*”The Only Basis Upon Which An Act Made For The Conduct Of Party Primaries Can Be Impugned Is That It Would Not Ensure Internal Democracy” — Supreme Court On Section 228
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The Supreme Court has held that section 77 of the Electoral Act 2026 does not disqualify any individual member of a political party from contesting a general election, and that the consequence it prescribes is directed at the party’s eligibility to field candidates rather than at the personal qualification of any member.
The judgment was delivered on Thursday, 24 September 2026 in Appeal No. SC/CV/495/2026, Independent National Electoral Commission v Zenith Labour Party.
The lead judgment was delivered by Honourable Justice Emmanuel Akomaye Agim, JSC, who sat with Honourable Justices Adamu Jauro, Haruna Simon Tsammani, Moore Aseimo Abraham Adumein, Stephen Jonah Adah, Abubakar Sadiq Umar and Joseph Olubunmi Kayode Oyewole.
How The Appeal Arose
The appeal was against the judgment of the Court of Appeal delivered on 16 July 2026, which allowed in part Appeal No. CA/ABJ/CV/750/2026 by setting aside the judgment of the trial court delivered on 5 May 2026 in Suit No. FHC/ABJ/CS/509/2026, in respect of sections 77(5) to (7) and 84(2) of the Electoral Act 2026 and Activity Serial Number Two of the commission’s Revised Timetable and Schedule of Activities for the 2027 General Election, declaring those provisions unconstitutional and void.
Dissatisfied, the commission filed a notice of appeal on 28 July 2026. The parties filed, exchanged and adopted the appellant’s brief, the respondent’s brief and the appellant’s reply brief.
The Issues
The appellant’s brief raised five issues.
The first was whether the Justices of the Court of Appeal lacked jurisdiction to entertain and allow the respondent’s appeal, having regard to the suit as constituted.
The second was whether the provisions of section 77(2), (4), (5), (6) and (7) of the Act and Activity Number 2 of the schedule of activities are inconsistent with sections 65(2)(b), 106(d), 131(c), 142(2), 177(c) and 187(2) and paragraph 15(a) to (i) of the Third Schedule to the Constitution, and therefore null and void.
The third was whether the Court of Appeal was right in its construction and interpretation of section 84(2) of the Act and sections 221 and 222(c) of the Constitution.
The fourth was whether the Court of Appeal was right in striking down sections 77(5), (6) and (7) and 84(2), having regard to section 228(1)(a) of the Constitution and the respondent’s suit as constituted.
The fifth was whether the Court of Appeal was right when it nullified and set aside Activity Serial No. 2 of the Revised Timetable as being inconsistent with section 77(4) of the Act.
Issue One: Resolved Against The Commission
On the first issue, which turned on the non-joinder of parties, the court observed that the commission, having accepted the judgment of the trial court as a complete and effectual determination of the issues and the claim in the suit, was contending for the first time on appeal that a necessary party had not been joined.
“It is obvious that if the Court of Appeal had dismissed that appeal entirely and affirmed the judgment of the trial court, the appellant would not have raised this issue,” the court held, citing Onayemi v Okunubi (1966) NMLR 50 and CBN v Interstella Communications Ltd & Ors (2018) 7 NWLR (Pt. 1618) 294.
It added that Order 9 Rule 14 of the Federal High Court (Civil Procedure) Rules 2019 provides that a proceeding shall not be defeated by reason of misjoinder or non-joinder of parties, and that a judge may deal with the matter in controversy so far as regards the rights and interests of the parties actually before him.
Issue one and the arguments on it were accordingly rendered invalid.
Issue Two: The Central Holding
The second issue concerned whether sections 77(5), (6) and (7) and Activity Number 2 disqualify a member of a political party from a general election for the failure of the party to make a digital register of its members available to the commission not later than 21 days before the date fixed for party primaries, congresses or conventions, or prescribe a ground of qualification or disqualification for members of such a party.
The court held that they do not.
“It is glaring that there is no provision in S.77 of the Electoral Act 2026 that personally disqualify an individual member of a political party from contesting a general election on the ground that the political party failed to submit its digital membership register to INEC 21 days before its primary,” the court held.
“S.77 of the Electoral Act 2026 has not disqualified from a general election a member of a political party for any reason. The statutory consequence in subsection 7 is directed at the political party’s eligibility to field candidates for a general election, not an express personal disqualification of every individual member of that political party from the general election.”
Disqualification And Exclusion Distinguished
The court then drew the distinction on which the judgment turns.
“The notion that there is a resulting disqualification from the political party’s ineligibility to field the candidate for a general election under Subsection 7 of Section 77 of the Electoral Act 2026 is as attractive as it might appear sound. But there is a distinction between a political party being unable or ineligible to field its members as candidates and each member as an individual being disqualified or not qualified as a candidate.”
“The qualification or non-qualification can only arise after the person has been presented or fielded by the political party as its candidate at the general election,” it held.
“The political party’s ineligibility to field candidates for a general election excludes the members from being presented as candidates at a general election. So section 77(7) does not in any way disqualify the individual member of a political party personally from being a candidate in an election. The practical legal effect of section 77(7) of the Electoral Act 2026 is the exclusion of the members of a political party from being fielded as candidates in the general election by their political party because of its failure to submit to INEC the digital register of its members within 21 days before the primary election.”
The court explained the difference in terms:
“Qualification or disqualification concerns whether the person is legally qualified, meets the constitutional or legal requirements to contest the election if fielded by any political party as a candidate for the election. Exclusion concerns the prevention of the political party from fielding its members as candidates for a general election. The members become prevented from participating in the election due to an impediment affecting the political party, nomination, sponsorship or electoral process rather than from a personal fault or feature of a person.”
“The fact that the ultimate difference on the individual is that he has no opportunity to be fielded as a candidate to contest the election, does not by itself, amount to him being personally disqualified from contesting the election.”
Section 228 Of The Constitution
The court located the legislative competence for the provisions in section 228 of the Constitution, under which the National Assembly may by law provide guidelines and rules to ensure internal democracy within political parties, including making laws for the conduct of party primaries, congresses and conventions; may confer on the commission such powers as may appear necessary or desirable to enable it more effectively to ensure that parties observe the practices of internal democracy, including the fair and transparent conduct of primaries, congresses and conventions; and may provide for an annual grant to the commission for disbursement to political parties on a fair and equitable basis.
The requirement that only members whose names are contained in the register submitted to the commission shall be eligible to vote and be voted for, that no other register shall be used, and that a party which fails to submit the register within the stipulated time shall not be eligible to field a candidate, were, the court held, “clearly meant to ensure a fair and transparent conduct of party primaries, party congresses and party conventions,” in keeping with that section.
The Mischief Addressed
The court identified the practice the provisions were enacted to prevent, contrasting them with the 2022 Act.
Under section 77(3) of the Electoral Act 2022, it observed, non-compliance was not treated as having any effect on the validity of primaries held in such circumstances, or as excluding a person elected at such a primary from being fielded as the party’s candidate, citing Ambrose Ahiwe & Anor v INEC and Otti & Labour Party.
“S.77(3) of the 2022 Electoral Act created an environment that enabled political parties avoid the observance of the practices of internal democracy, including the fair and transparent conduct of party primaries,” the court held.
“In many situations the results of fair and democratic primaries conducted in accordance with the Electoral Act and the Party Guidelines and Constitution are easily and inexplicably cancelled and jettisoned and fresh primaries held to allow new entrants to the party, who are obviously very wealthy and influential, to be elected candidate of the party instead, in the belief that their influence and wealth will help the party win the election.”
It cited Senator Aliero v Saidu & Ors (SC/CV/1562/2022, 30 January 2023) and Dr Abdullahi v Argungu & Ors (SC/CV/1563/2022, 30 January 2023) as examples.
Issue two was resolved in favour of the appellant.
Issue Three: Section 84(2)
Section 84(1) of the Act requires a political party seeking to nominate candidates to hold primaries for aspirants to all elective positions, to be monitored by the commission. Section 84(2) provides that the procedure for the nomination of candidates for the various elective positions shall be by direct primaries or consensus.
The court noted that the only reason the Court of Appeal gave for nullifying section 84(2) was that it prescribed how political parties shall nominate their candidates contrary to the methods stated by the parties in their constitutions as registered with the commission.
“By virtue of S.228(a), (b) and (d) of the 1999 Constitution, the only basis upon which an Act of the National Assembly made for the conduct of party primaries can be impugned or nullified is that it would not ensure internal democracy within the political party, including the fair and transparent conduct of party primaries, congresses and conventions,” the court held.
The respondent as plaintiff, it found, “did not allege or show that the legislative prescription of nomination of candidates by political parties for the various elective positions by direct primaries or consensus in S.84(2) of the Electoral Act 2026 would not ensure internal democracy within the political party.”
“For the above reasons the part of the judgment of the Court of Appeal nullifying S.84(2) of the Electoral Act 2026 is set aside.”
Issue three was resolved in favour of the appellant, and in the light of the decisions on issues two and three, issue four was equally resolved in the appellant’s favour.
Issue Five: The Revised Timetable
On the fifth issue, the court held that there was nothing in the affidavit in support of the originating summons to suggest or show that Activity Serial No. 2 of the Revised Timetable is inconsistent with section 77(4), which requires each party to make the register available to the commission not later than 21 days before the date fixed for party primaries, congresses or conventions.
The undisputed facts in the appellant’s counter-affidavit, it found, showed that the respondent was given sufficient time to submit the digital register of its members. Exhibit INEC 1 showed that the commission had shifted the initial timeline of 21 April 2026 to 23 April 2026 to a subsequent timeline of 23 April 2026 to 30 May 2026 for the respondent to submit the register.
“There was therefore no basis to nullify the Appellant’s Revised Time Table and Schedule of Activities for the 2027 General Election for violating the time line in Section 77(4) of the Electoral Act 2026. As it is the said schedule of activities is in keeping with Section 77(4) of the Electoral Act 2026.”
Issue five was resolved in favour of the appellant.
The Orders
“On the whole, this appeal succeeds on issues 2, 3, 4 and 5,” the court held.
The judgment of the Court of Appeal delivered on 16 July 2026 in Appeal No. CA/ABJ/CV/750/2026, declaring as unconstitutional and void sections 77(5) to (7) and 84(2) of the Electoral Act 2026 and Activity Serial Number Two of the commission’s Revised Timetable and Schedule of Activities for the 2027 General Election, was set aside.
The order of the Court of Appeal nullifying those provisions as unconstitutional was likewise set aside, and the judgment of the trial court delivered on 5 May 2026 dismissing Suit No. FHC/ABJ/CS/509/2026 was restored.
“The respondent shall pay costs of two million naira to the appellant.”
Appearances
Dr. Alex Izinyon, SAN, and Dr. Alhassan A. Umar, SAN, appeared with Mr. F. O. Izinyon, Mr. M. A. Bawa, Mr. O. O. Okey Ndechi, Mr. O. J. Oduh, Mr. O. S. Ajani, Mr. Goodness Obiorah and Ms. Sylvia O. Izinyon for the appellant.
Mr. Ikechukwu Anyalewechi appeared with Mr. ThankGod Enehor for the respondent.
The certified judgment settles the argument that has run through the profession for a week, and it does so against the reading that has been most loudly advanced in public.
The central holding is that section 77 disqualifies nobody. The court said so four times in different words, and it drew an express distinction between disqualification, which attaches to a person and concerns whether he meets the constitutional requirements for the office, and exclusion, which attaches to a party and prevents it from fielding anyone at all. On that analysis the question whether a particular candidate’s name was on a register, which has dominated the commentary, is not a question about his qualification. It is a question about his party’s capacity to present him, and it arises, if at all, against the party rather than against him.
Three consequences follow directly.
First, the suggestion that the electoral commission may now delete the names of published candidates whose membership predates or post-dates a register cannot stand on this judgment. The court has held that the provision creates no personal disqualification, and qualification itself “can only arise after the person has been presented or fielded by the political party as its candidate.” A body which strikes an individual name is making a determination about an individual, and the judgment supplies no basis for one.
Second, the consequence under section 77(7) is all-or-nothing and falls on the party. A party which failed to file its register within the period is not eligible to field a candidate, which means any candidate, for that election. A party which filed is eligible, and the composition of the register it filed raises questions of compliance for that party which the Act channels elsewhere, principally to the courts under its provisions on nomination disputes.
Third, section 84(2) survives for a reason that limits future challenges to it. The court held that under section 228 the only ground on which an Act made for the conduct of party primaries may be impugned is that it would not ensure internal democracy. A party objecting to direct primaries or consensus must therefore show that the prescribed method would make its internal processes less democratic, which is a difficult proposition to argue and one the respondent here did not attempt.
Two matters of record should be corrected in earlier reporting. The appeal number is SC/CV/495/2026, not SC/CR/495/2026 as has been widely published; the underlying suit is FHC/ABJ/CS/509/2026 and the Court of Appeal matter is CA/ABJ/CV/750/2026. And the commission did not win on everything: its jurisdictional objection founded on non-joinder was rejected, with the court observing that it would not have been raised had the Court of Appeal affirmed the trial court.
Finally, the passage on the mischief is the part practitioners should read twice. The court described, in its own words and with two of its own recent decisions as examples, a practice in which valid primaries are cancelled so that wealthy newcomers can be substituted as candidates. That is a judicial statement about how Nigerian party nomination actually works, offered not as background but as the reason the National Assembly legislated. It will be cited in every nomination dispute of this cycle.
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