TheNigeriaLawyer Editorial
The conflicting judgments delivered by Justice Mohammed G. Umar and Justice James Kolawole Omotosho of the Federal High Court on INEC’s 2027 election timetable have divided the Nigerian legal community in ways that go far beyond a routine disagreement over statutory interpretation. What began as a debate about the scope of INEC’s administrative powers has escalated into a full-blown institutional crisis that has exposed fault lines within the judiciary, provoked accusations of political motivation from multiple directions, raised questions about the leadership of the Federal High Court, and forced the profession to confront uncomfortable truths about how politically sensitive cases are handled in Nigeria.
This editorial does not seek to declare one judge right and the other wrong. The Court of Appeal will do that. What this editorial seeks to do is capture honestly the full spectrum of what the legal community is saying, because what lawyers are saying privately and publicly about these two judgments reveals as much about the state of the Nigerian judiciary as the judgments themselves.
The Judgments: More Agreement Than the Headlines Suggest
It must be stated at the outset, as Senior Advocate M.O. Ubani and other careful analysts have pointed out, that the two judgments are not as irreconcilably contradictory as public commentary has suggested. Both Justice Umar and Justice Omotosho affirmed the supremacy of the Electoral Act 2026 over INEC’s administrative guidelines. Both held that INEC cannot abridge the 120-day statutory window for submission of candidates’ particulars under Section 29(1). Both held that the 90-day window for candidate substitution under Section 31 cannot be compressed. Both invalidated portions of INEC’s timetable that conflicted with express statutory provisions.
Their divergence, while significant, is essentially interpretive. Justice Umar adopted a narrow construction of INEC’s powers, holding that the commission’s authority to receive notices of primaries and monitor them does not extend to prescribing when parties must conduct their primaries. Justice Omotosho adopted a broader construction, holding that INEC’s constitutional responsibility to organise elections necessarily includes the power to structure the electoral calendar, including timelines for party primaries.
As Prof. Ernest Ojukwu Senior Advocate of Nigeria and Professor of Law is a past Deputy Director-General and Head Augustine Nnamani Campus Enugu, Nigerian Law School., has argued, this kind of interpretive divergence is normal and expected when courts are confronting a new statute for the first time. “Whenever we have new legislation, we expect these interpretative developments. That is why we have the appellate system,” Ojukwu stated.
Ubani SAN has similarly described the divergence as “neither scandalous nor abnormal,” characterising it as “the healthy tension inherent in judicial interpretation, a tension designed ultimately to be resolved through the appellate process.”
These are valid points. They deserve to be heard and taken seriously. The common law system is built on the premise that competing interpretations at the trial level are refined and harmonised by appellate courts, and that this process ultimately produces stronger and more durable legal principles.
But the Procedural Question Will Not Go Away
However, the legal community cannot simply retreat into doctrinal comfort and pretend that the circumstances surrounding the second judgment raise no legitimate concerns.
A critical procedural detail has emerged that complicates the narrative of routine judicial disagreement. SDP’s own counsel, Realwon Okpanachi, Esq., filed a Motion on Notice before Justice Omotosho asking the court to strike out the SDP suit in view of Justice Umar’s earlier judgment, which had substantially addressed the same issues. Justice Umar’s judgment was attached to the motion as an exhibit. This means Justice Omotosho was formally made aware that a coordinate court had already delivered judgment on substantially the same issues, yet proceeded to deliver his own ruling.
This is the fact that those defending Justice Omotosho must reckon with. It is not enough to invoke the principle that judges of coordinate jurisdiction are not bound by each other’s decisions. That principle is settled. Nobody disputes it. The question is whether a judge who has been formally notified, through a filed motion with the earlier judgment attached as an exhibit, that a coordinate court has already decided substantially the same issues, should have exercised judicial restraint by awaiting the Court of Appeal’s determination, particularly when INEC had already filed an appeal against the earlier ruling.
Femi Falana, SAN, has made this point with characteristic directness, adding a personal dimension that cannot be ignored. Falana revealed that Justice Omotosho himself, in another matter, once told him that he could not overrule the decision of a colleague of coordinate jurisdiction and asked counsel to apply for a certified true copy of the earlier decision. If this account is accurate, it suggests that Justice Omotosho has previously applied precisely the judicial philosophy that he departed from in the INEC timetable case.
As Senior lawyer Abdul-Aziz Jimoh bluntly stated in response to the academic defences of the judgment: “A judge aware that his learned brother had decided a matter in a particular way and that the same issue had been submitted to the Court of Appeal for adjudication, should have tarried for the Court of Appeal to decide by adjourning to abide the decision of the Court of Appeal. This happened during the Wike/Fubara issue, so what is the difference here? To have gone ahead seems a clear case of reckless insouciance and judicial impertinence.”
Another US based lawyer was even more pointed: “I still do not understand why he proceeded to deliver judgment despite being aware that there was already a judgment on the same issue. To me, it gives the impression that he wanted to show that he was smarter.”
These are not fringe voices. They represent a significant body of opinion within the legal profession. And dismissing them as uninformed or politically motivated does not make the concerns they raise disappear.
The Political Dimension That Nobody Wants to Address Openly
There is a dimension to this controversy that senior lawyers are discussing in private but that few are willing to articulate publicly. It must be addressed, not to endorse it, but because ignoring it allows it to fester into something far more corrosive than the judgments themselves.
Several lawyers have observed that Justice Umar’s judgment, which expanded the timelines for defection and candidate substitution, was widely seen as favourable to politicians who were rigged out of APC primaries and who wished to seek nomination on alternative platforms. Justice Omotosho’s judgment, which affirmed INEC’s timetable and effectively closed the defection window, was seen as favourable to the APC, which benefits from keeping aggrieved aspirants trapped within the party by preventing them from seeking alternative platforms.
This political reading of the two judgments has led some commentators to suggest that the second judgment was not a genuine exercise in judicial interpretation but a politically motivated intervention designed to neutralise the effect of the first. Whether this is fair or unfair to Justice Omotosho, it is what a significant number of lawyers and members of the public believe. And when public perception of judicial decisions becomes coloured by political suspicion, the damage to the judiciary’s credibility is real, regardless of the technical legal merits of either judgment.
A US based lawyer captured this concern with unsettling candour, recounting what a judge once told him: that there appears to be tension between some southern and northern judges on the bench, especially in politically sensitive cases and in how court processes are handled.
Whether this tension is real or perceived, it is a dangerous signal. If the public begins to view judicial decisions through ethnic or regional lenses, the judiciary’s legitimacy as an impartial arbiter is fundamentally compromised. The moment the debate shifts from “which interpretation of the Electoral Act is correct” to “which judge is from which region and which political interest does his judgment serve,” the rule of law is in serious trouble.
As one lawyer warned: “If courts of coordinate jurisdiction keep giving conflicting decisions on the same subject, and the debate then shifts from law to which judge is ‘more sound,’ we are gradually moving towards a system where public confidence in the judiciary will be seriously weakened. To me, that is a sign of a failing system and a warning of bigger problems ahead.”
The Chief Judge Question
Several lawyers have raised a question that goes beyond the two individual judges and touches on the institutional leadership of the Federal High Court itself. Why did the Chief Judge of the Federal High Court not anticipate this kind of conflict and take steps to prevent it?
One lawyer recalled a precedent from a different court: “I remember visiting a friend who is an FCT Judge in 2012. He told me how the then Chief Judge of the FCT, in anticipation of a flurry of political cases, decided to assign all political cases to himself to handle, so as to avoid a situation like this.”
The suggestion is that the Chief Judge of the Federal High Court, Justice John Terhemba Tsoho, should have issued a practice direction assigning all pre-election matters relating to INEC’s timetable to a single judge or a designated panel, thereby preventing the possibility of coordinate courts delivering conflicting judgments on the same subject.
However, other lawyers have noted that the Chief Judge may have been constrained by his own circumstances. Justice Tsoho is currently the subject of a high-profile investigation by the Code of Conduct Bureau over allegations that he failed to declare several bank accounts in his April 2024 asset declaration forms. The investigation has drawn comparisons to the 2019 removal of former Chief Justice Walter Onnoghen for similar non-declaration infractions.
Reports have further emerged that a cabinet minister from the South-South region, along with other officials, is pressuring President Tinubu to halt the CCB investigation, while advisors have warned the President that shielding the judge would undermine his anti-corruption efforts.
Whether or not these circumstances affected the Chief Judge’s ability or willingness to take proactive steps to manage the assignment of politically sensitive cases is a question that the legal community is asking but that no official body has addressed.
The Deeper Problem
Underlying all of these debates is a structural problem that Nigeria’s judicial system has failed to solve: the absence of an effective mechanism for preventing courts of coordinate jurisdiction from delivering conflicting judgments on the same subject matter.
The common law principle that judges of coordinate jurisdiction are not bound by each other’s decisions is sound in theory. It promotes judicial independence and allows for the development of competing legal reasoning that enriches appellate jurisprudence. But when that principle operates in a system where there is no effective case management, no mandatory consolidation of related suits, no real-time communication between courts handling substantially identical issues, and no enforceable rules against forum shopping, the result is not healthy judicial disagreement. It is chaos.
Nigeria has seen this pattern repeatedly in election litigation, party leadership disputes, and pre-election challenges. Different parties file substantially identical suits before different judges, each hoping for a favourable outcome. The inevitable result is conflicting court orders that cancel each other out, leaving litigants, regulatory bodies, and the public to choose which judgment to obey, a choice that should never exist in a system governed by the rule of law.
What Ordinary Nigerians See
While lawyers debate the finer points of coordinate jurisdiction, judicial independence, and the appellate process, ordinary Nigerians see something far simpler and far more troubling. They see a system that appears to serve political interests rather than deliver justice.
As one Nigerian summarised on social media: “At this point, the signs are becoming too obvious to ignore. It appears the focus is more on weakening the opposition than on fixing the real problems Nigerians are facing. Sadly, ordinary Nigerians are the ones who will bear the consequences. This is why many young people are leaving the country in search of a better future, not because they do not love Nigeria, but because they are tired of a system that keeps failing them.”
Another was even more direct: “Please do not elevate every judge as wise. Not every judgment is a product of wisdom. In Nigeria, we have different categories of judges: one-chance judges, quota judges, systemic judges and excellent judges.”
These are not legally sophisticated observations. But they reflect a public sentiment that the legal profession ignores at its peril. When the public loses confidence in the judiciary’s impartiality, the entire democratic system is weakened, because the courts are the last line of defence against political impunity.
The Balance This Editorial Seeks
This editorial recognises that both Justice Umar and Justice Omotosho addressed complex legal questions arising from a new statute, and that reasonable judicial minds can differ on questions of statutory interpretation. The common law tradition accommodates and even encourages such divergence.
This editorial also recognises that the procedural circumstances surrounding the second judgment, including the filed motion with the earlier judgment attached as an exhibit, the speed of certification, and the judge’s own prior statements about deference to coordinate courts, raise legitimate questions that cannot be dismissed simply by invoking the principle of judicial independence.
The editorial further recognises that the political dimensions of the controversy, while uncomfortable, are real and must be acknowledged honestly rather than suppressed in the name of professional courtesy.
And the editorial recognises that the solution lies not in punishing judges for exercising independent judgment, but in reforming the system to prevent the conditions that make conflicting judgments possible in the first place, and in ensuring that when conflicts do arise, they are resolved swiftly and transparently through the appellate process.
What Must Happen Now
Three things must happen urgently.
First, the Court of Appeal must hear and determine the appeals arising from both judgments on an expedited basis, ideally before the same panel, as both Ojukwu and Ubani have recommended. The legal uncertainty created by two contradictory judgments governing the same electoral process cannot be allowed to persist as the 2027 election approaches.
Second, the Chief Judge of the Federal High Court, or his successor if his own situation prevents him from acting, must issue a practice direction for the management of pre-election cases to prevent future occurrences of coordinate courts delivering conflicting judgments on the same subject matter. This is not an attack on judicial independence. It is basic case management that protects the judiciary from the very kind of controversy it now faces.
Third, the NJC must decide, consistently with its own precedent in the Secondus case, whether the circumstances surrounding the second judgment warrant investigation. If the NJC determines that the conduct does not meet the threshold for disciplinary action, it should say so publicly and explain why. If it determines that it does, it should act. What the NJC cannot do is remain silent and pretend the controversy does not exist.
The Nigerian judiciary is at a crossroads. The path it takes in the coming weeks will determine whether the 2027 elections are conducted under a clear and consistent legal framework, or whether the country enters its most consequential electoral cycle in years with its judicial system mired in confusion, contradiction, and public distrust.
The stakes are too high for silence. The stakes are too high for partisanship. And the stakes are too high for pretending that this is just another day in the life of the common law.
This editorial represents the institutional position of TheNigeriaLawyer.
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