Paragraph 18
Pre-hearing session and scheduling(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 prehearing 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.
i.
This paragraph seeks to create a room for an Election Tribunal or Court to deal and dispose
of matters that can be dealt with on interlocutory application and for the Tribunal or Court
and
the Parties to agree on the best procedure to be adopted in ensuring speedy hearing and
determination of an Election Petition.
Read Dahiru v. Kigbu & Ors (2019) LPELR-48787(CA) and Sanwo-Olu & Anor v. Awamaridi & Ors
(2019) LPELR-50828(SC)
ii. The Pre-Hearing Session is to be kick-started by an application by a Petitioner for the issuance of a Pre-Hearing Notice in FORM TF 007 seven days after the filing and service of the Respondent’s Reply to the Petition pursuant to which the Tribunal shall issue to all Parties a Pre-Hearing Conference Notice in FORM TF 007 accompanied with a Pre-Hearing Information Sheet in FORM TF 008(Sample of the forms are contained in the First Schedule to the Act).
iii. Paragraph 18 (8) (c) of the 2010 Act, which provided for allotment of time for the cross examination of witnesses to be called during a pre-hearing session is deleted in the 2022 Act.
iv. The Respondent may also bring the application for a pre-hearing notice.
v.
Note that failure of a Petitioner or Respondent to apply for the issuance of a Pre-Hearing
Notice in
Form TF 007
robs the Tribunal or Court with jurisdiction and the Petition is liable to
be struck out.
Read Agwai & Anor V. INEC & Ors (2019) LPELR-48762(CA)
vi.
A petition dismissed under this provision cannot be revived by the Election Tribunal.
Read Ikechukwu v. Nwoye (2015) 3 NWLR (Pt. 1446) 367 at 402.
vii. At the conclusion of Pre-hearing session, the Tribunal or Court is expected to deliver a Report in writing which will guide the future proceedings of the Tribunal or Court in terms of number of witnesses, time of sitting, facts and documents to be admitted by consent, formulations and settlement of issues etc.
On Filing Pre-Hearing Notice outside prescribed time:
MOHAMMED ASHIRU ISA & PDP V. INEC, SANI UBA & APC (SC/CV/1240/2023) (Unreported)
Application for pre-hearing notice must be made within 7 days after the close of pleadings and pleadings are deemed closed at the
filing and service of reply either by the Respondents or Petitioner. In the instant case, the application was made pre-maturely therefore,
incompetent. The Supreme Court held thus:
The Court below and the Tribunal correctly evaluated the facts before them and construed the state of the law to reach proper, just and appropriate
conclusion that the Appellants' application for the issuance of pre-hearing notice of the 16th day of May, 2023 as well as the one of 26th day of May, 2023
having been filed before the service of the Appellants' Reply on the 2nd Respondent on the 30th day of May, 2023 is premature and therefore invalid, null,
void and of no effect whatsoever, thereby resulting in the instant dismissal of the Petition as being abandoned as prescribed by paragraph 18 (4) of the 1st
schedule to the Electoral Act, 2022.
On Failure to apply for issuance of pre-hearing notice:
ONYEIZU CHINEDU CHIMAEZE & 1 OR. v. ABARIBE ENYINNAYA HARCOURT & 2 ORS. (PET NO. EPT/AB/SEN/7/2023) (Unreported) Per Hon. Justice Farouk Sarki @ Pg. 11, paras 2-5
In emphasising the necessity to apply for the issuance of a pre-hearing notice and serve same on parties within the stipulated time frame, the court held as follows;
“Since we have found that the petitioner failed to issue Form TF 007 within the time provided by paragraphs 18 (3) and (4) of the 1st Schedule to the Electoral Act, 2022.
Conclusively, having regard to the findings and conclusion of this tribunal, the petitioner’s failure to comply with paragraph 18(1) of the 1st Schedule to the Act robs this
tribunal of the jurisdiction to hear and determine the petition as it is a helpless situation which is not curable by anybody…”
On Effect of Application for extension of time to apply for pre-trial proceedings.
ARAOYE TOLA & 1 OR v. INEC & 2 ORS (CA/AK/EP/SHA/OS/05/23) (Unreported) @ pg. 12-13 Per Abdullahi JCA
In this case, the Court of Appeal emphasised the strict requirement of a petitioner to apply for pre-hearing notice and went
further to state that failure to carry out the step cannot be remedied by any application to extend the time required to do so. The court held thusly;
“By virtue of paragraph 18 (3), (4) and (5) of the First Schedule to the Electoral Act, 2022, where Petitioner and Respondent fail
to bring application for pre-trial proceedings, Tribunal shall dismiss the petition as abandoned petition and no application for extension of time
to take that step shall be filed or entertained. Thus, dismissal of a petition pursuant to sub-paragraphs (3) and (4) is final and Tribunal shall be
functus officio. A petition dismissed under the above provision of first schedule to the Electoral Act cannot be revived by the Election Tribunal, but no appeal.”
On the definition of cross-petitions as contained in Subsection Paragraph 18 (7)(g)
GWACHAM MAUREEN CHINWE & ANOR V. OKAFOR UCHENNA CHARLES & 3 ORS (CA/AW/EP/HR/AN/13/2023) (Unreported) Per Yargata Nimpar, JCA @ Pg.12
The Court of Appeal in dismissing the Respondent’s Cross-Petition for being unknown to law stated thus;
“For clarity sake, it must be noted that the use of the words ‘cross petition’ in Paragraph 18 (7) obviously refers to other
petitions which could be consolidated. The 1st Schedule provides for procedure for the determination of petitions and cannot be used to
initiate a petition through the back door. Filing a cross-petition instead of a petition, to challenge an election, is definitely through the back door.
The Cross Petition used in this Paragraph 18 (7) means another petition challenging the same election. Thus, even though the action was described in the
paragraph as a cross-petition, in the actual sense, it is not a cross-petition merely as it has been described, hence does not take the civil proceedings
form of a cross petition. What it clearly means is another petition in respect of the same election that was already challenged by a competent petition.”
