“Appellant’s issue No. 3 is on “whether the Court of Appeal correctly and rightly applied the provision of Section 107 of the Evidence Act, 2011 in the instant case. I think I should set out the provision of Section 107 of the Evidence Act, 2011 (as amended): “107. A Court may; in any civil proceeding make an order at any stage, of such proceeding directing that specific facts may be proved at the trial by affidavit with or without the attendance of the deponent for cross-examination. Provided that where a party desires the attendance of such deponent for cross-examination the Court shall require his attendance for the purpose where this would not result in unjustifiable delay or expense.” Without mincing words, the Court below stated how it understood this section of the Evidence Act. It stated: “The above (i.e. the above section as set out) contemplates a situation where the civil proceeding is commenced other than by affidavit evidence and that a particular fact could only be received through an affidavit evidence. In such case, the Court may accept affidavit evidence with or without the appearance of a deponent for cross-examination. However, where a party desires the attendance of such a deponent, he may apply to the Court and the Court shall grant the application unless doing so may lead to unjustifiable delay or expenses. The proceeding in the lower Court was by a motion on notice wherein the parties filed affidavit evidence. No oral evidence is called. The application was heard on the affidavit in support of the application and the affidavits which every party to the application proposes to use at the hearing. Thus, the affidavits constitute the evidence. Whereas as in this case, the appellant desires to controvert or challenges the averments in the counter affidavit; the procedure is for him to file a further affidavit in support of his application. In some cases, Courts admits. (sic) oral evidence to resolve contradictory affidavit evidence which is not the case here.” (underlining supplied) Where proceedings are commenced by a motion, that motion is thus, an originating motion in contradistinction to an ordinary motion which follows a substantive case/suit. The learned trial judge made a finding that “this proceeding is not a continuation of the criminal trial against the 3rd respondent in which trial is dispensed with by this Court. The 3rd respondent’s not put to trial against this proceeding can go on even in the absence of 3rd respondent. Usually, hearing is on affidavit in support and the counter affidavit by the respondent. There are exceptional situations where the motion may be set down and heard with witnesses or with leave, supplement the affidavit evidence beyond testimony. See: Akunnia v. A-G Anambra State & Ors (1977) 5 SC 161. Likewise in resolving contradictory evidence oral evidence may be allowed to resolve the conflict/contradiction: Section 107 of the Evidence Act, 2011 (as amended) provided that trial by affidavit may be done with or without the attendance of the deponent for cross-examination. it however, made a proviso, in the event a party desires the attendance of such deponent for cross-examination, the Court SHALL require his attendance for the purpose WHERE this would not result in UNJUSTI FABLE DELAY or EXPENSE. Now, where the calling of oral evidence would result in unjustifiable delay or expenses the trial Court would refuse the application. The learned trial judge held: “In paragraph 11 of the affidavit in support of this application, counsel had averred that the applicant had expended resources in executing Exhibit EFCC 4 (the bench warrant). Counsel did not give any particulars of the expenditure if any. Now, Exhibit EFCC was directed to the Nigeria Police who by law are saddled with the responsibility of executing same. The Court never imposed that responsibility on the applicant. It was rather the applicant’s counsel who, in open Court, requested to join the police in executing Exhibit EFCC 4 and the Court obliged them. Therefore, they cannot be heard complaining of incurring expenses in executing EFCC 4. Furthermore, such expenses even if proved cannot, in my view, be a reason for this Court to declare the recognizance forfeited.” In his ruling, the learned trial judge found that the calling for oral evidence would occasion a delay. He did not qualify it as “Justifiable or unjustifiable”. The Court below agreed with him. My Lords, a delay, whether justifiable or unjustifiable is a delay, although the two variants may attract different consequences. I do not find any cogent reason to disturb the concurrent decisions of the two lower Courts on this issue. The issue lacks merit and it is hereby decided against the appellant.” Per MUHAMMAD, J.S.C. at Pp. 11-13, Paras. E-C.