The basis for the practice (that a
deponent must appear before the Commissioner for oaths to complete the
process of an affidavit) seems to lie in practice directions issued to
registrars and court officers. One of such practice directions was
issued to the High Court registrars of Lagos State following a
publication in an edition of The PUNCH in March 2003, which
bemoaned the obnoxious practice of affidavits being prepared along the
roads and being sworn by proxy all over Lagos State. The insistence on
that practice at the Federal High Court must have stemmed from such
practice directions.
I do not have a problem with such
practice directions. However, I would recommend that their strict
application must be relaxed in circumstances where such deponents are
litigants resident outside Nigeria or for justifiable reasons cannot
appear before the Commissioner for oaths. There are other options
recognized under our Evidence Act and Oaths Act for taking an affidavit
sought to be used by a litigant outside Nigeria in our courts. Section
109 of the Evidence Act, 2011 provides that, “Any affidavit sworn before
any judge, officer or other person duly authorised to take affidavits
in Nigeria may be used in the court in all cases where affidavits are
admissible”. Section 110 further provides that, “Any affidavit sworn in
any country other than Nigeria before – (a) a judge or magistrate, being
authenticated by the official seal of the court to which it is
attached, or by a notary public; or (b) the duly authorised officer in
the Nigerian Embassy, High Commissioner or consulate in that country,
may be used in the court in all cases where affidavits are admissible.”
The Oaths Act, Cap 01, Volume 12, Laws of the Federation of Nigeria,
2004 in very elaborate provision of Section 11 also echoes these
options. Section 11 of the Oaths Act provides that, “(1) Any oath or
affidavit required for any court or for any other purposes of
registration of an instrument may be taken or made in any place out of
Nigeria before any person having to administer an oath in that place.
(2) The provisions of subsection (1) of this section shall apply to any
declaration, or affirmation in lieu of oath or affidavit so taken or
made. (3) in the case of a person having such authority by the law of a
country other Nigeria, judicial and official notice shall be taken of
his seal or signature affixed, impressed or subscribed to or on any such
oath, declaration or affirmation.”
The world, for more than a decade now,
has become a global village. Sections 109 – 110 of the Evidence Act and
section 11 of the Oaths Act have embraced the phenomenon but our
internal court practice particularly our oaths taking process is still
far from that reality. I understand the ‘mischief’ the current practice
seeks to prevent; it is wrong and an abuse of accepted practice for the
deponent to sign an affidavit elsewhere and bring it before the
Commissioner for oaths for swearing or affirmation. It is worse for him
to do so and send someone else to go to court and swear to an affidavit.
The correct procedure is that the deponent should appear personally
before the authorised persons before proceeding to sign or thumbprint
the deponent’s column. It is after this that the authorised person will
verify his signature by signing and stamping the affidavit. The correct
procedure can still be achieved outside Nigeria without the need for the
deponent to appear before the commissioner of oaths in the Nigerian
Court. A litigant outside Nigeria should be able to instruct a lawyer
in Nigeria to commence a civil action without the need for him or any of
his witnesses to appear before a commissioner of oaths in the intended
Nigerian court to sign an affidavit or a witness deposition for his
action to be accepted for filing by the registry of the court. He can
depose to the affidavit before a commissioner of oaths, a judge or
magistrate of a court in his country and send the original to his lawyer
for filing in our court. He can also do so before a Notary Public in
his country. In the case of Ayiwoh v. Akorede 20 NLR 4, a Notary Public
is deemed to have credit worldwide. The Chief Judge of the Federal High
Court , the Chief Judges of the High Courts of all the states in
Nigeria and that of the Federal Capital territory, the President of the
Court of Appeal and the Chief Justice of Nigeria must therefore, as a
matter of urgency, issue further practice directions to enable their
court officers accept affidavit sworn abroad in matters in our courts
where the deponent of such affidavits is abroad and it is unjustifiable
to appear to depose to such affidavits in Nigeria or where it is even
unjustifiable to come to Nigeria to give evidence in support of an
action e.g. where the contract or transaction are largely documentary.
The Nigerian Bar Association must also ‘force the spring’ of this reform
to forestall situations where big tickets international litigation are
taken elsewhere for adjudication even in clear cases where Nigerian
courts can conveniently exercise jurisdiction.
• Concluded
Bello is a Lagos-based lawyer
No comments:
Post a Comment