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

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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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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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UNCHALLENGED AVERMENTS IN AFFIDAVIT ARE DEEMED ADMITTED

Let me say that I agree with both counsels on their respective submissions that unchallenged averments in an affidavit are deemed to be established and admitted by the party whose duty it is to controvert same. Our judicial landscape is replete with authorities on the position that it is now elementary. In addition to the case cited by counsel, see the famous cases of Ajomale v. Yaduat (No.2) (1991) 5 SCNJ 172 at 178; (1991) 5 NWLR (Pt.191) 266 and U.B.N. v. Odusote (1994) 3 SCNJ 1; (1994) 3 NWLR (Pt.331) 129 in the case of Olori Motors v. U.B.N. (1998) 6 NWLR (Pt.554) 493 this court, at page 506-7, held the view that the court must accept unchallenged averments of an affidavit without hesitation.

— Garba, JCA. Shona-Jason v Omega Air (2005) – CA/L/418/2000

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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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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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NOT ALL UNCONTRADICTED AVERMENTS WILL BE ACCEPTED BY THE COURT

✓ In B.B.B. Manufacturing Co. Ltd. Vs A.C-Bc Ltd (2004} 2 NWLR (Pt. 858) 527@ 550551 F-A, per Pats-Acholonu, JSC as follows: although it is the general rule that uncontradicted evidence from which reasonable people can draw but one conclusion may not ordinarily be rejected by the court but must be accepted as true; it is also true to say that the court is not in all the circumstances bound to accept as true testimony an evidence that is uncontradicted where it is willfully or corruptly false, incredible, improbable or sharply falls below the standard expected in a particular case.

✓ It was held in R-Benkay (Nig) Ltd. v. Cadbury (Nig) Pie. (2012) 9 NWLR (Pt. 1306) 596 @ 624 C – per Peter-Odili, JSC, inter alia, as follows: “… it is not fl fait accompli that once there are averments in an affidavit which are not controverted the result would be a favourable disposition to the position of the party who had proffered the disposition. This is so because all averments must go under the surgical knife of evaluation which is done by the court as a matter of duty to see its acceptability as happened in this case. See also: Gonzee (Nig) Ltd Vs NERDC (2005) 13 NWLR (Pt. 943) 634@ 650 D, cited and relied upon.

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AFFIDAVIT SHOWING CAUSE TO DEFEND MUST DISCLOSE A DEFENCE

Furthermore, an affidavit showing cause why a defendant should be granted leave to defend an action must disclose a defence on the merit setting out the details and particulars of the defence. The popular expression is that the affidavit must “condescend upon particulars.” The affidavit showing cause must disclose facts which will at least throw some doubt on the plaintiff’s case. See U.B.A. Plc Vs Jargaba (Supra); Macaulay Vs NAL Merchant Bank Ltd (1990) 4 NWLR (Pt. 144) 283: Nishizawa Ltd Vs Jethwani (1984) 12 SC 234.

— K.M.O. Kekere-Ekun JSC. B.O. Lewis v. United Bank for Africa Plc. (SC.143/2006, 14 January 2016)

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