The Federal High Court in Abuja on Tuesday dismissed a suit filed by the Nigeria Democratic Congress (NDC) seeking to nullify Sections 138 and 77(5) of the Electoral Act 2026, ruling that the challenged provisions are consistent with the 1999 Constitution.
Delivering judgment, Justice Mohammed Umar held that the suit lacked merit and upheld preliminary objections challenging its competence.
According to a News Agency of Nigeria report obtained by The News Chronicle, the NDC had argued that the two provisions, recently enacted by the National Assembly and assented to by President Bola Tinubu, were inconsistent with the Constitution.
The party, which was registered by the Independent National Electoral Commission (INEC) on February 5, filed the suit marked FHC/ABJ/CS/635/2026 against the Attorney-General of the Federation, the Clerk of the National Assembly, Senate President Godswill Akpabio and INEC.
The suit, filed on March 27 by the party’s counsel, Vincent Ottaokpukpu, sought an order striking down Sections 138 and 77(5) of the Electoral Act and directing the defendants to amend the legislation.
In his judgment, Justice Umar held that the disputed provisions complemented, rather than conflicted 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,” the judge ruled.
He explained that the Constitution prescribes the qualifications and disqualifications for elective offices, while the Electoral Act merely provides the procedure and timeline for challenging the outcome of 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.
Justice Umar also dismissed the NDC’s challenge to Section 77(5), noting that the issue had already been settled by the Court of Appeal.
According to him, lower courts are bound by judicial precedent and cannot depart from decisions of the appellate court.
The judge further upheld the preliminary objection filed by the Clerk of the National Assembly, ruling that the NDC failed to serve the mandatory pre-action notice before instituting the suit.
He held that the failure rendered the action incompetent against the Clerk of the National Assembly and consequently struck out the suit against the second defendant.
Justice Umar also rejected the argument that the case qualified as a pre-election matter simply because INEC’s election timetable was attached to the originating summons.
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“The fact that the defendant’s timetable is attached cannot make the case within the contemplation of Section 285,” he held.
The NDC had sought to invalidate Section 138 of the Electoral Act on the grounds that it was inconsistent with constitutional provisions relating to the qualification and disqualification of candidates for elective offices.
It also asked the court to compel the defendants to amend the Electoral Act to restore qualification as a ground for challenging the election of candidates into the offices of President, Governor, Senator, House of Representatives and State House of Assembly members.
The party further sought an order nullifying Section 77(5) of the Act, arguing that it violated constitutional provisions guaranteeing freedom of association and political participation.
In response, INEC urged the court to dismiss the suit, maintaining that the Electoral Act 2026 was validly enacted by the National Assembly and duly assented to by President Tinubu.
The electoral commission argued that the Act complies with the Constitution and does not infringe on the rights of citizens to form, join or participate in political parties.
The Attorney-General of the Federation also maintained that the contested provisions reinforce, rather than contradict, constitutional requirements relating to candidates’ qualifications and political participation.
Similarly, the Clerk of the National Assembly and Senate President Godswill Akpabio urged the court to dismiss the suit, describing it as misconceived and lacking merit.
Justice Umar subsequently dismissed the case in its entirety.
