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AVERMENTS IN AFFIDAVIT NOT CHALLENGED ARE DEEMED ADMITTED

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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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WHERE CONFLICT IN BOTH AFFIDAVITS, COURT WILL CALL FOR ORAL EVIDENCE

On the question of conflict of affidavit evidence placed before the lower court which appellant’s learned Counsel had submitted should be resolved by oral evidence in order to act on such evidence, our case law is replete with authorities that where a matter is being tried on affidavit evidence and the court is confronted with conflicting or contradictory evidence relied on by the parties on a material issue before the court; it is the law that the court cannot resolve such conflict by evaluating the conflicting evidence but is obliged to call for oral evidence in order to achieve resolution of the conflict. (See Falobi v Falobi (1976) 9 & 10 SC 1 and Akinsete v Akidutire (1966) All NLR 137).

— Achike JSC. Momah v VAB Petro (2000) – SC. 183/1995

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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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NO LAW PRESENTLY PROHIBITS A COUNSEL FROM DEPOSING TO AN AFFIDAVIT

The preliminary point raised by the Petitioner/Respondent that the motion of the 3 rd Respondent be dismissed, because the affidavit in support is sworn to by a legal practitioner in the law firm of counsel representing the 3 rd Respondent, is not sustainable. Our simple answer to this, is that there is no law that prohibits a counsel from deposing to an affidavit, if the counsel is conversant with the facts, or where the facts are within his personal knowledge. See the case of SODIPO VS LEMMINKAINEM (1986) 1 NWLR (PART 15) 220. In view of this, the motion of the 3 rd Respondent cannot be dismissed for the aforesaid reason.

— A. Osadebay, J. APC v INEC & Ors. (EPT/KN/GOV/01/2023, 20th Day of September, 2023)

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WEIGHT OF AN AFFIDAVIT EVIDENCE OF TITLE TO LAND

I turn to Exhibit 2. It is an affidavit deposing to title. An affidavit evidence of title to land is not sacrosanct, evidential value wise. Such deposition can only be admissible if it is not challenged by the adverse party. If the deposition is challenged, then the parties have joined issues and the onus is on the deponent or any other witness as the case may be, to prove by oral evidence the veracity or authenticity of the deposition. Exhibit 2 is yet another evidence of traditional history which unfortunately the learned trial Judge, from the totality of the oral evidences before him, rejected. I therefore hold that Exhibit 2 does not have any probative value of any record found therein.

— Tobi, JCA. Abraham v Olorunfunmi (1990) – CA/L/83/89

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AFFIDAVITS SHOULD NOT CONTAIN PRAYERS, LEGAL ARGUMENTS, AND CONCLUSIONS

I think the legal position is clear that in any affidavit used in the court, the law requires, as provided in Sections 86 and 87 of the Evidence Act, that it shall contain only a statement of facts and circumstances derived from the personal knowledge of the deponent or from information which he believes to be true, and shall not contain extraneous matter by way of objection, or prayer, or legal argument or conclusion. The problem is sometimes how to discern any particular extraneous matter. The test for doing this, in my view, is to examine each of the paragraphs deposed to in the affidavit to ascertain whether it is fit only as a submission which Counsel ought to urge upon the court. If it is, then it is likely to be either an objection or legal argument which ought to be pressed in oral argument; or it may be conclusion upon an issue which ought to be left to the discretion of the court either to make a finding or to reach a decision upon through its process of reasoning. But if it is in the form of evidence which a witness may be entitled to place before the court in his testimony on oath and is legally receivable to prove or disprove some fact in dispute, then it qualifies as a statement of facts and circumstances which may be deposed to in an affidavit. It therefore means that prayers, objections and legal arguments are matters that may be pressed by Counsel in court and are not fit for a witness either in oral testimony or in affidavit evidence; while conclusions should not be drawn by witnesses but left for the court to reach.

— 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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