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17 Jan 2022, 07:24

*WHAT THE LAW SAYS IN KWARA STATE with Dr Ishola on Mondays*
_(A KWASU Approved CDS Project)_

_*Series 2*_
_(Monday, 17th January, 2022)_


Affidavit is perhaps the most popular legal documents well known and widely used by the masses. It is used for different purposes and various institutions like banks, schools and employers would prefer an Affidavit when certain facts are to be taken as the truth from their affected customers, students or employees. The popular *DECLARATION OF AGE*, by which even most Nigerian "saints" can hardly beat their chests they are not pathological liars, through the illegal practices of alteration of ages (usually deduction of age) is done via a legal means, is also nothing, but an AFFIDAVIT.

From Islamic Law Perspective, such DECLARATION OF AGE done to lie about one's age is a sin for which his culprits must seek forgiveness of Allah. It is an act of deceiving the whole world whereas the Prophet Muhammad (p.b.u.h) is reported to have said in a popular hadith that whoever's deceives us (the Muslim Ummah) is not part of us. Legally also, it amounts to lying on oath which is an offence of Perjury. Whichever ways, it is an illegal practice which has become a norm in the country!

Be that as it may, the focus of this series to to enlighten the public that, for whatever purpose you may need an affidavit, you can no longer send a representative to take it to the High Court in Kwara State to have it stamped at the registry by the assigned Commissioner of Oaths as it used to be.

Rather, by the provision of the new _High Court (Civil Procedure) Rules, 2021_ , under its Order 13, Rule 4, you must make yourself physically available before the Commissioner of Oaths. Accordingly, the said Order 13 Rule states on ujambiguously as follows:

*"...the Commissioner of Oaths _shall_ not sign any affidavit unless the deponent is present before him to swear to the affidavit*

So far, from experience and the rules of practice being adopted so far at the High Court, the words *"present before him"* has been interpreted and applied to mean that the physical presence of the deponent is required. This writer does not believe to be completely correct.

*_A Critique of Order 13 Rule 4_*

By Order 1 Rule 4, no provisions of the 2021 should be applied in way that the interest of justice would be defeated or access to justice would be made more complex. Order 1 Rule 4(2) clearly states that:

*Application of these rules shall be directed towards the achievement of a just, efficient and speedy dispensation of justice*

The Commissioner of Oaths applying the new 2021 Civil Rules of the Kwara State High Court should be well informed that efficient dispensation of justice mandated upon them as the cardinal objective of applying the rules demands that unnecessary bottleneck should not be created in swearing of affidavits. We all know the illegal practices which the rules set out to correct.

Therefore, the Commissioner of Oaths should be guided in their application of Order 13 Rule 4 by being the followings at the back of their minds:

1. That the Order does not apply to Witnesses' Written Statement on Oaths being filed along with Originating processes. The Order is clear in referring to "an Affidavit". Therefore, the lawyer does not have to bring client living outside the country or outside the state before filing a case on his behalf otherwise the whole essence of the rules would be defeated.

2. The words "present before him" should be interpreted in two ways to mean both physical or virtual presence. Therefore, if the deponent had signed an Affidavit and sent it down for stamping, the Commissioner of Oaths should be innovative enough to accept virtual presence of the deponent through a video calling asking him to confirm his signature and undertake the swearing of the affidavit before him virtually.

After all, one of the most essential steps in a court proceeding, which is service of processes, can now be done virtually [see Order 5 Rule 6(1)]. And also impressively, the new Rules now allow suits and interlocutory applications to be filed and served by Counsel vide electronic means [see Order 3 Rule 8].

*_Humble Recommendations to the Honourable Chief Judge_*
Given the status of Legal Practitioners as Officers of the Court, Order 13 Rule 4 needs to be applied with some exceptions to the lawyers. Otherwise, the application of that Order as currently being done by by the Comm-of-Oaths would hamper the services of the lawyers. It would require that lawyers or their attack spend more time at the registry that they spend in their chambers. Therefore, the Honourable CJ may be pleased to consider the following recommendations:

1. That a Practice Direction be issued exempting Written Statement on Oaths being filed as part of Originating Processes and all Affidavits to be filed by lawyers and used in court case from requiring the physical presence of the deponents.
Alternatively, the Practice Direction may require the lawyer to sign a *Certificate of Authenticity of Deponent's Signature* to accompany the process, in a pre rived Form as may be so designed.

2. That the Comm-of-Oaths be directed to accept virtual presence of the deponent through Video Calling/Conference and a cost for that may be assessed for payment in addition to the prescribed fee for Affidavit. Such can be employed to cater for calling data for the registrar. It may also be required that the Rgeistrar indicate on the affidavit the mode by which the deponent established his/her presence before the Comm-of-Oaths. Thus, the usual frankling in the affidavit may henceforth be better stated as follows: *SWORN TO BEFORE ME, PHYSICALLY/VIRTUALLY, COMMISSIONER OF OATHS*

3. The Notaries Public in the State should now be better engaged while the general public is enlightened to be approaching them for other forms of affidavits. Institutions requiring such Affidavits like banks, schools and employers would equally need to be enluggtbed and be directed to respect such affidavits headed in the office of a Notary Public in that regard. The Notaries may be directed as regard their fees for such service. They can be charged to keep proper records of such Affidavits and guide against fraudulent practices and abuse of Affidavits. To guide against loss of revenue to the Judiciary, the Notary may be required to make a return of N50 (Fifty Naira) from the N250 that may be charged on each Affidavit together with a copy of such Affidavit.

This will go a long way to keep Notaries Public more engaged, reduce congestion in the court and meet the aims of the Rules.

Dr Abdullahi Saliu Ishola is a Lecturer at Department of Islamic, Faculty of Law, Kwara State University, Malete (KWASU).
For comments, suggestion and further discussions, contact the writer via:

[email protected]
07038998357 (Whatsapp and Calls)

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