For some inexplicable reasons, affidavits filed in our court are replete with paragraphs that start with the word "That" and same has, to a large extent, become standard practice so much that, where the word is omitted, one may feel some sense of procedural inadequacy.
We often forget that affidavits are evidence and they ought to represent not only what a witness would be entitled to say in court, if put in the box, but also how he would say it. See the Supreme Court's decision in Bamaiyi v State (2001) 8 NWLR (Pt. 715) 270
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. It therefore means that prayers, objections and legal arguments are matters that may be pressed by counsel in court and are not fit for a witness either in oral testimony or in affidavit evidence; while conclusions should not be drawn by witnesses but left for the court to reach."
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