Notifications
Clear all
Topic starter
July 2, 2019 10:26 am
“In Onwuka v Onwuka (2017) LPELR- 42281 (CA) on how conflict on material facts in affidavit evidence are resolved, it was held thus:
“It is a general rule and also well established, that where two or more affidavits filed in respect of a particular subject matter are contradictory on material facts that need to be established, to enable a Court make its decision one way or the other in a case, the proper and normal procedure to be employed is calling for oral evidence in resolving the dispute. See Falobi V. Falobi (1976) 9 - 10 S.C. (Reprint) 1; Olu-Ibukun & Anor V. Olu-Ibukun (1974) 1 S.C., 179; N.N.P.C. V. Sabana (1988) NWLR (Pt. 74) 23; Okere V. Nlem (1992) NWLR (Pt. 234) 132; Nwosu V. Imo State Environmental Sanitation Authority & Ors. (1990) 4 S.C. 71 and Chairman, N.P.C. V. Chairman, Ikere L.G.A. & Ors. (2001) 13 NWLR (Pt. 731) 590.”
The above stated principle however, admits of some exceptions among which is reference to an authentic document which could be used in resolving the conflicts. That is, if there be in existence any authentic documentary evidence which could be used in resolving the said conflicts in the affidavits, the courts are advised to have recourse to such document(s) and resolve the conflicts, without necessarily calling for oral evidence. See the cases of Calabar Central Cooperative Thrift & Credit Society Ltd & Ors v Bassey Ebong Ekpo (2001) 17 NWLR (PT. 743) 64 where His Noble Lordship, EKPE, JCA, enunciated as follows:
“It has to be emphasized here that, it is not only by calling oral evidence that conflicts in affidavit evidence could be resolved as there may be authentic documentary evidence, which supports one of the affidavits in conflict with another and which is capable of resolving the conflict and tilting the balance in favour of the affidavit which agrees with it. Documentary evidence is a yardstick with which to assess oral evidence. Where, therefore, there are documents which will enable the Court to resolve the affidavits which are materially in conflict, there is no need for oral evidence. See Fashanu v Adekoya (1974) 1 ALL NLR (Pt. 1) 35 at page 118; Monica Ego Kanno v Mrs. Banigo Ibiani Kanno & Ors. (1986) 5 NWLR (Pt. 40) 138 at 139; Lijadu v Lijadu (1991) 1 NWLR (Pt. 169) 627 at 649.”
See also the case of Hope Uzodinma v Senator Osita B. Izunaso & Ors (2011) 17 NWLR (PT. 1275) 30 wherein His Lordship, BADA, JCA, held as follows:
“...the law is firmly established that where there is enough documentary evidence outside the conflicting evidence, the Court can make use of the documentary evidence in resolving the issue before it. And there will be no need to resort to any oral evidence in such circumstances. See the case of: Lijadu v Lijadu (1991) 1 NWLR (PT 169) page 627 at 649.” See also Akujobi & Anor v Ekeman & Ors (1998) LPELR – 6456.”
- PER A. O. OBASEKI-ADEJUMO, J.C.A. IN
COLLINS COMMERMEX NIGERIA LIMITED & ANOR VS SKYE BANK PLC
APPEAL NO: CA/L/754/16
LEGALPEDIA ELECTRONIC CITATION: LER[2019] CA/L/754/16
O. J. David reacted
