A deposition could either be in form of an affidavit evidence or a witness statement on oath. A witness statement is a summary of the oral evidence that a witness will give at trial.

The purpose of the witness statement is to set out the evidence of the witness. By this, the witness shall be examined in chief by the party that calls him/her, where he/she will then adopt his/her written statement on oath, then be cross-examined and re-examined if need be, but this is not so with an affidavit which may not require the presence of the deponent to testify in court.

It is trite law that Affidavit evidence is a statement of fact which the deponent swears to be true to the best of his knowledge, information or belief, hence, to make an affidavit, the written statement under oath acceptable for use, it must be sworn before the person duly authorized to take oaths. Section 112 of the Evidence Act provides that “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 this very provision, it could only mean that an affidavit sworn to in the chambers of a legal practitioner falls short of this requirements. See BUHARI V. INEC. However, it becomes imperative at this point to distinguish between an affidavit and a statement of witness on oath, while the Evidence Act 2011 governs affidavit evidence it must be noted that there is no law that States that a statement of witness on oath must conform to the form of an affidavit as in the Evidence Act. This point is well stated in the case of SAMUEL LAMBERT & ANOR v. CHIEF A.S.B.C OKUJAGU(2015), where the court stated that “…it is therefore very certain that even the rules of court admit that affidavit and statement of witness on oath are distinct and different from the other. The form of an affidavit under the Evidence Act is well specified by law. See section 117 and 118 of the Evidence Act 2011.There is no law that specified that all sworn documents or Oaths must comply with the provisions of the Evidence Act as relates to affidavit. It is therefore not a valid argument to say that sworn deposition or statement of witness under the civil procedure rules must accord with the form of an affidavit…” Hence, it would be rather erroneous to equate Affidavits and written statements on oath as the same. The similarities on the face of the documents can stand, but the purpose, value, use and the rules governing both documents are dissimilar.

By a combined effect of Sections 112 and 117 (4) Evidence Act read together with section 19 of Notaries Public Act it is clear and unambiguous that affidavit sworn in the chambers of a legal practitioner appearing for a party in any proceedings or before a clerk in his chambers is inadmissible in evidence. See, also the more recent case of ALIYU V. BULAKI (2019) were the court of Appeal succinctly outlined in its judgment conditions that must be fulfilled for an affidavit to be admissible in evidence. However, by virtue of the plethora of cases in support of this position it appears to be that any defect in meeting up with these requirements as stated in ALIYU V. BULAKI (Supra) will not be treated as a mere irregularity that can be ratified by a subsequent oath taking in court (Section 4 (2) and Section 4 (3) of the Oaths Act 2004; Aduloju vs Adejugbe & 1 or, (unreported) in Appeal No. CA/EK/65/2004; Uduma vs Arunsi) but must be seen as a fundamental defect as to substance which can either nullify a proceeding or render a witness testimony invalid and inadmissible in evidence and such witness statement will nevertheless go to no issue and where it has been wrongly admitted, same will be expunged from the record of the court either by an application by a party or by the court suo motu.

The question that then comes to mind is, does this also apply to a witness statement on oath? Although, I am tempted to take on the negative but bearing in mind the decision of the court in both BUHARI v. INEC and ALIYU v. BULAKI, it seems baseless to argue on the negative in which case it would only result to just a mere academic exercise. Therefore, I’m forced to align my position with the fact that even a witness statement on oath sworn to at the chambers of a legal practitioner who in such case represents the same client, though a notary public as the case maybe is on it’s stead defective.

CONCLUSIVELY, any evidence sourced from a fundamentally defective deposition, is fundamentally inadmissible and cannot be relied upon in proof of any fact. Such evidence goes to no issue because as the legal maxim goes “ex nihilio nihil fit” from nothing comes nothing, the evidence cannot be placed on nothing as it will crumble and fall. See. MACFOY v. UAC LTD.

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