How to draft an AFFIDAVIT

Introduction

Drafting court processes is a core aspect of studies at the Nigerian Law School, and it constitutes a third of all problem questions Bar hopefuls are typically required to answer. This article aims to provide a step-by-step drafting guide to one of the essential components of most judicial processes – The Affidavit. The scope of this article does not extend to all the substantive matters of affidavits. Focusing solely on ‘how to draft’ affidavits will undoubtedly be helpful to law students across Nigerian higher institutions.

Also referred to as “depositions” in other jurisdictions, an affidavit is a written or printed declaration or statement of facts. Affidavits are made voluntarily and confirmed by the ‘oath’ or ‘affirmation’ of the party making it and taken before a person having authority to administer such oath or affirmation.

There are different types of affidavits. For this article, affidavits fall into two broad categories – those forming part of lawsuits/judicial processes and others required outside court matters. In other words, an affidavit may either be required for a court proceeding; or generally needed for the registration of an instrument. This ‘how to’ guide only covers the former, i.e., affidavits required for court processes, either in support of written applications to or as a response/counter to such written applications.

Legal Framework

The law governing affidavits in Nigeria, particularly those required for court processes, is the Evidence Act 2011. The Act sets out the general rules in relation to form, filing and content that make up a valid affidavit.

Function of Affidavits

Courts have enormous powers and responsibilities within our adjudication system. One such responsibility is the Court’s duty to dispense justice to litigants. In practice, this means that when a litigant (or prospective litigant) applies for an order or injunction, the Court will need to exert its discretion in reaching a decision. This means a judge will have the power and right to act according to the dictates of his personal judgement or conscience uninfluenced by judgement or conscience of others. Per Obande Festus Ogbuinya, JCA in Lajibam Auto & Agric Concerns Ltd & Anor v. UBA Plc & Ors (2003) LPELR-20169(CA).

However, such judicial discretion cannot be exercised in vacuo. It must be exercised appropriately, taking into account claims to justice by both sides and relying only on cogent and convincing facts. It is only upon considering such facts that a court will be said to have ‘judicially and judiciously’ exercised its discretion. Affidavit evidence is the vehicle through which such ‘cogent and convincing’ facts are supplied for a judge’s determination. As such, whenever a party to a lawsuit seeks the Court’s discretion, such application must be accompanied by a supporting affidavit(s). Similarly, whenever such an application is opposed, such opposition must also be accompanied by a counter-affidavit. Affidavits are therefore indispensable to civil and criminal court processes.

Unlike with pleadings where facts averred to will have to be proved by oral or documentary evidence during case trials, affidavits are the evidential instruments upon which court decisions will generally be based in determining applications. Put differently, using affidavits to support judicial processes will generally dispense with oral evidence. However, in exceptional circumstances, such as where the Court is faced with affidavits irreconcilably in conflict, oral evidence will be allowed to resolve such conflicts. In such cases, the Court must first make recourse to or call for documentary evidence. See Uzondu v. Uzondu [1997] 9 NWLR (PT. 521) 466

General Rules

Sections 107 – 120 of the Evidence Act 2011 provides the general rules of affidavits as follows:

1. 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.
2. No affidavit shall contain extraneous matter by way of objection, prayer or legal argument or conclusion.
3. 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.
4. 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 function of affidavits, the second part of this work sets out a ‘step-by-step’ guide for drafting affidavits required for court processes. For convenience, this section is further divided into several parts reflecting the distinct components of an affidavit.

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.

EXAMPLE:

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.
EXAMPLE:

This is to be followed by the names of the parties to the action and their respective descriptions.

EXAMPLE:

It is noteworthy 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 Third-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’.

EXAMPLE:

AFFIDAVIT IN SUPPORT OF APPLICATION

Or

“COUNTER-AFFIDAVIT”

THE INTRODUCTORY OPENING/OPENING STATEMENT

Every affidavit usually opens with an introductory statement that 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.

EXAMPLE:
“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.

THE RELATIONSHIP PARAGRAPH

The first paragraph of the affidavit is often dedicated to describing the deponent and his position in relation to the matter.

EXAMPLE:
“(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”

Or

“(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.

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.

EXAMPLE:
“(2)THAT I have the consent and authority of ‘my employers’ or ‘the applicant’ to depose to this affidavit.”

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.

EXAMPLE:
“… The letter of undertaken is hereby attached and marked as EXHIBIT A.”

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.”

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.

For example:

For example:

“SWORN TO AT THE ENUGU STATE HIGH COURT REGISTRY, ENUGU”

3. THE DATE OF THE AFFIDAVIT: Like in all other Court processes, the ‘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. 

For example:

“Dated this ……….Day of ……………………..2014”

4. THE JURAT: 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. For example:

“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.

EXAMPLE:

Students must study these formats and know when to make adaptations as required. I wish you all success in the Bar Final Examinations.

References

• 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 Udofa
Kdudofa1@gmail.com