Can Salary Payment After Resignation Notice Disqualify a Candidate from Election?

CASE TITLE: OKORIE & ANOR v. INEC & ORS (2024) LPELR-62967(CA)

JUDGMENT DATE: 9TH OCTOBER, 2024

JUSTICES: JOSEPH EYO EKANEM
BINTA FATIMA ZUBAIRU
PAUL AHMED BASSI

DIVISION: ENUGU

PRACTICE AREA: ELECTION PETITION

FACTS:

This appeal borders on an election petition.

This appeal is against the judgment of the National Assembly Election Petition Tribunal, Ebonyi State sitting at Abakaliki delivered on 15 August, 2024.

The 1st respondent conducted a byelection for the seat of Ebonyi South Senatorial District in the National Assembly on 3/2/2024. The 1st appellant contested the election and was sponsored by the 2nd appellant. Apart from other candidates, the 2nd respondent contested the election on behalf of the 3rd respondent. He was employed as a lecturer at the Federal University of Technology, Owerri (FUTO). At the end of the election, the 1st respondent declared and returned the 2nd respondent as the winner of the election. Dissatisfied with the turn of events, the appellants filed a petition against the return at the Tribunal. One of the grounds of the petition was that:

“The 2nd respondent was, at the time of the election, not qualified to contest the election.”

The appellants (petitioners) challenged the 2nd respondent’s purported resignation, arguing that having received a salary payment from FUTO after the notice of resignation was given, his employment still exists.

The respondents filed their replies, joining issues with the appellants.

After the pre-hearing session, the petition proceeded to trial. After taking written addresses by counsel for all sides, the Tribunal, dismissed the petition of the appellants for failure to prove any of the grounds of the petition.

Aggrieved by the decision, the appellants appealed.

ISSUES FOR DETERMINATION:

The Court considered a sole issue, viz:

“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.”

COUNSEL SUBMISSIONS:

The learned counsel for the Appellant contended that it is only on the effective date of resignation that an employee ceases to be entitled to his salary and that it is immaterial that he did not utilize the salary when received or that he refunded the same. He added that the burden was on the 2nd respondent who made Exhibit P61/R25 (the notice of resignation) to prove that it was received and the date of the receipt in satisfaction of Section 306(2) of the 1999 Constitution but he failed to discharge that burden. He stressed that there was no iota of evidence that indicated that the notice of resignation was ever submitted to or received by FUTO except Exhibit P67/R26A, which acknowledged its receipt on 23/1/2024 after the payment in lieu of notice had been made. He added that the payment of January 2024 salary to the 2nd respondent was not in error but in the normal course of fulfilment of the university’s obligation to her employee, the 2nd respondent.

Counsel stated that the admission of shortage in the length of notice of resignation was made by the 2nd respondent in paragraph 21(g) of his reply and that it was conclusive of the fact that there was no resignation until the date of payment of salary in lieu of notice. He stated that proof of service of a letter of resignation from public service is by the production of an endorsement copy of the document allegedly received or an acknowledgment letter that indicates the date of the receipt of the letter. He submitted that the 2nd respondent failed to show this.

​Counsel for the 2nd respondent set out what he said was the case of the appellants at the Tribunal and stated that they did not plead facts to show the 2nd respondent’s non-resignation and the material date on which the 2nd respondent ought to have resigned his employment to contest the election. He submitted that the case of appellants is declaratory in nature and that they assumed a duty to prove all their allegations based on the strength of their own case and not on the presumed weakness or admission on the part of the defence. He posited that the appellants were obliged to call evidence from FUTO to establish that the 2nd respondent did not resign his employment, which he said they failed to do.

3rd respondent’s counsel contended that the appellants had the burden to prove that the 2nd respondent was not qualified to contest the election and that a party who makes a negative assertion has the onus to prove the same in a case of this nature. She posed a question as to whether the appellants were able to prove the allegations and gave a negative answer to the question.

The 1st respondent did not file a brief of argument.

DECISION/HELD:

In the final analysis, the appeal was dismissed.

RATIO:

ELECTORAL MATTERS: QUALIFICATION/DISQUALIFICATION: Whether the payment of salary into the account of a candidate after giving notice of resignation from employment will disqualify such candidate from election

“The fact that salary for January 2024 was paid into the account of the 2nd respondent, after he had resigned from his employment, cannot be used against him nor can it serve to revive what had come to an end. This is especially so as payment of salary into his account was not in his control and also that there is evidence that he paid back the “salary” that was wrongly credited to his account.

I am fortified in my reasoning above by the case of Osho v. Adeleye supra, where it was held that “…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.” See also Zarewa v. Falgore supra. and Ahmed v. INEC (2023) LPELR-61263(CA). I fail to see any agreement between the parties that the 2nd respondent remained in the public service a few days after the election, as canvassed by the appellants’ counsel. The assertions in the various pleadings referred to by counsel for the appellants do not bear out his stance. Counsel put a strained construction on the said paragraphs.” Per EKANEM, J.C.A.

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