The Federal High Court in Abuja on Tuesday fixed 20 November for ruling on a request to amend suit challenging the eligibility of President Bola Tinubu and his All Progressives Congress (APC) to participate in next year’s presidential election.
Atiku Abubakar, the 2027 presidential candidate of the African Democratic Congress (ADC), instituted the suit in August, and recently sought an amendment of the legal action to correct certain errors and introduce a clearer exhibit.
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But Mr Tinubu and the APC opposed the proposed amendment, arguing that if allowed, it would amount to swapping of the case with an entirely new one, which they argued was impermissible.
Judge Inyang Ekwo, on Tuesday, scheduled the case for ruling to decide on whether or not to permit the amendment of the suit, after Atiku’s counsel, Joseph Silas, and defence lawyers presented their arguments for and against the application on Tuesday.
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The News Agency of Nigeria (NAN) reports that Atiku and his party, the ADC, in the main suit, urged Mr Ekwo to disqualify Mr Tinubu and APC from the 2027 presidential election. The election is scheduled to come up side-by-side with the national assembly polls nationwide on 16 January 2027.
Alongside the president and the APC, the INEC is joined as a co-defendant in the suit marked: FHC/ABJ/CS/1888/2026.
Atiku and the ADC questioned Mr Tinubu’s National Youth Service Corps (NYSC) discharge certificate submitted to the Independent National Electoral Commission (INEC) by APC to support his nomination as the party’s presidential candidate for 2027.
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They alleged that APC submitted the president’s forged NYSC discharge certificate to INEC, a development they argued should result in disqualifying Mr Tinubu and his party from participating in the forthcoming election.
They urged the court to compel INEC to remove Mr Tinubu and APC’s names from the list of candidates and parties for the 2027 presidential poll.
But after the defendants filed their counter-affidavits along with other documents opposing the suit, Atiku and APC, citing some irregularities, approached the court to seek an order to amend the suit.
Tuesday’s hearing
During Tuesday’s hearing, Mr Silas moved his clients’ application filed on 10 September, and urged the court to grant the application to allow the proposed amendment.
But Mr Tinubu’s lawyer, Wole Olanipekun, a Senior Advocate of Nigeria (SAN), adopted the nine-paragraph counter-affidavit filed on 24 September and other processes filed on behalf of his client in opposition to the application.
Urging the court to dismiss the application, Mr Olanipekun argued that it was statute barred. He argued that what the plaintiffs sought to do was filing a new action and not an amendment.
Toeing the same line of argument, APC’s lawyer, Akin Olujinmi, also a SAN, prayed for the dismissal of the suit after adopting the counter-affidavit and a written address filed on 12 September against the plaintiffs’ application.
Similarly, INEC’s lawyer, Alex Izinyon, a SAN as well, called for the dismissal of the application, referencing a six-paragraph counter-affidavit, a written address with an exhibit filed on 10 September in opposition to the plaintiffs’ request.
After listening to their arguments, Judge Ekwo adjourned the matter until 20 November for ruling.
What Atiku, ADC seek to amend
PREMIUM TIMES previously reported that Atiku and his party filed the amendment application to correct errors in their filing, provide clearer copies of some exhibits and set out in greater detail their allegation that an allegedly forged NYSC discharge certificate was submitted to the INEC in aid of Mr Tinubu’s candidacy.
They also asked the court to deem the proposed amended originating summons as properly filed.
The application was brought pursuant to Paragraph 7(8) of the Federal High Court (Pre-election) Practice Directions 2006 and the inherent jurisdiction of the court.
The plaintiffs said that although they instituted the suit on 14 August, they later noticed some errors in the processes filed along with the case.
One of the errors, they said, wrongly described INEC’s Form EC9A as Form CF001. The Form EC9A, which is part of nomination list series, is the affidavit of personal particulars currently used by INEC for candidates to submit their credentials and swear to their eligibility, effectively replacing the older nomenclature known as Form CF001.
They also said they needed to set out the particulars of their alleged fraud against Mr Tinubu more clearly by including a written deposition by Atiku and attaching clearer copies of exhibits that were not available to them when the suit was filed.
The plaintiffs maintained that the proposed amendments would not introduce a new issue or additional prayers.
They argued that the amendments were necessary to properly present their case and that they were entitled to make the changes in the interest of justice.
They said they “are entitled to make this amended in the interest of justice.”
But President Tinubu, in a counter-affidavit filed on 24 September, opposed the application.
The president, in the counter-affidavit sworn by Moses Adoga, a litigation support officer in Mr Olanipekun’s law firm, disagreed with Atiku’s submission.
Mr Adoga said contrary to the prayers 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 his prayers.
He said he observed that Atiku sought to introduce an entirely new prayer, which was not sought in the original originating summons.
“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 this honourable court.
Mr 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 counter-affidavit read.
The officer said he observed that the plaintiffs made it clear that their purported cause of action was predicated on the documents submitted by the president to INEC.
He, however, argued that Atiku’s substantive suit was statute barred, having been filed on 14 August while the cause of action which he is challenging arose on 11 July, when Mr Tinubu’s name was submitted to INEC, even though the commission published the particulars of all presidential candidates with their submitted certificates on 1 August.
According to him, the timeline for institution of actions is prescribed by the Nigerian constitution and not the Practice Direction of the Federal High 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 prayers, the amendment sought more than just “to correct errors of description of documents.”
He added that 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 the same incompetent.
Mr 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 was being sought therein.
Mr Adoga prayed the court to dismiss the motion for amendment in the interest of justice.
APC equally opposed the motion to amend the suit.
NAN earlier reported that 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 10 September, said its preliminary objection, filed on 7 September and served on the plaintiffs, is still pending and undetermined.
Mendie Akpan, a litigation secretary in the law firm of Alex Izinyon & Co, who swore 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 prayers 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.
Opposition to substantive suit
NAN reports that President Tinubu and APC had filed a joint counter- affidavit on 9 September against the main suit.
Calling for an outright dismissal of the suit for being allegedly incompetent and the plaintiffs’ alleged lack of legal right to institute the case.
On the merit of the case, the defendants denied the plaintiffs’ allegation of submission of any forged certificate to INEC to support Mr Tinubu’s presidential nomination either for the 2023 election or that of 2027.
The duo, through the APC’s Director of Legal Services, Sanusi Samaila, declared that they did not submit any Form CF001 to INEC for the 2023 or 2027 poll as claimed by the plaintiffs.
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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 a settied 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.
Also, INEC, in its preliminary objection filed on 7 September by its lawyer, Mr Izinyon, challenged the competence of the suit on the grounds that it was statute-barred. It also argued that the plaintiffs lacked the locus standi to institute the action. The electoral body also said there was absence of a reasonable cause of action, adding that the suit constituted an abuse of court process.
The commission argued that the plaintiffs failed to comply with the mandatory written deposition requirement under Paragraph 7(1) provision of the Federal High Court Pre-Election Practice Directions (Amendment) 2026.
The electoral umpire equally challenged the propriety of prayers 2 and 3 in Atiku and ADC’s originating summons, urging the court to dismiss the suit.
Atiku and ADC, approached the court with a motion on notice on 10 September 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 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 amended in the interest of justice.”
Whatever is the outcome of the application or the suit itself, aggrieved parties reserve the right to go on appeal up to the level of the Supreme Court.
(NAN)
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