LEGAL PRINCIPLE: CIVIL PROCEDURE – Oral Evidence -Duty to call oral evidence on conflicting affidavits
PRINCIPLE STATEMENT
When faced with irreconcilably conflicting affidavits, the court should hear oral evidence from deponents or other witnesses to resolve the conflict, even if no party asked for it; omission by parties to request cross-examination is not consent to use affidavit evidence in such circumstances.
RATIO DECIDENDI (SOURCE)
Per Onu, JSC, in Adkins Scientific Limited v. Aladetoyinbo & Anor (1995) NLC-2591989(SC) at pp. 10–11; Paras B–D.
"We have pointed out on numerous occasions that when a court is faced with affidavits which are irreconcilably in conflict, the Judge hearing the case, in order to resolve the conflict properly, should first hear oral evidence from the deponents or such other witnesses as the parties may be advised to call. It does not matter whether none of the parties asked to be allowed to cross-examine any of the deponents or call anys witness. Such omission by the parties should not be taken to amount to consent that affidavit evidence should be used in such circumstances."
EXPLANATION / SCOPE
Irreconcilable conflicts in affidavit evidence cannot be resolved on paper. The court must hear oral evidence. The parties’ failure to request cross-examination does not waive the need for oral evidence. The principle ensures that credibility is properly assessed. The court may order oral evidence on its own motion. The rule applies to all interlocutory applications where facts are disputed. The court cannot resolve credibility issues from affidavits alone. The principle protects the right to fair hearing. The appellate court will set aside decisions based on unresolved affidavit conflicts.