YABO v. HABIB
(2022)LCN/16625(CA)
In the Court of Appeal
(SOKOTO JUDICIAL DIVISION)
On Monday, May 30, 2022
CA/S/116/2020
Before Our Lordships:
Ali Abubakar Babandi Gumel Justice of the Court of Appeal
Saidu Tanko Hussaini Justice of the Court of Appeal
Mohammed Danjuma Justice of the Court of Appeal
Between
UMAR YABO APPELANT(S)
And
MR. IBRAHIM MUHAMMAD HABIB RESPONDENT(S)
RATIO
WHETHER OR NOT A WITNESS STATEMENT ON OATH IS AN AFFIDAVIT EVIDENCE
A witnesses’ statement under Oath, is, essentially an affidavit evidence. Hence for an affidavit evidence to be meaningful and admissible all the rules relating to affidavit needed to be observed. The Evidence Act has set out what the contents of an affidavit should look like and how and where an affidavit can be made.
Section 112 of the Evidence Act provides that:-
“112. 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 before a partner or clerk of his legal practitioner.
By the evidence of PW1, PW2 and PW3 under cross-examination, it is crystal clear without any ambiguity that the statement of PW1–PW3 made on Oath were signed in Plaintiff counsel’s Chambers.
Section 117 (4) of the Evidence Act 2011 also provides thus:-
“An affidavit when sworn shall be signed by the deponent or if he cannot write or is blind, marked by him personally with his mark in the presence of the person before whom it is taken.”
Under Section 109 of the Evidence Act, an affidavit which can be used in Court is any affidavit which has been sworn to by” any Judge, officer or other person duly authorised to take affidavits in Nigeria.
From the foregoing provisions, read along with the statement made on Oath of PW1, PW2 and PW3, those statements cannot be said to have met with the requirements of the law, the effect of which have been pronounced upon in a plethora of decided cases of this Court and of the Supreme Court. I will refer to a few of them:-
In Chidubem Vs. Obioma Ekenna & Ors (supra) the Court held thus: –
From the evidence of these witnesses, it is clear that none of them signed their depositions before the person authorized to administer oaths. The attempt by the learned counsel for the appellants to draw a distinction between signing a deposition and swearing an oath, in my humble view is, merely splitting heirs. The requirement of the law is that the deposition on oath must be signed in the presence of the person authorized to administer oath … PW3, PW4, PW5 and PW6 have by their own evidence have rebutted the presumption in favour of their written deposition … I therefore hold that the lower tribunal was correct when it discountenanced the written depositions of PW3, PW4, PW5 and PW6 for noncompliance. with Section 90(f) of the Evidence Act (Now Section 117 (4) of the Evidence Act 2011).
Furthermore, the Court of Appeal inErokwu Vs. Erokwu (2016) LPELR–41515 (CA) held thus:-
“When the deponent swears to an Oath, signs in the presence of the Commissioners of Oaths who endorses the document authenticating. The signature of the deponent. Signature signed outside the presence of the Commissioner for Oath fall short of the requirement of the statute and such document purported to be sworn before the Commissioner for Oaths is not legally acceptable in Court.”
See further the decision of this Court in Alhaji Hali Aliyu Vs. Alhaji Bello Bulaki (2019) LPELR–46513 (CA) which was an appeal from the decision of the High Court of Sokoto State, as in the instant case on appeal. PER HUSSAINI, J.C.A.
SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Sokoto State High Court delivered on the 21st October, 2019 by which the Court granted the claim, in the action instituted by the Respondent as the Plaintiff.
The claim before the trial Court is encapsulated in the statement of claim at paragraph 13 (a) – (f) of pages 9 – 10 of the record of appeal thus:-
a. DECLARATION that the Plaintiff is the beneficial owner, the occupier and the person entitled to or deemed entitled to statutory right of occupancy in respect of the landed property situate, lying and being at Rugar Wauru Area (Badon Uku-Uku) Bado Area of Sokoto – Sokoto State of Nigeria.
b. A DECLARATION that the defendant committed trespass on the said property of the Plaintiff situate, lying and being at Ruga Wauru Area (Badon Uku-Uku) in Bado Area of Sokoto – Sokoto State of Nigeria when the defendant entered upon the said land sometimes in the year 2018 and further developed the said property without the knowledge and consent of the Plaintiff and has remained in occupation of the said property till date to the detriment of the Plaintiff.
c. AN ORDER of this Honourable Court directing the defendant, his servants, agents, privies and assigns to forthwith vacate from the said property of the plaintiff situate, lying and being at Rugar Wauru Area (Badon Uku-Uku) in Bado Area of Sokoto State of Nigeria.
d. AN ORDER of perpetual injunction restraining the defendant, his servants, agents, privies and assigns from forthwith entering upon the said property of the Plaintiff situate, lying and being at Rugar Wauru Area (Badon Uku-Uku) in Bado Area of Sokoto State of Nigeria forthwith or from committing any further act of trespass on the said property of the Plaintiff
e. AN ORDER of this Honourable Court awarding the sum of N500,000.00 (Five Hundred Thousand Naira) as general damages against the defendant for the tort of trespass committed by the defendant on the said property of the Plaintiff situate, lying and being at Rugar Wauru Area (Badon Uku-Uku) in Bado Area of Sokoto – Sokoto State of Nigeria.
f. THE COST of this action.
The writ of summon and the statement of claim of the Respondent was accompanied with witnesses’ statement on Oath among other documents, in line with the provision of the High Court Rules.
The claim of the Respondent was denied vide the Appellant’s statement of defence as at pages 27–28 of the record of appeal.
The parties at the trial elicited evidence and also tendered documents which the trial Court admitted in evidence as Exhibits.
The case for the Plaintiff/Respondent is that he bought from his younger brother by the name Yakubu Ibrahim, a partly developed landed property situate at Rugar Wauru Area of Bado of Sokoto Metropolis at a price of N1.5 Million. His brother (Yakubu Ibrahim) had purchased the same property from one Danladi M. Wanda also called Daladi Dauda Zuru on the 19th April, 2007 in the sum of N100,000.00. Danladi M Wanda purchased the property as a vacant parcel of land from the original owner by name Abubakar Gidado (Buba Soja), a retired Military personal on 20/July/2006. In the year 2017 when the Respondent returned to Sokoto metropolis, he found that the property had been trespassed upon by the added number of couches on the perimeter fence which he had erected, round the property. Upon enquiry the Respondent found that one Kabiru Arkilla, was, who trespassed into the property. He confronted Kabiru Arkilla who claimed to have bought the land from Kuden on the instruction of Respondent’s elder brother (Dr. Abdullahi Ibrahim) but the latter denied ever giving such instructions. At this point, Kabiru Arkilla was advised to stay clear of the property in dispute hence the Respondent left to his workplace in Birnin Kebbi. By July, 2018 when the Respondent returned to Sokoto he discovered to his dismay, a building already erected, on that same plot of land and it was the Appellant (Umar Yaro) who put up the building, now fully developed, roofed and painted. The Appellant nonetheless was advised to keep off the property in that the Respondent is the bonafide, owner of the land on which the house was erected. The Respondent not done yet, further instituted action via Suit No. SS/41/2018 against the Appellant at the Sokoto State High Court and claimed as per the relief in the statement of claim.
Although the Appellant had denied the claim as in his pleadings, he asserted that he purchased the said property from one Atiku Usman Yabo in the sum of N1,000,000 (One Million Naira) and developed it. According to the Appellant, it was after he had developed the property that the Respondent appeared from nowhere to lay rival claim of ownership to the property. As indicated before, parties on both sides elicited evidence through witnesses called at the trial but the trial Court at the conclusion of evidence and counsel’s final addresses delivered its judgment on the 21st October, 2019 in favour of the Respondent to whom he made an order of declaration of title. It is against the order and judgment, the Appellant has appealed to this Court via the Notice of Appeal dated the 21st October, 2019 and filed the same date, by the amended Notice of Appeal granted with the leave of Court on the 17/1/2022, the Appellant has appealed to this Court on five (5) grounds of appeal.
For the avoidance of doubt, the five (5) grounds of appeal are reproduced hereunder save the particulars, thus:-
Ground one:
The decision of the High Court of Justice Sokoto in Suit No. SS/41/2018 is against the weight of evidence.
Ground Two:
The High Court of Justice Sokoto erred in law when it held that the written statements on oath of PW1, PW2 and PW3 were admissible (and used in coming to a conclusion) despite the admission by the witnesses that the statements were signed in the chambers of J. E. Ochidi Esq of counsel to the plaintiff.
Ground three:
The Court below erred in law and which had occasioned a miscarriage of justice when it failed to declare the witness statements on oath of PW1, PW2 & PW3 as incompetent and consequently expunge the evidence as well as all the Exhibits tendered by the Respondent from its records of violating Section 112, 117 (4) of the Evidence Act and thus acted on inadmissible evidence in finding in favour of the Respondent.
GROUND 4
The Court below misdirected itself in law and which has occasioned a miscarriage of justice when after holding that;
” … It is true PW1, PW2 and even PW3 admitted signing their statement on oath in the chambers of the Plaintiff counsel under cross-examination at pages 15, 18 & 21 of the record. However, while adopting. the said written statement on oath at pages 12, 17 and 25 of the record, PW1, PW2 and PW3 told the Court that they made and/or signed their written deposition before this Court· as disclosed in their written statement on oath … “
IT NEVERTHELESS STILL HELD THAT,’
“It is not clear from the above where did PW1, PW2 and PW3 sign their written deposition…. Inadmissible evidence cannot be used to expunge another inadmissible evidence. Two wrongs cannot make a right. Also Exhibits A-C tendered through PW1 are relevant and admissible evidence which can be (sic) tendered from the bar or through anybody other than PW “
Ground Five:
The Court below erred in law and which had occasioned a miscarriage of justice when refused to dismiss the case of the Respondent at the Court below for failure of the Respondent to lead credible evidence.
Record of appeal was compiled and transmitted to this Court and was deemed the 17/1/2022. The Appellant thereafter filed Appellant’s brief of argument on 3/02/2022. In response, the Respondent’s Brief of Argument filed on 28/2/2022. The Appellant filed a Reply Brief on 4/3/2022. Learned counsel adopted their respective briefs of argument at the hearing on 9/3/2022.
The Appellant in his brief of argument formulated three (3) issues for determination of Court.
“i. Was the Court below correct in law when it acted upon and refused to expunge the evidence of PW1, PW2 & PW3 as well as all the Exhibits tendered by the Respondent from its records on the grounds that there was not violation of Section 112 and 117 (4) of the Evidence Act and therefore admissible evidence? (Decoded from grounds 2 & 3 of the amended grounds of appeal)
ii. Was there any ambiguity in tile evidence of PW1, PW2 & PW3 as to where they signed their witness statement on oath to justify the holding of the Court below that inadmissible evidence cannot be used to expunge another inadmissible evidence, thereby declaring the evidence of PW1, PW2 & PW3 and Exhibits A-C as admissible pieces of evidence? (Decoded from ground 4 of the amended grounds of appeal)
iii. Was the decision of the Court below in granting the reliefs of the Respondent in the absence of credible evidence correct in law? (Decoded from grounds 1 & 5 of the amended grounds of Appeal).”
Respondent formulated just one (1) issue in his brief of argument at page 5 thus:
“Whether the Respondent led sufficient credible evidence before the Court below to have warranted the Court below to enter judgment in favour of the Respondent against the Appellant.”
The lone issue of the Respondent had been distilled out of grounds 1, 2, 3, 4, and 5.
Upon a proper perusal of the three (3) issues formulated in the Appellant’s brief of argument, I am of the opinion that issues 1 and 2 can be merged together as one while Appellant’s issue Number 3 can stand on its own as issue Number 2.
In effect, the two (2) issues I would like to address in this appeal are these:-
1. Was the Court below correct in law when it acted upon and refused to expunge the evidence of PW1, PW2 & PW3 as well as all the Exhibits tendered by the Respondent from its records on the grounds that there was no violation of Section 112 and 117 (4) of the Evidence Act and therefore admissible evidence despite the clear admission by PW1, PW2 and PW3 in their evidence under cross-examination in that their witnesses’ statement on Oath was not signed before the Commission for Oaths?
(Distilled from grounds 2, 3 and 4 of the grounds of Appeal.)
2. Was the decision of the Court below in granting the reliefs of the Respondent in the absence of credible evidence correct in law? (Decoded from grounds 1 & 5 of the amended grounds of Appeal).
Appellant’s counsel’s submissions on those issues can be found at pages 3–19 of the Appellant’s brief of argument. Those submissions can be put into perspective thus:
1. That the witnesses, statement on Oath for PW1, PW2 and PW3 were incompetent in that their depositions were not signed or sworn to before the Commission of Oath.
2. That by the clear admissions by PW1, PW2 and PW3 in their evidence under cross–examination, relative to their statement under Oath, provisions of Section 112 and 117 (4) of the Evidence Act had not been complied with.
3. The statement on Oath of PW1, PW2 and PW3, were invalid on account of non–compliance with the Rules of Court and Evidence Act, 2011 and same cannot be acted upon.
4. The trial Court wrongly acted and relied on those witnesses’ statement on Oath, instead of expunging them for the review. He relied on the decision of this Court and those of the Apex Court, namely
(A). Chidubem V. Obioma Ekenna (2009) ALL FWLR (PT. 445) 1692, 1708
(B). Erokwu V. Erokwu (2016) LPELR–41515 (CA).
(C). Alh. Hali Aliyu Vs. Alh. Bello Bulaki (2019) LPELR–46313 (CA).
(D). Buhari Vs. Inec (2008) 12 SCNJ, 1, 91.
(5). That by the admission made by PW1, PW2 and PW3 in their evidence under cross-examination, to the effect that this statement on Oath was not signed in the presence of the Commission for Oath, the admission had displaced the presumption of regularity in those written depositions under Section 113 of the Evidence Act. He relied on Chidubem V. Obioma Ekenna (supra). Erokwu V. Erokwu (supra), Buhari Vs. Inec (supra).
(6). That the failure by PW1, PW2 and PW3 to sign their deposition in the presence of the Commission for Oaths were not defected as to form but one of the substance and this cannot be waived. Hence the said statement of PW1, PW2 and PW3 were incompetent and inadmissible and same should be expunged from the record.
In relation to issue Number 2, as reformulated by me, it has been argued by the Appellant that in the absence of valid witnesses statement on Oath, the foundation upon which the Respondent built his case, had been destroyed hence the Court below, in the face of a fundamentally flawed case, cannot but be wrong to give judgment for the Respondent who had failed to discharge the burden of proof of him under the law. He relied on Section 131 (1) of Evidence Act, UAC VS. MACFOY (1962) A. C. 152. Gunduri V. Nyako (2013) NSCQLR (PT. 1) 26; Okobiemem N. Vs. UBN (Jalingo Branch Taraba State (2017) LPELR 43633 (CA).
We were urged to strike out the statement of claim of the Respondent for being incompetent in the absence of a valid witness statement on Oath, given the provision of Order 2 Rule (1) of the Sokoto State High Court Civil Procedure Rules, 2015.
In response to issues 1 and 2 argued by the Appellant as above, learned Respondent’s counsel has submitted that the finding of the Court below at pages 114–116 of the record of appeal cannot be faulted. He argued that the witnesses’ statement on Oath of PW1, PW2 and PW3 were sworn to before the Commission of Oath hence the subsequent statements by three witnesses under cross-examination to the effect that their depositions were made in Chambers of Plaintiffs Counsel cannot be used to override the clear statement on Oath of those witnesses. It is submitted by him that no oral evidence would be allowed to discredit or controvert the contents of a document. He relied onNursing and Midwifery Council of Nigeria Vs. Ogu (2019) 10 NWLR (PT. 1680) 233, 243.
He argued that the Respondent had discharged the burden of proof on him and the trial Court rightly entered judgment in his favour. We were urged to dismiss this appeal.
Resolution of Issues 1 and 2
This appeal essentially resolves around the witness statement on Oath of PW1, PW2 and PW3.
PW1’s state on Oath is at page … of the record. At the hearing on the … P. W. 1 adopted the said statement on Oath as his evidence in chief. Ditto PW2 and PW3. They adopted their respective statements made under Oath. However, in their respective evidence under cross-examination, PW1, PW2 and PW3 respectively stated at pages 81, 83 and 86 of the record of Appeal thus: For PW1:
“This is my signature on my deposition. I signed my deposition in my lawyer’s Chambers”
For PW2:
“This is my signature on my deposition. I signed my deposition in my lawyer’s Chambers”
For PW3, he said:
“This is my signature on my deposition. I signed my deposition in my lawyer’s office ….”
By these pieces of evidence of PW1, PW2 and PW3 under cross–examination, their respective evidence given in chief (statements under Oath) as adopted by them, was brought to question as to their legality and competence of those statement made on Oath by PW1, PW2 and PW3. By those evidence given under cross–examination of PW1, PW2 and PW3, learned defence counsel, no doubt sought to demolish his opponent’s case contained in the evidence in chief (statement on Oath). As held in Ayan Vs. State (2013) 15 NWLR (pt. 1376) 34, 36:
“The veracity of the witness, under examination in chief, is tested by the evidence procured from him under the furnace of cross–examination, the Respondents’ Counsel harnessed their advocative prowess and dexterity to puncture the evidential credit of PW1. In the eyes of the law, evidence garnered through cross – examination is more reliable and dependable than that from examination in chief. See; Adeosun v. Gov., Ekiti State (2012) 4 NWLR (PT. 1291); Okuleye Vs. Adesanya (2014) 12 NWLR (pt. 1422) 521”
See Juntur, Kpandegh & Anor Vs Kyenge & Ors (2015) LPELR–41785 (CA) 17–18 paras F–E.
As indicated before, the witnesses’ statement on Oath for PW1, PW2 and PW3 were by reason of cross–examination brought under position. A witnesses’ statement under Oath, is, essentially an affidavit evidence. Hence for an affidavit evidence to be meaningful and admissible all the rules relating to affidavit needed to be observed. The Evidence Act has set out what the contents of an affidavit should look like and how and where an affidavit can be made.
Section 112 of the Evidence Act provides that:-
“112. 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 before a partner or clerk of his legal practitioner.
By the evidence of PW1, PW2 and PW3 under cross-examination, it is crystal clear without any ambiguity that the statement of PW1–PW3 made on Oath were signed in Plaintiff counsel’s Chambers.
Section 117 (4) of the Evidence Act 2011 also provides thus:-
“An affidavit when sworn shall be signed by the deponent or if he cannot write or is blind, marked by him personally with his mark in the presence of the person before whom it is taken.”
Under Section 109 of the Evidence Act, an affidavit which can be used in Court is any affidavit which has been sworn to by” any Judge, officer or other person duly authorised to take affidavits in Nigeria.
From the foregoing provisions, read along with the statement made on Oath of PW1, PW2 and PW3, those statements cannot be said to have met with the requirements of the law, the effect of which have been pronounced upon in a plethora of decided cases of this Court and of the Supreme Court. I will refer to a few of them:-
In Chidubem Vs. Obioma Ekenna & Ors (supra) the Court held thus: –
From the evidence of these witnesses, it is clear that none of them signed their depositions before the person authorized to administer oaths. The attempt by the learned counsel for the appellants to draw a distinction between signing a deposition and swearing an oath, in my humble view is, merely splitting heirs. The requirement of the law is that the deposition on oath must be signed in the presence of the person authorized to administer oath … PW3, PW4, PW5 and PW6 have by their own evidence have rebutted the presumption in favour of their written deposition … I therefore hold that the lower tribunal was correct when it discountenanced the written depositions of PW3, PW4, PW5 and PW6 for noncompliance. with Section 90(f) of the Evidence Act (Now Section 117 (4) of the Evidence Act 2011).
Furthermore, the Court of Appeal inErokwu Vs. Erokwu (2016) LPELR–41515 (CA) held thus:-
“When the deponent swears to an Oath, signs in the presence of the Commissioners of Oaths who endorses the document authenticating. The signature of the deponent. Signature signed outside the presence of the Commissioner for Oath fall short of the requirement of the statute and such document purported to be sworn before the Commissioner for Oaths is not legally acceptable in Court.”
See further the decision of this Court in Alhaji Hali Aliyu Vs. Alhaji Bello Bulaki (2019) LPELR–46513 (CA) which was an appeal from the decision of the High Court of Sokoto State, as in the instant case on appeal. In Bello Bulaka’s case (supra) the Court held that for any deposition to be competent for use, it must be duly signed and sworn before the appropriate officer in accordance with Evidence Act and the Oaths Act. It is the due signing that gives life to the declaration on Oath. Without the due swearing of the deposition in the presence of and by the proper officer authorised to take the Oath is a mere piece of paper and not a deposition or affidavit. See Udusegbe V. SPDC Nig. Ltd. (2008) 9 NWLR (pt. 1093) 593, Mareya Plashes Ltd. Vs. Inland Bank Nig. Plc. (2002) 7 WLR (pt. 765) 109.
The decision in Buhari Vs. Inec (2008) 12 SCNJ 1, 96 has put a seal of finality on this point. In that case, the Supreme Court agree with the Court of Appeal’s decision to strike out witnesses’ sworn statement before a Notary Public who was also counsel in Chambers of the Senior Counsel to the Appellant in that case, which was in violation of Section 19 of the Notary Public Act and Section 83 of the Evidence Act now Section 112.
The combined effect of the foregoing decisions therefore is that the signing of an affidavit must be in the presence of the Commissioner for Oath and not in Counsel’s office or Chambers. PW1, PW2 and PW3 did not sign their deposition before the person authorised to administer Oaths hence I am constrained to expunge the witnesses statement on Oath of PW1, PW2 and PW3 as well as Exhibits AB and C1 and C2 tendered at the Court below by the Respondent. In effect this issue Number 1 is resolved in favour of the Appellant and against the Respondent.
With the statements on Oath of PW1, PW2 and PW3 now expunged from the record, as well as Exhibits A, B, C1 and C2, the question is what impact the order can have on the case of the Respondent as the Plaintiff at the trial Court? This question naturally leads me into issue number 2 earmarked for discussion. Issue number 2 states thus:-
Was the decision of the Court below in granting the reliefs of the Respondent in the absence of credible evidence correct in law?
Learned counsel of the Appellant, expectedly, answered this question in the negative by reference to the statement on Oath (now expunged) which he argued, contravene Sections 112 and 117 (4) of the Evidence Act. He argued that those statements on Oath having now been expunged from record along with Exhibits A, B and C meant that the Respondent’s statement of claim was incompetent as such is deemed not to have been accompanied with witnesses’ statement on Oath. I am in agreement with that submission of the learned counsel for the Appellant in view of the Order 3 Rule 2 (1) (c) of the Sokoto State High Court Civil Procedure Rules, 2015 which provides thus:
“All Proceedings Commenced by writ of Summons shall be accompanied by:
(c). Depositions of witnesses.”
In the absence of witnesses’ depositions, being a requirement for filing a valid claim, the witness cannot be called upon to give evidence. Witnesses’ deposition or the statement on Oath of the witnesses if adopted at the trial constitutes his evidence in chief hence the absence of such deposition is not a mere irregularity which can be remedied. It is a fundamental defect which is not redeemable. Any evidence, whether oral or documentary built on an incompetent statement on Oath is no evidence properly so called as you cannot place something on nothing and expect it to stand as held in UAC Vs. MACFOY (1962) A. C. 152. The statement on Oath of PW1, PW2 and PW3 being incompetent as such evidence in chief at the trial, is equally incompetent and same cannot be acted upon to prove a case for declaration of title in favour for the Respondent. The trial Court lacks jurisdiction to act on such evidence drawn from the statement on Oath of PW1, PW2 and PW3. See the decision in Gundiri Vs. Nyako (2012) NSCQR (pt. 1) 26. See further the Court of Appeal decision in Okobiemen Vs. UBN (Jalingo Branch) Taraba State (2017) LPLER–43633 (CA) in that case I held at pages 13 – 16 paras thus:
“I have given careful thought to and considered those submissions made by counsel in this matter. First, is the question of the adoption of and reliance being placed on the written statement of Mrs. Onuejeke Ngozi, the witness whose evidence at the trial Court was taken on 14th April, 2014 as Dw2. She had relied on the earlier statement written by her and adopted same as her evidence in chief in the course pf trial. The statement under reference was made or signed by the witness on the 18th February, 2014. See pages 20 21 of the record of appeal. it is clear, ex facie that the statement was not sworn before the Commissioner responsible for taking Oaths. This is the point the Appellant seem to canvass in his brief of argument under issue No. 1. A written statement which must be frontloaded and relied upon by a party in the High Court is the sworn statement of a witness. See Order 1 Rule 2 (2) (c) of the High Court Civil Procedure Rules 2013 of Adamawa State which provides- “every Writ of Summons shall be accompanied by (a). … (b) … (c). Written statement on Oath of the witness….” The requirement of accompanying sworn statement of a witness with the writ of Summons and statement of claim at the time of filing, is a basic requirement without which the witness cannot validly be called upon to given evidence. It is a condition precedent to the taking of oral evidence of a witness and the absence pf it is not a mere irregularity which can be remedied but a fundamental defect and this is not redeemable… the case on hand is one in which the witness’s statement was not sworn to at all either before the Commissioner for Oath or any other person. It thus a fundamental defect not to have a witness’s statement sworn to. This Court in Muhammed Ibrahim Onujabe Vs. Fatimah Idris (supra) has held that: “The Oath Act is a general statute that deals with Oath. The provision under the 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 in this vein that the Provision under the Oaths Act becomes relevant. This is why a defect regards the swearing on Oath is not a mere irregularities as to form but defect as to substance. “under Section 109 and 112 of the Evidence Act 2011 any affidavit intended to be used in the Court must be sworn before an appropriate authority Section 86 of the Oath Act Cap 01 of the Federal Republic of Nigeria is to the same effect. Where therefore as in the instant appeal case, the witness’s evidence in chief (DW2), her evidence under cross–examination and re-examination if any, are founded on a fundamentally defective witness’s statement on Oath, it is as if the witness gave no evidence at all. The case of UAC Vs. Macfoy (1962) A. C. 152 is instructive. You cannot place something on nothing and expect it to stand. Therefore, the statement on Oath of DW2 is incompetent hence proffered by her at the trial go to no avail. The trial Court also lack jurisdiction to act on those pieces of evidence drawn from DW2 See: Gundiri Vs. Nyako (2012), NSCQLR (pt. 1) page 26. The entire evidence derived from DW2 including the written statement adopted and relied on by her lack probative value hence same ought to have been ignored.
I still stand by that opinion which is hereby adopted in this instant case on appeal. In the absence of witness’ statement on Oath for PW1, PW2 and PW3, Respondent’s statement of claim is deemed abandoned as there is no evidence to support the claim. See Yusuf Vs. Oguntade (1998) 12 NWLR (PT. 957) 458, 498; Omoboriowo Vs. Ajasin (1984) ALL NLR (reprint) 186; Monkom Vs. Odili 2 NWLR (pt. 1179) 419, 442.
Given those circumstances, the Respondent cannot be said to have proved his case as erroneously held by the Court below and the learned counsel for the Respondent in his brief of argument. The Respondent has failed to discharge the evidential burden of proof placed on him by the law but fundamentally, for his failure to accompany his writ of summons and statement of claim with valid witness statement on Oath, the claim of the Respondent at the trial Court must be struck out, the same being incompetent, hence issue Number 2 is similarly resolved in favour of the Appellant and against the Respondent.
The appeal on the whole has considerable merit and the same is allowed. The judgment of the High Court of Sokoto State in Suit Number SS/41/2018 delivered on 21/10/2019 is set aside. This case is remitted to the Chief Judge of the High Court of Sokoto State who shall assign it to a Judge of the High Court for hearing de novo other than Justice Bello Duwale.
Ordered accordingly.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the advantage of reading in draft, the lead judgment of my learned brother, Hussaini, JCA. I fully agree with his reasoning and conclusion that there was a fundamental defect in the witness statements of PW1, PW2 and PW3 as frontloaded and filed along with the statement of claim of the Respondent. It was manifestly wrong and erroneous for the lower Court to overlook, the evidential fact that arose from the cross-examination of PW1, PW2 and PW3 that they signed their witness statements at the Chambers of counsel to the Claimant/Respondent when by law it ought to have been made before the appropriate and designated Commissioner for Oaths.
Therefore, without much ado, I too would allow this appeal. I abide by all the consequential orders of my learned brother, including the order for re-trial before another Judge of the Sokoto State High Court, other than Duwale, J.
MOHAMMED DANJUMA, J.C.A.: I have had the advantage of reading in draft, the lead judgment of my learned brother Saidu Tanko Hussaini JCA. I agree with his reasonings and conclusion that the appeal has considerable merit and same is allowed. I abide by all the consequential orders in the lead judgment.
Appearances:
…For Appellant(s)
…For Respondent(s)
