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Can a Lawyer depose to an Affidavit in a matter he is handling? Matters Arising | Dunjoyin Adegboye And Festus Ogun

by Legalnaija | May 21, 2024 | Court

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 2^nd 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 3^rd 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.

Why Is The Supreme Court Of Nigeria Not Having Its Sessions In All The States Of The Federation | Adedapomola G. Lawal, Esq.

by Legalnaija | Jun 27, 2021 | Court, Justice, Law

Nigeria is a federating unit comprising of 36 states and a Federal Capital Territory. The States have their justice architectures but these Courts are not the final Courts of the land. In the hierarchy of the judicial system in Nigeria, the Supreme Court is the highest court and its decisions are final.

Access to justice is a right that is constitutionally guaranteed under sections 6 and 46 of the 1999 Constitution. The court is an essential service provider in our society which is why the court is referred to as the last hope of the common man. What happens when the court is not within the reach of these common people?

The highest court in a State in Nigeria is the State High Court while the Highest Court in the Federation is the Supreme Court. The Supreme Court has original and appellate jurisdiction. It’s appellate jurisdiction is over appeals from the Court of Appeal. Appeals are lodged to the Supreme Court by aggrieved parties over the decisions of the Court of Appeal.

Being the highest and final court in the Federation, it is expected that the Supreme Court should be within the reach of the common people and must be easily accessible. But this is far from being the case. Can you imagine travelling more than 10,000 kilometres before you can get access to justice? The Supreme Court of Nigeria only sits in Abuja and no where else.

Yes, section 230 (1) of the 1999 Constitution created only one Supreme Court of Nigeria. In the same manner, section 237 established only one Court of Appeal. Yet, the Court of Appeal has various divisions in the States of the Federation. No wonder in 2018, the then Chief Justice of Nigeria, Hon. Justice Samuel Walter Onnogen said that the diary of the Supreme Court is filled till 2023. The implication is that the diary of the Supreme Court is filled till 2026 as at now. And that is the highest court. How can the common man have access to justice in such a situation?

Presently, there are appeals pending at the Supreme Court for more than 7 years and no date has been fixed for the hearing of those appeals. In some cases, either or both parties in the appeal would be dead before the Supreme Court fixed the appeal for hearing.

The question begging for an answer is “In other to decongest the Supreme Court, can the Supreme Court have registry in the States of the Federation and sit in the States of the Federation besides the Federal Capital Territory?” In the past, some lawyers have suggested that the Supreme Court should be splited so that each regions in the country can have its own Supreme Court.

I am of the view that the Supreme Court does not need to be splited in such a manner. Orders 17, 18 and 19 of the Supreme Court Rules, 1985 have already empowered the Supreme Court to be able to decide where it would or will sit to decide appeals. For the sake of convenience the said Orders have been reproduced hereunder:

“17. Sessions of the Court shall be convened and constituted and the time, venue and forum for all sessions and for hearing interlocutory applications shall be settled in accordance with directions to be given by the Chief justice.

18. The sitting of the Court and the matters to be disposed of at such sittings shall be advertised and notified in the Federal Gazette before the date set down for hearing of the appeal:
Provided that the Court may in its discretion hear any appeal and deal with any other matter whether or not the same has been so advertised.

19. The Court may at any time on application or of its own accord adjourn any proceedings pending before it from time to time and from place to place.”

From the wordings of the above Rules, the Chief Justice of Nigeria is empowered to determine where the Supreme Court will sit and that it must not be in Abuja alone. I believe that what was in the mind of the drafter of this Rules is to bring the Supreme Court closer to the common man and not to remove the Supreme Court from the common man or to leave it within the reach of the rich alone.

Justice has suffered due to the distance between the Supreme Court and the masses. If the Supreme Court had been closer to the common man, more grievances would have been ventilated in the Court than on the street. The cost of appealing to the Supreme Court from States that are unfortunate enough to be far from Abuja is exorbitant and astronomically high. The cost of appeal has discouraged many aggrieved party from appealing to the Supreme Court. A past President of Nigeria once said that education is not for everyone. And I ask, is justice not also for everyone?

I strongly believe that the justices of the Supreme Court are sincerely doing their best in attending to appeals and seeing that they are disposed of as quickly as possible. There are however certain things which acts as clogs in the wheel of justice. One of which is the limited numbers of the Justices of the Supreme Court there are in Nigeria. Section 230 (2) (b) of the 1999 Constitution limited the number of Justices of the Supreme Court to Twenty One including the ChiefJustice of Nigeria. Then at least five of these 21 justices are to constitute a panel. That is obviously too tasking for these Justices who are usually close to their retirement age.

This Constitutional provision can frustrate the will of the Chief Justice if he wants to implement the suggestions in this work. How on earth can 21 Justices of the Supreme Court cover 36 States and the Federal Capital Territory without being worn out? Section 237 (2) (b) of the 1999 Constitution allows the Court of Appeal to have a minimum of 49 Justices. One will then wonder why the number of Justices in the Supreme Court is seriously limited to 21!

It has become a norm that if a party with no good case wants to work injustice against another litigant, he would hide the case in the Supreme Court. Why? This is so because before “the book of remembrance” will be opened on such an appeal, the parties might have lost interest in the case. If the Supreme Court will not become a Court to issue academic decisions in the nearest future, a lot needs to be done.

One of which is that the provisions of Section 230 (1) (b) of the 1999 Constitution must be amended to increase the number of Justices that can be appointed to the Supreme Court.

Secondly, in other to fast track the appeals to and at the Supreme Court, the Court should have registry in the States of the Federation and also the Chuef Justice should ensure that the Court can either rotate its sittings in the States or should have divisions in the States of the Federation. In this way, justice will be more accessible to the common man who was once scared away with the cost of accessing justice.

Adedapomola G. Lawal, Esq