The learned counsel to the Appellant had argued that if there are contradictions in the affidavit and counter affidavit the court should not believe one side and reject the other but, call oral evidence to clear the contradictions. Yes, this is the correct position of the law when the affidavits evidence are from both sides but contradictory.
– Uwa, JCA. GTB v. Innoson (2014) – CA/I/258/2011
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✓ In B.B.B. Manufacturing Co. Ltd. Vs A.C-Bc Ltd (2004} 2 NWLR (Pt. 858) 527@ 550551 F-A, per Pats-Acholonu, JSC as follows: although it is the general rule that uncontradicted evidence from which reasonable people can draw but one conclusion may not ordinarily be rejected by the court but must be accepted as true; it is also true to say that the court is not in all the circumstances bound to accept as true testimony an evidence that is uncontradicted where it is willfully or corruptly false, incredible, improbable or sharply falls below the standard expected in a particular case.
✓ It was held in R-Benkay (Nig) Ltd. v. Cadbury (Nig) Pie. (2012) 9 NWLR (Pt. 1306) 596 @ 624 C – per Peter-Odili, JSC, inter alia, as follows: “… it is not fl fait accompli that once there are averments in an affidavit which are not controverted the result would be a favourable disposition to the position of the party who had proffered the disposition. This is so because all averments must go under the surgical knife of evaluation which is done by the court as a matter of duty to see its acceptability as happened in this case. See also: Gonzee (Nig) Ltd Vs NERDC (2005) 13 NWLR (Pt. 943) 634@ 650 D, cited and relied upon.
In the said suit leading to the instant appeal, there is the said counter-affidavit of the Respondent which is a part of the Records. It is now settled that affidavit evidence, constitutes evidence and any deposition therein not challenged, is deemed admitted. See the cases of Ajomale v. Yaduat & anor. (No.2) (1991) 5 NWLR (Pt.191) 226 @ 282-283; (1991) 5 SCNJ. 178 and Magnusson v. Koikoi (l993) 12 SCNJ 114.
— F. Ogbuagu JSC. Stephens Eng. Ltd. v. S.A. Yakubu (2009) – SC.153/2002
Averments of facts in pleadings must however be distinguished from facts deposed to in an affidavit in support of an application before a court. Whereas the former, unless admitted, constitute no evidence, the latter are by law evidence upon which a court of law may in appropriate cases act. The Court of Appeal, if I may say with the utmost respect, appeared to be under the erroneous impression that an averment in pleadings is synonymous with a deposition in an affidavit in support of an application. This is clearly not the case. So too, an address of Counsel in moving an application is not the evidence in support of such an application. The evidence is the deposition contained in the affidavit in support thereof.
— Iguh JSC. Magnusson v. Koiki (1993) – SC.119/1991
I am in grave difficulty to agree with the submission of learned Senior Advocate. First, the first leg of his submission implies that an affidavit admitted as an exhibit is not open to cross-examination. This conclusion is drawn from his argument that the difference between an affidavit and a deposition which is a written testimony is that the latter is open to cross-examination. That is not my understanding of the law. A party is free to cross-examine on an affidavit admitted in evidence, particularly where there is a counter-affidavit. Where there is no counter-affidavit, then the deposition will be generally deemed to be correct. In the circumstances a blanket statement such as the one by Counsel, cannot be correct.
— Niki Tobi, JSC. Buhari v. INEC (2008) – SC 51/2008
Furthermore, an affidavit showing cause why a defendant should be granted leave to defend an action must disclose a defence on the merit setting out the details and particulars of the defence. The popular expression is that the affidavit must “condescend upon particulars.” The affidavit showing cause must disclose facts which will at least throw some doubt on the plaintiff’s case. See U.B.A. Plc Vs Jargaba (Supra); Macaulay Vs NAL Merchant Bank Ltd (1990) 4 NWLR (Pt. 144) 283: Nishizawa Ltd Vs Jethwani (1984) 12 SC 234.
— K.M.O. Kekere-Ekun JSC. B.O. Lewis v. United Bank for Africa Plc. (SC.143/2006, 14 January 2016)
It is settled law that what pleadings is to a party is what an affidavit is to a party in an interlocutory application or even in certain substantive or originating process and any document attached to an affidavit is part of the affidavit and must be considered together. See UBN PLC v. ASTRA BUILDER (W.A) Ltd (2010) LPELR-3383(SC). The affidavit evidence of the Appellant with the bundle of extradition documents were copious enough to make a prima facie case.
— H.M. Ogunwumiju JSC. A.G of The Federation v. Anuebunwa (SC.CV/118/2021)
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