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.
Meanwhile, Senate President David Mark yesterday thanked President Umaru Yar'Adua for supporting him during the period of his trial.
Mark told newsmen at his Apo residence in Abuja that Yar'Adua delayed his flight to Britain for more than one hour, waiting to hear the court judgment. "I'm very happy about his support, the support I received from my colleagues and Nigerians," he said. He said the judgment was actually won by his colleagues and Nigerians.
Mark also urged his opponent, Alhaji Usman Abubakar, the ANPP candidate, to join hands with him to develop Benue.
Reacting to the alleged moves by some of his colleagues in the Senate to take over his seat in the event of a contrary judgment, Mark said he bore no grudge against anybody. "There is ambition all the time. I bear no grudge against anybody who has any ambition. If you have any ambition and you nurse it in a godly manner, nobody will have problem with that," he added.
Gov. Gabriel Suswan of Benue, who was one of the earliest callers to congratulate the Senate President, said the case was committed to God's hands and that God had answered their prayers.
"Justice is not in the hands of human beings. It is in the hands of God," he said.
The Senate Leader, Chief Teslim Folarin, also expressed joy over the judgment, saying "it would have been a monumental disaster if Mark had lost". Sen. Olorunnimbe Mam-ora, the Deputy Senate Minority Leader and Sen. Ganiu Solomon (AC-Lagos), said the judgment had shown that the judiciary had men of impeccable character.
Deputy Senate President Ike Ekweremadu also expressed satisfaction with the turn of events, saying: "I am overjoyed by the judgment.
"The judgment has confirmed the need for stability in our polity. The Senate can now concentrate on the business of nation-building without distraction. I congratulate Senate President David Mark, the people of Benue and our country Nigeria," Ekweremadu said.
Mr. John Odey, Minister of Information and Communications, said "the judgment is a victory for the PDP and democracy. It has brought honour and stability to our country." Mr. Ayogu Eze, Chairman, Senate Committee on Media and Public Affairs, said: "We are excited. His election will ensure stability of the Senate. By this judgment, our democracy is now on good footing because the Mark leadership has given our democracy colour and respect, especially the legislative arm. The Senate is happy and united behind him. We salute the judiciary as the veritable backbone of our democracy."
Mr Eziuche Ubani, Chairman, House Committee on Media and Public Affairs, said: "It underscores the fact that you can go to court and get redress. That is what we need to deepen democracy. This is why we must ensure the fidelity of the electoral process. "Once we get it right at the polls, the incidence of going to the court will reduce. We are learning lessons. We must not lose faith in the system." Sen. Awaisu Kuta, also speaking in the Zambian capital, said, "I am really happy about the judgment. I have been praying so hard for the success of the Senate President.
The Senate President is a unifying factor in the Senate. His leadership has unified the Senate." The Peoples Democratic Party (PDP) also voiced happiness over the Appeal Court's rulings upholding the election of Senate President David Mark.
In a statement issued yesterday in Abuja by PDP's National Publicity Secretary, Professor Rufai Ahmed Alkali, the party said the judgment over Mark's case would further strengthen the rule of law and democracy in the country. The party congratulated and urged the Senate President to consolidate on the good work he started in the Senate which endeared him to the hearts of most Nigerians.
In Osun, Aregbesola had challenged the declaration of Oyinlola, the Peoples Democratic Party's candidate as the winner by the INEC.
Following the directives of the AC that his team of counsels would boycott the sitting, some counsels of the party led by Kola Awodein (SAN) who had been at the tribunal to submit an application, walked out of the courtroom before the judgment commenced.
The legal tussle on the election was opened on October 3 2007 and concluded on May 5, 2008 with the petitioner calling 102 witnesses, presented 171 exhibits supported with 159-paragraph affidavit. Aregbesola had joined the security agents and INEC in the petition claiming election results credited to some 12 local councils out of 30 that made up the state did not represent the true election in the areas. Also, the AC candidate claimed that violence and malpractices characterized the said election in the councils which discredited the result accredited to the areas. Thirdly, Aregbesola claimed that the governor, Prince Oyinlola was not duly elected. He sought the tribunal to declare him the winner of the election or returned as the election was not substantially credibly conducted.
Delivering the judgment that lasted three hours four minutes, the Tribunal Chairman, Justice Thomas Naron in a 159-page judgment declared that the petitioner, having alleged criminal actions against the respondents, failed to prove his case beyond reasonable doubt. Reading the verdict, Naron said "the petition fails in its entirety and we hereby dismissed it." Earlier, the tribunal had dismissed two applications brought by the lead counsel to the petitioner, Kola Awodein (SAN) seeking the tribunal to disqualify itself from delivering judgment in the matter following an allegation of corruption by a publication.
A copy of the magazine; The News was submitted in the court by Awodein as an exhibit to substantiate his claim. Hearing of the application led to a rowdy session in the courtroom as some counsels of the respondents were shouting that such application should not be entertained, saying the aim of the sitting was to deliver judgment on the petition.
But Awodein refused to be deterred, as he argued that an earlier application had been submitted which had been replied, saying his new application was subsequent to the earlier one. He challenged the tribunal to be upright, saying "it is a shame that despite an allegation of compromise leveled against you, you still decide to go ahead with the hearing". The panel thereafter went on a break to rule on the application.
In separate rulings, the Tribunal ruled that it cannot disqualify itself from proceeding with the judgment based on a speculation published by a weekly newsmagazine alleging that the tribunal has been compromised. The tribunal ruled that there was no provision for arrest of judgment in civil matters, adding that the tribunal does not act on speculations.
The tribunal in its ruling maintained that most of the witnesses called by the petitioner were Ward Supervisors whose designation is not recognised by the 2006 Electoral Act. It stated further that most of the witnesses lied on oath as their written statements contradicted their oral evidences before the panel.
Declaring that he who asserts must prove that it exists, the tribunal ruled that the petitioner could not prove beyond reasonable doubt in instances where crime was alleged. According to the tribunal, even when some of the witnesses claimed voters were attacked, none of the voters allegedly attacked testified before the tribunal. The Local Government Areas in contention were Ayedaade, Boluwaduro, Odo-Otin, Boripe, Atakumosa West, Atakumosa East, Ife South, Ife East, Ife Central, Ede North, Isokan and Olaoluwa.
On cases of alleged stuffing of ballot boxes, the tribunal said none of the alleged stuffed boxes were brought. It concluded that there evidences are not reliable.
Reacting to the Judgment in a statement made available to reporters in Osogbo, Aregbesola said that "the verdict of the Osun State Election Petition Tribunal should not come to all right thinking Nigerians as a surprise considering the activities of the tribunal judges to deny evidences, subpoena, exclusion of evidence on unsupportable technicalities, open romance of the judges, especially Justice Joy Apkug-hunum and counsel of Oyinlola, in this case and the recent earth-shaking revelations of telephone conversations between Justice Thomas Naron and Oyinlola's counsel, Otunba Kunle Kalejaiye, SAN, as revealed by The News magazine (July 14 and 21, 2008 issues).
"On all the rulings and judgments of the tribunal on 20 petitions outside the governorship petition, it is clear that the judges were not interested in the course of justice but rather in its perversion. The judgment arrived at today is therefore not unexpected and therefore absolutely rejected", he said adding that "the conduct of the Thomas Naron-led tribunal is a big subtraction from the new-found integrity of the Nigerian judiciary, in which our faith still remains unshaken.
Reacting to the tribunal judgment, AC's Director of Research and Strategy, Mr. Sunday Akere said the party will challenge the judgment at the Court of Appeal. The Deputy National Vice Chairman (south West) of the PDP, Alhaji Tajudeen Oladipo said the "opposition wanted to arrest the judgment when they knew that they have no case but thank God the people of Osun state voted for Governor Oyinlola with the judgment of today." Describing the judgment as a victory to democracy and rule of law, Oladipo said "though the case was a prolong one but, justice was done at the end of the day."
The Police spokesman, Mr. Joshua Olayemi in a telephone conversation told our correspondent no arrest was made during the time of the tribunal sitting.
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