AN EXAMINATION OF THE EFFECT OF AN UNSIGNED AFFIDAVIT
IN ORIGINATING SUMMONS
Isiaka Azeez Ayinde
The practice is that whosoever feels that his legal rights have been trampled upon, is entitled to approach a court of law. Such a person is equally expected to strictly comply with the mode of procedures applicable in the court by filing the necessary application (also known as Court process) which would be employed in expressing his grievance.
Thus, filing of a court process is neither at the discretion of parties nor the courts, but it has become imperative that a valid court process be filed in compliance with the requirements of law. This is mandated for courts to arrive at justice in the case and for justice to be seen by members of the society to have been done; thereby protecting the interests of the parties and the entire society at large. It is against this background that this article attempts to evaluate the legal effects and intricacies associated with unsigned affidavit accompanying an originating summons under Nigeria laws through an appraisal of relevant statutes, legal textbooks, and case laws as applicable in Nigeria.
An Affidavit indeed ought to be signed by the deponent. This is neither subject to the deponent’s discretion nor the court’s discretion. It is a command and requirement of a clear position of law. Anything short of this position of law is and remains a nullity. That is, such would be treated as “no Affidavit at all”. This represents the effect of section 117(4) of the Evidence Act, 2011.
Also, an unsworn and unsigned Affidavit has been judicially dealt with to mean incompetent in law and no other. The cases of CHEVRON NIG. Ltd V ENIOYE (2005) ALL FWLR (PT 265) 1168 at 1174 CA and Per Adumein, J.C.A in SENIOR STAFF ASSOCIATION of U.T.H.R I V A.I (2016) 14 NWLR (PT. 1531) 1 at 5 CA are to this effect.
Apposite to this age-long principle of law are the wordings of the Learned Author of the book: The Law and Practice of Affidavit and Documentary in Nigeria at page 49, the second paragraph “it is the signature on the affidavit that gives it validity; thus an affidavit that is not signed is not a valid affidavit. It should be noted that once an affidavit is incurably defective, it cannot be cured by filing a verifying affidavit”. This proposition is in sync with the age-long principle that an unsigned and undated document is a worthless piece of paper that has no evidential value in law;
See also AMINU V. NZERIBE(1989) 4 NWLR (PT. 118) 755; and SALIBAWA V. HABILAT (1991) 7 NWLR (PT. 174) 461.
The first question that comes naturally to every reader of this piece of work is: what is regarded as an Affidavit in law? Without a doubt, an Affidavit is taken as what it means to be in law. It is seen as a voluntary declaration of facts written down and sworn to before an officer authorised to administer oaths. It is as well seen as a document containing a statement of facts that the deponent swears to be true to the best of his knowledge. This was given judicially blessing in the cases of NWOKWO V. AZEKWO (2012) 12 NWLR (PT 1313) 151 and EZEUDU V. JOHN (2012) 7 NWLR (PT. 1978) 1 C.A. The contents of an Affidavit are questions of fact. That is, the deponent’s depositions must only be facts, not law. While the forms on how an Affidavit is written and how it would be signed are a question of law and nothing more. And such, it is a trite principle of law that whenever an action is a matter of law and the procedures have been prescribed by law, a court’s discretion cannot override the law in force. This is in respect of sections 108, 115, 117, 118, and 119 of the Evidence Act, 2011.
Hence, an examination of the effect of an unsigned Affidavit in an Originating Summon is and seems to be apposite at this juncture. To start with, Nigerian courts have dealt with this issue in the past. Members of Nigerian society and courts of law are enjoined to adhere to this position, until it is amended, because, it represents the law to date, except for a situation envisaged in law. That is, only where the Court is called upon to look into a written law and to construe it with no reliefs being sought for in the proceeding. We rely on the case of KEYAMO V. HOUSE OF ASSEMBLY, LAGOS STATE (2000) 12 NWLR 680 196 (CA).
This will then raise a germane question — will the non-signing of an Affidavit by the deponent vitiate and nullify the entire Originating Summons in a proceeding?
Clearly, the answer is in the affirmative. The position of law is clear on this and in that regard, the court’s discretion regardless of how beautiful it may seem, cannot overrule this position of law, and as such, whenever a situation of this nature occurs, the court is expected to strike out the entire Originating Summon and treat such Originating Summon as incompetent, because it is regarded as a court process that has not been initiated by the due process of law; which accordingly robs the jurisdiction of the court to entertain the suit. The case of MUDASIRU V. ABDULLAHI (2009) 17 NWLR (1171) 547 is relevant on this.
It is worthy to note that an Affidavit is mandated to be filed alongside an Originating Summon for it to be valid, without which such Originating Summon would be termed as incompetent and invalid. The case of IKEPEAZU V. OGAH (2016) LPELR 40803 (CA) 46-47 is relevant to this effect. In addition to this line of reasoning, the court had this to say in the case of KEYAMO V. HOUSE OF ASSEMBLY, LAGOS STATE (2002) LPELR 11 while commenting on the necessity for affidavit in action commenced by originating summons:
“Originating summons ought to be supported by affidavit or affidavits. Failure to do so makes it incompetent. This is because where reliefs sought in proceedings commenced by originating summons are predicated on facts, such facts should be brought before the court by affidavit evidence. It is only then that the court can know whether the facts are non-contentious to determine the propriety of commencing the proceedings by originating summons. (P. 614, paras. F-G)”
In simplest terms, the effect of this holding is that in a situation where an Affidavit is meant to support the commencement of an Originating Summon but not filed alongside the Originating Summon, the supposed Originating Summons is liable to be struck out; thereby becoming incompetent. The same applies to where the Affidavit that is filed is unsigned. This casts no doubt in the minds of every person who is familiar with the position of law, which has become a notorious position of law that, an unsigned document is worthless and inadmissible in law. The case of OMEGA BANK NIG (PLC) V. O.B.C LIMITED (2005) LPELR 2636 34 PARAG F-G is apposite on this.
Conclusively, this work has examined the meaning of an Affidavit and its effect when it is not signed. It has also reiterated that any document which is not signed does not have any evidential value at all and Affidavit inclusive. It equally examined the effect of an unsigned Affidavit in an Originating Summon to be treated as incompetent. That is, the Court shall strike out the Originating Summon in its entirety. As a recommendation, any aggrieved person who aims to approach a court of law to seek redress shall at all times comply with the provisions made by law. And as such, it is by compliance with the law that the Court will arrive at justice.
Isiaka Azeez Ayinde is a student legal practitioner, a legal aid enthusiast and a senior student of laws. He currently serves as the Attorney General of the Law Students’ Society, University of Ilorin and the Clinic Manager of the University of Ilorin Legal Aid Clinic. He has distinguished himself in student legal practice, and was conferred as a Senior Advocate in his institution of study. He can be reached via mobile through +2348141155920 and via mail at Azeezayindei@gmail.com
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