Posted by By Femi Babafemi on
Senate President, David Mark has formally appealed the judgment of the Benue State Election Petitions Tribunal nullifying his election for the Benue South Senatorial District at the Court of Appeal, Jos, declaring that the lower tribunal's judgment was delivered against the weight of evidence available to it.
Senate President, David Mark has formally appealed the judgment of the Benue State Election Petitions Tribunal nullifying his election for the Benue South Senatorial District at the Court of Appeal, Jos, declaring that the lower tribunal's judgment was delivered against the weight of evidence available to it.
The Benue State Elections Petitions Tribunal had on February 23, upheld the petition filed by Mr. Usman Abubakar, aka young Alhaji, All Nigeria Peoples Party, ANPP candidate against the election of the Senate President, David Mark for Benue South Senatorial District.
In a 28-ground appeal filed on March 12 on behalf of the Senate President by his counsels Paul Erokoro, SAN, and Kenneth Ikonne, Senator Mark sought two principal reliefs from the Court of Appeal.
Mark prayed the Appeal Court to: 'Allow the appeal set aside the decision of the tribunal in its entirety and dismiss the petition; to affirm the appellant as the duly elected senator for the Benue South Senatorial District".
The Senate President in ground one of his appeal, questioned the judgment of the tribunal because its judgment was signed by Justice A.A. Nwobodo who did not participate in the hearing of the petition before the petitioner closed his case and most of the respondents' witnesses had testified.
He argued that because Justice Nwobodo never participated in most of the hearings of the petition, yet he signed the judgment as being the outcome of the hearing, he (Senate President) did not get fair hearing from the tribunal.
In ground four of his appeal, the senate President declared that the tribunal arrived at a perverse decision when it held that the alterations of exhibits OLF and PW4A series were carried out under the custody of INEC and its officers and yet overlooked the INEC motion that specifically declared that the same result sheets had been handed over to the petitioner for inspection and that the petitioner failed to return same at the time INEC filed the said motion.
According to the Senate President, 'Contrary to the tribunal's finding that the fraudulent alterations were at variance with the petitioner's pleadings, the alterations actually supported the allegations in the pleas".
Senator Mark declared in ground six of his appeal that the tribunal erred in law when it declared that the Senatorial Returning Officer had the power to cancel results of two councils, when sections 28(f), 69 and 70 of the Electoral Act clearly provide that once an election result has been ascertained, the returning officer is duty bound to announce same.He went further to fault the heavy reliance the tribunal placed on three police officers in coming to the conclusion that the returning officer cancelled the result at the District Collation Office, when the police officers were not called as witnesses to afford the respondents the opportunity of cross examining them.
According to the Senate President: 'The tribunal totally ignored the unchallenged and uncontroverted evidence that the returning officer merely suspended further collation and declaration of results on the pain of death and under duress occasioned by threats from the petitioner and his agents".
Mark declared in his Notice of Appeal that the petitioner failed to adduce evidence to prove his allegations of electoral malpractices/irregularities most of which were criminal in nature and required proof beyond reasonable doubt.
He said that the tribunal erred by believing the reports of three police officers at the District Collation Centre, who were never cross examined, when the petitioner jettisoned the reports of the Okpokwu and Agatu Divisional Police Officers, which he pleaded, but refused to tender because they declared that elections held in accordance with the Electoral Act.
The Senate President faulted the tribunal for nullifying his election, when the petition failed to lead credible evidence on his allegations.
He particularly said that the tribunal was wrong when it failed to invoke section 149(D) of the Evidence Act against the petitioner for not tendering the reports of the Divisional Police Officers of Agatu and Okpokwu LGAs, having pleaded and frontloaded them, and for not calling the various persons mentioned in the petition as having witnessed the alleged malpractices.
The Senate President served notice that he would file more grounds of appeal, when he receives the record of appeal.