Justice Inyang Ekwo of the Federal High Court, Abuja, has fixed Nov. 20 for ruling on an application filed by the presidential candidate of the African Democratic Congress
Atiku Abubakar, to amend his suit against President Bola Tinubu and the All Progressives Congress (APC).
Justice Ekwo fixed the date after counsel to Atiku, Joseph Silas, and defence lawyers adopted their processes and presented their arguments for and against the application.
Atiku and ADC had, in the main suit, urged Justice Ekwo to disqualify President Tinubu and APC from the 2027 presidential election.
They had questioned Tinubu’s National Youth Service Corps (NYSC) discharge certificate submitted to the Independent National Electoral Commission (INEC) by APC.
The plaintiffs, who sued the president, APC and INEC as defendants, alleged that APC submitted the president’s forged NYSC discharge certificate to INEC.
They, therefore, prayed the court to compel INEC to remove Tinubu and APC’s names from the list of candidates and parties for the 2027 presidential poll.
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But after the defendants filed their counter affidavits, Atiku and APC, citing some irregularities, approached the court to seek an order to amend the suit.
When the case was called on Tuesday, Silas informed the court that the matter was scheduled for hearing of the motion for amendment of their originating summons.
Counsel to President Tinubu, Wole Olanipekun (SAN), APC’s lawyer, Akin Olujinmi (SAN), and Alex Izinyon (SAN), counsel to INEC, told the court they were ready to proceed with the hearing.
Moving the motion to amend the suit, Silas said the application was dated Sept. 4 and filed on Sept. 10.
He said upon being served with the defendants’ respective counter affidavits to their application for amendment, they responded through a reply on points of law.
The lawyer, who adopted their processes, prayed the court to grant their reliefs.
Responding, Olanipekun, in opposition to Silas’ submission, said a counter affidavit of nine paragraphs was filed on the President’s behalf, and urged the court to dismiss the application as the court is without jurisdiction to grant it.
The senior lawyer, who argued that Atiku’s application was statute-barred, said what the plaintiffs sought to do was to file a new action and not an amendment.
He urged the court to dismiss it.
Speaking in the same vein, Olujinmi, who appeared for APC, said their counter affidavit and a written address were filed on Sept. 12.
He equally prayed the court to dismiss the plaintiffs’ request.
INEC’s lawyer, Izinyon, also backed Olanipekun and Olujinmi’s arguments.
He said the commission, in opposition, filed a six-paragraph counter affidavit, a written address with an exhibit on Sept. 10.
According to him, the last process filed is the additional authority filed by the 3rd defendant on Oct. 9.
Izinyon prayed the court to dismiss Atiku and ADC’s application.
After listening to their arguments, Justice Ekwo adjourned the matter until Nov. 20 for ruling.
President Tinubu and APC, in their joint counter affidavit filed on Sept. 9 to the originating summons, prayed the court to dismiss the suit in its entirety for being incompetent and that the plaintiffs lacked the legal right to institute the case.
They denied submitting any forged certificate to INEC either for the 2023 or 2027 presidential elections.
The duo, through the APC’s Director of Legal Services, Sanusi Samaila, averred that they did not submit any Form CF001 to INEC for the 2023 or 2027 poll as claimed by the plaintiffs.
They stated that the NYSC has never denied issuing the discharge certificate to the 1st defendant at the end of his service year.
They submitted that it is settled law that the evidence required to prove that a certificate is forged is a disclaimer from the institution that is said to have issued the certificate, citing a previous Supreme Court decision to back their argument.
They urged the court to uphold their preliminary objection and dismiss the suit.
INEC, in its preliminary objection filed by its lawyer, Izinyon, also challenged the competence of the suit on the grounds of statute-bar, want of locus standi, absence of a reasonable cause of action and abuse of court process.
The commission argued that the plaintiffs failed to comply with the mandatory written deposition requirement under Paragraph 7(1) of the Federal High Court Pre-Election Practice Directions (Amendment) 2026.
The electoral umpire equally challenged the impropriety of Reliefs 2 and 3 in Atiku and ADC’s originating summons, urging the court to dismiss the suit.
Atiku and ADC, however, approached the court with a motion on notice on Sept. 10, seeking an amendment to the suit.
They said the application was brought pursuant to Paragraph 7(8) of the FHC (Pre-election) Practice Directions, 2006 and under the inherent jurisdiction of the court.
In the two reliefs, they sought an order granting leave to them to amend their originating summons.
They also prayed the court for an order deeming the amended originating summons filed upon their application, as a properly filed amended originating summons.
Giving four grounds why their application should be granted, the applicants said they filed the suit on Aug. 14, seeking the reliefs contained in the originating summons.
Atiku and ADC said that after filing the originating summons, they noticed a few errors, especially on the nomenclature of the INEC forms attached to their affidavit, which was referred to as Form CF001, instead of the now Form EC9A.
They said there was also the need to specifically set out the particulars of the alleged fraud in their affidavit, including a written deposition of the 1st plaintiff (Atiku) and attaching clearer copies of Exhibits referred to, but were not available with the plaintiffs as at the time of filing the suit.
They said these would replace “the one presently attached, but is inelegant,” and that no new issue had been added to the amended originating summons and no additional prayers sought.
Besides, they submitted that as plaintiffs, they “are entitled to make this amendment in the interest of justice.”
But President Tinubu, in a counter affidavit filed on Sept. 24, opposed the application to amend the suit.
The president, in the counter affidavit deposed to by Moses Adoga, a litigation support officer, in the law firm of Wole Olanipekun, SAN, his lead counsel, disagreed with Atiku’s submission.
Adoga said contrary to the reliefs sought by Atiku in his amended originating summons marked as Exhibit “P1,” he noticed that the ADC presidential candidate also sought to amend the questions for determination and reliefs sought.
The officer said he observed that Atiku sought to introduce an entirely new relief, which was not sought in the originating summons, with which the action was initiated.
“I also observed that the plaintiffs seek to introduce new documents through the affidavit, by substituting FORM CF001 for FORM EC9, while seeking to introduce entirely new paragraphs in the supporting affidavit to the originating summons.”
According to him, the amendment sought to be made by the plaintiffs essentially attempts to alter the entire case of the plaintiffs as presented before the court.
Adoga submitted that the said motion was misconceived.
“The entire facts deposed to in the affidavit in support of the motion on notice, including Paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 are untrue, misconceived or skewed to mislead this Honourable Court.”
The officer said he observed that the plaintiffs made it clear that their purported cause of action is predicated on the documents submitted by the president to INEC.
He, however, argued that Atiku’s substantive suit is statute-barred, having been filed on Aug. 14 while the cause of action which he is challenging arose on July 11 when Tinubu’s name was submitted to INEC, even though the commission published the particulars of all presidential candidates with their submitted certificates on Aug. 1.
According to him, the timeline for institution of actions is prescribed by the 1999 Constitution (as amended) and not the Practice Direction of this Honourable Court.
“The Practice Direction does not entitle any party to file or seek to amend their originating summons upon the expiration of the time prescribed by the Constitution for the institution of the action,” he added.
Besides, he argued that contrary to Atiku’s reliefs, the amendment sought more than just “to correct errors of description of documents.”
“Further to the above, the attempt to ‘set out the particulars of fraud in the affidavit’ is an admission to the fact that the previously filed originating summons contained no such particulars, thus rendering same incompetent.
Adoga submitted that an incompetent originating process cannot be amended.
He stated further that the proposed amended originating summons clearly indicated that an additional prayer is being sought therein.
Adoga prayed the court to dismiss the motion for amendment in the interest of justice.
APC equally opposed the motion to amend the suit.
INEC had also opposed Atiku’s motion to amend the suit.
The commission, in a counter affidavit to the plaintiffs’ motion on notice for amendment filed on Sept. 10, said its preliminary objection, filed on Sept. 7 and served on the plaintiffs, is still pending and undetermined.
Mendie Akpan, a litigation secretary in the law firm of Alex Izinyon & Co, who deposed to the counter affidavit, argued that Atiku’s motion to amend and the proposed amended originating summons is seeking to substitute or bring in a new cause of action.
She further submitted that the motion sought to attach a written deposition not filed within the constitutionally prescribed period, reformulate reliefs and cure the CF001/EC9 confusion.
The lawyer argued that the proposed amendment, if granted, would have the effect of introducing a fresh or different cause of action.
Alternatively, she said it would have the effect of curing a jurisdictional defect, after the expiration of the 14-day period prescribed by Section 285(9) of the Constitution for instituting a pre-election suit