THE HON. ATTORNEY GENERAL AND COMMISSIONER OF JUSTICE, AKWA IBOM STATE & ANOR v. MR. FRIDAY MATHEW AKADIAHA & ORS
(2019)LCN/12839(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of March, 2019
CA/C/387/2018
RATIO
COURT AND PROCEDURE: WHETHER THE DEPONENT CAN USE THE EXACT SAME WORD IN OATH
“In OJIBARA & ORS V GOVERNOR OF KWARA STATE & ANOR (2004) LPELR 13002); it was held that the law does not require a deponent to use the exact words in the oaths Act, as anything used in substantial compliance with the requirements of that Act will be enough in this era of substantial justice. Also in OGWUEGBU V AGOMUO (1999) 1 NWLR (pt 609) 144. at 168 Akintan; JCA in the leading ruling stated as follows:- I believe that the form prescribed in the 1st schedule is expected to serve as a guide as to form an acceptable oath within the provisions of the oaths Act should take. The form prescribed in my view is not expected to be rigidly followed word for word or letter by letter. I also believe that what is required therefore is to ensure that there is substantial compliance with the requirement of the Act.” PER MUHAMMED LAWAL SHUAIBU, J.C.A.
JUSTICES:
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
1. THE HON. ATTORNEY GENERAL COMMISSIONER OF JUSTICE AKWA IBOM STATE
2. HON. COMMISSIONER FOR LOCAL GOVERNMENT/CHIEFTAINCY AFFAIRS, AKWA IBOM STATE – Appellant(s)
AND
1. MR. FRIDAY MATHEW AKADIAHA
2. EKET LOCAL GOVERNMENT TRADITIONAL COUNCIL
3. DR. OKON UDO UMOETUK
4. CHIEF FELIX TITUS AKPE
5. CHIEF AKPAN JIMMY ISUKETTE
6. CHIEF UKO ISUKETTE
7. APOSTLE ABASI ADIAKOT – Respondent(s)
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment):
This appeal is against the ruling of the High Court of Akwa Ibom State sitting at Eket presided over by Hon. Justice Eno Isangedighi in suit No. HEK/21/2016 delivered on 19/6/2018 overruling the appellants preliminary objection.
By the Writ of Summons taken out on the 7/4/2016 the 3rd,7th respondents made sundry claims against the appellants and the 1st & 2nd respondents at the lower Court.
Upon being served with the originating processes, the appellants herein as 3rd and 4th defendants entered appearance and filed a defence. They in addition filed a notice of preliminary objection challenging the competence of the Writ of Summons to wit; not properly swearing to the oaths before presenting the witness depositions to the commissioner for oaths.
After arguments of counsel for both sides and in a reserved and considered ruling delivered on 26/7/2018, the learned trial judge at page 486 of the record of appeal held as follows:-
The present objection to my mind is not fundamental enough to rob the Court of the jurisdiction to entertain this suit on the merit. It is my holding that the Courts jurisdiction has not been called to question in any manner. The preliminary objection is therefore lacking in merit and is accordingly struck out..
Miffed with the above, appellants approached this Court by filing a notice of appeal on 29/6/2018. The said notice of appeal contains three grounds of appeal.
Briefs of argument were filed and exchanged by the appellants on one hand and the 3rd, 7th respondents respectively. Appellants formulated the following three issues for determination:-
1. Whether the learned trial judge was correct to hold that a defective written statement on oath becomes cured upon being adopted by the maker in open Court when the objection at the lower Court was to stop the adoption of the defective statement on oath. (Distilled from ground 2).
2. Whether the learned trial judge was right to hold that non-compliance with the oaths Act is not a significant infraction and could be admitted by the provisions of Section 113 of the Evidence Act, 2011 and that a defective written statement on Oath may be amended and resworn by leave of Court under the provisions of Section 114 of the Evidence Act, 2011. (Distilled from ground 3).
3. Whether from the totality of the arguments and the written statement on Oath of PW1 and those of the other claimants witnesses, the ruling is not against the weight of evidence. (Distilled from ground 1).
On the part of the respondents, a lone issue was formulated and it read as follows:-
Whether the learned trial judge was right in holding that the statement on oath of the claimants witnesses in the Court below complied substantially with the provisions of Section 13 of the Oaths Act Cap. 333 Laws of the Federation of Nigeria 2004.
Proffering argument on his first issue, learned appellants counsel Kingsley Umo, Esq. submitted that where there is no statement in an oath stating that it is made solemnly, conscientiously believing the contents to be true and correct and by virtue of the Oaths Act, it cannot in law be an oath and the signature and stamp of the commissioner for oaths cannot as well remedy the defect. He relied on the provision of Section 13 of the Oaths Act and the cases of ORAEKWE V CHUKWUKA (2012) ALL FWLR (pt 621) 1677, OBUMNEKE V SYLVESTER (2010) ALL FWLR (pt 506) 1945 and LONESTAR DRILLING LTD V TRIVENI ENGINEERING AND INDUSTRIES LTD (1999) 1 NWLR (pt 588) 622.
On the second issue, learned counsel referred copiously to the provisions of Order 3 Rule 2 (1) (c) of the Akwa Ibom State High Court (Civil Procedure) Rules 2009 in submitting that a written statement on oath is the evidence on which a party relies in Court to establish his case and therefore a defective statements on oath of the respondents witnesses in this case cannot be cured by resort to Section 113 of the Evidence Act.
He submitted further that the Writ alone does not constitute the originating process vide Order 3 Rule 2 of the extant Rules but same together with the statement of claim, list of witnesses, written statement on Oath and copies of documents to be relied upon at the trial Court, all constitute the originating processes.
On the third issue, he submitted that where a statute or, Rule of Court provides for a procedure for the commencement of an action, failure to follow that procedure renders such action incompetent. He referred to AGIP (NIG) LTD V AGIP PETROLI INT. (2010) 181 LRCN 119 at 131.
Respecting his lone issue, learned counsel for the respondents, Francis Ekanem, Esq. referred this Court to the statement on Oath of the respondents witnesses at pages 11, 20 of the record of appeal and argued that same complied substantially with the requirement of the oaths Act.
Still in argument, learned counsel submitted that what is required is to ensure substantial compliance with requirement of the Oath Act and that failure of the deponent to comply with the format prescribed therein, could not render the statement ineffective and incompetent. He referred to EKPENETU V OFEGOBI (2012) 15 NWLR (pt 1323) 276 at 308, 309, ABUBAKAR V ALI (2015) LPELR 40359 and DASOFUNJO V AJIBOYE (2017) LPELR 42354.
It was further submitted that when a statement on Oath is already adopted by a witness after the witness had been sworn in open Court it regularizes the written statement on oath.
He referred to UDEAGHA & ANOR V OMEGARA & ORS (2010) 11 NWLR (pt 1204) 168 at 195 and APGA & ANOR V DANTONG & ORS (2011) LPELR 9233.
I have carefully considered the arguments of learned counsel in respect of their formulations. It is however my respectful view that issue No.2 of the appellants is quite apposite to the just determination of this appeal. I shall therefore determine this appeal in the light of the said issue No.2 formulated by the appellants.
I have stated right from the onset that this appeal is against the lower Courts ruling on the appellants preliminary objection which attacked the competence of the respondents written statements on Oath for not complying with mandatory provisions of Section 13 of the Oath Act read together with Order 3 Rule 2 (1) (2) of the High Court (Civil Procedure) Rules of Akwa Ibom State 2009.
The provisions of Section 13 of the Oaths Act Laws of the Federation of Nigeria 2004 provides as follows:-
It shall be lawful for any commissioner for oaths, notary public or any other person authorized by this Act to administer an oath to take and receive the declaration of any person voluntarily making the same before him in the form set out in the first schedule to this Act.
The First Schedule to the Oaths Act provides that oaths shall be in form set out below:-
I do solemnly and sincerely declare that (set out in numbered paragraphs if more than one matter) and I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the oaths Act
The provisions of Order 3 Rule 2 (a) (e) of the High Court (Civil Procedure) Rules of Akwa Ibom State 2009 on the other hand provides as follows:-
Rule 2 (1) All civil proceedings commenced by writ of summons shall be accompanied by
(a) Statement of claim
(b) List of witnesses to be called at the trial
(c) Written statements on oath of the witnesses
(d) Copies of documents to be relied on at the trial.
Also Rule 2 (2) of the said Order 3 states further:-
(2) Where a claimant fails to comply with Rule 2 (1) above, his originating process shall not be accepted for filing by the Registry.
The relevant witnesses depositions are at pages 16 and 20 of the record of appeal and that same read thus:-
I make this deposition in good faith and in accordance with the Oaths Act.
At page 465 of the record of appeal, learned trial judge found as follows:-
The deposition on oath may not have been commenced in the set form but I am of the humble view that cases are not won on the basis of the form but on the contents of a deposition or affidavit. I fail to see how the applicants have been prejudiced or misled by the deposition complained of. I therefore hold that the process under attack is in substantial compliance with the law.
In disagreeing with the above, learned counsel for the appellants vehemently argued that the word shall as embodied in Order 3 Rule 2 (1) (c) of extant Rules denote compulsion and thus a valid Oath must be in the form prescribed by Section 13 of the Oaths Act.
I have considered all the chains of authorities cited and relied by counsel on both sides.
In the recent decision in G.T.B. Plc V ABIODUN (2017) LPELR 42551 this Court has held that a statement on oath or affidavit must comply with Section 13 of the Oaths Act for it to be valid and that substantial compliance with Section 13 of the Act will not suffice. In arriving at this decision, the Court distinguished an affidavit and written statement. It reasoned that an affidavit is that upon which motion are largely decided while written statement on oath upon which facts in pleadings are predicated. Thus, a written statement on oath is the evidence on which a party relies in Court to establish his case or his answers to opponents case as required by the rules of court.
It was however held in the case of APGA V DANTONG & ORS (Supra) that where a form is prescribed by an enactment, a form which differs from the prescribed form shall not be invalid for the purpose of the enactment by reason only of the difference, if the difference is not in a material particular and is not calculated to mislead.
As a general rule, forms to schedule in statutes are inserted merely as examples and guides and are meant to be followed impliedly only so far as circumstances permit. This, however is not to say that the use of forms is never imperative, as indeed they sometimes have to be strictly followed if the language and the scheme of the enactment providing for their use so dictates. See MACLEAN V INLAKS (1980) 8 -11 SC 1.
In OJIBARA & ORS V GOVERNOR OF KWARA STATE & ANOR (2004) LPELR 13002); it was held that the law does not require a deponent to use the exact words in the oaths Act, as anything used in substantial compliance with the requirements of that Act will be enough in this era of substantial justice. Also in OGWUEGBU V AGOMUO (1999) 1 NWLR (pt 609) 144. at 168 Akintan; JCA in the leading ruling stated as follows:-
I believe that the form prescribed in the 1st schedule is expected to serve as a guide as to form an acceptable oath within the provisions of the oaths Act should take. The form prescribed in my view is not expected to be rigidly followed word for word or letter by letter. I also believe that what is required therefore is to ensure that there is substantial compliance with the requirement of the Act.
Applying the above decisions to the present case, it is quite clear that it is difficult to lay down a totally rigid general principle on the point and that each case shall depend on its peculiar facts. Where there is a total non-compliance with the oaths Act, such oaths are defective but whereas in this case, there is substantial compliance with the oaths Act, the failure to use the form strictly words for words does not in my respectful view render it defective and liable to be struck out. The case of OGWUEGBU V AGOMUO (Supra) and LONESTAR DRILLING (NIG) LTD V TRIVENI ENG. & INDUSTRIES LTD (1999), NWLR (pt 588) 622 are similar to this case to the effect that there is substantial compliance with the oaths Act.
Learned counsel for the appellants has alluded to the punishment for not complying with the provision of Rule 2 (1) of Order 3 of the Akwa Ibom State High Court (Civil Procedure) Rules 2009, to the effect that the originating process shall not be accepted for filing by the Registry. It is beyond argument that the originating processes in the instant case was accompanied by all the listed requirements in (a) to (d) except that the written statements on oaths of the witnesses which were not rigidly followed words for words.
The provisions of Section 4 (2) (b) and (c) of the Oaths Act clearly states:-
(2) No irregularity in the form in which an oath, or affirmation is administered or taken shall
(b) invalidate proceedings in any Court
(c) render inadmissible evidence in or in respect of which an irregularity took place in any proceedings.
In the light of the above, I am therefore persuaded by the submission of the learned respondents counsel that the objection of the appellants was nothing but resort to technicality. That Courts have long moved away from the domain or terrain of technicality to doing substantial justice.
In the result, I resolved the lone issue against the appellants and in favour of the respondents. The appeal is devoid of any merit and it is accordingly dismissed.
I however make no order as to costs.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the judgment read by my learned brother Shuiabu JCA. I agree with the reasoning and conclusion. I also dismiss the appeal.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to read, in draft, the erudite leading judgment delivered by my learned brother Muhammed L. Shuaibu, JCA. I wholly, with the reasoning and conclusion in the well-articulated judgment. I too visit a deserved dismissal on the appeal. I abide by the consequential orders decreed in the leading judgment.
Appearances:
Kingsley Umo (Asst. Dir. Akwa Ibom State) For Appellant(s)
Livinus Udofia, Esq. for 1st Respondent.
Nsikak Udo Assang, Esq. for 2nd Respondent.
Francis Ekanem, Esq. for 3rd- 7th Respondents For Respondent(s)
