APPELLATE PRACTICE — Retrial — Circumstances When Court Will Reluctantly Order Retrial
Ratio Decidendi
Per Onnoghen, JSC, in Ogedengbe & Ors v. Balogun & Ors (2007) NLC-123-273-2001(SC) at pp. 24–25; Paras D–A:
"An appellate court will be reluctant to order a retrial where: (i) the plaintiff has established his case by raising the probabilities in his favour; or (ii) the order of retrial will enable the defendant to improve his position during retrial to the prejudice of his opponent; or (iii) the litigation will be unnecessarily prolonged; or (iv) the proceedings are conducted by the trial court largely in conformity with rules of evidence and procedure; or (v) there was no substantial irregularity in the conduct of the case."
Explanation / Scope
This principle lists circumstances where appellate courts will be reluctant to order retrial. Where the plaintiff has established a prima facie case, ordering retrial would allow defendants to improve their position. Also, retrial is avoided if it will prolong litigation unnecessarily. Where proceedings largely complied with evidence rules and procedure, retrial is not warranted. Where there is no substantial irregularity, retrial is inappropriate. The principle ensures retrials are not used to give parties a second chance to present a better case. It promotes finality and efficient use of judicial resources. The principle applies in civil appeals where retrial is sought.