Raymond Gukas
15 July 2008
Jos — The Court of Appeal Jos, Plateau State, will today confirm whether Senate President David Mark is the legitimate winner of the Benue South senatorial seat or order a rerun in two or more of the local government areas.
It may also declare the All Nigeria Peoples Party (ANPP) candidate, Alhaji Usman Abubakar winner of the seat.
The court which had fixed last Friday for ruling in the matter could not deliver judgment but deferred it till today without any official explanation
The court had during the trial, granted Mark's request to file applications against four interlocutory rulings of the lower tribunal, which nullified the results of two out of the nine local government areas of Benue South senatorial district.
The appellate court also granted his prayer to file additional grounds in his appeal against the judgment of the lower tribunal.
The tribunal had nullified the results of the senatorial election, in the Okpokwu and Agatu local government areas of Benue State following a petition by the ANPP candidate in the election, Alhaji Usman Abubaka.
Senator Mark had on June 6 filed an application before the court asking for leave to appeal against four interlocutory rulings of the tribunal given on July 20, August 21, and September 26, 2007 and February 8, 2008. Specifically, he 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.
He also appealed 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.
Mark also sought the leave of the appellate court to file 13 additional grounds of appeal in his original suit where he is challenging the judgment of the lower tribunal and had also asked for extension of time within which to file his amended appeal and brief of arguments.
In granting his applications which were argued by his counsel, Mr. Damian Dodo (SAN) the presiding Judge, Justice Zainab Bulkachuwa, dismissed the objection of the respondent that it was an abuse of the court process. She said that there were merits in Mark's application, stressing that the cause of justice, which the court was championing, would not be served if the Senate president was not given all the chances to prove his case against the respondent.
She said the application by Mark to extend the time of his appeal granted him leave to amend his notices and grounds of appeal by adding additional 13 grounds of appeal; granted him 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. She also dismissed the interlocutory ruling of the tribunal granting itself the jurisdiction to entertain the petition against the Senate president.
Justice Bulkachuwa gave the Senate president three days within which to file his amended notice and two days to file his reply to the respondent's brief.
Chief Wole Olanipekun (SAN), who appeared for the respondent, was given two days to reply to the appellant's amended briefs and she fixed June 25 for definite hearing of the substantive suit.
On resumption for the definite hearing, while Mark asked the court to set aside the entire judgment of the tribunal by discountenancing the purported cancellation of the results in the two local government areas, Abubakar in his cross-appeal asked the appeal court to declare him the winner since the tribunal, in nullifying the election in the two local government areas, had left him with the highest number of votes in the remaining seven local government areas. He also contested the directive of the tribunal to INEC to conduct fresh elections in the two local government areas.
INEC on the other had asked the court to uphold the election of Mark since the returning officer who announced the cancellation of the results in the local government areas acted in error and without proper advice and authorisation. Moreover, INEC, through its counsel Amaechi Nwaiwu (SAN), argued that since the election was pyramidal, any report of irregularity should have emanated from the polling booth to the ward level before reaching the local government level.
Mark asked the court to disregard the judgment of the tribunal because it did not consider all the facts relating to the matter. In his first point of argument, the Senate president is contesting the refusal by the lower tribunal to credit him with the 37, 343 votes he got in Oju Local Government Area. He said that the votes, which were not credited to him, reflected the mode and pattern of voting in the election.
He also argued that in nullifying the results of the elections in the two local government areas, the returning officer, who announced the cancellation, relied on hearsay as he was at the collation centre and was never at any point near any of the polling booths or wards.
The Senate president also averred that the police officers who wrote the report upon which the returning officer acted were not invited by the court to substantiate such weighty allegations that had direct impact on the decision of the tribunal, especially when it had been established that they were still living.
Mark also argued that the evidence in question was found by the tribunal to be fraudulently falsified and without hearing from him the tribunal put the blame on him.
Moreover, Mark also contested the constitution of the tribunal members. He said that when the first chairman left, his successor ought to have recommenced the case.
In his own argument, Chief Olanipekun, the counsel to the ANPP candidate, urged the court to declare his client the winner since the police officers that wrote the report were competent to do so. He countered Dodo's argument for Mark by saying that once a document was certified the authors needed to give further evidence or corroboration.
He said that the returning officer, who announced the cancellation, was right too, adding that INEC as the electoral umpire could not disown its own action. Olanipekun said that it would amount to approbating and reprobating at the same time.
All roads now lead to Jos for the epoch-making judgment which the Senate was said to have proceeded on recess in deference for Nigeria's citizen No. 3.
Meanwhile, Mr. Ibiyinka Kayode, the Benue Police Commissioner, said police were prepared to contain any uprising ahead of July 15 Appeal Court ruling on Senator David Mark's election.
Kayode made the disclosure in an interview with the News Agency of Nigeria (NAN) in Makurdi last weekend.
"We are preparing for it. We have requested for the re- enforcement from Nasarawa to cover Otukpo, Benue State.
"Otukpo is where we are expecting (many) problems because that is where the two personalities are resident," he said.
The commissioner gave assurance that they would be able to cover everywhere to avoid any unforeseen eventualities in Benue State. "We want people to avoid problems and on our part, we will make sure that there is peace," he said.
He commended Gov Gabriel Suswam for his efforts in assisting the police in combating crimes. "The Governor gave us 10 patrol vehicles and he promised to give us more in order to ensure the security of lives and property.
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