With the close of case on both sides, the legal battle for Benue South senatorial seat, between Senate President, David Mark, and the All Nigeria Peoples Party (ANPP) candidate, Usman Abubakar, is set for resolution. Usman is challenging the election of the Senate President, as the senator representing the zone in the National Assembly. He won at the Tribunal, but Mark appealed.

The three-member Court of Appeal panel led by Justice Zainab Bulkachuwa has slated July 11, 2008 for the delivery of the judgments in the appeals of the three petitions are filed before it, by the three parties in the Benue South election dispute - Mark, Abubakar, and the electoral umpire, the Independent National Electoral Commission (INEC). Mark filed the main appeal against the judgment of the Benue State Election Petition Tribunal through his counsel, Damian Dodo (SAN), on June 19, 2008, at the Jos Division of the Court of Appeal.

The INEC appeal, against portions of the judgment, especially the declaration that fresh election be held in the two councils of Okpokwu and Agatu Local Government Areas of Benue South Senatorial District, was filed on its behalf by its lead counsel, Amaechi Nwaiwu (SAN) on May 19, 2008. However, the petitioner at the lower Tribunal, Abubakar, through his counsel, Wole Olanipekun (SAN), filed a cross-appeal. The crux of the cross-appeal was that the Tribunal erred in law by not declaring him winner, after it had upheld his prayers that there were irregularities in the two disputed areas of the election.

Two times during the hearing of the appeal in Jos, the Senate President sat side by side with his challenger, Abubakar throughout. The Senate President was accompanied by his colleagues in the upper legislative chamber, Senator Saminu Turaki and Senator Joy Emordi; while Abubakar has been accompanied by former federal lawmaker, Senator Joseph Waku, who is the traditional prime minister of the Tiv ethnic group.

The hearing of the three appeals started on an expectedly tense note. Dodo and Nwaiwu insisted that the three appeals be heard separately, so that the Justices of the Court of Appeal could follow the arguments sequentially. This did not sit well with Olanipekun who stressed that he had only one set of replies for the two appeals and that it would amount to mere repetition and a waste of the court's time. The court eventually ruled that each counsel should argue his appeal within 30 minutes, subject to the direction of the court. But in the course of arguments, Olanipekun flouted his suggestion, as he demanded for one hour to reply to the issues raised by the two other counsel. This drew the ire of Dodo, who reminded the court of Olanipekun's suggestion.

Dodo commenced his argument by first bringing before the court what he termed the failure of the Benue State Election Petition Tribunal to credit the Senate President with PDP votes in Oju Local Government Area of Benue State, when there was no challenge over the said votes; whereas the same Tribunal, according to him, credited scores to all the other parties that participated in the election, including the ANPP. He expressed surprise that the Tribunal could act in that manner, when all the parties that appeared before it joined issues as regards the Local Government Area; more so as at the hearing, the Senate President specifically tendered the result of Oju Local Government Area for the PDP for the judicial notice of the tribunal, which, Dodo said, was accepted in evidence by the Tribunal, without objection from Abubakar's counsel.

According to Dodo, "There was a result for Oju Local Government Area of Benue South Senatorial District that was never disputed by the petitioner in his pleadings at the lower tribunal. The records of the proceedings clearly show that the result was admitted without objection from the petitioner. The Returning Officer for Benue South in his testimony at the Tribunal below said that the Oju Local Government result was included in the overall results." He argued that in view of the voting pattern of the constituents on the day of the election, it was inconceivable and a travesty of justice by the Benue State Election Petition Tribunal to agree that all the other parties scored votes in Oju Local Government, while the PDP scored no votes at all in the council. He urged the Court of Appeal to overrule the lower Tribunal and restore the votes of the Senate President in Oju Local Government Area of the District, since there was nothing to suggest in the pleadings of Abubakar that there were irregularities that indicated that the votes were not deserved.

Arguing on the reports of the deputy commissioner of Police, Benue State Command, the Area Commander, Otukpo, and the Benue South Unit Command of the Mobile Police Force, which the Tribunal based its decision on to uphold the cancellation of the results of Agatu and Okpokwu Local Government Areas, Dodo submitted it was a grievous error in law, since the petitioner never called the police officers who are still alive to testify on the matter as makers of the reports. He said, "On such a weighty issue, the alleged authors of the reports were never called to testify as to the veracity of the reports and be subjected to cross-examination by counsel, even though they are still alive. These policemen are busybodies who make reports, when they have no legal powers under the law to do so, as enshrined in the Electoral Act or the Election Manual for officials. If these police officers therefore decide to write reports, without the permission of the law to write such reports, then they must be ready to appear before the court to defend their reports." He urged the Court of Appeal to set aside the ruling of the Benue Tribunal, which was premised on manifest reliance on witnesses, who neither testified nor were cross-examined on the veracity of their reports.

Commenting on the argument that the documents were public documents, hence there was no need for the police officers to appear to defend their authenticity, he noted that the situation was different and that there was need for the makers of the documents to defend their veracity. He said, "A genuine certified true copy means genuine copy; it has nothing to do with the veracity of the said document." On the alleged cancellation of results from Okpokwu and Agatu Local Government Areas by the District Collation Officer, Mr. Lawrence Osungoruwa, Dodo argued that there was no cancellation of the results as canvassed by the petitioner at the lower Tribunal. He contended that the electoral officer at Agatu Local Government, Felix Igbahenah and that of Okpokwu Local Government Area, in their individual testimonies before the Benue State Election Tribunal declared that they were not privy to any cancellation of the results, as was claimed by the petitioner before the Tribunal. He added that even the District Collation Officer denied cancelling any results, but that he rather declared that the results of the two councils could not be fully collated as a result of the crisis generated by the petitioner and his agents. According to him, "The results of the two local government areas of Okpokwu and Agatu were duly signed by the ANPP agents for these councils who witnessed and participated in the elections. These ANPP agents accompanied the said results to the Otukpo Collation Centre, only for another ANPP agent who was never near Okpokwu and Agatu to generate crisis at the Collation Centre. Even the District Collation Officer neither visited the two councils and therefore had no premise to even cancel the results."

On the issue of forgery of result, counsel to Mark expressed dismay that after the Tribunal accepted that there was forgeries, laid the blame on the doorstep of the Senate President, without giving him fair hearing as required by law.

The Senate President's counsel also pointed out that the improper constitution of the Tribunal after the removal of its first chairman, Justice Bukar, vitiated its judgment. He noted that a properly constituted tribunal has five members, in line with the section 85 of the 1999 Constitution. He argued further that the Constitution does not provide for two chairmen in the course of one petition, stressing that once a chairman was removed, the new chairman starts hearing afresh.

On Justice A.A. Nwobodo, who was drafted to the Tribunal after the petitioner had finished calling his witnesses and the Senate President called 16 out of 17 witnesses, and yet he signed and participated in the judgment, Dodo posited that his participation vitiated the entire judgment, since he sat in judgment over a case he did not substantially hear. Dodo drew the attention of the Court of Appeal to the fact that the petitioner had an intractable problem, when he adopted his entire petition as his evidence, noting that the petition was filled with allegations of crime, which only persons who directly participated in the said elections could prove. He said it was for this reason that the petitioner, who was neither in Okpokwu nor Agatu could prove the plethora of allegations of electoral crimes against the Senate President. "The petitioner did not call any witnesses to prove his case," he said. "If you take away the INEC subpoenaed staff, who were only there to tender documents, you will be left with the petitioner's hearsay evidence, which goes to no issue in the face of the criminal allegations made by him in his petition."

On the issue of over-voting canvassed by the petitioner at the lower Tribunal, Dodo urged the Appeal Court to look at the election results from the viewpoint of the Electronic and Manual Registers used for the election, which the Tribunal accepted in its judgment on the case between the ANPP candidate and the Nasarawa State Governor. He said the Benue State Election Petition Tribunal inexplicably chose to base its judgment only on the Electronic Voters Registers.

Concluding, Dodo submitted, "Even on the face of the documents filed here, the Court of Appeal has to enter judgment in our favour and uphold the election of the Senate President. Nobody reading the judgment of the Benue State Election Petition Tribunal on that petition would imagine that a Tribunal conducted itself in that manner in the 21st century."

The nation awaits, to see whether the Court of Appeal would agree with Dodo, or uphold the judgment of the Tribunal; meaning: Mark bids the Senate goodbye.