This
is a matter where a medical practitioner signed an affidavit in the absence of
a commissioner of oaths.
The
relevant facts for the purpose of this judgment are that the accused persons
were charged with contravening section 89 of the Criminal Law (Codification and
Reform) Act [Chapter 9:23] in that on the 31st day of August 2008,
at about 2200 hours, they assaulted the complainant by stabbing him, resulting
in him receiving medical treatment.
An
affidavit laying out the findings by the doctor who examined the complainant
was produced in court.
The
learned scrutiny Regional Magistrate noticed that the dates on which the
deponent and the commissioner of oaths signed were different. Upon noting this
anomaly she raised a query. On realizing that the said trial magistrate did not
appreciate the error, the matter was referred to me for directions.
Upon
enquiring from the trial magistrate, his response was a long letter where he
went to town in trying to explain the non-essentiality of a doctor signing the
affidavit in the absence of a commissioner of oaths.
With
all due respect to the learned trial magistrate, the universally recognized
legal position is that an affidavit should be attested before a designated
officer who was legally recognizable, being either a commissioner of oaths or a
notary public. The attestation to the said affidavit should be signed before
the said designated officer who will only affix his, or her, own signature upon
satisfying himself, or herself, that the deponent bears the identity as stated
in the affidavit,
The
reason for an oath to be taken before a designated officer is to bind the
deponent's conscience to what he is deposing to. It should not be signed as a
matter of course. The deponent should be made aware of the consequences that
flow from a false declaration, namely, the possibility of prosecution.
This
is the legal position.
Both
the deponent and the said official should sign on the same date, and in the
presence of one another. It is, therefore, improper to depart from that
procedure.
The
learned trial magistrate is, therefore, wrong, in his understanding of
commissioning of documents. The affidavit referred to was therefore not
properly commissioned.
In light of the above, the conviction and
sentence is set aside and the record is referred to the learned trial
magistrate for the facilitation of the commissioning of the affidavit (medical
report) by the doctor in question.
