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WEIGHT OF AN AFFIDAVIT EVIDENCE OF TITLE TO LAND

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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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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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MERE GENERAL TRAVERSE IN AFFIDAVIT IS NOT ENOUGH

ARUWA v. ABDULKADIR (2002) FWLR 677 ratio 3, it was held, concerning the defendant’s affidavit, thus: “… The defendants affidavit must condescend upon particulars and should as far as possible specifically deal with the plaintiff’s claim and the affidavit in support thereof and state clearly and concisely what the defence is and what facts are relied upon to support it. The same affidavit defence should also state whether the defence relates to the whole or part of the claim, and in the latter case, it should specify that part of the claim. A mere general statement or denial, that the defendant is not indebted to the plaintiff is not enough to constitute a defence, unless the grounds on which the defendant relies as showing that he is not indebted are stated in the affidavit.”

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CONTRADICTIONS IN APPLICANT’S OWN AFFIDAVIT

Based on the above findings, the applicant cannot be heard to contend that the court below did not exercise its discretion judicially and judiciously. With the inconsistent, dishonest and woolly averments in the affidavits of the applicant, no reasonable tribunal could have granted his application. The court below was even charitable to him to have gone into the merits of the application … The applicant having contradicted himself on very serious and important issues of fact in his application which bordered on dishonesty, should not have turned round to complain. He did not approach the court with clean hands and those averments disqualified him from the exercise of the court’s discretion in his favour.

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

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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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FAILURE OF COURT TO CONSIDER AFFIDAVIT IS A BREACH OF FAIR HEARING

In Order 6 Rules (2) and (4) of the Rules of this court, in an application for leave to appeal or for enlargement of time within which to seek leave to appeal, a respondent may, if he so desires, file in reply a counter affidavit. It follows that in considering the application for leave to appeal, the court has a duty to also consider the counter affidavit of the Respondent before arriving at a decision. Failure to consider the counter affidavit, as was done in this case is not only an irregularity but a clear denial of fair hearing to the Respondent/Applicant herein.

— J.I. Okoro JSC. Citec v. Francis (SC.116/2011, 21 February 2014)

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MOTION – WHAT AN AFFIDAVIT SHOULD NOT CONTAIN

A motion for a stay of execution is usually accompanied by an affidavit deposing to facts (not law, not speculation) which will persuade and incline the court to grant a stay … Paragraphs 14, 15 and 17 reproduced above offend all known rules relating to affidavits. One of those rules is that “an affidavit shall not contain extraneous matter, by way of objection, or prayer, or legal argument or conclusion”.

– Oputa, JSC. Military Governor v. Ojukwu (1986) – SC.241/1985

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