LEGAL PRINCIPLE: CIVIL PROCEDURE – Affidavit Evidence – Wrongful Striking Out Under Evidence Act
PRINCIPLE STATEMENT
An appellate court errs in striking out paragraphs of an affidavit under sections 85, 86, and 87 of the Evidence Act if the paragraphs comply with the requirements that they contain only statements of facts and circumstances from the deponent's personal knowledge or information.
RATIO DECIDENDI (SOURCE)
Per Kutigi, JSC, in Josien Holdings Limited v. Lornamead Limited (1995) NLC-1831992(SC) at pp. 7--8; Paras E--A.
"I have myself careful read through the above paragraphs of the affidavit and applying the law as stated above particularly the provisions of sections 85,86 & 87 of the Evidence Act, I endorse the submission of Chief Williams above in toto and come to the same conclusion with him that the Court of Appeal erred in law in applying the provisions of sections 85, 86 & 87 and thereby wrongly struck out the paragraphs of the appellants' affidavit set out above."
EXPLANATION / SCOPE
Affidavit paragraphs that state facts and circumstances from personal knowledge or information are proper. The court should not strike them out. The principle applies to all affidavit evidence. The court must distinguish between facts and legal arguments or conclusions. The appellate court will correct errors in striking out affidavits. The rule promotes the proper use of affidavit evidence. The party opposing the affidavit may challenge the facts, but not by striking out proper paragraphs. The court will examine whether the paragraphs comply with the Evidence Act.