Nigeria Democratic Congress (NDC) has prayed the Federal High Court in Abuja to strike down Sections 138 and 77(5) of the new Electoral Act, 2026, for being inconsistent with the 1999 Constitution (as amended).
NDC was registered by the The Independent National Electoral Commission (INEC) on February 5.
The party’s lawyer, Vincent Ottaokpukpu, prayed Justice Mohammed Umar for the order.
The party, in the originating summons, marked: FHC/ABJ/CS/635/2026, 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 the Independent National Electoral Commission (INEC) as 3rd to 4th defendants respectively.
Ottaokpukpu, who filed the suit on March 27, sought four questions for determination in the suit marked:
He wants the court to determine “whether upon the construction of the new Section 138 of the Electoral Act, 2026, the express exclusion of qualification as a ground of challenging the return of a candidate for House of Representatives or Senate, House of Assembly, President and Governor, is not inconsistent with Sections 65 (2) (a) and 106 (1) (c).
Others are sections 31 (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) and therefore null and void of no effect.
“Whether in view of the clear and unambiguous provisions of Sections 40 and 65 (2) (b), 106 (1) (d), 131 (1) (c) and 177 (1) (c) of Constitution of the Federal Republic of Nigeria, 1999 (as amended), the provisions of the new Section 77 (5) of the Electoral Act, 2026, does not unlawfully circumscribe the constitutional right to form, participate or belong to any political party?
“Whether this honourable court pursuant to Section 6 (6) (a) and (b) of the Constitution of Nigeria 1999 (as amended) is not empowered to strike down any provisions in the new Electoral Act, 2026, having been found to be inconsistent with the provisions of the 1999 Constitution (as amended)?”
The lawyer, therefore, 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.
He further urged the court to restrain the defendants from enacting and enforcing any provisions of the Electoral Act, 2026 that is at variance with any of the provisions of the 1999 Constitution (as amended), among other reliefs.
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.
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 party’s legal adviser said he discovered that the Electoral Act, 2022 and the ones before it had this constitutional requirement as part of the grounds upon which the election of a person returned as winner into the seats of House of Assembly up to the president may be challenged.
He said he was therefore surprised when he read the Electoral Act, 2026 and saw that this ground of challenging the result of an election has been conspicuously removed by the National Assembly under the stewardship of the 2nd and 3rd defendants.
He said the 1999 Constitution has not been amended to remove the provision for educational qualification of a candidate for the office of the President of the Federal Republic of Nigeria as well as House of Representatives, Senate, House of Assembly and Governor.
He said there was need for re-enactment of new provisions containing the question of qualification as a ground of challenge in an election petition,” she averred.
Adaobi said the legal adviser also 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.
“That limiting persons qualified to participate in a political party’s primary election infringes on the constitutional rights of members of a political party.
“That from his 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.
Upon resumed hearing in the case on Thursday, NDC’s lawyer, Ottaokpukpu, and INEC’s counsel, Chief Alex Iziyon, SAN, were in court.
However, no lawyer appeared for AGF, clerk of NASS and Akpabio.
It was, therefore, confirmed from the court record that the 1st, 2nd and 3rd defendants were served with the originating summons and the hearing notice on April 20.
Ottaokpukpu, who said the trio were still within 14 days’ period to respond to the processes served on them, sought an adjournment.
Justice Umar then fixed May 7 for hearing of the matter.
Senator Seriake Dickson, who represents the Bayelsa West Senatorial District, recently defected from the Peoples Democratic Party (PDP) to NDC.
