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AFFIDAVIT NOT CHALLENGED IS DEEMED ADMITTED

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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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WEIGHT OF AN AFFIDAVIT EVIDENCE OF TITLE TO LAND

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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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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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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WHERE CONFLICT IN BOTH AFFIDAVITS, COURT WILL CALL FOR ORAL EVIDENCE

On the question of conflict of affidavit evidence placed before the lower court which appellant’s learned Counsel had submitted should be resolved by oral evidence in order to act on such evidence, our case law is replete with authorities that where a matter is being tried on affidavit evidence and the court is confronted with conflicting or contradictory evidence relied on by the parties on a material issue before the court; it is the law that the court cannot resolve such conflict by evaluating the conflicting evidence but is obliged to call for oral evidence in order to achieve resolution of the conflict. (See Falobi v Falobi (1976) 9 & 10 SC 1 and Akinsete v Akidutire (1966) All NLR 137).

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

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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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CONCLUSION DRAWN IN AFFIDAVIT NEED NOT BE LEGAL CONCLUSION FOR STRIKING OUT

Besides, I do not think that view has any merit either by way of the interpretation of the said Section 87 of the Evidence Act or by looking broadly at the word “conclusion” which covers any conclusion based on fact or law as a result of a process of reasoning. It is the same process by which opinion or deduction is arrived at or inference drawn. Therefore to say that the conclusion meant under Section 87 is legal conclusion is restrictive and misleading.

— Uwaifo, JSC. Bamaiyi v State (SC 292/2000, Supreme Court, 6th April 2001)

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