Court Adjourns Atiku's Motion to Amend Anti-Tinubu Suit to Oct. 13

The Federal High Court in Abuja has fixed Oct. 13 to hear an application by Alhaji Atiku Abubakar, presidential candidate of the African Democratic Congress (ADC), seeking to amend his suit against President Bola Tinubu and the All-Progressives Congress (APC).

Justice Inyang Ekwo fixed the date on Monday to allow the parties to regularise their court processes.

When the case was called, Mr Joseph Silas, counsel to Atiku and the ADC, told the court he had received responses from the other respondents but had yet to receive the president's counter affidavit opposing the motion to amend. Chief Wole Olanipekun, SAN, counsel to the president, however, told the court that the counter affidavit was served on the plaintiffs on Sept. 24 and acknowledged by their lawyer's office. Justice Ekwo confirmed the proof of service filed by Olanipekun and adjourned the matter to Oct. 13.

The main suit, marked FHC/ABJ/CS/1888/2026, Atiku and the ADC asked the court to disqualify Tinubu and the APC from the 2027 presidential election. They questioned the National Youth Service Corps (NYSC) discharge certificate submitted to the Independent National Electoral Commission (INEC) on the president's behalf, alleging it was forged, and asked the court to compel INEC to remove the names of Tinubu and the APC from its list of candidates and parties. The president, the APC and INEC are the first to third defendants respectively.

In a joint counter affidavit filed on Sept. 9, Tinubu and the APC urged the court to dismiss the suit as incompetent, arguing that the plaintiffs lacked the legal standing to bring it. They denied submitting any forged certificate to INEC for either the 2023 or 2027 elections, and, through the APC's Director of Legal Services, Mr Sanusi Samaila, said no Form CF001 had been submitted for either poll as claimed. They added that the NYSC had never denied issuing the discharge certificate to the president, and argued that, under settled law, proof of forgery requires a disclaimer from the issuing institution, citing a prior Supreme Court decision.

INEC, in a preliminary objection filed on Sept. 7 by its lawyer, Dr Alex Izinyon, SAN, also challenged the suit's competence on grounds of statute bar, lack of locus standi, absence of a reasonable cause of action and abuse of court process. It 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, and challenged the propriety of Reliefs 2 and 3 in the originating summons.

The application to amend

On Sept. 10, Atiku and the ADC filed a motion on notice seeking to amend the suit, brought under Paragraph 7(8) of the Federal High Court (Pre-Election) Practice Directions and the court's inherent jurisdiction. They asked for leave to amend the originating summons, and for the amended process to be deemed properly filed.

Giving four grounds, the applicants said that after filing the suit on Aug. 14, they noticed several errors—chiefly that the INEC form attached to their affidavit was referred to as Form CF001 instead of Form EC9A. They also said the particulars of the alleged fraud needed to be set out specifically in the affidavit, together with a written deposition by Atiku and clearer copies of exhibits that were unavailable at the time of filing. They stressed that no new issues or additional prayers had been introduced, and that they were entitled to make the amendment in the interest of justice.

Tinubu's opposition

In a counter affidavit filed on Sept. 24 and deposed to by Moses Adoga, a litigation support officer in Olanipekun's law firm, the president opposed the motion, arguing it was misconceived. Adoga said the plaintiffs were seeking to amend not only the description of documents but also the questions for determination and the reliefs, including introducing an entirely new relief not in the original summons, and new documents and paragraphs in the supporting affidavit—effectively altering the plaintiffs' entire case.

He further argued that the substantive suit is statute-barred, having been filed on Aug. 14 while the cause of action arose on July 11, when Tinubu's name was submitted to INEC, even though the commission published all presidential candidates' particulars on Aug. 1. He said the constitution, and not the Practice Direction, prescribes the timeline for instituting such actions, and that the Practice Direction does not permit a party to file or amend an originating summons after that period has lapsed.

Adoga added that the bid to "set out the particulars of fraud" amounted to an admission that the original summons contained none, rendering it incompetent, and that an incompetent originating process cannot be amended. He prayed the court to dismiss the motion in the interest of justice. The APC also opposed the application.

INEC's opposition

INEC also opposed the motion in a counter affidavit filed on Sept. 10, noting that its preliminary objection of Sept. 7 remained pending and undetermined. Deposed to by Mendie Akpan, a litigation secretary in Izinyon's law firm, the counter affidavit argued that the proposed amendment seeks to substitute or introduce a new cause of action, attach a written deposition filed outside the constitutionally prescribed period, reformulate the reliefs and cure the CF001/EC9 confusion. Alternatively, it argued, granting the amendment would cure a jurisdictional defect after the 14-day period prescribed by Section 285(9) of the Constitution for instituting pre-election suits had expired.