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PARTY IS TO SHOW HOW THE PARAGRAPHS OF AN AFFIDAVIT ARE INCONSISTENT WITH THE EVIDENCE ACT

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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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AVERMENTS IN PLEADINGS VERSUS AVERMENTS IN AFFIDAVIT; ADDRESS OF COUNSEL NOT EVIDENCE

Averments of facts in pleadings must however be distinguished from facts deposed to in an affidavit in support of an application before a court. Whereas the former, unless admitted, constitute no evidence, the latter are by law evidence upon which a court of law may in appropriate cases act. The Court of Appeal, if I may say with the utmost respect, appeared to be under the erroneous impression that an averment in pleadings is synonymous with a deposition in an affidavit in support of an application. This is clearly not the case. So too, an address of Counsel in moving an application is not the evidence in support of such an application. The evidence is the deposition contained in the affidavit in support thereof.

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

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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 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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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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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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