ALUKO v. THE CHAIRMAN OF EFCC (2022) LPELR-57518(CA)
Issue
EVIDENCE โ AFFIDAVIT EVIDENCE โ
Effect of an affidavit not personally signed by the deponent
โIt is noted that the lower Court at pages 445- 446 of the record made the following findings:
โThe application Is not legally supported by an affidavit in line with the provision of Order 26 Rule 3 of the Rules of this Court.
This is because the affidavit purportedly filed by the Applicant is not signed by the deponent, notwithstanding that the Commissioner for Oath signed his portion.
Therefore, there Is no affidavit in support of the motion. Everything predicated on this motion collapses as the Applicant cannot put something on nothing and expect it to stand. Where a document purports to be an affidavit in support of the motion not signed by the deponent, it is a worthless document that has no evidential value.โ
Now, Section 117 (4) of the Evidence Act, 2011 provides as follows: โAn Affidavit when sworn shall be signed by the deponent or if he cannot write or blind, mark by him personally with his mark, in the presence of the person whom it is takenโ
Similarly, Order 26 Rule 3 of the Federal High Court (Civil Procedure) Rules 2019 provides as follows: โThe party moving a motion shall support the motion with an affidavit setting out the facts on which the party intends to rely and the motion shall be filed along with a written address.
Affidavit to be served with motion and written address.โ Based on the above, I found that the findings of the lower Court cannot be faulted as the Judge was only giving effect to the Rules of the Court and the law. No sane Judge will allow an unsigned/unsworn Affidavit attached to an application to scale through his Court as it is incompetent and liable to be struck out.
The argument of the Appellantโs Counsel that the fundamental right to fair hearing of the Appellant has been infringed cannot hold water as the lower Court is only performing its duty in accordance with the law.โ Per MOHAMMED LAWAL ABUBAKAR, JCA (Pp 18 โ 20 Paras F โ C)
โ๏ธ C.K. ANYANWU ESQ
PUBLICITY SECRETARY,
NBA, ABA BRANCH