MORE REASONS WHY THE TRIBUNAL RULING IN ABIA CANNOT STAND: Part Two
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By: Attorney Aloy Ejimakor
April 8th, 2008
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This is the second part of a learned treatise on the nullification of the
election of Governor TA Orji of Abia State. Part one is already published and in
it, 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 Chief
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 Appeals 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
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