LEGAL PRINCIPLE: APPELLATE PRACTICE — Concurrent Findings — Where Trial Court’s Reasons for Preferring Evidence are Faulted — Proper Order is Retrial
PRINCIPLE STATEMENT
Where the trial court's reasons for preferring one party's evidence over another's are found to be faulty, the proper order is to send the case back for retrial.
RATIO DECIDENDI (SOURCE)
Per Ogundare, JSC, in Ewuoso & Anor v. Fagbemi (2002) NLC-1731997(SC) at p. 9; Paras D–E.
"In the light of these findings one would think that the proper order to make is one sending the case back to the trial High Court for retrial."
EXPLANATION / SCOPE
When a trial court’s reasoning for preferring evidence is flawed, the appellate court may order a retrial rather than making its own findings. The principle applies where credibility assessment is involved. The appellate court lacks the advantage of seeing witnesses. A retrial allows a fresh evaluation. The order is discretionary. The court will order retrial where substantial justice requires it. The principle prevents the appellate court from usurping the trial court’s role. The retrial should be before a different judge. The parties will have an opportunity to present their cases afresh. The rule applies in both civil and criminal cases. The appellate court will not make findings on credibility.