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A DEFECT REGARDS SWEARING OF OATH IS NOT A MERE IRREGULARITY

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DR MUHAMMAD IBRAHIM ONUJABE & ORS V FATIMA IDRIS (2011) LPELR – 4059 (CA) as follows: “The Oaths act is a general statute that deals with oaths. The provision under Evidence Act on affidavit places a condition precedent which ought to be fulfilled to render the affidavit competent. One fundamental condition is the swearing on oath before the commissioner for oath. It is on this vein that the provision under the oaths Act becomes relevant. That is why a defect as regards the swearing on oath is not a mere irregularity as to form but defect as to substance.”

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DEPOSITIONS WILL BE REJECTED WHERE NO COMPLIANCE WITH THE EVIDENCE ACT

While some of the depositions accord with the provisions of section 86 of the Evidence Act, the above samples do not. I must say that there are quite a large number of such like depositions. I merely took the above as sample analysis. It is my view that the depositions which complied with section 86 of the Evidence Act cannot save the entire depositions, as they are drowned by those which violated section 87 of the Act. This is because a court of law is not competent to pick depositions in affidavit which are consistent with section 86 of the Evidence Act and ignore those which violate section 87 of the Act. The Court of Appeal was therefore right in rejecting the depositions. (See generally Nneji v Chukwu (1988) 3 NWLR (Part 81) 184; FMG v Sani (No. 2) (1989) 4 NWLR (Part 117) 624; Abu v Alele-Williams (1992) 5 NWLR (Part 241) 340; Nigerian LNG Limited v African Development Insurance Co Limited (1995) 8 NWLR (Part 416) 677; Eze v Okolonji (1997) 7 NWLR (Part 513) 515; Finunion Ltd v MV Briz (1997) 10 NWLR (Part 523) 95).

— Niki Tobi, JSC. Buhari v. INEC (2008) – SC 51/2008

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CHILD-WITNESS UNDERSTANDING THE NATURE OF AN OATH

A child is a young person in the formative period of life and whilst it is easy to see that a person of the age of 6 or 7 years does not understand the nature of an oath, it is impossible to be categorical on the capability or otherwise of a child of the age of 13 years or more to understand the nature of an oath. A great deal depends on the opinion of the judge who sees and hears the witness. Where the child is incapable of understanding the nature of an oath, the procedure in Section 182(1) must be followed so as to justify the necessary departure from the provisions of Section 179. On the other hand, where the child is capable of understanding the nature of an oath, he must comply with Section 179 as is the case in the present proceedings.

– Coker JSC. Okoye v. State (1972)

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RECORDED NOTE ON A CHILD-WITNESS CAPABLE OF UNDERSTANDING AN OATH

We think it appropriate to observe however that where a judge thinks that the case of a child-witness should be taken away from the provisions of Section 182(1), there should be recorded a note to that effect stating that in his opinion the child is capable of understanding the nature of an oath.

– Coker JSC. Okoye v. State (1972)

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OATH OF ALLEGIANCE IS SUPERFLUOUS IN DETERMINING TENURE OF OFFICE

Marwa v. Nyako (supra) where this court held per Onnoghen, JSC and said:- “It is therefore clear and I hereby hold that the second oath of Allegiance though necessary to enable them continue to function in that office, were clearly superfluous in the determination of the four years tenure under section 180(2) of the 1999 Constitution.” In the said same authority at page 82 of the report, this court also said:- “It is very clear from the relevant provisions that no person elected under the 1999 Constitution can remain in that office a day longer than as provided otherwise the intention of the framers of the Constitution would be defeated. If the interpretation favoured by the Respondents is adopted and the four years tenure is to be calculated from the second oaths taken in 2008 while in fact and law the 1st Respondent took oaths of allegiance and of office on 29th May, 2007, and remained and functioned in office as Governors of their various states would their period of office not exceed the Constitutionally provided tenure of four years The answer is clearly in the positive…”

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TAKING A SUBSEQUENT OATH DOES NOT AMEND DEFECTS IN EARLIER DEPOSITION

The third argument is the one on “healing any defect in the swearing of the depositions. . .”. This is quite a new one to me. I know of no such adjectival law. Taking the argument further, it means that once a deponent takes oath, it automatically wipes out all the defects provided for in the Evidence Act, particularly in section 83. Although learned Senior Advocate did not specifically mention section 83, I know that is where he is going. Unfortunately, learned Senior Advocate did not cite the law which will perform the automatic medication like iodine to a wound or panadol to headache. There is no such balm to lessen the “pain” in section 83 not to talk of complete healing. Learned Senior Advocate submitted that section 83 anticipates what he called the “later affidavit” and not a procedural deposition which is normally re-sworn at the adoption”. Unfortunately for the appellant, section 83 does not draw any such cleavage or dichotomy. What does learned Senior Advocate mean by the expression “procedural deposition”? Does this infer that there is substantive deposition? Depositions are all matters of procedure as they are adjectival in nature and content. I should finally make the point that learned Senior Advocate did not refer to any authority, either by way of statute or case law to back up or justify his submission. I am not surprised because I do not know any. The submission has not the support either of section 83 of the Evidence Act or paragraph 1(1)(b) of the Practice Directions which provide for written statements on oath of witnesses. Accordingly, question (a) fails.

— Niki Tobi, JSC. Buhari v. INEC (2008) – SC 51/2008