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MEANING OF AFFIDAVIT

Dictum

Now, affidavit is simply a declaration on oath, a formal sworn statement of facts signed by the deponent and witnessed as to the veracity of the deposition’s signature by the taker of the oath such as the commissioner for oaths, notary public or even a magistrate. Thus, Affidavit evidence is a statement of fact which the deponent swears to be true to the best of his knowledge, information or belief. See Chief Chukwumeka Odumegu Ojukwu vs Miss Stella Onyeador (1991) 7 NWLR (pt 203) 286 at 317. A deposition literally means a formal, usually a written statement to be used in a law suit as evidence.

— A.A. Wambai, JCA. Aliyu v. Bulaki (2019) – CA/S/36/2018

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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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AFFIDAVIT WHICH CONTAINS ARGUMENT WILL BE STRUCK OUT

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

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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FACTS NECESSARY FOR GRANTING PRAYERS SHOULD BE STATED IN AFFIDAVIT

An application or motion on the other hand is usually supported by an affidavit or affidavits with or without exhibits, depending on the nature of the application. It is necessary for an applicant to state fully in an affidavit or affidavit, the facts he intends to rely upon in seeking the prayers or order contained in the motion paper because except with the leave of court, he will not be heard in respect of facts not contained in the affidavit.

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

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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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CALL ORAL EVIDENCE WHERE CONTRADICTIONS IN AFFIDAVIT & COUNTER-AFFIDAVIT

The learned counsel to the Appellant had argued that if there are contradictions in the affidavit and counter affidavit the court should not believe one side and reject the other but, call oral evidence to clear the contradictions. Yes, this is the correct position of the law when the affidavits evidence are from both sides but contradictory.

– Uwa, JCA. GTB v. Innoson (2014) – CA/I/258/2011

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