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!

FACTS NECESSARY FOR GRANTING PRAYERS SHOULD BE STATED IN AFFIDAVIT

Reach more audience. Place advert here.

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

Was this dictum helpful?

SHARE ON

affidavit

INCONSISTENCY IN PARTY’S OWN AFFIDAVIT – COURT CANNOT HELP

In the case in hand, the contradictions or conflicts in affidavit evidence did not relate to the affidavit evidence filed by the appellant, on the one hand, and that filed by the respondent, on the other; rather, the contradiction arose only in respect of the appellant’s averments in his numerous affidavits. Therefore, the age-long principle of fielding witnesses to furnish oral evidence for the resolution of the contradictions between the two separate sets of evidence by the parties did not arise. Rather, it was self-evident from the judgment of the lower court that the contradictions alluded to were those that arose from the inconsistencies in the depositions in the appellant’s own affidavits. Clearly, where the appellant’s case is plagued by inconsistencies or contradictions, there is no obligation, in such circumstances, on the court seized of the matter to arrange for oral evidence to be called for the purposes of making or resolving the contradictions in the appellant’s case. The law frowns on a party who approbates in one breath and reprobates in another. But having said that, I must hurry to state that the onus is undoubtedly on the appellant confronted with its self-created contradictions to fully and properly explain away the contradictions to the satisfaction of the court. Failure to do so is bound to leave an indelible dent on the appellant’s case. It is not open to the court to enter into the arena of judicial conflict between the parties in order to resolve the contradictions within the appellant’s own affidavit evidence.

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

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?

FAILURE OF COURT TO CONSIDER AFFIDAVIT IS A BREACH OF FAIR HEARING

In Order 6 Rules (2) and (4) of the Rules of this court, in an application for leave to appeal or for enlargement of time within which to seek leave to appeal, a respondent may, if he so desires, file in reply a counter affidavit. It follows that in considering the application for leave to appeal, the court has a duty to also consider the counter affidavit of the Respondent before arriving at a decision. Failure to consider the counter affidavit, as was done in this case is not only an irregularity but a clear denial of fair hearing to the Respondent/Applicant herein.

— J.I. Okoro JSC. Citec v. Francis (SC.116/2011, 21 February 2014)

Was this dictum helpful?

A PARTY IS FREE TO CROSS-EXAMINE ON AN AFFIDAVIT ADMITTED IN EVIDENCE

I am in grave difficulty to agree with the submission of learned Senior Advocate. First, the first leg of his submission implies that an affidavit admitted as an exhibit is not open to cross-examination. This conclusion is drawn from his argument that the difference between an affidavit and a deposition which is a written testimony is that the latter is open to cross-examination. That is not my understanding of the law. A party is free to cross-examine on an affidavit admitted in evidence, particularly where there is a counter-affidavit. Where there is no counter-affidavit, then the deposition will be generally deemed to be correct. In the circumstances a blanket statement such as the one by Counsel, cannot be correct.

— Niki Tobi, JSC. Buhari v. INEC (2008) – SC 51/2008

Was this dictum helpful?

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

Was this dictum helpful?

NOT ALL UNCONTRADICTED AVERMENTS WILL BE ACCEPTED BY THE COURT

✓ In B.B.B. Manufacturing Co. Ltd. Vs A.C-Bc Ltd (2004} 2 NWLR (Pt. 858) 527@ 550551 F-A, per Pats-Acholonu, JSC as follows: although it is the general rule that uncontradicted evidence from which reasonable people can draw but one conclusion may not ordinarily be rejected by the court but must be accepted as true; it is also true to say that the court is not in all the circumstances bound to accept as true testimony an evidence that is uncontradicted where it is willfully or corruptly false, incredible, improbable or sharply falls below the standard expected in a particular case.

✓ It was held in R-Benkay (Nig) Ltd. v. Cadbury (Nig) Pie. (2012) 9 NWLR (Pt. 1306) 596 @ 624 C – per Peter-Odili, JSC, inter alia, as follows: “… it is not fl fait accompli that once there are averments in an affidavit which are not controverted the result would be a favourable disposition to the position of the party who had proffered the disposition. This is so because all averments must go under the surgical knife of evaluation which is done by the court as a matter of duty to see its acceptability as happened in this case. See also: Gonzee (Nig) Ltd Vs NERDC (2005) 13 NWLR (Pt. 943) 634@ 650 D, cited and relied upon.

Was this dictum helpful?

No more related dictum to show.