A Federal High Court (FHC), Abuja, on Friday, declined to grant the prayer of Mr Kola Abiola, the presidential candidate, People’s Redemption Party (PRP), against the plea of an aggrieved aspirant in the June 5 primary election conducted by the party.
Justice Fadima Aminu, in a ruling, however, granted the application filed by Madam Patience Ndidi Key, a female presidential aspirant in the poll, seeking to amend her originating summons.
Madam Key had, on June 29, sued PRP, INEC and Mr Latifu Abiola as 1st, 2nd and 3rd defendants respectively.
Key, in an originating summons marked FHC/ABJ/CS/1001/2022, had challenged the emergence of Mr Abiola as the party’s presidential candidate.
She had prayed the court to nullify the poll that produced Abiola as the PRP’s presidential candidate.
She also prayed for an order setting aside the declaration of Abiola as the winner of the primaries conducted across the country.
Kola is the son of late MKO Abiola, the winner of the June 12, 1993 presidential election.
It was also reported on November 8 that the suit, which was earlier before Justice Ahmed Mohammed, would be transferred to a special task force of judges set up by the FHC Chief Judge, Justice John Tsoho, for speedy determination.
Tsoho said that it had become necessary to designate a team of judges following the large volume of pre-election suits that had flooded the court.
When the matter was called for hearing on Friday before Justice Aminu, Magnus Ihejirika, counsel to the plaintiff (Key), notified the court that he had two applications.
“One was filed on July 29 and the other was filed September 5. We intend to withdraw the one filed on July 29 and we intend to move the one filed on September 5,” he said.
He said the motion filed on September 5 sought an order of the court to amend the earlier originating summons filed on July 29 and an order, deeming the application to have been appropriately filed.
The lawyer said though the defendants opposed the application, he urged the court to discountenance their submission.
According to him, Section 4(7) of the FHC Pre-election Practice Direction, 2022 allows a plaintiff to amend his originating process within seven days of the service of the respondent’s reply.
“Our contention here is that, the plaintiff has not received the defendants’ reply,” he said.
Ihejirika argued that by the motion for extension of time filed by the defence to regularise their processes showed that their purported counter affidavit was incompetent.
“Therefore, this application is timely and was made within the confines of the law.
“We filed the application on September 5, while their application to regularise was filed on September 9. We, therefore, urge you to grant the application as prayed,” he said.
But lawyer to PRP (1st defendant), Regina Audu, disagreed with Ihejirika.
She said that a counter affidavit was filed and a written address dated October 6 was also filed in accordance with the rules of the court.
According to her, the provision of Section 285(9) of the constitution is to the effect that all pre-election matters shall be filed within 14 days from the day of the occurrence of the event being complained of.
“The primary was held on the 5th day of June, 2022 and the originating summons was filed on June 28, about 23 days after the occurrence of the event the plaintiff was complaining about,” she argued.
Audu, while citing previous cases to back her argument, said that the Supreme Court held that an incompetent process cannot be amended.
“You cannot place something on nothing, it will collapse.
“The originating summons sought to be amended is incompetent in the first place and the amended motion cannot breathe life into it.
“It is our further contention that the plaintiff cannot go through the back door to get what he cannot get through the front door,” she said.
The lawyer further argued that the plaintiff only sought to amend her originating summons after noticing that the earlier one filed was incompetent, and she wanted to turn around to amend in order to entirely change the cause of action of the suit.
Citing a previous case, Audu said that “an amended application that will change the cause of the case will be overreaching and should not be granted.”
She prayed the court to dismiss the motion file for amendment as same would be totally overreaching and not in accordance with the extant laws.
Speaking in the same vein, Mr Abiola’s counsel, Ijeoma Madu, aligned herself with Audu’s submission.
“We filed a reply on point of law to the motion for amendment dated October 27. We adopt our submission therein as our argument in opposition to the motion for amendment,” she said.
Madu argued that the plaintiff’s suit was incompetent and dead on arrival.
“It is statue barred, having being filed after 14 days a primary election was conducted, and hence, it cannot be amended.
“There is nothing before this honourable court to be amended,” she said, urging the court to dismiss the application.
In his counter-argument, Ihejirika submitted that the arguments of the defence counsel were misconceived.
“They can only make this argument if they had taken any step before our application to amend.
“In this case my lord, they have not joined issues with us,” he said
The lawyer said that the essence of amendment was to bring out the real issues for the court to adjudicate upon.
According to him, our complaint borders on the submission of the name of the third defendant (Abiola) by the 1st defendant (PRP) to the 2nd defendant (INEC) which the 2nd defendant accepted.
He said the submission and acceptance of Abiola’s name took place on June 15, “therefore, time begins to run from that 15 of June.”
He said: “This action was filed on the June 28 which is 13 days. So it was filed within the stipulated time of 14 days by the constitution, citing two previous cases to support his argument.
According to him, we are complaining about the unlawful submission of the name of the third defendant.
Ihejirika urged the court to discountenance their submission and grant their prayer for the just determination of the matter.
Justice Aminu, in her ruling, agreed with the argument of the counsel to the plaintiff.
She said the application was proper before the court in the sense that the defendants had not joined issues with the plaintiff, and that since issues had not been joined, the defence did not suffer any detriment.
She consequently granted the application by lawyer to Madam Key to amend their originating summons.
The judge, who ordered the defendants to file their counter affidavit to the amended originating summons before the next adjourned date, fixed November 25 for hearing.
