Sentence Section 118 of the Criminal Code reads: Any person who commits perjury is liable to imprisonment for fourteen years.
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.
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.
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.
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 Vakil[8] 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.
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.
Turner[10] 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.
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.
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.
[13] 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.
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.
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.
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.
In Millward,[23] 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.
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.
Smith 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.
[25] Based on this reasoning, the court held in Murray[26] 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.
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.
The dispute centered on whether or not the appellant held himself out or was employed as an agent personally responsible for monies on all cement sold out to customers on credit.
Exhibit 'AA' and 'BB' which were letters written by the appellant corroborated his evidence that he was still awaiting a transfer of the money two weeks after his return to Lagos.
The court found that the appellant's difficulties in giving a straightforward evidence about the formation of the new Company was based on the apparent difficulties or untold problems he faced in his business and, the fact that in one occasion cement was shipped to him in his name in Lagos from Germany by the Plaintiff and in another breath cement was shipped to him in the new Company's name.
The court found as a fact that this inconsistency in the shipments of cement accounted to the appellant's inability to answer the question put to him during cross examination.
At any rate the court found that the evidence as to whether or not the parties were not to start business until the new Company was formed was not material to the question whether the appellant held himself out as the agent personally responsible for monies on all cement sold out to customers on credit.
It was in view of the above misconception of the basis for the assignment of perjury that the Supreme Court held discharging the appellant that: On the three matters which the learned Judge complained of and upon which he assigned perjury, it cannot be said that if they are untrue, the appellant knowingly said what he did say knowing them to be untrue, nor can it be said that on the whole evidence that any of them is material to the question at issue in the case before the learned Judge.
This case also decided that it is not essential to set out the assignment of perjury in the summary procedure provided the accused is made aware of the pith of the charge against him.
[35] Therefore, once it is shown that an accused was fully aware of the statement he made which formed the basis of the assignment of perjury or false evidence an appeal on this ground will certainly fail.
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.
In an Indian case of Ratansi Daya,[44] 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.
According to Hawkins:[45] 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 which is a time honoured precaution which the common law imposed in prosecutions is not a requirement under the Penal Code.
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.