Distinction between affidavit and witness statement on oath.
There has been a lot of confusion with respect to affidavits and written statement on oath hence the need to create an apt distinction.
Affidavit evidence needs no adoption, unlike witness statement on oath i.e. once filed affidavit becomes evidence whereas witness statement on oath requires adoption before it is taken as evidence
A defect in the original oath in respect of a witness statement on oath is cured by the second oath made in court by the witness prior to adoption.
In GTB PLC v. ABIODUN CITATION: (2017) LPELR-42551(CA) The court made a clear distinction where it stated that It may be necessary to distinguish an affidavit and a written statement. An affidavit is that upon which motions are largely decided while written statement on oath upon which facts in pleadings are predicated. A written statement on oath is the evidence on which a party relies in Court to establish his case or his answers to opponents’ case as required by Order 32 Rule 2(1) of 3(1) of the Rule of the lower Court. It is equally unlike pleading which are written statements (and not evidence) generally of facts relied upon by a party in proof of his case. See: B.V. Magnusson V. Koiki & Ors (1993) LPELR – 181-1818 (SC). Order 3 Rule 2(1)(c) of the Rules of the lower Court prescribes that a written statement must be on oath and not an affidavit. See:Leo Melos Pharmaceutical Industries Ltd & Anor. V. Union Homes Savings and Loans Ltd (2010) (SCc) LPELR – 4431 (CA).” Per ELECHI, J.C.A. (Pp. 27-28, Paras. C-A
PROCEDURE FOR ADOPTING WITNESS’ STATEMENT ON OATH
1. The court is to ask a witness as soon as he steps into the witness box whether he is a Christian, or a Moslem, or whether he belongs to any other religious body. The witness must also be cautioned. Every witness giving oral evidence must be cautioned by the court, or the registrar upon the court’s direction.
2.If the witness belongs to any of the above, he is sworn in accordance with the provisions of the Oaths Act
3.Where a person declares to the court that his religion does not permit the taking of an oath, the court may allow such person to give evidence not on oath but affirmation provided the court thinks it just and expedient.
Also, a person who has no religious beliefs (e.g. a pagan) may be allowed to give evidence without taking oath.
4.Where evidence not given upon oath has been received, a record of this and reasons for such reception must be recorded in the minutes of the proceedings: section 208 Evidence Act 2011.
5. The witness is asked introductory questions like “what is your name”, “tell the court your occupation” “Where do you live?”, “do you know the claimant or defendant?” etc.
6. The witness is asked if he did file a witness statement on oath before this honourable court dated…….or did you make any written statement on oath with regards to this matter.
7. The witness is asked if he or she sees the witness statement on oath can he or she recognise or identify it? At this point the court registrar takes the witness statement on oath from counsel and shows it to the witness.
8. The witness then affirms that it is the written statement on oath made by him.
9. Counsel asks the witness how he can identify it. Witness responds by saying he or she appended their signature on it.
9. Counsel asks what the witness intends to do with it.
10. Witness expressly willingness to use it as his evidence in the case and counsel applies to the court to adopt the said witness statement on oath.
“My Lord, witness seeks to adopt this witness on oath as her examination in chief on this matter”.
N/B If there are any documents sought to be tendered. The counsel must tender it through the witness using his witness deposition on oath.