The withdrawal of this affidavit by the Amaewhule-led lawmakers creates profound implications for the ongoing legal battle:
Undermining Their Legal Position
Self-Contradiction in Court Records: By withdrawing an affidavit they previously swore to, the lawmakers have created a serious inconsistency in the court record. This undermines their credibility before the courts, violating the principle of approbation and reprobation established in Bankole v. Pelu (1991) 8 NWLR (Pt. 211) 523.
Removal of Legal Basis for Court Orders: According to the article, this affidavit was "the basis upon which they got court orders that kept them in office." By withdrawing it, they've potentially invalidated the very foundation of Justice Okorowo's December 15, 2023 order, invoking the doctrine articulated in Agbaje v. INEC (2015) LPELR-24589(SC) that an order based on misrepresentation becomes void ab initio.
Admission by Omission: The strategic withdrawal of paragraphs specifically confirming their defection to APC constitutes an implied admission under Section 20 of the Evidence Act 2011, comparable to the principle in Onibudo v. Akibu (1982) 7 SC 60.
Potential Legal Consequences
Perjury Exposure: Despite withdrawing the affidavit, under Sections 117-118 of the Criminal Code and the principle established in FRN v. Ibori (2014), the lawmakers remain exposed to potential perjury charges for their previous sworn statements.
Grounds for Reversal: This gives Governor Fubara's legal team powerful grounds under Order 43 Rule 1 of the Federal High Court (Civil Procedure) Rules 2019 to apply for:
Vacation of Justice Okorowo's orders
Dismissal for abuse of court process per Saraki v. FRN (2016) LPELR-40013(SC)
Declaration that the seats are vacant under Section 109(1)(g) of the Constitution
Effect on Supreme Court Decision: This revelation directly contradicts the Supreme Court's finding, providing grounds for review under Order 8 Rule 16 of the Supreme Court Rules, similar to INEC v. Obi (2007) 11 NWLR (Pt. 1046) 564.
Procedural Implications
Discovery Process: Under Order 43 Rule 3 of the Federal High Court Rules, Governor Fubara's team can depose the court registrar to confirm the withdrawal, establishing new evidence.
Fresh Legal Strategy: This development enables legal remedies including:
Motion to dissolve injunctions under Order 26 Rule 11 of the Federal High Court Rules
Application for strike-out per Abacha v. State (2002) 5 NWLR (Pt. 761) 638
Request for expedited hearing citing Dingyadi v. INEC (2010) 18 NWLR (Pt. 1224) 154
Judicial Notice: Under Section 122 of the Evidence Act 2011, courts must take judicial notice of this procedural irregularity, significantly weakening the lawmakers' position.
Political Implications
Public Perception: The secretive withdrawal creates appearance issues addressed in Aliero v. INEC (2012) 11 NWLR (Pt. 1310) 1, where the Supreme Court emphasized transparency in election-related proceedings.
Strategic Contradiction: This contradicts their public position, invoking the doctrine of estoppel per rem judicatam established in Bello v. AG Rivers State (2016) 9 NWLR (Pt. 1517) 238.
The withdrawal of this critical affidavit fundamentally alters the evidentiary landscape, providing Governor Fubara with powerful new evidence under Section 83 of the Evidence Act 2011 that the lawmakers themselves acknowledged their defection in court, then attempted to withdraw that acknowledgment when it became legally disadvantageous.
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