By Hameed Ajibola Jimoh Esq.

Under the Nigerian law and practice, there have been decisions of courts wherein the courts have always become strict with application of statutory provisions and would refuse to deviate or depart from the provisions of the statute regardless of what a litigant would urge the court to act or do otherwise. This sometimes seems as if the court has done something wrong or bad or become technical. This paper considers the requirements of all courts of justice in Nigeria to always comply with any statutory provisions and to justify the need for the courts to always remain compliant with the statutory provisions as doing so is not in breach of justice rather is in accord with judicial oath sworn to as contained in the Seventh Schedule to the Constitution of the Federal Republic of Nigeria-herein after referred to as the Constitution.

In the requirements of an affidavit for instance, the requirements of an affidavit have been clearly defined by the Evidence Act, 2011-herein after referred to as the EA. Most specifically, section 115(2) of the EA has restricted what an affidavit should contain especially, to such restriction that an affidavit shall only contain ‘facts’ and nothing more or less than ‘facts’, necessitating the affidavit evidence. This is thus a statutory provision and or requirement. On the general rules relating to an ‘affidavit’, sections 107 – 120 of the EA, provides the general rules of affidavits as follows ‘every affidavit used in the court shall contain only statements of fact and circumstances to which the witness deposes, either of his personal knowledge or from information which he believes to be true no affidavit shall contain extraneous matter by way of objection, prayer or legal argument or conclusion when a person deposes to his belief in any matter of fact and his belief is derived from any source other than his personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief where the deponent’s belief is received from another person, the name of his informant shall be stated and reasonable particulars shall be given respecting the informant, time and place of the information’.

Furthermore, in my humble submission, the statutory provisions of the requirements of an affidavit under the EA is that it is ‘facts’ that an affidavit should and or shall contain and not ‘law’. By virtue of section 258(1) EA, “Fact” includes – (a) anything, state of things, or relation of things, capable of being perceived by the senses; (b) any mental condition of which any person is conscious;’. Also, “Fact in issue” under same section, includes any fact from which either by itself or in connection with other facts the existence, non – existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follows;’. By virtue of section 121 of the EA, A fact is said to be – (a) “,proved” when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it does exist; (b) “disproved’ when after considering the matters before it, the court either believes that it does not exist or considers its non – existence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it does not exist; (c) “Not proved” when it is neither proved nor disproved.’. I agree with Jide Olakanmi of Jide Olakanmi & Co., LawLord Publication, 2015, Abuja, at page 109, where he stated and succinctly put the issue thus ‘A fact should be distinguished from law. A court of law is presumed to know the law since the rule of law could be shown to exist by making references to the statute which enacts it or to the decision of court which embodies if or to relevant authoritative textbooks. Opinions differ from fact. Opinions are formed by individual persons on facts. Opinions are subjective because they vary from person to person on the same facts. Relative to its nature, opinion of a witness is not allowed to be given in evidence (note exception in expert opinion). It is the function of the court to form its opinion as to the effects of facts adduced before it. But, the opinion of the court must be based on the facts before it; it is not allowed to bring in extraneous matter.’.

Therefore, in my humble submission, it is the law (which has not changed till date under the EA) that an affidavit ‘shall’ contain only facts and shall not contain: legal arguments; and or legal opinions; and or point of law; and or conclusion, and or extraneous matters, contrary to section 115(2) of the EA and the decision of the Supreme Court of Nigeria in the case of BUHARI V. INEC & ORS (2008) LPELR-814(SC) and a host of other cases, else, such an affidavit or such paragraph of the affidavit which breaches the section 115(2) of the EA shall be incurably and fundamentally defective and incompetent warranting the Honourable Court to strike out and or dismiss same. The one simple reason for this mandatory compliance without authorization for deviation is not far-fetched ‘it is a provision of statute’. I humbly rely on the decision of Supreme Court of Nigeria in the case of Josion Holdings Ltd. & 33 Ords. V Lormamead Limited (1995) 26 LRCN 1 at 11 and the Court of Appeal of Nigeria’s decision in the case of Chief Francis B. Edu and 3 others v Commissioners for Agriculture, Water Resources and Rural Development (2001) F.W.L.R. (Pt. 55) 433. For instance, in the Chief Edu’s case (supra), the Court of Appeal held at page 453 at para. D that ‘sections 86, 88 and 89 of the Evidence Act, 1990 (now section 115, emphasis is mine) are mandatory or obligatory and non-compliance is bound to lead to the rejection of the affected paragraphs of the affidavit’. Also, the Courts (i.e. including the Apex Court of Nigeria) in the above cited cases have held that ‘No legal argument, conclusion or other extraneous matter must be included in an affidavit’. Therefore, I humbly submit that a Court of law has the power to also indeed strike out the entire affidavit evidence which is in breach of the said section 115(2) of the EA based on the decision of the apex Court in BUHARI V. INEC & ORS (2008) LPELR-814(SC) where it was held that: “…a Court of law is not competent to pick depositions in affidavit which are consistent with Section 86 of the Evidence Act and ignore those which violate Section 87 of the Act. The Court of Appeal was therefore right in rejecting the depositions. See generally Nneji v. Chukwu (1988) 3 NWLR (Pt. 81) 184; FMG v. Sani (No.2) (1989) 4 NWLR (Pt. 117) 624; Abu v. Alele-Williams (1992) 5 NWLR (Pt. 241) 340; Nigerian LNG Limited v. African Development Insurance Co. Limited (1995) 8 NWLR (Pt. 416) 677; Eze v. Okolonji (1997) 7 NWLR (Pt. 513) 515; Finunion Ltd. v. MV Briz (1997) 10 NWLR (Pt. 523) 95.”Per NIKI TOBI ,JSC (P. 115, paras. C-F)”. (Underlining is mine for emphasis). It was also held in the case of SAMI V. APC & ORS (2019) LPELR- 48045 (CA) that: “With respect to paragraphs 3(j), (k), and 4, I am in total agreement with the submission of the appellant’s counsel that they are legal conclusion and argument and to that extent offensive to section 115(2) of the Evidence Act. These paragraphs of the counter-affidavit being so offensive and poisonous have also contaminated the other paragraphs which have also become as poisonous as the offensive paragraphs rendering the entire counter-affidavit liable to be struck out as the Court cannot and should not make any attempt to pick and choose the contaminant from the contaminated. See BUHARI v. INEC (2008) (Supra) at para D. per Tobi where the lawlord had this to say: “It is my view that the depositions which complied with Section 86 of the Evidence Act cannot save the entire depositions, as they are drowned by those which violated Section 87 of the Act. This is because a Court of law is not competent to pick depositions in affidavit which violate Section 87 of the Act. The Court of Appeal was therefore right in rejecting the depositions. Per AMINA AUDI WAMBAI, JCA (P. 24, paras. A-F). (Underlining is ours for emphasis). I equally humbly submit that the paragraphs and the depositions therein of the purported affidavit having derailed from statements of facts to include issues of law are liable to be struck out for also offending S.115 (2) of the EA. Furthermore, I humbly submit that laws are not facts and deposing to law instead of facts offends SECTION 115 (2) OF THE EA. In UBAKA & SONS LTD VS. EZEKWEM & CO (2000) FWLR (PT. 1), 77 AT P. 86, RATIO 4, it was held that ‘an affidavit that contains conclusion, prayer, argument or point of law offends SECTION 87 (now S.115 (2)) OF THE EVIDENCE ACT. SEE: SODIPO V. LEMMINKAINEN OY (1992) 8 NWLR (PT. 258) 229 AT 244, PARA. E. 2.36’. The underlined words above in my humble submission, is or are to the effect(s) that a trial court has no such power or discretion to deviate from the clear meanings and or provisions of a statute no matter the contrary view that such a trial court or judge might have! In my humble submission and recommendation too, an appeal can or shall also or therefore lie on law against the decision of such trial court that deviates from a provision of statute. To that extent too, a trial court, in my humble submission (and perhaps in order to do justice in a case), does not have the power and or discretion to consider the provisions of a statute which the trial court is bound to apply as provided by the statute as being ‘technical’ in application! Respectfully to all courts (especially the trial courts in Nigeria), provisions of a statute must be complied with by every court of law and in fact, every person (no discretion is allowed in this regard)! My reasons for these submissions shall be espoused or explained clearly in the preceding paragraphs of this paper. It should however be observed that where such affidavit or entire paragraphs of the affidavit have been struck out by the Court, it therefore means that nothing is placed before the Honourable Court by the said party in his application for the Honourable Court to therefore rule on than for the Court to dismiss the said application or process that is lacking in evidence, the said application having thereby become incompetent. Also, it is a trite law that one cannot place such an application on no law or no legal basis and expect it to stand. See: the case of Macfoy v United African Company Limited PC 27 Nov. 1961. Also, I humbly submit that the use of the word ‘shall’ in section 115(2) of the EA connotes that the requirement as to ‘facts’ rather than law’ in an affidavit is ‘mandatory’. In the case of Dr. Arthur Agwuncha Nwankwo and Ors V. Alhaji Umaru Yar’Adua and Ors. (2010) LPELR-2109(SC), the apex Court held as follows on the interpretation to be accorded the word ‘shall’ in a statute, “The word shall when used in a statutory provision imports that a thing must be done. It is a form of command or mandate. It is not permissive, it is mandatory. The word shall in its ordinary meaning is a word of command which is normally given a compulsory meaning as it is intended to denote obligation. Bamaiyi V. A.G. Federation (2001) 12 NWLR Pt. 722 pg. 468 Ifezue V. Mbadugha (1984) 1 SCNLR pg. 427 Chukwuka V. Ezulike (1986) 5 NWLR pt. 45 pg. 892, Ngige V. Obi (2006) 14 NWLR pt. 991, pg. 1.” See also Chika Madumere and Anor V. Barrister Obinna Okwara and Anor (2013) LPELR-20752(SC). It is therefore my humble submission that when it comes to affidavit or depositions therein as to the requirement of facts, it is the clear manner and or requirement as to facts provided by the section 115(2) EA that must be complied with, failure to perform the act as provided will not only be interpreted as a delinquent conduct but will be interpreted as ‘not complying with the statutory provision.’.

Furthermore, in regard to ‘strict’ compliance with the provisions of a statute (and as a guide to trial court that might find itself in regard to deciding on the application of a statutory provision to ‘a fact in issue’, the word ‘strict’ according to the Oxford Advanced Learner’s Dictionary, 6th Edition, page 1186, means among other meanings, ‘that must be obeyed exactly’ and the word ‘exactly’ by the same Dictionary at page 398 means ‘used to emphasise that something is correct in every way or in every detail’. Therefore, in I.N.E.C. v. Action Congress [2009] 2 NWLR (Pt.1126) 524 P. 616, paras D-F, Per Salami, J.C.A. posit on the strict compliance with statutory provisions by a court and every person (including a lawyer and a litigant in a case or administrative body of government) thus:-“Where a method or manner of discharging responsibility is stipulated by a statutory provision it is that method that must be employed: See Co-operative and Commerce Bank Nigeria Plc v. Attorney-General of Anambra State (1992) 8 NWLR (Pt. 261) 528, 556 para. G, the Supreme Court stated as follows: -“Now, it is the law that where a statute provides for a particular method of performing a duty regulated by the statute, that method, and no other must have to be adopted” In Nuhu Sani Ibrahim v. INEC & Ors. (1999) 8 NWLR (Pt. 614)334, 352 paras. E-F, this court per Salami, JCA said that – “It is settled law that where a legislation lays down a procedure for doing a thing, there should be no other method of doing it.” Also, The Supreme Court in Corporate Ideal Ins. Ltd. v. Ajaokuta Steel Co. Ltd. (Supra) Pp. 193 – 194, held as follow:- “It is the view of this court that where a statute clearly provides for a particular act to be done or performed in a particular way, failure to perform the act as provided will not only be interpreted as a delinquent conduct but will be interpreted as not complying with the statutory provision. It was held by this court in Adesanoye v. Adewole (2006) 14 NWLR (pt. 1000) 242 that in such a situation, the consequences of non-compliance follow notwithstanding that the statute does not specifically provide for sanction. This knocks the bottom off the submission of the learned counsel for the appellant in this case that because section 50(1) of the Act does not provide for sanction, the contract cannot be said to be illegal. A contract which violently violates the provisions of a statute as in this case, with the sole aim of circumventing the intendment of the law maker is to all intents and purpose illegal null and void and unenforceable. Such a contract or agreement is against public policy and makes nonsense of legislative efforts to streamline the ways and means of business relations. This court, and any other court for that matter would not be allowed to be used to enforce any obligations arising therefrom.”.

Furthermore, the reason (or the main reason) as I earlier stated in this paper on strict compliance with the provisions in a statute by a court of law is because such strict compliance is in accordance with the ‘doctrine of separation of powers’ and as enshrined in sections: 4, 5 and 6 of the Constitution, by section 6 of the Constitution, the judiciary (court of law) has the duty to interpret laws (and not to make laws rather to be bound by laws made by the legislature), this power is donated by Section 6 of the 1999 Nigerian constitution. In exercise of such duty, the courts in Nigeria is to ensure that they interpret the law in such a manner as not to defeat the intention of the Legislators. It is expected that they restrain and confine themselves as passive-onlookers to judicial precedent i.e stare decisis which is the traditional mode of approach to cases brought before it, as it bothers on interpretation of statutes. This is because, it is expressed that the judge duty is to declare the existing law and not make one (Judicis est jus dicere non dare). This principle was echoed by the Supreme Court in the case of Okumagba v. Egbe (1965) 1 All NLR 62 at p. 65. So judges in performance of their judicial functions in constructing statutes, recourse had to be made to the plain meaning of words as against their moral view, as it behooves on them not to fill in the gaps in a legislation rather covey the intention of the legislature. As Allen K.C in his work “Law in the Making” 6th.ed., page 294, posited that: “By no possible extension of his office can a judge introduce new rules for the compensation of injured employee…The Legislature can project the future a rule of law which has never before existed. The court can do nothing of the kind.” See: –DO JUDGES MAKE LAW? by Nonso Robert Attoh, Faculty of Law, University of Nigeria, Enugu State, Nigeria (2015/2016 Session). So, a court of law is left with no other option than to interpret the clear and unambiguous law (such as section 115(2) EA) as it is liberally. So, therefore, this makes a reason for why ‘such a defect of non-compliance with section 115(2) EA, by an affidavit, is so fundamental, fatal and incurably defective to such an extent that the depositions which complied with Section 86 of the Evidence Act cannot save the entire depositions which offends against the said section 115(2) EA, which makes them (all) drowned by those which violated Section 87 of the Act and a Court of law is therefore not competent to pick depositions in affidavit which violate Section 87 of the Act. This is because, provisions of a statute must be complied with by every court of law and in fact, every person.

REASON FOR THE QUERY AS TO WHETHER JUDGES MAKE LAWS:

By virtue of the doctrine of separation of powers and checks and balances, it is not the duty of the judiciary to make laws. The 1999 Constitution in sections 4-6 provided for the legislature to make laws, the executive to exercise executive powers and the judiciary to exercise judicial powers to determine questions of civil rights and obligations. However, common law is referred to as judge-made-laws because it was created by the itinerant judges in England. Therefore, the controversy exists as to whether the courts do indeed make new law or whether law making is strictly reserved for the legislature. Judges have often insisted that they do not make law directly and there are two views on this question- the declaratory and the creative views.

DECLARATORY THEORY: Blackstone’s theory has been adopted by some judges and theorists as reflected in the following holdings: Lord Mac Millian in Read v.Lyons (1947) A.C 156 “Your Lordships’ task in this House is to decide particular cases between litigants and your lordships ARE NOT CALLED UPON TO RATIONALIZE THE LAW OF ENGLAND. That attractive, if perilous field, may be left to other hands to cultivate”. Lord Esher in Willis v Baddeley [1892] 2 QB 324 “There is no such thing as judge-made law, for the judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable”.

Furthermore, in regard to the query that ‘judges do not make laws’, the Nigerian appellate courts have held in a plethora of case laws on the subject among which are humbly referred to as follows: “I reiterate that it remains hornbook law that while the Courts have the powers to interpret the law, it has no licence to veer into the legislative arena or constitute itself a legislator by importing into a statute words that were not used by the legislature. The function and role of the Court remains jus dicere, not jus dare. See BASINCO MOTORS LTD. vs. WOERMANN-LINE (supra); SETRACO vs. KPAJI (2017) LPELR (41560) 1 at 25-26; ELABANJO vs. DAWODU (2006) 15 NWLR (PT 1001) 76; FRN vs. DARIYE (2011) LPELR (4151) and ABUBAKAR vs. DANKWAMBO (2015) LPELR (25698) 1 at 71-72. ‘See per OGAKWU, JCA, in ‘TONIQUE OIL SERVICES LTD. vs. ASSET MANAGEMENT CORPORATION OF NIGERIA (2018) LPELR-45106 (CA)’. Also, the Supreme Court of Nigeria in the case of ‘OCHOLI ENEJO JAMES, SAN vs. INEC & ORS. (2015) 12 NWLR (PT. 1474) 538 @ 588 D – G’ per KEKERE-EKUN, JSC. held thus “In interpreting the provisions of the Constitution and indeed any statute, one of the important considerations is the intention of the lawmaker. In addition to giving the words used, their clear and ordinary meaning (unless such construction would lead to absurdity), it is also settled that it is not the duty of the Court to construe any of the provisions of the Constitution in such a way as to defeat the obvious ends it was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends.”. The Supreme Court of Nigeria further held in the case of ‘BUHARI vs. YUSUF (2003) 14 NWLR (PT.841) 446 at 535.’ thus ‘The main object of statutory interpretation after all is to discover the intention of the lawmaker, which is to be deduced from the language used. Also, in the case of COCACOLA NIGERIA LTD. & ANOR. vs. MRS. TITILAYO AKINSANYA (2017) 17 NWLR (PT. 1593) 74 @ 121 – 122’ per EJEMBI EKO, JSC. held thus “…The judex neither makes laws nor does it possess any power to amend any statute. Intent of the lawmaker and or the purpose in forming the enactment of the particular provisions of a statute are intertwined. It is from the words of the statute and no other source, that the intention of the framers of a statute or Constitution must be ascertained.” Furthermore, the Court of Appeal of Nigeria held thus “…one of the vital canons of interpretation of statutes is that Courts should be minded to make broad interpretation, by being liberal. A purposefully holistic interpretation of statutes is often necessary so that the real intention of the legislature will be discovered. See: ELABANJO & ANOR. V. DAWODU (2006) LPELR-1106(SC)” Per MUSTAPHA, JCA, in ‘OSINUBI vs. QUANTITY SURVEYORS REGISTRATION BOARD & ANOR. (2018) LPELR-45290 (CA)’. Furthermore, the Court of Appeal of Nigeria also held thus in the case of MIC ROYAL LTD. vs. ADVERTISING PRACTITIONERS COUNCIL OF NIGERIA (2018) LPELR-45314 (CA) Per ABUBAKAR, JCA, thus “…to ascribe to the relevant provisions of the Act any expansive and loose meaning, …would amount to importing into the words of the statute, such additional meaning, which were not provided there in the first instance by the legislature; that exercise is not within the domain of the Court, because in the interpretation of a statute, the duty of the Court of law is limited to interpreting the words used by the legislature; it is neither within the province of the Courts nor do they have the vires to circumvent the clear intention of the legislature.”.

Furthermore, I humbly submit that compliance with the statutory requirements and or provisions by a court of law accords with the judicial oaths sworn to by the judge as contained in the Seventh Schedule to the Constitution, which provides thus ‘I,………………………….do solemnly swear/affirm that I will be faithful and bear true allegiance to the Federal Republic of Nigeria; that as Chief Justice of Nigeria/Justice of the Supreme Court/President/Justice of the Court of Appeal/Chief Judge/Judge of the Federal High Court/Chief Judge/Judge of the High Court of the Federal Capital Territory, Abuja/Chief Judge of………………..State/Judge of the High Court of…………..State/Grand Kadi/Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja/Grand Kadi/Kadi of the Sharia Court of Appeal of……………State/President/Judge of the Customary Court of Appeal of the Federal Capital Territory, Abuja/President/Judge of the Customary Court of Appeal of …………………. State, I will discharge my duties, and perform my functions honestly. to the best of my ability and faithfully in accordance with the Constitution of the Federal Republic of Nigeria and the law; that I will abide by the Code of Conduct contained in the Fifth Schedule to the Constitution of the Federal Republic of Nigeria; that I will not allow my personal interest to influence my official conduct or my official decisions; that I will preserve, protect and defend the Constitution of the Federal Republic of Nigeria.

So help me God.’ (Underlining is mine for emphasis).

Finally, therefore, it is my humble submission that when it comes to the requirements and or compliance with statutory provisions, no court of law or person or lawyer or litigant has an option to what the statute has provided and the position in this instance remains that provisions of a statute must be complied with by every court of law and in fact, every person.

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