How to draft an AFFIDAVIT

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.

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.