STOP SEEING INTRUSIVE ADS, & HAVE PREMIUM FEATURES? Stop seeing intrusive ads and have a smoother reading experience, once you sign up on Judicial Poetry. Sign up now!

AFFIDAVIT NOT CHALLENGED IS DEEMED ADMITTED

Reach more audience. Place advert here.

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.”

Was this dictum helpful?

SHARE ON

affidavit

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)

Was this dictum helpful?

CONTRADICTIONS IN APPLICANT’S OWN AFFIDAVIT

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

Was this dictum helpful?

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

Was this dictum helpful?

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

Was this dictum helpful?

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.”

Was this dictum helpful?

DISTINCTION BETWEEN WITNESS STATEMENT ON OATH & AFFIDAVIT

In Okpa v. Irek & Anor. [2012] LPELR-8033 (CA) held thus: This court has consistently held that a witness statement on oath is different from 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 v. Agas [2004] 10 NWLR (Pt. 881) 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 therein.

Was this dictum helpful?

No more related dictum to show.