I welcome and thank you for taking this voyage into my world.
One of the most significant matters students preparing for the Bar examinations would have to tackle is that of drafting. Drafting of Court processes constitutes a quarter of problems Bar hopefuls would have to face. A Third of all the drafting questions are usually connected with Civil Litigation. This article is therefore dedicated to one of the most important component of most legal processes: THE AFFIDAVIT.
I hope this article aids my learning friends at the Law School to better understand and appreciate the drafting of Affidavits.
This piece is not meant to address all the substantive matters and questions pertaining to affidavits but merely to address the problem of its drafting.
Firstly, before I get into discussing the drafting of affidavits, let me attempt a brief yet almost detailed discuss on the scope of Affidavits.
An affidavit is a written or printed declaration or statement of facts, made voluntarily and confirmed by the Oath or Affirmation of the party making it, taken before a person having authority to administer such Oath or Affirmation.
There are several types of affidavits, but affidavits are more commonly used during the course of judicial proceedings to support written applications or serve as a counter to such written applications. In exercising its extraordinary Power to consider and grant applications, the Court must rely on hard, cogent and convincing facts to be able to ‘judicially and judiciously’ exercise its power or discretion in favour of an Applicant or otherwise especially because such power or discretion cannot be exercised in vacuo. These hard, cogent and convincing facts are expected and must be proved by affidavit evidence.
Where a party by way of motion seeks the court’s discretion, the evidential vehicle in the application will be the supporting affidavit or affidavits and where the motion is opposed, the counter-affidavit.
Unlike pleadings where the facts averred to will have to be proved by oral or documentary evidence during the trial, affidavits are by law evidence upon which a court of law in appropriate cases acts. The use of affidavits to support judicial proceedings generally dispenses with oral evidence and thus saves time and expense.
However, in exceptional circumstances such as where the court is faced with affidavits which are irreconcilably in conflict, oral evidence will be allowed by the court to resolve such conflicts. Conflicts here presuppose that both the affidavit(s) in support and the counter-Affidavit contain facts irreconcilably in conflict. In such cases, the court must first make recourse to or call for documentary evidence. See UZONDU v. UZONDU  9 NWLR (PT. 521) 466
Where the Court having satisfied itself that there exist a conflict in the affidavits with no means of resolving such conflicts (such as by documentary evidence) the court must call oral evidence before it can be said to have exercised its discretion judiciously and judicially. See AHEWOLE v. ADETIMO  2 NWLR (PT. 431) @ page 398, S. 116 Evidence Act 2011.
The law regulating affidavits is the Evidence Act 2011, particularly sections 107 – 120. The general rules are 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.
Having expounded on the meaning and use of affidavits, the second part of this work will be dedicated to laying down the ‘step-by-step’ method of its drafting. For the sake of convenience, I have divided this section of the work into parts to reflect the several components of an affidavit. A keen understanding of these steps will surely serve as a useful tool for law students and lawyers alike.
A. EVERY AFFIDAVIT MUST BE HEADED IN THE COURT AND IN THE CAUSE OR MATTER.
Since an affidavit is a sworn testimony of facts deposed to by a person especially in support of an interlocutory or interim application, it presupposes that such affidavit(s) are to be connected to a Listed Court matter i.e an action in court. It must be headed in the appropriate court in which the application itself has been filed. This heading must be written at the topmost part of the paper.
The affidavit must also be headed in the appropriate matter. This would usually presuppose a suit number and (or) motion number to be written at the top right corner of the paper just below the heading of the court.
This is to be followed by the names of the parties to the action and their respective descriptions.
It is worthy of note to state that the ‘Applicant(s)’ is not always the Plaintiff(s)/Claimant(s)/Petitioner(s) in the case. This means that the ‘Applicant(s)’ could well be the Defendant or even a 3rd Party merely interested in joining the suit. In such cases, the description of ‘Applicant would only follow the proper description of Parties in the case or Party sought to be joined.
This must immediately be followed by a description of the Affidavit itself to be centred below the ‘Parties’.
“AFFIDAVIT IN SUPPORT OF APPLICATION”
B. THE INTRODUCTORY OPENING/OPENING STATEMENT
Every affidavit usually opens with an introductory statement which must state the following:
1. Name of the deponent;
2. The gender of the deponent;
3. Citizenship of the deponent;
4. Occupation of the deponent; and
5. Address of the deponent.
“I, Daramola Adewale, Male, Nigerian Citizen, Legal Practitioner of No. 12 Holy Ghost Residential Quarters do make Oath and state as follows:”
Note that the foregoing is not a paragraph of the affidavit and should therefore not be numbered. The numbered paragraphs usually follow this opening statement.
C. THE RELATIONSHIP PARAGRAPH
The first paragraph of the affidavit is often dedicated to describing the deponent and his position in relation to the matter.
“(1)THAT I am a LEGAL OFFICER in the office of the Director of Public Prosecutions of the Enugu State Ministry of Justice and by virtue of my position I am conversant with the facts of this case”
“(1)THAT I am the plaintiff in this suit and by virtue of which position I am conversant with the facts of this case”
This first paragraph is important as it tells at a glance who the deponent is and whether or not he is a party or the applicant. Please note the differences between both examples as set out above. In the latter case, the deponent is the plaintiff and therefore the applicant. While in the former case, the deponent is not the applicant nor a party but merely performing a duty on behalf of another. This therefore means that the deponent in the former case might need the permission of the plaintiff/applicant before deposing to the affidavit. This leads me to the next component – CONSENT AND AUTHORITY PARAGRAPH.
D. CONSENT AND AUTHORITY PARAGRAPH
This paragraph is not always a part of every affidavit. The paragraph is usually only inserted where the deponent is not a party/applicant or in the performance of a duty on behalf of another. Just as the name suggests, the Consent and Authority Paragraph is to show that the deponent has the authority and consent of the applicant and (or) party to depose to the affidavit.
“(2)THAT I have the consent and authority of ‘my employers’ or ‘the applicant’ to depose to this affidavit.”
E. THE FACTS
What follows after the first 2 paragraphs, as shown above, is what I would conveniently categorise as ‘the facts’. How the draftsman decides to present the facts is totally up to him. However, in presenting these facts, the draftsman must be guided by the general rules as was listed in the first section of this work. In addition to the rules, it is always wise to present the facts in a chronological order so as to pass a clear and coherent message.
When facts are not within the knowledge of the deponent and they wish to depose to facts obtained from a third party as forming part of the averments, they must as a matter of law state:
1. The name of the person who related him the fact
2. The time and place where the fact was related to him
3. And the fact that he believes the fact to be true
The kinds of facts to aver always depend on the prayers of the application made to the court. To be entitled to certain orders of the court or the exercise of discretion in one’s favour, certain facts are always required to be averred to.
As a matter of convenience, I have always found it smarter to present the facts in paragraphs and subparagraphs depending on the central story in the facts. This is only a personal method.
Another thing worthy of note is how to attach documents to an affidavit. Whenever a document is attached to an affidavit, it becomes a part of the affidavit. In exercising its discretion, the court would be bound to look and consider any such attachments made to the affidavit. The standard way to attach any such document is to MARK such document and link such attachment to the central fact averred in a paragraph.
“… The letter of undertaken is hereby attached and marked as EXHIBIT A”
F. THE OATH CLAUSE
This clause never changes regardless of what kind of application the affidavit supports. The clause is usually couched in the last paragraph of the affidavit and no other paragraph must come after the oath paragraph. It simply reads:
“(!)THAT I make this oath in good faith believing its contents to be true and in accordance with the Oath Act, 2004.”
G. CLOSING OF THE AFFIDAVIT
The conclusion of an affidavit would usually contain the following:
1.THE SIGNATURE OF THE DEPONENT. Please note that every affidavit must be signed or it would only be a worthless piece of paper. For the purpose of examinations, students must ensure that all their affidavits are signed. The provision for signature should be placed at the bottom right corner of the paper.
2.THE REGISTRY WHERE THE AFFIDAVIT WAS SWORN usually to be written at the bottom left corner of the paper below the signature of the deponent.
“SWORN TO AT THE ENUGU STATE HIGH COURT REGISTRY, ENUGU”
3.THE DATE OF THE AFFIDAVIT.
Like in all other Court processes, ‘date’ is a fundamental component part to determining the validity or otherwise of the Affidavit. For purposes of the Bar exams, every student must date the Affidavit in order to make it valid. The date should be written below the last paragraph to the left of the paper.
Please note that where the affidavit is sworn to by an illiterate or blind person, the affidavit must contain an appropriate jurat which comes after the date and provision before the commissioner for oaths as shown below.
“I have first truly and audibly read over the contents of this affidavit to the deponent, he being a blind or illiterate and explain the nature of the contents of exhibits therein referred to in the …..language when he appeared perfectly to have understood same and made his mark/signature in my presence”
5. Provision for the commissioner for oath to sign and stamp. This is to be centred and in upper case letters
Students must study these formats and know when to make adaptations as required. I wish you all success in the Bar Final Examinations.
Babalola, Law and Practice of Evidence in Nigeria, Ibadan, Sibon Books Limited, 2007.
F. J. Oniekoro, Hints on Forms and Precedents in Legal Practice in Nigeria, 2nd Edition, Enugu, Press Snaap Limited, 2010.
By Kingsley David Udofa