Mohammed Sosanya and Adebola Akinola
16 July 2008
Abuja — Senate President David MarkThe long and bitter tussle for the Benue South senatorial seat between Senate President David Mark and his ANPP rival Alhaji Usman Dan Abubakar Mais-hanu, alias Young Alhaji, came to an end yesterday when the Court of Appeal sitting in Jos confirmed Mark's victory in last year's elections.
The court upturned the verdict of the Election Petitions Tribunal sitting in Makurdi, which nullified Mark's election earlier this year. And in Osogbo, Osun State, one chapter was closed in another bitter political fight when the Election Petitions Tribunal upheld the election of Governor Olagunsoye Oyinlola of the PDP and threw out the challenge by the Action Congress candidate, Engineer Rauf Areg-besola. Young Alhaji had challenged the declaration of Mark as winner of the elections because an INEC officer had nullified elections in two out of the nine local governments in the zone, saying the results in the seven local governments declared put him in the lead and that he should be declared winner of the elections as those were the lawfully recorded votes.
The election petition tribunal in Makurdi, Benue state, which first heard the petition, upheld the cancellation of the results in Okpokwu and Agatu local governments and ordered fresh elections to be conducted in the two councils. Mark had appealed the ruling of the tribunal, while Young Alhaji Abub-akar also filed a cross appeal asking the appellate court to declare him winner of the elections, having polled 172,236 votes in the seven remaining local governments which results were not cancelled, ahead of the 135,372 votes Mark scored in the same local governments.
The main issues in the case centered on whether the elections were marred by rigging and other forms of irregularities as alleged by ANPP's Abubakar and whether the returning officer that cancelled the election results in the two local governments had the powers to do so.
The Senate President had argued in his submission that the Returning Officer for the zone who cancelled the results of the election for Agatu and Opkowku local governments did not have such powers and that even if he had, he was wrong in his approach as results had been declared in each of the polling units, wards and local government headquarters and were duly signed by all the agents of the parties before they were brought to the zonal collation centre at Otukpo.
Mark also argued that the Returning officer who cancelled the election was not at any of the polling units and could not have known better what transpired at the units than the agents that were there and who had signed the results, saying his action was based on mere hearsay which the court cannot rely upon.
But Alhaji's lawyers had argued that the action of the returning officer was based on a report by the security agencies which witnessed the elections, saying the action was right since the competence of the officers that submitted the reports is not in doubt.
Another matter was the issue of fraud and manipulation of the results when it was in the custody of the tribunal as alleged by the ANPP candidate.
Mark expressed worry that the Makurdi tribunal did not only agree that there was falsification of the documents but that it even went ahead to blame him for the act without giving him a hearing. He said this action negates the principle of fair hearing and that the tribunal should have sought to establish from him if he was guilty or not, before reaching a verdict on the issue based purely on the evidence provided by his opponent.
Justice Zainab Bulkachuwa, who presided over the case, first sustained the application by Alhaji Abubakar to file his brief which was objected to by Mark on grounds that the leave of the court was not sought before it was filed, saying the application was in order.
The presiding judge, while ruling on the substantive suit, however said the tribunal should have looked into the issue of fraud when it was raised at any point during the trial and not to have said that it was too late in the day to do so.
She said the issue of fraud is like the issue of jurisdiction, which can be raised at any time and that when such issues are raised it, behooves on the trial court to hear it by calling all the witnesses pertaining to the case, which she said the Makurdi tribunal failed to do.
She said on the issue of cancellation of the elections in the two local governments of Okpokwu and Agatu by the returning officer in Otukpo, that based on her understanding of the relevant sections of the law including the Electoral Act 2006, on the duties of a returning officer, she said the returning officer has no powers to cancel the results of an election which have been duly signed, collated, and submitted to him.
She said it was clear that all that was statutorily required of the returning officer was for him to have used the results of the election so collated, to make his entry into the relevant forms before filing same to a higher authority in the pyramidal structure of INEC.
She said by canceling the election of the two local governments, the returning officer acted clearly outside his powers and she ruled that the election tribunal erred in accepting the cancellation of the results in the two local governments based on the presumption that there was a threat to peace in Otukpo at that time.
The presiding judge ruled that the claim of rigging and other malpractices were not sufficiently proven when the results were cancelled, as she said those who made the allegation did not provide an alternative result to disprove the ones declared at the local governments and to prove their case.
She said worthy of note is the fact that ANPP agents signed the results of all the polling units, wards and local governments which results were cancelled at the collation centre and did not show contrary results, even if they were coerced into signing same.
She said, "In the instant case, all the processes of an election had been concluded and all entries to various forms have been entered and endorsed by party agents at various levels, and as such the electoral retuning officer at the top of the electoral pyramid lacks the powers to cancel the elections." She said section 69 of the electoral act does not confer such powers on him and therefore the lower tribunal was wrong to have held that he had such powers'.
Justice Bulkachuwa then set aside the judgment of the Makurdi tribunal which nullified the results of the elections in the two local governments and relied on the overall declared results in all the nine local governments in the zone, which when put together indicated that Mark scored 235,917 votes to beat the ANPP candidate who scored 188,184 votes.
"For all that I have been saying, this appeal has merit and is thereby allowed. The decision of the lower tribunal which was given on the 23rd of February is hereby set aside. That the return of the appellant as senator representing Benue South is hereby affirmed," the judge ruled.
The court therefore affirmed the election of Mark as the winner of the April 21 2007 senatorial elections in the Benue South senatorial zone.
There were wild jubilations in Jos immediately after the judgment as supporters of the Senate President who had been mobilized to the courts jumped for joy immediately after the judge was made. Many people in court could not hear the remaining part of the judgment as the jubilation outside dwarfed what the judge was reading.
Our correspondent observed that while supporters of Mark, like Senator Ibrahim Saminu Turaki, Sam Ortom and the PDP chairman in Benue, Emmanuel Agbo stayed behind to continue their jubilation, those in support of Young Alhaji, such as Senator JKN Waku and Algambini Adams quickly left the court premises.
SA Media to the Senate President Paul Mumeh said what is important about the verdict is that the people of the Benue South senatorial zone who voted overwhelmingly for Mark had their decisions upheld. Senator JKN Waku on his part said a judgment has been given and that since the court has the highest jurisdiction in election matters the verdict has to be accepted. Neither Mark nor Young Alhaji was in court yesterday.
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