Lagos guber: Sanwo-Olu, Hamzat file final written address, claim Rhodes-Vivour lacks evidence

Governor Babajide Sanwo-Olu and his deputy, Dr. Obafemi Hamzat, have petitioned the Lagos State Governorship Election Tribunal to dismiss the case submitted by the Labour Party’s (LP) Governorship Candidate, Gbadebo Rhodes-Vivour, for a lack of evidence to back up his assertions.

In a 43-page final written address filed on July 22, Sanwo-Olu and Hamzat asked the three-member tribunal to take note of the petitioner’s lack of sincerity for the petition, noting that he did not file a witness statement or present personally to substantiate his own case.

The APC in its response to the petition of Rhodes-Vivour also submitted that no evidence had been put before the Justice Arum Ashom panel to sway its mind that the votes cast for Gov. Babajide Sanwo-Olu were not lawful or that the election was not conducted in substantial compliance with the relevant laws.

In the March 18 governorship elections, the Independent National Electoral Commission, INEC declared Sanwo-Olu and Hamzat winners after having scored 762, 134, the majority of lawful votes cast across all polling units, wards and local governments in Lagos state and having also satisfied the constitutional geographical spread requirement.

The petitioner, Gbadebo Rhodes-Vivour scored 312,329, to place second in the polls, a figure that is less than half of the votes scored by the declared winners and about 27 percent of the total number of valid votes at the elections.

He subsequently approached the court on April 9 to challenge the outcome of the elections on what Sanwo-Olu and Hamzat describe as “sundry trumped up grounds” including alleged non-qualification and alleged corrupt practices or non-compliance with the provisions of the Electoral Act, 2022.

In facts put before the Tribunal, the respondents said, “The petitioner called nine witnesses in relation to the ground of non-compliance spanning 20 local governments and over 13,000 polling units in Lagos and one subpoenaed pseudo expert witness for the ground of non-qualification. In all, the petitioner called only one polling unit agent who had to be compelled to give evidence by subpoena.

“To show the non-participation of the Labour Party in this petition, the petitioner had to apply for a subpoena to be issued on PW 9 who gave evidence as the party secretary and stated that he did not attend the tribunal to give evidence voluntarily and would not have attended proceedings but for the subpoena.”

Through their lawyers, Wole Olanipekun (SAN), leading Adesegun Ajibola (SAN), Muiz Banire (SAN), Bode Olanipekun (SAN), Said Sanusi (SAN) and seven others, Sanwo-Olu and Hamzat formulated one sole issue for the determination of the Tribunal, vis:

“Considering the evidence led at the trial of this petition vis-a-viz constitutional and statutory provisions regarding assumption and occupation of the office of Governor of Lagos State, whether this petition presents any valid justification to alter/upturn the return made by INEC at the election of the office of Governor of Lagos State held on 18th March, 2023.”

In their arguments on this sole issue, they contended that “since the reliefs sought in an election petition are declaratory in nature, it will amount to reiterating the obvious that the quantum and quality of evidence must be of such a gradient that will be sufficiently compelling to impel a tribunal to displace the presumption of regularity because declaratory reliefs cannot be granted on the strength of mere admission by an adversary and such admission does not excuse a petitioner from satisfying/discharging the enormous burden of proof. “

Rhodes-Vivour in his petition had asked the Tribunal to nullify the return of Sanwo-Olu and declare him the winner of the election being the candidate with the second-highest number of lawful votes cast.

Sanwo-Olu and his deputy in their final written address asked the Tribunal to note that of all the 10 witnesses called by the petitioner, none of them in their evidence or elsewhere requested for this relief or any other reliefs made by Rhodes-Vivour, a situation which demonstrates “the abandonment of the reliefs”.

“To demonstrate the level of seriousness which the petitioner ascribes to this petition, he did not have any witness statement or written deposition front-loaded with his petition neither did he deem it fit to come and testify before the Tribunal.

The petitioner is the ultimate intended beneficiary of the petition and would have been in the best position to make a request for the reliefs by way of evidence. It is not a responsibility he can delegate, more so that the political party on whose platform he contested is not partnering or supporting him in the current adventure of more appropriately put, misadventure, with respect to prosecuting this petition. In any event, no such witness to which the petitioner delegated the responsibility gave evidence.

The Tribunal, like every other court of law, cannot do for the party what the said party ought to do for himself since that will be abandoning its impartial adjudicator’s role”.

On the alleged non-qualification of Governor Sanwo-Olu, and for the petitioner to be declared winner having scored the second highest number of votes, the parties contended that by the recent innovative inclusion in the provision of Section 136 (2) of the Electoral Act, a petitioner cannot succeed on such a claim if he does not prove that he is still a member of the political party that sponsored him.

They also argued that since LP was not a co-petitioner to confirm or infer the sole petitioner’s continued membership of the party as at date, the fact that the petitioner himself did not give evidence to demonstrate or prove his continued membership of the party beyond the election and no single witness gave evidence of same, indicated that the petitioner had recused himself from any entitlement to any relief on the ground of alleged disqualification.

On the alleged non-qualification of the deputy governor, Obafemi Hamzat, on account of his deliberate step of naturalizing as a citizen of the USA as well as allegedly renouncing his Nigerian citizenship and accordingly swearing an oath of allegiance to the USA, the respondents drew the courts petition to the testimony of a subpoenaed witness, PW 8 who claimed to be an expert in Immigration Law in the USA.

They noted that none of her alleged educational certificates, CV, research or litigation on immigration or electoral law that she has successfully conducted before any court was brought before the Tribunal to certify that she was indeed an expert.

They also urged the Tribunal to note that the witness indeed admitted that she was not an expert in electoral law in Nigeria and her testimony was “false and slippery” and cannot gain any traction or credibility.

“May we with respect also submit that PW 8 is not a witness of truth. She stated under oath as an expert, that she denounced the Nigerian Citizenship when she naturalized as a US Citizen. However, under cross-examination by counsel to the 2nd and 3rd respondents, she owned up to having a Nigerian passport and that she was granted entry to Nigeria to give evidence using her Nigerian passport without the need to obtain a visa.

Apart from the fact that it is a notorious fact that only Nigerian citizens can hold a Nigerian passport, it is also statutory. Section 11 (a) of the Passports (Miscellaneous Provisions) Act makes it a criminal offence for a person who is not a citizen of Nigeria to hold or be in possession of any Nigerian passport. Essentially therefore, it is either PW 8 was confessing to criminality while giving evidence as an expert before the Tribunal or was telling a blatant lie on a very fundamental issue to implicate the 3rd Respondent, Obafemi Hamzat”.

The respondents also invited the Tribunal to note that the witness admitted that she was not present when Hamzat took the Oath, she was also unable to provide proof of such and in the absence of any such evidence, his election could not be successfully impeached.

“The petitioner therefore bears the burden of not only tendering the renunciation of citizenship of the 3rd respondent (if it exists and which is denied) but also of demonstrating the Presidential assent for same by placing the document of registration before the tribunal”.

In conclusion, Sanwo-Olu and Hamzat said, “Having inundated the Tribunal with a petition of 184 pages, the petitioner failed to bring evidence to ventilate the expansive petition, assuming without conceding that it contained prolific or cogent grounds qua complaints. Since the tribunal cannot go on a frolic to extract evidence or engage in self-inquisitorial examination of dumped documents, the option legitimately open to the Tribunal is to enter a deserving order of dismissal.