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AFFIDAVIT PARAGRAPHS THAT OFFEND SECTION 115 EVIDENCE ACT 2011 WILL BE STRUCK OUT

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The stipulations of Section 115 of the Evidence Act, 2011 is a reproduction of the provisions of Sections 86, 88 and 89 of the Evidence Act, 1990. It is rudimentary law that any paragraph of an affidavit which offends against the provisions of Section 115 of the Evidence Act may be struck out, but if it is not struck out, no weight should be attached to it: JOSIEN HOLDINGS LTD vs. LORNAMEAD LTD (supra), FMG vs. SANI (NO. 2) (1989) 4 NWLR (PT 117) 624 and EDU vs. COMM. FOR AGRIC. (2000) 12 NWLR (PT 681) 318. Indeed, it seems to be settled law that any paragraph of an affidavit which offends Section 115 of the Evidence Act ought not to be acted upon. It is liable to be discountenanced and struck out. See OSIAN vs. FLOUR MILLS (1968) 2 ALL NLR 13, EURO BATI CONCEPT S.A. vs. TROPICAL INDUSTRIAL CO. LTD (2001) 18 NWLR (PT 744) 165 and A-G ADAMAWA vs. A-G (FED) (2005) 18 NWLR (PT 958) 581 at 625 and 657-658.

— U.A. Ogakwu, JCA. Lagos State v NDIC (CA/L/124/2003(R), Court of Appeal, June 2nd 2020)

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DIFFERENCE BETWEEN AN AFFIDAVIT & A STATEMENT ON OATH

✓ In OKPA v. IREK & ANOR (2012) LPELR-CA/C/NAEA/289/2011, the Court laid a strong brick we can safely stand on: ”… that a witness statement on oath is different from an affidavit evidence. An affidavit is a statement of fact which the maker or deponent swears to be true to the best of his knowledge. It is a court process in writing deposing to facts within the knowledge of the deponent. It is documentary evidence which the court can admit in the absence of any unchallenged evidence. Akpokeniovo vs. Agas (2004) 10 NWLR pt 881 page 394. On the contrary a witness statement is not evidence. It only becomes evidence after the witness is sworn in court and adopts his witness statement. At this stage at best it becomes evidence in chief. It is thereafter subjected to cross examination after which it becomes evidence to be used by the Court. If the opponent fails to cross examine the witness, it is taken as the true situation of facts contained there in.” Per NDUKWE-ANYANWU, J.C.A. (P. 9, Paras. C-G)

✓ SAMUEL LAMBERT & ANOR vs CHIEF A.S.B.C.OKUJAGU (2015) ALL FWLR (PART 808) Pp 665 – 666 paras E-A thus: “ … it is therefore very certain that even the rules of court admit that affidavit and statement of witness on oath are distinct and different from the other. The form of an affidavit under the Evidence Act is well specified by law. See section 117 and 118 of the Evidence Act 2011. There is no law that specified that all sworn documents or Oaths must comply with the provisions of the Evidence Act as relates to affidavit. It is therefore not a valid argument to say that sworn deposition or statement of witness under the civil procedure rules must accord with the form of an affidavit … ”

“There is no law that specified that all sworn documents or oaths must comply with the provisions of the Evidence Act as relates to affidavits. It is therefore not a valid argument to say that sworn deposition or statement of witnesses under the civil procedure rules must accord with the form of an affidavit”

“… the innovation of filing written statements on oath of witnesses to be called in a civil case is a very good proactive and progressive innovation of our learned drafts-men. The import is not to clone an affidavit or set up parallel affidavits evidence. The import is to reduce the time expended in taking notes from witnesses in court and by extension, reduce the stress of the trial judges whose lot it is within our jurisdiction and adjudicatory clime to record in long hand viva voce evidence of witnesses. The rules of the High Court do not intend to encrust the written statement on oath with the formal garb of an affidavit as tailored by Section 107 to 120 of the Evidence Act 2011. We must therefore be watchful not to upload written statements on oath simply devised by the civil procedure rules with the burden required to be borne by an affidavit under the Evidence Act.”

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ORAL EVIDENCE WILL BE ALLOWED FOR IRRECONCILABLE AFFIDAVITS

It is in exceptional cases for example where there are irreconcilable affidavits from both sides, that oral evidence will be allowed to be led in support of interlocutory application (see Falobi v. Falobi (1976) 9-10 S.C. 15, Eboh & Ors. v. Oki & Ors. (1974) 1 SC. 179), Uku & Ors. v. Okumagba & Ors. (1974) 3 SC. 35) unlike pleadings which will have to be supported by evidence at the trial as stated earlier.

– Kutigi JSC. Magnusson v. Koiki (1993) – SC.119/1991

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AVERMENTS IN PLEADINGS VERSUS AVERMENTS IN AFFIDAVIT; ADDRESS OF COUNSEL NOT EVIDENCE

Averments of facts in pleadings must however be distinguished from facts deposed to in an affidavit in support of an application before a court. Whereas the former, unless admitted, constitute no evidence, the latter are by law evidence upon which a court of law may in appropriate cases act. The Court of Appeal, if I may say with the utmost respect, appeared to be under the erroneous impression that an averment in pleadings is synonymous with a deposition in an affidavit in support of an application. This is clearly not the case. So too, an address of Counsel in moving an application is not the evidence in support of such an application. The evidence is the deposition contained in the affidavit in support thereof.

— Iguh JSC. Magnusson v. Koiki (1993) – SC.119/1991

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FAILURE TO FILE A FURTHER AFFIDAVIT IS ADMISSION OF THE COUNTER-AFFIDAVIT

I will therefore, pause here to state that it is now settled that failure to swear to a further-affidavit where there is a counter-affidavit which is unchallenged, it is deemed that the counter-affidavit, is admitted as being correct. In other words, where there is an unchallenged counter-affidavit evidence, the court is at liberty, to accept it as true and correct. See the cases of Jumbo Nwanganga & 5 ors. v. Military Governor of Imo State & 2 ors. (1987) 3 NWLR (Pt.59) 182 @ 193 C.A. and Attorney-General orPlateau State v. Attorney-General of Nassarawa State (2005) 4 SCNJ 120 @ 175; (2005) 4 S.C. 55.

— F. Ogbuagu JSC. Stephens Eng. Ltd. v. S.A. Yakubu (2009) – SC.153/2002

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NOT ALL UNCONTRADICTED AVERMENTS WILL BE ACCEPTED BY THE COURT

✓ In B.B.B. Manufacturing Co. Ltd. Vs A.C-Bc Ltd (2004} 2 NWLR (Pt. 858) 527@ 550551 F-A, per Pats-Acholonu, JSC as follows: although it is the general rule that uncontradicted evidence from which reasonable people can draw but one conclusion may not ordinarily be rejected by the court but must be accepted as true; it is also true to say that the court is not in all the circumstances bound to accept as true testimony an evidence that is uncontradicted where it is willfully or corruptly false, incredible, improbable or sharply falls below the standard expected in a particular case.

✓ It was held in R-Benkay (Nig) Ltd. v. Cadbury (Nig) Pie. (2012) 9 NWLR (Pt. 1306) 596 @ 624 C – per Peter-Odili, JSC, inter alia, as follows: “… it is not fl fait accompli that once there are averments in an affidavit which are not controverted the result would be a favourable disposition to the position of the party who had proffered the disposition. This is so because all averments must go under the surgical knife of evaluation which is done by the court as a matter of duty to see its acceptability as happened in this case. See also: Gonzee (Nig) Ltd Vs NERDC (2005) 13 NWLR (Pt. 943) 634@ 650 D, cited and relied upon.

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AVERMENTS IN AFFIDAVIT NOT CHALLENGED ARE DEEMED ADMITTED

These averments were not challenged or denied by the Appellant. No further affidavit was filed by the Appellant to deny that it ever agreed to submit to the Jurisdiction of the English Court. The Appellant did not challenge the Judgment by way of appeal nor did it deny the averments in the Counter Affidavits. I therefore agree with the submission of learned Senior Counsel for the Respondent that where facts in an affidavit are not challenged, they are deemed admitted.

— J.O. Bada, JCA. Conoil v Vitol (2011) – CA/A/213/2010

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