Before an affidavit can be used in court

NWEKE NWEKE V ORJI (1989) 2 NWLR (PT.104) PG 484 AT 488 - 489 PARAS. H - C ________________________________________ ISSUE AFFIDAVIT : Before an affidavit can be used in court PRINCIPLE This Court sitting in Lagos (Per Nnaemeka-Agu, J.C.A.) in Majoroh v. Fassassi (supra), although not directly interpreting Order 35 rule 27 above, said at pages 254-255: "Another good reason why the affidavit should be disallowed is that the argument of the motion has opened, The broad principle is that it is the duty of a party - 'to bring forward his whole case at once and not to bring it forward in piecemeal as he found out the objections in his way': Re New York Exchange Ltd, (1888) 39 Ch,D, 415, It is on the basis of this principle that courts insist that affidavits in support of a motion should be filed with the motion papers, or at any rate before the argument of the motion commences. See: Electric Telegraph Co v, Nott (1847) 11 Jur, 273, Affidavits filed later require the leave of court before they can be used (see for example Order 34 rule 4 of the High Court of Lagos (Civil Procedure Rules 1972). On the same principle it has been held that it is only in very special circumstances, and not at the option of the parties, that leave will be granted to use an affidavit filed after the argument, if the motion has begun. See Lancashire Railway Co v Hattersley (1849) 68 ER, 278. In any event, when the use of such an affidavit has been objected to by the other side it will not be admitted or used in evidence. See In Re General Provident Assurance Co Ltd, (Cross Case) 1867 LJ, 583," Per Uwaifo, JCA. CITED CASES Lancashire Railway Co, v, Hattersley (1849) 68 E,R, 278 Although in our courts today where there is an application to regularize same, it may or will be granted by the court in most deserving cases........