THE LEGAL STATUS OF AN AFFIDAVIT VIS-À-VIS A WITNESS STATEMENT ON OATH: WHAT THE LAW HAS TO SAY AS TO WHEN THEY FORM PART OF EVIDENCE
To be clear, a basic foundation has to be laid with regard to what an affidavit and a witness statement on oath (hereinafter referred to as statement on oath) mean.
Stating with certainty, it is unfortunate that a community reading of sections 107 – 120 of the Evidence Act, 2011, does not avail us with any definition of the concept of an affidavit. In fact, the Evidence Act, in its entirety, does not provide a definition of what an affidavit means. The same applies to a statement on oath.
However, the law cannot be entirely silent as to what the two documents mean. Interestingly, the law did not indeed abandon us in the dark as regards what they really mean, as there are squillions of judicial authorities and legal sources that can quickly come to our aid.
What does the court define both documents under consideration to mean?
First up, the Court in NWUKE V. ONYIKE (2013) LPELR-CA/PH/80/2010, made reference to the definition of an affidavit in the Black’s Law Dictionary, thus: An affidavit is defined in BLACK’S LAW DICTIONARY 9TH EDITION as a voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths …” Per ADAH, J.C.A. (P. 39, paras. B-C)
In the recent case of TAR & ORS v. MINISTRY OF COMMERCE & INDUSTRIES & ORS (2018) LPELR-CA/MK/29/2013, the Court, while defining an affidavit, had this to say: ” … An affidavit is a statement of fact which the 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; …”
On the other end, a statement on oath is a sworn declaration of facts by a witness on oath. At this point, an atmosphere is created in which, if not careful, one may interpret a statement on oath to be the same as an affidavit in all branches, but it is not. Let me clear the cloud; the court has, in part, explained the nature of a statement on oath in the case of Idris v. A.N.P.P. (2008) 8 NWLR (Pt.1088) 1 at 97, paras. C-D; 153, paras. F-G (CA), thus: “A witness’s statement on oath is in the nature of pleadings … “
I sense a dark cloud covering the blue with respect to what could really stand as a distinction between an affidavit and a statement on oath. To send the dark cloud away, an affidavit can be differentiated from a statement on oath if we consider when they could be conferred the status of evidence in a proceeding; and that is the aim of this article.
In determining the distinction between the two documents under consideration, the court has a lot to say.
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 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 a piece of 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 a piece of 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.” Per NDUKWE-ANYANWU, J.C.A. (P. 9, Paras. C-G)
The court has also held in the novel case of TAR & ORS v. MINISTRY OF COMMERCE & INDUSTRIES & ORS (2018) LPELR-CA/MK/29/2013, that: ” … a witness’ Statement on oath is different from an affidavit. An affidavit is a statement of fact which the 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; and constitutes documentary evidence which the court can admit as the truth of the facts stated therein, in the absence of any evidence challenging the same. On the contrary, a witness’ Statement on oath is not evidence. It only becomes evidence after the witness adopts the statement in court. 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. The only way facts in a witness statement can be jettisoned, is by cross-examination.”
See also the cases of Union Bank v. Koleoso (2019) LPELR-CA/L/227/2008 and ALALADE & ORS v. ODODO & ORS (2019) LPELR-CA/L/286/2013.
We owe the court and allied legal sources great thanks. I still follow the court and maintain in one breath that an affidavit should be differentiated from a witness statement on oath, and nothing else. That is the law.
This article was written by Prince I. Ubochi, firstname.lastname@example.org, 07065434356; Intern at St. Sen Solicitors, Abakaliki.
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