It is settled law that when a Court is faced with conflicting affidavit evidence on a material issue before the Court, the Court has to hear oral evidence in order to resolve the conflict...However, where there exists some documentary evidence on the basis of which the conflicts in the affidavit evidence can be resolved, the Court can dispense with the need to call oral evidence and resolve the conflict in the affidavit evidence by resorting to the documentary evidence that supports one of the affidavits.
ONABIYI & ORS v. I.O.N PETROLEUM LIMITED LGC(22/3/2017) C
The differences between the parties was on whether the Court processes were served on the Respondent. The Respondent in the affidavits it filed deposed that it was not served with any Court processes. See pages 15-21 of the Records. The Appellants in their counter affidavits insisted that the Respondent was duly served with the Court processes. See pages 22-32 of the Records. So it was oath against oath and there was no documentary evidence on the basis of which the conflict could be resolved without recourse to oral evidence being adduced. Now in these circumstances, what course was open to the lower Court? Was it to order for oral evidence to be adduced as the lower Court did, or for the Court to suo motu resolve the conflict and prefer one deposition to the other?
It is settled law that when a Court is faced with conflicting affidavit evidence on a material issue before the Court, the Court has to hear oral evidence in order to resolve the conflict.
ONABIYI & ORS v. I.O.N PETROLEUM LIMITED LGC(22/3/2017) C
The law is settled that generally, a Court of law is not competent to resolve conflict in affidavit evidence without calling oral evidence. There is however exception to this rule, one of which is that where the Court has documentary evidence at its disposal which can aid it to resolve the conflict, it can do so without recourse to oral evidence. See EZEGBU V. F.A.T.B LTD (1992) 1 NWLR (Pt.220) 699 at 720; MAGNUSSON V. KOIKI (1991) 4 NWLR (Pt.183) 119.
Furthermore, the need to call oral evidence would not arise if the areas of conflict are so narrow or if there are enough documents to assist the Court in the resolution of such conflict. The conflicts in paragraphs 6 and 7 of both the affidavit in support and some paragraphs of the counter-affidavit before the trial Court were highlighted by the Appellants in paragraphs 3.5, 3.7, 3.8, 3.10, 3.11, 3.16, 3.18, 3.19, 3.20, 3.22 etc of their brief. PER HELEN MORONKEJI OGUNWUMIJU, J.S.C.
It is a general principle of law of evidence that where there are irreconcilable conflicts on material facts in the affidavit evidence filed by the parties before the Court over a matter in dispute, such conflicts can only be resolved by calling oral evidence.
In Momah v V.A.B Petroleum Inc. [2000] 4 NWLR (pt. 654) 534, this Court, per Achike JSC, held: “On the question of conflict of affidavit evidence placed before the lower Court which appellant’s learned counsel had submitted should be resolved by oral evidence in order to act on such evidence, our case law is replete with authorities that where a matter is being tried on affidavit evidence and Court is confronted with conflicting or contradictory evidence relied on by parties on a material issue before the Court, it is the law that the Court cannot resolve such conflict by evaluating the conflicting evidence but is obliged to call for oral evidence in order to achieve resolution of the conflict.
See Uku v Okumagba [1974] 3 SC 35, Eboh v Oki [1974] 1 SC 179, Olu-Ibukun v Olu-Ibukun [1974] 2 SC 41, Falobi v Falobi [1976] 1 NMLR 169 and Nwosu v Imo State Environmental Sanitation Authority [1990] 2 NWLR (pt.135) 688. The most important qualification here is “material facts.” The test, therefore would be, whether the oral evidence, if allowed, will likely resolve crucial issues in the substantive action. – PER CHIMA CENTUS NWEZE, J.S.C.
Wherever there is a complaint that the resolution of affidavit evidence has led to a miscarriage of justice, the review Court must consider the importance of the contradictions in determining the actual issues in controversy between the parties. Immaterial contradictions go to no issue. PER HELEN MORONKEJI OGUNWUMIJU, J.S.C.
The averments in the affidavits are seriously conflicting, oral evidence is needed to resolve the conflict. The conflict is on the one of the core issues before the lower Court. The required evidence has not been adduced. In taking this appeal, there is the need for circumspection in order not to predetermine the matter before the lower Court. AUGIE JSC, had this to say on this point” “It is the opinion appealed against that is affirmed or reversed and this Court cannot undertake decision which may be of most importance without hearing what the Court below had to say about it. See UOR VS.
LOKO (1988) 2 NWLR (PT 77) 430 (SC), AJUWON V. ADEOTI (1990) 2NWLR (PT. 131) 271 SC.” PER AWOTOYE, J.C.A.
On the submission that the learned trial Judge resolved material conflicts in the affidavits, without calling oral evidence, the law generally is that where there are conflicts in the affidavit evidence of contesting parties on fundamental issues in a matter, the Court should have recourse to oral evidence to resolve the conflict. The Court is not permitted to prefer one deposition to the other. See MAY MEDICAL CLINIC AND DIAGNOSTIC CENTRE LTD. V. FIRST BANK PLC. (2001) 9 NWLR (PT. 717) 28. SEE ALSO EIMSKIP LTD V. EXQUISITE INDUSTRIES (NIG) LTD (supra) cited by the Appellant’s Counsel.
However, there are exceptions to this general principle of law. One of such exceptions is where there is/are documentary evidence before the Court from which to resolve the conflict, the oral evidence may be dispensed with. Indeed, it becomes unnecessary and the Court can resolve the material conflict by resorting to the documentary evidence that supports one of the affidavits. See OLU-IBUKUN V. OLU-IBUKUN (1974) 2 SC 41, U.B.A. PLC. V. OKON EFFIONG (2011) LPELR-8939, DANA IMPEX LTD V. AWUKAM (2006) 3 NWLR (Pt. 968) 544.
In the case at hand, the learned trial Judge resorted to MOJ I which supports the Respondents’ case that CA/K/200/2020 AMINA AUDI WAMBAI, JCA Page 30 OF 34. PER WAMBAI, J.C.A.