10/07/2018
TRIAL TIPS: PREPARING YOUR WITNESS FOR THE UNEXPECTED!
- Odirachukwumma Stanley Emejulu, Esq.
It's difficult to impeach a "clever" witness. You know, when you're cross-examining a 5 Star witness, you have to develop a strategy that is capable of upsetting their balance and keeping you in control.
But let's say you're unable to roll out this strategy, you may like to try this:
During cross-examination, ask the witness where they signed their written deposition.
YOU: "Mr./Mrs......you did not sign your deposition in your lawyer's office, you signed it at home!"..and watch them admit angrily that they signed it in their lawyer's office!
Why is this question important?
Section 112 of the Evidence Act, 2011, as amended provides:
"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".
But one may argue:
"an affidavit is different from a written deposition (witness statement on oath)
OR
"Section 112 isn't talking about a written deposition (witness statement on oath)"!
Well put, not until you read: EROKWU & ANOR v. EROKWU(2016) LPELR-41515(CA): “I had hitherto been of the view that even where the witness statement of the Respondent at the trial Court was not sworn to before a person duly authorized to take oaths in contravention of Section 112 of the Evidence Act 2011, the subsequent adoption of the written deposition after he had been sworn in open Court to give oral evidence regularizes the deposition. I was of the view that the witnesses' statements which are adopted during oral evidence on oath are different from mere affidavit evidence which stand on their own without any oral backup and which are not subjected to cross-examination. That it is such affidavit evidence which do not meet the requirements of Sections 112 Evidence Act 2011 that are intrinsically inadmissible.
However, that previous way of thinking must perforce give way to the opinion of the Supreme Court in BUHARI V. INEC (2008) 12 SCNJ 1 AT 91.
In that case, the Supreme Court unequivocally agreed with the Court of Appeal's decision to strike out the depositions of the Appellant's witnesses sworn before a Notary Public who was also counsel in the chambers of the senior counsel to the Appellant which was in violation of Section 19 of the Notary Publics Act and 83 of the Evidence Act (now Section 112).
The term 'affidavit' is medieval Latin for 'he has declared on oath'.
It is a formal sworn statement of fact, signed by the deponent and witnessed as to the veracity of the deponent's signature by the taker of oaths, such as the Commissioner for Oaths, Notary Public. It has been accepted that a Judge or Magistrate could also take such oaths. An affidavit must comply with the requirements as set out in Sections 107-120 of the Evidence Act 2011.
Let me state that the argument of learned counsel to the Respondent that it is not necessary for a deponent to sign before the oath taker is totally misguided. Counsel is of the erroneous opinion that what is important is that it was sworn before an authorized oath taker. He made a strenuous attempt at distinguishing between signing and swearing.
The concept of oath taking involves:
i. The deponent making a statement in writing,
ii. The document is taken to a Commissioner for Oaths or any person duly authorized to
take the oath,
iii. The Commissioner for Oaths requires the deponent to swear on a holy book particular to the deponent's faith or a mere declaration for a deponent whose faith forbids him to swear,
iv. The Commissioner for Oaths then asks the deponent to verify what has been stated,
v. The deponent afterwards signs in the presence of the Commissioner for Oaths who witnesses that the affidavit was sworn to in his presence. This explains the phrase "Before me" usually signed by the Commissioner for Oaths.
Any arrangement other than the above amounts to a nullity.
The learned trial judge in his wisdom held at page 348 of the Record that the provisions of Sections 112 & 113 of the Evidence Act 2011, make the written deposition valid in law because it was sworn before an authorized person. The learned trial judge failed to avail himself of the provisions of Section 117 (4) of the Evidence Act 2011.
Section 117 (4) of the Evidence Act is clear on this, it provides as follows:
"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".
When a deponent swears to an oath, he signs in the presence of the Commissioner for Oaths who endorses the document authenticating the signature of the deponent.
Signatures signed outside the presence of the Commissioner for Oaths 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.
In CHIDUBEM V. EKENNA & 12 ORS (2008) LPELR-3913,(2009) ALL FWLR (PT. 455) 1692, this Court held as follows:
"The attempt by learned counsel for the Appellants to draw a distinction between signing a deposition and swearing an oath is in my humble view, merely splitting hairs.
The two acts are of the same transaction. The law is that the deposition on oath must be signed in the presence of the person authorized to administer oaths."
In this case, the Respondent upon cross examination stated when asked where he signed his statement on oath that:
'I guess in my counsel's chambers'.
This to my mind presupposes that the document was not signed before a Commissioner for Oaths.
Respondent's counsel's reference to the word 'guess' as being a supposition and not definite or certain cannot obviate the implication of the response. Respondent would easily have said:
'I signed before the Commissioner for Oaths', if he did.
'I guess in Court' or 'I guess before the Commissioner for Oaths' would confer another impression on the Honourable Court. The impression conferred is that he signed in chambers of his counsel but a Commissioner for Oaths later attested to it. He simply did not sign it in the presence of a Commissioner for Oaths as required by law.
This is not a defect in form as envisaged by Section 113 of the Evidence Act 2011. It is a fundamental and statutory error that cannot be waived.
THEREFORE THE WITNESS STATEMENT OF THE RESPONDENT DATED 9/10/2008 IS INCOMPETENT AND INADMISSIBLE, IT IS HEREBY EXPUNGED HAVING FAILED THE STATUTORY TEST OF AUTHENTICITY AND ADMISSIBILITY."
- Per OGUNWUMIJU, J.C.A. (Pp. 17-22, Paras. A-A)
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