Affidavit Evidence and its Requirement on ‘Facts’ Rather than ‘Law’: A Point of Order for Nigerian Lawyers!

By: Hameed Ajibola Jimoh Esq.

The requirements of an affidavit have been clearly defined by the Evidence Act, 2011-herein after referred to as the EA. Most specifically, section 115(2) of the EA has restricted what an affidavit should contain especially, to such restriction that an affidavit shall only contain ‘facts’ and nothing more or less than ‘facts’, necessitating the affidavit evidence. From my experiences as a private lawyer and a full-time litigation lawyer, and having read through over fifty (50) affidavits of the opposing lawyers in the various proceedings in the courts of law, I am of the firm view that there is indeed the need for some Nigerian lawyers to be abreast of the requirements of an affidavit as evidence since an affidavit constitutes a piece of evidence in its own self.

There is also the need for adequate training professionally, (maybe by the Nigerian Bar Association Council of Legal Education, as part of the Mandatory Continuous Legal Education) on what an affidavit constitutes and the necessary requirements of the law in regard to an affidavit. What I have also observed from all those affidavits that I have studied is a little apprehension or little understanding of what constitutes ‘facts’ as required by the EA. ‘Facts’ are definitely different from ‘law’.

On the general rules relating to an ‘affidavit’, sections 107 – 120 of the EA, provide the general rules of affidavits 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’.

Furthermore, in my humble submission, the statutory provisions of the requirements of an affidavit under the EA is that it is ‘facts’ that an affidavit should and or shall contain and not ‘law’. By virtue of section 258(1) EA, “Fact” includes – (a) anything, state of things, or relation of things, capable of being perceived by the senses; (b) any mental condition of which any person is conscious;’. Also, “Fact in issue” under the same section, includes any fact from which either by itself or in connection with other facts the existence, non-existence, nature or extent of any right, liability, or disability asserted or denied in any suit or proceeding necessarily follows;’. 

By virtue of section 121 of the EA, A fact is said to be – (a) “, proved” when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it does exist; (b) “disproved’ when after considering the matters before it, the court either believes that it does not exist or considers its non – existence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it does not exist; (c) “Not proved” when it is neither proved nor disproved.’.

I agree with Jide Olakanmi of Jide Olakanmi & Co., LawLord Publication, 2015, Abuja, at page 109, where he stated and succinctly put the issue thus ‘A fact should be distinguished from the law. A court of law is presumed to know the law since the rule of law could be shown to exist by making references to the statute which enacts it or to the decision of the court which embodies it or to relevant authoritative textbooks. Opinions differ from facts.

Opinions are formed by individual persons on facts. Opinions are subjective because they vary from person to person on the same facts. Relative to its nature, the opinion of a witness is not allowed to be given in evidence (note the exception in expert opinion). It is the function of the court to form its opinion as to the effects of facts adduced before it. But, the opinion of the court must be based on the facts before it; it is not allowed to bring in extraneous matter.’.

Therefore, it is the law (which has not changed to date under the EA) that an affidavit ‘shall’ contain only facts and shall not contain: legal arguments; and or legal opinions; and or point of law; and or conclusion, and or extraneous matters, contrary to section 115(2) of the EA and the decision of the Supreme Court of Nigeria in the case of BUHARI V. INEC & ORS (2008) LPELR-814(SC) and a host of other cases, else, such an affidavit or such paragraph of the affidavit which breaches the section 115(2) of the EA shall be incurably and fundamentally defective and incompetent warranting the Honourable Court to strike out and or dismiss same. 

I humbly rely on the decision of the Supreme Court of Nigeria in the case of Josion Holdings Ltd. & 33 Ords. V Lormamead Limited (1995) 26 LRCN 1 at 11 and the Court of Appeal of Nigeria’s decision in the case of Chief Francis B. Edu and 3 others v Commissioners for Agriculture, Water Resources and Rural Development (2001) F.W.L.R. (Pt. 55) 433. For instance, in Chief Edu’s case (supra), the Court of Appeal held on page 453 at para. D that ‘sections 86, 88 and 89 of the Evidence Act, 1990 (now section 115, emphasis is mine) are mandatory or obligatory and non-compliance is bound to lead to the rejection of the affected paragraphs of the affidavit’.

Also, the Courts (i.e. including the Apex Court of Nigeria) in the above-cited cases have held that ‘No legal argument, conclusion or other extraneous matter must be included in an affidavit’. Therefore, I humbly submit that the Honourable Court has the power to also indeed strike out the entire affidavit evidence which is in breach of the said section 115(2) of the EA based on the decision of the apex Court in BUHARI V. INEC & ORS (2008) LPELR-814(SC) where it was held that:

 “…a Court of law is not competent to pick depositions in affidavit which are consistent with Section 86 of the Evidence Act and ignore those which violate Section 87 of the Act. The Court of Appeal was therefore right in rejecting the depositions. See generally Nneji v. Chukwu (1988) 3 NWLR (Pt. 81) 184; FMG v. Sani (No.2) (1989) 4 NWLR (Pt. 117) 624; Abu v. Alele-Williams (1992) 5 NWLR (Pt. 241) 340; Nigerian LNG Limited v. African Development Insurance Co. Limited (1995) 8 NWLR (Pt. 416) 677; Eze v. Okolonji (1997) 7 NWLR (Pt. 513) 515; Finunion Ltd. v. MV Briz (1997) 10 NWLR (Pt. 523) 95.”Per NIKI TOBI ,JSC (P. 115, paras. C-F)”.

It was also held in the case of SAMI V. APC & ORS (2019) LPELR- 48045 (CA) that: “With respect to paragraphs 3(j), (k), and 4, I am in total agreement with the submission of the appellant’s counsel that they are legal conclusion and argument and to that extent offensive to section 115(2) of the Evidence Act. These paragraphs of the counter-affidavit being so offensive and poisonous have also contaminated the other paragraphs which have also become as poisonous as the offensive paragraphs rendering the entire counter-affidavit liable to be struck out as the Court cannot and should not make any attempt to pick and choose the contaminant from the contaminated.

See BUHARI v. INEC (2008) (Supra) at para D. per Tobi where the law lord had this to say: “It is my view that the depositions which complied with Section 86 of the Evidence Act cannot save the entire depositions, as they are drowned by those which violated Section 87 of the Act. This is because a Court of law is not competent to pick depositions in affidavit which violate Section 87 of the Act. The Court of Appeal was therefore right in rejecting the depositions. Per AMINA AUDI WAMBAI, JCA (P. 24, paras. A-F).  (Underlining is ours for emphasis). 

I equally humbly submit that the paragraphs and the depositions therein of the purported affidavit having derailed from statements of facts to include issues of law are liable to be struck out for also offending S.115 (2) of the EA. Furthermore, I humbly submit that laws are not facts and deposing to law instead of facts offends SECTION 115 (2) OF THE EA. In UBAKA & SONS LTD VS. EZEKWEM & CO (2000) FWLR (PT. 1), 77 AT P. 86, RATIO 4, it was held that ‘an affidavit that contains conclusion, prayer, argument or point of law offends SECTION 87 (now S.115 (2)) OF THE EVIDENCE ACT. SEE: SODIPO V. LEMMINKAINEN OY (1992) 8 NWLR (PT. 258) 229 AT 244, PARA. E. 2.36’. 

It should however be observed that where such affidavit or entire paragraphs of the affidavit have been struck out by the Court, it therefore means that nothing is placed before the Honourable Court by the said party in his application for the Honourable Court to therefore rule on than for the Court to dismiss the said application or process that is lacking in evidence, the said application having thereby become incompetent. Also, it is a trite law that one cannot place such an application on no law or no legal basis and expect it to stand.

See: the case of Macfoy v United African Company Limited PC 27 Nov. 1961. Also, I humbly submit that the use of the word ‘shall’ in section 115(2) of the EA connotes that the requirement to ‘facts’ rather than law’ in an affidavit is ‘mandatory’. In the case of Dr. Arthur Agwuncha Nwankwo and Ors V. Alhaji Umaru Yar’Adua and Ors. (2010) LPELR-2109(SC), the apex Court held as follows on the interpretation to be accorded the word ‘shall’ in a statute, “The word shall when used in a statutory provision imports that a thing must be done. It is a form of command or mandate. It is not permissive, it is mandatory. The word shall in its ordinary meaning is a word of command which is normally given a compulsory meaning as it is intended to denote obligation. Bamaiyi V. A.G. Federation (2001) 12 NWLR Pt. 722 pg. 468 Ifezue V. Mbadugha (1984) 1 SCNLR pg. 427 Chukwuka V. Ezulike (1986) 5 NWLR pt. 45 pg. 892, Ngige V. Obi (2006) 14 NWLR pt. 991, pg. 1.” See also Chika Madumere and Anor V. Barrister Obinna Okwara and Anor (2013) LPELR-20752(SC).

Furthermore, I thought of asking or enquiring about a question as to ‘why would it be fundamental and fatal to such an extent that the depositions which complied with Section 86 of the Evidence Act cannot save the entire depositions which offend against the said section 115(2) EA, which makes them (all) drowned by those which violated Section 87 of the Act and to ask or enquire ‘why is a Court of law not competent to pick depositions in an affidavit which violate Section 87 of the Act? The answer to these questions in my humble view, is because, provisions of a statute must be complied with by every court of law and in fact, every person.

In I.N.E.C. v. Action Congress [2009] 2 NWLR (Pt.1126) 524 P. 616, paras D-F, where Per Salami, J.C.A. posit thus:-“Where a method or manner of discharging responsibility is stipulated by a statutory provision it is that method that must be employed: See Co-operative and Commerce Bank Nigeria Plc v. Attorney-General of Anambra State (1992) 8 NWLR (Pt. 261) 528, 556 para. G, the Supreme Court stated as follows: -“Now, it is the law that where a statute provides for a particular method of performing a duty regulated by the statute, that method, and no other must have to be adopted” In Nuhu Sani Ibrahim v. INEC & Ors. (1999) 8 NWLR (Pt. 614)334, 352 paras. E-F, this court per Salami, JCA said that – “It is settled law that where a legislation lays down a procedure for doing a thing, there should be no other method of doing it.”

Also, The Supreme Court in Corporate Ideal Ins. Ltd. v. Ajaokuta Steel Co. Ltd. (Supra) Pp. 193 – 194, held as follow:- “It is the view of this court that where a statute clearly provides for a particular act to be done or performed in a particular way, failure to perform the act as provided will not only be interpreted as delinquent conduct but will be interpreted as not complying with the statutory provision. It was held by this court in Adesanoye v. Adewole (2006) 14 NWLR (pt. 1000) 242 that in such a situation, the consequences of non-compliance follow notwithstanding that the statute does not specifically provide for sanction.

This knocks the bottom off the submission of the learned counsel for the appellant in this case that because section 50(1) of the Act does not provide for sanction, the contract cannot be said to be illegal. A contract that violently violates the provisions of a statute as in this case, with the sole aim of circumventing the intendment of the lawmaker is to all intents and purposes illegal null and void and unenforceable. Such a contract or agreement is against public policy and makes nonsense of legislative efforts to streamline the ways and means of business relations.

This court, and any other court for that matter would not be allowed to be used to enforce any obligations arising therefrom.”. It is, therefore, my humble submission that when it comes to affidavits or depositions therein as to the requirement of facts, it is the clear manner and or requirement as to facts provided by section 115(2) EA that must be complied with, failure to perform the act as provided will not only be interpreted as delinquent conduct but will be interpreted as not complying with the statutory provision.’.

Furthermore, in accordance with the ‘doctrine of separation of powers’ and as enshrined in sections: 4, 5 and 6 of the Constitution, by section 6 of the Constitution, the judiciary (court of law) has the duty to interpret laws (and not to make laws rather be bound by laws made by the legislature), this power is donated by Section 6 of the 1999 Nigerian constitution. In the exercise of such duty, the courts in Nigeria are to ensure that they interpret the law in such a manner as not to defeat the intention of the Legislators. It is expected that they restrain and confine themselves as passive onlookers to judicial precedent i.e stare decisis which is the traditional mode of approach to cases brought before it, as it bothers on the interpretation of statutes. This is because it is expressed that the judge’s duty is to declare the existing law and not make one (Judicis est jus dicere non dare).

This principle was echoed by the Supreme Court in the case of Okumagba v. Egbe (1965) 1 All NLR 62 at p. 65. So judges in the performance of their judicial functions in constructing statutes, recourse had to be made to the plain meaning of words as against their moral view, as it behooves them not to fill in the gaps in legislation but rather convey the intention of the legislature. As Allen K.C in his work “Law in the Making” 6th.ed., page 294, posited:

“By no possible extension of his office can a judge introduce new rules for the compensation of injured employee…The Legislature can project the future a rule of law that has never before existed. The court can do nothing of the kind.” See: –DO JUDGES MAKE LAW? by Nonso Robert Attoh, Faculty of Law, University of Nigeria, Enugu State, Nigeria (2015/2016 Session). So, a court of law is left with no other option than to interpret the clear and unambiguous law (such as section 115(2) EA) as it is liberally. So, therefore,

‘such a defect of non-compliance with section 115(2) EA, by an affidavit, is so fundamental, fatal and incurably defective to such an extent that the depositions which complied with Section 86 of the Evidence Act cannot save the entire depositions which offends against the said section 115(2) EA, which makes them (all) drowned by those which violated Section 87 of the Act and a Court of law is therefore not competent to pick depositions in affidavit which violate Section 87 of the Act. This is because, provisions of a statute must be complied with by every court of law and in fact, every person.

REASON FOR THE QUERY as to whether Judges make laws: ‘By virtue of the doctrine of separation of powers and checks and balances, it is not the duty of the judiciary to make laws. The 1999 Constitution in sections 4-6 provided for the legislature to make laws, the executive to exercise executive powers and the judiciary to exercise judicial powers to determine questions of civil rights and obligations. However, common law is referred to as judge-made laws because it was created by itinerant judges in England. Therefore, controversy exists as to whether the courts do indeed make new laws or whether law-making is strictly reserved for the legislature. Judges have often insisted that they do not make law directly and there are two views on this question- the declaratory and the creative views.

DECLARATORY THEORY: Blackstone’s theory has been adopted by some judges and theorists as reflected in the following holdings: Lord Mac Millian in Read v.Lyons(1947) A.C 156 “Your Lordships’ task in this House is to decide particular cases between litigants and your lordships ARE NOT CALLED UPON TO RATIONALIZE THE LAW OF ENGLAND. That attractive, if perilous field, may be left to other hands to cultivate”. Lord Esher in Willis v Baddeley [1892] 2 QB 324 “There is no such thing as judge-made law, for the judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable”.

Furthermore, I wish to respectfully, refer the reader to ‘Kingsley Udofa, Ph.D., on ‘how to draft an affidavit’. This can be Google searched online. The author has given very detailed rules for drafting an affidavit. I humbly adopt his work and recommend the same.

Finally, I therefore, humbly recommend that every lawyer (especially the young lawyer), should study the rules of affidavit before making one which would then be incurably deficient and liable to be struck out thereby also rendering the application which it posits to support incompetent to also be struck and thereby placing the client represented in such case at a loss. There is also the need for adequate training professionally, (maybe by the Nigerian Bar Association Council of Legal Education, as part of the Mandatory Continuous Legal Education) on what an affidavit constitutes and the necessary requirements of law in regard to an affidavit.

Email: hameed_ajibola@yahoo.com