The Federal High Court in Abuja has declared unconstitutional a provision of the Electoral Act, 2026 that imposed a mandatory minimum penalty of ₦10 million each on litigants and their lawyers for filing suits relating to the internal affairs of political parties, holding that the National Assembly cannot dictate how judges exercise their discretion in awarding costs.
In a judgment delivered on Thursday, Justice James Kolawole Omotosho invalidated Section 83(6)(b) of the Electoral Act, describing it as an unlawful legislative intrusion into the judicial powers vested in the courts by the Constitution.
The suit, marked FHC/ABJ/CS/721/2026, was instituted by Abuja-based legal practitioner Christian Egbuchinem Nduka, who challenged the constitutionality of the provision against the Independent National Electoral Commission (INEC), the National Assembly and the Attorney-General of the Federation.
The disputed provision required both the claimant and counsel to pay not less than ₦10 million each whenever a court found that an action concerned the internal affairs of a political party. It also entitled INEC to recover legal costs and solicitor’s fees.
Justice Omotosho held that while the National Assembly possesses legislative authority over electoral matters, it cannot prescribe mandatory judicial sanctions in a manner that removes or fetters the discretion constitutionally vested in judges.
According to the court, the power to determine whether costs should be awarded, against whom they should be awarded, and the amount to be imposed remains an inherent judicial function that cannot be predetermined by legislation.
The court observed that a mandatory penalty, regardless of the facts of each case, undermines judicial independence and could discourage lawyers and litigants from approaching the courts where legitimate grievances exist.
Justice Omotosho, however, upheld the validity of Section 83(5) of the Electoral Act, which bars courts from entertaining disputes relating solely to the internal affairs of political parties.
The judge held that the provision merely codified long-settled Supreme Court authorities that matters relating to party leadership, membership, congresses and administration are generally non-justiciable.
Relying on decisions including Ufomba v. INEC, Oni v. Oyebanji, Anyanwu v. Emmanuel, Osagie v. Enoghama and Tumbido v. INEC, the court held that Nigerian courts have consistently treated such disputes as falling outside judicial intervention except where the Constitution or the Electoral Act expressly provides otherwise.
Justice Omotosho clarified that the provision does not completely shut the courthouse doors against political parties or aspirants.
He explained that aspirants retain the constitutional right to challenge the conduct of party primaries under Section 285(14) of the Constitution, while political parties may also institute proceedings against INEC where the electoral body allegedly fails to comply with the Electoral Act or other applicable laws.
“I hold that this provision is not a bar to access to court but a filter designed to weed out frivolous suits,” the judge said.
The court noted that political cases often receive priority because of constitutional timelines, only for many to turn out to be disputes over internal party affairs that unnecessarily burden the judiciary.
On INEC’s preliminary objection challenging the claimant’s locus standi, Justice Omotosho ruled that although being a legal practitioner alone does not automatically confer standing, the claimant had demonstrated sufficient legal interest because the impugned provision directly threatened the constitutional right of litigants to approach the courts through counsel.
“The claimant does not have to wait until he suffers actual injury. A threatened injury is sufficient to invoke the jurisdiction of the court,” the judge held.
The court, however, struck out the National Assembly from the suit after holding that the claimant failed to serve the mandatory pre-action notice required under the Legislative Houses (Powers and Privileges) Act before commencing proceedings.
Justice Omotosho described compliance with the notice requirement as a condition precedent to the exercise of the court’s jurisdiction over the legislature.
The challenge arose after Nduka argued that the mandatory ₦10 million sanction was capable of intimidating lawyers and litigants from pursuing legitimate claims and effectively transferred a judicial function to the legislature.
INEC had defended the provision, arguing that it was enacted to curb the proliferation of frivolous political suits and merely reinforced existing Supreme Court decisions limiting judicial interference in the internal affairs of political parties.
The Attorney-General of the Federation also maintained that the provision neither denied access to court nor imposed an excessive penalty, while the National Assembly contended that it possessed constitutional authority to prescribe sanctions for conduct it considered an abuse of the judicial process.
