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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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AFFIDAVIT NOT CHALLENGED IS DEEMED ADMITTED

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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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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NO LAW PRESENTLY PROHIBITS A COUNSEL FROM DEPOSING TO AN AFFIDAVIT

The preliminary point raised by the Petitioner/Respondent that the motion of the 3 rd Respondent be dismissed, because the affidavit in support is sworn to by a legal practitioner in the law firm of counsel representing the 3 rd Respondent, is not sustainable. Our simple answer to this, is that there is no law that prohibits a counsel from deposing to an affidavit, if the counsel is conversant with the facts, or where the facts are within his personal knowledge. See the case of SODIPO VS LEMMINKAINEM (1986) 1 NWLR (PART 15) 220. In view of this, the motion of the 3 rd Respondent cannot be dismissed for the aforesaid reason.

— A. Osadebay, J. APC v INEC & Ors. (EPT/KN/GOV/01/2023, 20th Day of September, 2023)

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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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MERE GENERAL TRAVERSE IN AFFIDAVIT IS NOT ENOUGH

ARUWA v. ABDULKADIR (2002) FWLR 677 ratio 3, it was held, concerning the defendant’s affidavit, thus: “… The defendants affidavit must condescend upon particulars and should as far as possible specifically deal with the plaintiff’s claim and the affidavit in support thereof and state clearly and concisely what the defence is and what facts are relied upon to support it. The same affidavit defence should also state whether the defence relates to the whole or part of the claim, and in the latter case, it should specify that part of the claim. A mere general statement or denial, that the defendant is not indebted to the plaintiff is not enough to constitute a defence, unless the grounds on which the defendant relies as showing that he is not indebted are stated in the affidavit.”

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AFFIDAVIT NOT DENIED OR POSITIVELY CONTROVERTED IS DEEMED ADMITTED

The law is now quite clear on the fact that, an affidavit not denied or positively controverted, is deemed to be admitted by the adverse party. And to deny an affidavit, the adverse party does not have to speak in tongues or in subterfuge, as he is required to deny the averment frontally and positively, leaving the court or any reader of his denial not in doubt of his adverse position to the one advanced or canvassed in the supporting affidavit. See the case of Hon. Maryati Audu Dogan & Ors. vs. A.G. Taraba State, an unreported decision of this court in CA/J/243/2010, delivered on 25/5/2011, pages 35 – 36 thereof. It is settled law that an affidavit evidence constitutes evidence and any deposition not challenged is deemed admitted. H.S. Engineering Ltd. vs. A.S. Yakubu Ltd. (2002) 175 LRCN 134, ratio 2, Ajomale vs. Yaduat (1991) 5 SCNJ 178, Nzeribe vs. Dave Engineering Co. Ltd. (1994) 2 SCNJ 161; Oyewole vs. Akande (2009) All FWLR (Pt.491) 813.

— I.G. Mbaba, JCA. Ogunleye v. Aina (2012) – CA/IL/22/2011

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