THE FEDERAL High Court in Abuja on Tuesday dismissed a suit filed by the Nigeria Democratic Congress (NDC) seeking to invalidate Sections 138 and 77(5) of the Electoral Act, 2026, holding that the challenged provisions are consistent with the 1999 Constitution (as amended).
In a judgement delivered by Justice Mohammed Umar, the court held that the action lacked merit and upheld preliminary objections challenging the competence of the suit.
The NDC, which was registered by the Independent National Electoral Commission (INEC) on Feb. 5, instituted the suit marked FHC/ABJ/CS/635/2026 against the Attorney-General of the Federation (AGF), the Clerk of the National Assembly (NASS), the President of the Senate and Chairman of the National Assembly, Sen. Godswill Akpabio, and INEC.
The suit, filed on March 27 by the party through its counsel, Vincent Ottaokpukpu, sought declarations that Sections 138 and 77(5) of the Electoral Act, 2026, recently enacted by the National Assembly and assented to by President Bola Tinubu, were inconsistent with provisions of the Constitution and therefore null and void.
Delivering judgement, Justice Umar held that the provisions of the Electoral Act challenged by the plaintiff complemented, rather than conflicted with, the Constitution.
The judge observed that the plaintiff was merely asking 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.
Justice Umar also rejected the argument that the case qualified as a pre-election matter merely because INEC’s election timetable was attached to the originating summons.
“The fact that the defendant’s timetable is attached cannot make the case within the contemplation of Section 285,” the judge held, adding that the supporting affidavit did not raise any issue relating to the timetable.
On the preliminary objection filed by the Clerk of the National Assembly, the court held that the plaintiff failed to comply with the statutory requirement of serving a pre-action notice before commencing the action.
Justice Umar ruled that the failure to serve the required notice rendered the suit incompetent against the second defendant and consequently struck out the case against the Clerk of the National Assembly.
On the substantive issues, the court dismissed the NDC’s contention that Section 138 of the Electoral Act was inconsistent with constitutional provisions governing the qualification and disqualification of candidates for elective offices.
According to the judge, while the Constitution prescribes the qualifications and disqualifications for elective offices, the Electoral Act only provides the procedure and timeline for challenging the outcome of party primaries.
He held that any aspirant seeking to challenge the qualification of a candidate who emerged from a party primary must do so during the pre-election stage.
Justice Umar further ruled that when Section 138 is read together with other provisions of the Electoral Act, it is 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 held.
The court also declined to strike down Section 77(5) of the Electoral Act, holding that the issue had already been settled by the Court of Appeal.
Justice Umar said the appellate court had previously pronounced on the provision and stressed that lower courts are bound by judicial precedent.
The NDC had urged the court to nullify Section 138 on the grounds that it was inconsistent with Sections 65(2)(a), 66(1)(i), 106(1)(c), 107(1)(i), 131(1)(d), 137(1)(j), 177(1)(d) and 182(1)(j) of the Constitution.
The party also sought an order directing the defendants to amend and re-enact the Electoral Act to restore qualification as a ground for challenging the return of candidates elected into the offices of President, Governor, Senator, member of the House of Representatives and state Houses of Assembly.
In addition, it asked the court to invalidate Section 77(5) of the Electoral Act on the grounds that it allegedly conflicted with Sections 40, 65(2)(b), 106(1)(d), 131(1)(c) and 177(1)(c) of the Constitution, among other provisions.
In an affidavit supporting the suit, Ezechi Adaobi, a litigation secretary in the law firm of V-C Ottaokpukpu & Associates, stated that as a registered political party, the NDC intended to field candidates in future elections.
Adaobi argued that experience had shown that dissatisfied party members often defect to other political parties after disputed primaries in order to contest the general election, urging the court to grant the reliefs sought.
However, all the defendants opposed the suit.
INEC, in a counter-affidavit filed by Chief Alex Izinyon, SAN, argued that the Electoral Act, 2026, was validly enacted by the National Assembly on Feb. 18 and duly assented to by President Tinubu in accordance with the Constitution.
The commission maintained that Section 77 of the Act did not infringe on the constitutional right of citizens to form, join or belong to political parties.
It further stated that the period allocated for party primaries—from April 23 to May 30, including the resolution of disputes—provided political parties with 38 clear days in compliance with the Electoral Act and the constitutional framework.
INEC also challenged the jurisdiction of the court to entertain the suit and urged its dismissal.
The Attorney-General of the Federation, through counsel Japhet Opawale, argued that the Electoral Act was consistent with the Constitution and reinforced constitutional provisions relating to the qualification of candidates for elective offices.
He also submitted that Section 77(5) did not diminish the constitutional right to freedom of association or prevent citizens from forming or belonging to political parties of their choice.
Similarly, the Clerk of the National Assembly, through Charles Yoila, contended that the Electoral Act, 2026, was validly passed, duly assented to by the President and properly gazetted.
According to him, the Act is clear, unambiguous and operates within the constitutional framework.
He argued that the plaintiff was effectively inviting the court to perform the functions of the legislature and sought to operate as a political party without regulatory constraints.
The President of the Senate, Sen. Godswill Akpabio, represented by George Itodo, also urged the court to dismiss the suit, describing it as misconceived and lacking merit.
Justice Umar ultimately agreed with the defendants and dismissed the suit for lacking merit.
