Introduction
In recent times, there are growing debates as to whether a lawyer can depose to an affidavit for and on behalf of his client in a case he is handling. While some contend that a lawyer is forbidden from making depositions on behalf of his client, others are of the view that a lawyer, being a person familiar with the facts and circumstances of a case, could as well depose to an affidavit especially where the issues in controversy are contentious. But, what does the law really say?
Section 109 of the Evidence (Amendment) Act, 2023 provides that “any affidavit sworn before any judge, officer or other person duly authorized to take affidavits in Nigeria, whether in person or through audio visual means may be used in the Court in all cases where affidavits are admissible.” Similarly, Section 115(1) of the Evidence Act, 2011 provides that every affidavit used in the court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.
However, Rule 20 of the Rules of Professional Conducts (RPC) for Legal Practitioners, 2007 provides that a lawyer shall not accept to act in any contemplated or pending litigation where he knows or ought to reasonably know that he or a lawyer in his firm may be called or ought to be called as a witness. This is in spite of the clear provision of Section 175 of the Evidence Act, 2011 that declares all persons, competent to testify or give evidence in Court.
The rule in Akinlade v INEC
In Akinlade and Anor. V INEC &Ors. (2020) 17 NWLR 439 at 537, the Appellant’s counter-affidavit to a Motion on Notice filed by the 2nd Respondent was deposed to by one “Mubarak Imam” who was a legal practitioner in the law firm of Ahmed Raji & Co, counsel to the Appellant. The Supreme Court discountenanced the said counter-affidavit on the basis that it offended Rule 20 of RPC, 2017.
The Court of Appeal recently followed Akinlade v INEC in the case of Mr Nimideinbofa Matthew & Ors v Chevron (Nig.) Limited (2023) LPELR-59523(CA). In that case, it was held that “both the affidavit and the counter-affidavit relied upon by the parties on both sides were deposed to by legal practitioners who should not have done so, it is my view that there is no value to be placed on the affidavit or counter affidavit placed before this Court in the application argued. There was mutual, symbiotic and/or infectious abuse of the process of this Court by the parties on both sides”. In short, the affidavits in the case were discountenanced on the basis that they were deposed by lawyers representing the parties when the issue in controversy was contentious.
Nwite v PDP: The New Perspectives
Interestingly, in the case of Nwite v PDP (2023) 7 NWLR (pt. 1883) 357, counsel to the 3rd Respondent deposed to an affidavit at the trial court and same was held competent and admissible. The Appellant contested the admissibility of the affidavit by the trial court despite the ‘settled’ position of law in Akinlade v INEC. Curiously, the Supreme Court held that the Rules of Professional Conduct (RPC) do not render evidence given or deposed to by a legal practitioner in a client’s case inadmissible in the proceedings of Court. The Apex Court further held that they merely render such legal practitioner liable for professional misconduct, in contravention of the Rules. Indeed, this appears to be a clear departure from the celebrated case of Akinlade v INEC even though the Apex Court did not expressly reverse itself.
Order on the Lawyers Bookstore
The Law Lords of the Apex Court cannot be more correct in Nwite v PDP. By Rule 55 of the RPC, any perceived contravention of the rules is merely a professional misconduct that exposes the lawyer to punishment under the Legal Practitioners Act, 1975. Clearly, invalidating the affidavit cannot by any stretch of imagination be included as punishment when no law or rule provides for such. From this most recent decision in Nwite v PDP, it can be safely said that though it is not desirable for counsel to double as witness in a matter in which he is handling in Court, nothing in the RPC or the Evidence Act suggests that in the event of contravention, the affidavit should be rendered invalid or discountenanced. This naturally flows from the age-long principle recognized by our system of administration of justice that mistakes or even blunders of counsel may occur from time to time but it is wrong to deny a litigant the right to have his case decided on its merits because of the blunder, mistake, or, negligence of his counsel. See: Collins v. Vestry of Paddington (1880) 5 Q.B.D. 380, p. 381; Adeleke v. Awoliyi & Ors (1962) 1 SCNLR 401; (1962) 1 All NLR 260, p. 262; Ojikutu v. Odeh (1954) 14 W.A.C.A. 640
That said, it is also necessary to consider this issue in the context of some proceedings generally conducted and dispensed with by affidavit evidence, particularly garnishee proceedings. Generally, garnishees are mere custodians of funds belonging to the judgment debtor and as such, the brunt of the responsibility of the Judgment debtors should not be shifted or passed to the garnishees. The relationship is not one of Agent and Principal. It will therefore be unfair, unjust and inequitable to adopt an interpretation of the law in Mr Nimideinbofa Matthew & Ors v Chevron (Nig.) Limited (2023) LPELR-59523(CA) which invariably haunts the interest of garnishees.
Whilst the garnishees may have to review their processes to ensure that they are not caught in the web of needless and distracting appeals which can be prevented by simply filing affidavits deposed to by staff of the garnishees, we must note that insisting on the rule in Akinlade v INEC creates unnecessary bottlenecks in the businesses of garnishees. How do we address situations where the Service Manager who should be attending to Customers at a Branch of a Bank is now a frequent visitor of the Court Registry to depose to affidavits to show cause? The delays in customer service and conflict of job description will invariably affect business interest.
Conclusion
In the final analysis, the Evidence Act clearly allows anyone to depose to an affidavit of facts obtained, either of his own personal knowledge or from information which he believes to be true. Similarly, Section 87 of the Sheriffs and Civil Processes Act (SCPA) provides that “if the garnishee appears and disputes his liability, the Court, instead of making an Order that execution shall issue, may order that any issue or question necessary for determining his liability be tried or determined in any manner in which any issue or question in any proceedings may be tried or determined, or may refer the matter to a referee.
It is therefore submitted that the Courts must always be perceived to have done justice in every case by adopting the provision of Section 87 of the SCPA which provides for ordering the presence of the garnishee staff to aid the Court in the dispensation of justice. Where the affidavits are contentious in regular suits and proceedings, the position of the Supreme Court in Nwite v PDP should be adopted. The affidavit remains admissible and at best only raises issues of professional misconduct against the Counsel deponent.
Dunjoyin Adegboye is a Legal Officer at Keystone Bank Limited and Festus Ogun is a Dispute Resolution Lawyer at FOLEGAL, Lagos.