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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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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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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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AFFIDAVIT NOT CHALLENGED IS DEEMED ADMITTED

In Badejo V. Fed. Min. of Education (supra) at page 15; it was held by the Supreme Court that:- “where an affidavit is filed deposing to certain facts and the other party does not file a counter affidavit or reply to a counter affidavit, the facts deposed to in the affidavit would be deemed unchallenged and undisputed…they are therefore admitted.”

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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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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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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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