Nature of Affidavit Evidence #
Under the rule of practice on filing and exchange of affidavit evidence, a party upon being served with a Counter-Affidavit containing a denial of the party’s allegation ought to file a further affidavit to counter the denial of his allegation. The effect of a failure to counter the averments in the counter-affidavit is that the facts averred or deposed to therein prevail and are to be relied upon by the Court. This is in accord with the principle that preponderance of evidence, the burden of proof lies on the party or person who would fail if no evidence is adduced – NATIONAL INSURANCE COMMISSION VS. AMINU (2011) LPELR-19751, LAWSON-JACK VS. SPDC (NIG.) LTD. (2002) LPELR-1767, NIGERIA ARMY V. FALMATA DUNOMA & ANOR (2021) LPELR-52654(CA).
The law is settled that when a party disbelieves an assertion in an affidavit or counter-affidavit, the best way to dispute/challenge it is to file a further or better affidavit to counter same, rather than attempting to do so by oral argument in Court. This is obviously because arguments cannot substitute evidence. In cases fought on affidavits, the evidence adduced before the Court is what is averred in the affidavits before the Court. Thus, where a party disagrees with or challenges the content of an affidavit and has evidence to challenge it, the only way to bring it to the attention of the Court is by way of a duly sworn affidavit – Anakpe V AG Federation (2018) LPELR-44620(CA) 10; Forson V Calabar Municipal Govt. (2003) LPELR-7273(CA) 19; Owuru V Adigwu (2017) LPELR-46763(SC); Henry Stephens Engineering Ltd V S.A. Yakubu (2009) LPELR-1363(SC).
Difference between Witness Statement on Oath and Affidavit Evidence #
There are a plethora of cases by which it has been settled that witness statement on oath which should accompany a writ of summons is not the same as an affidavit and need not comply with the provisions of the Evidence Act, 2011. Once an affidavit is deposed to as required by law, it becomes evidence on which the Court can rely and reach a decision in appropriate cases. A statement on oath does not become evidence until the maker/deponent adopts same as his evidence after being sworn as a witness before the Court – MORKA & ORS v. OSADEME (2022) LPELR-58131(CA).
Legal Requirements Regulating the Drafting of Affidavits #
Sections 107 – 120 of the Evidence Act 2011
Defective Affidavits #
When an Affidavit is Defective in form only – #
NTIERO v. CALABAR SOUTH LOCAL GOVT COUNCIL & ANOR (2022) LPELR-56988(CA)
“There is no denying the facts that Section 117 (1) (a) of the Evidence Act aforesaid provides that every affidavit taken in a cause or matter shall be headed in the Court and in the cause or matter. However, Section 113 of the said Evidence Act permit an affidavit to be used, notwithstanding that it is defective in form provided that the Court is satisfied that it has been sworn before a person duly authorized. In ONUJABE & ORS V IDRIS (2011) LPELR-4059, this Court has reaffirmed the correct legal position that affidavit taken in a cause or matter shall be headed in the Court and in the cause or matter and hence where a deponent decides to swear to an affidavit, the same should be titled the Court where he will depose to the affidavit and before a commissioner for oaths. In that case, it was found that the defect was both in substance and in form not only on the basis of the fact that the affidavit in support of the application before the Court was wrongly titled but because the affidavit was not sworn to before the person duly authorized such as the commissioner for oaths. The Court was emphatic that the defect in title can be remedied under Section 84 now 113 of the Evidence Act because the defect is in form.” Per MUHAMMED LAWAL SHUAIBU, JCA (Pp 5 – 6 Paras D – C)
Hearsay and Affidavit Evidence #
The general principle of law is that hearsay evidence is inadmissible except as provided for under the Evidence Act or any other law – Section 38 of the Evidence Act 2011, IFEGWU Vs. UBN PLC (2011) 16 NWLR (Pt. 1274) 555 at 588, GUFFANTI (NIG) PLC Vs. PIDRELLA INSTALT – VADUZ & ORS (2012) LPELR – 8027 (CA). The pertinent questions that arise are – Does the position of the law on hearsay evidence apply to documents attached to affidavits or contents of an affidavit? And when will this position of the law apply?
In ADEBANJO V BROWN (1990) 6 SCNJ 1 the Supreme Court had opined that hearsay in an affidavit is admissible, provided the source and grounds of information or belief are disclosed therein. Similarly, in the later case of ALADUM v. OGBU & ORS (2023) LPELR-59995(SC) the Apex Court again held that affidavit evidence formidably constitutes an exception to the general rule against hearsay. See also; PDP v. AMIN & ANOR (2019) LPELR-48096(CA).
It is instructive to note that an affidavit only scales the hurdle of hearsay evidence when the deponent discloses the source of his information when such information does not arise from his personal knowledge. It is only when a deponent withholds the source(s) of his information that such an affidavit can be termed to be hearsay and therefore inadmissible as being contrary to Section 115 of the Evidence Act – PDP & ANOR Vs. PHILIPS & ANOR (2010) LPELR – 8980 (CA), ALL JAAFARIYYA DEVELOPMENT ASSOCIATION & ANOR v. GOVERNMENT OF KANO STATE & ORS (2021) LPELR-57168(CA), APC v. MOGHALU & ORS (2022) LPELR-56993(CA), JIMOH v. HON. MINISTER FEDERAL CAPITAL TERRITORY & ORS (2018) LPELR-46329(SC)
Case Law Excerpts #
ALADUM v. OGBU & ORS (2023) LPELR-59995(SC) –
Instructively, hearsay is generally considered as one of the most complex subjects (aspects) of the law of evidence. As aptly remarked by Cross: Assertions of persons other than the witness who is testifying (including statements relied on as equivalent to assertions, although not primarily intended as such by their maker, and conduct relied on as conduct equivalent to the actor’s assertion of any fact other than his contemporaneous state of mind or physical sensation, although not so intended by him) are inadmissible as evidence of the truth of that which are asserted. See Ru-per-Cross: THE SCOPE OF THE RULE AGAINST HEARSAY; CHIMA IJIOFFOR VS. THE STATE (2002) NWLR (pt. 718)371; (2001) 4 SC (pt. Il) 1 (2001) LPELR-1465 (SC) per Achike, JSC @ 43 paragraphs D-G. Apart from Section 83 of the Evidence Act (supra), there are other exceptions to Hearsay Rule:
(i) Dying Declaration-Section 40 of the Evidence Act:
(ii) Statement made in the course of business: Section 41. Evidence Act
(iii) Declaration against interest: Section 42 Evidence Act:
(iv) Declaration as to Public Right or Custom: Section 43 E.A;
(v) Declaration as to the Existence of Relationship; Section 44 E.A:
(vi) Declaration by Testators: Section 45 (1);
(vii) statements made in previous proceedings: Section 46 EA
(viii) Evidence of Corporate bodies though legal personalities are not natural persons, therefore, they require a natural person to speak, act and function on their behalf. See KATE ENT. LTD VS. DAEWOO, ISHOLA VS. S.G BANK LTD.
(ix) Evidence of Medical Expert about the condition of a patient whom he treats who could not talk at the time he was brought for medical attention is equally admissible.
(x) Affidavit Evidence: Section 115(3) of the Evidence Act.
It is trite, that a party in a suit can dispense with the requirement of calling a witness through the use of an affidavit. Section 115 (3) of the Evidence Act provides: “When a person deposes to his belief in any matter of fact and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief. He should state the name of his informant, date and circumstances in which the information was made and also state that he believes the statement to be true. See ORJI VS. ZARIA INDUSTRIES LTD (supra). Thus, in the light of the foregoing far-reaching postulation, I would want to hold, that the Court below was in a serious error when it discountenanced Exhibit UG 2 on the misconceived notion that it had amounted to a hearsay.” Per IBRAHIM MOHAMMED MUSA SAULAWA, JSC (Pp 22 – 25 Paras F – C).
GTI ASSET MANAGEMENT & TRUST LTD v. OYO STATE GOVERNMENT & ANOR (2022) LPELR-58765(CA)
“Section 115 sub-sections (3) and (4) of the Evidence Act, 2011 which provide thus: “115 (1) … (2) … (3) When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief. (4) When such belief is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place and circumstance of the information.” The deponent – Ifeanyi Nwokolo, Esq; who stated that he deposed to facts “from the documents made available to me by” the appellant “as well as information brought to my attention” ought to have proceeded to state the following: (a) the name of his informant, from whom the facts deposed to were received; (b) the particulars of his informant, the time, place and other reasonable circumstances of the information; and (c) the facts and circumstances which grounded his belief in the information supplied to him. Having regard to the circumstances under which the counter-affidavit was deposed, the depositions therein ought to have been received with circumspection and treated as hearsay counter-affidavit evidence. Such hearsay affidavit is not relevant to judicial proceedings of the nature of the respondents’ application for summary judgment.” Per MOORE ASEIMO ABRAHAM ADUMEIN, JCA (Pp 27 – 28 Paras A – C).
IBETO & ANOR v. OGUH (2022) LPELR-56803(CA)
“The rather forceful submission of learned counsel for the Respondent to the effect that ‘a deponent of an affidavit is a witness that can depose to facts that are within his personal knowledge or information which he believes to be true and same will be admitted in Court as evidence and not treated as hearsay provided that such deponent disclosed the source of his/her information’ clearly loses sight of the probative value or forensic utility of such evidence. Whilst it is correct that Section 115(4) of the Evidence Act 2011 permits a deponent to swear to facts derived from a third party in an affidavit insofar as the source of his information is properly disclosed, such depositions are of very little forensic Utility as they constitute hearsay evidence. The factum that such information was given is all that there is to such information, but qualitatively, the truth of such information is a different thing entirely: it is hearsay evidence as to the truth which remains inadmissible. See ORUNOLA v ADEOYE [1995] 6 NWLR (PT. 401) 338 at 353 -per Nsofor JCA and NIGERIA PORTS AUTHORITY v AMINU IBRAHIM & CO. supra at 500 – 501 – per Agbo JCA. Hearsay is evidence given by a person who cannot vouch for the truth thereof. It is a piece of evidence which does not derive its value solely from the credit given to the witness himself, but rests in part on the veracity and competence of some other person e.g. the statement of a person who is himself not called as a witness but what he said is repeated by another witness who is called. See OJO v GHARORO (2006) 2 – 3 SC. 105, AROGUNDADE v STATE (2009) LPELR-559(SC) and SUBRAMANIAM v PUBLIC PROSECUTOR (1956) 1 WLR 965 at 969. That is why it is always ill-advised for a lawyer or his clerk or secretary to depose to facts intended to prove a case as they are not in any position to vouch for the truth or accuracy of information derived from clients. Even the evidence of an employee of a company who was not directly involved in a transaction is to be treated with caution as it is scarcely of equal stature with, and may be insufficient to contradict the evidence adduced by the adverse party who was directly involved in the transaction. See KATE ENTERPRISES LTD v DAEWOO NIG LTD [1985] 2 NWLR (PT. 5) 116 where the Supreme Court held that any employee of a company who is conversant with a transaction is competent to testify in Court on behalf of the company, and not only those who were directly involved in the transaction, but proceeded to sound a note of caution that even though the evidence adduced by an employee who was not directly involved in a transaction is admissible, the question of the weight or probative value to be ascribed to his/her evidence is an entirely different matter. In the instant case, the evidence in support of the Respondent case was based entirely on the affidavit evidence of Chisom Ibe: a lawyer’s clerk who deposed to facts based on information derived from the Respondent. To the extent that the averments contained in the affidavit of Chisom Ibe seek to establish the truth of the transaction between the Appellants and the Respondent, they constitute inadmissible hearsay and incapable of sustaining the Respondent’s claim before the lower Court.” Per PETER OYINKENIMIEMI AFFEN, JCA (Pp 77 – 80 Paras F – E)
Do Documents Attached to Affidavit Have to be in Admissible Form? #
It is now settled law that documents attached to or exhibited with an affidavit form part of the affidavit. Consequently, when a matter is heard on affidavit evidence and the documentary evidence relied upon was attached to the affidavit and formed part of the evidence adduced in the case, the effect is different from where it is a case fought on pleadings, where the pleadings does not constitute evidence. The affidavit is evidence which a Court can act upon and a document attached to an affidavit forms part of the evidence adduced by the deponent and being evidence already before the Court, the formalities and conditionalities for its admissibility are dispensed with, since being affidavit evidence it has already been admitted in evidence before the Court.
In other words, documents attached to an affidavit are deemed to be properly before the Court to be used, once the Court is satisfied that it is credible. Being already an evidence before the Court (on oath), the formality of certification for admissibility (if it required certification) is dispensed with. The reason for this is easy to deduce, the first being that affidavit evidence is already admitted evidence before the Court unlike pleading, which must be converted to evidence at the trial, at which time issues of admissibility of an exhibit is decided. The second point is that an exhibited copy of a document attached to an affidavit evidence must necessarily be a photocopy or secondary copy (except where the document was executed in several parts or counterparts and the deponent has many of the parts to exhibit in original forms).
The Supreme Court decisions of AONDOAKAA vs. OBOT (2021) LPELR (56605) 1 at 35-37, Magnusson vs Koiki (1993) 12 SCNJ 114; (1993) 9 NWLR (Pt. 317) 287 @ 303 C, EZECHUKWU & ANOR v. ONWUKA (2016) LPELR-26055(SC), GUSAU v. LAWAL & ORS 2023 LPELR-60152 (S.C.)
See Also; Ilorin East Local Government vs Alasinrin & Anor (2012) LPELR 8400 (CA), B.A.T (Nig) Ltd vs International Tobacco Co. Plc (2013) 2 NWLR (Pt. 1339) 493 @ 520-521 D-A, EZECHUKWU vs. ONWUKA (2016) LPELR (26055) 1 at 37, ANUEBUNWA vs. A-G, FEDERATION (2020) LPELR (51434) 1 at 18-19 and THE NIGERIAN AIR FORCE vs. CHIA (2021) LPELR (53923) 1 at 56-58, HASHIM v. ASO SAVINGS & LOANS PLC (2022) LPELR-57061(CA).
Relying on the position as stated above, in the Supreme Court case of – AONDOAKAA vs. OBOT (2021) LPELR (56605) 1 at 35-37 it was held that copies of public documents attached to an affidavit as exhibits need not be certified true copies because the documents already form part of the evidence adduced, by the deponent before the Court and are available to the Court to use once it is satisfied that they are credible.
Case Law Excerpts #
GUSAU v. LAWAL & ORS (2023) LPELR-60152(SC)
“When a matter is fought on affidavit evidence or where a document is attached to an affidavit in a matter, any document attached thereto forms part of that affidavit and is therefore already in evidence before the Court. It should be borne in mind that an exhibited copy of a document attached to an affidavit must necessarily be a photocopy or secondary copy, except where the document was executed in several parts or counterparts and the deponent has many of the parts to exhibit in original forms. Hence, it is not expected that the primary or original copy should be produced and attached to all the copies of the affidavit. Where the document is a public document, the requirement of certification can be dispensed with as long as the document is credible and the contents are not in dispute or challenged. See AONDOAKAA V. OBOT & ANOR (2021) LPELR – 56605 (SC); EZECHUKWU & ANOR V. ONWUKA (2016) LPELR – 26055 (SC); MAGNUSSON V. KOIKI (1993) 12 SCNJ 114.” Per ADAMU JAURO, JSC (Pp 21 – 22 Paras C – B).
HASHIM v. ASO SAVINGS & LOANS PLC (2022) LPELR-57061(CA)
“The Appellant has challenged the reliance by the lower Court on ‘Exhibit ASO H’, contending that the said exhibit did not satisfy the precondition in Section 84 of the Evidence Act since it is a computer generated document. Let me start by saying that this matter was heard on affidavit evidence and the documentary evidence relied upon was attached to the affidavit and formed part of the evidence adduced in the case. This is in contradistinction to where it is a case fought on pleadings, where the pleadings does not constitute evidence. The affidavit is evidence which a Court can act upon and a document attached to an affidavit forms part of the evidence adduced by the deponent and being evidence already before the Court, the formalities and conditionalities for its admissibility are dispensed with, since being affidavit evidence it has already been admitted in evidence before the Court. I can do no better than refer to the recent decision of the apex Court in this regard. By some uncanny coincidence, it is a decision in which the learned senior counsel for the Appellant in this matter was the Appellant. Here my Lord, Kekere-Ekun, JSC in AONDOAKAA vs. OBOT (2021) LPELR (56605) 1 at 35-37: “In a matter fought on affidavit evidence, the documentary evidence relied upon is attached to the affidavit and therefore forms part of the evidence adduced in the case before the Court. The distinction between averment of facts in pleadings and averment of facts contained in an affidavit was explained by this Court in Magnusson vs Koiki (1993) 12 SCNJ 114; (1993) 9 NWLR (Pt. 317) 287 @ 303 C, as follows: ‘Averments of facts in pleadings must be distinguished from facts deposed to in an affidavit in support of an application before a Court. Whereas the former, unless admitted constitutes no evidence, the latter are by law, evidence upon which a Court of law may, in appropriate cases, act.’ The holding of Mbaba, JCA in Ilorin East Local Government vs Alasinrin & Anor (2012) LPELR 8400 (CA) referred to and relied on in the case of: B.A.T (Nig) Ltd vs International Tobacco Co. Plc (2013) 2 NWLR (Pt. 1339) 493 @ 520-521 D-A, following the reasoning in Magnusson vs Koiki (supra), is quite instructive. His Lordship held, inter alia: ‘I have already held that a document attached to or exhibited with affidavit forms part of the evidence adduced by the deponent and is deemed to be properly before the Court to be used, once the Court is satisfied that it is credible. Being already an evidence before the Court (on oath), the formality of certification for admissibility (if it required certification) had been dispensed with … The reason for this is easy to deduce, the first being that affidavit evidence is already admitted evidence before the Court unlike pleading, which must be converted to evidence at the trial, at which time issues of admissibility of an exhibit is decided. The second point is that an exhibited copy of a document attached to an affidavit evidence must necessarily be a photocopy or secondary copy (except where the document was executed in several parts or counterparts and the deponent has many of the parts to exhibit in original forms).'” I kowtow. See also EZECHUKWU vs. ONWUKA (2016) LPELR (26055) 1 at 37, ANUEBUNWA vs. A-G, FEDERATION (2020) LPELR (51434) 1 at 18-19 and THE NIGERIAN AIR FORCE vs. CHIA (2021) LPELR (53923) 1 at 56-58.” Per UGOCHUKWU ANTHONY OGAKWU, JCA (Pp 35 – 37 Paras A – F)
