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WEIGHT OF AN AFFIDAVIT EVIDENCE OF TITLE TO LAND

Dictum

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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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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DIFFERENCE BETWEEN AN AFFIDAVIT & A STATEMENT ON OATH

✓ In OKPA v. IREK & ANOR (2012) LPELR-CA/C/NAEA/289/2011, the Court laid a strong brick we can safely stand on: ”… that a witness statement on oath is different from an affidavit evidence. An affidavit is a statement of fact which the maker or deponent swears to be true to the best of his knowledge. It is a court process in writing deposing to facts within the knowledge of the deponent. It is documentary evidence which the court can admit in the absence of any unchallenged evidence. Akpokeniovo vs. Agas (2004) 10 NWLR pt 881 page 394. On the contrary a witness statement is not evidence. It only becomes evidence after the witness is sworn in court and adopts his witness statement. At this stage at best it becomes evidence in chief. It is thereafter subjected to cross examination after which it becomes evidence to be used by the Court. If the opponent fails to cross examine the witness, it is taken as the true situation of facts contained there in.” Per NDUKWE-ANYANWU, J.C.A. (P. 9, Paras. C-G)

✓ SAMUEL LAMBERT & ANOR vs CHIEF A.S.B.C.OKUJAGU (2015) ALL FWLR (PART 808) Pp 665 – 666 paras E-A thus: “ … it is therefore very certain that even the rules of court admit that affidavit and statement of witness on oath are distinct and different from the other. The form of an affidavit under the Evidence Act is well specified by law. See section 117 and 118 of the Evidence Act 2011. There is no law that specified that all sworn documents or Oaths must comply with the provisions of the Evidence Act as relates to affidavit. It is therefore not a valid argument to say that sworn deposition or statement of witness under the civil procedure rules must accord with the form of an affidavit … ”

“There is no law that specified that all sworn documents or oaths must comply with the provisions of the Evidence Act as relates to affidavits. It is therefore not a valid argument to say that sworn deposition or statement of witnesses under the civil procedure rules must accord with the form of an affidavit”

“… the innovation of filing written statements on oath of witnesses to be called in a civil case is a very good proactive and progressive innovation of our learned drafts-men. The import is not to clone an affidavit or set up parallel affidavits evidence. The import is to reduce the time expended in taking notes from witnesses in court and by extension, reduce the stress of the trial judges whose lot it is within our jurisdiction and adjudicatory clime to record in long hand viva voce evidence of witnesses. The rules of the High Court do not intend to encrust the written statement on oath with the formal garb of an affidavit as tailored by Section 107 to 120 of the Evidence Act 2011. We must therefore be watchful not to upload written statements on oath simply devised by the civil procedure rules with the burden required to be borne by an affidavit under the Evidence Act.”

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MEANING OF AFFIDAVIT

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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HOW TO DETERMINE IF AN AFFIDAVIT CONTAINS ARGUMENT OR CONCLUSIONS

Bamaiyi V. State (2001) 8 NWLR (Pt 715) 270 at 289 that “The test – – 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.”

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FAILURE TO FILE A FURTHER AFFIDAVIT IS ADMISSION OF THE COUNTER-AFFIDAVIT

I will therefore, pause here to state that it is now settled that failure to swear to a further-affidavit where there is a counter-affidavit which is unchallenged, it is deemed that the counter-affidavit, is admitted as being correct. In other words, where there is an unchallenged counter-affidavit evidence, the court is at liberty, to accept it as true and correct. See the cases of Jumbo Nwanganga & 5 ors. v. Military Governor of Imo State & 2 ors. (1987) 3 NWLR (Pt.59) 182 @ 193 C.A. and Attorney-General orPlateau State v. Attorney-General of Nassarawa State (2005) 4 SCNJ 120 @ 175; (2005) 4 S.C. 55.

— F. Ogbuagu JSC. Stephens Eng. Ltd. v. S.A. Yakubu (2009) – SC.153/2002

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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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