ADMISSIBILITY OF A DECEASED'S AFFIDAVIT

So, while at work a few days ago, a learned senior approached me with a poser which actually got me thinking. Where a person dies after he has deposed to an affidavit required and admissible in a matter before the court, will such affidavit still be admissible? I quickly answered that such an affidavit should ordinarily not be admissible because the deponent to such affidavit may be required to come before the court in an instance of conflict in the said affidavit or to clear any ambiguities raised therefrom. I then suggested that a way around it could be to get another person to depose to the affidavit under the hearsay rule which makes hearsay evidence in an affidavit admissible as long as the deponent includes particulars of the information; particulars such as the person from whom he got the information, the place he got such information, etc. The learned senior and I went on to consult both law reports and online materials and after much consultation, I found that the answer to the poser is not as direct as I had thought. 

There are very few case laws on this topic, most of which are international cases which are only persuasive in nature and not binding on our courts. It, therefore, depends both on how you argue your case and the circumstances of the case. Before moving on to the authorities found on the subject, I should, however, state that an affidavit is a form of evidence and as such I may be using both words interchangeably in this work.

In the American case of COTTON v AUTO-OWNERS INS. CO. 937 N.E.2d 414 (Ind. Ct. App. 2010), an issue was whether the affidavit of a deceased person was admissible evidence in support of a motion for summary judgment. The Court held it was admissible because the party seeking to strike the affidavit out did not prove that such evidence would not be admissible at trial if it had come from another source.

The Nigerian case of OKWA v IWEREBOR & Ors. (1969) NSCC Vol. 6 (pp. 73-75) also supports the position that such evidence should be admissible. In this Supreme Court case, the sole issue that was raised was whether the evidence of a witness who died after he gave evidence but before being cross-examined is admissible in evidence. The court held that the position of law on this issue seems settled and it is clear that it is accepted that such evidence is legal but the weight to be attached to such evidence should depend upon the circumstances of each case.

By a combined reading of sections 39 and 46 of the Evidence Act, 2011 as amended, statements, whether written or oral of facts in issue or relevant facts made by a person who is dead are admissible for the purpose of proving in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding the truth of the facts which it states provided the proceeding was between the same parties or their representatives in interest. This provision makes the affidavit evidence of a deceased admissible before the court.

From the above authorities, it is therefore safe to arrive at the conclusion that where a deponent to an affidavit dies after deposing to such affidavit but before he is cross-examined on the affidavit, such should be admissible depending on the circumstances of the case.

See other cases on this subject: REX v DOOLIN (Jebb C.C. 123); DAVIES v OTTY (1865) 34 L.J. Ch. 252; KUER v RAJAB ALI All I.R. (1936) Patna 34.