Andrew Agbese
12 July 2008
Weekly Trust reviews Mark's appeal and Alhaji's cross appeal at the Appeallate court in Jos and the legal scheming that will usher in the final verdict.
Immediately the Benue State Election Petitions Tribunal in Makurdi ruled on February 23 nullifying elections in two out of the nine local governments that make up Benue South senatorial zone, it was expected that Senate President David Mark, whose seat was being challenged, will not allow the verdict to go without a challenge. Not doing so within 21 days of the judgement, would mean his vacating the seat of the Senate President to submit himself for election in Okpokwu and Agatu Local Government Areas as ruled by the tribunal.
True to predictions, Mark appealled through a team of lawyers led by Damian Dodo, SAN, and challenged the verdict of the tribunal. David Mark in his notice of appeal, said he is not satisfied with the verdict of the tribunal as, according to him, it did not deal with the facts of the matter before delivering judgment.
Hardly had Mark's appeal reached the appellate court than Alhaji Usman Abubakar, alias Young Alhaji, who had earlier challenged Mark's election, filed a cross appeal, saying he too was not satisfied with the verdict of the tribunal. He said he was seeking the authority of the appellate court to among other things, stop the judgment of the lower court at the point where the results of the elections in the two local governments were cancelled. Rather than order for fresh elections in the two councils as the tribunal did, the court should have declared him winner of the election. The appellate court on June 25, concluded hearing on the matter and reserved judgment Friday July 11. However, the judgement was postponed to July 15 and no explanation was given.
The road to the final judgment even at the appellate court was full of suspense, hopes and expectations that were either dashed or upheld, depending on the parties involved. Even the processes before hearing on the substantive suit could commence were breathtaking as every step taken was seen as crucial to the final decision of the matter.
Before arguments on the substantive matter, counsel to the Senate President, Mr. Dodo, applied to appeal against four interlocutory rulings given by the election petition tribunal in Makurdi, saying this was to enable him appeal against four interlocutory rulings of the lower tribunal and at the same time, allow him to file about 13 further grounds of appeal in respect of the judgment of the tribunal. Mark argued that his reason for filing the application at time he did was because of the practice direction, which he says allows a litigant to appeal against any matter which he is dissatisfied with when such matter has been exhausted. He said since the time had elapsed by the time the tribunal delivered its judgment and could not bring his appeal before the tribunal, the only judicious thing for him to do was to wait until the final document of the tribunal had been brought to the court. According to Mr Dodo, he got the document on May 9.
INEC, through its counsel, Chief Amaechi Nwaiwu, supported Mark, saying it is "trite" for the court to grant Mark's application as it contained the amendments to be made in the main appeal, which would give the senate president the opportunity to articulate his case properly before the court.
But in his submissions, the counsel to Young Alhaji, Mr. Wole Olanipekun, (SAN) opposed the application on "points of law."
He argued that the delay in making the application was an abuse of court processes as under election petition matters, an applicant has only 21 days to file an appeal, noting that in the circumstance of Marks' application that was not the case.
Young Alhaji said because of this deficiency, Mark's application was "dead on arrival," stressing that for Mark not to have furnished the court with acceptable reasons was enough for the court to dismiss his prayers and urged the court to do so.
But the court saw reasons with Mark and granted the senate president leave to file applications against the four interlocutory rulings of the election petition tribunal. It also granted him leave to file additional grounds in his appeal.
Subsequently, the senate president appealed against the ruling of the tribunal given on September 26, 2007, which admitted in evidence the ballot papers used in the National Assembly elections on April 21, 2007 and against that of August 21, which admitted the voters' register used in the same election and the ruling of July 20, which granted the tribunal the jurisdiction to entertain the petition.
The Presiding Judge, Justice Zainab Bulkachuwa, dismissed the objection of Abubakar that it was an abuse of the court process and ruled that there were merits in Mark's application. According to her, the cause of justice would not be served if the senate president was not given all the chances to prove his case.
Hence the appeal court granted the application by Mark to extend the time of his appeal, leave to amend his notices and grounds of appeal by adding additional 13 grounds of appeal; leave to file the amended notice of appeal consisting of the original and the amended notice of appeal and also to amend his brief of arguments and dismissed the interlocutory ruling of the tribunal granting itself the jurisdiction to entertain the petition against the senate president.
On that note, court adjourned and resumed hearing on the substantive suit on 25th June, where the real issues in contention were argued before the appellate court to arrive at a decision. The senate president, through his counsel was first to open the argument by contesting the refusal by the Makurdi tribunal to credit him with the 37, 343 votes which he said he scored in Oju Local Government area.
Mark wondered why the votes were not credited to him and sought to know if he will not score a single vote in an entire local government while other less popular parties are being accredited with certain numbers of votes.
Mark also opposed the way and manner the results of the elections in Okpokwu and Agatu were annulled in Otukpo, after the electoral officers in the two local governments had results which they brought to the collation centre at Otukpo. He argued that the returning officer, who announced the cancellation of the results and who was not in any of the two local governments cancelled the results merely on hearsay. He wondered how this action could be right since the returning officer was not at any ward or polling booth where the elections held.
The senate president asked why the police officers who wrote the report upon which the returning officer based his action to cancel the election were not invited by the tribunal to substantiate their reports, more so as the content of their reports bore weighty allegations that had direct impact on the decision of the tribunal. He said the tribunal ought to have invited the officers to substantiate their claims, since it relied on their reports to pass judgment.According to him, all the officer are still alive
Mark said he cannot understand how the tribunal found out that the evidence before it was fraudulently falsified without hearing from him; saying it is unfair that the tribunal did not stop there but went ahead to put the blame of the falsification on him.
In his conclusion, Mark contested the constitution of the tribunal members.
He said in the case of the Makurdi tribunal that when the first chairman left, his successor did not recommence the case. He wondered how he could possibly rule fairly on a matter which fact were not argued before him..
But Wole Olanipekun, arguing for Young Alhaji took Mark point by point, saying the tribunal ought to have given the seat to Young Alhaji since it has found sufficient grounds to nullify the elections in the two local governments which when annulled leaves Young Alhaji with the highest votes scored at the elections.
He said Mark's argument on the nonappearance of the officers in question in court does not hold water as the police officers that wrote the report were competent to do so at the time they did and which has not been disputed.
Young Alhaji said this is because once a document is certified; the authors do not need to give further evidence or corroboration as the certification suffices the proof of authenticity.
The ANPP candidate said that the returning officer who announced the cancellation of the results was right to have done so as he acted based on the competence of the reports he received.
On INEC's evidence, Young Alhaji said INEC cannot disown its own action as it was an INEC retuning officerwho cancelled the election saying it would amount to "approbating and reprobating at the same time."
The mood in the court in all the proceedings had been generally peaceful as each of the parties' maintained peace and quiet throughout the proceedings. At a stage, Young Alhaji and Mark embraced each other at the final hearing of the case, which went far in dousing the tension between the parties.
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