The Independent National Electoral Commission (INEC) objected to the prayer by former Vice President Atiku Abubakar to amend the suit seeking the disqualification of President Bola Tinubu and the All Progressives Congress (APC) from the 2027 presidential election.
Atiku, also the presidential candidate of the African Democratic Congress (ADC), and his party filed the suit in the Federal High Court in Abuja, questioning Tinubu’s National Youth Service Corps (NYSC) discharge certificate submitted to INEC by APC.
In the suit, the plaintiffs, Atiku and ADC, urged Justice Inyang Ekwo to disqualify Tinubu and APC from contesting the 2027 presidential election over alleged submission of a forged NYSC discharge certificate to INEC.
The plaintiffs, who sued the president and APC as the first and second defendants, also joined INEC as the third defendant in the originating summons marked FHC/ABJ/CS/1888/2026.
They prayed the court to compel INEC to remove Tinubu and APC’s names from the list of candidates and parties for the presidential poll.
However, INEC, in its preliminary objection filed on September 7 by its lawyer, Alex Izinyon, challenged the competence of the suit on the grounds of statute-bar, want of locus standi, absence of a reasonable cause of action and abuse of court process.
The commission 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.
The electoral umpire equally challenged the impropriety of Reliefs 2 and 3 in Atiku and ADC’s originating summons, urging the court to dismiss the suit.
Also, Tinubu and the APC, in their joint counter affidavit filed on September 9, prayed the court to dismiss the suit in its entirety for incompetence and that the plaintiffs lacked the legal right to institute the case.
They denied submitting any forged certificate to INEC for either the 2023 or 2027 presidential elections.
The duo, through the APC Director of Legal Services, Sanusi Samaila, averred that they did not submit any Form CF001 to INEC for the 2023 or 2027 polls as claimed by the plaintiffs.
They stated that the NYSC has never denied issuing an NYSC discharge certificate to the first defendant at the end of his service year.
They submitted that it was a settled law that the evidence required to prove that a certificate is forged is a disclaimer from the institution that is said to have issued the certificate, citing a previous Supreme Court decision to back their argument.
They urged the court to uphold their preliminary objection and dismiss the suit.
Meanwhile, Atiku and ADC, in a motion on notice brought pursuant to Paragraph 7(8) of the FHC (Pre-election) Practice Directions, 2006, and under the inherent jurisdiction of the court, sought an amendment to the suit.
In the two reliefs, they sought an order granting leave to them to amend their originating summons.
They also prayed the court for an order deeming the amended originating summons filed upon their application as properly filed amended originating summons.
Giving four grounds why their application should be granted, the plaintiffs said they filed the suit on August 14, seeking the reliefs contained in the originating summons.
Atiku 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 said there was also a need to specifically set out the particulars of the alleged fraud in their affidavit (which are already contained in the said affidavit), including a written deposition of the first plaintiff (Atiku) and attaching clearer copies of the exhibits referred to, but which were not available to the plaintiffs as at the time of filing the suit.
They said these would replace “the one presently attached, but is inelegant”.
Besides, they submitted that as plaintiffs, they “are entitled to make this amendment in the interest of justice.”
INEC, however, disagreed with the move by Atiku and ADC to amend their originating summons.
The commission, 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 in the law firm of Alex Izinyon & Co, who deposed to the counter affidavit, argued that Atiku’s motion to amend and the proposed amended originating summons are seeking to substitute or bring in 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 the proposed amendment, if granted, would have the effect of introducing a fresh or different cause of action, alternatively of curing a jurisdictional defect, after the expiration of the 14 days prescribed by Section 285(9) of the Constitution for instituting a pre-election suit.
She said, “No written deposition, as mandated by Paragraph 7(1) of the Federal High Court (Pre-Election) Practice Directions (Amendment) 2026, accompanied the original originating summons, notwithstanding that the suit is founded on an allegation of forgery.”
Akpan submitted that granting the amendment at this stage, before determination of the pending preliminary objection challenging the jurisdiction of the court, will occasion a miscarriage of justice and overreach the commission.
She argued that granting the plea will occasion irredeemable prejudice to INEC, which has already joined issues in the suit as constituted, and would in effect require it to respond afresh to a substantially different case filed outside the time contemplated by Section 285(9) of the 1999 Constitution (as amended).
According to her, the amendments sought to be made by the plaintiffs/applicants are in respect of issues which are more than mere clerical errors.
She argued that the plaintiffs/applicants’ application cannot be filed more than 14 days after the cause of action arose.
Counsel also said that the matter was a pre-election matter which is sui generis.
She said that it was in the interest of justice that the application should be dismissed.
