The Court of Appeal in Jos will, on 11 July decide the winner of the 21 April 2007 senatorial election between Senate President David Mark and Alhaji Usman Abubakar

By Sunday Orinya/ Jos

The long legal battle over the Benue South Senatorial District seat between Senate President, David Alechenu Bonaventure Mark and Alhaji Usman Abubakar, popuarly known as Young Alhaji, arising from the 21 April 2007 election was rounded off on 25 June at the Appeal Court, Jos following adoption of addresses by parties to the case.

Justice Zainab Bulkachuwa fixed 11 July for judgment in the celebrated legal tussle that started in July last year.Although David Mark, following his declaration by INEC as the elected senator representing the zone, went ahead to clinch the Senate presidency in a keenly contested election against George Akume, his Benue kinsman, Alhaji Usman dragged him to the Election Petitions Tribunal in Makurdi, asking that he be declared winner of the election or fresh election be conducted in the disputed areas of Okpokwu and Agatu local governments where he claimed the results were cancelled because of malpractices.

All attempts to prevail on him to withdraw the petition against Mark failed. In February this year, the Tribunal, headed by Justice C.I. Uriri, nullified the election and directed INEC to conduct fresh election in Okpokwu and Agatu local governments within 60 days. But both parties appeared unimpressed with the judgment, as they headed to the appelate court in Jos. While Senator Mark is piqued by the tribunal’s nullification of his election, Alhaji Usman felt shortchanged that the tribunal did not declare him winner despite acknowledging that he had beaten Mark in the seven local governments cleared. INEC also picked holes in the portion of the judgment that ordered for a fresh election to be held. The battle consequently shifted to the Appeal Court.

Damian Dodo, SAN, representing Mark, canvassing several grounds of appeal wants the appelate court to set aside the entire judgment of the tribunal. On the other hand, Chief Wole Olanipekun, SAN, counsel to Abubakar, wants the court to declare his client winner, as, according to him, the judgment of the tribunal calling for another election was ‘guesswork’. Yet, Amaechi Nwaewu, SAN, representing INEC, wants the court to set aside the lower court’s decision calling for a fresh election.

Mark’s request to file an application against four interlocutory rulings of the election petitions tribunal that nullified the results of two of the nine local governments in the area was granted on 17 June, giving him more hope. Dismissing the objection by counsel to Abubakar that the request was an abuse of court process, Justice Bulkachuwa held that the merit in the application by Mark could not be ignored. The three applications were heard by the court on 25 June. In his address, Mark’s counsel argued, among other grounds of appeal, that while the tribunal accepted that election in Oju was free and fair, it failed to credit Mark with the 37,343 votes scored by the PDP in the local government, even when it was admitted in evidence and was not denied in the pleadings of Abubakar. He urged the tribunal to return the votes to the appellant.

He further argued that while the election tribunal predicated its judgment on the manifest relevance of the report of the Deputy Commissioner of Police, Area Commander of Police and the unit commander of the Mobile Police Unit, to nullify Mark’s votes in Okpokwu and Agatu, none of the authors of the reports were made to give testimony to avail the appellant the opportunity to challenge the reports. He, therefore, requested the appellate court to expunge the report, as the evidence cannot be relied upon.

He declared that while none of the principal characters – the electoral officers of Okpokwu and Agatu and the district Returning Officer – consented to canceling the result in their evidence, the tribunal, relying on the report of people who did not come to court went ahead to cancel the election. Dodo averred that there is no credible basis for cancellation of his client’s election, describing the decision of the lower court as “capricious and whimsical”.

According to him, while the tribunal accepted that some documents were falsified it went ahead to base its ruling on the same document but refused to give Mark hearing when he sought for rehearing of the case when the allegation of falsification was brought before the tribunal. The counsel for INEC aligned himself with the submissions of Mark’s counsel. But Chief Olanipekun asked the court to dismiss the appeal as all the grounds of appeal have no bearing with the reliefs sought, describing it as a mere academic exercise. He said there was no cross-petition by the appellant in the election petitions tribunal for relief over the Oju result.

He averred that the court has no jurisdiction over the result of Oju and cannot “cancel the Opkokwu and Agatu votes which have been justified by the tribunal”. On his appeal that his client should be declared winner, the senior advocate argued that the decision of the Returning Officer is final. He said the election was for National Assembly which was not based on geographical spread but on simple majority vote of valid votes cast.

According to him, the lower tribunal’s decision not to declare his client winner should be set aside by the Appeal Court. But Dodo reminded the court that the tribunal only granted the relief sought by the appellant in his prayers at the tribunal and asked the court to dismiss the appeal.

Olanipekun, in his reply, however, said the relief was an alternative in the event that others were not granted. Though Justice Bulkachuwa said the day’s legal battle was tedious but worthwhile, for the parties to the case it is only on 11 July that they will know whether the energy and money spent in the last one year have been worth their while.