CIVIL SERVANTS AND RESIGNATION BEFORE PARTY PRIMARIES:

CIVIL SERVANTS AND RESIGNATION BEFORE PARTY PRIMARIES: THE FINALITY OF THE SUPREME COURT DECISION IN AIDA NATH OGWUCHE v. HON. FRANCIS OTTAH AGBO & 2 ORS (2023) JELR 111776 (SC)

In recent weeks, I have been inundated with a deluge of calls and messages from friends, colleagues, and legal practitioners seeking clarification on a recurring question in Nigeria’s electoral jurisprudence. The question is whether or not a civil servant must resign his or her appointment before participating in or contesting a party primary election.

This debate gained fresh impetus following the timely Advisory Directive issued by the Honourable Attorney-General and Commissioner for Justice of Ondo State, Dr. Olukayode Ajulo, OON, SAN. In that advisory, Dr. Ajulo drew a clear distinction between political appointees, who were directed to resign on or before 31st day of March 2026 to enable full participation in party primaries ahead of the 2027 general elections and career civil servants. For the latter category, he re-emphasised the constitutional position that resignation, withdrawal, or retirement is required only “at least thirty (30) days before the date of the general election” under Sections 66(1)(f), 107(1)(f), 137(1)(g), and 182(1)(g) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

I write this essay not because I am a civil servant contesting for election into the Ondo State House of Assembly, but purely in furtherance of legal education and as a modest contribution to the development of electoral law in Nigeria. The constitutional question has now been authoritatively and finally settled by the Supreme Court of Nigeria.

This essay examines the locus classicus in Aida Nath Ogwuche v. Hon. Francis Ottah Agbo & 2 Ors (2023) JELR 111776 (SC); (2023) 17 NWLR (Pt. 1913) 339; tracing the matter from the trial court through the Court of Appeal to its definitive resolution at the apex court.

The Constitutional Provisions in Issue and the relevant provisions are identical in substance across the various elective offices as follow:.Section 66(1)(f) (in relation to membership of the National Assembly) provides: “No person shall be qualified for election to the Senate or the House of Representatives if (f) he is a person employed in the public service of the Federation or of any State and has not resigned, withdrawn or retired from such employment thirty (30) days before the date of the election.

Similar provisions also appear in Sections 107(1)(f) (House of Assembly), 137(1)(g) (President/Vice-President), and 182(1)(g) (Governor/Deputy Governor).

The key interpretive question has always been whether or not the phrase “thirty (30) days before the date of the election” refers exclusively to the general election or extends backwards to the party primary that produces the party’s candidate.

The facts of the Ogwuche Case is that
Mrs. Aida Nath Ogwuche, a lawyer and staff of the Federal Inland Revenue Service (FIRS), an agency in the public service of the Federation had been granted two years’ leave of absence without pay by her employer to enable her to serve as Principal Special Assistant to the Governor of Benue State.

On 28th day of February 2022, she resigned that political appointment in order to contest the Peoples Democratic Party (PDP) primary election for the Ado/Okpokwu/Ogbadibo Federal Constituency of Benue State. The PDP primary was conducted on 23rd day of May 2022.

Ogwuche emerged victorious at the party primary and was issued a Certificate of Return as the party’s candidate. It was only after winning the primary (on 25 th day of May 2022) that she formally wrote to the FIRS resigning her substantive employment. The letter was received by FIRS on 26th day of May 2022.

Hon. Francis Ottah Agbo, the first runner-up at the primary, approached the Federal High Court, Makurdi, by originating summons. He contended that Ogwuche was disqualified under Section 66(1)(f) of the Constitution of the Federal Republic of Nigeria 1999 ( as amended) because she had not resigned from the public service before participating in the party primary.

He relied heavily on the Public Service Rules (particularly Rule 030423 of the 2008 Edition), which require an officer wishing to seek elective public office to resign “forthwith” before engaging in partisan political activities.

In a well-considered judgment delivered on 21st day of November 2022, the trial Federal High Court (per Honourable Justice) dismissed Agbo’s suit in its entirety. The trial court held that the constitutional disqualification in Section 66(1)(f) is triggered only in relation to the general election, not the internal party primary. It further held that Ogwuche’s earlier grant of leave of absence without pay amounted to a valid “withdrawal” from active public service within the contemplation of the Constitution.

The court refused to import the stricter timelines of the Public Service Rules into the constitutional provision, declaring Ogwuche qualified to contest both the primary and the general election.

Having dissatisfied, Agbo appealed to the Court of Appeal, Abuja Division. In a unanimous decision delivered on 12th day of January 2023 and reported as LPELR-59518(CA), the Court of Appeal allowed the appeal, set aside the judgment of the Federal High Court, and declared Ogwuche’s nomination null and void.

The appellate court reasoned that “election” under the Constitution is a continuous process that includes party primaries (relying on the Supreme Court’s earlier definition in Yar’Adua v. Yandoma (2014) LPELR-24217(SC)). It held that Ogwuche remained a public servant until her formal resignation letter of 25the May 2022, which came after the primary. On the issue of leave of absence without pay, the court held, that it did not constitute “resignation, withdrawal or retirement” under Section 66(1)(f).

The Public Service Rules were treated as validly reinforcing the constitutional intent. Consequently, the Court of Appeal ordered the PDP and INEC to recognise Agbo as the duly nominated candidate.

However, Agbo’s victory at the Court of Appeal was short-lived. Ogwuche promptly appealed to the Supreme Court (Appeal No. SC/CV/119/2023). On 22nd day of February 2023, a panel of the apex court led by Honourable Justice John Inyang Okoro, JSC, delivered a unanimous judgment allowing Ogwuche’s appeal, setting aside the decision of the Court of Appeal, and restoring the judgment of the Federal High Court in its entirety.

In a landmark judgement that has now become the finality on the subject matter, the Supreme Court held as follows: that the thirty (30)-day rule is referable only to the general election. The disqualification under Section 66(1)(f) (and its sister provisions) is measured against the date fixed for the general election, not the date of the party primary.

The Supreme Court further reinstated that Party primaries are internal affairs of political parties and do not constitute the “election” contemplated by the Constitution.

According to the apex Court, “Withdrawal” is a distinct and sufficient mode of disengagement. The Constitution expressly provides three alternatives to wit: resignation, withdrawal, or retirement. Ogwuche’s two-year leave of absence without pay, granted by FIRS before she ventured into active politics, satisfied the requirement of “withdrawal”. She was therefore not in active public service employment at the material time.

The Supreme Court went further, that Public Service Rules are subordinate to the Constitution. While the Rules impose stricter administrative requirements, they cannot expand or override the clear and unambiguous words of the Constitution. Hence, any attempt to read a pre-primary resignation mandate into Section 66(1)(f) would amount to judicial legislation.

The Supreme Court also emphasised that once a civil servant has disengaged by any of the three constitutionally recognised means at least thirty (30) days before the general election, he or she is qualified to participate fully in the electoral process, including contesting party primaries.

This decision aligns with the earlier Supreme Court position in INEC v. Musa (2003) on the right of public servants to join political parties under Section 40 of the Constitution, while clarifying the precise timing of disengagement.

There is no doubt, that the Supreme Court’s decision in Aida Nath Ogwuche v. Hon. Francis Ottah Agbo & 2 Ors (2023) JELR 111776 (SC) represents the final, binding interpretation of Sections 66(1)(f), 107(1)(f), 137(1)(g), and 182(1)(g) of the 1999 Constitution. Career civil servants may lawfully remain in office, participate in party primaries, purchase nomination forms, campaign, and emerge as candidates, provided they resign, withdraw, or retire from the public service at least thirty (30) days before the date fixed for the general election by INEC.

Therefore, the Advisory Directive of the Ondo State Attorney-General is in line with the constitutional provisions of the 1999 Comstitition (as amened). It correctly advises political appointees to resign earlier for practical and political reasons, while reaffirming that career civil servants need only comply with the thirty-day pre-general-election window.

Any stricter interpretation by employers or political parties must now yield to this Supreme Court authority.

In conclusion, the law has spoken with finality. Civil servants who wish to serve their country through elective office no longer labour under the uncertainty of an earlier resignation deadline. The Constitution protects their right to participate in the democratic process up to the constitutional limit. That is the position of the law as it stands today, and it is the position that must guide all stakeholders in the 2027 election and beyond.

Moreso, Civil servants intending to contest the 2027 elections in Ondo State (or anywhere in Nigeria) may therefore proceed with confidence: they are constitutionally entitled to participate in party primaries while still in service. They need only perfect their disengagement thirty days before the general election. Any contrary advice, query, or disciplinary threat that ignores this Supreme Court authority is, with respect, untenable in law.

The Supreme Court has spoken. The debate is over. The law is now settled.

Odogbo Ikiyouleimo Success, Esq. B.A. (Hons), MISM, LL.B, B.L, LL.M (ABUAD)

Ondo State Ministry of Justice and
Aspirant: Ondo State House of Assembly, Ese Odo State Constituency.

11h day of April. 2026.