I believe that the best way to learn affidavit evidence is by giving scenarios and providing the answers. By so doing, the position of the Law will be committed to our memory. I have carefully prepared case scenarios as well as answers, based on the current position of the Law.
This article is therefore important to both Legal Practitioners and Law students. Believe me, you will find this article very helpful for any of your legal needs as it concerns Affidavit Evidence.
Definition and Legal Framework
Before we get into the case scenarios, lets us quickly look at preliminary concepts such as:
A. Legal Framework Affidavits. That is the law governing affidavits in Nigeria:
The principal law that governs affidavits in Nigeria is the Evidence Act 2011. The Act is very comprehensive and it provides the foundations for the admissibility of Affidavits in Court. This rules also includes the form, contents, deposition and persons with the authority to receive affidavits etc. Also it is very important to add that Case laws constitute a major source of law governing affidavit in Nigeria.
B. Definition of Affidavits:
An Affidavit is simply written statement depose to by a witness and confirmed by oath or affirmation, for use as evidence in court.
Section 107 of the Evidence Act provides that the 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.
Case Scenario – Position of the Law on Affidavit Evidence
A Nweke deposed an affidavit dated on the 10th day of Dec. 2017 and it was done before the Professor of law who was equally a Senior Advocate of Nigeria. (SAN). During the trial, Nwanchor’s lawyer raised a preliminary objection saying that the affidavit was wrong in law since it was stated/deposed before somebody who was not authorized to receive the affidavit.
Questions
Q-1.A: What is the legal implication of the objection?
Q-1.B: An affidavit is supposed to be a statement in form of an oath, where someone deposes to his believe or information available to him. What does the law say should not be contained in an affidavit?
Solutions
ANS- 1.A: “Whether or not the preliminary objection raised by Nwanchor’s lawyer was justifiable in law.”
Section 109 of Evidence Act provides that any affidavit sworn before any judge, officer or other person duly authorized to take affidavits in Nigeria may be used in the court in all cases where affidavits are admissible. Thus, the following persons in Nigeria are qualified to take affidavit.
- A commissioner for oath usually court Registrar
- A notary Public
- Affidavit sworn outside Nigeria as provided by section 110.
- Affidavit sworn before a judge or magistrate must be authenticated with official seal.
- Affidavit sworn before a notary public, British commissioner or consular.
More so, according to Section 112 Evidence Act, affidavit sworn by certain person otherwise that person dully authorized are in admissible.
Thus, a professor of law and a San those not qualify as a person dully authorized to take affidavit within the meaning of Section 109 of Evidence Act.
Therefore, given the above principles, the preliminary objection of Nwanchors lawyer is bound to succeed.
ANS- 1.B: Generally, Section 115 of Evidence Act provides that every affidavit used in courts must contained Statements of facts and circumstance to which the witness deposes the affidavit of his own knowledge or from knowledge which he believes to be true.
Thus, an affidavit should not contain extraneous matter which are:
- Objections
- Prayers
- legal argument
- Conclusion
See also: What is Mandamus and Example in Nigeria Legal System
General Rules governing Affidavit
Sections 107 – 120 of the Evidence Act 2011 makes the general rules of affidavits. These rules are as follows:
- Every affidavit used in the court shall contain only statements of fact and circumstances to which the witness deposes, either of his personal knowledge or from information which he believes to be true.
- No affidavit shall contain extraneous matter by way of objection, prayer or legal argument or conclusion.
- When a person deposes to his BELIEF in any matter of fact and his belief is derived from any source other than his personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.
- Where the deponent’s belief is received from another person, the name of his informant shall be stated and reasonable particulars shall be given respecting the informant, time and place of the information.
What is the Position of Law when any of the rules of Affidavit is breached?
Section 113 of the Evidence Act provides that 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.
Also, by virtue of Section 114 of the same Evidence Act, A defective or erroneous affidavit may be amended and re – sworn by leave of the court, on such terms as to time, costs or otherwise as seem reasonable.
By the foregoing provisions, it is clear that where Affidavit was duly sworn before a person duly authorized to receive Affidavit, any defects as to form is not fatal.
What happens when a paragraph of an Affidavit offends the any of the rules of Affidavit?
The position of the law is clear that No affidavit shall contain extraneous matter by way of objection, prayer or legal argument or conclusion. Where a paragraph to an affidavit is seen to have contained any of the above, the position of the Law is that such parapgraph should be struck out.
See the following cases:
- The Court of Appeal in the case of NIGERIA L.N.G. LIMITED V AFRICAN DEVELOPMENT INSURANCE COMPANY LIMITED (1995) 8 NWLR (Pt. 416) 677 at Page 698
- The Supreme Court has held that such paragraph of an affidavit which contain extraneous matter by way of objection, prayer or legal argument or conclusion should be struck out. See BAMAIYI V. STATE [2001] 8 NWLR Pt. 715. [SC]. per Uwaifo J.S.C.
Conclusion on Case Scenario – Position of the Law on Affidavit Evidence
We hope that with this problem question and the answers provided, you have been able to understand the position of the Law as it concerns Affidavit. If you have further question or contribution to make on this article, kindly use the comment section below and let us know.
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