By Carrington Omokaro, Esq

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 worthy of note that the distinction between an affidavit and a written statement on oath is that while the former becomes evidence upon being sworn, the latter becomes evidence upon adoption in court.

In the case of GTB PLC v. ABIODUN (2017) LPELR-42551(CA) the Court of Appeal held that failure to include the words of footing in an affidavit/written statement on oath renders it incompetent.

However, the same Court of Appeal in the case of Enyi v. Prodeco Int’l Ltd (2018) LPELR-44690 (CA) stated that failure to include the words of footing is only a defect as to form and not substance as stipulated by S. 4(3) of the Oaths Act.

It is worthy of note that in GTB’s case (2017) the words of footing were included but not in the exact words as laid down in the Oaths act. The court held that failure to comply with the exact words makes the oath invalid.

However, in Enyi’s 2018, the words of footing were not included at all. Yet the Court of Appeal held that it is only a defect as to form not substance and that upon adoption, the defect is cured.

Also, In MTN v. OLATUNDE (2021) LPELR-54927 (CA) counsel raised an objection to a “Statement on oath” because the words of footing stated I depose to this “Affidavit” in good faith…Instead of I depose to this “Statement on oath” in good faith. The Court of Appeal held that it is only a defect as to form and not substance. See also ACCESS BANK PLC & ORS v. MODAKOL (2022) LPELR-57017(CA).

While they may be other decisions, by virtue of the principle of law in Alao v. Unilorin (2008) 1 NWLR (Part 1069) 421 the latter decision will be followed.

SUPREME COURT DECISION
The Apex Court however seemed to have settled the issue in the Case of Adejugbe v. Aduloju (2022) 3 NWLR (Part 1816) 131, where the Apex court held that failure to include the words of footing is only a defect as to form and not substance as laid down by S. 4(3) of the Oaths Act. Hence the oath is still valid. See also Solola v. State (2005) 2 NWLR (Pt.937)460.

Also, Section 113 of the Evidence Act, 2011 states that the court shall permit an affidavit to be used notwithstanding that it is defective in form if the court is satisfied that it is sworn before a person duly authorised. (A typical example can be when you errorneous state “Sworn to at the Magistrate Court Registry*” meanwhile you meant to say “High Court Registry” but the process none the less is signed by the commission for oaths of the High Court.