Nigerian Law/Evading justice: perjury
EVADING JUSTICE – PERJURY AS A RELATED OFFENCE
Evidence is the corner stone of all legal proceedings. It is therefore, of great significance, for its sanctity to be protected. A judge or magistrate before whom the legal contest is fought is intrinsically unconnected with the facts which led to the dispute. His ability to resolve the dispute based on the facts as presented by the disputants depends to a large extent on the quality of evidence adduced by the parties. Assigning probative value on the evidence of the disputants and, their witnesses, equally depend on the forensic skills of the trial court in observing the demeanours of those witnesses. The basis for the proscription of offences relating to perjury or false evidence is underscored by the inherent danger in wrongful conviction or wrongful acquittal where the evidence adduced by the parties, were false.
Historically, in Anglo-Saxon legal procedure, the offence of perjury (which is same with the offence of false evidence under the Penal Code, (applicable in Northern states of Nigeria) although the term is retained under the Criminal Code (which is applicable in Southern states of Nigeria) could only be committed by both jurors and by compurgators.1 With time witnesses began to appear in court they were not so treated despite the fact that their functions were akin to that of modern witnesses. This was due to the fact that their role were not yet differentiated from those of the juror – hence false evidence or perjury by witnesses was not made a crime. Even in the fourteenth century when witnesses started appearing before the jury to testify, perjury by them was not made a punishable offence. The maxim then was that every witness’s evidence on oath was true.2 Perjury by witnesses began to be punished before the end of fifteen century by the Star Chamber. The immunity enjoyed by witnesses began also to be whittled down or interfered with by the parliament in England in 1540 with subornation of perjury3 and, in 1562, with perjury proper. The punishment for the offence then was in the nature of monetary penalty, recoverable in a civil action and, not by penal sanction. In 1913, the Star Chamber, declared perjury by a witness to be a punishable offence at common law.
CONCEPTUAL CLASSIFICATION ON CRIME OF PERJURY OR FALSE EVIDENCE UNDER NIGERIAN LAW Nigerian penal legislation classifies offences affecting evidence e.g. (for example) false evidence, perjury and, fabricating evidence in exactly the same way and, punishment for all the grades of offences appears to be based on the enormity of the evil, which will follow, consequent upon the giving of such false evidence. The offence of perjury is restricted as it was under common law to the case of forensic false evidence. This offence is committed by a witness, lawfully ‘sworn’ in judicial proceedings, which makes a material statement, which he knows to be false, or without belief in its truth. The word ‘oath’ according to Turner4 is not limited to religious oaths, but includes the taking of legal affirmation or declaration. Oath as synonym of sworn is defined by section 36 of the Penal Code thus: ‘The word ‘oath’ includes a solemn affirmation substituted by law for an oath, and any declaration required or authorized by law to be made before a Public Servant or to be used for the purpose of proof, whether in a Court of Justice or not.’
(a) False oaths in non-judicial proceedings In the classification of perjury, the Criminal Code,5 punishes every falsehood whether in judicial proceedings, or sworn or not, in exactly the same way. This tends to suggest that the Criminal Code punishes telling lies simpliciter and, lies told outside the confines of a Court of Law, even though, not sworn, are brought within the classification of perjury or false evidence. Under the Penal Code classification, such evidence must have been given under oath or under express provision of law compelling a person to state the truth. But having regard to section 36 of the same Code, such statement may be made in order to proof a particular fact in a Court of Law or not. The Criminal Code in classifying false evidence or the offence of perjury made no distinction between statements made under oath; under the Penal Code, if the statement is made in a judicial proceeding oath is a sine qua non for the statement to assume the character of false evidence or perjury, if its falsehood is proved. Under section 1 (1) of the English Perjury Act 1911, the statement to amount to perjury must have been made under oath. Under these laws it is irrelevant whether or not the witness’s statement is false at all. The witness renders himself liable to punishment by simply making assertions, false or true, which he does not positively believe to be true. In the words of Turner6 ‘a man who tells the truth quite unintentionally is morally a liar.’ This proposition was exemplified by the conviction of a Jewish juryman who concurred in a verdict that Christ was born of a virgin, was held to have committed perjury, whilst his Christian colleague were found not to be guilty.7
PERJURY OR FALSE EVIDENCE Definition
Section 156 of the Penal Code defines giving false evidence, thus: Whoever, being legally bound by an oath or by any express provision of law to state the truth or being bound by law to make declaration upon any subject, makes any statement, verbally or‘ot Whoever, being legally bound by an oath or by any express provision of law to state the truth or being bound by law to make declaration upon any subject, makes any statement, verbally or otherwise, which is false in a material particular and which he either knows or believes to be false or does not believe to be true, is said to give false evidence.
The offence is defined under section 329 of the Sokoto State Shariah Penal Code, thus ‘whoever makes any statement, verbally or otherwise, which is false in a material particular and which he either know or believes to be false or does not believe to be true, is said to give false evidence.’ The offence is also defined under section 117 of the Criminal Code, thus:
Any person who, in any judicial proceeding; or for purpose of instituting any judicial proceeding; knowingly gives false testimony touching any matter which is material to any question then pending in that proceeding, or intended to be raised in that proceeding, is guilty of an offence, which is called perjury.
In English law, the offence is defined under section 1 of the Perjury Act, 1911, thus:
If a person lawfully sworn as a witness or as an interpreter in a judicial proceeding willfully makes a statement material in that proceeding, which he knows to be false or does not believe to be true, he shall be guilty of perjury, and shall, on conviction thereof on indictment, be liable to imprisonment for a term not exceeding seven years to a fine or to both such imprisonment and fine.
Elements The following matters may be regarded as the elements of the offence:
(a) Lawfully bound on oath
It seems that under the Nigerian Penal Code, for a witness to be prosecuted for giving false evidence, his testimony must be required by law to be on oath and, such testimony may be verbal or otherwise. But having regard to section 36 of the same Penal Code as noted earlier, evidence given under an affirmation or solemn declaration is also regarded as evidence given on oath. In interpreting the term ‘By an oath’ under section 191 of the Indian Penal Code, which has same wording with section 156 of the Penal Code, Thakore and Vakil8 apparently referring to an Indian court’s decision, argued that an oath or solemn affirmation is not a sine qua non to the offence of perjury or giving false evidence. This reasoning may be correct but it is submitted that such a person must either legally be bound by an oath or by express provision of the law to state the truth or must be bound by law to make declaration. If otherwise, it is doubtful if a court of justice under the Nigerian Penal Code jurisdiction can reasonably find an accused guilty for the offence of giving false evidence for statements not made under those circumstances. Under section 113 of the Criminal Code, it is immaterial that the statement is given on oath or not. Also under section 117 of the same Code, the forms and ceremonies used in administering the oath is immaterial, provided that the witness’s assent to the forms and ceremonies was voluntary. It is also immaterial under the same section that the evidence was given orally or in writing.
With regard to the competence of the court before which the oath or affirmation is given the Penal Code is silent on this. However, if the position in the Indian Penal Code is to be used as a guide for section 156 of the Penal Code, it means that if the oath was administered by a court that has no jurisdiction over the case in which the false evidence occurred, the proceeding will be coram non judice.9 Under section 117 of the Criminal Code, it is immaterial that the court, tribunal, commission of inquiry or person before whom the oath was administered is properly constituted, or held in the proper place, provided that the court or tribunal, commission of inquiry or person acted as such in the proceeding in which the testimony is given. This seems to suggest that under the Criminal Code, perjury may be committed though the court had no jurisdiction in the particular case in which the statement was made.10 The position under the Nigerian Penal Code and, that of the Indian Penal Code is consistent with the position under common law, where it used to be a requirement that the oath must have been taken before a competent jurisdiction, that is before same person or persons authorized by English law to take cognizance of the proceeding in or for which the oath is given, and administer the oath.11 It must be pointed out that under the Penal Code, even if the oath is improperly administered by an incompetent person, the offence is still committed, if the person who made the false statement were bound by an ‘express provision of the law to state the truth.’
Turner11 enumerated those instances under common law, when the absence of ‘competent jurisdiction’ will result to the administration of oath on a witness being declared invalid, hence could not afford grounds for the prosecution of any person for perjury:
Thus a false oath taken in a court of requests, in a matter concerning lands, was held not to be indictable, that court having no jurisdiction in such cases. The court must be properly constituted and the evidence must be taken before person or persons constituting the court. And perjury could not be assigned on an oath taken before persons acting merely in a private capacity, or before those who take upon them to administer oaths of a public nature, without legal authority for their so doing, or before those who are legally authorized to administer some kinds of oaths but not those which happen to be taken before them, or even before those who take upon them to administer justice by virtue of an authority colourable, but in truth unwarrantable and merely void…
The English Perjury Act as seen from section 1 (1) does not contain the expression ‘competent jurisdiction.’ As noted above12 and, having regard to the definition of judicial proceeding in section 1 (2) of the Perjury Act, perjury can be committed even though the offence occurred before a court having no jurisdiction to hear the matter. ‘Judicial proceeding’ is defined by section 9 of the Penal Code thus: ‘judicial proceedings include any proceeding in the court which it is lawful to take evidence on oath.’ Section 113 of the Criminal Code defines a judicial proceeding to include any proceeding had or taken in or before any court, tribunal, commission of inquiry, or persons in which evidence may or may not be taken on oath. Section 180 of the Evidence Act13 dealing with taking of oral evidence, provides that ‘save as otherwise provided in section 182 and 183 of this Act all oral evidence in any judicial proceedings must be given upon oath or affirmation administered in accordance with the provisions of the Oath Act.’ Section 229 (1) of the Criminal Procedure Code14 provides that ‘Every witness giving evidence in any inquiry or trial under this Criminal Procedure Code may be called upon to take an oath or make a solemn affirmation that he will speak the truth.’
Sub-section 2 of section 229 of the same Code states:
The evidence of any person, who by reason of youth or ignorance or otherwise is in the opinion of the court unable to understand the nature of an oath, may be received without the taking of an oath or making of an affirmation if in the opinion of the court he is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth.
Section 230 of the Code prohibits compelling a witness to take oath or make affirmation. The section provides:
No witness if he refused to take an oath or make a solemn affirmation shall be compelled to do so or asked his reason for so refusing but the court shall record in such a case the nature of the oath or affirmation proposed, and the fact of the refusal of the witness together with any reason which the witness may voluntarily give his refusal.
Furthermore, section 231 of the CPC provides ‘a witness shall take an oath make a solemn affirmation in such a manner as the court considers binding on his conscience.’ With regard to swearing of Muslims, section 232 provides that:
No person of the Moslem faith shall be required to take an oath in any court unless
(a) He has been given an opportunity to complete the ablutions prescribed by the Moslem faith for persons taking oath on the Holy Qu’ran; and (b) The oath is administered by a person of the Moslem faith; and (c) The oath is taken upon a copy of the Holy Quran printed in the Arabic language.
By virtue of the definition of judicial proceedings under the Penal Code, it is clear that all proceedings in the ordinary courts of law, courts martial and tribunal and, quasi-judicial bodies where the taking of oath is a sine qua non for a witness to testify, are judicial proceedings. Under the Criminal Code, oath is not material, provided the evidence was given before any body authorized to conduct a hearing or an inquiry over a matter. Therefore, statements made before such bodies, if false, can furnish sufficient grounds to prosecute the maker for perjury or for giving false evidence under the Codes. However, a cursory look at section 113 of the Criminal Code, section 180 of the Evidence Act and, section 230 of the CPC reveals a conflict. This is because while the former section permits a witness to testify before a court or tribunal, commission of inquiry or any person on oath or otherwise, section 180 of the Evidence Act makes it mandatory for all oral evidence to be given on oath and, section 230 of the CPC permits a witness to testify if he elects to do so, not on oath or by affirmation. In such a situation, it is important, for the trial judge, the magistrate, the prosecution or defence counsel, to ensure that a statement is extracted from such a witness, which indicates that he agreed to tell the truth in his testimony. If this is not done, the testimony of such a witness may not furnish enough ground to prosecute him/her for perjury or for giving false evidence.15 Therefore, where a witness who refused to testify on oath or by affirmation, did not undertake to speak the truth, the entire process in such a proceeding may be described as a drama without any intent of it being basis for a criminal prosecution.
The above notwithstanding the position of the law by virtue of section 1 (2) of the English Perjury Act and, section 9 of the Penal Code, is that while evidence could only he held to have been given in a judicial proceedings, if it was given before a body authorized to receive and examine evidence on oath, such a consideration is immaterial under section 113 of the Criminal Code. In the English case of Shaw16 where licensing justices held a special preliminary meeting for which there was no statutory authority, they had no power to administer an oath, the proceeding was held not to be judicial one. Equally, where an oath was administered on a witness by a person authorized by law to do so, there can be no perjury, if that person subsequently withdrew. This was decided in Lloyd17 where a witness was sworn in bankruptcy before a county court registrar, but examined in another room in the absence of the registrar; no perjury was committed in the absence of the registrar who had the competence to receive evidence on oath. Under section 117 of the Criminal Code unlike section 156 of the Penal Code and section 1 (1) of the English Perjury Act, the false statement may either be made in an on-going proceeding or in a case, in which judicial proceeding is either threatened or imminent.18 Also where a witness in a judicial proceeding, contradicts his earlier statement cannot furnish a ground for the conviction of an accused person. The Nigerian Supreme Court stated so in the case of Joshua v The Queen,19 where the accused, a Customary Court President, was charged with demanding and with receiving, money to favour a litigant. A witness, who is said to be the go-between when first testifying before a magistrate, denied the corruption; later after a prosecution was begun against him for making a false statement as the police, he testified against the accused. The trial judge treated the witness and the accused as accomplice and, after warning himself of the danger of convicting the accused on such evidence, found their evidence to be true, and convicted the accused. When the trial judge re-examined the witness, in answer to the trial judge, he said there was no difference between his original written statement to the police and his evidence at the trial. The statement was not produced. In allowing the appeal, the Supreme Court held:
The judge erred in receiving evidence on the contents of the written statement he should have disregarded it in toto the evidence of M.S, who had committed perjury, as unreliable, and then asked himself whether there was enough other evidence for finding the appellant guilty; and as it was uncertain whether the judge would have convicted on the litigant’s evidence alone the conviction would be quashed.
The requirement that the false statement must have occurred under oath, in a judicial proceeding, which is a sine qua non for the offence of perjury under sections 156 of the Penal Code and 1 (1) of the English Perjury Act 1911, does not have a general application in all cases. For instance, oath may be a first step in the initiation of the proceeding, for example, swearing to an affidavit in support of a motion or any fact contained in a deposition duly sworn. According to Turner, ‘ In the case of perjury in an affidavit or the like, the offence is committed when the deponent takes oath to the truth of the affidavit, and it is unnecessary to aver or prove that the affidavit was filed or in any way used.20
It is pertinent to emphasis here, that under common law, the only oath required is one ‘calling Almighty God to witness that his testimony is true.’21 Such oath need not be in accordance with the doctrine or tenets of Christianity. It was sufficient if the witness believed in God and, swears in accordance with his religious belief.22 The purpose of such oaths had the effect of the witness renouncing the mercy and imprecates the vengeance of Heaven if he did not speak the truth. Such oath had the idea of binding the conscience of the witness, and presupposes a religious sanction if the witness told a lie on oath. Such a requirement has been displaced now, in that the solemnity of the occasion when an oath is administered by a witness in a judicial proceeding, no longer implies a religious sanction, but a legal sanction. This can be deduced from section 191 of the Criminal Code:
Any person who, on any occasion on which a person making a statement touching any matter is required by law to make it on oath, or under some sanction which may by law be substitute for an oath, or is required to verify it by solemn declaration or affirmation makes a statement touching such manner, in any material particular, is to his knowledge false, and verifies it on oath, or under such sanction or by solemn declaration or affirmation; is guilty of a felony, and is liable to imprisonment for seven years.
The Evidence Act has also modified the common law rule which required a witness to swear in accordance with his religious belief. Section 182 (1) of the Evidence Act provides:
Any court may on any occasion if it thinks 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 ought not, in the opinion of the court, to be admitted to give evidence upon oath.
Section 39 of the Sokoto State Shariah Penal Code include in the definition of an oath, the swearing in the name of Allah (SWT) or by His attributes and, a solemn affirmation substituted by law for an oath. This means that witnesses in a Shariah Court are given option to affirm instead of swearing in the name of God. It also means that those witnesses in a Shariah Court who may object to swearing on oath in accordance with section 182 (1) of the Evidence Act, are also at liberty to affirm, instead of swearing. However, the common law position on swearing in the name of God, is clearly modified by section 117 of the Criminal Code thus: ‘The forms and ceremonies used in administering the oath or in otherwise binding the person giving the testimony to speak the truth are immaterial, if the assents to the forms and ceremonies actually used.’23
(b) Material Statement in that proceeding All the statutes referred to above, require that the statement must be material to the proceeding in question, although the Criminal Code extends the doctrine to cover cases in which proceeding is either threatened or imminent. This doctrine was credited to Coke:24
For if it be not material, then though it be false, yet it is no perjury, because it concerneth not the point in suit, and therefore in effect it is extrajudicial also this act giveth remedy to the party grieved, and it the deposition be not material, he cannot be grieved thereby.
Whether or not a false statement is material as to amount to perjury is a question of fact, for the court.25 The materiality of the statement need not be intrinsic to the evidence in question. It is sufficient, if it is capable of facilitating the judge’s other evidence which had an intrinsic materiality. This has been explained by Turner, thus:
… so that trivial details, mentioned by a witness in giving his account of a transaction, may become important by their leading the jury to believe that his knowledge of the transaction is complete, and his evidence therefore likely to be accurate on the same ground, all statement maDE by a witness as to matters that affect his credibility are material, e.g. his denial of having been convicted of crime. And even if the false evidence were legally inadmissible yet this need not prevent its being regarded as ‘material’ enough to form the subject of an indictment for perjury. There is, for instance, a rule that when a witness answered answers are to be taken as final, so that no other witness can legally be brought to contradict them. Yet if, by a breach of this rule, some second witness be permitted to give this contradiction, and he gave it falsely, he may be indicted for perjury; for, so soon as the contradiction was admitted, it did affect the credit given to the previous witness, and so became ‘material.’26
It seems that the question is not just failure to tell the truth, that determines the materiality of the statement. Even acts of a witness which obstructed proceeding during cross-examination, may be held to be material. In Millward,27 where a police officer denied having sought the assistance of his colleague in identifying in the court room a person charged with driving offences, that act was held by the English Court of Appeal as material statement in that it brought to a halt a line of cross-examination, went to the heart of the case, in that the stopping of the cross-examination might very have affected the outcome of the case. However, questions asked during cross-examination, which purpose is to impugn the credibility of a witness as to his previous convictions have been held not to be material. In R v Griepe,28 accused gave evidence on behalf of the Crown in 1970 on a preliminary objection into a charge of blackmail. The counsel to the alleged blackmailer asked the accused questions as to his credit with regard to his previous convictions between the year 1947 and 1950, which the accused denied but later admitted. The accused was subsequently charged with perjury relating to his evidence at the Magistrate Court in the proceedings for blackmail. The court inter-alia held that the answers given by the accused relating to those convictions not being relevant to those proceedings could not form the basis of a prosecution for perjury.
Whether a statement is material or immaterial seems to be a recondite point. Even as the questions relative to the credibility of a witness, a clear illustration of its operation seems not to be an easy point to determine. Smith29 argues that questions put to a witness under cross-examination which goes solely to his credit and, he denies it, the general rule is that his answer is final and evidence is not admissible to rebut his denial. Based on this reasoning, the court held in Murray30 that the accused was not indictable for false statement made when he was permitted to testify in rebuttal of a witness’s denial under cross-examination. In Gibbons31 the court took a contrary view. In that case, decided by eleven judges (with Martin B and Cropton, J.) dissenting, it was held that the accused was guilty, notwithstanding that his statement is inadmissible in law, but logically relevant to the question to be decided, that is the witness’s credibility. The court relied upon Hawkins32
…though the evidence signify nothing to the merits of the cause and is immaterial, yet, if it has a direct tendency to material, it is equally criminal in its own nature, and equally tends to abuse the administration of justice, and there does not seem to be any reason why it should not be equally punishable.
It is submitted that once a person has been lawfully sworn to tell the truth in any judicial proceeding, such a person is under a scared duty to say nothing, but the truth. If he tells a lie on oath, the question as to whether or not such a statement is immaterial to the main issue before the court ought not to arise. This is because the lie was told in a ‘judicial proceeding,’ where he had sworn to say nothing, but the truth. So whether such deliberate falsehood, will corroborate evidence, as to make it a material statement, for the purpose of prosecuting the maker for perjury, should also not arise. It is in view of this, Muale, J, in Phillpots,33 said: ‘… it is not material to the judicial proceeding, and it is not necessary that it should have been relevant and material for the issue being tried…’ This proposition differ from this rule under Nigerian penal laws and, under the English Perjury Act. The same doctrine is approved by Stephen, who contended that: ‘it is difficult to imagine a case in which a person would be under any temptation to introduce into his evidence a deliberate lie about a matter absolutely irrelevant to the matter before the court.34 At common law a person who made a statement which was in fact true, had no defence, it he believed such a statement to be false, or he was just reckless as to the truth or falsity of the statement.35 This is still the position under section 1 of the English Perjury Act 1911 and, under section 156 of the Penal Code. This position of the law, according to Smith, means that every statement in any judicial proceeding is the actus reus of perjury.36 This suggests that once such a statement is made, the burden on the prosecution is to prove that the accused made it with mens rea. (c) Mens Rea Under the Criminal Code, mens rea and actus reus as common law concepts are no longer relevant in the interpretation of the provision of the Code. Instead, the expressions ‘voluntary act’ and ‘intention’ have replaced them under that Code. This is by virtue of section 24 of the same Code which in defining criminal responsibility did not use these Latin expressions. Therefore, under the Criminal Code where a prohibited act results from the voluntary and intentional act of the perpetrator there is responsibility for the commission of such prohibited act.37 This means that under the Criminal Code, for a person to be liable for perjury, it must be established that the false statement was made intentionally as against statement made inadvertently or by mistake. This means that the accused must have made the statement which he knows to be false. Under the Penal Code and, the English Perjury Act, an additional element is required, that is, the accused apart from knowing of the falsity of the statement, he does not also believe it to be true. Under the Perjury Act, willfulness is also an essential element. This means that the false statement must have been made deliberately. Under both Codes, prove of intention or recklessness, will suffice. In an Indian case of Ratansi Daya,38 it was held that if the statement is literally true but owing to suppression or certain other facts, a wrong-inference was drawn, the accused cannot be convicted. This means that negligence as to the falsity of the statement will not suffice. According to Hawkins:39
It seemeth that no one ought to be found guilty there of without clear proof, that the false oath alleged against him was taken with some degree of deliberation; for if, upon the whole circumstances of the case it shall appear probable, that it was owing rather to the weakness than perverseness of the party, as where it was occasioned by surprise, or inadvertency, or a mistake of the true state of the question; it cannot be hard to make it amount to voluntary and corrupt perjury
Corroboration Corroboration which is a time honoured precaution which the common law imposed in prosecutions for perjury is perpetuated under section 119 of the Criminal Code, although it is not a requirement under the Penal Code. It is a requirement under section 13 of the Perjury Act. In an English case of R Threlfall,40 it was held that section 13 of the Perjury Act imposes a requirement that the assignment of perjury must be proved or corroborated with two witnesses, or by one witness with proof of other material and relevant facts substantially confirming his testimony. In R v Mayhew41 a letter written by the defendant contradicting his sworn evidence is corroboration. The corroborated fact upon which the assignment is based, must be relative to that part of the matter sworn which is material to the matter before the court at the time the oath was taken.
RECOMMENDATIONS In the dim past, taking of oath was dreaded for fear of supernatural sanctions. In that epoch, oath taking was an effective means of discovering the truth. Parties who were unsure of their claims or assertions refrained from taking the oath. That made matters simple and straight forward as it was easy to assume that refusal to take on oath was an admission of the allegation made against the defaulter. In this century, it seems that the efficacy of oath as a means of discovering the truth has been lost to the propensity of witnesses to perjure themselves. How to prevent perjury and, what remedies should be made available for the victims of perjured evidence came under focus in 1970 in the workings of the English Law Commission Working Paper42 and, the Council of Justice Committee. In Part III of the Report, the Justice Committee felt that oath or affirmation is still necessary not only for ensuring high standards of truth43 but also as a remainder of the solemnity of the occasion, it however, was categorical that oath should be abolished, in that: Many of those who take a religious oath do so largely as a matter of form (or) because they think they are more likely to be believed if they take the oath, the oath ‘is only too often regarded as a necessary formality and rattled off with little outward sign of sincerity or understanding of its implications…We therefore think the time has come for the oath in its present form to be abolished and replaced by a form of undertaking which is more meaningful, more generally acceptable and more likely to serve the cause of justice. All witnesses should be required to make same solemn affirmation so that there is no distinction in the respect that is accorded them.’44
Having taking this stand, the Justice Committee had to grapple with the methodology of administration and, the wording of the affirmation. The Committee recommended that the administration of the oath should be unceremonious as possible, so that it makes no impact on the mind of the witness or on the court.45 The Committee also proposed that ‘oath would be more effective for its purpose if it were administered with deliberation by the judge or presiding magistrate who should satisfy himself that the witness understands its implication.46 On the suitable wording of the affirmation, while the Committee believed that an oath to tell ‘the whole truth’ was a meaningful phrase and, that all witnesses should be made aware of the fact that they could be prosecuted at the time of giving false evidence,47 the Committee further proposed as to the suitable form of the wording thus ‘I solemnly declare and promise that I will tell the truth, I am aware that if I tell a lie (or willfully mislead the court or tribunal,) I am liable to be prosecuted.’48
I concur with these proposals and recommendations for the following reasons. Oath taking as is currently administered in our courts is capable of swaying the mind of a reasonable tribunal or court, in favour of those witnesses who agreed to testify on oath. This means that religious oaths have a prejudicial effect. Incorrigible and pathological liars will be ready to perjury themselves on oath, if they are certain that a magistrate or judge would readily mistake their holy pretences for piety. It is therefore recommended that oath taking under our criminal justice system be abolished. Instead affirmation as alternative to oath taking should be modified to have same wording as those proposed by the Justice Committee above. It is however, submitted, that this recommendation should be limited to trials at the courts that apply essentially common law principles.
CONCLUSION In conclusion, it is submitted that the offence of perjury arises as a result of a breach of an oath, affirmation or declaration duly sworn in a judicial proceedings, or as observed, by the breach of a witness who declined from being sworn on oath, or being affirmed, of his undertaking to speak the truth. The fact that statutorily, a witness is allowed to testify in a judicial proceeding, if he elects not to be sworn or be affirmed, supports the position under the Criminal Code which extends the application of the law to every falsehood, whether or not made on oath. Under that Code therefore, the solemnity of the occasion is immaterial, as the Code treats telling of lies in the course of judicial proceedings and, outside judicial proceedings, as a criminal offence. The position of the law under that Code suggests that the underlining objective for the proscription of the offence of perjury requires a re-examination. This is because perjury means that a person has proved false to the oath he has taken. It is on this basis that the charge that the person violated the solemnity of his oath is based or assigned, which is termed the assignment of perjury. There may be several assignments which may exist in one oath duly sworn, but it is only one perjury in that proceeding that can be committed.42
1 Turner, J.W.C: Kenny Outlines on Criminal Law (Cambridge at University, Press: London, 1964) (18th edition), p.421. 2 Ibid. 3 Ibid 4 Turner, J.W.C, op.cit, p.422 5 Sections 117 of the Criminal Ciode; 156 of the Penal Code and, 191 of the English Perjury Act 1911. 6 Turner, J.W.C, op.cit, p.423 7 See the case of R. v Schlesinger (1847) 10 Q.B. 670, where it was emphasized that falsity as to a mental fact suffices, e.g. the witness’s belief, or his ‘I cannot remember.’ 8 Thakore, Dhirajlal Keshavlal and Vakil, Manharlal Ratanlol: The Law of Crimes (Bombay: The Bombay Law Reporter (Private Ltd: Calcutte: India, 1956) (19th edition), p.464. 9 Ibid. 10 This is the same position in English law as stated by Mitchell and Buzzard: Archibold Criminal Pleading, Evidence and Practice (Sweet & Maxwell: London ) (14th Edition), p.1688 11 Turner, J.W.C: Russel on Crimes (Vol. 1) (London: Stevens & Sons, 1964) (Twelfth Edition), p.294 11 Ibid, pp. 294 - 295 12 Ante, p. 7 13 Cap C37, Laws of the Federal Republic of Nigeria, 2004. 14 Cap E38, Laws of the Federal Republic of Nigeria, 2004. 15 See the case of R v Moore (1892) 8 T.L.R. CCR where it was held that no affirmation where a witness declines to state the form of oath binding on him; and Nash v Ali Khan 8 T.L.R. 444, where it was held that unjustified refusal to swear or affirm constitutes contempt of court. 16 (1911) 6 Cr. APP.R. 1023 17 (1887) 19 Q.B.D. 212 18 Cf the case of R v Peerse (1863) 3 B. & S. 531, where it was held that for perjury to be committed there must be some thing in the nature of judicial proceeding, e.g. an existing cause. Also see the case of R v Cohen (1816) 1 Stark p 511, where it was held that before the Common Law Procedure Act, 1852, where an action had abated by the death of a co-plaintiff and no suggestion had been entered under the Administration of Justice Act, 1696, a trial was held extra-judicial, and perjury could not be assigned on false evidence given therein. It was held that an action improperly brought against a fictitious person or fictitious claim may constitute a judicial proceeding: see Turner, J.W.C., op.cit, p.294, footnote 15. 19 (1964) 1 ALL N.L.R. 1 20 Turner, J.W.C, op.cit, p.294. The principles in the quotation were distilled from the cases of R v Crossley (1797) 7 T.R. 315 and, R v Phillpots (1851) 2 Den. 302. 21 Smith, J.C., and Brian, Hogan: Criminal Law (Sweet & Maxwell, 1965) (2nd Edition), p. 504. 22 Omychund v Barker (1744), 1 At K 21. 23 Cf the case of Pritam Singh (1958) 1 ALL E.R. 199, where the witness, a Sikh was lawfully sworn and had given evidence on affirmation although the taking of an oath was not contrary to his religious belief, because the copy of the holy book of the Sikhs was not available in the Magistrate Court, the case was withdrawn. But under section 15 of the English Perjury Act and the English Oath Act 1961, the witness having been affirmed voluntarily would have been ‘lawfully sworn:’ see Smith, J.C, p. 505. 24 3 Inst. 167 but quoted by Smith, J.C, Ibid, p. 506. 25 Section 1 of the English Perjury Act, 1911. 26 Turner, J.W.C, op.cit, p.424. 27 (1985) Q.B. 519; (1985) 1 ALL E.R. 865, C.A. 28 1 Ld. Raym, 256 29 J.C. Smith, op.cit, p.507 30 (1885) I.F. 80 31 (1862) 9 Cox C.C. 105 32 1 P.C.C, 69 33 (1851) 2 Den. 302 at p. 306. It is submitted that this is the position under the penal code, as the words of section 156 of the Code appears to be very general without any limitation that the false evidence shall have any bearing upon the matter in issue. But explanation 2 to section 156 of the Penal Code seems to approve of the materiality concept, as it states that a material particular within the meaning of that section means a particular which is material to any question then in issue or intended to be caused in that proceeding. 34 3 H.C.L. 249 35 Co. 3 Inst. 160; Hawkins, I.P.C, c. 27, 3, 6, Ockley and Whitles bye’s case (1622), palm. 294; Allen v Westley (1629) Het. 97; Stephen, Disgest (4th edition), 95, 96: Smith, J.C, op.cit, p. 509 footnote 12. 36 Ibid. 37 Suit No. F.S.C. 260/1961; (1962) 2 N.S.C.C. 107 at 110, cited by Deji Sasegbon, Sasegbon’s Laws of Nigeria (1st edition) An Encyclopedia of Nigerian Law and Practice 7 (Pt. III) Criminal Law & Practice, p. 1297. 38 Deji Sasegbon, op.cit, p.1297. 37 Ovieful v State, S.C. 74/1983 (unreported), 9th Oct. 1984 per Karibi-Whyte, J.S.C. 38 (1915) 9 S.L.R. 170, 17 C.R.L.J 96; (1916) AIR (S) 70 (2) 39 I.P.C.., c. 27, 2, p.429 40 10 Cr. App. R. 112, at p.114 41 6 C & P 315. See also the cases of R v Saldanha (1921) 85 J.P 47; R v Hook (1858) D. and B. 606 (T.A.C) wherein it was held that it is sufficient if one direct witness be corroborated by some admission which the prisoner has made, or by circumstantial evidence. 42 (1909) A.C. 312 cited in Deji Sasegbon: Sasegbon’s Laws of Nigeria (1st edition) An Encyclopedia of Nigerian Law and Practice 7 (Pt. III) Criminal Law & Practice, p.1295. 42 Ibid. 43 See In re Samuel Nunoo 3 W.A.C.A. p.74 cited in Deji Sasegbon, op.cit. 44 1 N.L.R. 123, see Deji Sasegbon , ibid. 45 This procedure is to be adopted when the trial court found that the witness had committed perjury or given false evidence and it decided to commit him to trial and be dealt with summarily where such a witness failed to show enough cause why he should not be dealt with summarily. 46 (1943) 9 W.A.C.A. 20 at 20 – 21. 47 Deji Sasegbon, op.cit, p.1296. 48 No 33 on Perjury and kindred offences. 49 Report, para. 69 50 Report, paras. 66 51 Report, para. 71 52 Ibid. 53 Report, para. 77 54 Ibid. 55 Turner, J.W.C, op.cit, p.302.