LEGAL PRINCIPLE: CIVIL PROCEDURE — Committal Proceedings — Affidavit Evidence — Effect of Failure to Deny Deposition
PRINCIPLE STATEMENT
Affidavit evidence not denied by a respondent is deemed to be admitted; the court is entitled to presume that the respondent agrees with the depositions.
RATIO DECIDENDI (SOURCE)
Per Tobi, JCA (as he then was), in A.G., Anambra State & Ors v. Okeke & Ors (2002) NLC-1021997(SC) at pp. 4–5; Paras E–A.
"The respondent did not file a counter affidavit contesting the veracity of the above depositions. This court is therefore entitled to presume that they have no reply and that they agree with them. This is because affidavit evidence not denied by a respondent is deemed to be admitted."
EXPLANATION / SCOPE
In committal proceedings, failure to file a counter-affidavit contesting depositions leads to the evidence being deemed admitted. The court may act on uncontroverted affidavit evidence. The principle applies to all interlocutory applications where affidavits are used. The opposing party must file a counter-affidavit to dispute facts. The rule promotes efficiency in affidavit proceedings. The court will not require oral evidence to resolve uncontested facts. The principle is based on the rule that what is not denied is admitted. However, the court retains discretion to require proof in appropriate cases. The rule applies to both civil and criminal committal proceedings.
