Former Vice President and African Democratic Congress (ADC) presidential candidate, Atiku Abubakar, has asked the Federal High Court in Abuja for permission to amend his suit challenging President Bola Tinubu’s eligibility to contest the 2027 presidential election.
Atiku made the request alongside the ADC, seeking substantial amendments to the case in which they allege that a forged National Youth Service Corps (NYSC) discharge certificate was submitted to the Independent National Electoral Commission (INEC) on behalf of President Tinubu.
Justice Inyang Ekwo on Monday adjourned the matter until October 13 for hearing of the application and to enable the parties regularise their processes.
At the resumed proceedings, Joseph Silas, counsel representing Atiku and the ADC, told the court that although responses had been received from some of the respondents, President Tinubu’s counter affidavit to the motion seeking amendment had not been served on them.
However, Chief Wole Olanipekun, SAN, counsel to President Tinubu, informed the court that the counter affidavit was served on the plaintiffs on September 24 and acknowledged by the office of their counsel.
Justice Ekwo subsequently confirmed the proof of service contained in the case file before adjourning the matter to October 13 for hearing of the motion seeking leave to amend the originating summons filed by Atiku and the ADC.
In the substantive suit, Atiku and the ADC are asking the court to disqualify President Tinubu and the All Progressives Congress (APC) from participating in the 2027 presidential election.
The plaintiffs questioned the NYSC discharge certificate submitted to INEC in connection with Tinubu’s candidacy. In the originating summons marked FHC/ABJ/CS/1888/2026, Atiku and the ADC listed Tinubu, the APC and INEC as the first to third defendants respectively.
They alleged that the APC submitted a forged NYSC discharge certificate belonging to the President to INEC and asked the court to order the electoral commission to remove Tinubu and the APC from the list of presidential candidates and participating political parties for the 2027 election.
President Tinubu and the APC, however, rejected the allegations in their joint counter affidavit filed on September 9, asking the court to dismiss the case on the grounds that it was incompetent and that the plaintiffs lacked the legal standing to institute the action.
They denied submitting any forged certificate to INEC in connection with either the 2023 or 2027 presidential elections.
Through the APC Director of Legal Services, Mr Sanusi Samaila, they maintained that they did not submit any Form CF001 to INEC for either election as alleged by the plaintiffs.
They further stated that the NYSC had never denied issuing the discharge certificate to the first defendant at the conclusion of his service year.
Tinubu and the APC also argued that the settled position of law requires a disclaimer from the institution purported to have issued a certificate before it can be established as forged. They cited a previous Supreme Court decision in support of their position and urged the court to uphold their preliminary objection and dismiss the suit.
INEC separately challenged the competence of the case in a preliminary objection filed on September 7 by its counsel, Dr Alex Izinyon, SAN.
The commission raised issues including statute-bar, lack of locus standi, absence of a reasonable cause of action and alleged abuse of court process.
INEC also contended that Atiku and the ADC 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 commission further challenged the validity of Reliefs 2 and 3 contained in the originating summons and urged the court to dismiss the action.
Why Atiku wants to amend the suit
Atiku and the ADC subsequently filed a motion on notice on September 10 seeking permission to alter their originating summons.
They said the application was brought pursuant to Paragraph 7(8) of the Federal High Court (Pre-election) Practice Directions, 2006, as well as the inherent jurisdiction of the court.
The applicants are seeking two orders: first, leave to amend their originating summons and, second, an order deeming the amended process already filed with the application as properly filed and served.
According to Atiku and the ADC, the suit was initially filed on August 14 with the reliefs contained in the original originating summons.
They said they subsequently discovered some errors, particularly in the description of the INEC forms attached to their affidavit, which they identified as Form CF001 instead of the current Form EC9A.
The applicants also said it was necessary to expressly state the particulars of the alleged fraud in their affidavit, include a written deposition by Atiku and attach clearer copies of exhibits referenced in the case but unavailable to them when the suit was initially filed.
They said the proposed changes would replace “the one presently attached, but is inelegant,” while maintaining that no fresh issue had been introduced and that no additional relief was being sought.
The applicants further argued that, as plaintiffs, they “are entitled to make this amendment in the interest of justice.”
Tinubu challenges proposed amendment
President Tinubu opposed the application in a counter affidavit filed on September 24.
The affidavit was deposed to by Moses Adoga, a litigation support officer in the law firm of Wole Olanipekun, SAN, the President’s lead counsel.
Adoga disputed Atiku’s description of the proposed amendments, arguing that the amended originating summons marked Exhibit “P1” went beyond correcting errors.
He said the ADC presidential candidate also sought to alter the questions for determination and the reliefs originally presented before the court.
The litigation support officer said he observed that Atiku was attempting to introduce a new relief that was not contained in the originating summons through which the case was commenced.
“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 Adoga, the proposed changes would effectively alter the case initially presented before the court.
He described the motion as 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.”
Adoga also argued that the plaintiffs had made it clear that their cause of action was based on documents allegedly submitted by Tinubu to INEC.
He contended that the substantive suit was already statute-barred because it was filed on August 14, whereas the cause of action being challenged allegedly arose on July 11, when Tinubu’s name was submitted to INEC.
He noted that INEC subsequently published the particulars of all presidential candidates and their submitted certificates on August 1.
According to Adoga, the constitutional provisions governing the time limit for filing such actions take precedence over the court’s Practice Direction.
“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.
He further argued that the proposed amendment went beyond correcting errors in the 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 maintained that a process considered incompetent could not subsequently be amended.
He also said the proposed amended originating summons showed that an additional prayer was being introduced and asked the court to dismiss the motion for amendment in the interest of justice.
APC, INEC oppose amendment bid
The APC also opposed Atiku’s application to amend the case.
INEC had similarly objected to the proposed amendment, NAN earlier reported.
In its counter affidavit to the motion filed on September 10, the commission maintained that its preliminary objection, filed on September 7 and served on the plaintiffs, remained pending before the court.
Mendie Akpan, a litigation secretary in the law firm of Alex Izinyon & Co, who deposed to the affidavit, argued that the proposed amendment would effectively substitute or introduce a new cause of action.
She further contended that the application sought to introduce a written deposition that was not filed within the constitutionally prescribed period, reformulate the reliefs and resolve the dispute surrounding the CF001 and EC9 forms.
According to her, granting the amendment would result in the introduction of a fresh or different cause of action.
Alternatively, she argued that the proposed changes would amount to an attempt to cure a jurisdictional defect after the expiration of the 14-day period prescribed under Section 285(9) of the 1999 Constitution for instituting a pre-election suit.
Justice Ekwo is expected to hear arguments on the application on October 13.
