By TAIYE AGBAJE

The Federal High Court in Abuja on Tuesday fixed July 20 for judgment in a suit filed by Nigeria Democratic Congress (NDC), seeking an order striking down Sections 138 and 77(5) of the new Electoral Act, 2026.

Justice Mohammed Umar fixed the date after Counsel for the NDC, Vincent Ottaokpukpu, and lawyers to the defendants adopted their processes and presented their arguments for and against the suit.

The News Agency of Nigeria (NAN) reports that the NDC, in the suit, argued that the two sections, recently passed by the National Assembly and assented to by the president, 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 Senate President and Chairman of the National Assembly, Sen. Godswill Akpabio, and INEC as 3rd to 4th defendants respectively.

Ottaokpukpu, who filed the suit on March 27, prayed the court to grant their reliefs.

The lawyer 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).

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 Feb. 18, passed the Electoral Act, 2026.

She said President Bola Tinubu, upon the recommendation of the AGF, assented to the Act of parliament on Feb. 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.

She 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.”

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 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.

It stated 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, therefore, 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.

It prayed the court to dismiss the suit in its entirety.

The electoral umpire, in its preliminary objection, also challenged the jurisdiction of the court to hear the suit.

F.O. Izinyon, who appeared for INEC on Tuesday, told the court that the commission also filed a preliminary objection challenging the jurisdiction of the court.

The lawyer argued that the suit, based on the reliefs sought and “Exhibit 8” attached which is INEC’s timetable, is a pre-election matter.

He said the suit is, therefore, statued barred, having not been filed within the 14 days of the cause of action as prescribed by law.

“So we are saying that this suit is bound to fail and should be dismissed,” he said.

But Ottaokpukpu disagreed with Izinyon’s submission.

The lawyer submitted that the suit was not a pre-election but a constitutional matter.

According to him, the section cited by the 4th defendant (INEC)’s lawyer is misguided.

He said the case bordered on constitutional interpretation, insisting that the sections sought to be struck down are inconsistent with the constitution.

“We pray the court to strike out the preliminary objection for lacking in merit and for being frivolous,” Ottaokpukpu said.

The AGF, through his lawyer, Japhet Opawale, in a counter affidavit, argued that the Electoral Act, 2026 as enacted, is not inconsistent with any of the provisions of the 1999 Constitution.

Rather, the lawyers submitted that “same complements and reinforces the constitutional provisions regarding qualification of candidates for any of the elective offices.”

“That in response to Paragraphs 17, 18, 19, 20, 21, 22 of the affidavit in support of the originating summons, Section 138 of the Electoral Act, 2026 did not waive, abrogate, relax, or oust the mandatory requirements of qualification of a candidate for elective office or post as constitutionally provided for in Sections 65 (2) (a); 106 (1) (c ); 131 (1) (d); and 177 (1) (d) of the 1999 Constitution (as amended).

“That rather, Section 29 (1) of the Electoral Act, 2026 already makes provision for the disqualification of any candidate and political party that fields such candidate who gives false information or document to the 4th defendant (INEC) in relation to his constitutional requirements to contest the election, albeit, vide an order of the Federal High Court.”

He argued that Section 77 (5) of the Electoral Act, 2026 had not eroded or in any manner circumscribed the citizens’ freedom of association as enshrined in Sections 40; 65 (2) (b); 106 (1) (d); 131 (1) ( ¢ ); and 177 (1) (c.) of the constitution.

“That the provisions of Section 77 of the Electoral Act, 2026 do not infringe on the rights of any person to associate with, form, or belong to any political party of his choice,” Opawale said.

The Clerk of the National Assembly, in his counter affidavit filed by Charles Yoila, also submitted that the Electoral Act, 2026 was validly passed by the legislature, duly assented to by President Tinubu and gazetted.

Yoila said “the Electoral Act, 2026 is clear, unambiguous and stright.”

“That the provisions of the Electoral Act, 2026 were enacted in lawful furtherance of the constitutional powers and provisions on elections and did not abridge any constitutional rights, do not infringe upon the constitutional right of any person to form, participate in, or belong to any political party.”

According to him, the Electoral Act, 2026 operates under the constitutional framework of the 1999 Constitution (as amended).

“The plaintiff is trying to turn the court into the legislature,” he said, adding that NDC also “desires to operate as a political party without regulations.”

The Senate President, Sen. Akpabio, also backed the clerk’s argument.

Akpabio, through his lawyer, George Itodo, said the suit was misconceived, false, without merit and liable to be dismissed.

NAN reports that Sen. Seriake Dickson, who represents the Bayelsa West Senatorial District, is currently the NDC’s national leader, while former Gov. Peter Obi of Anambra is its presidential candidate.

Responding to their submissions, Ottaokpukpu, who maintained that the affected sections were in conflict with the constitution, prayed the court to grant NDC’s reliefs. (NAN)

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