Aare Lawal Farouq Ayobami[1]
Fatai Abiodun[2]
Maryam Aramide Akanbi-Hakeem [3].
INTRODUCTION
In a polity like Nigeria, each electoral cycle is marked and packed with legal reforms and electoral architecture adjustments. These legal introductions to the electoral framework have not gone unnoticed, as each amendment comes with its criticism and appraisals. The most recent is the Electoral Act 2026 (hereinafter referred to as Act of 2026), which has no doubt followed the clime of structural adjustment to the electoral architecture, particularly, amendments which include the full digitalization of voter’s activities[4], hybridization of transmission of election results[5], allowance of direct primaries and consensus[6], policy on access to Funds for INEC[7], timelines adjustment[8], removal of substituted winner rule[9], Party Membership mandatory registry and notice to INEC[10], INEC mandatory attendance and observatory function in congresses, convention and primaries of political parties[11], and many more. However, the concentration of this research article is on section 83(5) and (6) of the Electoral Act 2026, which ousts the jurisdiction of the court to entertain disputes that arise from the internal affairs of a political party in Nigeria.
OVERVIEW OF THE PROVISION OF SECTION 83(5) AND (6) OF THE ELECTORAL ACT
The amendment of the Electoral Act 2026 significantly introduced a lot of punitive provisions. However, sections 83 (5) and (6) are of the class of their own as they are not just punitive but it carries a statutory ouster impression on the constitutionally vested responsibility of the court to adjudicate over any matter arising from the civil rights and obligations within the Federal Republic of Nigeria.
Providing section 83(5) and (6) of the Electoral Act 2026 verbatim, thus:
(5) “Subject to the provision of subsection (3). No Court in Nigeria shall entertain jurisdiction over any suit or matter pertaining to the internal affairs of the political party.
(6) Where such action is brought in negation of this provision –
(a) no interim or interlocutory injunction shall be entertained by the Court, but the Court shall suspend its ruling and deliver it at the stage of final judgment and shall give accelerated hearing to the matter.
(b) the Court shall, at the conclusion of the matter, impose cost of not less than N10,000,000.00 on the counsel who filed the action and not less than N10,000,000.00 on the plaintiff/Applicant and in addition to payment to the Commission of any cost, including solicitors’ fees incurred by it where joined as a party.”
The literal interpretation of the above sub-sections is that the court shall not have the power to perform its judicial functions in respect to matters arising from the internal affairs of the political party. Also, any claimant or counsel who brings such actions to court shall be liable to pay cost of not less than N10,000,000 (Ten Million Naira).
CONSTITUTIONAL ATTITUDE TO STATUTORY OUSTER CLAUSE OF THE CONSTITUTIONAL POWERS OF THE COURT.
In a democratic society like ours, where the rule of law prevails, the court is the last hope of the common man. It plays an important role in the interpretation of the constitution, protects the rights of citizens from encroachment by any organ of government, and generally has inherent jurisdiction to determine cases between persons and persons and the government.[12] The constitution has vested the court with the inherent powers to adjudicate on all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.[13]
The issue of jurisdiction as a life-wire of adjudication cannot be taken for granted. The Apex Courts have held that jurisdiction cannot be donated by an agreement or sentiment; it can only be donated by the Constitution and statutes. In clear terms, jurisdiction simply means the legal authority of a court to hear and decide a case. Jurisdiction is the court’s legal power to hear and decide a case. Without jurisdiction, a court’s judgment is void, no matter how well conducted the proceedings are.
Under the Nigerian Constitution, the Constitution is supreme, and any law inconsistent with it is void to the extent of the inconsistency. The Supreme book of the land by virtue of Section 6 vests judicial powers in the courts, including the power to adjudicate disputes between individuals and the government.
While the Constitution gives the National Assembly the exclusive powers and mandate to make laws, the National Assembly cannot legislate to remove or limit the courts’ constitutional jurisdiction. Any attempt to do so would be unconstitutional and struck down by the judiciary.
The powers vested in the court by the Constitution cannot be limited by any person or authority. The constitution categorically restricts the National and State Houses of Assembly from passing laws that oust the jurisdiction of the court. In the actual wording of the drafter of the constitution: Save as otherwise provided by the Constitution, the exercise of the legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purport to oust the jurisdiction of a court of law or of a judicial tribunal established by law.[14]
The Supreme Court has repeatedly stated that only the Constitution can limit the jurisdictional powers of the court; no other authority or law can do so. The Supreme Court in Assorted Foods v. AMCON[15] stated on the interpretation of section 4(8) of the CFRN 1999, thus, that the National Assembly has no power to make or pass a law that stipulates, suggests and/or implies the ouster of the jurisdiction of the court. The National Assembly cannot make a law that circumscribes, limits, restricts, or in any way nibbles at the Jurisdiction of the court. In Sofekun v. Akinyemi[16], Aniagolu JSC made the point that:
“It is essential in a constitutional democracy, … the power of the court under the constitution must not only be kept intact and unfettered but also not be nibble at. To permit any interference with or a usurpation of, the authority of the court…is to strike at that bulwark which the Constitution gives and guarantees to the citizens, of fairness… Indeed, so important is this preservation of, and non-interference with, the jurisdiction of the court that our present constitution has specifically provided under section 4(8) that neither the National Assembly nor House of Assembly shall enact any law that oust or purport to ousts the jurisdiction of the court of law or judicial tribunals established by law”.
In Kadiya v. Lar[17], per Irikefe JSC commented that:
“The doctrine of separation of power is the bulwark or anchor on which the survival of this nation as a state must depend. While each arm of Government must need respect the other arm in the interest of the smooth running of governmental machinery, such respect must never degenerate to the level of one arm being allowed to usurp or impinge on the exclusive domain of the other as spelt out in the constitution.”
Where the National Assembly or House of Assembly of the state enacts a law that vests the jurisdiction of the court in the court by the constitution, the attitude of the constitution is clear, as provided under section 1(1) and (3)- it states thus:
“This constitution is supreme, and its provision shall have binding force on all persons and authorities throughout the Federal Republic of Nigeria. If any other law is inconsistent with the provision of this constitution, this constitution shall prevail, and that other law shall to the extent of the inconsistencies be void”.[18]
In INEC v. Musa[19], the Supreme Court of Nigeria stated in view of constitutional supremacy, while acknowledging the powers of an agency of government, that, although INEC has the statutory and constitutional powers to make guidelines to regulate the registration of political parties, such guidelines must not contravene the provisions of the constitution.
Juxtaposing the provision of Section 85 of the Electoral Act in line with the provisions of the Constitution that serves as a ground norm, it would be gleaned that any disputes arising from the internal affairs of the party fall into the category of civil claims, and it is not the wish of the founding fathers to deny a litigant a room to seek justice.
The Supreme Court has held in a plethora of cases that not all internal affairs of the political party are non-justiciable, especially if its bothers on alleged infringement of the constitution and the party’s constitution, it will be justiciable.
Even under the military era, the judiciary did not give room for any edict that ousted the jurisdiction of the court. A society where the jurisdiction of the court is denied by an act of the national assembly or state assembly on a matter of importance that affects the democracy cannot be valid, and the society will seek self-help.
The Courts have held in a plethora of cases that while the National Assembly can regulate procedure and jurisdiction within the bounds of the Constitution (e.g., specifying which court hears which matter), it cannot abolish or exclude judicial oversight entirely. Without any gain-saying, any act attempting to oust jurisdiction would be unconstitutional and void. The express provision at stated in section 85 of the Electoral Act should not be interpreted as a blanket rule, because it is trite in law that for every rule, there is an exception.
Under Nigeria’s constitutional order, the National Assembly cannot oust the jurisdiction of the courts. Judicial power is entrenched in the Constitution itself, and any legislative attempt to remove it would be struck down for inconsistency with constitutional supremacy.
CONCLUSION
Flowing from the above, the attitude of the constitution to statutory ouster clauses is vivid. The National Assembly or State House of Assembly of the state cannot lawfully exercise their law-making powers to derive the court of its own constitutional powers to adjudicate thereupon. The only valid way to oust the jurisdiction of the court is if the constitution itself does so.[20] Thus, the provision of section 83(5) and (6), which deprives the court of its adjudicatory power to determine disputes arising from the internal affairs of political parties, and imposition of a cost of 10,000,000 on defaulting counsels and claimants to such actions, is null and void to the extent of its inconsistency. Our democracy preaches constitutional supremacy, and that is, the provisions of a statute cannot be made to limit, restrict or nibble a constitutionally vested power, right and obligation.
[1] Lawal Farouq Ayobami, BSC (Mass Comm.), LLB (1st Class), BL (in view).
[2] Abiodun Fatai, BSC (Computer Science), PGD Journalism, LLB, LLM, BL (in view)
[3] Akanbi-Hakeem Maryam Aramide, LLB, BL (in view).
[4] Electoral Act 2026, section 18(2) and (3).
[5] Ibid, Section 60.
[6] Ibid, Section 87.
[7] Ibid, section 3(3).
[8] Ibid, section 28(1), 29(1) and (3), section 32(1) and (2), section 42(3)
[9] Ibid, 29(6) and (7).
[10]Ibid, section 77.
[11] Ibid, sSection 82.
[12] Zekeri v. Alhassan (2002) 52 W.R.N 519 (C.A) at 142 per Muntaka-Coomassie, J.C.A.
[13] Constitution of the Federal Republic of Nigeria 1999 (as amended), section 6(6)(b).
[14] Ibid, section 4(8).
[15] (2020) LPELR – 50327 (CA).
[16] (1980) 5-7 SC 1 at Page 25.
[17] (1983) 11 SC 209.
[18] CFRN 1999 (as amended), section 1 (1) and (3).
[19] (2003) 3 NWLR (pt 806) 72; SC.228/2002.
[20] Section 6(6)(c) and (d); Inakoju v. Adeleke (2007) 4 NWLR (pt 1025) 423; Chief Enyi Abaribe v. The Speaker, Abia State House of Assembly (2002) 14 NWLR (pt 738) 466 at 492.
