Affidavit (53)
HELD:
"An affidavit of service of a court process is normally a non-contentious document required to be put on record For information of the court and the parties as to the fact and date of service of a process in the proceeding. It cannot be a reasonable proposition that in that same proceeding in which it was filed the law requires that that self-same document should be proved before the court before it can be relied on." ATTORNEY GENERAL OF ANAMBRA STATE & ORS V. EPHRAIM OKEKE & ORS(2002) LPELR-604(SC) Per Ayoola, J.S.C. (Pp. 12-13, paras. F-A)
FACTS:
HELD:
"In respect of the contention of the Appellant that the lower Court should have acted on the Applicant's affidavit since the Plaintiffs (now 1st and 2nd Respondents) did not file a counter affidavit in response, it is indeed the law that facts in an affidavit not challenged, contradicted or controverted by the opposing party are deemed admitted by him unless such facts on the face of it will lead to an absurdity if it is taken to be the truth of what is being sought to be established. In the absence of a counter-affidavit to an affidavit, the facts in the affidavit would generally be deemed unchallenged, undisputed and, in essence, admitted. Such admitted evidence requires no further proof.
"it is trite law that depositions in an Affidavit, which are not challenged, are deemed admitted - Magnusson V. Koiki (supra). The Appellants only have themselves to blame, faced with an Affidavit, they failed to file a Counter-Affidavit to controvert the facts therein, therefore, the Court of Appeal was right to hold as it did against them." CHIEF V. C. OBUMSELI & ANOR v. CHINYELUGO P. UWAKWE(2019) LPELR-46937(SC) Per AUGIE, J.S.C. (Pp. 19-20, Paras. E-A)
FACTS:
"I think the legal position is clear, that in any affidavit used in the court, the law requires, as provided in sections 86 and 87 of the Evidence Act, that it shall contain only a statement of facts and circumstances derived from the personal knowledge of the deponent or from information which he believes to be true, and shall not contain extraneous matter by way of objection, or prayer, or legal argument or conclusion. " ISHAYA BAMAIYI V. THE STATE & ORS(2001) LPELR-731(SC) Per UWAIFO, J.S.C. (P. 26, paras. D-F)
FACTS:
"...The problem is sometimes how to discern any particular extraneous smatter. 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 a 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 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 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." ISHAYA BAMAIYI V. THE STATE & ORS(2001) LPELR-731(SC) Per UWAIFO, J.S.C (Pp. 26-27, paras. F-D)
FACTS:
An affidavit of service deposed to by the person effecting the service, setting out the fact, place, mode and date of service and describing the process or document served shall be prima facie proof of the matters stated in the endorsement or affidavit. Schroder and Co v. Major and Company (Nig.) Ltd. (1989) 2 SC (Pt. II) 138; 2 NWLR (Pt. 101) 1, 11. Idisi v. Ecodril Nig. Ltd. & Ors. [2016] 5 - 7 M. J. S. C[Po 20] Paras. A-B
"A cardinal principle of law is that affidavit evidence i.e. depositions must not contain legal arguments, and where they do they offend the provision of section 87 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990. In the event that such situation exists the paragraphs containing the offensive depositions will be struck out, and I so strike out paragraphs 3 - 7 of the supporting affidavit to the originating summons. See Bamaiyi v. State (2001) 8 NWLR (Pt. 715) page 270." Per MUKHTAR, J.S.C. (Pp. 45-46, paras. F-A) ATTORNEY GENERAL OF ANAMBRA STATE v. ATTORNEY GENERAL OF THE FEDERATION (REASONS)(2007) LPELR-24343(SC)
"Where the counter-affidavit to originating summons contains paragraphs contrary to S.87 of the Evidence Act or extraneous matters and/or legal arguments or conclusions such paragraphs are liable to be struck out."Per OGUNWUMIJU, J.C.A.(P. 81, paras. D-E) JOSHUA DADA ABIODUN & ORS. v. ATTORNEY GENERAL OF THE FEDERATION(2007) LPELR-8550(CA)
"...it is the law that an affidavit shall not contain any extraneous matter by way of objection, prayer, legal argument or conclusion. See Section 87 of the Evidence Act."Per SANKEY, J.C.A.(P. 58, paras. B-C) JOSHUA DADA ABIODUN & ORS. v. ATTORNEY GENERAL OF THE FEDERATION(2007) LPELR-8550(CA)
Where there is a conflict in affidavit evidence on a crucial and material issue, a trial court is expected to invite parties to call oral evidence to resolve the conflict. Akinsete v. Akindutire (J 966) 1 ANLR P. 147.
Mabamije & Otto [2016]1 M. J. S. C (Pt. III) [Po 51] Paras. B-C
