Though the much awaited judgment in the case between the All Progressives Congress candidate, Daniel Onjeh, and Senator David Mark, the immediate past President of the Senate and Senatorial candidate of the Peoples Democratic Party had come and gone, the controversy generated by the judgment is yet to evaporate.
Shortly after the declaration of Senator Mark as the winner of the March 28, 2015 in Benue South senatorial elections, Onjeh rushed to the National/State House of Assembly Election Tribunal in Makurdi, challenging the declaration and return of Senator Mark as the winner of the election.
David Mark had polled 95,538 valid votes to Onjeh’s 50,115. Onjeh alleged several criminal allegations among which are multiple thumb printings, ballot box stuffing, non-use of card readers, and ballot snatching. He relied on several documents such as voters register, result sheets from polling units, wards, and local governments. He, however, failed to plead and list the Senatorial Declaration Form. During trial, Onjeh brought 18 witnesses including himself who testified as PW 17.
He also brought documents on subpoena through INEC staff who disclosed to the tribunal that he was not the maker of the tendered documents.
The INEC staff also noted that he was not in the vicinity where those documents were generated and that his duty was to merely bring those documents from INEC and to be tendered at the Tribunal.
Results forms (EC8A(1), EC8B(1) numbering well over 800 in number for more than 700 pulling units and collation centres were tendered by Onjeh, who was not their maker, and who also did not witness their making. Another witness (PW18 – INEC staff) came on subpoena and tendered Exhibit P1-40, i.e. the card reader accreditation data. He did not give any evidence whatsoever on the contents. Also, another witness (PW19) tendered the VR series of Exhibits being voters registers.
He too did not give evidence on the contents, and both witnesses admitted in cross examination that they did not witness the making of the exhibits. The only oral evidence on the contents of the exhibits came from Onjeh (PW17) and INEC staff (PW18) and the evidence was not an eye witness account –which was discountenanced.
The cross-examination of PW18 by counsel to Senator Mark is at page 2768 Vol. 3 of the Record, while that of PW19 is at pages 2826 – 2827 Vol. 3. In Onjeh’s view, the various exhibits which he tendered and on which he gave extensive evidence, but whose making he did not witness, were documentary hearsay, utterly lacking in probative value. His testimony, both on the exhibits and on the entirety of the petition was also inadmissible hearsay, liable to be expunged.
This point was made most tellingly by the Supreme Court in ABUBARKAR V. YAR’ADUA (2008) 19 NWLR (PT.1120) 1 at 173-174 paragraphs D- G per Tobi JSC: The position of the law, therefore, is that where the figures or scores of candidates at an election are being challenged, as in this instant case, the evidence should come direct from the officers or agents who were on the field where the votes were counted, entered on the result forms and announced.
Even if Daniel Onjeh was an expert in the interpretation and reading of entries in result forms (which he certainly was not), he still would not be entitled to sit in the comfort of his home on election day, receive result forms from those who were on the field, and draw the conclusion that his evidence is drawn in chief, when he did not take part in the conduct of the elections in the polling units or collation centres lampooned, nor was he present when the entries were made.
On allegation that Senator David Mark was returned as elected on March 28, 2015, Mark’s Counsel had submitted that the four principal reliefs sought by the petitioners (the APC and Onjeh) in the Lower Tribunal were declaratory reliefs.
It is therefore, trite that the presence of admissions in the defense, or even the failure of the Respondents to testify at all cannot alleviate the burden of proof on the petitioners. In CPC V. INEC & ORS (2011) LPELR – 8257) SC) per Mohammed JSC pp. 80-81 paragraphs E-B, the Supreme Court said as follows: The law however is trite…that a plaintiff… claiming declaratory reliefs must rely on the strength of his own case and not on the weaknesses of the defence.
This principle of law applies not only where the Defendant calls no evidence…but even where there is admission of the plaintiff’s case by the Defendant. It has always been my experience, and I believe it to be a practice of long standing, that the Court does not make declarations of right either on admission or default of pleading… but only if the Court was satisfied by evidence.
The APC and Mr. Onjeh ought therefore to have satisfied the lower Tribunal by credible and admissible evidence that Senator Mark was returned on 28th March, 2015, since the reliefs sought were declaratory in nature and were only grantable on the basis of evidence, and not upon admissions.
According to Ikonne, to prove the date on which the declaration and return of the Senator Mark was made, the APC and Mr. Onjeh had a duty in law to tender the statutory result Form EC8E(1) which is the only legally admissible evidence of the return, and the date on which the return was made.
Section 128(1) of the Evidence Act, 2011 holds that a party who relies on documents in proof of his case must tender the documents as oral or extrinsic evidence, including admissions, or the contents of a document are not admissible.
It was curious, therefore, that despite all these, Justice Peter Olabisi Ige and his colleagues, in their ingenuity, discarded Senator Mark’s valuable submissions and annulled the election on the basis of the discrepancies in date. Surprisingly, the judgment was equally predicated on Senatorial Result Form, which was neither listed nor pleaded, and which because of these anomalies were rejected and marked Reject.
There was no appeal against the ruling rejecting this document. However, the Court of Appeal, in their wisdom, and in order to ‘nail’ Senator Mark, resurrected this document.
Though the matter has been put to rest as the court in this matter is the final stop, the dust generated by the judgment will continue to reverberate until such related matters could be subjected to Supreme Court scrutiny, only then can the matter be rested.
– Elijah is Director Media & Publicity David Mark Campaign Organisation.
