Oath means any form of attestation by which a person signifies that he is bound in conscience to perform an act faithfully. By section 8 of the Oaths Act 1963 and by section 180 of the Oath Act, Cap 333 Laws of the Federation of Nigeria 1990, evidence must in all cases be given on oath except where a witness by the permission of the court is allowed to affirm and where the taking of an oath is contrary to a witnesses’ religious believe, then he can affirm. Section 205 of the Evidence Act, 2011, re-echoes the above position by providing that “save as otherwise provided in sections 208 and 209 of this Act, all oral evidence given in any proceeding must be given upon oath or affirmation administered in accordance with the Oaths Act or Law, as the case may be”.
Again,
section 207 of the Evidence Act, 2011 provides that where an oath has been duly administered and taken,
the fact that the person to whom the same was administered had, at the time of
taking such oath, no religious belief, does not for any purpose affect the
validity or such oath. Section 208(1) of the Evidence Act 2011 is
of the view that any court may, on any occasion, if it deems it just and
expedient, receive the evidence, though not given upon oath, of any person
declaring that the taking of any oath whatsoever is, according to his religious
belief, unlawful, or who, by reason of want of religious belief ought not, in
the opinion of the court, to be admitted to give evidence upon oath.
Thus,
the court can allow a person to give evidence without swearing an oath where
taking an oath is contrary to the person’s religious belief. In such a case,
the person can affirm. However, unsworn evidence (evidence not given on oath)
is allowed only on very few cases; namely:
i.
In inquiries and trials under the Criminal
Procedure Code of the Northern States. By section
229 of the Criminal Procedure Code, a witness is not bound to take an oath
or to affirm and if he refuses to make a solemn declaration, he cannot be
compelled to do so – The Queen v Mohammed Yola (1964) NNLR 112.
ii.
Also, under the Criminal Procedure Act, section 287(1)(a), allows a witness’
evidence to be given from the dock. The fact that at the time a witness gives
evidence, he had no religious believe and was not sworn or was sworn has no
effect at all on the validity of an oath.
iii.
If a witness who has testified earlier
in the same proceedings is called to testify again, he need not be re-sworn.
iv.
A person summoned to produce a document
only need not be sworn.
v.
By section
183(1) of the old Evidence Act, in criminal cases, the unsworn evidence of
a child who, in the opinion of the court, does not understand the nature of an oath;
but is possessed of sufficient intelligence to justify the reception of that
evidence and also understands the duty of speaking the truth, may be received.
The forgoing
notwithstanding, under section 182(2) of
the Evidence Act, where the court receives evidence not given on oath, it
must be reflected on the court record book and the reason for such reception
must also be stated. Lastly, under section
209(1) of the Evidence Act 2011,
in any proceeding in which a child who has not attained the age of 14 years is
tendered as a witness, such child shall not be sworn and shall give evidence
otherwise than on oath or affirmation, if in the opinion of the court, he is
possessed of sufficient intelligence to justify the reception of his evidence
and understands the duty of speaking the truth. However, subsection (2) of section
209 states that a child who has attained the age of 14 years shall, subject
to sections 175 and 208 of this Act give sworn evidence in all cases.
© Onyekachi Duru Esq and www.legalemperors.com, 2016. (All Rights Reserved) Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Onyekachi Duru Esq and www.legalemperors.com with appropriate and specific direction to the original content.
© Onyekachi Duru Esq and www.legalemperors.com, 2016. (All Rights Reserved) Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Onyekachi Duru Esq and www.legalemperors.com with appropriate and specific direction to the original content.