By NNAMDI NWOKOCHA-AHAIWE

THE petitioners’ witnesses on the other hand had testified that the respondents did not resign their appointments at all or as prescribed by law. Orji (the governor) having not appeared at the tribunal at all nor called any witness to testify on this point was held to have failed to deny the allegation which the Tribunal then had no difficulty to find and hold to have been proved by the petitioners. In holding that the governor and his deputy did not resign their appointments in the public service of Abia State as required, the tribunal did not lose sight of the documents purporting to be their letters of resignation which were tendered in evidence. However, the tribunal decided to place no weight on them because they ought not to have been admitted in the first place since they were not pleaded and no evidence was adduced to lay foundation for their admission. No letter of resignation was listed among the list of exhibits attached to the respondent’s reply as mandatorily required by the Practice Directions.

The tribunal nonetheless examined the purported letters of resignation to see if they were worth the paper they were  written on and correctly found it was worthless. It is common knowledge that a resignation in the context of elections is of no use unless it can be shown to have been made at least 30 days to the date of the contested election. It is clear, therefore, that the relevant date of a letter of resignation is not that date on which it was written as shown on the face of such letter, but the date from which it is deemed to have taken effect. The purported letters of resignation did not have a stamp of the receiving authority and of course no date of receipt to determine whether they were  received and took effect on or before 30 days to the date of the contested election. It was the original letter which should have been in the custody of the receiving authority and not a copy kept by the respondent or, more to the point, a certified true copy since upon submission of the letter it becomes a public document to be proved only by certified copies. In view of all of the above and several other reasons, the tribunal found and held that the respondents did not resign their appointments in the Abia State Public Service and, therefore, were not qualified, ab initio, to have contested the election.

On the issue of  Orji’s membership of the Okija Secret Society, the petitioners, in their petition and the petitioners’ reply, pleaded detailed facts alleging that the 1st respondent (Governor Orji) was a member and leader of a secret society known as “Okija Secret Society” or “Ogwugwuakpu Okija” or “Okija Shrine” which names are used interchangeably. The pleadings in proof of this allegation were very detailed. Suffice it to say that it was clearly pleaded that Orji is a member of a secret society located in Ihiala LGA of Anambra State. It was pleaded that in 2006, Orji underwent a “special initiation ceremony” by the said secret society to prepare him for transfer of power and governance of Abia  State to him. The petitioners gave evidence in proof of this allegation and were cross-examined. The star witness on this issue was the PW5, one Mr. Olisabueze who claimed to be the secretary of Okija Secret Society.

The weighty allegations made by the petitioners against Orji regarding his membership of a secret society were not denied at all. The preponderance of the petitioner’s evidence on this point, which the tribunal found to be clear,  is deemed in law, proved without more. Without doubt, the question whether Okija is a shrine for oath taking according to Justice Shoremi and his brother judges or a secret society is a question of fact and not one of law. As with all questions of fact, they are resolved by evidence before the court. In the instant case, the only and overwhelming evidence before the tribunal was that Okija Shrine is a secret society of which Orji was a member and initiate. On appeal before Justice Shoremi and his colleagues, Orji and his deputy realizing that they could not fault the decision of the lower tribunal that they did not resign the offices they occupied and, therefore, were disqualified from contesting the election in the first place, decided to do a 360 degrees about turn to now argue that they did not need to resign in the first place because the offices of chief of staff, Government House, Umuahia and commissioner in the State Executive Council of Abia State were in fact not public offices and as such they did not need to resign.

Since this was a different position from the case they made out
at the lower  tribunal, and which, therefore, did not arise from the judgment appealed against, the appellants (Governor Orji and co.) filed a motion for leave to raise this new issue for the first time at the Court of Appeal. In spite of vehement opposition by the PDP and its candidates against this application to raise this issue which was not canvassed at the lower tribunal, which did not form part of the judgment appealed against, which was not an issue of jurisdiction and when no reason was adduced for failure to canvass it at the lower tribunal, Honourable Justice Shoremi and his brother judges granted the applicants leave to argue this new point. In their final judgment, the Honourable Justice Shoremi and his brother judges “unanimously” held that the position of chief of staff, Government House, Umuahia and that of commissioner in the Abia State Executive Council are not offices in the public service of a state. In doing this, they conveniently and deliberately failed to pronounce on whether the position of permanent secretary in the Abia State Civil Service, occupied by Orji at the time of the election as testified to by the petitioners at the tribunal and not denied by him, was or was not an office in the Abia State Civil/Public Service which required resignation having regard to the fact that Orji had in his pleadings expressly admitted that he was a  permanent secretary/chief of staff, Government House, Umuahia as at the time of the election.

What does the Constitution say? Chapter 6 of the Constitution of the Federal Republic of Nigeria, 1999 deals with “The Executive”. Part II (C) thereof provides for “The Public Service of a State.” Section 208 of the Constitution which is under Chapter 6, Part II C) provides as follows: (1) “Power to appoint persons to hold or act in the offices to which this section applies and to remove persons so appointed from any such office shall vest in the governor of the state. (2) The offices to which this section applies are, namely- (a) Secretary to the Government of the State; (b) Head of the Civil Service of the State; c) Permanent Secretary or other Chief Executive in any ministry or department of the government of the State howsoever designated; and (d) any office on the personal staff of the governor.”

The interpretation section of the Constitution at Section 318         defines “Civil Service of the State” as meaning: “service of the government of a State in civil capacity as staff of the office of the governor, deputy governor or a ministry or department of the government of the state assigned with the responsibility for any business of the government of the State.” The same section 318 of the Constitution defines “Public Service of a State” as meaning “the service of the State in any capacity in respect of the government of the State and includes service as – (a) Clerk or other staff of the House of Assembly; (b) member of staff of the High Court, the Sharia Court of Appeal, the Customary Court of Appeal or other courts established for a State by this Constitution or by a Law of a House of Assembly; (c ) member or staff of any commission or authority established for a State by this Constitution or by a Law of a House of Assembly; (d) staff of any Local Government Council; (e) staff of any statutory corporation established by a Law of a House of Assembly; (f) staff of any educational institution established or financed principally by a government of a State; and (g) staff of any company or enterprise in which the government of  a State or its agency holds controlling shares or interest”.