LEGAL PRINCIPLE: APPELLATE PRACTICE – Retrial – When Appropriate
PRINCIPLE STATEMENT
A retrial order is not made without sufficient grounds. It is fundamental that an appellate court should bear in mind that in exercising its discretion to make an order for the retrial of a case, the paramount and only consideration is to ensure that justice is done to both parties and that the discretion should not be exercised in a manner that will make it appear that the court is only concerned with one party being given an unjustifiable opportunity to relitigate a case which has either truly failed or truly succeeded... Where it is clear, therefore, from the evidence that the trial court rightly concluded that a plaintiff had failed to establish the claim he presented to court and there was no irregularity affecting the proceedings which would warrant a retrial of the case, an order of retrial will be erroneous.
RATIO DECIDENDI (SOURCE)
Per Uwaifo, JSC, in Duru & Ors v. Onwumelu & Anor (2001) NLC-1421998(SC) at p. 19; Paras A–C.
"A retrial order is not made without sufficient grounds. It is fundamental that an appellate court should bear in mind that in exercising its discretion to make an order for the retrial of a case, the paramount and only consideration is to ensure that justice is done to both parties and that the discretion should not be exercised in a manner that will make it appear that the court is only concerned with one party being given an unjustifiable opportunity to relitigate a case which has either truly failed or truly succeeded... Where it is clear, therefore, from the evidence that the trial court rightly concluded that a plaintiff had failed to establish the claim he presented to court and there was no irregularity affecting the proceedings which would warrant a retrial of the case, an order of retrial will be erroneous."
EXPLANATION / SCOPE
Retrial orders require sufficient grounds. The paramount consideration is justice to both parties. Retrial should not give one party an unjustifiable second chance to relitigate a case that truly failed or succeeded. If the trial court rightly concluded the plaintiff failed to prove their claim and no irregularity warranted retrial, ordering retrial is erroneous. The appellate court must not favour one party. Retrial is not a remedy for failure of proof. The principle prevents abuse of retrial orders. The court examines whether the failure was due to procedural defect or insufficient evidence. If the plaintiff simply failed to discharge the burden, dismissal is proper. The appellate court’s discretion must be exercised judicially.
