FIRST SCHEDULE
Section 140 (1) and 152
Rules of Procedure for Election Petitions
Interpretation
1. In this Schedule—
“Attorney-General” means the Attorney-General of the Federation and includes the Attorney-General of a State where the context admits ;
“Civil Procedure Rules” means the civil procedure rules of the Federal High Court for the time being in force ;
“election” means any election under this Act to which an election petition relates ;
“registry” means a registry set up for an Election Tribunal established by the Constitution or this Act or the registry of the Court of Appeal ;
“Secretary” means the Secretary of an Election Tribunal established by the Constitution or this Act and shall include the Registrar of the Court of Appeal or any officer or Clerk acting for him ;
“Tribunal” means an Election Tribunal established under this Act or the Court of Appeal ;
“tribunal notice board” means a notice board at the Registry or a notice board at the place of hearing where notice of presentation of election petition or notice of hearing an election petition or any other notice may be given or posted.
Security for costs
2. (1) At the time of presenting an election petition, the petitioner shall give security for all costs which may become payable by him to a witness summoned on his behalf or to a respondent.
(2) The security shall be of such amount not less than N5,000 as the Tribunal or Court may order and shall be given by depositing the amount with the Tribunal or Court.
(3) Where two or three persons join in an election petition, a deposit as may be ordered under subparagraph (2) shall be sufficient.
(4) If no security is given as required by this paragraph, there shall be no further proceedings on the election petition.
Presentation of Election Petition
3.—(1) The presentation of an election petition under this Act shall be made by the petitioner (or petitioners if more than one) in person, or by his solicitor, if any, named at the foot of the election petition to the Secretary, and the Secretary shall give a receipt.
(2) The Petitioner shall, at the time of presenting the election petition, deliver to the Secretary a copy of the election petition for each respondent and ten other copies to be preserved by the Secretary.
(3) The Secretary shall compare the copies of the election petition received in accordance with subparagraph (2) with the original petition and shall certify them as true copies of the election petition on being satisfied by the comparison that they are true copies of the election petition.
(4) The petitioner or his solicitor, as the case may be, shall, at the time of presenting the election petition, pay the fees for the service and the publication of the petition, and for certifying the copies and, in default of the payment, the election petition shall be deemed not to have been received; unless the Tribunal or Court otherwise orders.
Contents of election petition
4.—(1) An election petition under this Act shall—
(a) specify the parties interested in the election petition ;
(b) specify the right of the petitioner to present the election petition ;
(c) state the holding of the election, the scores of the candidates and the person returned as the winner of the election ; and
(d) state clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief sought by the petitioner.
(2) The election petition shall be divided into paragraphs each of which shall be confined to a distinct issue or major facts of the election petition, and every paragraph shall be numbered consecutively.
(3) The election petition shall—
(a) conclude with a prayer or prayers, as for instance, that the petitioner or one of the petitioners be declared validly elected or returned, having polled the highest number of lawful votes cast at the election or that the election may be declared nullified, as the case may be ; and
(b) be signed by the petitioner or all petitioners or by the solicitor, if any, named at the foot of the election petition.
(4) At the foot of the election petition there shall also be stated an address of the petitioner for service at which address documents intended for the petitioner may be left and its occupier.
(5) The election petition shall be accompanied by—
(a) a list of the witnesses that the petitioner intends to call in proof of the petition ;
(b) written statements on oath of the witnesses ; and
(c) copies or list of every document to be relied on at the hearing of the petition.
(6) A petition which fails to comply with subparagraph (5) shall not be accepted for filing by the Secretary.
(7) An election petition, which does not comply with subparagraph (1) or any provision of that subparagraph is defective and may be struck out by the Tribunal or Court.
Further particulars
5. Evidence need not to be stated in the election petition, but the Tribunal or Court may order such further particulars as may be necessary—
(a) to prevent surprise and unnecessary expense ;
(b) to ensure fair and proper hearing in the same way as in a civil action in the Federal High Court ; and
(c) on such terms as to costs or otherwise as may be ordered by the Tribunal or Court.
Address of service
6. For the purpose of service of an election petition on the respondents, the petitioner shall furnish the Secretary with the address of the respondents’ abode or the addresses of places where personal service can be effected on the respondents.
Action by Secretary
7.—(1) On the presentation of an election petition and payment of the requisite fees, the Secretary shall immediately—
(a) cause notice of the presentation of the election petition, to be served on each of the respondents ;
(b) post on the tribunal notice board a certified copy of the election petition ; and
(c) set aside a certified copy for onward transmission to the person or persons required by law to adjudicate and determine the election petition.
(2) In the notice of presentation of the election petition, the Secretary shall state a time, not being less than five days but not more than seven days after the date of service of the notice, within which each of the respondents shall enter an appearance in respect of the election petition.
(3) In fixing the time within which the respondents are to enter appearance, the Secretary shall have regard to—
(a) the necessity for securing a speedy hearing of the election petition ; and
(b) the distance from the Registry or the place of hearing to the address furnished under paragraph 4 (4).
Personal service on respondent
8.—(1) Subject to subparagraph (2) and (3), service on the respondents—
(a) of the documents mentioned in paragraph 7 (1) (a) ; and
(b) of any other documents required to be served on them before entering appearance, shall be personal.
(2) Where the petitioner has furnished, under paragraph 6, the addresses of the places where personal service can be effected on the respondents and the respondents or any of them cannot be found at the place or places, the Tribunal or Court on being satisfied, on an application supported by an affidavit showing that all reasonable efforts have been made to effect personal service, may order that service of any document mentioned in subparagraph (1) be effected in any ways mentioned in the relevant provisions of the Civil Procedure Rules for effecting substituted service in civil cases and that service shall be deemed to be equivalent to personal service.
(3) The proceedings under the election petition shall not be vitiated notwithstanding the fact that—
(a) the respondents or any of them may not have been served personally ; or
(b) a document of which substituted service has been effected pursuant to an order made under subparagraph (2) did not reach the respondent, and in either case, the proceedings may be heard and continued or determined as if the respondents or any of them had been served personally with the document and shall be valid and effective for all purposes.
Entry of appearance
9.—(1) Where the respondent intends to oppose the election petition, he shall—
(a) within such time after being served or deemed to have been served with the election petition ; or
(b) where the Secretary has stated a time under paragraph 7 (2), within such time as is stated by the Secretary, enter an appearance by filing in the registry a memorandum of appearance stating that he intends to oppose the election petition and giving the name and address of the solicitor, if any, representing him or stating that he acts for himself, as the case may be, and, in either case, giving an address for service at which documents intended for him may be left or served.
(2) If an address for service and its occupiers are not stated, the memorandum of appearance shall be deemed not to have been filed, unless the Tribunal or Court otherwise orders.
(3) The memorandum of appearance shall be signed by the respondent or his solicitor, if any.
(4) At the time of filing the memorandum of appearance, the respondent or his solicitor, as the case may be, shall—
(a) leave a copy of the memorandum of appearance for each of the other parties to the election petition and three other copies of the memorandum to be preserved by the Secretary ; and
(b) pay the fees for service as may be prescribed or directed by the Secretary and in default of the copies being left and the fees being paid at the time of filing the memorandum of appearance, the memorandum of appearance shall be deemed not to have been filed, unless the Tribunal or Court otherwise orders.
(5) A respondent who has a preliminary objection against the hearing of the election petition on grounds of law may file a conditional memorandum of appearance.
Non-filing of Memorandum of Appearance
10.—(1) If the respondent does not file a memorandum of appearance as required under paragraph 9, a document intended for service on him may be posted on the tribunal notice board and that shall be sufficient notice of service of the document on the respondent.
(2) The non-filing of a memorandum of appearance shall, not bar the respondent from defending the election petition if the respondent files his reply to the election petition in the registry within a reasonable time, but, in any case, not later than 21 days from the receipt of the election petition.
Notice of Appearance
11. The Secretary shall cause copies of the memorandum of appearance to be served on, or its notice to be given to the other parties to the election petition.
Filing of reply
12.—(1) The respondent shall, within 21 days of service of the petition on him file in the registry his reply, specifying in it which of the facts alleged in the election petition he admits and which he denies, and setting out the facts on which he relies in opposition to the election petition.
(2) Where the respondent in an election petition, complaining of an undue return and claiming the seat or office for a petitioner intend to prove that the claim is incorrect or false, the respondent in his reply shall set out the facts and figures clearly and distinctly disproving the claim of the petitioner.
(3) The reply may be signed by the respondent or the solicitor representing him, if any and shall state the name and address of the solicitor at which subsequent processes shall be served; and shall be accompanied by copies of documentary evidence, list of witnesses and the written statements on oath.
(4) At the time of filing the reply, the respondent or his solicitor, if any shall leave with the Secretary copies of the reply for services on the other parties to the election petition with 10 extra copies of the reply to be preserved by the Secretary, and pay the fees for service as may be prescribed or directed by the Secretary, and in default of leaving the required copies of the reply or paying the fees for service, the reply shall be deemed not to have been filed, unless the Tribunal or Court otherwise orders.
(5) A respondent who has an objection to the hearing of the petition shall file his reply and state the objection in it, and the objection shall be heard along with the substantive petition.
Service of Reply
13. The Secretary shall cause a copy of the reply to be served on each of the other parties to the election petition.
Amendment of Election petition and reply
14.—(1) Subject to subparagraph (2), the provisions of the Civil Procedure Rules relating to amendment of pleadings shall apply in relation to an election petition or a reply to the election petition as if for the words “any proceedings” in those provisions, there were substituted the words,”the election petition or reply”.
(2) After the expiration of the time limited by—
(a) Section 132 (7) of this Act for presenting the election petition, no amendment shall be made—
(i) introducing any of the requirements of paragraph 4 (1) not contained in the original election petition filed, or
(ii) effecting a substantial alteration of the ground for, or the prayer in, the election petition, or
(iii) except anything which may be done under subparagraph (2) (a) (ii), effecting a substantial alteration of or addition to, the statement of facts relied on to support the ground for, or sustain the prayer in the election petition ; and
(b) paragraph 12 for filing the reply, no amendment shall be made—
(i) alleging that the claim of the seat or office by the petitioner is incorrect or false, or
(ii) except anything which may be done under the provisions of subparagraph (2) (a) (ii), effecting any substantial alteration in or addition to the admissions or the denials contained in the original reply filed, or to the facts set out in the reply.
Particulars of votes rejected
15. When a petitioner claims the seat alleging that he had the highest number of valid votes cast at the election, the party defending the election or return at the election shall set out clearly in his reply particulars of the votes, if any, which he objects to and the reasons for his objection against such votes, showing how he intends to prove at the hearing that the petitioner is not entitled to succeed.
Petitioner’s Reply
16.—(1) If a person in his reply to the election petition raises new issues of facts in defence of his case which the petition has not dealt with, the petitioner shall be entitled to file in the registry, within five days from the receipt of the respondent’s reply, a petitioner’s reply in answer to the new issues of fact, so that—
(a) the petitioner shall not at this stage be entitled to bring in new facts, grounds or prayers tending to amend or add to the contents of the petition filed by him ; and
(b) the petitioner’s reply does not run counter to the provisions of paragraph 14 (1).
(2) The time limited by subparagraph (1) shall not be extended.
(3) The petitioner in proving his case shall have the time limit as prescribed under paragraph 41 (10).
Further particulars or directive
17.—(1) If a party in an election petition wishes to have further particulars or other directions of the Tribunal or Court, he may, at any time after entry of appearance, but not later than 10 days after the filing of the reply, apply to the Tribunal or Court specifying in his notice of motion the direction for which he prays and the motion shall, unless the Tribunal or Court otherwise orders, be set down for hearing on the first available day.
(2) If a party does not apply as provided in subparagraph (1), he shall be taken to require no further particulars or other directions and the party shall be barred from so applying after the period laid down in subparagraph (1) has lapsed.
(3) Supply of further particulars under this paragraph shall not entitle the party to go beyond the ambit of supplying such further particulars as have been demanded by the other party, and embark on undue amendment of, or additions to, his petition or reply, contrary to paragraph 14.
Pre-hearing session and scheduling
18.—(1) Within seven days after the filing and service of the petitioner’s reply on the respondent or seven days after the filing and service of the respondent’s reply, whichever is the case, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF 007.
(2) Upon application by a petitioner under sub-paragraph (1), the Tribunal or Court shall issue to the parties or their legal practitioners (if any) a pre- hearing conference notice as in Form TF 007 accompanied by a pre-hearing information sheet as in Form TF 008 for—
(a) the disposal of all matters which can be dealt with on interlocutory application ;
(b) giving such directions as to the future course of the petition as appear best adapted to secure its just, expeditious and economical disposal in view of the urgency of election petitions ;
(c) giving directions on order of witnesses to be called and such documents to be tendered by each party to prove their cases having in view the need for the expeditious disposal of the petition ; and
(d) fixing clear dates for hearing of the petition.
(3) The respondent may bring the application in accordance with subparagraph (1) where the petitioner fails to do so, or by motion which shall be served on the petitioner and returnable in three clear days, apply for an order to dismiss the petition.
(4) Where the petitioner and the respondent fail to bring an application under this paragraph, the Tribunal or Court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained.
(5) Dismissal of a petition under subparagraphs (3) and (4) is final, and the Tribunal or Court shall be functus officio.
(6) At the pre-hearing session, the Tribunal or Court shall enter a scheduling Order for—
(a) joining other parties to the petition ;
(b) amending petition or reply or any other processes ;
(c) filing and adoption of written addresses on all interlocutory applications ;
(d) additional pre-hearing session ;
(e) order of witnesses and tendering of documents that will be necessary for the expeditious disposal of the petition ; and
(f ) any other matters that will promote the quick disposal of the petition in the circumstances.
(7) At the pre-hearing session, the Tribunal or Court shall consider and take appropriate action in respect of the following as may be necessary or desirable—
(a) amendments and further and better particulars ;
(b) the admissions of facts, documents and other evidence by consent of the parties ;
(c) formulation and settlement of issues for trial ;
(d) hearing and determination of objections on point of law ;
(e) control and scheduling of discovery inspection and production of documents ;
(f ) narrowing the field of dispute between certain types of witnesses especially the Commission’s staff and witnesses that officiated at the election, by their participation at pre-hearing session or in any other manner ;
(g) giving orders or directions for hearing of cross-petitions or any particular issue in the petition or for consolidation with other petitions ;
(h) determining the form and substance of the pre-hearing order ; and
(i) such other matters as may facilitate the just and speedy disposal of the petition bearing in mind the urgency of election petitions.
(8) At the pre-hearing session, the Tribunal or Court shall ensure that hearing is not delayed by the number of witnesses and objections to documents to be tendered and shall pursuant to subparagraphs 7 (b), and (e)—
(a) allow parties to admit or exclude documents by consent ; and
(b) direct parties to streamline the number of witnesses to those whose testimonies are relevant and indispensable.
(9) The pre-hearing session or series of the pre-hearing sessions with respect to any petition shall be completed within 14 days of its commencement, and the parties and their legal practitioners shall co-operate with the Tribunal or Court in working within this time table and as far as practicable, pre-hearing sessions shall be held from day to day or adjourned only for purposes of compliance with prehearing sessions, unless extended by the Chairman or the Presiding Justice.
(10) After a pre-hearing session or series of pre-hearing sessions the Tribunal or Court shall issue a report and this report shall guide the subsequent course of the proceedings, unless modified by the Tribunal or Court.
(11) If a party or his Legal Practitioner fails to attend the pre-hearing sessions or obey a scheduling or pre-hearing order or is substantially unprepared to participate in the session or fails to participate in good faith, the Tribunal or Court shall in the case of —
(a) the petitioner, dismiss the petition ; and
(b) a respondent enter judgment against him.
(12) Any judgment given under subparagraph (11) may be set aside upon an application made within seven days of the judgment (which shall not be extended) with an order as to costs of a sum not less than N20,000.00.
(13) The application shall be accompanied by an undertaking to participate effectively in the pre-hearing session jointly signed by the applicant and the Legal Practitioner representing him.
Hearing of petition to be in open tribunal or court
19. Every election petition shall be heard and determined in an open tribunal or court.
Time and place of hearing petition
20.—(1) Subject to the provisions of subparagraph (2), the time and place of the hearing of an election petition shall be fixed by the Tribunal or Court and notice of the time and place of the hearing, which may be as in Form TF. 005 set out in Second Schedule to this Act, shall be given by the Secretary at least five days before the day fixed for the hearing by—
(a) posting the notice on the tribunal notice board ; and
(b) sending a copy of the notice by registered post or through a messenger to the—
(i) petitioner’s address for service,
(ii) respondent’s addresses for service, if any, or
(iii) Resident Electoral Commissioner or the Commission as the case may be.
(2) In fixing the place of hearing, the Tribunal or Court shall have due regard to the proximity to and accessibility from the place where the election was held.
Notice of hearing
21. A tribunal or court, as the case may be, shall publish the notice of hearing by causing a copy of the notice to be displayed in the place which was appointed for the delivery of nomination papers prior to the election or in some conspicuous place or places within the constituency, but failure to do so or any miscarriage of the copy of notice of hearing shall not affect the proceedings if it does not occasion injustice against any of the parties to the election petition.
Posting of notice on tribunal notice board deemed to be good notice
22. The posting of the notice of hearing on the tribunal notice board shall be deemed and taken to be good notice, and the notice shall not be vitiated by any miscarriage of the copy or copies of the notice sent pursuant to paragraph 16.
Postponement of hearing
23.—(1) The Tribunal or Court may, by order made on the application of a party to the election petition or at the instance of the Tribunal or Court, postpone the beginning of the hearing to such day as the Tribunal or Court may consider appropriate having regard at all times to the need for speedy conclusion of the hearing of the election petition.
(2) A copy of the order shall be sent by the Secretary by registered post or messenger to the electoral officer or the Resident Electoral Commissioner or the Commission who shall publish the order in the manner provided in paragraph 20 for publishing the notice of hearing, but failure on the part of the electoral officer or Resident Electoral Commissioner or the Commission to publish the copy of the order of postponement shall not affect the proceedings in any manner whatsoever.
(3) The Secretary shall post or cause to be posted on the tribunal notice board a copy of the order.
(4) Where the Tribunal or Court gives an order of postponement at its own instance a copy of the order shall be sent by the Secretary by registered post or messenger to the address for service given by the petitioner and to the address for service, if any, given by the respondents or any of them.
(5) The provisions of paragraph 21 shall apply to an order or a notice of postponement as they do to the notice of hearing.
Non arrival of Chairman of tribunal or Presiding Justice of the court
24. If the Chairman of the tribunal or presiding justice of the court has not arrived at the appointed time for the hearing or at the time to which the hearing has been postponed, the hearing shall, by reason of that fact, stand adjourned to the following day and so from day to day.
Hearing continues from day to day
25.—(1) No formal adjournment of the Tribunal or Court for the hearing an election petition shall be necessary, but the hearing shall be deemed adjourned and may be continued until the hearing is concluded unless the Tribunal or Court otherwise directs as the circumstances may dictate.
(2) If the Chairman of the Tribunal or the presiding justice of the court who begins the hearing of an election petition is disabled by illness or otherwise, the hearing may be recommended and concluded by another Chairman of the Tribunal or presiding justice of the Court appointed by the appropriate authority.
Adjournment of hearing
26.—(1) After the hearing of an election petition has begun, if the inquiry cannot be continued on the ensuing day or, if that day is a Sunday or a Public holiday, on the day following the same, the hearing shall not be adjourned sine die but to a definite day to be announced before the rising of the Tribunal or Court and notice of the day to which the hearing is adjourned shall immediately be posted by the Secretary on the notice board.
(2) The hearing may be continued on a Saturday or on a public holiday if circumstances dictate.
Power of Chairman of the Tribunal or the presiding justice of the court to dispose on interlocutory matters
27.—(1) All interlocutory questions and matters may be heard and disposed of by the Chairman of the Tribunal or the presiding justice of the court who shall have control over the proceedings as a Judge in the Federal High Court.
(2) After the hearing of the election petition is concluded, if the Tribunal or Court before which it was heard has prepared its judgment but the Chairman or the presiding justice is unable to deliver it due to illness or any other cause, the judgment may be delivered by one of the members, and the judgment as delivered shall be the judgment of the Tribunal or Court and the member shall certify the decision of the Tribunal or Court to the Resident Electoral Commissioner, or to the Commission.
Effect of determination of election petition
28.—(1) At the conclusion of the hearing, the Tribunal shall determine whether a person whose election or return is complained of or any other person, and what person, was validly returned or elected, or whether the election was void, and shall certify the determination to the Resident Electoral Commissioner or the Commission.
(2) If the Tribunal or Court has determined that the election is invalid, then, subject to section 134 of this Act, where there is an appeal and the appeal fails, a new election shall be held by the Commission.
(3) Where a new election is to be held under the provisions of this paragraph, the Commission shall appoint a date for the election which shall not be later than three months from the date of the determination.
Withdrawal or abatement of petition
29.—(1) An election petition shall not be withdrawn without leave of the tribunal or court.
(2) Where the petitioners are more than one no application for leave to withdraw the election petition shall be made except with the consent of all the petitioners.
(3) The application for leave to withdraw an election shall be made by motion after notice of the application has been given to the respondents.
(4) The notice of motion shall state the grounds on which the motion to withdraw is based, supported with affidavit verifying the facts and reasons for withdrawal, signed by the petitioner or petitioners in the presence of the Secretary.
(5) At the time of filing the notice of motion the petitioner or petitioners shall leave copies for service on the respondent.
(6) The petitioner or petitioners shall also file the affidavits required under paragraph 29 together with copies for each respondent and pay the fees prescribed or directed by the Secretary for services.
Affidavits against illegal term of withdrawal
30.—(1) Before the leave for withdrawal of an election petition is granted, each of the parties to the petition shall produce an affidavit, stating that—
(a) to the best of the deponent’s knowledge and belief no agreement or term of any kind whatsoever has been made ; and
(b) no undertaking has been entered into, in relation to the withdrawal of the petition, but if any lawful agreement has been made with respect to the withdrawal of the petition, the affidavit shall set forth that agreement and shall make the foregoing statement subject to what appears from the affidavit.
Time for hearing motion for leave to withdraw petition
31.—(1) The time for hearing the motion for leave to withdraw the election petition shall be fixed by the Tribunal or Court.
(2) The Secretary may give notice of the day fixed for the hearing of the motion to the respondents and post or cause to be posted on the Tribunal notice board a copy of the notice.
Payment of costs to respondents
32. If the election petition is withdrawn, the petitioner shall be liable to pay appropriate costs to the respondents or any of them unless the Tribunal or Court otherwise orders.
Abatement of proceedings in election petition
33.—(1) If a sole petitioner or the survivor of several petitioners dies, then, subject to subparagraphs (2) and (3), there shall be no further proceedings on the election petition and the Tribunal or Court may strike it out of its cause list.
(2) The death of a petitioner shall not affect his liability for the payment of costs previously incurred in the course of proceedings in respect of the election petition prior to its abatement.
(3) Where notice, with copies for each party to the election petition supported by the affidavit of two witnesses testifying to the death of a sole petitioner or of the survivor of several petitioners, is given to the Secretary, he shall submit the notice to the Tribunal or Court and if the Tribunal or Court so directs, the Secretary shall—
(a) serve notice on the other parties to the petition ;
(b) post or cause to be posted a notice on the Tribunal notice board ; and
(c) cause notice to be published in conspicuous places in the constituency, in such form as the Tribunal or Court may direct.
Notice of no opposition to petition
34.—(1) If before the hearing of an election petition, a respondent, other than the electoral officer, the returning officer or Presiding officer, gives to the Tribunal or Court notice in writing signed by him or his Solicitor before the Secretary that he does not intend to oppose the election petition, the Secretary shall—
(a) serve notice on the other parties to the election petition ; and
(b) post or cause to be posted a notice on the Tribunal notice board.
(2) The respondent shall file the notice with a copy for each other party to the election petition not less than six days before the day appointed for hearing of the election petition.
(3) A respondent who has given notice of his intention not to oppose the election petition shall not appear or act as a party against the election petition in any proceeding on it ; but the giving of the notice shall not of itself cause him to cease to be a respondent.
Countermand of notice of hearing
35.—(1) Where a notice of—
(a) the petitioner’s intention to apply for leave to withdraw an election petition ; or
(b) the death of the sole petitioner or the survivor of several petitioners ; or
(c) the respondent’s intention not to oppose an election petition, is received after notice of hearing of the election petition has been given, and before the hearing has begun, the Secretary shall forthwith countermand the notice of hearing.
(2) The countermand shall be given in the same manner, and, as near as may be, as the notice of hearing.
Discretion of Tribunals or Court if no reply
36. Where the respondent has not entered an appearance, or has not filed his reply within the prescribed time or within such time as the Tribunal or Court may have allowed, or has given notice that he does not intend to oppose the petition, then if—
(a) there remains no more than one other candidate in the election who was not returned ;
(b) the election petition contains no prayer for a determination that the election was void ;
(c) there are no facts or grounds stated in the election petition or in the reply, if any, or stated in any further particulars filed in the proceedings or otherwise appearing on proof of which it ought to be determined that election was void ; or
(d) the election petition is one complaining of undue return and claiming the seat or office for the candidate who was not returned and the respondent has not raised any formal or written objections to any of the votes relied on by the petitioner, the Tribunal or Court may, if it deems fit, determine the proceedings on the election petition without hearing evidence or further evidence, and in any case, the proceedings shall be continued and determined on such evidence or otherwise as the Tribunal or Court may deem necessary for the full and proper determination of the election petition.
Fees
37.—(1) The fee payable on the presentation of an election petition shall not be less than Nl,000.00.
(2) A hearing fee shall be payable for the hearing at the rate of N40.00 per day of the hearing but not exceeding N2,000.00 in all, but the Tribunal or Court may direct a different fee to be charged for any day of the hearing.
(3) For the purpose of subparagraph (2), the petitioners shall make a deposit of not less than N2000.00 at the time of presenting his petition.
(4) Subject to the provisions of this paragraph, the fees payable in connection with an election petition shall be at the rate prescribed for civil proceedings in the Federal High Court.
(5) No fees shall be payable by the Attorney-General of the Federation (acting in person or through any other legal officer) or by a respondent who was the Commission or any of its officers appointed pursuant to the provisions of this Act.
(6) No fees shall be payable for the summoning of witnesses by the Tribunal or Court at its own instance.
Allocation of costs
38.—(1) All costs, charges and expenses of and incidental to the presentation of an election petition and to the proceedings consequent thereon, with the exception of such as are otherwise provided for, shall be defrayed by the parties to the election petition in such manner and in such proportions as the Tribunal or Court may determine, regard being had to the—
(a) disallowance of any costs, charges or expenses, which may in the opinion of the Tribunal or Court have been caused by vexatious conduct, unfounded allegation or unfounded objection on the part of the petitioner or of the respondent, as the case may be ; and
(b) discouragement of any needless expenses by throwing the burden of defraying the expenses on the party by whom it has been caused; whether that party is or is not on the whole successful.
(2) Where the Tribunal or Court declares an election to be void, it may, if satisfied that the invalidity was due either wholly or in part to the culpable default of an officer responsible for the conduct of the election in the performance of his duties, order that the whole or part of the cost awarded to the successful petitioner be paid by that officer.
Return of Security
39. Money deposited as security shall, when no longer needed as security for costs, charges or expenses, be returned to the person in whose name it was deposited or to the person entitled to receive it by order of the Tribunal or Court which may be made on motion after notice and proof that all just claims have been satisfied or otherwise sufficiently provided for as the Tribunal or Court may require.
Payment of costs out of security
40.—(1) The Tribunal or Court may, on application made by a person to whom any costs, charges or expenses is payable, order it to be paid out of a deposit made to secure it, after notice to the party by or on whose behalf the deposit was made, requiring him to file a statement within a specified time whether he opposes the application and the ground of his opposition.
(2) Where a dispute arises on an application under subparagraph (1), the Tribunal or Court shall afford every person affected by the dispute an opportunity of being heard and shall make such order there on as it may deem fit.
(3) A person shall be deemed to have been afforded the opportunity of being heard if notice of the appointed time for the inquiry into the dispute was given to him, though the person may not have been present at the making of the inquiry.
(4) A notice to be given to a person under this paragraph may be given by the Secretary handing him the notice or sending it to him by registered letter in the case of —
(a) a party, at the address for service ;
(b) an application for payment, at the address given in his application, so however, that the provisions of this subparagraph shall not preclude the giving of notice in any other manner in which notice may be given or which may be authorised by the Tribunal or Court.
(5) Execution may be levied under an order for payment made by the Tribunal or Court under this paragraph in the same manner and to the same extent as execution may be levied under judgment for the payment of money.
Evidence at Hearing
41.—(1) Subject to any statutory provision or any provision of these paragraphs relating to evidence, any fact required to be proved at the hearing of a petition shall be proved by written deposition and oral examination of witnesses in open court.
(2) Documents which parties consented to at the pre-hearing session or other exhibits shall be tendered from the Bar or by the party where he is not represented by a legal practitioner.
(3) There shall be no oral examination of a witness during his evidence- in-chief except to lead the witness to adopt his written deposition and tender in evidence all disputed documents or other exhibits referred to in the deposition.
(4) Real evidence shall be tendered at the hearing.
(5) The Tribunal or Court may, at or before the hearing of a petition order or direct that evidence of any particular fact be given at the hearing in such manner as may be specified by the order or direction.
(6) The power conferred by subparagraph (5) of this paragraph extends in particular to ordering or directing that evidence of any particular fact be given at the trial—
(a) by statement on oath of information or belief ;
(b) by the production of documents or entries in books ; or
(c) in the case of a fact which is of common knowledge either generally or in a particular district by the production of a specified newspaper which contains a statement of that fact.
(7) The Tribunal or Court may, at or before the hearing of a petition order or direct that the number of witnesses who may be called at the hearing be limited as specified by the order or direction.
(8) Save with leave of the Tribunal or Court after an applicant has shown exceptional circumstances, no document, plan, photograph or model shall be received in evidence at the hearing of a petition unless it has been listed or filed along with the petition in the case of the petitioner or filed along with the reply in the case of the respondent.
(9) Such leave may be granted with costs save where in the circumstance the Tribunal or Court considers otherwise.
(10) The petitioner, in proving his case shall have, in the case of —
(a) Councillor, Chairman and State House of Assembly, two weeks ;
(b) House of Representatives, three weeks ;
(c) Senate, five weeks ;
(d) Governor, six weeks ; and
(e) President, seven weeks,to do so and each respondent shall have not more than 10 days to present his defence.
Calling of witnesses
42.—(1) On the hearing of an election petition, the Tribunal or Court may summon a person as a witness who appears to the Tribunal or Court to have been concerned in the election.
(2) The Tribunal or Court may examine a witness so summoned or any other person in the Tribunal or Court although the witness or person is not called and examined by a party to the election petition, and thereafter he may be cross-examined by or on behalf of the petitioner and the respondent.
(3) The expenses of a witness called by the Tribunal or Court at its own instance shall, unless the Tribunal or Court otherwise orders, be deemed to be costs of the election petition and may, if the Tribunal or Court so directs, be paid in the first instance by the Secretary in the same way as State witness’ expenses and recovered in such manner as the Tribunal or Court may direct.
(4) Where the Tribunal or Court summons a person as a witness under this paragraph, the provisions of the Civil Procedure Rules relating to the expenses of persons ordered to attend a hearing shall apply as if they were part of this paragraph.
(5) The Tribunal or Court shall in—
(a) making and carrying into effect an order for the production and inspection of documents used in the election ; and
(b) the examination of any witness who produces or will produce a document, ensure that the way in which the vote of a particular person has been given shall not be disclosed.
Privileges of a witness
43.—(1) A person called as a witness in a proceeding in the Tribunal or Court shall not be excused from answering a question relating to an offence or connected with an election on the grounds that the answer thereto may incriminate or tend to incriminate him, or on the ground of privilege.
(2) A witness who answers truly all questions which he is required by the Tribunal or Court to answer shall be entitled to receive a certificate of indemnity under the hand of the Chairman or the Tribunal or presiding justice of the Court stating that the witness has so answered.
(3) An answer by a person to a question before the Tribunal or Court shall not, except in the case of a criminal proceeding for perjury in respect of the answer, be admissible in any proceeding, civil or criminal, in evidence against him.
(4) When a person has received a certificate of indemnity in relation to an election and legal proceedings are at any time brought against him for an offence against the provisions of this Act, committed by him prior to the date of the certificate at or in relation to that election, the Tribunal or Court having cognizance of the case shall, on proof of the certificate, stay the proceeding, and may, at its discretion award to that person such costs as he may have been put to in the proceeding.
Evidence of respondent
44. At the hearing of an election petition complaining of an undue return and claiming the seat or office for a petitioner, the respondent may, subject to the provisions of paragraph 12 (2), give evidence to prove that the election of the petitioner was undue in the same manner as if he were the person presenting the election petition complaining of the election.
Enlargement and abridgement of time
45.—(1) The Tribunal or Court shall have power, subject to the provisions of section 134 of this Act and paragraph 11, to enlarge time for doing any act or taking any proceedings on such terms (if any) as the justice of the case may require except otherwise provided by any other provision of this Schedule.
(2) An enlargement of time may be ordered although the application for the enlargement is not made until after the expiration of the time appointed or allowed.
(3) When the time for delivering a pleading or document or filing any affidavit, answer or document, or doing anything or act is or has been fixed or limited by any of the sections, paragraphs or rules under or in pursuance of this Act or by a direction or an order of the Tribunal or Court, the costs of an application to extend the time, where allowed or of an order made there on shall be borne by the party making the application unless the Tribunal or Court otherwise orders.
(4) Every application for enlargement or abridgement of time shall be supported by affidavit.
(5) An application for abridgement of time may be ex parte, but the Tribunal or Court may require notice of the application to be given to the other parties to the election petition.
(6) An application for enlargement of time shall be made by motion after notice to the other party to the election petition but the Tribunal or Court may, for good cause shown by affidavit or otherwise, dispense with the notice.
(7) A copy of an order made for enlargement or abridgement of time shall be filed or delivered together with any document filed or delivered by virtue of the order.
Hearing in a Petition
46.—(1) When a petition comes up for hearing and neither party appears, the Tribunal or Court shall, unless there are good reasons to the contrary, strike out the petition and no application shall be brought or entertained to re- list it.
(2) When a petition comes up for hearing, if the petitioner appears and the respondent does not appear the petitioner may prove his petition so far as the burden of proof lies upon him and the Tribunal or Court shall enter a final judgment in the petition.
(3) When a petition comes up for hearing, if the respondent appears and the petitioner does not appear, the respondent shall be entitled to final judgment dismissing the petition.
(4) Documentary evidence shall be put in and may be read or taken as read by consent, such documentary evidence shall be deemed demonstrated in open court and the parties in the petition shall be entitled to address and urge argument on the content of the document, and the Tribunal or Court shall scrutinize or investigate the content of the documents as part of the process of ascribing probative value to the documents or otherwise.
(5) A party shall close his case when he has concluded his evidence and either the petitioner or respondent may make oral application to have the case closed.
(6) Notwithstanding the provision of subparagraph (5), the Tribunal or Court may suo-motu where it considers that either party fails to conclude its case within a reasonable time, close that party’s case.
(7) The Secretary shall take charge of every document or object put in as exhibit during the hearing of a petition and shall mark or label every exhibit with a letter or letters indicating the party by whom the exhibit is put in (or where more convenient the witness by whom the exhibit is proved) and with a number so that all the exhibits put in by a party (or proved by a witness) are numbered in one consecutive series.
(8) The Secretary shall cause a list of all the exhibits in the petition to be made which when completed shall form part of the record of the proceedings.
(9) For the purpose of subparagraph (8), a bundle of documents may be treated and counted as one exhibit.
(10) When the party beginning has concluded his evidence, if the other party does not intend to call evidence, the party beginning shall within 10 days after close of evidence file a written address. Upon being served with the written address, the other party shall within seven days file his own written address.
(11) Where the other party calls evidence, he shall within 10 days after the close of its evidence file a written address.
(12) Upon being served with other party’s written address the party beginning shall within seven days file his written address.
(13) The party who files the first address shall have a right of reply on points of law only and the reply shall be filed within five days after service of the other party’s address.
Motions and Applications
47.—(1) No motion shall be moved and all motions shall come up at the pre-hearing session except in extreme circumstances with leave of Tribunal or Court.
(2) Where by these Rules any application is authorised to be made to the Tribunal or Court, such application shall be made by motion which may be supported by affidavit and shall state under what rule or law the application is brought and shall be served on the respondent.
(3) Every such application shall be accompanied by a written address in support of the reliefs sought.
(4) Where the respondent to the motion intends to oppose the application, he shall within seven days of the service on him of such application file his written address and may accompany it with a counter affidavit.
(5) The applicant may, on being served with the written address of the respondent file and serve an address in reply on points of law within three days of being served and where a counter-affidavit is served on the applicant he may file further affidavit with his reply.
Service of Notice
48.—(1) Where a summons, notice or document, other than a notice or document mentioned in paragraph 7 (1), is required to be served on a person for a purpose connected with an election petition, it may be served by delivering it to the person or by leaving it at his last known place of abode in the constituency with any person there found who is a resident of the abode and appears to be 18 years of age or more.
(2) After a party has given an address for service it shall be sufficient if, in lieu of serving him personally with a document intended for him, the document is served on the person—
(a) appearing on the paper last filed on his behalf as his Solicitor wherever the person may be found or, if the person is not found at his office, on the clerk there apparently in charge ; or
(b) named as occupier in his address for service wherever the person may be found or, if the person is not found at the address, on—
(i) the person there found apparently in charge, if such address is a place or business, or
(ii) a person, other than a domestic servant, there found who is a resident of the address and appears to be 18 years of age or more.
(3) A party may change his address for service by giving notice of his new address for service and its occupier to the Secretary and to each party to the election petition, but, until a notice, is received by the Secretary, his old address for service shall continue to be his address for service.
(4) Where service by one of the modes specified in this paragraph has proved impracticable, the Tribunal or Court may, on being satisfied, on an application supported by an affidavit showing what has been done, that all reasonable efforts have been made to effect service—
(a) order that service be effected in any of the ways mentioned in the provisions of the Civil Procedure Rules relating to substituted service which service shall be sufficient ; or
(b) dispense with service or notice as the Tribunal or Court deems fit.
Two or more candidates as respondents
49. Two or more candidates may be made respondents to the same petition and their case may, for the sake of convenience be heard at the same time but for all purposes (including the taking of security) the election petition shall be deemed to be a separate petition against each of the respondents.
Consolidated petitions
50. Where two or more petitions are presented in relation to the same election or return, all the petitions shall be consolidated, considered and be dealt with as one petition unless the Tribunal or Court shall otherwise direct in order to do justice or an objection against one or more of the petitions has been upheld by the Tribunal or Court.
Electoral officer as respondents
51.—(1) Where an election petition complains of the conduct of an electoral officer, a Presiding officer, returning officer or any other official of the Commission he shall for all purposes be deemed to be a respondent and joined in the election petition as a necessary party, but an electoral officer, a Presiding officer, returning officer or any other official of the Commission shall not be at liberty to decline from opposing the petition except with the written consent of the Attorney-General of the Federation.
(2) If consent is withheld by the Attorney-General under subparagraph
(1) of this paragraph the Government of the Federation shall indemnify the electoral officer, Presiding officer, returning officer or such other official of the Commission against any costs which may be awarded against him by the Tribunal or Court in respect of the election petition.
(3) Where the Commission, an electoral officer, a Presiding officer, returning officer or any other official of the Commission has been joined as a respondent in an election petition, a Legal Officer of the Commission or a Legal Practitioner engaged by the Commission or the Attorney-General of the State concerned (acting in person or through any of his Legal Officers), or the Attorney-General of the Federation (acting in person or through any of his Legal Officers) shall represent the Commission electoral officer, Presiding officer, returning officer or other official of the Commission at the Tribunal or Court.
(4) A private Legal Practitioner engaged by the Commission under subparagraph (3) shall be entitled to be paid his professional fees and a Legal Officer so engaged shall be paid such honorarium as may be approved by the Commission.
Duplicate of document
52. In the absence of express provision in this Schedule, a party filing any document or process paper in connection with any step being taken in the proceedings of an election petition shall, unless the Secretary otherwise directs, leave with the Secretary copies of the document or process paper for service on each of the parties to the election petition in addition to three copies which the Secretary may preserve.
Noncompliance with rules, etc.
53.—(1) Noncompliance with any of the provisions of this Schedule, or with a rule of practice for the time being operative, except otherwise stated or implied, shall not render any proceeding void, unless the Tribunal or Court so directs, but the proceeding may be set aside wholly or in part as irregular, or amended, or otherwise dealt with in such manner and on such terms as the Tribunal or Court may deem fit and just.
(2) An application to set aside an election petition or a proceeding resulting there from for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect.
(3) An application to set aside an election petition or a proceeding pertaining thereto shall show clearly the legal grounds on which the application is based.
(4) An election petition shall not be defeated by an objection as to form if it is possible at the time the objection is raised to remedy the defect either by way of amendment or as may be directed by the Tribunal or Court.
(5) An objection challenging the regularity or competence of an election petition shall be heard and determined after the close of pleadings.
Application of rules of court
54. Subject to the express provisions of this Act, the practice and procedure of the Tribunal or the Court in relation to an election petition shall be as nearly as possible, similar to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction, and the Civil Procedure Rules shall apply with such modifications as may be necessary to render them applicable having regard to the provisions of this Act, as if the petitioner and the respondent were respectively the plaintiff and the defendant in an ordinary civil action.
Practice and procedure of Court of Appeal and Supreme Court
55. Subject to the provisions of this Act, an appeal to the Court of Appeal or to the Supreme Court shall be determined in accordance with the practice and procedure relating to civil appeals in the Court of Appeal or of the Supreme Court, as the case may be, regard being had to the need for urgency on electoral matters.
