By S.O. GIWA ESQ.

Prefacing each paragraph of an affidavit by the word ‘that’ in Nigeria is now an aged long tradition and ubiquitous practice by many Nigerians- legal practitioners and non-legal practitioners.

No affidavit is regarded as good without the word ‘that’ starting each paragraph of an affidavit. The regular use and practice of prefacing each paragraph of an affidavit by the word ‘that’ makes an affidavit without the word ‘that’ look ‘naked’ to many Nigerians having not on it the usual ‘clothing’.

It is against this background that this piece is written with a view to finding out the legal or factual significance or importance of the word ‘that’ which many Nigerians do use in prefacing each paragraph of an affidavit. What then is an affidavit in the legal parlance?

According to Honourable Justice Kutigi J.S.C (as he then was) in Josien Holdings Limited v. Lornamead (1995) 1 NWLR (Part 371) 257 at 265 paragraph F defines an affidavit as a statement of fact which the maker or deponent swears to be true to the best of his knowledge, information or belief. For easy reference, the said definition as stated by His Lordship hereunder produced:

‘Now, an affidavit is a statement of fact which the maker or deponent swears to be true to the best of knowledge, information or belief. It must contain only those facts of which the maker or deponent has personal knowledge or which are based on information which he believes to be true.’

Flowing from the above quoted definition is an indisputable fact that an affidavit is a statement of fact and contains facts of which the maker or deponent has personal knowledge or which are based on information which the maker believes to be true. What then is a phrase ‘statement of fact’?

Statement of fact as sourced online from www.library.ncat.edu are sentences that describe a fact and the word ‘fact’ under section 258 (1) of the Evidence Act 2011 is defined to include:

anything, state of things, or relation of things, capable of being perceived by the senses,
any mental condition of which any person is conscious
It is crystal clear from the above definition of the phrase ‘statement of fact’ that an affidavit is a statement of fact and statement of fact are sentences that describe a fact which an affidavit must contain. Can one conveniently say that a paragraph of an affidavit prefaced by the word ‘that’ depicts statement of fact which are to be in sentences to state facts?

It is the writer’s stand that the use of the word ‘that’ in commencing each paragraph of an affidavit by many Nigerians including legal practitioners is nothing but a tradition with no legal backing and the said tradition is merely a relic of colonialism.

It is no gainsaying that this ubiquitous practice of using the word ‘that’ in prefacing each paragraph of an affidavit by many Nigerians including legal practitioners is a tradition with no legal backing and the frequent use of the word ‘that’ in prefacing paragraphs of affidavits by Legal Practitioners makes many Nigerians to think that an affidavit without the prefacing word ‘that’ is defective.

This aged long belief of many Nigerians prompted the writer to meticulously read the provisions of the Act on an affidavit particularly the then section 90(c) of Evidence Act 1990 now section 117 (1) (c) of Evidence Act 2011 on the form of affidavit which provides that every affidavit taken in a cause or matter shall be in the first person, and divided into convenient paragraphs numbered consecutively.

It is the provision of section 117 (1) (c) of Evidence Act 2011 that an affidavit must be in the first person and the said provision does not provide that each paragraph of an affidavit must be prefaced by the word ‘that’. What then is the legal backing for the use of ‘that’ in prefacing each paragraph of an affidavit by many Nigerians including legal practitioners?

It is worthy of note that the use of an Oxford comma after the phrase ‘be in the first person’ in the provision of Section 117 (1) (c) of the Evidence Act, 2011 evinced that the phrases “be in the first person” and “divided into convenient paragraphs numbered consecutively” are two distinct instructions which ought not to be construed together. The two instructions are that:

every affidavit taken in a cause or matter shall be in the first person
every affidavit taken in a cause or matter shall be divided into convenient paragraphs numbered consecutively
It is the writer’s stand that the purport of the provision of section 117 (1) (c) of the Evidence Act 2011 is that the opening paragraph of every affidavit should be in first person and not that the paragraphs which are to be used to state facts which the deponent believes to be true and correct in accordance with the Oaths Act are to be in first person.

It is the writer’s further stand that the phrase ‘divided into convenient paragraphs numbered consecutively’ in the provision of section 117 (1) (c) of Evidence Act 2011 only imposes duty on the deponent to state his or her facts in paragraphs as convenient to him or her and number the paragraphs consecutively.

It is the writer’s stand that not only that the use of the word ‘that’ in prefacing each paragraph which is to be used to state facts by the deponent in the paragraphs of an affidavit according to his or her belief is a tautology and runs afoul of the grammatical rule on a sentence formation or statement in English Language because a statement or sentence does not starts with the word ‘that’.

It is worth saying that though the draftsman did not state whether the mention of the first person in the provision of section 117 (1) (c) of Evidence Act 2011 is either first person singular (I) or first person plural (We), the mention of first person in the provision of section 117 (1) (c) of Evidence Act 2011 cannot and should not be construed to mean the word ‘that’ which in grammar parlance works as different parts of speech.

The word ‘that’ in grammar parlance does use as (definite article) to indicate something/someone specific that the listeners or readers already know (as in this sentence, ‘Pick up that book on the floor’); (conjunction) to combine two clauses (as in this sentence, I bought the materials that are required for the project.’); (adverb) to show the intensity of a particular adjective (as in this sentence ‘He is that old’); (relative pronoun)to refer to a specific thing previously mentioned, known, or understood (as in this sentence ‘All the people that were left behind’); and lastly, (adjective) to qualify a noun (as in this sentence ‘That cat is so adorable’).

It is to be noted that though the word ‘that’ also functions as a freestanding pronoun as in the sentence ‘That’s exactly what I thought’; it takes a verb to effectively perform the said function and not a personal pronoun (I).

It is worth saying that flowing from the various functions which the word ‘that’ performs in the grammar parlance, it is convenient to say that it is not the function of the word ‘that’ to be used as a preceding word for a preposition, the article ‘the’, or for personal pronoun (I) at the beginning of the sentence in a paragraph which many Nigerians do use in an affidavit.

It is also noteworthy that the first person in the grammar parlance has nothing to do with the word ‘that’ and the mention of the first person in the provision of section 117 (1) (c) of Evidence Act 2011 cannot and should not be construed to mean the word ‘that’. In the grammar parlance, the first person is a style of writing in which a fact is told in the voice of the first speaker.

It is the writer’s stand that the mention of first person without stating whether the required first person is singular or plural one in the provision of section 117 (1) (c) of Evidence Act 2011 evinced the permissiveness of the use of either first person singular (I) by a deponent or first person plural (we) by two or more deponents in the opening paragraph of an affidavit. Fortifying the writer’s stand on the permissiveness of the use of first person plural (we) by two or more deponents in an affidavit is the provision of 119(4) of the Evidence Act 2011(the then provision of section 90(g)(iv) of the Evidence Act 1990) which provides for joint affidavit. The said provision reads:

‘Where two or more persons join in making an affidavit their several names shall be written in the jurat and it shall appear by the jurat that each of them has been sworn to the truth of the several matters stated by him in the affidavit’

It is the writer’s stand that apart from the fact that using the word ‘that’ to start sentences in paragraphs of an affidavit to state facts runs afoul of the provision of section 117 (1) (c) of Evidence Act 2011, the then section 90(c) of Evidence Act 1990, which only imposes duty on a deponent to preface opening paragraph of his/her affidavit in first person, the use of the word ‘that’ to begin sentence in each paragraph of an affidavit also runs afoul of the grammatical rule on sentence formation.

It is also the writer’s stand that not only that the use of the overburden word of ‘that’ in an affidavit which is not a requirement of any of our law has no significance in the procedural scene of an affidavit, a documentary evidence, its use also runs afoul of the grammatical rule on a sentence or statement formation in English Language because a statement or sentence does not starts with the word ‘that’.

Fortifying the writer’s stand that the use of the word ‘that’ in commencing each sentence in paragraphs of an affidavit to state facts which the deponent believes to be true has no significance or importance in affidavits are the paragraphs hereunder.

Paragraph 9 of the Affidavit of Urgency considered in Josien Holdings Limited v. Lornamead ltd (supra) which reads:

‘that I know as of fact that the destruction and obliteration in terms of the order of the court will lead to irreversible consequences in respect of the affected goods.’

Paragraphs 1, 2, 3 and 26 of the Counter-Affidavit considered in Lawal-Osula v. U.B.A. Plc. (2003) 5 NWLR (Part 813) 376 @ 387 paragraphs F-H which read:

that I am one of the counsel representing the plaintiff/respondent in this suit
that I have the consent and authority of the plaintiff/respondent to depose to this affidavit
that I have read the affidavit in support of the defendant/applicant’s motion filed on 20th June, 2001
that I, Festus Ohikhaubor Idonije, do solemnly and sincerely declare that I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Oaths Act, 1990.’
It is clear as crystal that if the word ‘that’ used in commencing the above quoted paragraphs considered in the above cited cases is omitted or avoided, the facts stated therein would still stand.

Besides the foregoing, it is worth saying that even the form of Judicial Oath, Official Oath, Statutory Declaration and other forms of Oaths set out in the first schedule to the Oaths Act, Cap. 333, Laws of the Federation 1990 do not start with the use of the word ‘that’ and yet, many deponents do use the word ‘that’ to commence the statutory declaration in contravention of the form of statutory declaration set out in the first schedule to the Oaths Act, Cap. 333, Laws of the Federation 1990. The form of statutory declaration provided in the first schedule to the Oaths Act, Cap. 333, Laws of the Federation 1990 reads:

‘I …………………do solemnly and sincerely declare that I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Oaths Act.’

It is the writer’s further stand that prefacing the statutory declaration by the word ‘that’ by the deponent in the above quoted paragraph 26 of the Counter-Affidavit considered in Lawal-Osula v. U.B.A. Plc. (supra) as many deponents used to do is a non-compliance with the statutory declaration referred to under provision of section 13 of the Oaths Act whose form is set out in the first schedule of the Oaths Act. The provision of section 13 of the Oaths Act provides thus:

‘It shall be lawful for any Commissioner for Oaths, notary public or any other person authorized by this Act to administer an Oath, take and receive the declaration of any person voluntarily making the same before him in the form set out in the First Schedule to this Act.’ The underline is the writer’s for emphasis.

It is the writer’s stand that the form set out in the first schedule to the Oaths Act, Cap. 333, Laws of the Federation 1990 has no prefacing word ‘that’ and inclusion of the word ‘that’ by any deponent in an affidavit is a gross violation of the form set out in the said Oaths Act.

It is the writer’s stand that the use of the word ‘that’ in commencing each paragraph of an affidavit lacks legal backing and its use has no legal significance or importance in the procedural scene of documentary evidence. Fortifying this submission of the writer are the words of Honourable Justice Niki Tobi J.C.A in Peter Nwabunike Eze v. A.O. Okolonji (1997) 7 NWLR (Part 513) 515 at 533 paragraphs C-E wherein His Lordship put thus:

‘Let me pause here to point out a unique aspect of the affidavit in support, an aspect that I like very much. It is the conspicuous absence of the word, ‘‘That.’’ It is a style which has hardened into a tradition for a paragraph in an affidavit to commence with the now overburdened word of ‘‘That.’’ No affidavit is regarded as good without that word. Because of the regular use of the word, an affidavit without it looks ‘‘naked’’, having not on it the required ‘‘clothing’.’ I have asked myself several times the legal or factual significance or importance of the word. I have not got an appropriate answer. The tradition is merely a relic of colonialism. It is part of our legal history that we received English Law and that included the practice of prefacing each paragraph of an affidavit by the word, ‘‘That’’. I do not see any significance or importance of that notorious word, ‘‘That’’. If at all it has any impact, it is the negative impact of a repetitive language and syntax, which is not the best style of good writing. Since the word is of no legal significance in the procedural scene of documentary evidence, deponents can drop it, without any ado. That will save a deponent time, energy and money. It takes all the three, if not more, to repeat the overburden word in an affidavit. The applicant, Peter Nwabunike Eze, a legal practitioner and the deponent, has my commendation in that regard.’

It is finally advised and recommended at this juncture that by way of adoption of pieces of advice proffered by His Lordship Honourable Justice Niki Tobi J.C.A in Peter Nwabunike Eze v. A.O. Okolonji (supra) that since the word ‘that’ has no legal significance, the deponent should drop or stop prefacing each paragraph of an affidavit by the word ‘that’ as doing that would save a deponent time, energy and money to repeat the overburden word ‘that’ in an affidavit and earn legal practitioners and their deponents more commendation from Judges.

Written by S.O. GIWA ESQ. a.k.a pentalk (Ibadan based Legal Practitioner) [email protected] 08035224192