PRECEDENT UNBOUND: SUBSTANTIAL OR STRICT COMPLIANCE WITH SECTION 13 OF THE OATHS ACT?
Trial and appellate courts have witnessed a barrage of objections and/or appeals premised on non-compliance with Section 13 of the Oaths Act, Cap. O1, Laws of the Federation of Nigeria, 2004 (“the Act”) and the form set out in the First Schedule to the Act. The usual suspects – affidavits, witness statements on oath and additional statements on oath have been at the receiving end of these unrelenting attacks by counsel. For context, Section 13 and the First Schedule to Act state as follows:
“It shall be lawful for any commissioner for oaths, notary public or any other person authorized by this Act to administer an oath, to take and receive the declaration of any person voluntarily making the same before him in the form set out in the First Schedule to this Act.”
“I ………………………………………… do solemnly and sincerely declare that (set out in numbered paragraphs if more than one matter) and I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Oaths Act.”
Recently, the Court of Appeal in Guaranty Trust Bank Plc v. Abiodun (2017) LPELR-42551 (CA) upheld the Appellant’s objection that statements on oath must comply strictly with the requirements of Section 13 of the Act. According to the Court, compliance is mandatory and failure to comply is not a mere irregularity that can be waived. In the above decision, the statements on oath of the Respondent’s sole witness were deposed to before the Commissioner for Oaths in the following manner: “That I swear to this affidavit in truth and in good faith.”
This commentary focuses on the appellate court’s reasoning and the subsequent treatment of this decision by lower courts or even the same Court of Appeal under the doctrine of precedent, otherwise known as stare decisis.
Briefly put, the crux of the Appellant’s objection hinged on the fact that Order 3 Rule 2 (1) (c) of the High Court of Ekiti (Civil Procedure) Rules, 2011 mandates a plaintiff to file written statement on oath of its witness(es) along with his/her originating process and not an affidavit. Although not established, it can be inferred that the underlying suit was initiated by a writ of summons hence the distinction by the Appellant. It is the author’s opinion that it is immaterial whether the document is named an affidavit or a witness statement on oath as the Court’s decision ultimately turned on the interpretation of Section 13 of the Act.
In arriving at its decision, the Court relied on its prevision decision in Chikwelu Chris Obunmneke v. Okeke Sylvester & Anor. (2010) All FWLR (Pt. 605) 1945 at 1947 and reasoned that a valid oath must be in the form prescribed by Section 13 of the Act and specifically, in the precise manner of the form in the First Schedule to the Act. The Court held that substantial compliance with the form in the First Schedule to the Act will not suffice with the implication being that the statements of the Respondent’s witness were bare assertions.
The corollary question that arise is whether the Court came to the right conclusion in allowing the appeal and setting aside the ruling of the trial court. Put differently, was the interpretation given to Section 13 in line with majority of the previous decisions on the same issue; and/or the mantra of the courts in shunning technicalities and doing substantial justice? With respect, it is the author’s opinion that the Court came to the wrong conclusion for the reasons that follow.
Firstly, the position of the law on compliance with the form of oath in the Act is fairly settled. It was restated in the case of Ekpentu v. Ofegobi (2012) 15 NWLR (Pt. 1323) 276 where the Court of Appeal (differently constituted) held that the form prescribed in the First Schedule to the Act is to serve as a guide as to form an acceptable oath within the provisions of the Act should take. The appellate court cautioned that the prescribed form is not to be rigidly followed word for word or letter by letter. What is required is to ensure that there is substantial compliance with the requirement of the Act.
Furthermore, in the case of Lonestar Drilling Limited v. Triveni Engineering & Industries Limited (1999) 7 NWLR (Pt. 588) 622, the Court of Appeal found that where there is substantial compliance with the provisions of the Act, an affidavit will not be declared incompetent merely because the exact words prescribed by the Act were not used. Specifically, Akintan J.C.A was emphatic when he stated:
“In as much as I believe that there is need to comply with the provision of the Oaths Act, I believe that failure to use the exact words prescribed by the Act will not necessarily render an affidavit invalid. Rather, I believe that in deciding whether an affidavit should be declared invalid, it is necessary to examine the words used with a view to determine if there was in fact a substantial compliance with the requirement of the Act. In the instant case, I think the deponent by concluding the deposition with the words: ‘I depose to this affidavit in good faith’, he did not meet the exact wording prescribed in the Act, I, however, believe that there is substantial compliance with the requirement of the Act. I therefore hold that the objection raised is not enough to warrant or justify a total rejection of the affidavit. I therefore overrule that objection.”
Similar statements of the law were made by the Court of Appeal in the cases of Ogwuegbu v. Agomuo (1999) 7 NWLR (Pt. 609) 144; Attorney-General of the Federation v. Bayawo (2000) 7 NWLR (Pt. 665) 351; Ojibara v. Governor, Kwara State (2005) 1 FWLR (Pt. 243) 39; Chukwuma v. Nwoye (2008) LPELR-CA/E/EPT/30/2008; APGA v. Dantong (2011) LPELR-CA/J/EP/SN/205/2011; and Commissioner of Police v. Agholor (2014) LPELR-CA/B/44c/2011.
Secondly, Section 4 (2) (b) and (c) of the Act provides that no irregularity in the form in which an oath or affirmation is administered or taken shall invalidate proceedings in any court or render inadmissible evidence in or in respect of which an irregularity took place in any proceedings. To further drive home the point, the Interpretation Act provides in Section 23 that where a form is prescribed by an enactment (such as the Act), a form which differs from the prescribed form shall not be invalid for the purpose of the enactment by reason only of the difference, if the difference is not in a material particular and is not calculated to mislead. The foregoing provision was used to save a counter-affidavit by the Court of Appeal in Abolade & Ors v. Messrs Chevron (Nig) Limited & Anor (2017) LPELR-43203 (CA).
Thirdly, assuming that the Respondent’s witness statements on oath did not comply with the First Schedule to Act as found by the Court, the subsequent oath made by the witness before the court (in the witness box) in accordance with Sections 205 and 206 of the Evidence Act, 2011 practically cures any defects in the written and filed statements on oath. This is supported by the decision in Udeagha v. Omegara (2010) 11 NWLR (Pt. 1204) at 195 where the Court of Appeal noted:
“Usually, a witness adopts the statement already filed as his own when being led during examination in chief. This is to cut short the time spent leading a witness. Let us assume that the statements of witnesses in this case were not sworn to before a person duly authorized to take oaths in contravention of s.90 of the Evidence Act, it is my humble view that their subsequent adoption of these written depositions after they had been sworn in open court to give oral evidence regularizes the deposition.”
The above statement makes sense as a statement on oath even though sworn to before a Commissioner for Oaths, a Notary Public or other persons authorized to administer oaths does not become evidence until it is adopted by the witness in court or before a tribunal, by which time a second oath will have been administered. This differs from an affidavit which becomes evidence from the moment it is sworn. This can be inferred from the decision in Majekodunmi & Ors v. Ogunseye (2017) LPELR-42547 (CA), where the Court of Appeal observed:
“It should be noted that, unlike an affidavit per se, a Written Statement on Oath filed in Court is not evidence, unless it has been duly adopted by the witness at the trial. In other words, a Written Statement on Oath will only be evidence to be used by the Court in the determination of the Plaintiff’s Claim, if it has been adopted by the person who deposed to it as his testimony during the trial.”
There is no gainsaying that if the Court had averted its mind to these decisions it will have arrived at a different conclusion.
With respect to subsequent treatment of the decision, a similar objection was raised before the Lagos State High Court in Suit No. LD/ADR/331/2013 – Emerging Markets Telecommunication Services Limited v. Olumide Olayomi & Anor (unreported) where the impugned witness statements on oath ended as follows: “I make this Statement on Oath in good faith, believing the contents to be true and in accordance with the Oaths Act, Cap O1, Laws of the Federation of Nigeria, 2004.”
The High Court refused to follow the decision in Guaranty Trust Bank Plc v. Abiodun (supra) preferring instead to be guided by the decisions in Majekodunmi & Ors v. Ogunseye (supra) and Kalu Igu Uduma v. Prince Ama Arunsi & 14 Ors (2010) LPELR-9133 (CA). This approach cannot be faulted in principle as the Court of Appeal in Adegoke Motors Limited v. Odesanya & Ors (1987) LPELR-20498 (CA) held that where there are two conflicting decisions of a higher court, the lower court is free to choose which of the decision to follow.
What is more, in Attorney-General, Akwa Ibom State & Anor v. Akadiaha & Ors (2019) LPELR-46845 (CA), the Court of Appeal, was faced with its decision in Guaranty Trust Bank Plc v. Abiodun (supra) in a similar objection filed by the appellant. The court refused to follow its decision preferring instead to follow its earlier decision in Lonestar Drilling Limited v. Triveni Engineering & Industries Limited and the provision of Section 4 (2) (b) and (c) of the Act. This is equally not surprising even though the court is bound by its previous decisions. The court can however depart from such previous decisions where they are in conflict, in which case, it must choose which decision to follow.
In conclusion, it is the author’s opinion that the decision in Guaranty Trust Bank Plc v. Abiodun (supra) stands alone and represents an unprogressive stance in the ongoing quest of the courts to do substantial rather than technical justice. It is debatable if lower courts or even the Court of Appeal will accord the decision positive treatment, particularly on the subject of this commentary.
Sixtus Iwuoha
