While the Peoples Democratic Party and its governorship candidate in Lagos State, Jimi Agbaje, have yet to appeal the dismissal of their petition against the victory of Governor Akinwunmi Ambode, two lawyers have taken it upon themselves to appeal the decision of the Justice Mohammad Sijaro-led panel, which affirmed Ambode’s victory.
The lawyers, Chief Richard Ahonaruogho and Mr. G.O. Giwa-Amu, are, in their separate notices of appeal, seeking re-assignment of the petition by Agbaje and the PDP to another tribunal for fresh hearing.
On July 1, 2015, Sijaro, leading the three-man Lagos Governorship Election Petitions Tribunal, had struck out the petition by the PDP and Agbaje after adjuging that the petition was incompetent and academic.
The tribunal, comprising Sirajo, Justice Gloria Anulude and Justice Ayotunde Rotimi-Balogun, had observed that though the petitioners prayed for an order invalidating and sacking Ambode as Lagos State Governor, they did not, however, pray for the conduct of a fresh election.
Sirajo and his team, who held that an order for fresh election could not be made unless requested, wondered if a state of anarchy would not be created in Lagos State if Ambode was removed and there was no fresh election to fill the position.
“Now, it is trite that a party cannot be granted a relief not sought for. A court or tribunal cannot grant a prayer outside the ones set down in the petition. In Ige vs. Olunloyo (supra) the Supreme Court pointedly maintained that no court has power to grant reliefs and remedies not claimed before it. This is so because the court or tribunal is not a charitable organisation.
“In the instant petition, apart from seeking an order nullifying the election of the second respondent, the petitioner did not ask for an order of fresh election. So, if, for instance, the election is nullified, the people of Lagos State would be left in an anarchic situation as no order can validly be made for the conduct of fresh election, same having not been sought for.
“A petition that is found on disqualification of a respondent and an order of nullification of the election must, of necessity, contain a prayer for an order of fresh election. Where such a prayer is lacking, the petition will be incompetent and academic as even the resolution of such a petition in favour of the petitioner will not confer any utilitarian value on the petitioner(s).
“Where no relief for fresh election is claimed in a petition, a ground of petition founded on section 138(1)(b) of the Electoral Act and the entire petition itself are incompetent and liable to be struck out,” the tribunal held.
However, in the five-ground notice of appeal filed on July 15, 2015 before the Lagos Division of the Court of Appeal, Ahonaruogho, a Lagos-based lawyer, disagreed with the tribunal that the failure of the PDP and Agbaje to pray for fresh election was fatal to their petition.
According to Ahonaruogho, pursuant to Section 140 of the Electoral Act, 2010 (as amended), the tribunal had the inherent power to order fresh election even without being asked, where the candidate with the highest number of votes had been disqualified.
Ahonaruogho said, “By virtue of Section 140(2) of the Electoral Act 2010 (as amended), the tribunal is mandated to make an order as to the conduct of a fresh election upon the nullification of the election on the grounds of disqualification of the candidate with the highest number of votes at the election, or substantial irregularities or non-compliance with the provisions of the Electoral Act.
“Section 140 of the Electoral Act, 2010 does not impose any duty on the petitioners to specifically pray the tribunal for an order of fresh election. It suffices that the petitioners sought an order nullifying the election of the second respondent, more so when there is another prayer for the 1st petitioner to be declared the winner of the election.”
The appellant urged the appellate court to upturn the ruling of the Sirajo-led tribunal because “the two applications which led to the ruling are interlocutory applications.”
Ahonaruogho said the tribunal erred in law and acted outside jurisdiction when it took the interlocutory applications filed by Ambode and his party, the All Progressives Congress, contrary to the mandatory provisions of paragraph 27(1) of the 1st Schedule to the Electoral Act, 2010 (as amended).
The appellant also described as “preemptive, premature and perverse” the decision by the Sirajo-led tribunal to hear and rule upon the consolidated preliminary objection filed by Ambode and the APC without at all going into the petitioners’ case.
Ahonaruogho urged the higher court to either order a fresh hearing into the PDP and Agbaje’s petition or to itself determine the case on its merit.
On his own part, Giwa-Amu, who filed a six-ground notice of appeal dated July 13, 2015, contended that the findings of the Sirajo-led tribunal were not supported by the Electoral Act 2010.
Giwa-Amu said the tribunal offended paragraph 12(5) of the 1st Schedule to the Electoral Act 2010 “when it proceeded to hear the preliminary objection of the 2nd respondent dated the 15th day of June, 2015 in a preemptive and premature manner without hearing the substantive petition.”
“The honourable judges of the election tribunal, having overruled the objection of the applicants/respondents in respect of the petitioners/appellants’ grounds of petition in paragraph 13(b) of the petition, erred in law in striking out the entire petition without adjudicating on the issues arising from the said ground for the petition in the said paragraph,” Giwa-Amu furher argued.
Meanwhile, our correspondent gathered that Agbaje and the PDP, through their counsel, Mr. Clement Onwuenwunor, have also prepared their notice of appeal and will file same before the expiration of 90 days period of grace after the ruling of the panel.
Ambode, after polling 811,994 votes in the April 11, 2015 Lagos State governorship election, had been declared winner by the Independent National Electoral Commission ahead of Agbaje who garnered 659,788 votes.
But Agbaje and his party, the PDP had gone before the Sirajo-led tribunal, claiming that the election which Ambode won was conducted in breach of INEC’s regulations or guidelines, adding that the said election was fraught with irregularities.
The petitioners had therefore sought an order sacking Ambode.
In opposition, however, Ambode and his party, APC, through their counsel, Chief Wole Olanipekun (SAN) and Dr. Muiz Banire, now also a Senior Advocate of Nigeria, filed a consolidated premilinary objection.
While canvassing argument in support of the objection, Olanipekun had insisted that the petition filed by Agbaje and the PDP was incompetent, saying there was nothing in the petitioners’s papers directly challenging his client’s victory.
Olanipekun, who urged the tribunal to dismiss the petitioners’ case, said the reliefs they were seeking conflicted with Section 285(2) of the constitution.
He said, “I submit that there is no petition before Your Lordships known to law.
“The grounds and particulars in the petition are in opposition with the facts and reliefs being sought within the purview of Section 285(2) of the 1999 Constitution.
“There are no grounds challenging the election of my client under Section 138(b)(c) of the Electoral Act 2010 as amended.”
Banire, in his own argument, described the petition by Agbaje and PDP as “groundless” and one that should be struck out.
“This is a groundless petition, there is no petition before Your Lordships.
“I pray that the purported document before Your Lordships should be struck out,” Banire said.
However, counsel for Agbaje and the PDP, Onwuenwunor, maintained that the petition was competent and that the issues for determination by the tribunal had been carefully spelt out.
Onwuenwunor said the objection filed by Ambode and the APC was merely relying on technicalities rather than the ingredient of the case.
He pointed the attention of the court to paragraph 13 (a) and (b) of his client’s petition, which he said was questioning the compliance of the of conduct of the April 11 governorship poll in Lagos State with the Electoral Act guidelines.
The tribunal however upheld the defendants’ preliminary objection and struck out the petitioners’ case.