President Bola Ahmed Tinubu, the All Progressives Congress (APC), and the Independent National Electoral Commission (INEC) have asked the Federal High Court in Abuja to dismiss former Vice President Atiku Abubakar’s application seeking permission to amend his suit challenging the President’s eligibility to contest the 2027 general election.
President Tinubu, who is the APC’s candidate for the 2027 presidential election, alongside his party and INEC, opposed the application to amend the case filed by Atiku and his party, the African Democratic Congress (ADC).
They argued that the proposed amendment amounted to an attempt to substantially change the nature of the case after the defendants had already filed their responses.
In a counter-affidavit filed through his lawyer, Wole Olanipekun (SAN), President Tinubu argued that the proposed changes went beyond correcting typographical errors, as claimed by the plaintiffs. He said Atiku and the ADC also sought to alter the questions for determination and the reliefs contained in the originating summons.
The President maintained that Atiku was attempting to introduce a completely new relief that was not contained in the original originating summons used to commence the case.
“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 Tinubu, the proposed amendments amounted to an attempt to substantially modify the case already placed before the court.
“The entire facts deposed to in the affidavit in support of the motion on notice, including paragraphs three, four, five, six, seven, eight, nine, 10, 11, 12, and 13 are untrue, misconceived or skewed to mislead this honourable court,” President Tinubu said.
The President said the plaintiffs had stated that their case was based on documents submitted by him to INEC.
He argued that Atiku’s substantive suit was statute-barred because it was filed on August 14, while the cause of action being challenged arose on July 11, when Tinubu’s name was submitted to INEC.
He noted that although INEC published the particulars of the presidential candidates, together with their submitted certificates, on August 1, the timeline for commencing such an action was governed by the 1999 Constitution, as amended, rather than 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.
Tinubu further argued that the proposed amendment went beyond an attempt “to correct errors of description of documents.”
He said the attempt to provide “the particulars of fraud in the affidavit” amounted to an admission that such details were absent from the original originating summons, which he argued made the process incompetent.
The President submitted that an originating process that was incompetent could not be amended, adding that the proposed amended originating summons showed that the plaintiffs were seeking an additional prayer.
The APC raised similar objections in its counter-affidavit, while INEC, represented by Alex Izinyon (SAN), argued that Atiku’s application and the proposed amended originating summons sought to replace or introduce a new cause of action.
INEC also contended that the application sought to attach a written deposition that was not filed within the constitutionally prescribed period, alter the reliefs being sought, and resolve the issue surrounding the CF001 and EC9 forms.
The commission maintained that granting the proposed amendment would effectively introduce a new or different cause of action.
INEC further argued that, alternatively, allowing the application would amount to curing a jurisdictional defect after the expiration of the 14-day period prescribed under Section 285(9) of the Constitution for filing a pre-election case.
Atiku and the ADC, however, argued that their application, filed pursuant to Paragraph 7(8) of the Federal High Court (Pre-election) Practice Directions, 2006, and the inherent jurisdiction of the court, sought two orders.
The first was for permission to amend their originating summons, while the second asked the court to deem the amended originating summons filed with the application as properly filed.
They explained that after filing the original originating summons, they discovered some errors, particularly in the names of the INEC forms attached to their affidavit, which had been identified as Form CF001 instead of the current Form EC9A.
Atiku and the ADC also said there was a need to expressly state the particulars of the alleged fraud in their affidavit, include a written deposition by the first plaintiff, Atiku, and attach clearer copies of exhibits that had been referenced but were unavailable when the suit was initially filed.
They said the new documents would replace “the one presently attached, but is inelegant” and maintained that no fresh issue had been introduced into the amended originating summons and that no additional prayers had been included.
At the previous hearing, counsel representing Atiku and the ADC, Silas Onu, told the court that although the matter was listed for further mention, all parties had been served following the order permitting substituted service.
Onu said he had received the defendants’ responses, including two processes filed on behalf of President Tinubu.
He said one was filed by Olanipekun, while the other was filed by Akin Olujinmi (SAN) on behalf of Tinubu and the APC.
When the judge sought clarification, Olanipekun stated that the response he filed was on behalf of President Tinubu.
Hakeem Afolabi (SAN), who appeared for the APC, explained that the process filed for the political party, which is the second defendant, had mistakenly been titled as a counter-affidavit for both the first and second defendants.
He therefore asked the court to correct the title so that it would reflect that the document was filed only on behalf of the second defendant.
Onu subsequently informed the court that his clients had a pending application seeking to amend the originating summons and that the application had been served on all the defendants.
Olanipekun, Afolabi and Izinyon confirmed receiving the application and said they had responded by filing counter-affidavits.
While Olanipekun and Izinyon suggested that the court hear both the substantive case and the amendment application at the next sitting, Justice Inyang Ekwo said he preferred to first hear and determine the application to amend the originating summons before proceeding with the substantive suit.
The judge consequently adjourned the matter until October 13 for hearing of the amendment application.
In the substantive suit, Atiku and the ADC are seeking, among other reliefs, an order disqualifying President Tinubu and the APC from participating in the 2027 presidential election.
They also challenged the National Youth Service Corps (NYSC) discharge certificate submitted to INEC on behalf of President Tinubu by the APC.
In a supporting affidavit, Atiku alleged that an NYSC discharge certificate bearing the name “Tinubu Bola Adekunle” was submitted to INEC, arguing that the name differs from that of the President, Bola Ahmed Tinubu.
He further alleged that the same NYSC certificate was submitted in connection with the 2027 presidential election and claimed that the document was not a certificate obtained by President Tinubu.
