Affidavits Versus Written Statements on Oath

The idea might seem innocuous. The simplicity approach which we attribute to what seems like a difference in the two documents - Affidavits and written statements on oath - might not be a serious issue at all. It could however, be a big deal. At least for now, if the Court of Appeal is asked to make a pronouncement on it, then it is a big deal. I should not bore you any longer.

Affidavits and Written statements on oath are two forms of documents we use on daily basis in litigation.
Although we use Affidavits for several purposes; particularly interlocutory applications and for some forms of originating processes, written statements on oaths, by the various rules of Court, are filed for special purposes. These include, but not limited to suits commenced by way of writ of summons and a special case - election petitions. For the purpose of clarity, written statements on oath are meant to shorten the time spent on examination in chief.

The similar nature of the two documents is not unconnected to the fact that both are used in judicial proceedings, make use of headings of the court and the name of the parties where necessary. The two documents also share a similar feature in the opening; the deponent has to give his details and depose to facts within his / her knowledge. The rule against hearsay  is also common to both while in the closing, the traditional clause of making the oath in accordance with the law is subscribed on it. Both documents are also required to be sworn before a commissioner for oaths or any prescribed officer... I could go on.

These similarities, when put side by side, could trigger a conclusion - that the documents are similar in all respects and that the same rules should guide both. Here is the snag. Affidavits by its nature are provided for under the Evidence Act, while the Rules of  various Courts provide for written statements on oath or the enabling laws with regards to other originating processes like the Electoral Act, 2010 (as amended) and its schedules with regards to Election Petitions. The general misconception held by a majority however, and which would be shown through case law, is that the rules governing Affidavits under the provisions of he Evidence Act, 2011 are also applicable to written statements on oath. Affidavits are, by law, required to be filed in compliance with the provisions of the Evidence Act, 2011. An affidavit is not meant to contain extraneous matters like objections, legal argument, conclusions or prayers and when altered, affidavits have to be re-sworn as required by law. Will it be correct to conclude that written statements on oath ought to be governed by the same rules? Will the rule of alteration of Affidavits govern written statements on oath? Should written statements on oath be devoid of objections, legal argument, conclusions or prayers?

The Court of Appeal in Lambert v. Okujagu (2015) ALL FWLR (Pt. 808) 652 was called upon to make a pronouncement on the differences of the two documents. Counsel to the appellant had argued that the witness statement of one of the witnesses called during trial, and which was relied upon, was altered without being re-sworn as required by law. He argued that the written statement on oath was defective on that basis, and that the court or a witness cannot correct mistakes on affidavits* suo motu. Counsel to the Respondent on the other hand argued that although both documents have similar traits, the rules governing affidavits are quite different from those governing written statements on oath. In sum, he argued that while Affidavits can rely on the Evidence Act as its basis, the Rules of Court which witness statement trace its origin to does not have provisions governing witness statements. Lastly, the respondent's counsel argued that an affidavit by its nature, can stand alone as evidence itself, while a written statement on oath needs to be confirmed on oath by the maker.

The court, while agreeing with counsel to the Respondent, made recourse to the Rules of Court relating to the filing of witness statement and rules on taking oral statement in examination in chief, which is now limited to confirmation of written deposition and tendering documents referred to in the deposition in evidence. The court also alluded to the fact that the Rules specifically mentions Affidavits in interlocutory applications in concluding that the two documents are different. The court concluded as follows:

"There is no law that specified that all sworn documents or oaths must comply with the provisions of the Evidence Act as relates to affidavits. It is therefore not a valid argument to say that sworn deposition or statement of witnesses under the civil procedure rules must accord with the form of an affidavit" 

 The idea of filing written statements on oath, one would agree stems from the proactive innovation of reducing time taken in examination in chief and reduce the stress for the judges. It is not, with due respect to that school of thought, the same with affidavit evidence as enshrined under the provision of the Evidence Act. Quite apart from the decision in Lambert v. Okajagu, one could only wonder the responses to questions which would ordinarily be allowed under examination in chief, but which questions would cause answers contrary to the rules of Affidavit. Unless, and I do not concede,  when questions relating to objections, prayers and conclusions are not allowed during oral examination in chief, perhaps, just perhaps, we can begin to imagine striking out lots of paragraphs from written statements on oath. A thought that would stretch this discussion to absurdity.

In sum, 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.