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MORE OFTEN THAN NOT THE STATEMENT OF OATH IS A REPLICA OF THE PLEADINGS; THE COURT RELIES ON THE QUALITY OF THE EVIDENCE

Dictum

It must be borne in mind, and very crucially too, that in trials under new regime of front loaded evidence, more often than not the statement on oath of a witness is the replica of the pleadings of the party on whose behalf the evidence is given. The written deposition of a witness is thus adopted as his evidence in chief, while his cross examination is the test of his veracity and the Court would only act on such evidence if it is found to be cogent, credible and reliable upon proper evaluation. Thus, the fact that a witness had deposed to any of all the facts as pleaded alone would not suffice because the Court still has the duty to assess the quality of his evidence. See Gundiri v. Nyako (2014) 2 NWLR (Pt. 1391) 201. See also Saeed v. Yakowa (2013) 17 NWLR (Pt. 1352) 124; Tuah v. Michael (2010) 10 NWLR (Pt. 1203) 519, Aregbesola v. Oyinlola (2010) LPELR 3805 (SC).

— B.A. Georgewill JCA. Stanbic IBTC Bank Plc V. Longterm Global Capital Limited & Ors. (CA/L/427/2016, 9 Mar 2018)

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DISTINCTION BETWEEN WITNESS STATEMENT ON OATH & AFFIDAVIT

In Okpa v. Irek & Anor. [2012] LPELR-8033 (CA) held thus: This court has consistently held that a witness statement on oath is different from affidavit evidence. An affidavit is a statement of fact which the maker or deponent swears to be true to the best of his knowledge. It is a court Process in writing deposing to facts within the knowledge of the deponent. It is documentary evidence which the court can admit in the absence of any unchallenged evidence. Akpokeniovo v. Agas [2004] 10 NWLR (Pt. 881) 394. On the contrary a witness statement is not evidence. It only becomes evidence after the witness is sworn in court and adopts his witness statement. At this stage at best it becomes evidence in chief. It is thereafter subjected to cross examination after which it becomes evidence to be used by the Court. If the opponent fails to cross examine the witness, it is taken as the true situation of facts contained therein.

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DIFFERENCE BETWEEN AN AFFIDAVIT & A STATEMENT ON OATH

✓ In OKPA v. IREK & ANOR (2012) LPELR-CA/C/NAEA/289/2011, the Court laid a strong brick we can safely stand on: ”… that a witness statement on oath is different from an affidavit evidence. An affidavit is a statement of fact which the maker or deponent swears to be true to the best of his knowledge. It is a court process in writing deposing to facts within the knowledge of the deponent. It is documentary evidence which the court can admit in the absence of any unchallenged evidence. Akpokeniovo vs. Agas (2004) 10 NWLR pt 881 page 394. On the contrary a witness statement is not evidence. It only becomes evidence after the witness is sworn in court and adopts his witness statement. At this stage at best it becomes evidence in chief. It is thereafter subjected to cross examination after which it becomes evidence to be used by the Court. If the opponent fails to cross examine the witness, it is taken as the true situation of facts contained there in.” Per NDUKWE-ANYANWU, J.C.A. (P. 9, Paras. C-G)

✓ SAMUEL LAMBERT & ANOR vs CHIEF A.S.B.C.OKUJAGU (2015) ALL FWLR (PART 808) Pp 665 – 666 paras E-A thus: “ … it is therefore very certain that even the rules of court admit that affidavit and statement of witness on oath are distinct and different from the other. The form of an affidavit under the Evidence Act is well specified by law. See section 117 and 118 of the Evidence Act 2011. There is no law that specified that all sworn documents or Oaths must comply with the provisions of the Evidence Act as relates to affidavit. It is therefore not a valid argument to say that sworn deposition or statement of witness under the civil procedure rules must accord with the form of an affidavit … ”

“There is no law that specified that all sworn documents or oaths must comply with the provisions of the Evidence Act as relates to affidavits. It is therefore not a valid argument to say that sworn deposition or statement of witnesses under the civil procedure rules must accord with the form of an affidavit”

“… the innovation of filing written statements on oath of witnesses to be called in a civil case is a very good proactive and progressive innovation of our learned drafts-men. The import is not to clone an affidavit or set up parallel affidavits evidence. The import is to reduce the time expended in taking notes from witnesses in court and by extension, reduce the stress of the trial judges whose lot it is within our jurisdiction and adjudicatory clime to record in long hand viva voce evidence of witnesses. The rules of the High Court do not intend to encrust the written statement on oath with the formal garb of an affidavit as tailored by Section 107 to 120 of the Evidence Act 2011. We must therefore be watchful not to upload written statements on oath simply devised by the civil procedure rules with the burden required to be borne by an affidavit under the Evidence Act.”

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HOW TO DETERMINE IF AN AFFIDAVIT CONTAINS ARGUMENT OR CONCLUSIONS

Bamaiyi V. State (2001) 8 NWLR (Pt 715) 270 at 289 that “The test – – is to examine each of the paragraphs deposed to in the Affidavit to ascertain whether it is fit only as a submission, which counsel ought to urge upon the Court. If it is, then it is likely to be either an objection or legal argument, which ought to be pressed in oral argument; or it may be conclusion upon an issue, which ought to be left to the discretion of the Court either to make a finding or to reach a decision upon through its process of reasoning. But if it is in the form of evidence, which a witness may be entitled to place before the Court in his testimony on oath and is legally receivable to prove or disprove some fact in dispute, then it qualifies as a statement of facts and circumstances, which may be deposed to in an Affidavit. It, therefore, means that prayers, objections and legal arguments are matters that may be pressed by counsel in Court and are not fit for a witness either in oral testimony or in affidavit evidence; while conclusions should not be drawn by witnesses but left for the Court to reach.”

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WHERE WITNESS DEPOSITION IS SIGNED IN A LAWYER’S OFFICE

Under cross-examination, DW3 admitted that he signed his deposition in the chambers of his counsel. However, there is no evidence before me that DW3 did not present himself before the Commissioner for Oaths to be sworn. The name and signature of the Commissioner for Oaths is on the deposition together with the date it was sworn. There is therefore a presumption of regularity in the statement on oath by virtue of Section 168 of the Evidence Act 2011. See Auta v Olaniyi [2004] 4 NWLR (Pt 863) 394.

— O.A. Obaseki-Osaghea, J. Akinsete v Westerngeco (2014) – NICN/LA/516/2012

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USING LETTERS TO REPRESENT DEPONENTS NAME IN STATEMENT ON OATH IS NOT PROHIBITED, INTER ALIA

Now, the use of letters to represent witnesses to be called in their written statements on oath is intended not only for their safety but also to avoid possible compromise of witnesses in highly sensitive and often sensationalized trials, more especially Election Petitions. The instant case is not an Election Petition but is not a far cry from one being a Pre – Election matter in which, just like in Election Petition, the safety of witnesses due to the volatility of our political environment remains the same. Thus, safety of both the parties and their witnesses is and must be given utmost priority. So, did the 1st Respondent suffer or complain upon being served with the frontloaded written statements of these witnesses of any miscarriage of justice by reason of the non – disclosure of the name and identity of DW3 and did he take any step prior to this witness appearance in the Court below and in the witness stand to set it aside for any irregularity? No, he didn’t.

– B.A. Georgewill, JCA. Ganiyu v. Oshoakpemhe & Ors. (2021) – CA/B/12A/2021

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COURT RESTRICT ITSELF TO THE ENGLISH VERSION OF THE STATEMENT ON OATH

On the 12 th day of July, 2023 when PW19 (Sani Al-Hassan Inuwa) testified before this Honourable Tribunal, Learned Counsel to the Respondents raised objection regarding the discrepancies and manifest inconsistencies between the two versions of the written statements on oath of this witness, in that the content of the English version of the evidence of this witness, is distinct from the Hausa version. We have read through the written statements on oath of this witness and we agree with the Respondents that the Hausa version of the evidence of this witness is totally different from the English version. This Honourable Tribunal shall therefore restrict herself to the English version of the written statement on oath of PW19. Having determined the objections to the admissibility of documents, this Tribunal shall proceed to determine the merits of this petition.

— A. Osadebay, J. APC v INEC & Ors. (EPT/KN/GOV/01/2023, 20th Day of September, 2023)

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