LEGAL PRINCIPLE: APPELLATE PRACTICE – Retrial – Circumstances Justifying Order for Retrial – Where Trial Court Has Made Improper Use of Opportunity of Seeing Witnesses
PRINCIPLE STATEMENT
Where the trial court has made an imperfect or improper use of the opportunities of seeing the witnesses, the appellate court will not seek to ascribe credibility to the witnesses but would order a retrial.
RATIO DECIDENDI (SOURCE)
Per Ayoola, JSC, in Sagay v. Sajere & Anor (2000) NLC-801994(SC) at p. 6; Para E.
"Where the trial court has made an imperfect or improper use of the opportunities of seeing the witnesses, the appellate court will not seek to ascribe credibility to the witnesses but would order a retrial."
EXPLANATION / SCOPE
The trial court’s advantage in seeing and hearing witnesses is fundamental. Where it fails to properly utilize this advantage—by not assessing credibility or making findings based on demeanor—the appellate court cannot substitute its own credibility assessment. In such cases, the appropriate remedy is a retrial before a different judge. This ensures that credibility determinations, essential to justice, are made by the tribunal best positioned to make them. The appellate court’s inability to assess credibility directly necessitates returning the case for fresh adjudication.