IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT.
BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.
Dated: 18th of May, 2023 SUIT NO: NICN/PHC/116/2020
BETWEEN:
MRS. JULIET UBANWA -------------------------------- CLAIMANT
AND
1. HORETH ENGINEERING LIMITED
2. MELEK ASSOCIATES
3. ENGR. H. A. IRISOMINABO------------------------ DEFENDANTS
Representations:
Ikechukwu Opara with P.O. Ayabowei for the Claimant.
K.S. Elenwo for the Defendants.
Judgment.
This suit was commenced by way of a General Form of Complaint filed on the 15th of September, 2020 along with a statement of facts, list of witnesses, witness statement on oath, list of documents and copies of the said documents to be relied upon at trial.
Arising from the complaint and statement of fact, the Claimant claims against the Defendants as follows:
1. AN ORDER of this Honourable Court, that the Claimant was fully assimilated into the 1st and 2nd Defendants and not an ad hoc staff, therefore she is entitled to all the benefits of a staff/employee of the 1st and 2nd Defendants.
2. AN ORDER of this Honourable Court, directing the Defendants to effect payment of the sum of N2,805,000.00 (Two Million, Eight Hundred and Five Thousand Naira), being the Claimant’s salary arrears for 51 months (from December 2014 till February 2019).
3. AN ORDER of this Honourable Court, directing the defendants to effect payment of the sum of N1,320,000.00 (One Million, Three Hundred and Twenty Thousand Naira), being the Claimant’s severance payment/entitlement for 24 months, in accordance with the company policy of the 1st and 2nd Defendants.
4. The sum of N10,000,000.00 (Ten Million Naira), being aggravated and general damages against the Defendants.
5. Interest of all sums due to the Claimant, at the rate of 25% annually from the date of the institution of this suit till Judgement
6. The sum of N1,000,000.00 (One Million Naira), being cost of instituting this suit.
Reacting to the foregoing claims, the Defendants initially filed a statement of fact (defence) on the 20th of October, 2020 before making an application for the amendment of same. The amended copy following the order of this court was filed on the on the 8th of July, 2022 along with a list of witnesses, witness statements on oath, list of documents and copies of the said documents to be relied upon at trial.
Trial commenced in this suit on the 29th of July, 2021 with the Claimant opening her case. The Claimant was herself called as the sole witnesses in support of her case as CW1 and she adopted her witness statements on oath which was marked as C1. Through the said CW1, 8 documents were tendered and admitted in evidence as C2 – C9 with Exhibits C2, C3, C6 and C7 being admitted under protest.
Arising from the amended statement of fact and witness statement on oath, the case for the Claimant is that she was employed as the company secretary of the 1st and 2nd Defendants on the 17th of January 1997 through a letter of employment dated the 15th of December, 1998 and her monthly earning increased from N25,000 to N55,000 sometime in 2010. The Claimant added that sometime in 2016, the 3rd Defendant issued a promissory note to the Claimant on behalf of 1st and 2nd Defendant, promising to pay off the arrears of salaries and entitlements of the Claimant amounting to the sum of N2,201,000.00 however, in 2019, the Claimant was invited to a meeting by the 3rd Defendant where she was told that the 1st and 2nd Defendant were faced with financial difficulty and that was why she was not paid salaries for several months. Claimant added that her employment was terminated in March 2019 and at the time, her salary arrears was for 51 months while she was entitled to severance allowance in the sum of N1,320,000.00 and for the arrears, the 3rd Defendant issued 2 undated cheques which was to be used to clear her salaries with the instruction of same to be tendered later. By March, 2020 when the cheques were to be cleared, they were returned dud. Claimant posits that the total sum of N4,025,000.00 was demanded but the Defendants have failed to pay her while positing that she was an ad-hoc staff who was not assimilated and accordingly owed only N500,000.00.
Upon cross examination, CW1 posited that she has document to show that she was employed but she has no document to show her increased salary. She also admitted that she read and signed her witness statement on oath in her lawyer’s office. She also stated that the MD does not sign the Pay slips but the manager signs. CW1 added that Exhibit C2 does not show anything about Xmas bonus other than salary. She also stated that the computation of N1.3m as severance allowance was done by the Manager and that the cheques were given to her as her name was at the back and that the DAR on the Bank cheque marked DAR to mean Drawer’s Attention Required and she did call the 3rd Defendant.
Upon the discharge of CW1, Claimant closed her case while the Defendant opened theirs by calling three witnesses in persons of Mrs. Offonmbuk Mapaisimba Harry as DW1, Amalika Frank as DW2 and Sotonye Irisominabo as DW3. All three witnesses adopted their witness statements on oath which were respectively marked as D1(a), D1(b) and D1(c). One document was tendered through DW1 and was admitted under protest as Exhibit D2 (a) – (c) while three documents were tendered through DW2 and were admitted as Exhibits D3 (a and b), D4 and D5. Through DW3, one document was tendered and admitted as Exhibit D6.
Arising from the statement of defence and witness statements on oath, the case of the Defendant is that the Claimant was never appointed as company secretary as her name was never submitted to Corporate Affairs Commission and that while the Claimant was employed as adhoc staff, no letter of employment was issued to her while the employment letter dated the 15th of December, 1998, Pay slips and letter of termination were forged because as at 1997 and 1998, the 1st and 2nd Defendants’ registered address was No. 38, Ikwere Road, Port Harcourt and not No.14 Awka Street, Off Aba Road and that one Juliet K. Katomba was employed as computer Operator. The Defendants added that the Claimant and the 3rd Defendant were lovers whose relationship turned sour sometime in 2016 and the Claimant threatened that she would inform the 3rd Defendant’s wife and children of their affair while the Claimant demanded for the sum in the promissory note as compensation and parting gift. The Defendants added that the Claimant have been receiving salary and other gifts like children school fees from the Defendants in the sum of N2,519,000.00 between 2015 – 2019 as reflected in Zenith Bank statement of account and the sum of N1,575,000.00 between 2015 to 2019 as reflected in GTbank statement of account. The Defendant stated that the Defendants do not have any policy on benefit or allowance while adding that this suit is incompetent.
Counsel to the Claimant had no cross examination for DW1 and DW2 and upon cross examination of DW3, he posited that he is an employee of the 1st Defendant and did not employ the Claimant. He also admitted that he is not responsible for paying the Claimant and though he knows what happened between the Claimant and the Defendant in some instances, he admitted that the Zenith and GTbank accounts are not his.
Upon the discharge of DW3, the Defendants closed their case and matter was adjourned for adoption of final written address. On the 19th of December, 2022, the Defendants filed their final address arising from which counsel to the Defendant, K.S. Elenwo Esq. formulated five issues for determination to wit:
a. Whether Exhibits C2, C3 and C8 are legally admissible.
b. Whether the Claimant has proved that she was a staff of the 1st and 2nd Defendants.
c. Whether the Claimant has proved her claim in relief B to be entitled to the sum of N2,805,000.00 as arrears of the salary for 51 months from December 2014 till February 2019.
d. Whether the Claimant is entitled to the sum of N1,320,000.00 being claimed severance payment/entitlement for 24 months, in accordance with the company policy of the 1st and 2nd Defendants.
e. Whether the Claimant is entitled to the claim in reliefs d, e and f of the claim.
In arguing issue one, counsel contended that the law is that for a document to be admitted, the document must pleaded, relevant and admissible. Counsel cited the cases of Olomo vs. Ape (2013) LPELR – 22327 (C.A.) (PG. 24 PARAS. A) and Statoil Nig. LTD vs. Inducon (NIG) LTD. & Anor. (2012) LPELR – 7955 (C. A.) and added that Exhibit C2, is addressed to Miss Juliet K. Katomba, while throughout the pleadings and the evidence in chief of the Claimant, there is nowhere the name Juliet K. Katomba was mentioned.
With regards to exhibit C3, counsel posited that the exhibit is not signed either by the Managing Director or the Accountant of the 1st and 2nd Defendants to show that it originated from them while the position of the law is well settled that for a document to be admissible, the document must be a signed document as an unsigned document cannot be admissible in law and has no probative value in law. Counsel cited the cases of Nammagi vs. Akote (supra) at (Pp. 194 – 195, paras. H – B), GUMAN VS SAIDANI & ORS (2019) LPELR-47665 (C.A). Bright &Ors VS. IWUOHA (2018) LPELR-43758 (CA) and Lawrence VS. Olugbemi &Ors. (2018) LPELR- 45966 (CA).
With regards to Exhibit C8, counsel contended that Rule 10(1), (2) and (3) of the Rules of Professional Conduct in the legal Profession, 2007 effective from 1st April, 2015, a counsel writing any legal process or letter must signed and append a seal failure of which same shall be deemed not to have been properly signed and filed. Counsel cited the case of Yaki vs. Bagudu (2015) 18 NWLR (Pt. 1491) Pg. 288 at (Pp. 315-316, Paras E-B; 318, Paras C-F; 321-322, Paras. F-A; 342-343, Paras. F-A; 344-345, Paras H-C; 349-350, Paras F-B).
In arguing issue two, counsel posited that the Claimant testified on 29/7/21 and adopted her Statement of Oath filed on 15/9/2020 where upon she said her name “Mrs. Juliet Ubanwa” but tendered Exhibit C2 which is a letter of appointment addressed to Miss Juliet K. Katomba and no explanation was given as to the difference in the names.
Counsel contended that the position of the law is that he who alleges the existence or non-existence of anything must prove it in line with Section 131 (1) and (2), 132 and 133(1) of the Evidence Act 2011 and the case of F.U.T Minna vs. Oludayo (2018) 7 NWLR (Pt. 1617) Pg. 176 (PP 195, Paras A-B, 195-196, Paras H-N).
In arguing issue three, counsel restated the testimony of the Claimant in relation to her salary and posited that from the evidence, it is obvious that the salary of the Claimant was never increased from N25,000 (Twenty-Five Thousand Naira) only to N55,000 (Fifty-Five Thousand Naira) only adding that a company secretary that knows that the company is incorporated in Nigeria, her letter of employment stated her salary only for an increment to be made orally shows that the Claimant is not a witness of truth.
Counsel submitted that parties are bound by written contract, in the instant case exhibit C2, which is the letter of employment and cited the case of AKINOLA VS. Lafarge Africa PLC (2022) 12 NWLR (Pt. 1844) Pg. 379 at (Pg. 400 – 401 paras, G-A, p. 410, PARAS, A-C)
In arguing issue four, counsel relayed the testimony of the Claimant in relation to severance allowance and posited that from the evidence, the Claimant failed to prove that there is a company policy upon which the severance was calculated. Counsel added that he who alleges must prove while citing Section 131 (1) and (2), 132 and 133(1) of the Evidence Act 2011.
Counsel also posited that the testimony of DW3 through his statement on oath was not controverted and added that where documentary evidence supports oral evidence, it could be used as a hanger for which to test the veracity of oral evidence. Counsel cited the case of BUNGE VS. RIVERS STATE (2006) 10 MJSC Pg. 136 at (Pg. 184, para, D).
In arguing issue five, counsel posited that the Claimant can only be entitled to reliefs d-f where reliefs A-C succeeds and added that the claimant has failed to prove reliefs A – C.
The Claimant on her part filed her final written address on the 28th of February, 2023 and arising therefrom, counsel to the Claimant Ikechukwu Opara Esq. formulated five issues for determination to wit:
1. Whether or not Exhibits C2, C3 and C8 are legally admissible?
2. Whether on the state of pleadings and evidence led, the Claimant has established she was a staff/secretary of the Defendants and is entitled to arrears of her salary and severance/entitlement due staff of the 1st and 2nd Defendants?
3. Whether or not the 3rd promissory note made out to the Claimant and whether he can resile from same.
4. Whether the argument in the final written address of counsel to defendant can be substituted for defendant’s pleadings or evidence?
5. Whether on the state of the pleadings and the evidence led the Claimant has established that it is entitled to her claims for damages against the Defendant?
In arguing issue one, counsel posited with regards to Exhibit 2 cannot be read in isolation to the other documents relied upon by the Claimant, i.e. Exhibits C3, C4, C5, C6 and C9, which are all documents emanating from the Defendants and tendered by CW1 and which all bear the name Juliet Ubanwa, the Claimant.
Counsel also referred to Exhibits DW2 and DW3 and posited that all the documents bear the name Juliet Ubanwa in reference to the Claimant, and, read in conjunction with paragraphs 5, 9, 12, 13 and 14 of the defendant’s amended statement of facts leaves no one in doubt that at all material times the identity of the claimant was never in doubt to the defendants whether as Juliet Katomba, when she when she was employed or later as Mrs. Juliet Ubanwa.
With regards to Exhibit C3, counsel posited that same emanated from the Defendants as it was pay slips issued to the Claimant by Defendants and which she relies on as evidence that she received salaries as a secretary.
Counsel added that the defendant did not lead any evidence to show that pay slips of the Defendants are signed by the Managing Director or accountant as a basis to fault Exhibit C and to argue that they are not signed.
With regards to Exhibit C8, counsel posited that same is a private letter from the Claimant’s counsel to the 3rd Defendant and does not fall within the purview of Rule 10(1), (2) and (3) of the Rules of Professional Conduct in the Legal Profession, 2007as suggested by Defendant’s counsel, as it is not a legal process.
In arguing issue two, counsel submitted that the law is trite that facts admitted need no further proof and cited the case of Omega Bank (Nig.) Plc vs. O.B.C Ltd (2002) 16 NWLR (PT 794 483) at pg. 507.
Counsel posited that while Exhibit C2 states clearly that the Claimant is employed as a secretary, the 3rd Defendant referred to the claimant as “my secretary” in Exhibit C4.
In arguing issue three, counsel submitted that the 3rdDefendant cannot and has not denied that he made out the promissory note to the Claimant and cannot now repudiate it and cited the case of Mabamije vs. Otto (2016) 13 NWLR (PT 1529) 171 Ratio 3.
In arguing issue four, counsel submitted that the assertion by counsel to the defendant in defendants’ final written address that the evidence of the Claimant is unchallenged is misleading. Counsel added that none of the Defendants was called upon to give evidence in this action as D.W.1 and D.W.2 were mere bankers to the Defendants subpoenaed to produce statements of account, while D.W.3 admitted that he is an employee of the 1st and 2nd Defendants and son of the 3rd Defendant while admitting under cross-examination that he is not privy to the transactions between the Defendants and Claimant and that none of the statements of account (Exhibit D.W. 2 and D.W. 3 belonged to him.
In arguing issue five, counsel posited that the Claimant’s claim is hinged upon failure of the Defendants to pay her salary arrears and entitlements and added that the primary object of an award of damages is to compensate the Claimant for the harm done, or a possible secondary object is to punish the Defendant for conduct which inflicted that harm. Counsel cited the case of Eliochin (Nig.) Ltd vs. Mbadiwe (1989) 1 NWLR (PT. 14) 47; British Airways vs. Atoyebi (2015) EJSC (Vol. 2) 42 S.C.
Counsel concluded that from the evidence led by both parties in this suit, the Claimant has proved its case on the balance of probability to entitle it to the award of all the relief sought.
By way of reply on point of law, counsel to the Defendants argued that once a Statement of Defence is amended it supersedes the original one and the court cannot rely or act on it again. He cited the case of Wema Bank Plc vs. Olotu (2022) 13 NWLR (Pg. 213) at (Pp. 237 – 238).
Counsel also contended that issue of admissibility is a matter of law and not facts, assuming but without conceding that the Defendants did not deny or concede to the admissibility of the document that is not signed, that cannot make the document to be admitted in evidence when it is legally inadmissible.
Counsel maintained that Rules 10(1)(2) and (3) of Profession Conduct in the Legal Profession, 2007 did not state that it is a private or public document, but all it said is legal process or letter.
Counsel posited that the evidence of DW3 is competent and the DW3 is competent to testify on behalf of the Defendants and his evidence cannot be hearsay evidence while it cannot be said that the Defendants did not call any evidence.
Upon a careful evaluation and understanding of all the processes filed by the parties in this suit, I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and painstakingly examined all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses and Defendant’s reply on point of law.
Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties and Defendants’ reply on point of law, the sole issue for the determination of this suit is to wit:
Whether or not Claimant is entitled to the reliefs sought in view of the facts and evidence before this court.
Before resolving the sole issue, I must state at this juncture that I have taken cognizance of the notice of preliminary objection filed by the Defendants on the 19th of December, 2022 whereby the Defendants have contended that this suit is incompetent and that this court lacks jurisdiction to entertain same.
In view of the fact that the said preliminary objection is challenging the jurisdiction of this court, it is imperative to accordingly address same prior to attempting a resolution of the substantive suit. It is trite that a preliminary objection must be given attention at the earliest possible time because where the court lacks jurisdiction, the proceeding no matter how well conducted will be a nullity.
Having said that, I reckon that the said preliminary objection is accompanied by a written address wherein counsel to the Defendant formulated two issues for determination to wit:
i. Whether this suit is competent
ii. Whether this court has the jurisdiction to entertain same.
In arguing issue one, counsel posited that the law is settled that where an applicant commences an action and there is non-compliance with any of the stipulated condition for setting the legal process in motion or any suit instituted in contravention of the condition is incompetent and the court cannot entertain the suit. counsel Cited the case of Ajibola vs Sogeke (2003) 9 NWLR (Pt. 826) Pg. 494 and Ukpabio vs NFVCB (2008) LPELR-4129 (CA).
Counsel contended that on 29/7/2021 when the witness gave her evidence in chief, she adopted her Statement on Oath which was marked as C1, and under cross-examination by the Defendants’ Counsel, CW1 admitted signing her Statement on Oath before her lawyer in his office.
Counsel added that by section 13 of the Oath Act, 2004, every Statement on Oath must be signed before the Commissioner of Oath, and failure to so do is fatal and makes the Oath invalid. Counsel cited the case of NAMMAGI VS. AKOTE (2021) 3 NWLR (PT. 1762) PG. 170 AT (Pp. 195 – 196, paras, G – C).
Counsel argued further that where the word used in a statue or Rules of court is ‘shall’, it is a command or mandatory and by Order 3 Rules 2(1) and Rules 9 of the National Industrial Court of Nigeria (Civil Procedure Rules) 2017, a Claimant must file his written statement on Oath while filing the Action by Complaint. Counsel added that the claimant did not do so because the statement on oath was signed in her lawyer’s office. Counsel cited the case of FCDA VS THE GOVERNING COUNCIL OF THE NATIONAL (2009) LPELR – 8148 (C. A.) PER, ABOKI, J.C.A. (PP. 33 PARAS, B). Also see the case of UGWU VS. ARARUME (2007) 7 M.J.S.C. PG. 1 AT (PG. 30) PARAS, B-C.
In arguing issue two, counsel contended that jurisdiction is a threshold matter as it is fundamental to adjudication and it is usually conferred on the court by the Constitution or statue. He added that it is the foundation on which the court exercises judicial powers and absence of jurisdiction renders the entire process a nullity, no matter how well it is conducted. Counsel cited the case of Esabunor vs. Faweya (2019) 7 NWLR (Pt. 1671) Pg. 316 (at pg. 336, para A).
Counsel added that where the Court holds that the Statement on Oath of CW1 is incompetent and liable to be struck out., it then follows that the suit is not anchored on any evidence and should be struck out and where it is struck out, there is nothing left for the court to adjudicate on as the court is robed of its jurisdiction to entertain the suit.
Reacting to the foregoing, Claimant filed a reply on point of law on the 27th of February, 2023 and arising therefrom, counsel to the Claimant formulated a lone issue for determination to wit:
Whether this suit is incompetent on ground of the witness deposition of the Claimant’s witness CW1 having been signed by her in her lawyer’s office?
In arguing the lone issue, counsel contended that courts are now duty bound to avoid technicalities in deciding matters before it and referred to the case of Federal Republic of Nigeria v Dairo (2015) All FWLR (Pt. 776) 486 SC.
Counsel added that the rules of court is to aid the speedy dispensation of justice and not to clog the wheel of justice as the court should strive to do substantial justice while concluding by urging the court to discountenance the Defendant’s objection.
Upon a careful consideration of the grounds upon which the instant preliminary objection is predicated, the argument proffered by both counsel to the Claimant and the Defendant, I find that the lone issue for the determination of the preliminary objection is to wit:
Whether or not the witness statement on oath of CW1 is incompetent.
In addressing the lone issue, I must start by positing that it is not in contention that CW1 - who is the claimant and the sole witness called in support of the Claimant’s case, admitted during cross examination on the 29th of July, 2021 that her witness statement on oath was signed in her lawyer’s office.
It is on the basis of the said admission that counsel to the Defendants has filed the instant preliminary objection and contended that the witness statement on oath is incompetent and should be expunged and that upon same being expunged, it would mean that the Claimant has failed to comply with the Rules of this court which requires a witness statement on oath to accompany the Complaint and the implication of same would be for this court to dismiss the suit for lack of jurisdiction.
The only response of counsel to the Claimant is that the court should not be swayed by technicalities but should rather pursue the course of substantial justice.
In resolving the foregoing contention, I must say that the starting point is to appraise the position of the law in relation to validity of a witness statement on oath sworn before a person other than a Commissioner for oaths, Notary Public or other persons authorized to take oaths.
To start with, section 112 of the Evidence Act, 2011 prohibits the swearing of an affidavit before one’s legal practitioner and 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."
Bearing the foregoing provision in mind, it is abundantly clear that the act of signing the witness statement in the chamber of one’s lawyer is without a doubt a violation of section 117(4) of the Evidence Act which requires the signing of the witness statement on oath to be before the commissioner for oath. The said section 117(4) states that:
"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." (emphasis mine).
With regards to the combined effect of sections 112 and 117 (4) of the Evidence Act as it relates to legality or otherwise of a witness statement on oath sworn before one’s legal practitioner, the Court of Appeal in the case of ALIYU vs. BULAKI (2019) LPELR-46513 (CA) considered both sections of the Evidence Act and held that:
“The combined effect of Sections 112 and 117 (4) is that for an affidavit to be admitted in evidence or allowed to be used as evidence, it must not only be sworn before a person so authorized to administer the oath such as the commissioner for oaths or a Notary Public, it must also be signed in the presence of such an officer”.
Consequent upon the foregoing it must be reckoned that it is the act of signing the witness statement on oath before the commissioner for oath that authenticates it as having been sworn ‘before’ the commissioner for oath as the deponent is identified by the Commissioner for oaths for the purpose of the oath.
While Counsel to the Claimant failed to present a contrary position of the law in reaction to the case of NAMMAGI VS. AKOTE (supra) as cited by counsel to the Defendants, I must state that the authority cited by counsel to the Defendants truly represents the latest position of the law and confirms the earlier position of the Court of Appeal in the case of Aliyu v Bulaki (Supra).
Although the earlier position of the Court of Appeal used to be that in the case of UDUMA VS. ARUNSI & ORS. (2010) LPELR - 9133 CA. where Justice Ogunwumiju JCA (as she then was) adopted the posture of reckoning that a witness statement on oath once adopted is cured of any defect and is valid and competent.
The Court of Appeal in the latter case of ALIYU vs. BULAKI (2019) LPELR-46513 (CA) reckoned that the Supreme Court’s position in BUHARI VS. INEC (2008) 12 SCNJ 1 AT 91 was not taken into cognizance in the earlier decision and in view of the fact that the Supreme Court’s decision is binding on the Court of Appeal, the only possible outcome was to adopt the position of the Supreme Court in the absence of any authority showing that the Supreme Court has overruled its decision as laid down in BUHARI VS. INEC (2008) 12 SCNJ 1 AT 91.
The current position of the law as stated in the case of NAMMAGI VS. AKOTE (supra) as cited by counsel to the Defendants is indeed instructive as it confirms the position in Aliyu v Bulaki (Supra). For avoidance of doubt, the Supreme Court in NAMMAGI VS. AKOTE (supra) affirmed the same disposition it took in the case of Buhari v INEC (2008) (supra) to the effect that a witness deposition made before one’s legal practitioner must be rejected. See dictum of Per Abba JSC at pages 195-196 Para. G-E.
Bearing in mind the fact that the foregoing decision of the Supreme Court in NAMMAGI VS. AKOTE (supra) was delivered on 4th October, 2019, I take into cognizance the decision of the same Supreme Court in the case of ADEJUGBE V ADULOJU (2022) 3 NWLR (Pt.1816) 131 (Pp.158, Para A), where the court had posited that the defect in form of an affidavit does not affect its validity. In this regard, I must state that the position in Adejugbe’s case is predicated on the form of an affidavit which was sworn before a commissioner for oaths and is therefore distinguishable from the instant case. The decision makes a clear distinction between form and substance of an affidavit as it is clear that swearing an affidavit before a person other than whom it is permissible to be sworn, is a matter of substance rather than form.
For avoidance of doubt, the court in the case of SOCACIC WEST AFRICA (NIG.) LTD V. ACCESSFILED (NIG.) LTD (2021) LPELR-56405(CA) held that:
"Now the bone of contention is whether a deposition on oath signed in a lawyer's office is admissible in evidence. The principle of law is well settled beyond argument that depositions on oath must be sworn before the person authorized to administer it, with the deponent himself appearing before the said person authorized to administer the oath. Thus, a deposition on oath must be signed by the deponent in the presence of the person authorized to administer oaths. See BUHARI V. INEC (2008) 4 NWLR (PT. 1078) 546, ABDULLAHI ADAMU NAMMAGI V. DR. HUSSAINI TABAGI AKOTE (2021) 3 NWLR 171 (SC), ASHIRU V. INEC (2020) 16 NWLR 421 (SC); SECTION 13 OF THE OATHS ACT; SECTIONS 113 AND 117 OF THE EVIDENCE ACT, 2011. Therefore, any deposition on oath sworn before any other person other than a commissioner for oaths, a notary public or any other person so authorized by law is incompetent and shall be and must be discountenanced. The failure to swear before a commissioner for oath is a fundamental defect. It is not a defect as to form but a defect as to substance. It is not an irregularity that can be regularized. Such defect offends the law of evidence. See: ABDULLAHI ADAMU NAMMAGI V. DR. HUSSAINI TABAGI AKOTE (SUPRA) AND BUHARI V INEC (2008) 4 NWLR (pt. 1078) 546. Going by the principle of stare decisis, the trial Court and this Court is bound to follow the principle as laid down by the apex Court in the above cited authorities." Per UCHECHUKWU ONYEMENAM, JCA (PP. 11-13 PARAS. F). (underline mine).
What the foregoing indicates is that the current position of the law on the consequence of not signing a witness statement on oath before the Commissioner for Oath is that the witness statement is incompetent and same is to be expunged along with all the exhibits tendered through same. For want of clarity, the court in the case of ALIYU vs. BULAKI (supra) held that:
“as earlier stated, the witness deposition must be duly sworn before the appropriate person authorized to take oath in accordance with the law. Any defect in the swearing of the deposition, as hitherto held in this judgment, is intrinsic to the competence of the deposition and renders it incompetent. See BUHARI VS. INEC (Supra). This is why in my resolution of the first issue, the written statements on oath (deposition) of both PW1 & PW2 which by their own showing were sworn in the chambers of their legal practitioner and found to have violated the provisions of Sections 112, 117 (4) of the Evidence Act and section 19 of the Notary Public Acts, were, on the authority of BUHARI VS. INEC (Supra), expunged from the record together with the exhibits tendered through the two witnesses." Per WAMBAI, JCA. (P.37,Paras.B-F).
Before concluding on the status of the witness statement on oath, I must mention that I am not oblivious of the contention of Counsel to the Claimant who contended that the preliminary objection is based on technicalities. In this regard, the court in ALIYU V BULAKI (supra) discountenanced the argument that to expunge the said witness statement on oath will amount to technicality on the ground that the Court is bound by the decision of the Supreme Court in INEC v Buhari (Supra). His Lordship held that:
“Unarguably, the hey days of technicalities are gone. However that dictum or should I say, that slogan has to be put and understood in its right perspective. Where a matter has been settled by the apex Court, on what ground will this Court or any subordinate Court stand to decide otherwise? This Court possesses not the power to depart from or ignore the position taken by the apex Court on the same or similar facts. Doing so will amount to gross judicial impertinence which this Court should not and cannot dare. The learned respondent's counsel has not made a case that the decision in the case of BUHARI VS. INEC (supra) has been overruled by a later decision of the same Court. He has not and cannot successfully make a case why I should depart from or disobey the decision in BUHARI VS. INEC and were such a case to be made by the learned counsel in the absence of any decision of the same apex Court to the contrary, I will, in obedience to the said decision in BUHARI'S case, gladly disobey the learned counsel. In the circumstance, I am bound by the decision in the BUHARI VS. INEC'S case (supra) and to act as was therein sanctioned”. Per WAMBAI, JCA.(Pp.12-26,Paras.C-F).
Applying all the foregoing authorities to the instant suit, the only outcome, upon the admission of CW1 that her witness statement on oath was signed in the office of her lawyer, as she never disclosed to the court whether or not her lawyer was a notary public or any officer authorized to administer oath, is to expunge the said witness statement on oath of CW1 marked as C1. The further consequence of expunging the said C1 is that all the Exhibits tendered through CW1 upon the adoption of C1 i.e. Exhibits C2 – C9 (whether under protest or not) are accordingly expunged from the record of this court.
Also, the implication of the foregoing is that the Claimant has no statement on oath before this court and the absence of same creates a feature which makes it practically impossible to entertain this suit as the said CW1 is the only witness of the Claimant before this Court. Moreso, expunging the said statement on oath leaves the Complaint filed by the Claimant bare without a statement on oath in defiance of Order 3 Rule 9 of the Rules of this Court which stipulates that a complaint shall be accompanied by a written statement on oath of all witnesses listed to be called by the Claimant.
In view of the fact that the Complaint before this court bears no witness statement on oath, same having been expunged, the consequence is that the present circumstance indeed renders the Complaint to be incompetent and same is accordingly struck-out.
In IKWUAGWU AJALA & ANOR v. H.R.H EZE PETER GINIKANWA & ORS (2018) LPELR-44469(CA) the court held that, "The law is trite that where a case is not heard and determined on the merits, the appropriate order to make is to strike it out, if it cannot be determined on the merits. See Kayode & Ors Vs Abdulfatai & Ors (2012) LPELR - 7874 CA; Alsthom S.A. Vs Saraki (2005) 3 NWLR (Pt. 911) 208; Ogwuowere & Ors Vs Udeh & Ors (2016) LPELR - 41028 (CA)."
To this effect this suit is incompetent and same is accordingly struck out
Judgment is accordingly entered.
I make no order as to cost.
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HON. JUSTICE Z. M. BASHIR.
JUDGE