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AFFIDAVIT NOT DENIED OR POSITIVELY CONTROVERTED IS DEEMED ADMITTED

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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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AN AFFIDAVIT MUST BE CONFINED TO FACTS ADMISSIBLE IN COURT

An affidavit meant for use in court stands as evidence and must as near as possible conform to oral evidence admissible in court. Sections 86 and 87 of the Evidence Act provide as follows:- “86. Every affidavit used in the court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true. 87. An affidavit shall not contain extraneous matter, by way of objection, or prayer, or legal argument or conclusion.” … Looking at the counter-affidavit, paragraphs 12, 13 and 14 are fit for Counsel to urge upon the court by way of submission and, if there are facts and circumstances presented in support, the court may consider the submission attractive enough to dissuade it from granting the bail sought. Paragraph 18 contains a conclusion which ought to be left to the court to reach. Therefore paragraphs 12, 13, 14 and 18 are extraneous being in contravention of Section 87 of the Evidence Act. They ought to have been struck out. I accordingly strike them out. As for the further counter-affidavit, paragraphs 9, 10, 11, 12, 13 and 18 are also extraneous because they are fit for argument of Counsel to persuade the court. I strike them out as well.

— 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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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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WHERE CONFLICT IN BOTH AFFIDAVITS, COURT WILL CALL FOR ORAL EVIDENCE

On the question of conflict of affidavit evidence placed before the lower court which appellant’s learned Counsel had submitted should be resolved by oral evidence in order to act on such evidence, our case law is replete with authorities that where a matter is being tried on affidavit evidence and the court is confronted with conflicting or contradictory evidence relied on by the parties on a material issue before the court; it is the law that the court cannot resolve such conflict by evaluating the conflicting evidence but is obliged to call for oral evidence in order to achieve resolution of the conflict. (See Falobi v Falobi (1976) 9 & 10 SC 1 and Akinsete v Akidutire (1966) All NLR 137).

— Achike JSC. Momah v VAB Petro (2000) – SC. 183/1995

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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 SHOWING CAUSE TO DEFEND MUST DISCLOSE A DEFENCE

Furthermore, an affidavit showing cause why a defendant should be granted leave to defend an action must disclose a defence on the merit setting out the details and particulars of the defence. The popular expression is that the affidavit must “condescend upon particulars.” The affidavit showing cause must disclose facts which will at least throw some doubt on the plaintiff’s case. See U.B.A. Plc Vs Jargaba (Supra); Macaulay Vs NAL Merchant Bank Ltd (1990) 4 NWLR (Pt. 144) 283: Nishizawa Ltd Vs Jethwani (1984) 12 SC 234.

— K.M.O. Kekere-Ekun JSC. B.O. Lewis v. United Bank for Africa Plc. (SC.143/2006, 14 January 2016)

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