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AFFIDAVITS SHOULD NOT CONTAIN PRAYERS, LEGAL ARGUMENTS, AND CONCLUSIONS

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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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DOCUMENT ATTACHED TO AFFIDAVIT FORMS PART OF THE EVIDENCE OF DEPONENT

I have already held that a document attached to or exhibited with affidavit forms part of the evidence adduced by the deponent and is deemed to be properly before the court and to be used, once the court is satisfied that it is credible. Being already an evidence before the court (on oath), the formality of certification for admissibility (if it required certification) had been dispensed with. Of course, the reason for this is easy to deduce, the first being that affidavit evidence is already an admitted evidence before the court, unlike pleading which must be converted to evidence at the trial at which time issues of admissibility of an exhibit is decided The second point is that an exhibited copy of a document attached to an affidavit evidence must necessarily be a photocopy or secondary copy (except where the document was executed in several parts or counter parts and the deponent has many of the parts to exhibit in original forms). It is therefore unthinkable to expect the exhibited photocopy to be certified by the adverse party before the court can attach probative value to it.

– I.G. Mbaba, JCA. Ilorin East v. Alasinrin (2012) – CA/IL/38/2011

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AFFIDAVIT SHOULD CONFINE TO FACTS ONLY

Now, an affidavit meant for use in Court stands as evidence and must as near as possible conform to oral evidence that is admissible in Court. A deponent to an affidavit is therefore to confine himself to facts and circumstances. See BAMAIYI vs. THE STATE (2001) 4 SC (PT 1) 18 at 29. Often times it is only a thin line that separates facts or circumstances which are permissible for use in an affidavit, from depositions which are legal argument or prayer or conclusion, which are not permissible for use in an affidavit. Happily, the Supreme Court per Uwaifo, JSC in BAMAIYI vs. STATE (supra) at 32-33 laid down the test to be applied as follows: “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 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 15 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 it 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.”

— U.A. Ogakwu, JCA. Lagos State v NDIC (CA/L/124/2003(R), Court of Appeal, June 2nd 2020)

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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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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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WHAT IS ATTACHED TO AN AFFIDAVIT IS PART OF THE AFFIDAVIT

It is settled law that what pleadings is to a party is what an affidavit is to a party in an interlocutory application or even in certain substantive or originating process and any document attached to an affidavit is part of the affidavit and must be considered together. See UBN PLC v. ASTRA BUILDER (W.A) Ltd (2010) LPELR-3383(SC). The affidavit evidence of the Appellant with the bundle of extradition documents were copious enough to make a prima facie case.

— H.M. Ogunwumiju JSC. A.G of The Federation v. Anuebunwa (SC.CV/118/2021)

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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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