The 2027 presidential candidate of the African Democratic Congress (ADC), Atiku Abubakar, and his party have asked the Federal High Court in Abuja for permission to amend their suit seeking the disqualification of President Bola Tinubu and the All Progressives Congress (APC) from participating in the 2027 presidential election.
The application, which they notified the court about on Monday, seeks to correct errors in their originating filing, provide clearer copies of some exhibits and set out in greater detail their allegation that an allegedly forged National Youth Service Corps (NYSC) discharge certificate was submitted to the Independent National Electoral Commission (INEC) in aid of Mr Tinubu’s candidacy.
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In the suit, Mr Atiku and the ADC are challenging Mr Tinubu’s eligibility to contest the 2027 presidential election and alleging that the APC submitted a forged NYSC discharge certificate to INEC.
But the defendants have challenged its competence.
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Earlier on 16 September, Judge Inyang Ekwo granted an order of substituted service permitting the plaintiffs to serve the suit on the president through the APC.
During Monday’s proceedings, lawyers representing parties to the suit, including Alex Izinyon, a Senior Advocate of Nigeria (SAN) who appeared for INEC, confirmed to the judge that processes relating to the application had been exchanged.
Joseph Silas, who appeared for Mr Atiku and the ADC, told the court that he had received responses from the other defendants but had yet to receive Mr Tinubu’s counter-affidavit to the motion.
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Wole Olanipekun, also a SAN who appeared for Mr Tinubu, however, told the court that the counter-affidavit had been served on the plaintiffs on 24 September and acknowledged by the office of their lawyer.
Judge Ekwo confirmed the proof of service filed by Mr Olanipekun and fixed 13 October for hearing of the motion seeking leave to amend the originating summons.
Why Atiku wants to amend the suit
Mr Atiku and the ADC filed the motion for notice on amendment on 10 September, asking the court to grant them leave to amend their originating summons.
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 with the case.
One of the errors, they said, wrongly describing 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.”
Tinubu challenges proposed amendment
Meanwhile, Mr Tinubu opposed the application in a counter-affidavit filed on 24 September.
Moses Adoga, a litigation support officer in the law firm of Mr Olanipekun, deposed to the affidavit on behalf of the President.
Mr Adoga disagreed with the plaintiffs’ description of the proposed changes, arguing that the amendment would alter the questions for determination and the reliefs sought.
He said the amended originating summons introduced an entirely new relief that was not contained in the original process.
He also objected to the proposed introduction of new documents and paragraphs in the supporting affidavit, including the substitution of Form CF001 for Form EC9.
Mr Adoga described the motion as “misconceived” because the proposed amendment would effectively alter the plaintiffs’ entire case.
The defence further argued that the substantive suit was statute-barred.
Mr Adoga said the cause of action arose on 11 July, when Mr Tinubu’s name was submitted to INEC, while the suit was subsequently filed in August.
He argued that the time for instituting the action was prescribed by the 1999 Constitution, as amended, rather than the Federal High Court’s Practice Directions.
“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 stated.
The defence also argued that the plaintiffs’ attempt to set out particulars of the alleged fraud showed that the original originating summons did not contain those particulars.
Mr Adoga said the attempt to set out the particulars of fraud was an admission that the earlier originating summons contained no such particulars, “thus, rendering the same incompetent”.
He therefore submitted that an incompetent originating process could not be amended.
He also argued that the proposed amended originating summons contained an additional prayer and urged the court to dismiss the motion.
APC, INEC oppose amendment
Similarly, the INEC and the APC opposed the motion to amend the suit.
The commission maintained that its preliminary objection to the substantive suit, filed on 7 September, remained pending.
Mendie Akpan, a litigation secretary in the law firm of Alex Izinyon & Co, swore to a counter-affidavit on behalf of the commission.
She argued that the proposed amendment would substitute or introduce a new cause of action.
INEC also argued that the plaintiffs were seeking to attach a written deposition that was not filed within the constitutionally prescribed period, reformulate the reliefs sought and address the dispute over the description of the INEC form.
The commission further submitted that granting the amendment would either introduce a fresh or different cause of action or cure 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.
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Suit
In the substantive suit, Mr Atiku and the ADC questioned Mr Tinubu’s NYSC discharge certificate submitted to INEC by the APC and alleged that the party submitted a forged certificate to the electoral commission.
They asked the court to order INEC to remove Mr Tinubu’s name and that of the APC from the list of candidates and political parties for the 2027 presidential election.
Mr Tinubu and the APC have denied submitting any forged certificate to INEC for either the 2023 or 2027 presidential elections.
In their joint counter-affidavit filed on 9 September, they asked the court to dismiss the suit for being incompetent and argued that the plaintiffs lacked the legal right to institute it.
Through the APC’s Director of Legal Services, Sanusi Samaila, they also maintained that they did not submit Form CF001 to INEC for either the 2023 or 2027 election, as alleged by the plaintiffs.
They further argued that the NYSC had never denied issuing Mr Tinubu’s discharge certificate at the end of his service year.
The defendants submitted that evidence from the institution said to have issued the certificate was required to establish forgery. They cited a previous Supreme Court decision in support of their position, arguing that a disclaimer from the issuing institution was necessary.
INEC also separately challenged the competence of the substantive suit.
In its preliminary objection filed on 7 September through Mr Izinyon, the commission raised grounds including that the suit was caught by statute of limitation, want of locus standi, absence of a reasonable cause of action and abuse of court process.
INEC also 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.
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