A Federal High Court sitting in Abuja on Monday, slated June 6 to hear a suit filed by Nigeria Democratic Congress (NDC) seeking an order striking down Sections 138 and 77(5) of the new Electoral Act, 2026.
The case, which was listed on the day’s cause list, could not proceed due to the absence of the trial judge, Justice Mohammed Umar.
Although, counsel to the NDC, Vincent Ottaokpukpu, and the defence lawyers, including O.J. Opawale, were in court, the judge was said to be on another official engagement and the matter was subsequently fixed for June 9 for hearing.
The NDC, which was registered by the Independent National Electoral Commission (INEC) on February 5, had, in the suit marked: FHC/ABJ/CS/635/2026 argued that the two sections are inconsistent with the 1999 Constitution (as amended).
The party, in the originating summons, listed the Attorney General of the Federation (AGF) and Clerk of the National Assembly (NASS), Senate President and Chairman of the National Assembly, Sen. Godswill Akpabio, and INEC as 1st to 4th defendants respectively.
Ottaokpukpu, who filed the suit on March 27, prayed the court for 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).
He sought an order directing the 1st, 2nd and 3rd 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.
He 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.
Ottaokpukpu 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, including the office of the president.
She said the National Assembly, under the 2nd and 3rd defendants’ stewardship, had, on February 18, passed the Electoral Act, 2026 and that, President Bola Tinubu, upon the recommendation of the AGF, assented to the Act of parliament on February 19.
Adaobi stated that the NDC’s national legal adviser said he had read and understood all the provisions of the Electoral Act, 2022 and the new Act and said, the legal adviser observed that Section 77(5) of the Electoral Act, 2026 provides that only members whose names are contained in the political party’s digital register transmitted to INEC, 21 days before a primary election or convention, will be eligible to participate in the primary elections.
She said this section is inconsistent with the provisions of the 1999 Constitution, which did not provide for duration which a citizen must be a member of a political party to be eligible to contest for an election.
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 and therefore, urged the court to grant their reliefs in the interest of justice.
But INEC, in its counter affidavit filed on April 27, disagreed with the NDC, arguing 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 February 18 and duly assented to by President Bola Tinubu.
The Commission said, 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.
While stating that the period allotted for the conduct of party primaries, being from April 23 to May 30 (inclusive of resolution of disputes arising therefrom), is a period of 38 clear days in strict compliance with the Electoral Act, 2026 and the constitutional framework, INEC averred that by its timetable, political parties have a window of not less than the period prescribed by the timetable for the conduct of party primaries.
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