Hon. Terseer Tsumba & Anor. V. Kwangha Osbert Ityomyima & Ors. (2008)

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UZO NDUKWE-ANYANWU, J.C.A.

On 14th April, 2007 elections were held throughout Nigeria into the various States Houses of Assembly. In Benue State, the Petitioner Kwaghga Osbert Ityomyima sponsored by the Action Congress (AC) contested against the 1st Respondent Terseer Tsumba sponsored by Peoples Democratic Party (PDP) for the Buruku State – Constituency seat. At the end of the election the 1st Respondent Terseer Tsumba was returned as the candidate duly elected.

The Petitioner being dissatisfied with the return of the 1st Respondent filed his petition on the 14th of May, 2007 against the 1st Appellant Terseer Tsumba, Peoples Democratic Party (PDP) as 2nd Respondents and against the 3rd – 211th Respondents who are officers of Independent National Electoral Commission (INEC).

In the petition the Petitioners stated that there were three candidates who contested the Buruku State Constituency Seat. The Petitioner came 2nd scoring 7,966 votes, the 1st Appellant scored 19,774 whilst the 3rd scored 3,447 votes.

The grounds of the Petitioners petition are:

(i) “That the 1st Respondent was not duly elected by a majority of lawful votes cast at the said election, which result was announced on 14th April, 2007.

(ii) That the election was invalid by reason of non-compliance with the provisions of the Electoral Act, 2006, as amended.

(iii) That the election was invalid having been marred by violence throughout Buruku State Constituency by armed thugs recruited by the 1st and 2nd Respondents, armed military personnel and armed policemen deployed on election duty on the day of election.”

At the end of the trial the Tribunal held that the Petitioners proved only grounds 1 and 2 of the petition but- failed to prove ground 3 and it was therefore dismissed. The Tribunal also nullified the election into the Buruku State Constituency of Benue State and ordered the 3rd Respondent Independent National Electoral Commission (INEC) to conduct fresh elections within 60 days. The 1st Respondent in the petition herein after called the Appellant being dissatisfied with the decision of the Tribunal filed a notice and one ground of appeal challenging the decision of the Tribunal. By leave of Court the Appellants filed eight (8) additional grounds of appeal. The Appellants also filed their joint brief of argument on 25th February, 2008 and was deemed properly filed and served on 2nd April, 2008. The 1st and 2nd Respondents also filed their joint brief of argument on the 3rd March, 2008 and was deemed properly filed and served on 2nd April, 2008. The 3rd to 211th Respondents filed their joint brief of argument and was deemed properly filed and served on the 6th May, 2008.

The Appellants formulated four (4) issues from their nine grounds of appeal for determination. They are set out hereunder:

(1) “Whether the Tribunal has jurisdiction to entertain the, petition? Relates to Ground 9, of the notice and Grounds of Appeal.

(2) Whether the Petitioners proved the allegations in the petition to entitle them to judgment? – relates to Grounds 2, 6, and 7 of the Notice of Appeal.

(3) Whether the Tribunal was right to nullify the election of the Appellant on grounds of non-compliance with the Electoral Act? – relates to Grounds 3, 4, and 8 of the Notice of Appeal.

(4) Whether there was any admissible evidence to justify the judgment of the Tribunal? – relates to grounds 1, 2, 5, 7 and 10 of the Notice of Appeal.”.