Beyond Compliance and Structuring in the Tech Industry: Focus on Values-Based Dispute Resolution Cover | Wole Aroge

by Legalnaija Blawg | Nov 15, 2022 | Uncategorized

Introduction

Companies in the tech industry are often presented with mundane problems: that of what do we do with pending and imminent litigation? How to derive positive result from one? Whether protracted litigation or litigation generally may be prevented or preemptively resolved? How value assessment of concluded litigation may be used to identify potential areas of opportunity to mitigate risk?

This paper offers answers to these questions and attempts to raise the reader’s consciousness toward the importance of these issues.

Common Areas Where Disputes Arise

Labor and Employment: keeping valued employees and disengaging unsuitable employees usually cause as much difficulty as recruiting. Moreso all of these processes have avoidable landmines beginning as early as recruitment. Firstly, let’s bear in mind that although employment traditionally takes two forms, namely: contract of service[1] and contract for service[2], both having distinct legal and operational implications. For tech companies, in the spirit of innovation and corporate values-driven eye for efficiency at affordable cost, introductions like work-for-equity[3] employment arrangement are being adopted and there is no gainsaying that this helps micro startups through their early periods to fruition. However, this employment arrangement presents risks far above what traditional employments do.

Structuring and Investment: the tendencies for disputes can begin right from the incubation of and sharing an idea, through forming a company, creating a product and successfully attracting investment. Some of these disputes arise between founders; founders and prospective investors; founders and investors; founders and regulators. The subject of such disputes includes unauthorized disclosure or use of confidential information; shareholding and control; product; non-compliance with extant laws and relevant regulations.

Intellectual Property and Confidentiality: in an industry such as tech that uses peculiarly volatile but highly valuable and sensitive products, the risk of intellectual property breach is not only high but potentially more damaging. This poses one of the major threats to the industry and of course a major area where disputes often arise.

Contracts: contracts in tech, like other commercial contracts often require interpretation, and enforcement where there is breach of some or all obligations, it is therefore an area where concrete litigation preventive or remedial (against reactive) measures should be deployed timeously.

Payment Services, Loans and Recovery: from experience, this area of fintech seems to be the most volatile target for internet fraud or phishing which usually turns out to be untraceable and when traceable through onward transfer or payment destinations, the mechanisms required to secure recovery are too expensive or uneconomical. Equally, loan and debt recovery are other areas where dispute arises more often than it does in payment service.

Data: through regulatory compliance, management members in tech companies have become familiar with data protection laws, their obligations and the importance of adherence. Nevertheless, this area still remains a crucial area where disputes often arise between the company and customers or third parties and between the company and regulators.

Other areas include: actions of the board of directors and documentation; methods of marketing and distribution; real estate planning; insurance, health care and pension coverage; securities law compliance; product liability etc.

Preventive Measures

While there is precautionary cover by offered by lawyers during structuring, contracts stages as well as regulatory compliance, the cover usually falls short in forestalling all threats of litigation. In fact, I daresay that there are disputes that arise regardless of how perfectly a company is structured or its contracts negotiated, drafted and reviewed, some disputes also appear to be unforeseeable or inevitable.

While some of these problems or disputes may be prevented through what we have devised as dispute resolution risks-based legal audit, others require specialized remedial measures to achieve values-based results through effective dispute resolution mechanisms, many of which are already available but largely untapped.

What is legal audit? Generally, a legal audit focuses on a single aspect of a company’s business and analyzes the legal position. A legal audit ensures that no hidden risks exist within a company. The problems a legal audit identify are those that put the company at risk for penalties and litigation. While a legal audit performs an in-depth analysis of one area of a company, it is not so intrusive as to interfere with a company’s day-to-day operations.

In the form of legal audit that this paper proposes, instead of focusing on one specific area for a company’s operation, it will focus on all or high-risk aspects with the objectives of assessing impending litigation risk, the degree of possible exposure and outlining action steps to forestall litigation and/or claims.

To conclude, let’s consider an example in the area of labor, this legal audit will focus on the need to ensure cover for predictable areas of disputes from regularization of recruitment documentation; developing and adherence to company policies; developing and periodically updating disciplinary and termination policies in line with extant laws and contract; proactive action steps to settle with employees who may raise valid claims for unlawful termination, dismissal or other causes.

Remedial Measures

Here, this paper presents to the reader the idea of effectively reducing protraction in courtroom litigation through effective case-flow and case management, effective judgment enforcement and adoption of innovative trends.

With respect to debt and loan recovery, innovative trends like the establishment of the small claims court brought about by the Lagos State Judiciary which, now serves as model for other states provides a giant leap in our judicial process as well as viable mechanism through which fintech companies may recover loans and debt within the 60 days prescribed by the practice direction for small claims court. A small claims court is created with jurisdiction to entertain simple and liquidated debt recovery claims not exceeding N5, 000,000.00 and counter claim not exceeding N10, 000,000.00. It is time and cost saving because there is quick and efficient resolution of disputes within 60 days of filing. There is also limited adjournment which results in fast-track proceedings. In practice, courts have an average consolidated time to disposition of 66 days per case.

Upon completion of litigation, it is important to encourage and accept proposition from lawyers to carry out value assessment of concluded litigation which may be used to identify potential areas of opportunity to mitigate risk and set action steps that can provide cover for your company from exposure and depleting viability.

Suitable alternative dispute resolution (ADR) mechanisms: this is another viable solution to mitigating lengthy and protracted court procedures. The methods of ADR include Negotiation; Mediation; Conciliation; Arbitration.

Some courts have created ADR Centers to ease out of court settlements and promote the adoption of alternative judicial mechanisms. These courts include:  National Industrial Court–ADR Center; Lagos State High Court – Lagos Multi-Door Courthouse (LMDC) and The Federal High Court.

Finally, it is imperative and in line with the objectives of this paper to highlight the effects of ADR obligations created by contract, the extent of this obligation and the need to only insert ADR clauses that best suit the type of contracts because one size does not in fact fit all. From experience, parties to contracts have hit stumbling blocks as a result of the mandatory arbitration clause in their contract for example. This is because although Arbitration is highly effective in commercial disputes and in disputes generally, unlike other methods of ADR it is not cost-effective, therefore it is not suitable for contracts where for example, the parties are startup companies or founders, or contracts whose subject involve low monetary value.

What is the effect of an ADR clause in a contract?

When a contract has an ADR clause, generally, when a dispute arises it places an obligation on the parties to such contract to firstly explore the method of ADR specified in the contract in the order that the contract prescribes, before proceeding to court if a resolution is not reached.

What happens when one party decides not to participate in order to frustrate the other party?

The law provides that it is enough if the aggrieved party notifies the defaulting party of his intention to explore ADR, where the defaulting fails to take any step, the aggrieved party may proceed by submitting such dispute to the court without falling in breach of the ADR clause.

Conclusion

The questions examined in this paper which typify the challenges being faced by tech companies and the proposals offered underscore the importance of embracing a proactive approach to prevent avoidable litigation and adopt effective and values-based dispute resolution processes where litigation is unavoidable or beneficial.

[1] A Contract of Service is an agreement between an employer and an employee

[2] Contract For Service is a contract where instead of an employer-employee relationship, there is a client-contractor type of relationship

[3] Working for equity means a company compensates employees with shares in a company

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by Legalnaija Blawg | Nov 5, 2022 | Uncategorized

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The Absence Of An Oath Clause In A Sworn Declaration: How Fatal? | Abdulkabir Badmos

by Legalnaija Blawg | Nov 1, 2022 | Uncategorized

The Absence Of An Oath Clause In A Sworn Declaration: How Fatal?[1]

INTRODUCTION

At one point or the other in one’s legal practice in Nigeria, there is the likelihood of haven been faced with the challenge of wriggling out of a situation where due to inadvertence of counsel, the oath clause is omitted in an affidavit or a witness statement on oath to be used in court. This error is sometimes discovered only after the affidavit has been filed and the case is to come up for hearing. While many litigators who find themselves in these unpleasant situations simply blame the omission on their secretaries, the junior lawyers in the firm bear the brunt in others. This article therefore interrogates the absence of an oath clause in a sworn declaration vis-à-vis the provisions of Oaths Act, LFN 2004, conflicting judicial interpretations of the Court of Appeal and until the recent intervention by the Supreme Court of Nigeria.

SWORN DECLARATIONS AND THE REQUIREMENT OF AN OATH CLAUSE.

In the trial of cases in Nigeria, the Rules of the various courts provide that evidence may be adduced either by filing an affidavit, as in suits commenced by originating summons/motions procedure or witness statements on oath where the suit is commenced by a writ of summons. Whichever of these procedures is adopted, a written declaration on oath is required as an integral part of the frontloaded processes (or interlocutory applications) before the Court, prior to the date set down for hearing. In defining an affidavit, the court held in the case of Onujabe v. Idris[2] as follows:

“An affidavit is a statement of facts or declaration made either on oath or affirmation before an authorized person. The averments in an affidavit are admissible as a fact until disproved because the averments are sworn before a commissioner for oaths. The life of an affidavit is the declaration on oath. What makes that piece of paper an affidavit competent to support the motion on notice is the attestation or swearing before the Commissioner for oaths. Once the document is not sworn to, it is a mere piece of paper not an affidavit. Therefore without oath there is no affidavit.”

A distinguishing feature of an affidavit therefore, that sets it apart from every other declaration is that it is made on oath before a person authorized to administer oaths. Persons authorized to administer oaths include the Chief Justice of Nigeria, Presidents and Justices of the Supreme Court and Court of Appeal, Judges of the Federal High Court, Notaries Public and Commissioners for oaths.[3]

Essentially, affidavits used in judicial proceedings constitute and forms part of the body of evidence led in a case.[4] An affidavit therefore, by the provision of the First Schedule to the Oaths Act, and usual practice, concludes with a paragraph that reads:

“I do solemnly and sincerely declare that I make the solemn declaration conscientiously, believing same to be true and by virtue of the provisions of the Oaths Act.”

It is therefore considered a settled position of the law that a sworn declaration must contain the above words for it to be valid and admissible in evidence. The absence of the words, before now, is seen as a fundamental defect as to the substance and not form, curable under Section 4 (2) (b) and (c) of the Oaths Act or Section 113 of the Evidence Act, 2011. In the case of GTB v. ABIODUN[5], the Court of Appeal per PAUL OBI ELECHI, JCA held:

“As stated earlier in the course of this judgment, any written statement which does not bear the 1^st schedule to Section 13 of the Oath Act, can not be said to be a written statement on oath. It is this vital aspect of the oath that is missing in the written statement of the Respondent’s sole witness in the present appeal. Non compliance with the provisions of the Oaths Act is a breach of the Oath Act. The consequence is that the entire statement of the Respondent sole witness is left bare. The Rules of Court are not made for fun, they are made to be obeyed. See: Hard v. Hact (1990) 1 NWLR (pt 126) 276, Tom Ikimi v. Godwin Omamnli (1995) 3 NWLR (pt 383), Ibrahim v. Col Cletus Emein & Ors (1996) 2 NWLR (pt 430) 322, Tehat A.O. Sule v. Nigeria Cocoa Board (1985) All NLR 257, Odu v. Jolaoso (2002) 37 WRN 115.” 

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Similarly, in the latter case of ANENE v. ALABI & ANOR,[6] it was held Per JOSEPH EYO EKANEM, JCA as follows:

“…What is the effect of the absence of the oath? Section13 of the Oaths Act is worded in mandatory terms as it uses the word “shall” which generally speaking is a term of command that implies a mandate. The implication is that an oath is lawful if it is taken before the person set out therein and is in the form set out in the First Schedule to the Act. The converse is that an oath is not lawful if it is not taken before the specified person and in the form set out in the said Schedule. Where the form of the oath set out in the said Schedule is completely absent, there is no affidavit… At page 526, Bage, JCA, as he then was, opined that: “Any written statement which does not bear the First Schedule to Section 13 of the Act, cannot be said to be a written statement on oath. It is only when the declaration of the oath is made that the identity of the maker of the statement can be ascertained. It also serves as to the verification as truth of the statement made therein.” See also GE INTERNATIONAL OPERATION LTD v. Q-OIL AND GAS SERVICES (2015) 1 NWLR (PT. 1440) 244, 270 where Eko, JCA, as he then was, opined that: “In law and common parlance, a written statement that its maker swears to the truth thereof is an affidavit: see Oxford Advanced Learner’s Dictionary. According to Black’s Law Dictionary, 7th Edition a deposition is a witness’s out-of-Court testimony that is reduced into writing for use in Court. It becomes an affidavit if the deponent swears to an oath the declarations made therein are the truth of the matter. By the oath the out-of-Court statement in writing becomes a testimony. It is the oath that gives validity to deposition as a testimony… without the oath, the deposition or written declarations on a piece of paper is a mere piece of paper. The oath makes written declarations or depositions on a piece of paper an affidavit.” Counsel for the 1st respondent argued that the defect in the affidavit was cured by Section 113 of the Evidence Act which provides that: “The Court may permit an affidavit to be used, notwithstanding that it is defective in form according to this Act, if the Court is satisfied that it has been sworn before a person duly authorized.” ?The trial Court held that the affidavit was worthy of being used as the defect therein was cured by Section 113 of the Evidence Act especially as it was sworn before an authorized person. With all due respect, I do not agree with the trial Court. This is because the defect in the affidavit is not a defect in form; rather, it is a total absence of substance and form in that the statement in the First Schedule is completely absent, thus leaving the affidavit with nothing to be cured. The provision of Section 113 of the Evidence Act is intended to cure formal defects and not substantial defects as in this instance. In OBUMNEKE v. SYLVESTER (2010) ALL FWLR (PT. 506) 1945,1959-1960, Alagoa, JCA, as he then was, opined as follows: “Thus, every oath to be legitimate must comply with the provisions of the Oath Act, Cap. 333, Laws of the Federation and the First Schedule thereto. Where there is no statement in an oath stating that it is made solemnly, conscientiously believing the contents to be true and correct by virtue of the Oaths Act, it is not an oath or affidavit properly so called and the signature of the Commissioner for Oaths cannot remedy the defect… Failure to comply does not render the document defective in form but in substance and liable to be struck out.” Order 5 Rules 1, 2 and 3 of the Edo State High Court (Civil Procedure) Rules, 2012, cannot serve as a cure for the fatal defect. The provisions make non-compliance with the Rules an irregularity which does not nullify proceedings. Being rules of Court, it cannot be used to cure a breach of an Act of the National Assembly which ranks much higher than it in the hierarchy of legislation. The affidavit in this matter ought to have been struck out by the trial Court for being incompetent.”

By the pronouncements of the various divisions of the Court of Appeal in the above decisions, it is apparent that the Court refused the use of an affidavit and witness statement on oath because they did not contain the oaths clause as prescribed by Section 13 of the Oaths Act.

However, the same Court of Appeal sought to make a distinction in the case of UDUMA v. ARUNSI[7], where it held as follows:

“There is a distinction between affidavit evidence in procedure begun by originating summons as against statement of witnesses on oath in an election proceeding or proceedings begun by writ. In respect of the latter scenario, where the written statement is to be adopted again on oath by the maker before his cross-examination on it, whatever defect in the original oath in respect of the witness statement has been cured by the second oath made in court before the judex prior to the adoption of the witness statement by the maker and his subsequent cross-examination. [Udeagha v. Omegara (2010) 11 NWLR(Pt. 1204) 168 referred to; Onyejiocha v. Maduako (unreported) Appeals Nos. CA/EPT/54/2008 and CA/EPT/54A/2008 of 14/7/2007 departed from.]”

Similarly, in the case of STANBIC IBTC BANK v. LONGTERM GLOBAL CAPITAL LTD & ORS[8], the Court of Appeal per OBANDE FESTUS OGBUINYA, JCA held as follows:

“The focus of the appellant’s complaint is that the oath does not contain the statutory declaration/conclusion statement: “I do solemnly and sincerely declare that I make this solemn declaration conscientiously believing same to be true in accordance with the Oaths Law”. The appellant persisted that the statutory declaration, as enjoined by Section 11 of the Oaths Law, is mandatory and its absence rendered the oath incompetent. I have, in a bid to pacify the law, visited the record at the abode of the CW1’s Oath which occupies pages 21 – 33, volume 1, of the record, I have subjected the 40-paragraph oath to a merciless scrutiny. Unarguably, the oath, at its twilight, is void of the conclusion statement outlined above. The idea of offering evidence by dint of written statement on oath is a budding/green regime in adjudication. It is a method which grants witnesses the liberty to testify by deposition. Deposition signifies “a statement of a witness made under oath out of Court… Depositions are all matters of procedure as they are adjectival in nature and content”, see Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246 at 377 and 378, per Tobi, JSC. Indubitably, the admissibility of evidence, of all species, is regulated by the Evidence Act. In Buhari v. INEC (supra), the contest circled around the validity and admissibility of oaths/depositions of witnesses. Tobi, JSC, incisively, outlined four instances that will make an oath inadmissible, namely: if it is sworn before (a) a person on whose behalf the same is offered, (b) his legal practitioner, (c) a partner, (d) a clerk of his legal practitioner. It flows from this ex cathedra authority, a written statement on oath will be inadmissible if it is afflicted with any of the four negative elements adumbrated above. It is not in doubt that the oath of the CW1, which is sought to be expelled, is not plagued by any of these negative elements as to drain it of its validity and admissibility. That is not all. The selfsame Oaths Law makes allowance for omission or irregularity as to oath under Section 4 thereof. In Section 4(2) (b) and (c), it provides: (2) No irregularity in the form in which an oath is administered or taken shall – (b) invalidate proceedings in any Court; or (c) render inadmissible evidence in or in respect of which an irregularity took place in any proceedings. ?It is a recognized canon of interpretation of statutes that provisions of any legislation are not to be subjected to fragmentary interpretation. Put simply, mutually-related provisions of any statute should be married together and given holistic construction in order to garner the intention of the law maker, …. In due allegiance to the injunction of the law, I have given a communal/conjunctive reading to the mutually-related provisions of Sections 4 (2) (c) and 11 of the Oaths Law. It is my humble view that the provision of Section 4(2) (c) neutralizes the mandatoriness of the provision of Section 11 of the Oaths Law. Put bluntly, Section 4 (2) (c) douses the effervescent operation of Section 11 of the Oaths Law. That is to say, any irregularity in the form of an oath will not be fatal to the administration of oath under Section 11 of the Oaths Law. It follows that the CW1’s oath will be salvaged under the saving shelter of Section 4(2) (c) of the Oaths Law. The absence of conclusion statement is drained of the potential to ruin the CW1’s oath or smear it with an indelible incompetence which will snowball into its inadmissibility. The oath of CW1 is not marooned in the murky ocean of inadmissibility on the footing of the lack of the conclusion statemsent/declaration thereon. On the contrary, I am compelled by the salvaging provision of Section 4(2) (c) of the Oaths Law, to crown the CW1’s oath with the deserved toga of competence and validity. I am dispossessed of any justification, in law, to ostracize the CW1’s written statement on oath of 16th May, 2013. I welcome it to this appeal. I accord a wholesale affirmation to the lower Court’s impeccable finding on its competence.”

See also the case of CRC CREDIT BUREAU LTD v. LONGTERM GLOBAL CAPITAL LTD & ANOR (2021) LPELR-55674(CA) Per OBANDE FESTUS OGBUINYA, JCA (Pp 55 – 59 Paras C – C).

Whilst the Court took the rigid stance in the GTB and ANENE’s cases (supra), to the effect that a witness statement on oath without an oath clause is incompetent and ought to be struck out, the same court, differently constituted, took a more liberal approach in the cases of Stanbic IBTC and Uduma cases (supra) to hold that once a person adopts his witness statement on oath in the open court, any defect as to form is cured by the latter oath taken upon adoption.

It is important to note that all the above decisions, and others like them delivered prior to 2022 were all Court of Appeal decisions, which by our hierarchy of Courts do not sound a note of finality on the point. These conflicting decisions had further confused the issues leaving practitioners to pick the authority that suits the position they are canvassing in court.

As for the trial courts, the position to take remained unsettled since it is trite that where a lower court is faced with two conflicting decisions of a higher Court, particularly the Supreme Court, the court is bound to follow the decision that is latter in time. See Osakue v. FCE (Technical) Asaba.[9]

Where however a trial court is faced with two conflicting decisions of the Court of Appeal, a trial High Court may pick and choose which of the decisions is closest to the peculiar facts of the case before it and apply same.[10] In the case of ONWUMELU v. DIRI,[11] the Court of Appeal held thus:

“Where a lower Court is confronted with conflicting decisions of a superior court, while the inferior court cannot sit on appeal over decisions of a superior court, the inferior court is nevertheless accorded a right to make a choice between the conflicting decisions.”

Interestingly, the same Court has equally held that where the Court of Appeal is faced with two conflicting decisions of the Supreme Court, the Court can pick and choose which of the two decisions to follow.[12] In the case of G.T.B. PLC v. FADCO IND. LTD,[13]  it was held that:

“The Court of Appeal is bound by the decision of the Supreme Court but where the Court of Appeal is faced with two conflicting decisions of the Supreme Court, the Court of Appeal is allowed to choose which to follow between the two decisions.”

In the writer’s humble view and considering the above judicial authorities therefore, it would seem that the validity of an affidavit and a witness statement alike, without an oath clause has remained unsettled for a long time. These uncertainties may, according to Sidi Bage, JCA (as he then was), mean that the absence of the oath clause is a fundamental defect that goes to the root of the deposition and cannot be treated as a mere irregularity.

DISTINCTION BETWEEN AN AFFIDAVIT AND A WITNESS STATEMENT ON OATH

It is not strange to find practitioners take the rules applicable to affidavit and witness statements on oaths as one and the same. Whilst it is conceded that they share many things in common, they however have some latent differences which make drawing a distinction between them, inevitable.

First, by virtue of Item 23 in the Exclusive Legislative List in Part 1 of the Second Schedule to the Constitution[14], “evidence” is under the Exclusive List in the Nigerian Constitution. As such, only the National Assembly has the legislative competence to make laws regarding it.[15] Thus, the Evidence Act, 2011[16], an Act of the National Assembly regulates affidavit evidence.

Witness statements on oath on the other hand are a creation of/regulated by rules of the various courts.[17] They evolved upon the departure from the era when witnesses give their entire testimonies orally while the Judges take them down in long hand. The frontloading system, in sum, brought about witness statements on oath.

Second, as a general rule, an affidavit constitutes evidence on its own without the necessity of calling the maker to give evidence. This is however not the case with witness statements on oath, whose evidential value is only activated when the deponent, on oath, adopts it in the open court.[18] In the case of Hon. Fabian Okpa v. Chief Alex Irek & Anor, Ndukwe – Anyanwu, JCA, the Court relying on the case of Akpokemovo v. Aga[19] held as follows:

“This Court has consistently held that a witness Statement on Oath is different from an Affidavit evidence. An affidavit is a statement of fact which the maker or deponent swears to be true to the best of his knowledge. It is a Court process in writing deposing to facts within the knowledge of the deponent. It is documentary evidence which the Court can admit in the absence of any unchallenged evidence…. On the contrary, a witness statement is not evidence. It only becomes evidence after the witness is sworn in Court and adopts his statement. At this stage at best it becomes evidence in Chief. It is therefore subjected to Cross-Examination after which it becomes evidence to be used by the Court. If the opponent fails to Cross-Examine the witness, it is taken as the true situation of facts contained therein.”[20]

Similarly, in the case of MEGAMOUND INVESTMENT LTD & ANOR v. OMOTOSHO & ANOR,[21] it was held thus:

“Section 80 and 90 do not cover witness statement on Oath but Affidavit evidence. The most glaring similarity between affidavits (which are regulated by the Evidence Act) and Witness statement on Oath regulated by Rules of Court is only the Oath to be sworn before a commissioner for oaths. They are however two different processes. The statement becomes evidence only upon adoption during examination in chief and not before that. An affidavit does not have to be adopted in examination in chief before it can be relied upon as evidence. It is evidence on filing. See HON. FABIAN OKPA V. CHIEF ALEX IREK (2012) LPELR- 8033 (CA) where the Court distinguished between a statement on oath and an affidavit in the following words: “This Court has consistently held that a witness statement on oath is different from an affidavit evidence. An affidavit is a statement of fact which the maker or deponent swears to be true to the best of his knowledge. It is a Court Process in writing deposing to facts within the knowledge of the deponent. It is documentary evidence which the Court can admit in the absence of any unchallenged evidence. Akpokeniovo vs. Agas (2004) 10 NWLR pt 881 page 394. On the contrary, a witness statement is not evidence. It only becomes evidence, after the witness is sworn in Court and adopts, his witness statement. At this stage at best it becomes evidence in chief. It is thereafter subjected to cross examination after which it becomes evidence to be used by the Court. If the opponent fails to cross examine, the witness, it is taken as the true situation of facts contained there in.” See also BARR. IHUOMA E. UDEAGHA & ANOR V. MATTHEW OMEGARA & ORS. (2010) LPELR-3856(CA), UDUMA V. ARUNSI (2010) LPELR – 9133 (CA).”

Thus, it is therefore settled law that although an affidavit and a witness statement on oath are both sworn declarations before a person commissioned to give oaths in Nigeria, the rules applicable to them are different.

THE RECENT SUPREME COURT INTERVENTION

The Supreme Court of Nigeria recently stepped into resolving this age long controversy to determine the validity or otherwise of a witness statement on oath which was argued to be incompetent for failure to have the oaths clause. This was in the case of ADEJUGBE v. ADULOJU.[22] The facts of the case were that the Plaintiff at the trial court commenced an action against the defendants before the High Court of Ekiti State. The defendants filed a preliminary objection challenging the jurisdiction of the court to hear and determine the matter on two grounds, to wit; failure to disclose a reasonable cause of action and incompetence of the witness statement on oath for allegedly being offensive to section 13 of the Oaths Act. The Plaintiff, in an attempt to save his case, filed an application to amend his processes before the trial Court but the trial court in ruling on priority of application decided to take the preliminary objection on jurisdiction first. In its ruling, the trial court dismissed the Plaintiff’s case.

On appeal to the court of appeal, the decision of the trial court was upturned and case was restored to the cause list of the trial court for trial before another judge.

Being dissatisfied with the Court of Appeal decision, the Appellant contended before the Supreme Court that the witness statement on oath of the Plaintiff did not contain a verbatim statement of the oath in the Schedule of the Oaths Act. The apex court, per Agim JSC, relying on its previous decisions in the cases of Anatogu v. Iweka II[23] and Solola v. State[24] held that the absence of the oaths clause in the witness statement on oath does not invalidate the oath. The Court held that once the deposition is made before a person authorized by law to take oaths, the absence of an oath clause will not vitiate the oath. The court stated as follows:

“Let me consider the arguments of both sides on non-compliance with S.13 of the Oaths Act and the form in the 1^st schedule thereto by the 1^st respondent’s written statement on oath that accompanied the writ of summons.

The Court of Appeal correctly held that the absence of the words in the form in the 1^st schedule to the Oaths Act or similar words in a written statement on oath sworn before a Commissioner for oaths is a mere irregularity as to form that cannot vitiate it. S. 13 of the Oaths Act provides that-

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“It shall be lawful for any Commissioner for Oaths, Notary Public or any other person authorized by the Act to administer oaths to take any and receive the declaration of any person voluntarily making the same in the form set out in the first schedule.”

The first schedule to the Oaths Act prescribe the oath thusly-

“I do solemnly and sincerely declare that I make the solemn declaration conscientiously, believing same to be true and by virtue of the provisions of the Oaths Act.”

Affidavits and other forms of written statements on oath usually contain this declaration as prescribed in the form in the first Schedule of the Oaths Act or similar words in the last paragraph. In our instant case, the only written statement on oath that accompanied the writ of summons and statement of claim did not contain the said declaration or any words to the like effect. But the 1^st respondent who made the statement stated at the beginning of the statement that he was making the deposition therein on oath and the Commissioner for Oaths endorsed at the foot of the statement that it was sworn at the Registry of the High Court at Ado-Ekiti on 22-11-2011 before him.

Since the statement was made on oath and sworn before the Commissioner of Oaths, the absence of the declaration that was made conscientiously, believing same to be true and correct or like words in the written statement on oath becomes a mere irregularity or defect as to form that has no effect on the validity of the oath and the statement on oath.”[25]

Furthermore, the Court stated that the law is that any defect as to form does not vitiate an oath made before an authorized person in law, even if there was declaration contained in the deposition. It further held:

“Generally, the law does not allow the form of an oath or affirmation to vitiate the oath or statement made under the oath or allow the absence of oath or affirmation to prevent the admissibility of evidence that should be on oath. So where a statement, such as the 1^st respondent’s statement in this case, was made on oath and sworn before the Commissioner for Oaths, the absence of the declaration prescribed in the Oaths Act that the deponent made the statement conscientiously, believing same to be true and correct or like words in the written statement on oath becomes a mere irregularity or defect as to form that has no effect on the validity of the oath and the statement on oath.”[26] 

More importantly, the Court held that no law precludes a witness from adopting a statement on oath even if it was not made on oath or sworn at all. The Court, at pages 158-159, paras. B-B; 168, paras. E-G, held thus:  “Section 4(2) of the Oaths Act states that  no irregularity in the form in which an oath or  affirmation is administered or taken shall:

(a) invalidate the performance of official duties; or

(b)invalidate proceedings in any court; or

(c) render inadmissible evidence in or in respect of which an irregularity took place in any(c)proceedings.

While by section 4(3) of the Act, the failure to take an oath or make an affirmation and any irregularity as to the form of an oath or affirmation shall in no case be construed to affect the liability of a witness to state the truth. In this case, even if the 1^st respondent’s written statement was not made on oath or sworn at all, it would still be valid as the witness written statement intended to be given or given as evidence on oath in the proceedings and nothing precludes the witness from adopting it as his testimony when testifying on oath in examination in chief in open court. [Anatogu v. Iweka II (1995) 8 NWLR (Pt. 415)547; Solola v. State (2005) 11 NWLR (Pt. 937) 460 Sule v. State (2017) 10 NWLR (Pt. 1628) 545 referred to; Buhari v. I.N.E.C. (2008) 4 NWLR (Pt. 1078) 546 referred to and distinguished.]”

In simpler terms, the Supreme Court might be understood to be holding in this case that the oath taken by the witness upon entering a witness box cures whatever defects as to form, that may exist in the deposition. This holding, in the writer’s view is a welcomed development as it de-emphasizes blind adherence to the dictates of procedural law at the painful expense of doing substantial justice to the parties’ dispute presented before the court. Little wonder that the Supreme Court berated the conduct of the learned trial judge who clearly in this case preoccupied himself with determining procedural issues, disguised as jurisdictional issues, whilst allowing the substantive case suffer for the eleven (11) year journey to the Supreme Court before it is being returned to the trial court for retrial before another Judge.[27]

CONCLUSION

In interrogating this question, it is heartwarming that our courts are maintaining their intolerance for technical justice, which in most cases defeats the merits of the cases before them. It is absurd, in the writer’s opinion, if in 2022, you find a witness statement of oath being held to be incompetent merely because it did not carry a paragraph of oath clause, when it was indeed deposed to before a person authorized to take oaths of that kind.

From the decision of the Court in ADEJUGBE v. ADULOJU (supra), it is settled without doubt that a witness statement on oath without an oath clause is nevertheless valid and can be competently adopted to become evidence before a Court. It however remains unclear if this principle can be stretched to include affidavits, which as has been shown earlier in this article, are fundamentally different from a witness statement on oath. Whilst it is convenient to assume that by parity of reasoning, the decision might apply, one can only hope that a suit fought on affidavit evidence (i.e., commenced by originating summons) gets up to the Supreme Court soon enough, affording the judex an opportunity to clarify the validity or otherwise of the affidavit.

The courts ought to stay true to ensuring that substantial justice triumphs over technical justice.  It is the writer’s view, that no sworn declaration should at this day and age is declared void merely because an oath clause that does not belie the other contents of the document is absent.

[1]Abdulkabir Badmos, is a Senior Associate with Mahmud & Co., Abuja-Nigeria. He may be contacted via aabadmos08@gmail.com.

[2](2012) 2NWLR (PT.1284) 285 (CA) at 308 Paras B-E; Luna C.O.P. Rivers State (2018) 11 NWLR (PT.1630) 269 (SC) at 290 Para A.

[3] Section 10, Oaths Act Cap O1, LFN 2004.

[4]Ezeudu v. John (2012) 7 NWLR (PT.1298) 1 (CA) at 15 Paras A-B

[5] (2017) LPELR-42551(CA) Pp 32 – 32 Paras B – F.

[6] (2021) LPELR-56025(CA) Pp. 18 – 23 Paras C – C.

[7] (2012) 7 NWLR (PT.1298) 55 at Pp. 97-98, paras. G-A.

[8] (2021) LPELR-55610(CA) Pp 64 – 68 Paras E – E.

[9] (2010) 10 NWLR (PT.1201)  1 at P. 34, paras. B-C.

[10] NGUN v. MOBIL PRODUCING NIG UNLTD (2013) LPELR-20197(CA) Per JOSEPH TINE TUR, JCA (Pp 31 – 32 Paras C – D)

[11] (1997) 10 NWLR (PT.525) 377 at 405-406, PARAS H-B, Per ACHIKE JCA.

[12] EBITEH v. OBIKI (1992) 5 NWLR (243) 599 at 618, para H, Per ADIO JCA

[13] (2007) 7NWLR (PT. 1033) 307 at 325, para H,

[14] Federal Republic of Nigeria, 1999 (as amended)

[15] Section 4 (2) and (3) of the 1999 Constitution (as amended).

[16] CAP E14, LFN 2004.

[17] Order 2 Rule 2 (2) (c) of the High Court of the Federal Capital Territory (Civil Procedure) Rules 2018; Order 5 Rule 2 (c) of the Lagos State High Court (Civil Procedure) Rules, 2019.

[18] ONWUFUJU v. OROHWEDOR (2020) LPELR-50767(CA) Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA (Pp 35 – 39, Paras F – E)

[19] (2004) 10 NWLR (pt.881) p.394

[20]  (2012) LPELR – 8033 (CA)

[21] (2017) LPELR-50170(CA) Per YARGATA BYENCHIT NIMPAR, JCA (Pp 13 – 14 Paras B – E.

[22] (2022) 3 NWLR (PT.1816) 131.

[23] (1995) 8 NWLR (Pt. 415)547.

[24] (2005) 11 NWLR (Pt. 937) 460.

[25] At page 157 PARAS B-H.

[26] At Pp. 158, para. A; 167-168, paras. H-A.

[27] Op. cit. See dictum of Agim, JSC at pages 160-162, Paras F-A.

Dear Lawyers, Don’t Miss This Exclusive Hangout

by Legalnaija Blawg | Oct 13, 2022 | Uncategorized

On the 29^th of October, 2022 at 11.00am, a group of lawyers will be a part of an exclusive “Lawyers Hangout” holding at Park Inn by Radisson, Victoria Island Lagos.

Asides from the opportunity to network, there will be panel sessions on Law Firm Management, Technology and trends and also on content creation, some of the topics many lawyers have questions on.

A financial expert will also be available to help lawyers navigate their finances.

Other side attractions are Refreshments, Games and lots of networking activities.

To get more information on this event, visit @legallyYes on IG

Here is the link to register

Please make payment and register today on https://selar.co/z6xr  to secure a seat as we have limited seats  available.

Please contact +234 8149990849 for more details. (WhatsApp only ).

See you there.

Proudly sponsored by Legalnaija

See fliers below

Meet The Faculty At The Entertainment Law Training: Nkechukwu Otike-Odibi

by Legalnaija Blawg | Sep 4, 2022 | Uncategorized

Nkechukwu Otike-Odibi is currently the Senior Legal Executive, EbonyLife Media and has led the Legal department of the Company from 2020 till present. She obtained her LL.B from the prestigious University of Benin (UNIBEN) and her LL.M degree with a certificate in Entertainment Law from the University of Southern California (USC).

Her career path has seen her advice on a number groundbreaking international co-production and licensing deals with Netflix, Sony and Westbrook amongst others.

She was also instrumental in the research done for the Harvard Business School case study on EbonyLife Media, the first HBS case study on an African company led by a female entrepreneur. She is passionate about the African entertainment space and educating entertainment practitioners on the workings on the entertainment industry.

TRAINING OVERVIEW

Theme: Entertainment Law Mastery

MODULES–

1. a)Music Contracts & Agreements
2. b)Film & media Agreements
3. c)Negotiation & Dispute Resolution
4. d)Talent Acquisition & Management
5. e)Licensing & the Film Business
6. f)Etiquette & public speaking

MEMBERS OF FACULTY

1. Beverly Agbakoba-Onyejianya (Partner, Olisa Agbakoba Legal)
2. Akinyemi Ayinuoluwa (Partner, Hightower Solicitors)
3. Fola Alade (Partner, FOTEFA Partners LP/ Mediation Academy)
4. Oyinkansola Fawehinmi (Foza) (Founder/President, DMCE.)
5. Yeye Bush (Lead Etiquette Consultant, Manners Matter)

6. Nkechukwu Otike – Odibi (Senior Legal Executive, EbonyLife Media)

DATE–29^th and 30^th September, 2022

TIME– 9.00am – 5.00pm Daily

REGISTRATION

Register for either the physical or virtual sessions.

Physical Session:
Fee: 70,000 Naira
Early Bird: 50,000 Naira (ends 7th Sept, 2022)
Registration Link: https://bit.ly/3znIb4w
Venue: NECA House, Alausa, Ikeja, Lagos

Virtual Session (ZOOM)
Fee: 50,000
Early Bird: 30,000 (ends 7th Sept, 2022)
Registration Link: https://bit.ly/3CbB6Y9

Get 10% Off the virtual session when you use the code: LEGAL9JA

PAYMENT DETAILS–

Lawlexis International Limited

Fidelity Bank

4011176564

Participants will receive a certificate of participation.

NOTE: All payment and delegate information should be sent to lawlexisinternational@gmail.com before the date of training for proper registration. For more information and confirmation of payment, kindly contact us on 09029755663.

Meet The Faculty At The Entertainment Law Training: Akinyemi Ayinoluwa

by Legalnaija Blawg | Sep 4, 2022 | Uncategorized

Akinyemi Ayinoluwa is a Partner and Co-founder at HighTower Solicitors and Advocates. His music law practice focuses on the representation of recording artists, songwriters, record producers, record labels, investors in music, and talent managers.  He is often recommended as a lawyer who breathes, drinks and eats music. Akinyemi’s past legal experience includes: Associate at Wemimo Ogunde & Co and Awokoya & Co.

Prior to qualifying as a lawyer, he was a songwriter, recording artist, composer and performer; he was the lead singer of the defunct 100 degrees boy band.  He has authored numerous articles in the field of music law, estate planning, commercial transactions, and regularly gets invited to deliver speeches and courses about these subjects.

Specialties: Intellectual Property Law- contract negotiation in TV industry, music, Production contracts, Recording contracts, Artiste Management deals, Synchronization deals,  Talent negotiations, endorsement deal negotiations, trademarks, music publishing, Debt Recovery, and Reputation Management.

On a small number of clients, Akinyemi functions as a business manager, as well as the lawyer. In recent years, Akinyemi has built up a formidable roster of producer clients from Afrobeats: Masterkraft, Blaq Jerzee, Northboi, Rexxie, Magicsticks, Jaypizzle, and many others. Akinyemi Ayinoluwa prides himself in helping clients understand the value of their intellectual property rights and to be mindful of the exploitation that is rampant in the industry.

TRAINING OVERVIEW

Theme: Entertainment Law Mastery

MODULES–

1. Music Contracts & Agreements
2. Film & media Agreements
3. Negotiation & Dispute Resolution
4. Talent Acquisition & Management
5. Licensing & the Film Business
6. Etiquette & public speaking

MEMBERS OF FACULTY

1. Beverly Agbakoba-Onyejianya (Partner, Olisa Agbakoba Legal)
2. Akinyemi Ayinuoluwa (Partner, Hightower Solicitors)
3. Fola Alade (Partner, FOTEFA Partners LP/ Mediation Academy)
4. Oyinkansola Fawehinmi (Foza) (Founder/President, DMCE.)
5. Yeye Bush (Lead Etiquette Consultant, Manners Matter)

6. Nkechukwu Otike – Odibi (Senior Legal Executive, EbonyLife Media)

DATE–29^th and 30^th September, 2022

TIME– 9.00am – 5.00pm Daily

REGISTRATION

Register for either the physical or virtual sessions.

Physical Session:
Fee: 70,000 Naira
Early Bird: 50,000 Naira (ends 7th Sept, 2022)
Registration Link: https://bit.ly/3znIb4w
Venue: NECA House, Alausa, Ikeja, Lagos

Virtual Session (ZOOM)
Fee: 50,000
Early Bird: 30,000 (ends 7th Sept, 2022)
Registration Link: https://bit.ly/3CbB6Y9

Get 10% Off the virtual session when you use the code: LEGAL9JA

PAYMENT DETAILS–

Lawlexis International Limited

Fidelity Bank

4011176564

Participants will receive a certificate of participation.

NOTE: All payment and delegate information should be sent to lawlexisinternational@gmail.com before the date of training for proper registration. For more information and confirmation of payment, kindly contact us on 09029755663.