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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

AVERMENTS IN AFFIDAVIT NOT CHALLENGED ARE DEEMED ADMITTED

These averments were not challenged or denied by the Appellant. No further affidavit was filed by the Appellant to deny that it ever agreed to submit to the Jurisdiction of the English Court. The Appellant did not challenge the Judgment by way of appeal nor did it deny the averments in the Counter Affidavits. I therefore agree with the submission of learned Senior Counsel for the Respondent that where facts in an affidavit are not challenged, they are deemed admitted.

— J.O. Bada, JCA. Conoil v Vitol (2011) – CA/A/213/2010

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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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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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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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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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AFFIDAVIT PARAGRAPHS THAT OFFEND SECTION 115 EVIDENCE ACT 2011 WILL BE STRUCK OUT

The stipulations of Section 115 of the Evidence Act, 2011 is a reproduction of the provisions of Sections 86, 88 and 89 of the Evidence Act, 1990. It is rudimentary law that any paragraph of an affidavit which offends against the provisions of Section 115 of the Evidence Act may be struck out, but if it is not struck out, no weight should be attached to it: JOSIEN HOLDINGS LTD vs. LORNAMEAD LTD (supra), FMG vs. SANI (NO. 2) (1989) 4 NWLR (PT 117) 624 and EDU vs. COMM. FOR AGRIC. (2000) 12 NWLR (PT 681) 318. Indeed, it seems to be settled law that any paragraph of an affidavit which offends Section 115 of the Evidence Act ought not to be acted upon. It is liable to be discountenanced and struck out. See OSIAN vs. FLOUR MILLS (1968) 2 ALL NLR 13, EURO BATI CONCEPT S.A. vs. TROPICAL INDUSTRIAL CO. LTD (2001) 18 NWLR (PT 744) 165 and A-G ADAMAWA vs. A-G (FED) (2005) 18 NWLR (PT 958) 581 at 625 and 657-658.

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

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