LEGAL PRINCIPLE: EVIDENCE LAW – Affidavit Evidence – Contents of Affidavit – Statement of Facts and Circumstances Distinguished from Legal Argument or Conclusion
PRINCIPLE STATEMENT
In any affidavit used in the court, the law requires, as provided in sections 86 and 87 of the Evidence Act, that it shall contain only a statement of facts and circumstances derived from the personal knowledge of the deponent or from information which he believes to be true, and shall not contain extraneous matter by way of objection, or prayer, or legal argument or conclusion. The test for doing this, in my view, is to examine each of the paragraphs deposed to in the affidavit to ascertain whether it is fit only as a submission which counsel ought to urge upon the court. If it is, then it is likely to be either an objection or legal argument which ought to be pressed in oral argument; or it may be conclusion upon an issue which ought to be left to the discretion of the court either to make a finding or to reach a decision upon through its process of reasoning. But if it is in the form of evidence which a witness may be entitled to place before the court in his testimony on oath and is legally receivable to prove or disprove some fact in dispute, then it qualifies as a statement of facts and circumstances which may be deposed to in an affidavit.
RATIO DECIDENDI (SOURCE)
Per Uwaifo, JSC, in Bamaiyi v. State & Ors (2001) NLC-2922000(SC) at pp. 17–18; Paras A–C.
"In any affidavit used in the court, the law requires, as provided in sections 86 and 87 of the Evidence Act, that it shall contain only a statement of facts and circumstances derived from the personal knowledge of the deponent or from information which he believes to be true, and shall not contain extraneous matter by way of objection, or prayer, or legal argument or conclusion. The test for doing this, in my view, is to examine each of the paragraphs deposed to in the affidavit to ascertain whether it is fit only as a submission which counsel ought to urge upon the court. If it is, then it is likely to be either an objection or legal argument which ought to be pressed in oral argument; or it may be conclusion upon an issue which ought to be left to the discretion of the court either to make a finding or to reach a decision upon through its process of reasoning. But if it is in the form of evidence which a witness may be entitled to place before the court in his testimony on oath and is legally receivable to prove or disprove some fact in dispute, then it qualifies as a statement of facts and circumstances which may be deposed to in an affidavit."
EXPLANATION / SCOPE
Affidavits must contain only statements of facts and circumstances, not legal argument, objection, prayer, or conclusion. The test: Is the paragraph fit only as a submission for counsel’s oral argument? If yes, it is improper. If it is evidence a witness could give on oath to prove or disprove a fact, it is proper. Conclusions (factual or legal) are prohibited. The court distinguishes between factual statements and legal submissions. Affidavits are for evidence, not advocacy. Improper paragraphs may be struck out. The principle ensures that affidavits serve their evidentiary purpose and do not usurp the court’s role in drawing conclusions or counsel’s role in making submissions. The rule applies strictly.
