What is an Affidavit
The term “affidavit” is a sworn testimony containing facts. Simply put, it a testimony usually sworn under an oath or in affirmation into the court. Before an affidavit is approved, it must have been sworn before a registry clerk or lawyer (a judge, officer and another person duly authorized to take affidavit).
The commissioner for oath’s presence is also needed to witness the swearing of the affidavit under this category. Though the commissioner for oath is the only person before whom an affidavit can be deposed to, in practice, it is the commissioner for oath that regulates and conducts oath-taking.
In the law firm, an affidavit must be sworn to as an underdone affidavit in a normal paper. In Maraya Plastics Industries Ltd & Anor v. Inland Bank of Nigeria Plc, the court of appeal per Omage JCA, stated thus, an affidavit is averments contained in a paper which are sworn before the commissioner for oaths.
The affidavit has to be filed in the court registry. It is the swearing thereto that makes the document an affidavit. Where the document is not sworn to, it is only a piece of paper, not an affidavit. Without oath, therefore there is no affidavit. The above is a general rule and there are exceptions provided for in the Evidence Act. Hence, an affidavit may not be sworn to on:
Age – immaturity.
The above must be indicated by the officer taking the oath. The person deposing to an affidavit becomes the deponent.
The relevant fact must be contained in the body of the affidavit. An affidavit is best kept succinct before deciding necessary contents which would be used in its coating. Same principles also apply in sentences and paragraphs.
In the process of summarising the affidavit, important notes should not be unlocked while ensuring it’s sentences are limited to 10 words as that would be the main interest of the legal practitioner. An affidavit is complete where it obeys the S.O.S(simple, organised and short)principle.
Style of Proceeding:
A style of proceeding usually surfaces on the initial section of all legal files. It states who issues and gives also the file number.
The style of proceeding appears constant throughout the life of the court case unless the legal leader drifts in plans.
The style of proceeding enables the court registry staff to put the document in the right document.
Three points must be outlined at the top right corner of the style of proceeding:
Total number of the affidavit done(might have been past one)
Name of deponent (your name)
Actual date of the drafted affidavit
2. Deponent’s Statement:
An affidavit is made by deponent as such, you have to identify yourself as the person swearing to the stated facts in the affidavit. Example: I, TomJones, of 132 Main Street, in the City of Vancouver, Province of British Columbia, electrician, MAKE OATH AND SAY THAT:
This statement made by the deponent comes at the beginning of each identified affidavit. It is detailed and projects everything concerning the occupation of the deponent.
3. Knowledge Statement
It clearly records two things:
Owning to you being a plaintiff, defendant, petitioner, or respondent
Owning to having personal knowledge of the information penned in the affidavit.
4. Body of the Affidavit
This is the most important part.
5. Ending of the Affidavit
Format of an affidavit
Affidavit is meant to state the material facts and allow the court to draw the conclusion. Commissioner for Agriculture, the Court of Appeal stated that an affidavit is a statement of fact which the maker or deponent has personal knowledge or which are based on information which he believes to be true.
No legal argument, conclusion or other extraneous matter must be included. When an illiterate or a blind person deposes an affidavit, the fact that such person is unschooled shall be stated there and there must be a notice. Also, the language in which the affidavit was deposed should be attached to that translated into the language of the court (English language).
Note that a legal practitioner handling the action on behalf of the applicant can depose to an affidavit as no law provides otherwise. However, where there are affidavit and counter-affidavit which are held to be contradictory, there would be need for the court to call oral evidence. When the legal practitioner is then called as a witness, problem would arise as to who will examine and re-examine.
By virtue of the Evidence Act, the following are what an affidavit should contain.
Statements of facts
The source of statement of facts which could be personal knowledge or otherwise
An affidavit is not to contain extraneous matter by way of objection, prayer, legal argument or conclusion. When fact is from another person, the particulars of the person shall be stated and the time, place and circumstances of the information shall also be stated.
TYPES OF AFFIDAVIT
- Affidavit in support of application
- Affidavit of urgency
- Affidavit of service
- Further and better affidavit
- Further, further and better affidavit
- Affidavit for the record.
CONFLICTS IN AFFIDAVITS
Where there are conflicts in affidavits, the court may do any or all of the following
Call for oral evidence to resolve the conflict.
Resolve the conflict from the documentary evidence attached to the affidavits were available and sufficient to do so.
Affidavit is needed in the following application:
Originating motion/application, summons, petition excluding election petition. NOTE THAT IN ELECTION PETITION, NO NEED TO FILE AFFIDAVIT