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AFFIDAVIT WHICH CONTAINS ARGUMENT WILL BE STRUCK OUT

Dictum

In this case, the first part of the said paragraph 7c [of Applicants’ affidavit], reads as follows – “The condemnation of the Appellant’s Counsel as unprofessional, disrespectful, dishonest, discourteous, without hearing him is contrary to Section 36 of the 1999 Constitution (as amended) and thus null and void. See the Supreme Court case of BELLO V. INEC & ANOR. (2010) LPELR-767 (SC), page 78, paras. D-F, the Court held that ‘A court has inherent power to set aside its judgment or order where it has become so obvious that it was fundamentally defective or given without jurisdiction. In such a case, the Judgment or Order given becomes null and void, thus liable to be set aside’.
Is this paragraph 7c in the Applicants’ Affidavit in the form of evidence? Obviously not; it is a legal argument or conclusion, which offends against Section 115 (2) of the Evidence Act 201, and it is, therefore, struck out.

— A.A. Augie, JCA. Elias v Ecobank (2016) – CA/L/873/2013

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AFFIDAVIT NOT DENIED OR POSITIVELY CONTROVERTED IS DEEMED ADMITTED

The law is now quite clear on the fact that, an affidavit not denied or positively controverted, is deemed to be admitted by the adverse party. And to deny an affidavit, the adverse party does not have to speak in tongues or in subterfuge, as he is required to deny the averment frontally and positively, leaving the court or any reader of his denial not in doubt of his adverse position to the one advanced or canvassed in the supporting affidavit. See the case of Hon. Maryati Audu Dogan & Ors. vs. A.G. Taraba State, an unreported decision of this court in CA/J/243/2010, delivered on 25/5/2011, pages 35 – 36 thereof. It is settled law that an affidavit evidence constitutes evidence and any deposition not challenged is deemed admitted. H.S. Engineering Ltd. vs. A.S. Yakubu Ltd. (2002) 175 LRCN 134, ratio 2, Ajomale vs. Yaduat (1991) 5 SCNJ 178, Nzeribe vs. Dave Engineering Co. Ltd. (1994) 2 SCNJ 161; Oyewole vs. Akande (2009) All FWLR (Pt.491) 813.

— I.G. Mbaba, JCA. Ogunleye v. Aina (2012) – CA/IL/22/2011

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ANY DEPOSITION NOT CHALLENGED IN AFFIDAVIT IS DEEMED ADMITTED

In the said suit leading to the instant appeal, there is the said counter-affidavit of the Respondent which is a part of the Records. It is now settled that affidavit evidence, constitutes evidence and any deposition therein not challenged, is deemed admitted. See the cases of Ajomale v. Yaduat & anor. (No.2) (1991) 5 NWLR (Pt.191) 226 @ 282-283; (1991) 5 SCNJ. 178 and Magnusson v. Koikoi (l993) 12 SCNJ 114.

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

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DISTINCTION BETWEEN WITNESS STATEMENT ON OATH & AFFIDAVIT

In Okpa v. Irek & Anor. [2012] LPELR-8033 (CA) held thus: This court has consistently held that a witness statement on oath is different from 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 v. Agas [2004] 10 NWLR (Pt. 881) 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 therein.

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ANY DEPOSITION IN AFFIDAVIT UNCHALLENGED IS DEEMED ADMITTED

IN H.S. ENGINEERING LTD VS. AS. YAKUBU LTD (2009) 175 LRCN 134, ratio 2, it was held – ‘It is now settled law that an affidavit evidence constitutes evidence and any deposition therein not challenged is deemed admitted.’ See also the unreported decision of this court in CA/IL/83/2010 (Adebiyi v. Umar), delivered on 31/1/2012, page 11.

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AN AFFIDAVIT MUST BE CONFINED TO FACTS ADMISSIBLE IN COURT

An affidavit meant for use in court stands as evidence and must as near as possible conform to oral evidence admissible in court. Sections 86 and 87 of the Evidence Act provide as follows:- “86. Every affidavit used in the court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true. 87. An affidavit shall not contain extraneous matter, by way of objection, or prayer, or legal argument or conclusion.” … Looking at the counter-affidavit, paragraphs 12, 13 and 14 are fit for Counsel to urge upon the court by way of submission and, if there are facts and circumstances presented in support, the court may consider the submission attractive enough to dissuade it from granting the bail sought. Paragraph 18 contains a conclusion which ought to be left to the court to reach. Therefore paragraphs 12, 13, 14 and 18 are extraneous being in contravention of Section 87 of the Evidence Act. They ought to have been struck out. I accordingly strike them out. As for the further counter-affidavit, paragraphs 9, 10, 11, 12, 13 and 18 are also extraneous because they are fit for argument of Counsel to persuade the court. I strike them out as well.

— Uwaifo, JSC. Bamaiyi v State (SC 292/2000, Supreme Court, 6th April 2001)

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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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