Affidavit

It is settled law that when a Court is faced with conflicting affidavit evidence on a material issue before the Court, the Court has to hear oral evidence in order to resolve the conflict...However, where there exists some documentary evidence on the basis of which the conflicts in the affidavit evidence can be resolved, the Court can dispense with the need to call oral evidence and resolve the conflict in the affidavit evidence by resorting to the documentary evidence that supports one of the affidavits.

ONABIYI & ORS v. I.O.N PETROLEUM LIMITED LGC(22/3/2017) C

The differences between the parties was on whether the Court processes were served on the Respondent. The Respondent in the affidavits it filed deposed that it was not served with any Court processes. See pages 15-21 of the Records. The Appellants in their counter affidavits insisted that the Respondent was duly served with the Court processes. See pages 22-32 of the Records. So it was oath against oath and there was no documentary evidence on the basis of which the conflict could be resolved without recourse to oral evidence being adduced. Now in these circumstances, what course was open to the lower Court? Was it to order for oral evidence to be adduced as the lower Court did, or for the Court to suo motu resolve the conflict and prefer one deposition to the other?
It is settled law that when a Court is faced with conflicting affidavit evidence on a material issue before the Court, the Court has to hear oral evidence in order to resolve the conflict.

ONABIYI & ORS v. I.O.N PETROLEUM LIMITED LGC(22/3/2017) C

It is settled law that Undefended List Procedure is designed and adopted for speedy trial for the recovery of any debt or liquidated money demand. Particularly, where it is clear to the Court that the defendant has no defence on the merit for the claim of the plaintiff. Where a defendant is served with a writ of summons entered under the Undefended List together with an affidavit deposed to by the plaintiff, as required by the Rules of Court, and he desires to defend same. It is his duty to file a notice of intention to defend the suit together with an affidavit disclosing his defence on the merit of the claim for the liquidated money demand.
On the return date, the duty of the Court is to consider the affidavits of claim and defence in order to determine whether the defendant has disclosed any defence to the claim of the plaintiff so as to decide whether the action should be transferred to the General Cause List to be dealt with according to the Rules of Court or enter judgment for the debt or liquidated money deemed for the plaintiff, where it comes to the conclusion that no defence, on the merit has been disclosed in the affidavit of defence.
It is very clear from the above description that the decision of the trial judge on the matter on the return date is strictly based on the facts as disclosed in the affidavits filed before him. The judge cannot therefore go outside the affidavit evidence in determining the matter.

MASSKEN NIGERIA LIMITED & ORS V. AMAKA & ANOR: LGC((28/4/2017)C

Thus, every material averment in any affidavit filed in respect of an originating summons must be specifically denied by the adverse party otherwise the averments will stand unchallenged and will be deemed admitted. See: Inakoju Vs Adeleke (2007) 4 NWLR (Pt.1025) 427 @ 684 – 685 H – B; E G; Ogoejeofo Vs. Ogoejeofo (2006) 3 NWLR (Pt.966) 205: Egbuna Vs Egbuna (1989) 2 NWLR (Pt.106) 773.
Similarly, where there are averments in a counter affidavit asserting a particular state of affairs which are not challenged by a further affidavit, such averments will be deemed admitted.

Therefore, any deposition made in an affidavit which is not challenged or controverted is deemed admitted. SeeAjomale v. Yaduat (No.2) (1999) 5 NWLR (Pt.191) 266, Magnusson v. Koiki (1993) 9 NWLR (Pt.317) 287, Henry Stephens Engineering Ltd v. Yakubu Nig. Ltd (2009) 10 NWLR (Pt.1149) 416 and Tukur v. Uba (2013) 4 NWLR (Pt.1343) 90.

It must be noted that an affidavit evidence constitutes evidence and must be so construed.
Therefore, any deposition made in an affidavit which is not challenged or controverted is deemed admitted. SeeAjomale v. Yaduat (No.2) (1999) 5 NWLR (Pt.191) 266, Magnusson v. Koiki (1993) 9 NWLR (Pt.317) 287, Henry Stephens Engineering Ltd v. Yakubu Nig. Ltd (2009) 10 NWLR (Pt.1149) 416 and Tukur v. Uba (2013) 4 NWLR (Pt.1343) 90.

This Court had held in A. G. Adamawa State v A. G. Federation (2005) 18 NMLR (Pt. 958) 1 at 657 thus;-
"There can be no doubt that it is settled that depositions in any affidavit shown in support of a cause or matter must not be drafted to include legal arguments, conclusions in law or fact. See Sections 85 and 87 of the Evidence Act, Cap.112 and which read thus:-
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.
This means that where depositions in an affidavit offend this basic law, the offending paragraphs of such an affidavit must be struck out."

It is quite clear that the learned trial judge did not consider the affidavit evidence before him, for if he had considered it and gave it the attention it deserves, he would not have reached that decision. As a matter of fact, it is the affidavit evidence that he should have dwelt on, rather than the proof of evidence which he dealt with extensively and went into the merit of the case.
In STATE VS AKAA (2002) 10 NWLR (Pt. 774) 157 at 172. The Court of Appeal stated thus;
"In an application for bail, it is the affidavit evidence before it that a Court should dwell on rather than the proof of evidence. In the instance case, the trial Court failed to consider the affidavit and counter affidavit deposed to by the parties. Rather it dwelt extensively on the proof of evidence thereby going into the merit of the case."

The law is equally settled that the presumption of regularity in this regard is rebuttable. A defendant who intends to challenge the affidavit of service deposed to by the bailiff must file an affidavit denying service and detailing specific facts, which show that he could not have been served on the date, or at the time, or at the place or in the manner deposed to. It would then be for the Court to determine whether or not the party complaining was indeed served accordingly.

Section 168 (1) of the Evidence Act, 2011 provides for the presumption of regularity of official acts. It provides thus;
"(1) Where any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with."
The law is trite that an affidavit of service deposed to by the bailiff of a Court stating the Fact, place, mode and date of service and describing the process or document served shall be prima facie proof of the matter stated in the affidavit, See: Schroder Vs Major (1989) 2 NWLR (Pt.101) 3 @ 11 E – H; Okoye Vs Centre Point Merchant Bank Ltd. (2008) 15 NWLR (Pt.1110) 335: Idisi Vs Ecodril (Nig) Ltd. (2016) LPELR- 40438 (SC).

Without doubt, an affidavit, irrespective of before whom it is sworn, remains just an affidavit and can by no stretch of the imagination tantamount to an order of court for the purposes of the recovery of premises under the Recovery of Premises Law in the Plateau State or any other State of the Federation, for that matter. It does not matter that, such an affidavit, as in the present case, was sworn to before or endorsed by a Chief Magistrate. I entirely agree that such an' affidavit has no legal basis and cannot be a substitute for an appropriate order of court obtained pursuant to the provisions of the Recovery of Premises Law, Cap. 115, Laws of Northern Nigeria, 1963.

Order 8 Rule 8(4) of the Supreme Court Rules states that:
(4). An appellant whose appeal has been dismissed under this Rule may apply by notice of motion that his appeal be restored. Any such application may be made to the Court and the Court may where exceptional circumstances have been shown, cause such appeal to be restored upon such terms as it may think fit.
What then are exceptional circumstances?
Any fact which if known the judge would not have dismissed the appeal is an exceptional circumstance. For example if at the time of dismissal of the appeal there was before the Court an application for extension of time to file relevant processes. If all processes were properly before the Court but this was not brought to the attention of the judge due to inadvertence or carelessness of counsel.
In the affidavit in support of the application to restore the dismissed appeal, a detailed deposition of exceptional circumstances must be shown.

Where documentary evidence support depositions in an affidavit such depositions are the correct position of what it seeks to establish. Documentary evidence lends more credence to material facts deposed to in an affidavit.

I must state that depositions in affidavit on material facts resolve applications in Court. Where depositions on material facts in an affidavit in support of an application are not denied by the adverse party filing a counter-affidavit, such facts not denied in the affidavit in support remain the correct position and the Court acts on them except they are moonshine.
Material facts in a counter-affidavit not denied by a reply affidavit are the true position. It is only when the affidavits cannot resolve facts that parties are invited to lead evidence in proof of the facts they deposed to see
Akinsete v. Akindutire (1966) 4 NSCC p. 157 ; Eboh v. Oki (1974) 9 NSCC p. 29; National Bank (Nig) Ltd v. The Are Brothers Nig Ltd (1977) 11 NSCC p. 382; Alagbe v. Abimbola 1978 2SC p. 39.

It is quite clear that the learned trial judge did not consider the affidavit evidence before him, for if he had considered it and gave it the attention it deserves, he would not have reached that decision. As a matter of fact, it is the affidavit evidence that he should have dwelt on, rather than the proof of evidence which he dealt with extensively and went into the merit of the case.
In STATE VS AKAA (2002) 10 NWLR (Pt. 774) 157 at 172. The Court of Appeal stated thus;
"In an application for bail, it is the affidavit evidence before it that a Court should dwell on rather than the proof of evidence. In the instance case, the trial Court failed to consider the affidavit and counter affidavit deposed to by the parties. Rather it dwelt extensively on the proof of evidence thereby going into the merit of the case."

Most importantly, the affidavit must be sworn to and signed or marked by the deponent before the authorized person or officer. By these requirements of the law, an unsworn and unsigned affidavit is worthless. In the absence of the swearing by the deponent, therefore, the declaration will not be as worthy as the paper on which it is made. The person before whom the oath is subscribed must so endorse on the affidavit by indicating, in addition to the official stamp, his name. See Maraya Plastic Industries Ltd v. Inland Bank of Nigeria Plc (2002) FWLR (Pt.120) 1732 at 1737, Oparugo V. Oparugo (2008) 5 NWLR (Pt.1087) 574, Amigo v. Nwoke (2010) 1 NWLR (Pt.1176) 600 and Onujabe v. Idris (2012) (Pt.1284) 285.

Applicants are not allowed to proffer arguments not deposed to in their affidavit. Issues in appeals arise from grounds of appeal, which in turn must be related to the decisions against which appeals lie. Applicants certainly cannot formulate issues that are at variance with the contents of their affidavit and expect a favorable endorsement from the Courts.

This Court has remained resolute on the criteria which justify determination of claims by originating summons. From the seemingly endless number of the decisions of the Court, where the facts are or likely to be in dispute it is improper to commence such action by originating summons. See Pam v. Mohammed (2008) 16 NWLR (Pt. 1112) 1 SC, Doherty v. Director of SSS & Anor v. Agbakoba (1999) 3 NWLR (Pt. 595) 425. In the case at hand where the learned trial Judge in the exercise of his discretion under Order 3 Rule 8 of the Rules of Court proceeded on appellant's amended originating summons, the right procedure is for the lower Court to re-appraise the affidavits and documents of both sides and infer whether or not the facts therein are in such dispute or conflict that a decision one way or another is impossible. If the facts remain in conflict, pleadings are ordered and the matter proceeds accordingly.
InSimon Ezechukwu & Anor v. I. O. C. Onwuka (2016) LPELR-26055 (SC) this Court held as to what conflict or dispute in affidavit evidence means thus:-
"It must outrightly be observed that learned appellants' counsel harbors serious misapprehension as to what conflict in affidavit evidence truly connotes. Conflict as a noun, see Oxford Advanced Learners Dictionary, 8th Edition, denotes a persistent situation of serious disagreement in opposing ideas or wishes which makes preference of one to the other difficult. In legal parlance, therefore, conflict means the persisting violent disagreement in the averments of the contending parties which makes it unsafe, and indeed impossible for the Court, in the face of the disagreement, to prefer from the affidavits of both, the position of one to the other.

Originating Summons is one of the ways of commencing an action. In such an action, pleadings are not filed. Affidavit takes the place of pleadings. Reliance is placed on affidavits and facts are not in dispute.
Originating Summons are thus not suitable for hostile proceedings where the facts are seriously in dispute. So once a suit has been filed by Originating Summons and it becomes obvious that facts are in dispute or the proceedings are likely to be hostile a Writ of Summons would be ordered. Originating Summons can be used in matters that involve interpretation of documents, Statutes, contract etc and it is by no means a procedure to enlarge the jurisdiction of the Court. The striking aspect of suits commenced by Originating Summons is that there are no pleadings or witnesses, and so proceedings are simple and concluded quickly.
See Pam v. Mohammed (2008) 5-6 SC (pt. 1) P.83
Osunbade v. Oyewunmi (2007) 4-5 SC p.98.

An affidavit is a deposition by the deponent stating clearly his factual position on the issue for consideration. So once the facts deposed to in an affidavit have not been controverted, such facts must be taken as true except they are moonshine.
It is only where there are contested allegations of material facts that the Court ought to invite the parties to call oral evidence to resolve the said conflicts. See Akinsete v. Akindutire (1966) 1 ANLR p, 147 Alagbe v. Abimbola1978 2 SC P.39 Efet v. INEC & 2 ors (2011) 1-2 SC (Pt.III) p.61
Inegbedion v. Selo-Ojemen & anor (2013) 1-2 SC (Pt. II) p.59.

It is therefore settled, that the statement of claim, and in our case, the affidavit evidence filed in support of the originating process, determines the cause of action between the parties. See Owuru & Anor vs. Adigwu (2017) LPELR – 42763 (SC). In Ibor vs. Usani & Ors (2015) LPELR – 24670 (CA), this Court per Otisi JCA, relying on AG of the Federation vs.
AG Abia State & Ors (2001) 11NWLR (pt. 725) 689, held the view that it is sufficient for a Court to hold that a cause of action is reasonable once the statement of claim in a case discloses some cause of action or some questions fit to be decided by a judge notwithstanding that the case is weak or not likely to succeed. Eko JSC, in the recent case of CIL.R & A.M. Ltd vs.
Ekiti State Government (2020) 12 NWLR (pt. 1738) 203 AT 247 shed more light on the issue having held that: “For so long as the statement of claim discloses the cause the plaintiff has to complain to the Court against the defendant for violation, infraction or imposition of undue burden on his legal rights or obligations, or raises some questions fit to be decided by the Court or the judge: a reasonable cause is disclosed thereby: Yusuf & Ors vs. Akindipe & Ors (2000)8 NWLR (pt. 669) 376 (SC).
In my view, a reasonable cause of action is disclosed once the statement of claim sets out the plaintiffs legal rights qua the defendants obligations towards him, and goes further to set out the facts constituting the infraction of the plaintiffs legal rights or failure of the defendant to fulfill his obligations towards the plaintiff. See Rinco Construction Co. Ltd. v Veepee Ind. Ltd. & Anor (2005) 9NWLR (Pt. 929)85.
Once the statement of claim discloses a reasonable chance that the plaintiff will succeed, if not traversed, on his allegations as pleaded; a reasonable cause of action will be said to have been disclosed. That is the substance in the English decision in Drummond-Jacokson v. British Medical Association (1970) 1 WLR 688; (1970) 1 ALL E.R 1094 (C.A) cited with approval in Thomas & Ors v. Olufosoye (supra). It is not material at this stage whether the case of the plaintiff is strong or weak.
The only thing important at this stage is whether the Court can decipher from the statement of claim if there is a prima facie triable case or issue or there is a reasonable chance of success if no defense were offered.” See also Rinco Construction Co vs. Veepee Ind. Ltd (supra) and Iliyasu vs. Rijau (2019) 16 NWLR (pt. 1697) 1 AT 22-23. PER BARKA, J.C.A.

The law is settled that generally, a Court of law is not competent to resolve conflict in affidavit evidence without calling oral evidence. There is however exception to this rule, one of which is that where the Court has documentary evidence at its disposal which can aid it to resolve the conflict, it can do so without recourse to oral evidence. See EZEGBU V. F.A.T.B LTD (1992) 1 NWLR (Pt.220) 699 at 720; MAGNUSSON V. KOIKI (1991) 4 NWLR (Pt.183) 119.
​Furthermore, the need to call oral evidence would not arise if the areas of conflict are so narrow or if there are enough documents to assist the Court in the resolution of such conflict. The conflicts in paragraphs 6 and 7 of both the affidavit in support and some paragraphs of the counter-affidavit before the trial Court were highlighted by the Appellants in paragraphs 3.5, 3.7, 3.8, 3.10, 3.11, 3.16, 3.18, 3.19, 3.20, 3.22 etc of their brief. PER HELEN MORONKEJI OGUNWUMIJU, J.S.C.
It is a general principle of law of evidence that where there are irreconcilable conflicts on material facts in the affidavit evidence filed by the parties before the Court over a matter in dispute, such conflicts can only be resolved by calling oral evidence.
In Momah v V.A.B Petroleum Inc. [2000] 4 NWLR (pt. 654) 534, this Court, per Achike JSC, held: “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 Court is confronted with conflicting or contradictory evidence relied on by 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 Uku v Okumagba [1974] 3 SC 35, Eboh v Oki [1974] 1 SC 179, Olu-Ibukun v Olu-Ibukun [1974] 2 SC 41, Falobi v Falobi [1976] 1 NMLR 169 and Nwosu v Imo State Environmental Sanitation Authority [1990] 2 NWLR (pt.135) 688. The most important qualification here is “material facts.” The test, therefore would be, whether the oral evidence, if allowed, will likely resolve crucial issues in the substantive action. – PER CHIMA CENTUS NWEZE, J.S.C.

The averments in the affidavits are seriously conflicting, oral evidence is needed to resolve the conflict. The conflict is on the one of the core issues before the lower Court. The required evidence has not been adduced. In taking this appeal, there is the need for circumspection in order not to predetermine the matter before the lower Court. AUGIE JSC, had this to say on this point” “It is the opinion appealed against that is affirmed or reversed and this Court cannot undertake decision which may be of most importance without hearing what the Court below had to say about it. See UOR VS.
LOKO (1988) 2 NWLR (PT 77) 430 (SC), AJUWON V. ADEOTI (1990) 2NWLR (PT. 131) 271 SC.” PER AWOTOYE, J.C.A.

The position of the law is settled that the content of an affidavit can only be challenged by a counter-affidavit. The Court is required to treat unchallenged and uncontroverted depositions of facts in an affidavit as duly established. See MABAMIJE V. OTTO (2016) 13 NWLR (PT. 1529) 171 (SC), OGOEJEOFO V. OGOEJEOFO (2006) 3 NWLR (PT.966) 205 (SC), UJOMU V. OLAFIMIHAN (2021) 19 NWLR (PT. 1784) 331 CA. PER ONYEMENAM, J.C.A.

It is settled law that what pleadings is to a party is what an affidavit is to a party in an interlocutory application or even in certain substantive or originating process and any document attached to an affidavit is part of the affidavit and must be considered together. See UBN PLC v. ASTRA BUILDER (W.A) Ltd (2010) LPELR-3383(SC). PER HELEN MORONKEJI OGUNWUMIJU, J.S.C ​

​ It is trite that uncontroverted facts contained in an affidavit are taken as true and require only minimal proof. See UNION BANK OF NIGERIA PLC VS. PETRO UNION OIL & GAS CO. LIMITED (2022) 7 NWLR (PT. 1829)199; DANIEL VS. AYALA (2019) 18 NWLR (PT. 1703)25; PLATEAU STATE HEALTH SERVICES MANAGEMENT BOARD VS. GOSHWE (2013) 2 NWLR (PT. 1338)338; CAPPA AND D’ALBERTO LIMITED VS. AKINTILO (2003) 9 NWLR (PT. 824)49. PER AYODEJI, J.C.A.

On the submission that the learned trial Judge resolved material conflicts in the affidavits, without calling oral evidence, the law generally is that where there are conflicts in the affidavit evidence of contesting parties on fundamental issues in a matter, the Court should have recourse to oral evidence to resolve the conflict. The Court is not permitted to prefer one deposition to the other. See MAY MEDICAL CLINIC AND DIAGNOSTIC CENTRE LTD. V. FIRST BANK PLC. (2001) 9 NWLR (PT. 717) 28. SEE ALSO EIMSKIP LTD V. EXQUISITE INDUSTRIES (NIG) LTD (supra) cited by the Appellant’s Counsel.
However, there are exceptions to this general principle of law. One of such exceptions is where there is/are documentary evidence before the Court from which to resolve the conflict, the oral evidence may be dispensed with. Indeed, it becomes unnecessary and the Court can resolve the material conflict by resorting to the documentary evidence that supports one of the affidavits. See OLU-IBUKUN V. OLU-IBUKUN (1974) 2 SC 41, U.B.A. PLC. V. OKON EFFIONG (2011) LPELR-8939, DANA IMPEX LTD V. AWUKAM (2006) 3 NWLR (Pt. 968) 544.
In the case at hand, the learned trial Judge resorted to MOJ I which supports the Respondents’ case that CA/K/200/2020 AMINA AUDI WAMBAI, JCA Page 30 OF 34. PER WAMBAI, J.C.A.

It is not enough to merely depose in an affidavit that counsel is to blame for the failure to do this or that and leave it at that. The applicant must demonstrably show that (a) he himself, was in no way responsible for the delay or did not contribute to the delay; and (b) That counsel was duly instructed in time and that the failure to appeal within the prescribed time was solely due to counsel’s negligence or inadvertence. CHIMA CENTUS NWEZE, J.S.C.