A member of the Nigerian Bar Association, NBA, Akure Branch Oso Adetunji has responded to a statement by the Ondo State Ministry of Justice over a debate precipitated by the latter’s circular inviting the public to swear and file affidavits for ₦300.
Responding to plans announced by the state’s Ministry of Justice, MoJ, to provide the notarial service to the public, and at a fixed rate, Mr. Adetunji Esq. said:
REACTION TO THE MINISTRY OF JUSTICE, ONDO STATE REJOINDER TO THE POSITION OF NBA ON THE ILLEGALITY OF ADMINISTRATOR GENERAL OF ONDO STATE ADMINISTERING OATH IN AFFIDAVIT AND RECEIVING AND FILING SAME
I have read the Ministry of Justice, Ondo State rejoinder, as given by and on behalf of the head of Ondo State Ministry of Justice, Ondo State, Attorney General and Commissioner for Justice Ondo State to the objection of the NBA, Akure to the “advertisement” made to the general public inviting the public to come to the office of Administrator General and Public Trustee, Ondo State to swear to an affidavit and file same in the Ministry of Justice for a fixed rate of ₦300.
Before we go to the validity/proprietary or otherwise of the said advertisement and the implication of fixing the filing of an affidavit at ₦300 flat, let us discuss the ethical issues thrown up by the Attorney General and Commissioner of Justice, Ondo State circular under consideration. This is important because the Attorney General and Commissioner for Justice is first and foremost a Lawyer and the circular under consideration was issued to the public in his capacity as Chief Law Officer to the State and being a lawyer qualified him to hold the office.
2. The Rules of Professional Conduct in the Legal Profession made pursuant to Legal Practitioner Act, Cap 20, 2010 LFN prohibits soliciting for legal job or engagement through advertisement of any kind. Section 39 (1) of the said Rules says it is improper for a Lawyer, jointly or severally to attract business to himself or themselves like the AG’s circular in question. For the avoidance of doubt Section 39 (3) of the Rules provides inter-alia
“39(3) notwithstanding the provisions of paragraph (1) of this rule, a lawyer shall solicit professional employment either directly or indirectly by-
- Circulars, handbills, advertisement, through touts or by personal communication or interview;
- Furnishing, permitting or inspiring newspaper, radio or television comments in relation to his practice of the law;
- Procuring his photograph to be published in connection with matters in which he has been or is engaged, or concerning the manner of their conduct, the magnitude of the lawyer’s position;
- Permitting or inspiring sound recording in relation to his practice of law; or
- Such similar self-aggrandisement.”
3. From the above, it is clear that those trying to defend the offensive, unprofessional and illegal advertisement on the ground that it is an official “circular” and is therefore allowed will concede that their argument is violently offensive to the spirit of the above provisions prohibiting improper attraction of Business by a Lawyer or a group of Lawyers. One of the medium through which a Lawyer is expressly prohibited from using in attracting business or soliciting for job is circular, whether private or public.
4. The fact that some people now earn salary as public officer does not mean they should attack the means of livelihood or survival of some of us in private practice by fixing a paltry sum of ₦300 for preparing a legal document. By the extant provision of Rules of professional conduct, Lawyers are expected to charge fees reasonable and proportional to the service rendered. See Sections 48 and 51. Therefore, if some people have history of preparing an affidavit for ₦200 that is the level of their practice and that amount may be proportional to their service and input into service rendered. It does not mean that another Lawyer cannot charge ₦20,000 or more for such service. This circular is simply taking jobs away from all the Notaries Public in Ondo State.
5. To the Rejoinder, the Ministry of Justice, Ondo State in trying to justify the circular issued by it, relied on Section 56 of the Administrator General Law of Ondo State which empowers the Administrator General and Public Trustee, Ondo State to “administer oath” for the purpose of the Law, i.e. for the purpose of Administrator General Law of Ondo State. Let me adopt the position of NBA, Mrs. Banke Oloba and others who hold the view that, Administrator General law of Ondo State, a special legislation cannot by any known cannon of interpretation of statutes or by any ingenuity (where one is demonstrated) be stretched in its interpretation to confer the power to receive and file general purpose or any “affidavit” on the Administrator General and Public Trustee, of Ondo State.
6. The Author of the MINISTRY OF JUSTICE, ONDO STATE rejoinder in dressing the Administrator General and Public Trustee, of Ondo State with a borrowed power to swear to, receive and file an affidavit, classified affidavit into two;
i. Affidavit made for use in court proceedings; and
ii. Affidavit made for purposes other than court proceedings.
The above novel and unprecedented classification is to bring the Administrator General and Public Trustee, Ondo State into the category of those who have power to swear to, receive and file affidavit made for purposes other court proceedings. Simply put, the Rejoinder is exempting the affidavit sworn to and file in the Administrator General and Public Trustee, Ondo State’s Registry from the class of Affidavits that need not be filed or used in court.
7. The above classification is strange, unprecedented and novel just like the advertisement to commercialize Affidavit, leading to the Rejoinder. The determination (I don’t want to use desperation) to bring Ondo State Administrator General and Public Trustee, Ondo State into the class of those who are empowered by law to act as Commissioner for Oath in the process of making an affidavit led the Author of the rejoinder to making the strange classification above and the type of interpretation given to Section 56 of the Ondo State Administrator General and Public Trustee, Ondo State Law of Ondo State.
8. The Author of the Rejoinder in a deliberate mischief led himself into the avoidable error that anybody empowered by any law to “administer oath” of any kind or of particular/restricted type like that of Administrator General and Public Trustee, Ondo State can act or constitute himself into an authority before whom an affidavit pursuant to the Evidence Act can be filed, provided in their thinking, that such Affidavit is not going to be used in court proceedings.
9. The Author of the rejoinder wants us to believe that in law and for all practical purposes, “Oaths” made pursuant to oaths Law of a State or Oaths Act or Notary Public law are one and the same with “affidavit” which is strictly governed and regulated by Evidence Act. It is elementary and our courts are clear that anything relating to taking of evidence or form in which evidence like affidavit is to be taken is strictly an exclusive preserve of a Federal Legislature. That is why it was possible for the Author of the Rejoinder to find and rely on corresponding Oaths Laws of Ondo State on taking of “Oaths” “affirmation” and “declarations” but impossible to find any corresponding state law on the power and process of making an Affidavit. In DUMALIN INV. LTD V BGL PLC (2016) 18 NWLR PT 1544 PAGE 262 @ 341 PARAS D-E the court per Obaseki Adejumo JCA said inter-alia held that it is the Evidence Act and not even the rules of Court that governs admissibility and reception of evidence.
10. It is therefore clear that the state through any of its organs or arms does not have any power to make law to provide for the making of an affidavit or regulate the taking or making of an affidavit and cannot therefore donate such power to any of its organs or officer. The maxim “nenno dat quad no abet” still has its assured place in our legal jurisprudence. Let us be clear, we would have minded our business if the Ministry of Justice in its circular had advertised commercialization of “Oaths” and station Ogun and Sango worshippers in the Ministry of justice to administer all sorts of oaths for #300. They can also amend oaths Laws of Ondo State to achieve that. The Ministry of Justice of any State has no power to make rules or law regulating the process of making of affidavit or who can administer oath in an affidavit.
11. If affidavit, Oaths and Notary Public are one and the same, there would not be need for separate laws regulating each. They would not have been called separate and distinct names by the Legislature. In FCSC & ORS VS LAOYE (1989) 2 NWLR (PT 106) PAGE 652 @ 686it was said that Legislators do not use words in vain. Thus the law makers who used different words as “oath” and “affidavit” and lay down separate process for making each and in different laws intend that they be construed differently.
12. It is conceded that oath is a fundamental requirement in an Affidavit but it is also true that oath or oath clause alone does not make an affidavit. Section 117 of the Evidence Act prescribes the form an affidavit must take. An oath is an oath; formal; or informal. The Author of the Rejoinder who equates an oath with an Affidavit should be told that by virtue of 120 of the Evidence Act, there can be an affidavit without oath or oath clause. A person whose religious belief forbids him from swearing to any oath may be excused from swearing to an oath in his affidavit.
13. I have seen one of the so called affidavit headed in the Ministry of Justice of Ondo State of Nigeria Holden at Akure. This is a legal absurdity with due respect. The words Holden as used here is a verb. Black Law Dictionary 9th Edition defines hold or Holden as used here to mean “to conduct or preside at; to convoke, open and direct.” Black Law Dictionary gives an example of a judge holding a court four days a week. The Administrator General and Public Trustee, Ondo State cannot preside over any court; and he cannot preside or direct the making of an affidavit for loss of clearance form which is clearly out of the purview of his office and the reason for which his office was created and for which it exist.
14. To further demonstrate the illegality and absurdity of heading an affidavit in the Ministry of Justice of Ondo State, Section 117 of the Evidence Act provides that every affidavit taken in a cause or matter shall be headed in the court and the cause or matter. The definition of the word “court” in the law is what court is. Cause on the other hand is defined by Black’s Law Dictionary “loosely as a lawsuit” and in specific as “Cause List” “Cause of action” and as a “Legal theory of a lawsuit”. An example of a cause is matrimonial cause. A matter is defined by Black’s Law Dictionary as a “subject of dispute under litigation” and or “something that is to be tried”. It is thus clear that there is no way an affidavit properly so called can be headed in the Ministry of Justice, Ondo State in law and in practice. There is also no precedent for such malady anywhere and we challenge Ondo State Ministry of Justice to give us one precedent.
15. Another fundamental practical difference between Oaths and affidavit is that affidavit where it fulfills the conditions stipulated in the Evidence Act in form and contents, is complete evidence without more on which a court can act upon as to the facts contained therein in giving judgment to a party relying on it. This is trite. Oaths whether verbal, informal or formal, when solemnly administered carry legal consequences and implications, oath are not evidence. Statement on Oath, an example of types of affidavits given in the Rejoinder, is nothing but a pleading upon which no court can act on. Statement on Oath needs another oath and must be adopted before it can be activated and relied on.
16. Finally, the Supreme Court per Niki Tobi in Muhammadu Buhari v INEC & Ors held that there is a difference between affidavit and deposition or Written Statement on Oath. Following it, it has been demonstrated that a Written Statement on oath filed along with but not sworn to, can be cured with an oath taken in the Witness Box, subsequent to its adoption. In a proceeding where I and others were led by Akin Olujimi, SAN, a witness was led to make clerical corrections in his Written Statement on Oath before it was adopted based on sound principle of law and practice that Statement on Oath is a pleading that can be corrected before its adoption unlike an affidavit that has a rigorous and legal procedure before it can be corrected.
From the above, it is submitted that the submissions and argument in the Rejoinder to the effect that because the Administrator General and Public Trustee, Laws of Ondo State empowers the Administrator General and Public Trustee, Ondo State to administer Oath, the said Law can be construed as empowering or enabling Administrator General and Public Trustee, Ondo State to create a Registry for the purpose of filing affidavit and administering oath in an affidavit. When;
- Power to administer oath for a specific purpose cannot be construed to mean power to receive for the purpose of filing an affidavit and to administer oath in an affidavit.
- Evidence generally is in exclusive Legislative List and affidavit being a specie of evidence cannot be regulated or provided for in any state law, therefore, Administrator General and Public Trustee, Ondo State Laws or any state law at that cannot be relied on or interpreted in determining who can receive, file or administer oath in an affidavit.
- The power of the Administrator General and Public Trustee, Ondo State to administer oath in the discharge of his specific duty cannot be stretched to invest in him the power to administer oath in an affidavit, receive and file affidavit in the erroneous belief that whoever can administer any oath can administer oath in an affidavit, receive and file affidavit because oaths and affidavit, in law and in practical terms are no one and the same.