Affidavit Evidence

Affidavit Evidence: It has been noted that although the usual method of proving a fact before a court is by means of oral evidence, a fact may also be proved either by documentary, real or circumstantial evidence.

Table of content

  1. Introduction
  2. Definition
  3. Contents, Form and Execution of Affidavits
  4. Defective Affidavit
  5. Other Principles Relating To Affidavit

Coming within the meaning of documentary evidence is affidavit evidence. In other words, an affidavit is documentary evidence of the facts deposed to in it, (see Lamidi Busari & ors v. Yinusa Goriola Oseni & Ors (1992)4 NWLR (pt. 237).

Therefore, to prove a fact before a court of law, resort must be had to affidavit evidence. Thus, section 78 of the Act provides that:

“A court may in any civil proceeding make an order at any stage of such proceeding directing that specified facts may be proved at the trial by affidavit with or without the attendance of the deponent for cross-examination, provided that where a party desires the attendance of such deponent for cross-examination the court shall require his attendance for that purpose where this would not result in unjustifiable delay or expense.

Apart from affidavits used in judicial proceedings, there are other types of affidavit; such as, declaration of age, declaration of marriage and affidavit as to loss of documents. However, our concern in this work shall be limited to affidavits used in judicial proceedings.

The proceedings in which affidavit evidence is usually used are, interlocutory applications, applications for prerogative orders, such as, prohibition, certiorari, habeas corpus and mandamus. Also, in application for the enforcement of fundamental rights under the Fundamental Rights (Enforcement Procedure) Rules, 1999, affidavit is required to be filed, verifying the facts upon which the application is predicated.

Unlike pleadings where the facts averred to must be established by oral and documentary evidence during the trial, affidavits are by law, evidence upon which a court can act without the requirement of the facts stated therein being established by oral evidence.

Definition of Affidavit Evidence

In Josien Holdings Limited v. Lornamed Limted, the Supreme Court defined affidavit as “a statement of fact which the maker or deponent swears to be true to the best of his knowledge, information or belief”. It is a voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths”.

In other words, affidavit is a statement of fact, in writing, voluntarily made and signed, by a person and declared by him on oath to be true. The person before whom an affidavit is to be deposed is one authorized to administer oaths.

There is a presumption of regularity and genuineness of seal and signature contained in an affidavit. This is by virtue of the provision of section 111 which provides that the fact that an affidavit purports to have been sworn in a manner provided for in the Act, “shall be prima facie evidence of the seal or signature, as the case may be, of any such court, judge, magistrate or other officer or person herein mentioned appended or subscribed to any such affidavit, and of the authority of such court, judge, magistrate or other officer or person to administer oaths”.

affidavit of support documents financial evidence

Sections 107 to 120 contain provisions relating to affidavit.

However, of particular importance are the provisions of section 115 to 120 dealing with the contents, form and execution of affidavit.
These sections are particularly important because any affidavit which fails to comply with their provisions may be liable to be struck out; alternatively, the offending paragraphs may be struck out.

Yet, in practice, these provisions do not command the much needed awareness and appreciation amongst solicitors. The result is that, quite often, the provisions are observed more in breach than compliance. It was for the consistency in breach of the provisions that Uwaifo, J.C.A. (as he then was) was constrained to counsel in Nigeria LNG Limited v. African Development Insurance Co. Ltd that:

“It seems pertinent to remark that counsel or solicitors who draft affidavits for use in court must keep strictly in mind the provisions of sections 86, 87, 88 and 89 (now 115(1)(3)(4) in particular of the Evidence Act.
Continuing, the learned Judge lamented that:

“Ever so often, one reads affidavits studded with highfalutin depositions either condemning the opponent in adverse ways, or engaging in legal arguments or drawing conclusions, or praying for all sorts of assistance from the court and/ot warning against the consequences of allowing the opponent to get away with what he is alleged to have done instead of deposing to facts and circumstances and their details; the infraction of section 87 (now 115 (2) of the Evidence Act is usually freely committed….

So, what should be the content of an affidavit?

Section 115(1) provides that, “every affidavit used in the court shall contain only a statement of facts and circumstances to which the witness deposes, wither of his own personal knowledge or from information which he believes to be true”.

The requirement of this section is that, for any affidavit or any paragraph therein to be competent, it must contain a statement of fact and circumstances may be derived from the personal knowledge of the deponent; or from information supplied to him by a person who has personal knowledge of the facts.

Where a person deposes to any fact derived from any source other that his own personal knowledge, it is required:

  1. That the deponent must set forth, explicitly, the facts and circumstances forming the ground of his belief”.
  2. That the name of his informant shall be stated and reasonable particulars shall be given respecting the informant, and the time, place and circumstances of the information.
  3. Failure to comply with the foregoing requirements will render the offending paragraph incompetent and ipso facto, liable to be struck out. In Flour Mills of Nigeria Limited v. R.I. Osian (1968)2 ALL N.L.R. 13, paragraph of an affidavit stated:

‘I verily believe that if the judgment-debts and or costs awarded against the defendants/applicants were paid to the plaintiff/respondent, there would be no reasonable probability of getting back the said judgment-debt and costs in the event of the appeal succeeding wholly or in part’.

The trial court came to the irresistible conclusion that it was glaring that the information in the paragraph was derived from sources other than the personal knowledge of the deponent and as such, he should have given the source of his information and belief in accordance with the provisions of sections 88 and 89 now section 115(1)(4) of the Act. It is respectfully submitted that the paragraph also contained opinion and conclusion and thus contravened section 115(2) of the Act.

In fortification of the requirement that every affidavit must contain only a statement of facts, section 115(2) provides that “an affidavit shall not contain extraneous matter by way of objection, or prayer, or legal argument or conclusion”.

Thus, expressions like” it is legally unsupportable to…,” “In my opinion…”, Therefore…” are unsuitable and improper in an affidavit.

  • That I have studied the agreement referred to as ‘B’ in the affidavit of A.D. of the 5th March, 1962 and I am of the opinion that it is not binding on anyone of the defendants, and I have so advised.
  • That as such all the defendants have a very good defence to this suit”.

The court rightly held that paragraph 3 was for the most part an expression of opinion and not a statement of facts and circumstances and the only part which was not an expression of an opinion could not stand alone. Paragraph 4 on the other hand was held to contain an opinion and a legal conclusion.

Accordingly, since the two paragraphs offended the provisions of sections 86 and 87 now 115 of the Act, they were held objectionable and liable to be struck out. Therefore, whenever any affidavit or a paragraph thereof offends any provision respecting affidavit, the proper approach is either to strike out the affidavit or the offending paragraph or attach no weight to the affidavit.

The rationale for the requirement that every affidavit must contain only a statement of facts is fairly obvious , but worth repeating. An affidavit meant for use in any court of law constitutes evidence upon which the court can act in determining any fact in issue.

Thus, in English case of Gleeson v. J. Wippell & Co. Limited, it was held that the purpose of an affidavit is to provide evidence, not legal argument or opinions of counsel on the law. Our courts have been consistent, and rightly so, in holding that an affidavit loaded with legal arguments, extraneous matters and conclusions is liable to be struck out.

Rules of evidence affidavit

An affidavit may be defective either in form or in substance. The question, therefore is, what is the legal consequence of a defective affidavit?
Section 113 provides what can be termed the general rule as follows:

“The court may permit an affidavit to be used, notwithstanding it is defective in form according to this Act, if the court is satisfied that it has been sworn before a person duly authorized”.

The implication of this provision is that an affidavit which is defective in form, that is, one which fails to comply with the provisions of section 90 may be permitted if it is otherwise competent. In other words, an affidavit which is defective only in form is admissible if it has been duly sworn and the court exercises its discretion in favour of the use of the affidavits that are defective “in form” and not those that are defective in substance”.

On the other hand, if an affidavit is substantially or fundamentally defective, the affidavit or the defective paragraph may be liable to be struck out. An information of any of the provisions of sections 115, will constitute a fundamental defect which will render the affidavit liable to be struck out. In Federal Board of Internal Revenue v. R.S.A. Babaoye, and affidavit contained amongst others, the following paragraph:

“That I have been informed and I reasonably believe that there is an important issue of law involved in the ruling and the decision of the Supreme Court on this point is desirable, as it will help in the development of the law”.

When objection was raised to this paragraph on the ground that it offended section 88 (now 115(4) of the Act in that it disclosed an information and belief without disclosing the source, counsel relied on section 84 (now 113) and urged the court to admit the affidavit, the defect notwithstanding.

The court held that the paragraph contravened the current section 113 of the Act and concluded that, an affidavit may contain statement as to deponents information and belief “provided the sources thereof are given otherwise the affidavit will be rejected”.

Similarly, in Federal Military Government v. Sanni, it was held that any paragraph of an affidavit which offends any of the relevant provisions of the Act, that is, sections 86-88, (now 115) may be struck out by the court otherwise, the court may not attach any weight to it”.

It is instructive to note the provision of section 114 of the Act which states that, defective affidavit may be amended and re-sworn by leave of the court on such terms as to time, costs or otherwise as seem reasonable”.

However, a court cannot suo motu correct mistakes in an affidavit just as the deponent cannot by words of mouth correct such mistakes in court. To correct any mistake in an affidavit, even if it is a mere typographical inexactitude, the appropriate thing to do is to swear another affidavit.

For instance, if it is intended to write five thousand and what is actually written and deposed is five hundred, the error should be corrected by swearing another affidavit. In Agbakoba v. Director, State Security Services, the Court of Appeal held inter alia that a deponent cannot be allowed to correct his affidavit in open court, because it is an oath that was not taken before the judge but before a Commissioner for Oath.

Evidence affidavit related principles

The courts have firmly established certain principles relating to affidavit. For practical purposes, we proposed to examine the important ones:

  1. Uncontroverted and undisputed depositions in affidavits
  2. Needs to Traverse Every Deposition By Counter Affidavit
  3. Cases where Counter-Affidavit is unnecessary
  4. Concluding Part of An Affidavit
  5. Joint Affidavit

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