By Okoi Obono-Obla
Introduction
What the National Assembly did by inserting Section 83(6)(b) into the Electoral Act, 2026 amounts to what is known in constitutional law as legislative judgment, which is patently unconstitutional.
The provision in substance provides that counsel who files a case challenging the internal affairs of a political party on behalf of his client, and the client himself, shall both be fined N10 million each if the case turns out to be frivolous.
Gladly, the Federal High Court, Abuja Division, presided over by Honourable Justice James Omotosho, in its judgment delivered in Suit No. FHC/ABJ/CS/721/2026 filed by legal practitioner Christian Egbuchinem Nduka, trading as Chris & Lawticus, against the Independent National Electoral Commission (INEC), the National Assembly, and the Attorney-General of the Federation, struck down the provision.
Justice Omotosho declared Section 83(6)(b) unconstitutional on the ground that it amounts to an interference with the discretionary power bestowed on judges to award costs after a consideration of all the facts placed before them by litigants.
What is Legislative Judgment?
Legislative judgment is a constitutional aberration that occurs when the legislature, under the guise of law-making, exercises a judicial function.
Under the Constitution of the Federal Republic of Nigeria, 1999 (as amended), governmental powers are separated under Sections 4, 5 and 6. Section 4 vests legislative powers in the National Assembly, Section 5 vests executive powers in the President, and Section 6 vests judicial powers in the courts.
A legislative judgment therefore occurs where:
1. The legislature decides a specific dispute or controversy rather than laying down a general rule of prospective application; 2. The legislature prescribes a mandatory punishment, fine or outcome for a class of cases, thereby removing the adjudicatory role of the court; 3. The legislature seeks to oust, fetter or direct how judicial discretion should be exercised; or 4. The legislature declares an act or person guilty without trial.
In Attorney-General of the Federation v. Atiku Abubakar (2007) and in A.G. Bendel State v. A.G. Federation (1981), the Supreme Court warned that the National Assembly cannot, by legislation, act as a court. Law-making must be general, impersonal and prospective. Once the legislature descends into the arena of adjudication by determining who is liable and what specific penalty must be imposed, it violates the doctrine of separation of powers and Section 6(6)(b) of the Constitution which vests judicial powers exclusively in the courts.
The Provision in Issue
For clarity, the Electoral Act, 2026 provides:
Section 83(5): “No court in Nigeria shall entertain jurisdiction over any suit or matter about the internal affairs of a political party.”
Section 83(6): “Where such action is brought in negation of the Act, 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.”
Section 83(6)(b): “At the conclusion of the case, the court must impose a minimum cost of N10 million each on the lawyer who filed the suit and the plaintiff or applicant. It also requires them to cover any costs incurred by the Commission, including solicitors’ fees, where it is joined as a party.”
Why Section 83(6)(b) is a Legislative Judgment
Discretion is one of the most sacred powers which the law freely bestows on judges. The law deliberately leaves it open to a judge to use his innate judgment, experience and knowledge of the law, which is assumed to be in full blossom in every judicial officer.
When exercising discretion, particularly the discretion to award costs, a judge must consider a host of factors: whether the suit was frivolous or merely weak, the conduct of parties, whether sufficient evidence was placed before the court, and the overriding interest of justice.
By fixing a mandatory minimum fine of N10 million on both counsel and litigant, the National Assembly has:
(a) Pre-determined the outcome of a judicial inquiry;
b) Removed the discretion of the court to determine whether costs are warranted at all and what quantum is reasonable; and
c) Imposed a penalty by legislative fiat, not by judicial pronouncement after hearing.
That is the very essence of legislative judgment. The legislature has not made a general law; it has decided the case in advance and instructed the judge to merely rubber-stamp its decision. It also offends fair hearing under Section 36(1) of the Constitution and the right of access to court under Section 6(6)(b).
Conclusion
The judgment of Justice Omotosho in FHC/ABJ/CS/721/2026 is therefore a timely reaffirmation of constitutionalism. The award of costs must remain discretionary, dictated by the facts and circumstances of each case, not by a pre-determined legislative figure. While the desire to curb frivolous litigation over party internal affairs may be legitimate, it cannot be achieved through a law that usurps judicial powers. The National Assembly makes laws, but it cannot sit as a judge in its own cause.
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