APPELLATE PRACTICE — Retrial — Circumstances for Ordering Retrial — Missing Evidence Disabling Appellate Review
Ratio Decidendi
Per Mohammed, JSC, in Edjekpo & Ors v. Osia & Ors (2007) NLC-123-250-2001(SC) at p. 22; Paras A–C:
"It is trite that an appellate Court will interfere with a trial Court's appraisal of facts if it is unreasonable or perverse or if the trial Court did not properly appraise the evidence adduced before it in arriving at its conclusion. Where this cannot be done by an appellate Court which in the present case include the Court below and this Court, the proper order to make is to order a retrial."
Explanation / Scope
The appellate court’s power to review findings of fact is contingent upon having a complete record of the evidence. Where evidence is missing, the appellate court cannot properly assess whether the trial court’s findings were reasonable or supported by the evidence. In such circumstances, the appellate court cannot affirm the judgment, nor can it substitute its own findings. The only appropriate remedy is to order a retrial, which allows both parties to present their evidence afresh and enables proper appellate review in the event of a further appeal.