The Court of Appeal, Abuja Division, will today deliver judgement in the appeal brought by candidate of the All Nigeria Peoples Party (ANPP) in the April 14 2007 governorship election in Niger State.

David Umaru, Governor Babangida Aliyu's opponent in that election, considers him an usurper in Minna Government House. The main thrust of this appeal is based on two issues, one, that the first respondent (Aliyu) did not resign as a public servant 30 days to the date of the election and secondly, that he never participated in the party's primary and thus not the rightful candidate to contest the election on the platform of the party that he represented. Umaru is, therefore, asking the court to give Aliyu the Celestine Omehia treatment by awarding the electoral victory to him. Will the Appeal Court grant Umaru's prayers or allow Aliyu to remain in the Minna Government House despite the similarities in his case and that of Omehia? LAW EDITOR Adam Adedimeji x-rays Umaru's arguments before the court.

The decision of the Election Petition Tribunal sitting in Minna in upholding the election of Governor Babangida Aliyu of Niger State has refused to dampen the moral of David Umaru, his opponent and candidate of the All Nigerian Peoples Party (ANPP) in the April 14, 2007 general elections. To Umaru, who strongly believes that he won the election in the Power State, he would not relent until his mandate considered stolen from him by PDP's Aliyu is retrieved through the instrumentality of the Court of Appeal.

Alhassan Gunna was PDP's obvious choice for the April 14, 2007 election, whose name was forwarded to Independent National Electoral Commission (INEC), at the time. Aggrieved by the alleged manner Gunna was hoisted on them by immediate past governor of the State, Abdullahi Kure, party leaders and their followers simply defected to the rival ANPP.

In a bid to pacify defectors, the party at the national level instituted a probe panel, which indicted Gunna and some of his supporters. This resulted in the forwarding of Aliyu's name, who did not participate in the PDP primaries that produced Gunna. Aliyu was then Permanent Secretary in the Ministry of Transport.

For these instances, the Niger case could be likened to that of Rivers State where Celestine Omehia gave way in what the Supreme Court interpreted as "improper conduct of PDP", to the emergence of Chibuike Amaechi as Governor,.

In his petition, Umaru told the Tribunal that Aliyu was not a candidate in the election. He also alleged that the governor did not properly disengage from public service as at the time of the election, and that the disengagement letters Aliyu parades were allegedly procured to obtain INEC clearance. Umaru also alleged that he scored majority valid votes in the election and should have been declared the winner by the electoral body.

To prove his claims, Umaru availed the election tribunal the correspondence suggesting that Aliyu did not retire from service. He also made available to the tribunal a certified true copy (CTC) of minutes of civil service functions, which Aliyu chaired in his capacity as Permanent Secretary on February 8, 2007, several days beyond the February 1, 2007 that he claimed to have retired.

He did not stop at that, he equally made available the CTC of statements of account from where Aliyu maintained his salary account. The account, according to the statement Umaru presented, showed that Aliyu drew his February 2007 salary on March 6, 2007. In addition, the ANPP candidate notified the tribunal that Aliyu failed to remit the compulsory salary in lieu of notice of retirement, which, he said was a precondition for the retirement letters being paraded by the governor. He drew the attention of the tribunal to section 182 (1) (g) of Constitution of Federal Republic of Nigeria, 1999 to press home his argument.

But, Aliyu would not give in cheaply as he argued that the February 2007 salary drawn by him was returned on March 6, 2007. The governor, who tendered a receipt to advance this argument, also said that he had paid the lawful required salary in lieu of notice on March 6, 2007 (not January 31, 2007 when he said he wrote to retire!).

In its judgement on June 9, 2008, the Justice Suleiman Kawu-led tribunal disregarded the civil service meetings, which Aliyu allegedly chaired on February 8, 2007. The tribunal held among other things that the evidence could not be said to be valid even though a CTC was tendered because the said document was not signed, and so "it is a worthless document."

The tribunal similarly held that since Aliyu was not shown to have utilised the February 2007 salary he drew, he (Aliyu) could not be faulted. It also held that the disengagement correspondence of Aliyu had brought to an end the employer-employee relationship between Aliyu and the Federal Civil Service.

Yet, the lower tribunal failed to state how the retirement correspondence became effective where the first respondent did not claim nor does the tribunal so find that requisite payment of salary in lieu of such notice was made alongside a retirement correspondence as enjoined by section 182 (1) (g) of the constitution of the Federal Republic of Nigeria 1999.

The Guardian on Tuesday, September 23, 2008, page 99 posited, "Niger State Elections Petitions Tribunal Verdict: Matters Arising", "The learned justices of the tribunal held that the letters of retirement and acceptance brought to an end the employment of the first respondent. In other words, they held that the two letters terminated the employer-employee relationship.

"For this position to be correct, it must be determined that the letters (exhibits P3301 and P3302, which were raised to establish that there was an application and an acceptance to retire) complied with the procedure stipulated by the Public Service Rule 2006 for termination of the contract by way of retirement, otherwise it would be void. For the law is trite that when a procedure is stipulated for the doing of anything by a statute or rules, that procedure and no other should be followed."

A Lagos-based lawyer and rights activist, Chinua Asuzu, seemed to toe the line of argument as espoused by The Guardian when he said that the tribunal was wrong to have dismissed the evidence given by Umaru and document tendered as "worthless" and invalid since a CTC was tendered. "What the tribunal ought to have done is to call for the original copy of the CTC since it had admitted it in evidence, because it meant that the original was somewhere else. I think the tribunal had a duty to make further inquiry into the document and not disregard what it earlier admitted in evidence," Asuzu further remarked.

Bisi Adegbuyi, also a lawyer and Action Congress (AC) candidate for the Ogun East Senatorial seat in the last election, believes that the Niger State governorship tussle is a clear indication that the tribunals have been in constant manipulation by the ruling party. He says, "Nigerians should look for an alternative because the issue of election rigging and the attendant tribunal and court processes have not given any hope to the electorate and Nigerians in general."

Nevertheless, the procedure for putting an end to employer-employee relationship in the Federal Civil Service as stipulated in Paragraph Seven of the Schedule to Chapter Two of the Public Service Rule 2006, which was tendered as (Exhibit P2645) states:

(I) "The government may at any time terminate the engagement of the person engaged by giving three months notice in writing or by paying one month salary in lieu of notice.

(2) The person engaged may at any time after the expiration of three months of service terminate his or her engagement by giving to the government three months'notice in writing or by paying to the government one month salary in lieu of notice".

The question that arises then is: what is the legal consequence of the void retirement? The law, according to lawyers, is certain that when an act is void, then it is of no legal effect. That is what the Court of Appeal has to determine because the first respondent, according to Umaru, was not qualified to contest the election into the office of governor of Niger State on April 14, 2007, "having not complied with the provision of section 182(1)(g) of the Constitution."

Interestingly, Aliyu's argument before the Court of Appeal sitting in Abuja holds that his notice of the disengagement of January 31, 2007, does not mean that he sought to retire by way of notice. Alternatively, the Governor wants the Court of Appeal to hold that the March 06, 2007 date of his payment is the effective date of retirement".

But Umaru, in support to his argument deposited before both the lower tribunal and the Appeal Court that he scored 173,614 valid votes in 18 local governments that are not in dispute and which votes sufficiently satisfy 25 per cent of 2/3 of the state, which, according to him, is requirement of 1999 Constitution.

Aliyu on the other hand made no single deposition before the courts but rather chose to rest his case on that of the petitioner, a posture described by the lower tribunal as a "wise legal strategy."

Umaru's attorneys, led by Mike Ahamba, Rickey Tarfa and Emeka Ngige, all Senior Advocates of Nigeria, submitted that "it has to be noted that parties filed depositions, which are useless in law unless are adopted. They (Aliyu) did not adopt a single deposition showing evidence of the retirement or resignation of the first respondent."

They are also seeking Court of Appeal's favourable consideration of same by urging the court to take Judicial Notice of the event.

Ahamba is leading other top lawyers before Justice Rabiu Mohammed Danlami-led Court of Appeal panel to press home an argument that Aliyu was not a candidate in the said April 14, 2007 governorship election in Niger State having not emerged through primaries, the only way known to PDP Constitution.

The petitioner's lawyers said: "On February 8, 2007, an event occurred in which the first respondent presided as the Permanent Secretary. I urge the court to allow the appeal and declare the petitioner as the governor of Niger State."

"There is no evidence or any claim whatsoever that Aliyu was re-nominated as governorship candidate at any time from March 6, 2007 that he now wants Court of Appeal to effectuate his disengagement from public service," petitioner's counsels argued.