Distinguished seniors and colleagues, the EXCO of Akure Branch of NBA had a meeting with the Hon. Chief Judge of Ondo State and registered many displeasures hindering NBA/JUDICIARY affairs, amongst which issues were preparation of affidavits.
The Chief Judge promised that the issues will be dealt with.
It is our pleasure to announce that it has been ordered on the 20/10/2021 that:
1) ALL AFFIDAVITS, TRANSFERRING OWNERSHIP OF LANDS SHALL ONLY BE PREPARED BY LAWYERS TO THE EXCLUSION OF ANY OTHER PERSON(S); WHO SHALL AFFIX HIS PRACTISING STAMP/SEAL TO SAME ACCORDINGLY.
2) ALL OTHER AFFIDAVITS, PRESENTED FOR FRANKING AT THE REGISTRY MUST CARRY THE SEALS OF LAWYERS; FAILURE OF WHICH SAME SHALL NOT BE FRANKED BY THE REGISTRY.
The reasons for the compulsion of affixing seals is to wade off none lawyers indulging in preparation of affidavit for innocent people.
The chairman therefore prays all lawyers to comply with this new regulations which the CJ has graciously considered with effect from today 21/10/21.
I saw the above being circulated on social media and I wish to react as follows:
Same is very commendable. This was the proposal I offered to a former president of the bar AUGUSTINE Alegeh SAN (the idea was to get rid of touts and create more avenue for young lawyers to earn some money in that respect). Unfortunately his administration could not follow same up with state CJs due to so many pressing issues.
May I quickly add the following:
1. Fine, affidavits are legal documents that could be prepared by a lawyer or any other person and to be sworn to before an authorised personnel. It goes to show that it is not an exclusive document to be only prepared by a lawyer except a deed and the likes.
2. I think it should further be suggested that where an affidavit is seen to contain depositions that seeks to transfer title, such an affidavit should be rejected and same be referred to a lawyer for proper franking and preparation. This is so because upon bringing it to a lawyer, the said counsel would advise the individual on the proper document to prepare for such transfer of title rather than affidavit. This brings me to the principle by the court of appeal in the case of OKAFOR V. TITILOPE & ORS. (2018) LPELR-44385(CA) where it held that "An agreement between parties, no matter the number of parties, the value of the subject matter or nature of same, does not need stamps and seals of courts, commissioners for oaths or other staff to be valid and enforceable. Hence, there is no need to take any executed document to court for stamps of court registrars and staff of court."
3. Furthermore, Asides from the trite 5 ways of proving title to land, as we all know, the court also made it known in the case of BELLO v. BIRMA (2014) LPELR-23969(CA) that "under the law as it is settled law that the only document that can prove any passing of title would be Conveyance or Deed of Assignment. See Ezeigwe v. Awudu (supra)." Per ADAMU, J.C.A. (Pp. 32-33, paras. G-A).
4. By the above I make bold to say that item no. 1 in the above notice should be adjusted and corrected to read that such document or affidavit should be rejected as it holds no value. And where same appears to be franked by a legal practitioner, such should be reported to the nearest NBA branch chairman or officer.
5. An affidavit generally do not need to be franked by a legal practitioner, this is the law and same can and might be challenged. A party or citizen could approach the commissioner for oaths and decide to depose to an affidavit before him. That is the appropriate thing. Having the seal of a legal practitioner always on every affidavit is of no value and is subject to abuse and even counter productive for so many reasons in terms of future litigations and disputes. Imagine you already at a time obliged your seal on an affidavit that earned you 10000 naira. And in the future a dispute arises and that same client or person was sued, the brief was referred to you and you discover in the exhibits relied on by the other party, one of the affidavits carries your seal... At that juncture, you either reject the brief or refer the client further to another colleague.
6. Let us take a look at the reasoning of the supreme Court on contents of affidavit in the case of EMEKA v. CHUBA-IKPEAZU & ORS (2017)LPELR-41920(SC). Their lordships held: "This Court had held in A. G. Adamawa State v A. G. Federation (2005) 18 NMLR (Pt. 958) 1 at 657 thus; "There can be no doubt that it is settled that depositions in any affidavit shown in support of a cause or matter must not be drafted to include legal arguments, conclusions in law or fact. See Sections 85 and 87 of the Evidence Act, Cap.112 and which read thus:- 86. Every affidavit used in the Court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true." Per MARY UKAEGO PETER-ODILI, JSC (Pp 52 - 52 Paras A - E).
7. It also seems to be settled that affidavits and depositions are matters of evidence and therefore come within the exclusive competence of the Federal Legislature. In line with this, the Evidence Act has made ample provisions regarding affidavit and how it is to be made. A lawyers seal isn't required to make same valid neither is it necessary. Infact the seal being affixed by states registry is of no legal value save for revenue generation and or administrative procedure consequent to making same appropriate for onward transfer to the admin judge.
8. The making and contents of affidavit and depositions are matters of evidence which fall within the exclusive legislature competence of the Federal Government. No state can validly legislate on the subject. Any state law, including rules of court, on the subject must be ultra-vires.
9. On the stamp and seal issue, we all know that as at today, the rules of professional conduct have been amended to delete the provisions for seal (whether rightly or wrongly). But same has been GAZETTED, see the notice FGP/85092020/250. Now, I find it a cardinal sin for lawyers to be challenging a law such as the RPC, 2020, verbally (or on social media) and calling for a disregard of such subsidiary law which enjoys the presumption of genuineness under our Evidence Act, 2011, without applying to a court of law to set aside the said law being challenged!
10. As I earlier hinted, it is a welcome development but with some bottlenecks.
Olajide Abiodun Esq.
22/10/2021.
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