Fresh Issues over David Mark’s Senate Seat
By Anza Philips, Abuja Bureau
Sunday, September 28, 2008
Usman Abubakar, the opponent of David Mark in the 2007 contest for the Benue South Senatorial seat accuses Jos Appeal Court judge of doing a hatchet job
For Usman Dan Abubakar, popularly known as Young Alhaji, the All Nigeria Peoples Party, ANPP, senatorial flag bearer in the April 2007 general election, the legal battle to claim the Benue South senatorial seat from David Mark, senate president is not yet over.
Zainab Bulkachuwa of the Appeal Court Jos had on July 15, this year, upturned an earlier verdict of the Benue State Election Tribunal which nullified Mark’s election. But Abubakar who was not satisfied with the judgment wrote a petition to the National Judicial Council,NJC, alleging that Bulkachuwa skewed justice in favour of Mark because he had underhand dealings with him.
The petition has received the attention of the, NJC. Idris Legbo Kutigi, chief justice of the federation and chairman NJC has given Bulkachuwa of the Court of Appeal, Jos division, two weeks to respond to the allegations raised against her in the petition by the ANPP senatorial candidate. The chief justice in a letter to Bulkachuwa asked the judge whose judgment has been dogged by controversy, to respond to allegations raised by Abubakar that "her partly typed and partly hand-written judgment was only a hatched job and not justice."
Justice Kutigi’s letter to Bulkachuwa was dated September 4, 2008. Kutigi’s letter was sent through Justice Umaru Abdullahi, president of Court of Appeal. The letter says: "I forward herewith a petition against Jos Division of the Court of Appeal of one Alhaji Usman D.M Abubakar, on the above subject matter. The petition is self explanatory. I shall be glad to have your comment within two weeks from the date of receipt of this letter.
Abubakar had in his petition, urged the council to intervene and reverse Bulkachuwa’s verdict which according to him, is a judicial repeal of the clear and unambiguous provisions of the Electoral Act, 2006.
The petition, which urged NJC not to "sit and watch the system collapse" added that Bulkachuwa treated his appeal petition with partisan levity in order to actualise the hatched job she set out to do.
The Appeal Court had upturned the verdict of the Election Petitions Tribunal sitting in Makurdi, which nullified Mark’s election earlier this year. Abubakar had challenged the declaration of Mark as winner of the election because an INEC officer had nullified elections in two out of the nine local government areas in the zone, saying the results in the seven local government areas 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 the two local government areas of Okpokwu and Agatu and ordered fresh elections to be conducted in the two councils. Mark, appealed the ruling of the tribunal, while Abubakar 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. Mark scored 135,372 votes in the same local governments in the election.
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 Abubakar’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.
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.
Bulkachuwa, 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 behoves 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. On the issue of cancellation of the elections in the two local governments of Okpokwu and Agatu by the returning officer in Otukpo, she said based on her understanding of the relevant sections of the law including the Electoral Act 2006, on the duties of a returning officer, the returning officer has no powers to cancel the results of an election which has 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 cancelling 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. 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 whose 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 had been entered and endorsed by party agents at various levels, and as such the electoral returning 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.
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