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CONTRADICTIONS IN APPLICANT’S OWN AFFIDAVIT

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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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affidavit

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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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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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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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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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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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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