ALUKO v. THE CHAIRMAN OF EFCC
(2022)LCN/16199(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, March 04, 2022
CA/A/617/2020
Before Our Lordships:
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal
Mohammed Lawal Abubakar Justice of the Court of Appeal
Between
MR. KOLAWOLE AKANNI ALUKO APPELANT(S)
And
THE CHAIRMAN OF ECONOMIC FINANCIAL CRIMES COMMISSION (Re: In The Matter Of Real Properties Purchased By Mr. Kolawole A. Aluko) RESPONDENT(S)
RATIO
THE POSITION OF LAW ON SUPPORTING A MOTION WITH AN AFFIDAVIT
Now, Section 117 (4) of the Evidence Act, 2011 provides as follows:
“An Affidavit when sworn shall be signed by the deponent or if he cannot write or blind, mark by him personally with his mark, in the presence of the person whom it is taken”
Similarly, Order 26 Rule 3 of the Federal High Court (Civil Procedure) Rules 2019 provides as follows:
“The party moving a motion shall support the motion with an affidavit setting out the facts on which the party intends to rely and the motion shall be filed along with a written address. Affidavit to be served with motion and written address.” PER ABUBAKAR, J.C.A.
THE ESSENCE OF SIGNING A DOCUMENT ESPECIALLY AN AFFIDAVIT EVIDENCE
It is clear that the essence of signing a Document, and most especially an Affidavit Evidence is to certify, verify and authenticate the contents of the Documents, as representing the true state of facts contained in the Affidavit. The Deponent, by law, is to personally swear an oath that he believes the content to be true, even though in reality, it may not be the truth, and as such is attested to on the facts and not on law. Therefore, it is crucial that the Deponent urging the Court to believe that a certain State of fact he claims exist. Reference is made to BELGORE JSC in NATIONAL SUPPLY CO LTD VS ESTABLISHMENT OF SIMA VADUZ (1990) 12 SCNJ PAGES 35 AND 38 and UWAIFO JSC in ISHAYA BAMAIYI VS THE STATE & ORS (2001) 6 NSCQR, 156 AT 172. There was also the fact that an Affidavit Evidence is a documentary evidence which is prima pacie admissible in law, like oral evidence tendered in Court. The absence of a Counter-Affidavit oftentimes leads to the irresistible conclusion that being unchallenged and uncontradicted, must be believed and full weight and value given to such Averments. See AZEEZ VS THE STATE (1986) 2 NWLR (PART 23) AT 541. PER ABUBAKAR, J.C.A.
MOHAMMED LAWAL ABUBAKAR, J.C.A. (Delivering the Leading Judgment): This judgment is in respect an appeal against the decision of the Federal High Court, Abuja Division in Suit No. FHC/ABJ/CS/329/2016, delivered on the 14th day of January, 2020 per Hon. Justice O. E. Abang. The Appellant’s Motion on Notice dated and filed on the 9/11/2018 praying the lower Court to discharge the ex-parte Order of interim attachment/forfeiture of the properties belonging to the Appellant was struck out by the trial Court on the ground that the affidavit in support of the motion on notice was unsigned and consequently the application was incompetent.
Dissatisfied, the Appellant appealed to this Court on two (2) grounds of appeal contained on pages 460-463 of the record.
On the 7/12/2021, when this appeal came up for hearing, the Learned Counsel to the Appellant identified the Appellant’s brief of Argument filed on 14/9/2020 and deemed on 7/12/2021 where two (2) issues were raised for determination as follows:
1. Whether the lower Court was right in introducing the issue of lack of signature of the Appellant’s affidavit in support of his motion on notice filed on the 9/11/2018 suo motu without affording parties an opportunity to be heard on the issue and consequently whether the Appellant’s fundamental right to fair hearing has not been infringed?
(Distilled from ground 1).
2. Whether the lower Court was right in visiting the administrative lapses or omission of the Registrar of the lower Court on the Appellant? (Distilled from ground 2).
On his own part, the Learned Counsel to the Respondent also identified their brief of argument filed on 15/10/2021 and deemed on 7/12/2021 where two (2) issues for determination were also raised thus:
1. Whether the Court was right to give effect to the provision of the law without being raised by any party?
2. Whether the Appellant can use the Court to shield himself from submitting to investigation?
In response to the Respondent’s brief of argument, the Learned Counsel to the Appellant also filed a Reply brief on 17/2/2020 and deemed on 7/12/2021.
SUBMISSIONS OF COUNSELS
In his brief of argument, the Learned Counsel to the Appellant raised two issues for determination, thus:
1. ISSUE ONE:
“Whether the lower Court was right in introducing the issue of lack of signature of the Appellant’s affidavit in support of his motion on notice filed 9/1112018 suo motu without affording parties an opportunity to be heard on the issue and consequently, whether the Appellant’s fundamental right to fair hearing has not been infringed? (Distilled from ground 1)”.
2. ISSUE TWO;
“Whether the lower Court was right in visiting the administrative lapses or omission of the Registrar of the lower Court on the Appellant? (Distilled from ground 2)”.
On issue one, the Learned Counsel to the Appellant submit that the trial Court premised its entire decision on the issue of the lack of signature of the Appellant’s affidavit in support of his motion on notice filed on 9/11/2019 sworn to by one Anthony Etim. The Counsel referred to pages 445 and 449 of the Record where the trial Judge held that the application of the Appellant at the trial Court is not legally supported by an affidavit, as it is not signed by the deponent and consequently declared the said application as incompetent and struck it out.
The Counsel submit further that from the record, the parties never raised or canvassed the issue of lack of signature at the lower Court. It was introduced suo motu by the lower Court in its ruling without giving the Appellant an opportunity to respond or answer the allegation, thereby constituting a breach of the Appellant’s right to fair hearing as enshrined in Section 36 (1) of the Constitution. The Counsel cited the case of STATE VS. OLADIMEJI (2003) 14 NWLR (PT.839) 57 and the case of BERNARD LONGE VS FIRST BANK OF NIG PLC (2010) 6 NWLR PT. 1189 PG. 1 and submit further that the law is settled in determining dispute between parties, the Court should confine itself to issues raised by the parties. The Court is not competent to suo motu, make a case for either or both parties and then proceed to give judgment in the case so formulated contrary to the case of the parties before it. The Counsel urged this Court to resolve this issue one in their favour.
ON ISSUE TWO:
“Whether the lower Court was right in visiting the administrative lapses or omissions of the Registrar of the lower Court on the Appellant? (Distilled from ground 2).
The Learned Counsel to the Appellant submit that the lower Court entered the realms of speculation when it stated it is possible that the deponent did not appear before the commissioner for Oaths. He argued that Judges are not allowed to speculate on possible facts. He referred to page 446 of the record (lines 1—10) and the case of CHIEF I. A. ORJI VS UGOCHUKWU & ORS (2010) LPELR-9136 CA per Galadima, JCA.
In conclusion, the Learned Counsel urged this Court to allow the appeal because:
1. The Appellant was not given an opportunity to respond to the issue of lack of signature of the Affidavit in support of the Appellant’s motion filed on 9/11/2018 thereby violating his fundamental and constitutional right to fair hearing.
2. The lower Court had in its ruling laid the blame of the error on administration lapses or omissions of the commissioner for Oaths of the lower Court, it was wrong to then turn round and punish the Appellant for such lapses or omissions outside the Appellant’s control and responsibility.
The Learned Counsel urged this Court to set aside the ruling of the lower Court delivered on the 14/1/2020 and Order the Chief Judge of the Federal High Court to re-assign the case file to another Judge for hearing.
In reply, the Respondent Counsel also raised two (2) issues for determination:
1. Whether the Court was right to give effect to the provision of the law without being raised by any party?
2. Whether the Appellant can use the Court to shield himself from submitting to investigation.
On Issue No. 1: “Whether the Court was right to give effect to the provision of the law without being raised by any party?” The Learned Counsel to the 1st Respondent cited Sections 108, 109 and 117 (4) of the Evidence Act and submit that they all relates to content, use and forms of affidavit to be used in Court. He also referred to Order 26 Rule 3 of the Federal High Court (Civil Procedure) Rules, 2019 which provides as follows:
“The party moving a motion shall support the motion with an affidavit setting out the facts on which the party intends to rely and the motion shall be filed along with a written address. Affidavit to be served with motion and written address”
The Learned Counsel to the Respondent submit that it is settled law that an unsigned document is a worthless document and it will be absurd to expect any Court to rely on it in arriving at the determination of a suit. He cited the cases of OKOLO & ORS VS NWAFOR & ORS (2016) LPELR 41534 (CA), GOKE VS IBENYE & ANOR (2014) LPELR 22534 (CA), and the case of ADEGBOLA VS OSIYI & ORS (2017) LPELR 42471 (SC).
The Counsel submit that from the above-mentioned authorities, it is now settled that for an affidavit to be used in Court:
1. The deponent must present himself before the commissioner for Oath or any authorised in that capacity.
2. The deponent must sign or make his mark on the affidavit in the presence of commissioner for Oath or any one authorized in that capacity.
3. The person authorized to take the oath must apply his stamp, sign and put his name.
4. That Court has to be satisfied that this process was complied with before it can allow the affidavit to be used.
5. Where the affidavit is not signed, it means it was not sworn.
6. Any unsworn affidavit is not recognized in law, it has no weight, it is worthless, it cannot be a base for any claim and no Court can rely on it.
The Learned Counsel argued that the Appellant’s Counsel contended that the trial Court ought not to raise suo motu the fact that the affidavit was not signed. The Learned Counsel shouldn’t have raised the issue as it is absurd and surprising. The trial Court, under Order 26 Rule 3 of the Federal High Court (Civil Procedure) Rules, 2019 has the power to apply its own Rules. secondly, Section 122 (2) of the Evidence Act provides that the Court shall take judicial Notice of:
“All laws and enactments and subsidiary legislation made under them having the force of law now or previously in force in any part of Nigeria.”
He added that facts of which the Court must take judicial Notice need not be proved. He cited the case of KAPINE VS. STATE (2017) LPELR 42991 where this Court held that the law is quite trite that, Courts are actively empowered by Sections 74 (1) (a) and (b) of the Evidence Act to take Judicial notice of any legislation or case law that has direct bearing on the issue In controversy before them without the same being necessarily referred to or cited by any of the parties. What is more, Judges are presumed to be well grounded in law.
Based on the above-mentioned, the Learned Counsel urged this Court to dismiss this appeal as it lacks merit.
On the second issue raised, the Learned Counsel to the Respondent submit that the Appellant cannot use the instrumentality of the Court to shield himself from the arm of the law. By the application of the Appellant at the trial, he was trying to use the law through the Court to shield himself against criminal investigation and prosecution. He cited Section 7 (1) (a) of the EFCC ACT, 2004 where it is provided that the Commission (EFCC) has power to cause to be conducted as to whether any person, corporates body or organization has committed an offence under this act or other law relating to economic and financial crimes.
He argued that from their counter-affidavit at the trial Court, the person suspected to own the property which is sought to be released by appeal is being investigated for money laundering. He urged this Court to refuse this appeal and Order the Appellant to avail himself to the Respondent and answer to the allegations against him. He refers this Court to the case of FAWEHINMI VS IGP (2002) 7 NWLR (PT.767) 606, PETER VS. OKOYE & ANOR (2002) FWLR (PT. 110) 1864 where it was held that the Courts do not make Orders to restrain the performance of a statutory or Constitutional duty. The Counsel argued that the Order of the trial Court was made pending the conclusion of an investigation. The Appellant has not made himself available or arrested to answer to allegation of money laundering because he has been in hiding and investigation is still pending. The Counsel urged this Court to refuse this appeal and dismiss same for lack of merit and Order the Appellant to make himself available to answer to the allegations against him.
In his Appellant reply brief, the Learned Counsel to the Appellant attempted to reply the arguments put forward by the Respondent’s Counsel in his brief, as he made the following submission:
He submitted on Issue No. 1 (one) formulated by the Respondent, it does not capture the grouse as encapsulated in the Notice of Appeal and Appellant’s issue 1 (one) distilled therefrom.
The Respondent’s argument on Issue 1 (one) is that since the law provides that sworn affidavit, must be signed, the lower Court can raise the issue of an unsigned affidavit suo motu without giving to other side an opportunity of being heard as according to the Respondent the process Is worthless.
The Learned Appellant’s Counsel submits that the Respondent has misconceived or deliberately refused to answer the Appellant’s argument as contended in his brief of argument. The background facts leading to this appeal is that the Appellant’s Counsel litigation Clerk deposed to an affidavit in support of a motion before the Commissioner for Oath of the lower Court. The Affidavit was duly signed in several but the registry of the lower Court failed to transmit the duly signed sworn original affidavit to the file of the lower Court. So it is incorrect to aver that the affidavit was unsigned. He argued that it is wrong for the lower Court to strike out the said application without affording the parties an opportunity to address the Court on the issue. This clearly breached the fundamental rule of fair hearing as contained in Section 36 (1) of the Constitution. The Counsel submit that all the Sections of the Evidence Act on Affidavit and on Judicial Notice cited by the Respondent Counsel does not avail them.
The Learned Counsel to the Appellant further submit that the Respondent failed to respond to the Appellant’s issue No (2):
i.e. “Whether the lower Court was right in visiting the administrative lapses or omission of the Registrar of the lower Court on the Appellant? (Distilled from ground 2)”
The argument thereat remains unchallenged and uncontested. He cited the case of SHONA-JASON VS. OMEGA ACR (2006) 1 NWLR (PT, 960) 1 ABUBAKAR VS. INEC (2004) 1 NWLR (PT. 1854) 2017.”
The Learned Counsel argued that the Respondent cannot therefore contend that the affidavit is unsigned when they have accepted that the lower Court’s Registry failed to transmit the duly signed and sworn sets of affidavit to the file of the lower Court. He urged the Court to discountenance the Respondent’s argument for being inconsistent.
The Learned Counsel further submit that in failing to answer the Appellant’s issue 2, the Respondent decided to formulate a completely new issue, that is, “Whether the Appellant can use the Court to shield himself from submitting to investigation?” The Counsel submit further that it is trite law that issues in the Respondent’s brief of argument cannot go outside the complaint in the grounds of appeal filed by the Appellant except the Respondent cross-appeals or file Respondent’s Notice. He cited the case of CHINEDU NWANKWO & ANOR VS. F.R.N. (2003) 4 NWLR (PT 809) 1 and the case of EMESPO J. CONTINENTAL LTD. vs. CORONA SHIFA-RTSGESELLSCHAFT MBH & CO. (2006) SC. Where the Supreme Court held:
“A Respondent who has not cross-appealed must when formulating an issue for determination in his brief of argument distill it from the grounds of appeal framed by the Appellant” per MUKHTAR JSC.
The Learned Counsel referred to their Notice of Appeal at pages 460-463 of the Record and argued that a perusal of the Respondent’s issue 2 will reveal it is unrelated to the grounds of appeal and outside the Appellant’s complains in the ground of appeal. The Appellant’s issues are premised on the propriety or otherwise of the lower Court’s decision to decide the matter on a sole point without giving parties an opportunity to address the Court on the issue. The Counsel urged this Court to strike out the Respondent’s issue 2 as it affects the rules of brief writing. He cited the case of ABDULLAHI ILLIYASU VS ALHAJI SULE LAWAN SHUWAKI & ORS (2009) LPELR 4305.
Finally, the Counsel urged this Court to discountenance the Respondent’s argument on issue 1 as misconceived and strike out issue 2 and the argument predicated thereon. The Court should also allow the appeal and set aside the lower Court’s decision given suo motu without affording parties an opportunity to be heard on the issue. This is in breach of the Rule of natural justice and violation of fair hearing Rule as enshrined in Section 36 (1) of the Constitution.
RESOLUTION OF ISSUES
I have carefully considered the two grounds contained in the Notice of grounds filed by the Appellant, the issues formulated for determination of the present appeal by Counsel to both parties, the arguments canvassed thereon and the decision contained in the judgment of the lower Court.
The fact leading to this appeal is that the Respondent brought ex-parte originating summons before the lower Court on 7/6/2016, under the EFCC ACT, 2004, for an interim attachment/forfeiture of several properties said to belong to the Appellant. The grounds for the Application were that the properties are subject matter of an investigation on the Appellant and that there is need to preserve the status quo of the properties pending conclusion of investigation.
The Order of interim attachment/forfeiture was granted on 24/6/2016 in respect of the said properties. On 9/11/2018 the Appellant filed a motion on Notice before the same lower Court seeking to discharge the said Order of Interim attachment/forfeiture on the ground that due process was not followed in the grant of the Order thereby robbing the lower Court of jurisdiction. The motion was supported by a 6 paragraphs Affidavit and the Respondent also filed a 27 paragraph counter-affidavit. In a considered ruling delivered on 14/1/2020, the lower Court suo motu Introduced the issue of lack of signature of the affidavit and struck out the Appellant’s Application.
In resolving the appeal, two issues for determination are hereby raised as follows:
1. “Whether the Respondent was right in formulating completely new issue for determination outside the Notice and grounds of Appeal file by the Appellant without the Respondent’s cross-appeal or file Respondent’s notice.
2. Whether the lower Court was right in striking out the Appellant’s Application based on unsigned affidavit without giving parties an opportunity of being heard.”
ON ISSUE ONE: The Appellant’s Counsel in his reply brief submit that the Respondent’s Counsel in his brief decided to formulate a completely new issue i. e Whether the Appellant can use the Court to shield himself from submitting to investigation?
The Learned Counsel to the Appellant submit that it is settled law that issues in the Respondent’s brief of argument cannot go outside the complaint in the grounds of appeal filed by the Appellant except the Respondent cross-appeals or files a Respondent’s notice. He cited the case of CHINEDU NWANKWO AND ANOR VS F. R. N (2003) 4 NWLR (PT 809) 1, ADELEKAN VS ECU-LINE NV (2006) SC.
The Counsel also referred this Court to their notice of appeal which contains two (2) grounds of appeal at pages 460-463 of the Record and submit further that a perusal of the Respondent’s issue 2 will clearly reveal It Is unrelated to the grounds of appeal and totally outside the Appellant complaints in the grounds of appeal. There is no evidence in the record that the Respondent filed a cross-appeal or Respondent’s notice. He added that the Respondent should have adopted the issues formulated by the Appellant based on the grounds of appeal or at best recast them with a slant favourable to his point of view without departing from the complaint raised in the grounds of appeal. He urged this Court to strike out the Respondent’s issue 2 as it offends the Rule of brief writing. The Counsel cited the case of ABDULLAHI ILL-IYASU VS ALHAJI SULE LAWAN SHUWAKI & ORS (2009) LPELR-4305, CHIEF H. O OGBODU VS QUALITY FINANCE LTD (2003) 6 NWLR (PT. 811) 498.
Now, I have carefully considered the Notice of appeal at pages 460-463 of the Record I do not need to set them out in this judgment. The Supreme Court has held times without number that issues for determination must be tied to the grounds of appeal. See the case of UGBOJI VS STATE (2017) 72 NSCQR per AMIRU SANUSI, JSC AT PAGES 35,OBI VS. INEC & 6 ORS (2007) 7 SC 268 AT 359.
Based on the above-mentioned authorities, I agree with the submissions of the Learned Appellant’s Counsel that the Respondent’s Issue 2 did not emanate from the Appellant’s grounds of Appeal and the Respondent did not file a cross-appeal or Respondent’s notice. I hold that Issue 2 is incompetent and is hereby ignored. Consequently, this issue 1 is resolved in favour of the Appellant.
ISSUE TWO: The main complaint of the Appellant in this appeal is that the lower Court in Its ruling of 14/1/2020 struck out the Application of the Appellant based on lack of signature of the Appellant’s affidavit in support of his motion without affording parties an opportunity to be heard thereby breaching the Appellant’s right to fair hearing.
The Learned Counsel submit that the parties never raised or canvassed the Issue of lack of signature at the lower Court. It was Introduced suo motu by the lower Court. He cited Section 36 (1) of the Constitution and the case of STATE VS OLADIMEJI (2003) 14 NWLR (PT. 839) 57.
In reply, the 1st Respondent’s Counsel cited Sections 108, 109 and 117 (4) of the Evidence Act and submit that they all relate to content, use and forms of affidavit to be used in Court. He also cited Order 26 Rule 3 of the Federal High Court (Civil procedure) Rules, 2019 and urged the Court to dismiss this appeal. It is noted that the lower Court at pages 445- 446 of the record made the following findings:
“The application Is not legally supported by an affidavit in line with the provision of Order 26 Rule 3 of the Rules of this Court.
This is because the affidavit purportedly filed by the Applicant is not signed by the deponent, notwithstanding that the Commissioner for Oath signed his portion. Therefore, there Is no affidavit in support of the motion. Everything predicated on this motion collapses as the Applicant cannot put something on nothing and expect it to stand. Where a document purports to be an affidavit in support of the motion not signed by the deponent, it is a worthless document that has no evidential value.”
Now, Section 117 (4) of the Evidence Act, 2011 provides as follows:
“An Affidavit when sworn shall be signed by the deponent or if he cannot write or blind, mark by him personally with his mark, in the presence of the person whom it is taken”
Similarly, Order 26 Rule 3 of the Federal High Court (Civil Procedure) Rules 2019 provides as follows:
“The party moving a motion shall support the motion with an affidavit setting out the facts on which the party intends to rely and the motion shall be filed along with a written address. Affidavit to be served with motion and written address.”
Based on the above, I found that the findings of the lower Court cannot be faulted as the Judge was only giving effect to the Rules of the Court and the law. No sane Judge will allow an unsigned/unsworn Affidavit attached to an application to scale through his Court as it is incompetent and liable to be struck out. The argument of the Appellant’s Counsel that the fundamental right to fair hearing of the Appellant has been infringed cannot hold water as the lower Court is only performing its duty in accordance with the law. This issue 2 is resolved in favour of the Respondent.
On issue 2 raised by the Appellant’s Counsel relating to visiting the administrative lapses or omission of the Registrar of the lower Court on the Appellant, I found from the record particularly the ruling of the lower Court at pages 445-446 that there is no iota of truth in the allegation by the Appellant’s Counsel. The lower Court only expressed its unhappiness with the person who filed the incompetent process and the Commissioner for Oath who acted on it without noticing the unsigned affidavit at the point of filing.
The appeal is hereby dismissed as it lacks merit. Accordingly, I affirm the decision of the lower Court, the Federal High Court, Abuja in suit No. FHC/ABJ/CS/392/2016 delivered on 14th January, 2020, by Honourable Justice O. E. Abang.
The appeal fails and it is hereby dismissed and I hereby award the sum of N150,000 (One Hundred and Fifty Thousand Naira only) as costs against the Appellant in favour of the Respondent in the appeal.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege of reading in draft, the lead judgment of my learned brother, Mohammed Lawal Abubakar, JCA, and I am in agreement with the reasoning and conclusion reached therein.
The Court is not at every point expected in the name of fair hearing to take addresses from counsel before it applies the law or rules applicable in its consideration and determination of matters which have been properly heard and argued. Respectfully, I fail to see any breach or infraction/violation of the Appellant’s right to fair hearing herein.
I therefore also find the appeal lacking in merit and it is hereby dismissed. I affirm the decision of the Court below, the Federal High Court, Abuja in Suit No. FHC/ABJ/CS/392/2016 delivered on 14th January, 2020.
I make no order as to costs.
ADEBUKOLA ADEOTI IBIRONKE BANJOKO, J.C.A.: I have carefully read through the judgment delivered by my Learned Brother, HON. JUSTICE MOHAMMED LAWAL ABUBAKAR JCA and I agree that every Issue raised for determination must be tied to the Grounds of Appeal and to this end, Issue 2 which did not emanate from any Ground of Appeal was correctly discountenanced. See OLUMOLU VS ISLAMIC TRUST OF NIGERIA (1996) LPELR-2626 (SC); CONTROLLER GENERAL OF PRISONS & ORS VS ELEMA & ANOR (2021) LPELR-56219 (SC); FAJEBE & ANOR VS OPANUGA (2019) LPELR-46348 (SC).
As regards the Main Complaint in this appeal which has to do with the question of the Unsigned Affidavit, the case of MOHAMMED ALI VS THE STATE (2020) ELC 3457 SC AT PAGE 1 readily comes to mind. OLUKAYODE ARIWOOLA, JSC delivering the lead judgment, held that regarding an unsworn document that it does not have any efficacy in law and in Deed is a worthless piece of document.
It is clear that the essence of signing a Document, and most especially an Affidavit Evidence is to certify, verify and authenticate the contents of the Documents, as representing the true state of facts contained in the Affidavit. The Deponent, by law, is to personally swear an oath that he believes the content to be true, even though in reality, it may not be the truth, and as such is attested to on the facts and not on law. Therefore, it is crucial that the Deponent urging the Court to believe that a certain State of fact he claims exist. Reference is made to BELGORE JSC in NATIONAL SUPPLY CO LTD VS ESTABLISHMENT OF SIMA VADUZ (1990) 12 SCNJ PAGES 35 AND 38 and UWAIFO JSC in ISHAYA BAMAIYI VS THE STATE & ORS (2001) 6 NSCQR, 156 AT 172. There was also the fact that an Affidavit Evidence is a documentary evidence which is prima pacie admissible in law, like oral evidence tendered in Court. The absence of a Counter-Affidavit oftentimes leads to the irresistible conclusion that being unchallenged and uncontradicted, must be believed and full weight and value given to such Averments. See AZEEZ VS THE STATE (1986) 2 NWLR (PART 23) AT 541.
Therefore, the signature of the deponent is crucial. It was argued that the issue of administrative lapses of the Commissioner for Oaths in failing to detect the presence of the deponent’s signature and also the Court Registry who accepted the processes for filing ought not to have happened and the relevant gravamen would be whether mistake/inadvertence was fundamental as to render the process invalid? Clearly, this was also a factor.
Judges are empowered by the law and given the requisite discretion to detect and raise suo motu any aberration of the law and where it was a function of the law and not on facts. Any explanation would not change the fact that Affidavit was unsigned, and also would not change the law in regard to the Affidavit Evidence.
For these reasons, I abide by the decision of His Lordship to dismiss the appeal as lacking in merit. To this end, the decision of the lower Court, being the Federal High Court in suit No FHC/ABJ/CS/392/2016 delivered on the 14th of January 2020 by Hon. Justice O. E Abang is affirmed. I also abide by the Order made as to costs.
Appearances:
Mr. W. A. Jaiye Agoro with him Ms. I.A. Agala For Appellant(s)
Mr. Victor Ukagwu For Respondent(s)