LEGAL PRINCIPLE: APPELLATE PRACTICE — Remittal — Retrial — When Ordered
PRINCIPLE STATEMENT
Where findings not appealed against support it, the proper order is not dismissal of the appeal but setting aside the judgment and ordering a trial de novo before another judge.
RATIO DECIDENDI (SOURCE)
Per Ogundare, JSC, in Ewuoso & Anor v. Fagbemi (2002) NLC-1731997(SC) at p. 12; Paras B–C.
"Following their other findings which have not been appealed against, the proper order to make in this case is not one dismissing the appeal but one setting aside the judgment of the trial Chief Judge and an order that the case be tried de novo before another Judge of the Ogun State High Court."
EXPLANATION / SCOPE
When findings not appealed against support a retrial, the appellate court should set aside the judgment and order a trial de novo. Dismissal of the appeal is not the proper order. The principle applies where the trial court’s reasoning is flawed but the evidence may support a different outcome. A retrial allows fresh evaluation before a different judge. The appellate court will not make findings on credibility. The rule promotes substantial justice. The parties will have a fresh opportunity to present their cases. The order is discretionary. The appellate court will consider the interests of justice. The principle applies in both civil and criminal cases.