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CHILD-WITNESS UNDERSTANDING THE NATURE OF AN OATH

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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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NO DEFINITE DEFINITION OF A CHILD

As Willes, J., observed in Reg. v. Cockerton (1901) 1 KB 322 at pp.340/341, when dealing with the provisions of the Elementary Education Act, 1870 – “Except for the purposes of one Act, dealing with compulsory attendance, no definition has been given of a “child”. It is impossible to lay down any definite boundary as separating “children” from “young men” or “young women”, or any other description by which an advance beyond childhood may be indicated. Practically, I suppose that at somewhere between sixteen and seventeen at the highest an age has been arrived at which no one would ordinarily call childhood.”

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OFFICER WHO ADMINISTERED AN OATH MUST STATE HIS NAME

Section 83 of the Evidence Act prescribed that an affidavit shall not be admitted which is proved to have been sworn before a person on whose behalf the same is offered or before his legal practitioner or a clerk of the legal practitioner. The import of this provision is that affidavits cannot be sworn before certain persons. Therefore the person duly authorised as commissioner of oath that signed the deponents’ affidavit must state his name. The information on name is verifiable.

— R.O. Nwodo, JCA. Onujabe & Ors. v. Fatimah Idris (CA/A/71/M/2009, 28 June 2011)

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WITHOUT OATH THERE IS NO AFFIDAVIT

An affidavit in brief is a statement of facts or declaration made either on oath or affirmation before an authorised person. The averments in the affidavit are admissible as a fact until disproved because the averments are sworn before a commissioner for oaths. The life of an affidavit is the declaration on oath. What makes that piece of paper an affidavit competent to support the motion on notice is the attestation or swearing before the commissioner for oaths. Once the document is not sworn to, it is a mere piece of paper not an affidavit. Therefore without oath there is no affidavit. See Maraya Plastics Ltd. v. Inland Bank (Nig) Plc (2002) 7 NWLR (Pt.765) CA 109; Ijaodola v. Registered Trustees of C and SCM (2006) 4 NWLR (Pt. 969) 159; Udusesbe v. SPDC (Nig) Ltd. (2008) 9 NWLR (Pt.1093) CA 593.

— R.O. Nwodo, JCA. Onujabe & Ors. v. Fatimah Idris (CA/A/71/M/2009, 28 June 2011)

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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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A DEFECT REGARDS SWEARING OF OATH IS NOT A MERE IRREGULARITY

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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