SECTION 140(1) OF THE ELECTORAL ACT 2026 IS DEFECTIVE AND SHOULD BE STRUCK DOWN BY THE FEDERAL HIGH COURT AT THE APPROPRIATE TIME. THE SECTION IS SIMILAR TO SECTION 140(2) OF THE ELECTORAL ACT 2020 (AS AMENDED) THAT WAS STRUCK DOWN BY THE FHC.

Section 140 of the Electoral Act 2026 provides as follows:

   140. (1) Subject to subsections (2) and (3), if the Tribunal or the Court determines that a candidate who was returned as elected was not validly elected on any ground, the Tribunal or Court shall nullify the election and order the Commission to conduct a fresh election not later than 90 days after the…….

   (2) Where the Tribunal or the Court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the Election Tribunal or the Court, as the case may be, shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirements of the Constitution and this Act.

The Tribunal and Court referred to in this section mean the Court of Appeal in the case of a presidential election, while in the case of any other elections, the election tribunal established under the Constitution or by this Act. The section does not apply to regular election matters filed at the Federal High Court. See section 134(2) of the Electoral Act 2026.

Section 140(1) of the Electoral Act 2026 is morally, economically, socially, and legally defective because of the following:

1. Going by the proviso in the subsection (exempting subsection 2), this subsection (1) is strictly speaking referring to a situation where “a candidate who was returned as elected” is later declared not to have been qualified to participate in the election by either the Court or the Tribunal. For example, if the candidate of 000 Party scores 2.5 Million votes to win a senatorial election beating the candidate of ZZZ Party who secured 2.4 Million votes but the tribunal or court in an ELECTION PETITION later declared that the candidate of 000 Party was not qualified for the election, the tribunal or court must nullify the entire election and order a fresh election instead of declaring the candidate of ZZZ Party who came second the winner.
2. Although the Electoral Act does not expressly provide for qualification as a ground for questioning an election before an Election Petition Tribunal, it is correct to argue that it is implied, having regard to the Constitutional provisions for qualification of candidates, which the Electoral Act must not take away. That right to challenge the constitutional qualification of a candidate is a constitutional right and must be recognized by the Electoral Act. Sections 29(2), (5), & (6), 85, and 140(1) of the Electoral Act are even an acknowledgment of that right.
3. Ordering a fresh election instead of declaring the second person the winner and declaring the 2.5 million votes of the 000 Party as wasted votes is an economic waste, as public and taxpayers’ money will be spent to conduct another fresh election when it can be avoided.
4. Ordering a fresh election will be unfair to the candidate who came second and who has approached the tribunal for redress on the ground of the non-qualification of the candidate who came first and who was returned as elected. There must be a benefit for the petitioner who came second, and ordering a fresh election cannot be the best benefit.
5. Conducting another fresh election will affect the social life and the livelihood of the masses who depend on daily income for survival, as their freedom of movement will be restricted on the day of the fresh election.
6. Legally, the subsection is bad because it prescribed mandatory orders or decisions to be made by a tribunal or court in an ELECTION PETITION vis-à-vis the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), ss6(6)(a), 239(1) and 285(1) and (2), conferring wide and inherent powers on the Court with respect to adjudicating over matters before it.
7. The subsection is vague and amounts to legislative overreach of the tribunal’s or court’s inherent powers to adjudicate matters before it.
8. The subsection seeks to remove the constitutionally guaranteed power of the Court or tribunal to declare the winner of an election based on the evidence presented before it.
9. The provision amounts to an ouster clause, which section 4 of the Constitution forbids.
10. The subsection is inconsistent with the provisions of sections 6(6)(a), 239(1), and 285(1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and therefore void for inconsistency and lacking in legislative competency.
11. The legislature is not allowed by law to dictate to the court the outcome of a case, as it is a matter within the prerogative of judicial powers for a Court to decide on who to order INEC to issue a certificate of return to as the winner of an election based on the facts and evidence before the Court.
12. The Federal High Court – Per Justice G. O. Kolawole (now of the Court of Appeal) on the 21st of July, 2011, in the case of Labour Party v. INEC & Anor [2011] 7 NMLR 155 (FHC) with Suit No FHC/ABJ/CS/399/2011 struck down section 140(2) of the Electoral Act 2010 (as amended) on the reasons stated in paras 6-11. The said section 140(2), which was struck out, is very similar to section 140(1) of the Electoral Act 2026.
13. The Suit was not defended by INEC and AGF, who were the Defendants, as they did not file any Counter Affidavits in opposition to the Affidavit filed in support of the Originating Summons of the Plaintiff. What the Defendants filed was their Written Addresses, which were described by the Court in its judgment as follows: “On the face of it, the Plaintiff’s action, in this circumstance, carried with it, what one may regard, perhaps as a sort of an ‘undefended’ or a ‘collusive suit’. but when the addresses filed are read, one will come up with a different view that the refusal of the Defendants to oppose the Plaintiff’s action is simply because it does not appear that there is any constitutional provisions or legal theory, that a Defendant who may be disposed to controvert the Plaintiff’s case, can raise which will not appear quite unsupportable, perhaps audacious”
14. The Defendants did not appeal against this Judgment of the Federal High Court. The reason for not appealing is not far-fetched, given that all the parties were in consensus ad idem that the said sections were offensive and inconsistent with the CFRN, which is the supreme law from which all other laws must derive their validity. No other law must be inconsistent with its provisions.
15. The Supreme Court inadvertently applied the said offensive provision by making a consequential order for a fresh election in a pre-election matter in the case of Jev & Anor v Iyortyom [2014] 14 NWLR (Pt. 1428) 575 (SC) after the said provision had been struck down by the FHC. The Supreme Court was subsequently invited to review the consequential order via an application based on the FHC Judgment. The Supreme Court complied and reviewed its consequential order on the basis that the section did not even apply to the case, being a pre-election matter, but declined to pronounce on the FHC judgment. See the review decision reported in Jev & Anor v Iyortyom [2015] 15 NWLR (Pt. 1483) 484.
16. The current section 140(1) of the Electoral Act 2026 was also contained in the 2010 Electoral Act as section 140(1), but the Plaintiff in the suit may have inadvertently omitted to ask the court to strike it down, and thus the subsection was not considered by the FHC as there was no relief against it. But the subsection [s.140(1)] was not totally different from the subsection 140(2) that the Court struck down. Section 140(2) is an extension of subsection (1) of the 2010 Electoral Act (as amended)
17. The subsection 140(2) of 2010 Electoral Act that was struck down based on the points raised in paras 6 – 11 above provides thus: “Where an election tribunal or court nullifies an election on the ground that the person who obtained the highest votes at the election was not qualified to contest the election, or that the election was marred by substantial irregularities or non-compliance with the provisions of this Act, the election tribunal or court shall not declare the person with the second highest votes or any other person as elected, but shall order for a fresh election”.