIEFS – REQUIREMENT OF SATISFACTORY EVIDENCE

---

 “The law is that Courts do not make declaration of rights either on admission or default of pleading but only on satisfactory evidence. A party seeking such relief must succeed on the strength of his own case and not on the weakness of the case of his opponent. It is immaterial that the appellants asserted the negative of the issue.” – Per JOSEPH EYO EKANEM, J.C.A.

 

---

RESIGNATION – EFFECTIVE DATE OF EMPLOYEE RESIGNATION

---

“The law is 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.” – Per JOSEPH EYO EKANEM, J.C.A.

 

---

DOCUMENTARY EVIDENCE – BINDING EFFECT OF TENDERED DOCUMENTS

---

“A party who has tendered a document in Court and is admitted as an exhibit cannot disassociate himself from a portion of the document and associate himself with the other portions. He cannot do so. Both law and equity will not allow him do so.” – Per JOSEPH EYO EKANEM, J.C.A.

 

---

SCOPE OF CONSTITUTIONAL RESIGNATION PROVISIONS – APPLICATION TO OFFICES

---

“It is clear that the provision applies to a person who is appointed, elected or otherwise selected to any office established by the Constitution. The office of lecturer in the university is not established by the Constitution.” – Per JOSEPH EYO EKANEM, J.C.A.

 

---

EFFECT OF SALARY PAYMENT AFTER RESIGNATION – ADMINISTRATIVE ERROR

---

“…where a person has taken steps he is required by law to take, in this case, submit his letter of resignation, the refusal, failure or neglect of the relevant officials to do their part, in this case, stop the payment of his salary cannot be visited on the person.” – Per JOSEPH EYO EKANEM, J.C.A.

 

---

BURDEN OF PROOF – NEGATIVE ASSERTIONS IN ELECTION PETITIONS

---

“The onus was on the respondent who was the petitioner in the Tribunal to prove that the appellant had not resigned, withdrawn or retired from the said employment.” – Per JOSEPH EYO EKANEM, J.C.A.

 

---

PROOF OF RESIGNATION – BURDEN ON PETITIONER

---

“The burden was on the appellants, who sought declaratory reliefs, to plead facts to show the material date on which the 2nd respondent ought to have resigned his appointment and to lead credible evidence to prove that the 2nd respondent did not do so.” – Per JOSEPH EYO EKANEM, J.C.A.

 

---

HEARSAY EVIDENCE – TESTIMONY OF NON-STAFF

---

 “The testimony of the PW44 (the 1st appellant) who is not a staff of FUTO is nothing but hearsay.” – Per JOSEPH EYO EKANEM, J.C.A.

 

---

ABSOLUTE RIGHT TO RESIGN – EMPLOYER’S DISCRETION

---

“This is because the law is that there is absolute power to resign and no discretion to refuse to accept the notice of resignation.” – Per JOSEPH EYO EKANEM, J.C.A.

 

---

PLEADINGS – BINDING EFFECT ON PARTIES

---

“The law is that parties and the Court are bound by their pleadings and no party will be allowed to depart from the case set up in his pleadings to set up a different case in Court.” – Per JOSEPH EYO EKANEM, J.C.A.

 

---

BURDEN OF PROOF – REQUIREMENT OF CREDIBLE EVIDENCE

---

“Having not led evidence to discharge the burden of proof on them to show that the 2nd respondent did not validly resign his appointment within the specified time, the onus did not shift to the 2nd respondent to lead evidence to show that he did resign within the specified time.” – Per JOSEPH EYO EKANEM, J.C.A.

 

---

PAYMENT IN LIEU OF NOTICE – EFFECT ON RESIGNATION

---

“The date of payment as shown in Exhibits P63, P65, P66 and R28 cannot be used to relieve the appellants of the burden to lead credible evidence as to the date of receipt of the letter of resignation which the appellants failed to do.” – Per JOSEPH EYO EKANEM, J.C.A.

 

---

PROOF OF RECEIPT – REQUIREMENT OF INSTITUTIONAL WITNESS

---

“Since the burden was on the appellants to lead satisfactory evidence to show that the 2nd respondent did not resign within the specified time, they ought to have called a witness from the university to testify as to the date of the receipt of the said letter.” – Per JOSEPH EYO EKANEM, J.C.A.

 

---

CASES CITED

---

---

STATUTES REFERRED TO

---

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Evidence Act, 2011

3. Electoral Act, 2022

 

CLICK HERE TO READ FULL JUDGEMENT

---