Posted by By ALOY EJIMAKOR on
This is the second part of a learned treatise on the nullification of the election of Governor TA Orji of Abia State. In the first part, I critiqued that part of the ruling holding Governor Orji to membership of a secret society.
This is the second part of a learned treatise on the nullification of the election of Governor TA Orji of Abia State. In the first part, I critiqued that part of the ruling holding Governor Orji to membership of a secret society. This second part will deal with the portion of the judgment that also resolved Ugochukwu's assertions of non-resignation against Orji and Akomas.
As was done in the previous piece, this one will be glanced off the pertinent provisions of the Nigerian Constitution and the Electoral Act and interspersed with some thorough analysis of the Nigerian (or common law) rules of evidence germane to all the material facts at issue.
Now to the main point of this treatise and the second basis for ruling against TA Orji - that he and Akomas did not resign their political appointments, which also were held by the tribunal to have met the definition of public or civil service within the provisions of the pertinent statutes. Leaving aside the unique nuances that can, at law, differentiate political appointments from public/civil service appointments for the moment, let us now turn to the legalities of adequate resignation.
Resignation is a word of art for describing an employee's voluntary termination of an ongoing employment by oral or written notice to the employer. At law and jurisprudence, resignation can be either actual or constructive. It is ‘actual' (or written) and therefore a no-brainer when there is sufficient litter of paper trails or real evidence clearly bearing the act of resignation.
The paper trail begins with a letter or some other form of written correspondence from the person resigning addressed to and received by the authority standing in law as the proper destination for the correspondence; and barring any printer's devil and allowances for lack of form or human error, a letter of resignation bears both the date of its writing and the effective date thereof. And the trail may continue with another correspondence (usually an acceptance letter) sent back to the person resigning informing him that his resignation has been accepted.
In this case, proving that one resigned is as simple as tendering the originating correspondence and its acceptance. But keep in mind that extant Nigerian law does not require resignation to be accepted in order to be valid for purposes of proving qualification to run for office. In other words, resignation can still be valid even when it appeared to have been unilateral, as the letter submitted by Akomas seemed to have suggested.
And no straightjacketing is required - meaning that there is no particular format required for resignation to pass legal muster, including the strict requirement of being dated or written to form as was held by the tribunal when it discredited Akomas' letter for lack of form.
The act of resignation, like all other human transactions, can sometimes be in dispute, and when that happens, it is often because it was not actual (written) or that it was written but missing the critical elements showing when it was written and when it became effective. In such a case, the fact-finder must proceed to the use of parole (mostly oral) evidence to determine whether resignation can be said to be, in point of law and fact, constructive.
And where a respondent rebuts with the defense that resignation was not required, the court must also examine whether employment has been terminated by some supervening event that rendered resignation superfluous. In other words, where actual resignation (or effective date thereof) is in material dispute and central to the final determination of important political rights between two disputants, a serious court must look to parole or other alternative evidence to disprove any assertion of the negative, especially where the popular will of super majorities of the voters of a state was also at stake.
But in all instances, the burden of proof and persuasion rests squarely and throughout with the party that brought the act of resignation into dispute - in this case, Chief Ugochukwu. And the burden even becomes greater because Ugochukwu is not in any privity with Chief Orji and Akomas with respect to whether they resigned or not. Therefore, without the lax rules allowed by the Abia tribunal, Chief Ugochukwu could have been held not to have the standing and thus not credible to raise the issue in ordinary judicial proceedings before our superior courts.
The legal and procedural rationale is simple and that is: if such wild bare assertions of the opposite are allowed a free reign in our courts of law, all of us will be in court everyday burdened to disproving claims as wild and prejudicial as being accused of grand larcenies, without the concomitant burden on the part of the accuser to prove the truth of the negative he is asserting.
The only parties in ordinary privity and thus possessing of clear standing to raise credible claims of non-resignation against Orji/Akomas are the Abia State government and the former Governor of Abia State, Dr. Orji Uzor Kalu, at whose pleasure both TA Orji and Akomas served as political appointees. Take this further to INEC which screened Orji and Akomas and did not find cause to disqualify them on the basis of non-resignation.
This point is being made because the tribunal seems to have applied the evidentiary doctrine of ‘rebuttable presumption' against Chief Orji and Akomas (instead of against Chief Ugochukwu) as if the allegation of their non-resignation was a plain truth raised by those under whom they served (with personal knowledge of the issue) or the agency that screened them (INEC). Therefore, lacking in any personal knowledge and absent credible hostile evidence compelled from or volunteered by those possessing personal knowledge, Chief Ugochukwu must be assumed at law to be a busy-body on a fishing expedition and thus imputed with the burden of strict proof of his bare assertions before any burden of impeachment, contradiction or rebuttal could be said to shift to Orji and Akomas. This, the tribunal did not do.
According to the record, the tribunal discredited Orji/Akomas' real evidence of their resignation on a finding of absence of some official stamp or other mark showing when the correspondence was made or received by the authorities (implying uncertainty of effective date or lack of form). Though, it never would have become necessary to hold Orji/Akomas to disproving what Ugochukwu has not yet proved, the tribunal can be said to have amazingly assumed the worst against Orji/Akomas or abandoned the path of good law (or reasoned analysis) and looked to only one aspect of legal proof of resignation. Simply put, the tribunal held Orji and Akomas to the strict and narrow absolutism of perfected paper trails as the only form of proving resignation (or disproving claims of non-resignation).
This is unknown to modern notions of our common law and jurisprudence which have long recognized as a settled rule that resignation can also be constructive when it can be proved by evidence other than the sort represented by some paper trails. Such other evidence is what is generally called parole (read: oral or admissible alternative) evidence, which is even used in resolving disputes implicating real property law - the only part of our common law that can be said to still strictly require everything to be in writing. In the case of Orji and Akomas, such parole evidence is legion and they are admissible to boot. For purposes of clarity, let me list some of them below and in seriatim.
More than thirty days to the election, there was no pay stubs or other credible financial records presented by Ugochukwu to corroborate his bare assertions that both Orji and Akomas continued to receive salaries as employees of Abia State government; Orji and Akomas had both held out to the whole world as no longer in the employ of Abia State government; they had stopped acting in their former capacities as employees of Abia State government; new people had been appointed to the positions they formerly held in Abia State government; Abia State government and the whole world at large had ceased seeing them or referring to them as occupying the offices at issue; there was no evidence-in-chief led by Ugochukwu showing that Orji or Akomas signed any letters or correspondence in which they passed off as officials of Abia State government, carried out any official functions in their former official capacities, received any financial emoluments entitling to those occupying the offices from which they resigned, or otherwise engaged in any other act that can be said to have reasonably established that they still continued to occupy positions as officials of Abia State government within the statutory time-line.
Keep in mind that, at law, both Orji and Akomas bore no burden of proving any of the foregoing or even disproving the opposite until Ugochukwu has amassed quantum material evidence weighty enough to discharge the many evidentiary presumptions against him. That any of them - Orji and Akomas went the extra mile to tender a letter of resignation represents a mere attempt at corroboration because, other than that letter, there is plenty of other competent evidence in plain view that preponderated in favor of the presumption that they were no longer public or civil servants long before the time-line mandated by law.
And above all, there was no scintilla of hostile evidence compelled or subpoenaed from Abia State government tending to show that Orji and Akomas continued in some form to be employees of the government. The uncorroborated parole evidence led by Ugochukwu demonstrating that Orji and Akomas were seen in official vehicles and continued to retain their official residences may, at first impression, appear material and damning but becomes rebutted, on a balance of probabilities, by the greater weight of the opposite parole evidence enunciated in the preceding paragraphs. This last point frames the further issue that the tribunal clearly erred by allowing Ugochukwu a free reign on leading liberal parole evidence but seemed to have held Orji and Akomas to the strict parameters of producing actual proof (or perfected letters) of resignation.
And for good measure, the tribunal should have taken administrative (or judicial, if you prefer) notice that both Chief Orji and Akomas ‘openly and notoriously' ceased to hold public office due to their disengagement by the former Governor Orji Uzor Kalu as far back as October 2006. This partly supports the pre-eminent issue framed by Orji's lawyers that the governor and Akomas never really needed to resign.
And the secondary point in favor, though most probably of first impression and thus bound to be contentious, is that the appointments they held are not hit by the legal definition of the sort that strictly requires resignation before seeking election into public office. In other words, they held political offices in the mold of all other public officers from Vice President Atiku, National Assembly members, governors and some political appointees who contested for elections while holding fast to their public (read: political) appointments.
Thus, in addition to further arguments and authorities that can be better developed and presented as an appellate brief, coupled with the points enunciated in the first part of this treatise, it is expected that upon balanced review of the record, the learned Court of Appeal will move to admit the appeal as meritorious and reverse the judgment in its entirety.
•Aloy Ejimakor is of Law Group International, Washington DC alloylaw@yahoo.com