The Federal High Court in Abuja on Tuesday dismissed a suit filed by the Nigeria Democratic Congress (NDC), seeking an order striking down Sections 138 and 77(5) of the new Electoral Act, 2026.
Delivering judgment, Justice Mohammed Umar, held that the suit by the NDC lacked merit.
The NDC, in the suit, argued that the two sections, recently passed by the National Assembly and assented to by President Bola Tinubu, are inconsistent with the 1999 Constitution (as amended).
The NDC, which was registered by the Independent National Electoral Commission (INEC) on Feb. 5, had filed the suit marked: FHC/ABJ/CS/635/2026.
The party, in the originating summons, sued the Attorney-General of the Federation (AGF) and Clerk of the National Assembly (NASS) as 1st and 2nd defendants.
It also joined the Senate President and Chairman of the National Assembly, Sen. Godswill Akpabio, and INEC.
Vicent Ottaokpukpu, who filed the suit on March 27, on the party’s behalf, prayed the court to grant their reliefs.
Delivering the judgment, Justice Umar held that the disputed provisions of the Electoral Act complement, rather than conflict with, the 1999 Constitution.
The judge also upheld the preliminary objections challenging the competence of the suit.
He held that the plaintiff was merely inviting the court to interpret constitutional and statutory provisions.
“The plaintiff is invoking the interpretative jurisdiction of this honourable court in respect of the provisions of the Electoral Act 2026 on the one hand and the 1999 Constitution on the other hand.”
He said that the mere attachment of INEC’s election timetable to the originating summons did not transform the case into a pre-election matter.
“The fact that the defendant’s timetable is attached cannot make the case within the contemplation of Section 285″ he said.
The judge added that there was no deposition in the affidavit that raised the questions as to the election timetable.
On the objection raised by the clerk of the National Assembly, Justice Umar held that the plaintiff failed to comply with the statutory requirement of serving a pre-action notice before commencing proceedings.
He ruled that the implication of non-service of a pre-action notice on the 2nd defendant “makes this suit incompetent against the 2nd defendant.”
He subsequently struck out the action against the clerk of the National Assembly.
On the substantive issue, the judge rejected the NDC’s argument that Section 138 of the Electoral Act was inconsistent with constitutional provisions governing qualification and disqualification for elective offices.
Justice Umar held that the constitution prescribes the qualifications and disqualifications for elective offices, while the Electoral Act merely provides the procedure and timeline for ventilating disputes arising from party primaries.
“Any aggrieved party who intends to challenge any candidate that emerged at the primary election of a political party on grounds of disqualification must do so at the pre-election level,” he said.
He further held that when read together with other provisions of the Electoral Act, Section 138 was not inconsistent with the constitution.
“The provision of Section 138 of the Electoral Act 2026 complements the provision of the Constitution, but is not in conflict with it.
“The contention of the plaintiff that Section 138 is inconsistent with the constitution is of no merit,” he ruled.
Justice Umar also declined to invalidate Section 77(5) of the Electoral Act, holding that the issue had already been determined by the Court of Appeal.
According to him, the appellate court has made pronouncement on the provisions in an earlier decision, stressing that the implication was that “courts, generally, are bound by precedence.”
The NDC had sought an order striking down the provisions of Section 138 for being inconsistent with the compulsory provisions of Sections 65 (2) (a), 106 (1) (c), 131 (1) (d), 177 (1) (d) and 66 (1) (i), 107 (1) (i), 137 (1) (j) and 182 (1) (j) of the 1999 Constitution (as amended).
It sought an order directing the defendants to amend and re-enact a new provision of the Electoral Act, 2026 to restore “qualification” as a ground of challenging the return of any candidate into the seats of the House of Representatives, Senate, House of Assembly, president and governor.
The party said this is in line with the provisions of Sections 65 (2) (a), 106 (1) (c), 131 (1) (d), 177 (1) (d) and 66 (1) (i), 107 (1) (i), 137 (1) (j) and 182 (1) (j) of the constitution.
The party equally sought an order striking down Section 77 (5) of the Electoral Act, 2026 for being inconsistent with the provisions of Sections 40 and 65 (2) (b), 106 (1) (d), 231 (1) (c) and 177 (1) (c) of the 1999 Constitution, among others.
In the affidavit in support of the suit, Ezechi Adaobi, a litigation secretary in the law firm of V-C Ottaokpukpu & Associates, said NDC, as a stakeholder in the Nigerian electoral process, will in future elections field candidates for elections.
Adaobi said from experience, members who are dissatisfied by the conduct of primaries in their respective parties usually seek refuge in other parties to enable them participate in the general elections.”
Adaobi, therefore, urged the court to grant their reliefs in the interest of justice.
But INEC, in its counter affidavit filed on April 27 by Chief Alex Izinyon, SAN, disagreed with the NDC
.
The commission argued that the constitutional and statutory roles of the 1st, 2nd and 3rd defendants are provided by the constitution and the relevant enabling statutes, and not as characterised by the plaintiff.
INEC submitted that the Electoral Act, 2026 was validly passed by the National Assembly on Feb. 18 and duly assented to by President Bola Tinubu.
It said that the National Assembly passed the Electora! Act, 2026, in accordance with the 1999 Constitution.
The commission stated that President Tinubu assented to the Electoral Act, 2026 and that the same is now law within the federation.
It stated that the provisions of Section 77 of the Electoral Act, 2026 does not infringe upon the constitutional right of any person to form, participate in, or belong to any political party.
