The Federal High Court, Abuja Division, on Monday fixed October 13 to hear an application filed by Atiku Abubakar, presidential candidate of the African Democratic Congress, seeking to amend his suit against President Bola Tinubu and the All Progressives Congress.
Justice Inyang Ekwo fixed the date to allow parties in the suit to regularise their processes.
When the case was called on Monday, Joseph Silas, who appeared for Mr Abubakar and the ADC, told the court that although he had received responses from other respondents, he had yet to receive Mr Tinubu’s counter affidavit to their motion to amend the suit.
However, Wole Olanipekun, lawyer to the president, informed the court that their counter affidavit was served on the plaintiffs on September 24 and acknowledged by the office of the plaintiffs’ counsel. The judge equally confirmed the proof of service filed by Mr Olanipekun.
The judge consequently adjourned the matter until October 13 for hearing of the motion to amend the originating summons filed by Mr Abubakar and ADC. In the main suit, Mr Abubakar urged the judge to disqualify Mr Tinubu and APC from the 2027 presidential election.
They questioned Mr Tinubu’s National Youth Service Corps discharge certificate, which APC submitted to the Independent National Electoral Commission.
The plaintiffs, who sued the president, APC and INEC as first to third defendants in the originating summons marked FHC/ABJ/CS/1888/2026, alleged that APC submitted a forged NYSC discharge certificate to INEC.
They, therefore, asked the court to compel INEC to remove Mr Tinubu and APC’s names from the list of candidates and parties for the presidential poll. Mr Tinubu and the APC, in their joint counter affidavit filed on September 9, prayed the court to dismiss the suit in its entirety as incompetent and to hold 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 polls, as the plaintiffs claimed. They stated that the NYSC has never denied issuing the discharge certificate to the first defendant at the end of his service year.
They submitted that it is settled law that the evidence required to prove a certificate is forged is a disclaimer from the institution said to have issued it, citing a previous Supreme Court decision to support their argument. They urged the court to uphold their preliminary objection and dismiss the suit.
INEC, in its preliminary objection filed on September 7 by its lawyer, Alex Izinyon, also challenged the competence of the suit on the grounds of statute of bar, want of locus standi, absence of a reasonable cause of action and abuse of court process.
INEC 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. INEC equally challenged the impropriety of Reliefs 2 and 3 in Mr Atiku and ADC’s originating summons, urging the court to dismiss the suit.
Mr Abubakar and ADC, however, approached the court with a motion on notice on September 10, seeking to amend the suit. They said the application was brought pursuant to Paragraph 7(8) of the FHC (Pre-election) Practice Directions, 2006, and under the court’s inherent jurisdiction.
In the two reliefs, they sought an order granting leave to them to amend their originating summons. They also urged the court to deem the amended originating summons filed on their application as a properly filed amended originating summons.
Giving four grounds for granting their application, the applicants said they filed the suit on August 14, seeking the reliefs contained in the originating summons.
Mr Abubakar and ADC said that after filing the originating summons, they noticed a few errors, especially in the nomenclature of the INEC forms attached to their affidavit, which was referred to as Form CF001, instead of the now Form EC9A.
They also said they needed to specifically set out the particulars of the alleged fraud in their affidavit, including a written deposition of the first plaintiff (Mr Abubakar), and attach clearer copies of the exhibits referred to, but these were not available with the plaintiffs 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.
Mr Tinubu, in a counter affidavit filed on Thursday, opposed the application to amend the suit.
In the counter affidavit deposed to by Moses Adoga, a litigation support officer in the law firm of Mr Olanipekun, his lead counsel, disagreed with Mr Abubakar’s submission. Mr Adoga said that, contrary to the reliefs sought by Mr Abubakar 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 the reliefs sought.
The officer said he observed that Mr Abubakar sought to introduce an entirely new relief, which was not sought in the originating summons, with which the action was initiated. According to him, the amendment sought by the plaintiffs essentially attempts to alter the entire case as presented before this honourable court.
Mr Adoga submitted that the said motion was misconceived, stating, “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 Mr Abubakar’s substantive suit was statute-barred, having been filed on August 14 while the cause of action which he is challenging arose on July 11 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 August 1.
According to him, the timeline for instituting actions is prescribed by the 1999 Constitution (as amended), not the Practice Direction of the 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 Mr Abubakar’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 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 is being sought therein.
Mr Adoga urged 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 Abubakar’s motion to amend the suit.
INEC, in a counter affidavit to the plaintiffs’ motion on notice for amendment filed on September 10, said its preliminary objection, filed on September 7 and served on the plaintiffs, is still pending and undetermined.
Mendie Akpan, a litigation secretary at Alex Izinyon & Co, who deposed to the counter affidavit, argued that Mr Abubakar’s motion to amend and the proposed amended originating summons seek to substitute or introduce 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, if granted, the proposed amendment would introduce a fresh or different cause of action.
Alternatively, she said it would 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.
The judge is expected to hear the matter on Monday (today).
(NAN)
