What is an affidavit or what is an affidavit evidence?
The Supreme Court in the case of JOSEIN HOLDING LIMITED VS LORNAMEAD LIMITED (1995) 1 NWLR Part 371 page 254 at 265 defined “an affidavit” as – “A statement of fact which the maker or deponent swears to the best of his knowledge, information or belief.
Nature of an affidavit evidence
The facts in an affidavit are facts under oath and cannot be treated as mere assertion for if not contradicted the Court can act on them unless they are within the special knowledge of the Court not to be true. Affidavit evidence is proper evidence for the Court to act upon once not contradicted as in this case. See JIMOH v. COP (2004) LPELR-11262(CA).
It must contain only those facts of which the maker or deponent has personal knowledge or which are based on information which he believes to be true. An affidavit by its nature, is a documentary evidence of the facts in it.
It’s vital to remember that, unlike pleadings, facts in an affidavit are evidence in and of themselves. Affidavit is evidence on oath.
It is an elementary principle of law that facts in affidavit are part of documentary evidence before the Court. See IKPEAZU v. PDP & ORS (2017) LPELR-42611(CA)
Paragraphs of the affidavit which lack evidential value, the Court has no time to waste with but to strike those paragraphs out or attach no weight to them. See AHMED & ORS v. CBN (2013) LPELR-20744(SC).
The law governing affidavits in Nigeria, particularly those required for court processes, is the Evidence Act 2011. The Act sets out the general rules in relation to form, filing and content that makes up a valid affidavit. The relevant section of Nigeria’s federal 2011 Evidence Act that deals with affidavits (Articles 107-120).
Authorities Who Can Issue and Swear Affidavits
Pursuant to Section 10 of the Oaths Act, the following persons can administer oaths and therefore issue affidavits under Nigerian law:
- Chief Justice of Nigeria;
- Justices of the Supreme Court of Nigeria;
- President and Justices of the Court of Appeal;
- Judges of the Federal High Court;
- Notaries Public; and
- Commissioners for Oaths.
- Commissioners for Oaths are officers of the court designated to administer oaths
Content of an affidavit
An affidavit consists of averments deposed to under a solemn oath. In the absence of any challenge to averments therein, the Court is to accept them as true. See AONDOAKAA v. OBOT & ANOR (2021) LPELR-56605(SC).
In any affidavit used in court, it shall contain only a statement of facts and circumstances from the personal knowledge of the deponent or from information which he believes to be true.
The test for knowing facts and circumstances is to examine each of the paragraphs deposed to in the affidavit.
This means that affidavit evidence, like oral evidence, must as a general rule deal with facts and avoid matters of inference, objection, legal argument or conclusion which fall within the province of the court; or objection, prayer or legal argument which must be left to counsel.
Procedures to Obtain an Affidavit
Section 108, 115 and 117-119 of the 2011 Evidence Act describe the procedural requirements for obtaining an affidavit. The procedure to obtain a sworn affidavit is as follows:
- The deponent will approach either a Commissioner for Oaths at the court, or a notary public. Affidavits for court proceedings are by a Commissioner for Oaths.
- The deponent “will pay the requisite fee and receive a receipt.
- The identity of the deponent “will be verified,” noting that “notaries do this by checking a passport or national ID card.
- The Commissioner for Oaths or Notary will verify “the facts of the deponent’s statement by asking questions and requesting the deponent to present any evidence, as needed, to ascertain the facts.
- The deponent “will swear to the information and sign the affidavit.
- The Commissioner for Oaths or Notary “will sign and seal the affidavit”
What is a Counter Affidavit?
A counter affidavit is an affidavit in contradiction or opposition to an affidavit which is made either as the basis or in support of a motion or application or otherwise. A.G OGUN STATE & ORS v. BOND INVESTMENT & HOLDINGS LTD (2021) LPELR-54245(CA).
A valid counter-affidavit must contain a valid denial of each fact sought to be denied and the Respondent’s version of what happened.
A simple narration of a Respondents’ different and distinct sets of facts deposed to in an affidavit does not qualify as a counter affidavit which has denied the facts deposed to in an affidavit.
Effect of not filing a counter affidavit or a reply to a counter affidavit
Where facts in an affidavit have not been controverted such facts must be taken as true except they are moonshine. See Alagbe v. Abimbola 1978 2 SC p.39. Where an affidavit is deposing to certain material facts and the other party does not file a counter-affidavit to dispute the facts, the facts deposed to in the affidavit would be deemed unchallenged and undisputed.”-MABAMIJE v. OTTO (2016) LPELR-26058(SC)
Whether documents attached to an affidavit form part of the affidavit
However, it is also trite that all documents attached to an affidavit form part of the affidavit in question and it is not possible to raise objection to its admissibility in the affidavit of the respondent without running counter to Section 87 of the Evidence Act.-EZECHUKWU & ANOR v. ONWUKA (2016) LPELR-26055(SC)
Purpose of an affidavit of service; when Court may dispense with proof of affidavit of service
The purpose of affidavit of service is to convince the court that the persons on whom the processes are to be served have been duly served. Where there is no affidavit of service and the person served with a writ or any process of court appears in court, there is no further need to insist on a proof of service. There cannot be a better proof than the appearance in court of the person on whom the process was served.
It is common knowledge that parties informed the court of the service of a writ, subpoena, Hearing Notice etc. on their opponents. In such a case, without the appearance of the person allegedly served or an affidavit of service, the court should be circumspect in such a situation. OKESUJI v. LAWAL (1991) LPELR-2447(SC).
Resolution of conflict on material facts in affidavit evidence
It is clear law of procedure that where there is a conflict in affidavit evidence, the solution is by calling oral evidence. The above general principle of law will not apply where there is documentary evidence that can resolve the conflict.
What is the legal position where documentary evidence is in conflict? The law seems to be silent. It is my humble view that in such a situation, oral evidence should be led to resolve the conflict in the documentary evidence. This should be taken as an exception to the law that oral evidence should not add or subtract from documentary evidence which speaks for itself.” –EJEZIE & ANOR v. ANUWU & ORS (2008) LPELR-1063(SC).
Cross-examination on an affidavit evidence
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. BUHARI v. INEC & ORS (2008) LPELR-814(SC)
What amounts to conflict in affidavit evidence
Conflict in affidavits occurs where there are facts in two affidavits which are inconsistent and cannot be reconciled. NEW NIGERIAN NEWSPAPERS LTD v. AGBOMABINI (2013) LPELR-20741(CA)
Besides, a further affidavit has to be filed as additional evidence with the leave of the Court so as not to unnecessarily delay the hearing and determination of the proceedings if facts are to be proved by affidavit evidence. See Okoli vs. Okoli (1986) C.A. (Pt.1) 11 at page 15.
Instances where you do not need a counter affidavit
An affidavit that is useless or lacking in credibility, or is self-contradictory or does not support the remedies on a motion, etc, does not require a counter-affidavit. See Royal Exchange Assurance vs. Aswani Textiles Industries Ltd. (1992) 2 SCNJ (Pt.2) 346.
It is not whenever there is a further affidavit by an Applicant that the adverse party, a Respondent, must file a further counter affidavit. This will depend on the facts in the further affidavit. If they are facts on which the parties had already joined issue, the repeated deposition of such facts in fresh or further affidavits even to the 10th degree does not change anything.
It is only where the facts in the subsequent affidavits are new or fresh and not already covered by the counter affidavit that the need to file a further counter affidavit will arise. ARIYO & ORS v. JULIUS BERGER (NIG) LTD & ANOR (2016) LPELR-41474(CA)
Purpose of a further affidavit
A further affidavit is needful when there is a counter-affidavit that has denied and contradicted the weighty and substantial facts in an affidavit evidence and further sets out new facts which are credible and which if believed by the Court will lead to a finding in favour of the Respondent.
When a further affidavit is not necessary
It is not in all cases that failure to file further affidavit will amount to an admission of the depositions in a counter-affidavit. A further affidavit is not really necessary just because there is a counter-affidavit against it. A further affidavit is only necessary where a counter-affidavit filed has actually pointedly denied or refuted weighty and substantial facts deposed to in an affidavit and such a counter-affidavit goes further to raise new facts by setting out a credible story line of the Respondent. OLA v. UNILORIN & ORS (2014) LPELR-22781(CA).
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