LEGAL PRINCIPLE: CIVIL PROCEDURE — Affidavit Evidence — Conflicting Affidavits on Material Facts Require Oral Evidence for Resolution
PRINCIPLE STATEMENT
In the face of direct conflict on crucial and material facts, the learned trial judge must call for oral evidence from the defendant or such other witnesses as the parties may call.
RATIO DECIDENDI (SOURCE)
Per Musdapher, JSC, in Mark & Anor v. Eke (2004) NLC-351997(SC) at pp. 17–18; Paras D–A.
"Now, with reference to the 1st appellant, a natural and juristic person, an order of substituted service of the process could be ordered where it is found necessary to adopt the procedure. … The trial court was clearly faced with two conflicting affidavits on the issue of service, on the other hand, the appellants claimed not to have been served and the respondent by the bailiff's affidavit assert that there was service, in such a situation in my view, the trial court should have called for oral evidence to enable him determine the truth. … It is now elementary law that in the face of direct conflict on crucial and material facts, the learned trial Judge must call for oral evidence from the defendant or such other witnesses as the parties may call."
EXPLANATION / SCOPE
Conflicting affidavits on material facts require oral evidence. The principle applies to civil procedure. The court cannot resolve credibility on paper. The rule ensures proper fact-finding. The court must hear oral testimony. The principle is well-established.