Perjury is an offence under the Criminal Code which is applicable in the Southern states of Nigeria. The offence of false evidence under the Penal Code, which is applicable in the Northern states of Nigeria, is equivalent.
Offence of perjury under the Criminal Code The offence of perjury is created by section 117 of the Criminal Code which reads:
"Judicial proceeding"
Section 113 of the Criminal Code reads:
Corroboration
Section 119 of the Criminal Code reads:
In R Threlfall,10 Cr App R 112, at p. 114 it was held that section 13 of the Perjury Act 1911 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 Mayhew6 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. 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.
Sentence
Section 118 of the Criminal Code reads:
Classification of perjury 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 TurnerTurner, J.W.C: Kenny Outlines on Criminal Law (Cambridge at University, Press: London, 1964) (18th edition), p. 422 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.'
False oaths in non-judicial proceedings In the classification of perjury, the Criminal Code,Sections 117 of the Criminal Code; 156 of the Penal Code and, 191 of the English Perjury Act 1911. 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 TurnerTurner, J.W.C: Kenny Outlines on Criminal Law (Cambridge at University, Press: London, 1964) (18th edition), p. 423 '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.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.'
Perjury or false evidence
Definition Section 156 of the Penal Code defines giving false evidence thusly:
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."
Elements The following matters may be regarded as the elements of the offence:
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 VakilThakore, Dhirajlal Keshavlal and Vakil, Manharlal Ratanlol: The Law of Crimes (Bombay: The Bombay Law Reporter (Private Ltd: Calcutte: India, 1956) (19th edition), p. 464. 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.
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.
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.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
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.Turner, J.W.C: Russel on Crimes (Vol. 1) (London: Stevens & Sons, 1964) (Twelfth Edition), p. 294 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.'
Turner 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...
'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 180 of the Evidence ActCap C37, Laws of the Federal Republic of Nigeria, 2004. 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 CodeCap E38, Laws of the Federal Republic of Nigeria, 2004. 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:
Section 230 of the Code prohibits compelling a witness to take oath or make affirmation. The section provides:
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: