The effect of an affidavit or witness statement on oath without the swearing clause in Nigeria.

The swearing clause is a fundamental requirement of every affidavit or witness statement on oath. There have been instances where processes are filed without counsel inserting the oath clause. Is this omission a mere irregularity or fatal to the case?
The oath Act 2004 provides that all Oaths must be in accordance with the oath Act.
S.1 of the Oaths Act provides that the oath to be taken as occasion shall demand shall be the Oaths set out in the first schedule to this Act.
Statutory declaration is provided for in the schedule to the Oaths Act. In practice, there is no format for the swearing clause but it must comply with the Oaths Act and encapsulate a form of swearing.

 

 

In GE INTERNATIONAL OPERATIONS (NIG) LTD v Q OIL AND GAS SERVICES LIMITED (SC.207/2014)[2016] NGSC 31 (18 March 2016) the supreme Court stated that
“On no account should a litigant be made to suffer for the mistake of the Registry as is apparent in this appeal.
See AKPAJI v. UDEMGBU(2009) 6 NWLR (Pt 11} 38 at 545.” PER N.S. NGWUTA,J.S.C.
There are instances where the mistake emanates from counsel during the drafting of the processes and the oath/swearing clause is ommitted unwarily.
In this instance a litigant is made to suffer for the mistake of the lawyer.
However the law has a way of protecting litigants from unscrupulous and incautious lawyers as they now have the option of withdrawing the services of their lawyers or sue the lawyer for professional negligence.

 

What does the oath Act 2004 say about any defect or irregularity with respect to conforming with the Oath Act?
Section 4 (2) and Section 4 (3) of the Oaths Act 2004 provides that

4(2) No irregularity in the form in which an oath or affirmation is administered or taken shall; (a) Invalidate the performance of official duties; or (b) Invalidate proceedings in any Court; or (c) Render inadmissible evidence in or in respect of which an irregularity took place in any proceedings.
(3)The failure to take an Oath or make an affirmation and any irregularity as to the form of an oath or affirmation shall in no case be construed to affect the liability of a witness to state the truth.

From the above provision it is evident that the Oath Act treats any defect or omission as an irregularity. Whether or not the court thinks otherwise is what we shall examine in the article. Whether or not the court places same Opinon on both affidavit and witness statement on oath.

ADMINISTRATION OF OATHS: WITNESS STATEMENT ON OATH.

It was stated in the court of Appeal case of GTB PLC v. ABIODUN CITATION: (2017) LPELR-42551(CA)
The effect where a written statement on oath lacks the words of swearing or is shown not to have been sworn before a Commissioner for Oaths “The above depositions in the alleged written statement are not in full compliance with the provisions of the oaths Act as to qualify as written statement on oath prescribed by Order 3 Rule 2(1)(c) of the Rules of the lower Court. The said Order 3 Rule 2(1)(c) of the Rules of Ekiti State High Court Rules mandatorily directs a claimant to file “written Statement on oath of the witnesses” among other documents along with his originating process. The word ‘SHALL’ as embodied in the said Order has been interpreted in many judicial authentic to mean ‘compulsion’ See: Onochie V. Odogwu (2006)6 NWLR (pt 975) 65 (SC).
It therefore follows that a valid oath must be in the form prescribed by Section 13 of the Oaths Act, Laws of the Federation of Nigeria 2004. The form prescribed by Section 13 is in the 1st Schedule to the Act which provide as follows: “I do solemnly and sincerely declare………” Any Written statement, therefore, which does not bear the First Schedule to Section 13 of the Oaths Act, can not be said to be a Written Statement on Oath.

See OBED ORLANDO IBE & ANOR. V. NKIRU UGOCHUKWU & 41 ORS. (2010) All NWLR (Pt. 504) 1590 @ 1592/1593. Section 13 of the Oaths Act provide as follows: “It shall be lawful for any Commissioner for Oaths, Notary Public or any other person authorised by the Act to administer oaths, to take and receive the declaration of any person voluntarily making the same before him in the form set out in the 1st Schedule which is as follows, I (name supplied) do solemnly and sincerely declare, that I make this solemn declaration contentiously believing same (or the contents) to be true”. In putting the legitimacy of oath in any Written Statement to rest, the Enugu Division of the Court of Appeal said in Chikwelu Chris Obumneke v. Okeke Sylvester & Anor. (2010) All FWLR (Pt. 605) 1945 @ 1947 as follows: “Thus, every oath to be legitimate must comply with the provisions of the Oaths Act, Cap. 333, Laws of the Federation and the 1st Schedule thereto. Where there is no statement in an oath stating that it is made solemnly, conscientiously believing the contents to be true and correct and by virtue of the Oaths Act, it is not an oath or Affidavit properly so called.” Per ELECHI, J.C.A. (Pp. 29-31, Paras. D-D)

The court of Appeal stated in the case above that any witness statement on oath or Affidavit where the swearing clause is absent cannot be regarded as an oath or Affidavit properly so called. There are conflicting court of Appeal positions on this particular issue as enumerated in recent court of Appeal decisions of the same year.
If the court treats it as fatal it means that where this swearing clause is lacking, counsel on the other side can bring a motion to strike out the suit based on this irregularity. Many have argued that it is not fair as a litigant cannot be made to suffer for the mistake of counsel.

The court further stated GTB PLC v. ABIODUN CITATION: (2017) LPELR-42551(CA)
“Position of the law as regards noncompliance with the Oaths Act “As stated earlier in the course of this judgment, any written statement which does not bear the 1st schedule to Section 13 of the Oath Act, can not be said to be a written statement on oath. It is this vital aspect of the oath that is missing in the written statement of the Respondent’s sole witness in the present appeal. Non compliance with the provisions of the Oaths Act is a breach of the Oath Act. The consequence is that the entire statement of the Respondent sole witness is left bare. The Rules of Court are not made for fun, they are made to be obeyed. See: Hard v. Hact (1990) 1 NWLR (pt 126) 276, Tom Ikimi v. Godwin Omamnli (1995) 3 NWLR (pt 383), Ibrahim v. Col Cletus Emein & Ors (1996) 2 NWLR (pt 430) 322, Tehat A.O. Sule v. Nigeria Cocoa Board (1985) All NLR 257, Odu v. Jolaoso (2002) 37 WRN 115.” Per ELECHI, J.C.A. (P. 32, Paras. B-F) .”

ON AFFIDAVIT

in NNB PLC vs IBWA ENT. LTD (1998) 6 NWLR (pt 554) 446 @ 455, where it was held that: “Where an affidavit fails to comply with the 1st Schedule to the Oath Act, the affidavit is incompetent. Consequently, the motion papers to which such an affidavit are attached in a case has no valid supporting affidavit and becomes incompetent”.

 

However the court in the more recent case of Uduma vs Arunsi (2012) 7 NWLR (pt 1298) 55 @ 97 – 98, revisited the authorities on the subject including the case of NNB PLC vs IBWA Ent. (supra), the interpretation given by the Supreme Court to the provisions of Section 4(2) and (3) of the Oaths Act in the case of Anatogu vs Iweka II (1995) 8 NWLR (pt 415) 457, and Solola vs The State (2005) 11 NWLR (pt 937) 460, and conclusively arrived at the decision that:“The Court or Judge in Chambers may receive any affidavit sworn to for the purpose of being used in any cause or matter notwithstanding any defect by misdescription of parties or otherwise in the title or jurat or any other irregularity in the form thereof, and may direct a memorandum to be made on the document that it has been so received”.

 

UGO, JCA poignantly resolved in the case of Aduloju vs Adejugbe & 1 or, (unreported) in Appeal No. CA/EK/65/2014, delivered on the 4th day of November, 2015, “I do not also think that non-compliance of the appellant’s witness statement with the form lof the 1st Schedule of the Oaths Act is such a fundamental vice that renders it completely defective. I think the provisions of Section 4 (2) and (3) of the Oaths Act are clear on it, to the effect that no irregularity in the form of an oath shall invalidate proceedings in any Court or render inadmissible evidence in or in respect of which an irregularity took place in the proceedings”

 

A critical examination of the case of DASOFUNJO v. AJIBOYE CITATION: (2017) LPELR-42354(CA) where learned justice adumbrated thus;
“I totally agree with their lordships. I fail to agree with the learned counsel for the respondent, and thereby the lower Court, that the failure of the deponent in the affidavit in support of the notice of intention to defend to strictly conform with the format in the Schedule to the Oaths Act, rendered the entire affidavit, and by implication the notice of intention to defend incompetent. My humble view is that affidavit having substantially conformed to the requirements of the Oaths Act, and having been duly sworn to before a recognized Commissioner of Oaths, the trial Court misconceived and misapplied the law, when it discountenanced the said notice of intention to defend, and thus occasioned grave injustice. Courts must seriously be admonished, and must fall in line with the fact that the hay days of technicalities are indeed over, that fundamental justice means deciding a case on the merits. Per Barka JCA”.
This decision seems to be in conflict with court of Appeal decision in GTB PLC v. ABIODUN CITATION: (2017) LPELR-42551(CA)

 

Can this defect be cured relying on the rules of court? and what does the rule say about effect of non compliance?

ORDER 5 RULE 1 OF THE HIGH COURT CIVIL PROCEDURE RULES provides that
(1)Where at any stage in the course of or in connection with any proceedings there has by reason of anything done or left undone been a failure to comply with the requirements as to time, place, manner, or form, the failure shall be treated as an irregularity and may not nullify such step taken in the proceedings. The Judge may give any direction as he thinks fit to regularise such steps.

So the question is, can this be treated as an irregularity and the court giving directions to regularise it or can the court strike out the application at the instance of the other counsel for the processes expecially the witness statement on oath’s failure to comply with the oath Act 2004.

From the cases above it is clear that the court does not have a clear stance on the issue of oath and swearing clause. The laws tend to change with judicial decisions. While supreme Court decision on the issue has been clearly stated, there appears to be conflicting court of Appeal decisions on the issue.
However the court has the final decision to decide when this issue arises, whether to treat it as fatal or a mere irregularity/defect which can be cured. The court may still treat it as a mere irregularity and may decide to overlook and do substantial justice rather than focusing or technicalities. In conclusion failure to insert the swearing clause does not invalidate the process by virtue of the S. 4 (2) and (3) of the Oath Act 2004 and the cases of DASOFUNJO v. AJIBOYE CITATION: (2017) LPELR-42354(CA).

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