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UNCHALLENGED AVERMENTS IN AFFIDAVIT ARE DEEMED ADMITTED

Dictum

Let me say that I agree with both counsels on their respective submissions that unchallenged averments in an affidavit are deemed to be established and admitted by the party whose duty it is to controvert same. Our judicial landscape is replete with authorities on the position that it is now elementary. In addition to the case cited by counsel, see the famous cases of Ajomale v. Yaduat (No.2) (1991) 5 SCNJ 172 at 178; (1991) 5 NWLR (Pt.191) 266 and U.B.N. v. Odusote (1994) 3 SCNJ 1; (1994) 3 NWLR (Pt.331) 129 in the case of Olori Motors v. U.B.N. (1998) 6 NWLR (Pt.554) 493 this court, at page 506-7, held the view that the court must accept unchallenged averments of an affidavit without hesitation.

— Garba, JCA. Shona-Jason v Omega Air (2005) – CA/L/418/2000

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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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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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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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A PARTY IS FREE TO CROSS-EXAMINE ON AN AFFIDAVIT ADMITTED IN EVIDENCE

I am in grave difficulty to agree with the submission of learned Senior Advocate. First, the first leg of his submission implies that an affidavit admitted as an exhibit is not open to cross-examination. This conclusion is drawn from his argument that the difference between an affidavit and a deposition which is a written testimony is that the latter is open to cross-examination. That is not my understanding of the law. A party is free to cross-examine on an affidavit admitted in evidence, particularly where there is a counter-affidavit. Where there is no counter-affidavit, then the deposition will be generally deemed to be correct. In the circumstances a blanket statement such as the one by Counsel, cannot be correct.

— Niki Tobi, JSC. Buhari v. INEC (2008) – SC 51/2008

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AFFIDAVIT FOR INTERLOCUTORY MOTION IS DIFFERENT FROM THAT OF MAIN SUIT

The long and short of it is that the defendant’s submission that the Court should consider its counter-affidavit to the claimants’ motion for interlocutory orders, having been moved and ruled on, cannot be considered as the defence of the defendant to the substantive suit. The counteraffidavit had served its purpose i.e. as the defence to the motion for interlocutory orders. It is not the defence of the defendant to the substantive suit … All this said, the oral application to use the defendant’s counter-affidavit to the motion of interlocutory orders in this judgment is hereby refused. I so rule.

— B.B. Kanyip, J. FG v. ASUU (2023) – NICN/ABJ/270/2022

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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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