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FACTS NECESSARY FOR GRANTING PRAYERS SHOULD BE STATED IN AFFIDAVIT

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An application or motion on the other hand is usually supported by an affidavit or affidavits with or without exhibits, depending on the nature of the application. It is necessary for an applicant to state fully in an affidavit or affidavit, the facts he intends to rely upon in seeking the prayers or order contained in the motion paper because except with the leave of court, he will not be heard in respect of facts not contained in the affidavit.

– Kutigi JSC. Magnusson v. Koiki (1993) – SC.119/1991

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affidavit

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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ANY DEPOSITION NOT CHALLENGED IN AFFIDAVIT IS DEEMED ADMITTED

In the said suit leading to the instant appeal, there is the said counter-affidavit of the Respondent which is a part of the Records. It is now settled that affidavit evidence, constitutes evidence and any deposition therein not challenged, is deemed admitted. See the cases of Ajomale v. Yaduat & anor. (No.2) (1991) 5 NWLR (Pt.191) 226 @ 282-283; (1991) 5 SCNJ. 178 and Magnusson v. Koikoi (l993) 12 SCNJ 114.

— F. Ogbuagu JSC. Stephens Eng. Ltd. v. S.A. Yakubu (2009) – SC.153/2002

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AFFIDAVIT FOR INTERLOCUTORY MOTION IS DIFFERENT FROM THAT OF MAIN SUIT

The long and short of it is that the defendant’s submission that the Court should consider its counter-affidavit to the claimants’ motion for interlocutory orders, having been moved and ruled on, cannot be considered as the defence of the defendant to the substantive suit. The counteraffidavit had served its purpose i.e. as the defence to the motion for interlocutory orders. It is not the defence of the defendant to the substantive suit … All this said, the oral application to use the defendant’s counter-affidavit to the motion of interlocutory orders in this judgment is hereby refused. I so rule.

— B.B. Kanyip, J. FG v. ASUU (2023) – NICN/ABJ/270/2022

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AFFIDAVIT WHICH CONTAINS ARGUMENT WILL BE STRUCK OUT

In this case, the first part of the said paragraph 7c [of Applicants’ affidavit], reads as follows – “The condemnation of the Appellant’s Counsel as unprofessional, disrespectful, dishonest, discourteous, without hearing him is contrary to Section 36 of the 1999 Constitution (as amended) and thus null and void. See the Supreme Court case of BELLO V. INEC & ANOR. (2010) LPELR-767 (SC), page 78, paras. D-F, the Court held that ‘A court has inherent power to set aside its judgment or order where it has become so obvious that it was fundamentally defective or given without jurisdiction. In such a case, the Judgment or Order given becomes null and void, thus liable to be set aside’.
Is this paragraph 7c in the Applicants’ Affidavit in the form of evidence? Obviously not; it is a legal argument or conclusion, which offends against Section 115 (2) of the Evidence Act 201, and it is, therefore, struck out.

— A.A. Augie, JCA. Elias v Ecobank (2016) – CA/L/873/2013

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ANY DEPOSITION IN AFFIDAVIT UNCHALLENGED IS DEEMED ADMITTED

IN H.S. ENGINEERING LTD VS. AS. YAKUBU LTD (2009) 175 LRCN 134, ratio 2, it was held – ‘It is now settled law that an affidavit evidence constitutes evidence and any deposition therein not challenged is deemed admitted.’ See also the unreported decision of this court in CA/IL/83/2010 (Adebiyi v. Umar), delivered on 31/1/2012, page 11.

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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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