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AFFIDAVITS SHOULD NOT CONTAIN PRAYERS, LEGAL ARGUMENTS, AND CONCLUSIONS

Dictum

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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CALL ORAL EVIDENCE WHERE CONTRADICTIONS IN AFFIDAVIT & COUNTER-AFFIDAVIT

The learned counsel to the Appellant had argued that if there are contradictions in the affidavit and counter affidavit the court should not believe one side and reject the other but, call oral evidence to clear the contradictions. Yes, this is the correct position of the law when the affidavits evidence are from both sides but contradictory.

– Uwa, JCA. GTB v. Innoson (2014) – CA/I/258/2011

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INCONSISTENCY IN PARTY’S OWN AFFIDAVIT – COURT CANNOT HELP

In the case in hand, the contradictions or conflicts in affidavit evidence did not relate to the affidavit evidence filed by the appellant, on the one hand, and that filed by the respondent, on the other; rather, the contradiction arose only in respect of the appellant’s averments in his numerous affidavits. Therefore, the age-long principle of fielding witnesses to furnish oral evidence for the resolution of the contradictions between the two separate sets of evidence by the parties did not arise. Rather, it was self-evident from the judgment of the lower court that the contradictions alluded to were those that arose from the inconsistencies in the depositions in the appellant’s own affidavits. Clearly, where the appellant’s case is plagued by inconsistencies or contradictions, there is no obligation, in such circumstances, on the court seized of the matter to arrange for oral evidence to be called for the purposes of making or resolving the contradictions in the appellant’s case. The law frowns on a party who approbates in one breath and reprobates in another. But having said that, I must hurry to state that the onus is undoubtedly on the appellant confronted with its self-created contradictions to fully and properly explain away the contradictions to the satisfaction of the court. Failure to do so is bound to leave an indelible dent on the appellant’s case. It is not open to the court to enter into the arena of judicial conflict between the parties in order to resolve the contradictions within the appellant’s own affidavit evidence.

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

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PARTY IS TO SHOW HOW THE PARAGRAPHS OF AN AFFIDAVIT ARE INCONSISTENT WITH THE EVIDENCE ACT

However, where a party alleges that certain paragraphs offend the provisions of Section 115(2) of the Evidence Act, the responsibility is on that party to explain how the paragraphs of the affidavit are inconsistent with the section of the Evidence Act. It is not enough for a party to allege that certain paragraphs are inconsistent with the provisions of the Evidence Act. Learned counsel for the Respondent has failed to explain how paragraph 8 (c) and (d) constitute argument and conclusion. I therefore discountenance learned senior counsel’s argument on that score.

— P.A. Galinje JSC. Stanbic IBTC Bank Plc V. Longterm Global Capital Limited & Anor. (SC.535/2013(R), 23 June 2017)

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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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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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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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