APPELLATE PRACTICE — Retrial — When Order of Retrial Inappropriate
Ratio Decidendi
Per Onnoghen, JSC, in Mafimisebi & Anor v. Ehuwa & Ors (2007) NLC-123-160-1995(SC) at p. 46; Paras B–E:
"Where a trial court fails in its primary duty of making findings of fact on issues joined on the pleadings and the evidence is such that an appellate court cannot make its findings and come to a decision on all the relevant issues, an order of retrial is the proper order. However, where the evidence not evaluated by the trial court is documentary and does not depend on the demeanour of witnesses, an appellate court has as much right or duty to appraise same as the trial court."
Explanation / Scope
An order of retrial is not automatic where a trial court fails to evaluate evidence. The appellate court must consider the nature of the evidence. If the evidence is oral and depends on witness demeanour, the appellate court cannot substitute its own assessment, and a retrial is appropriate. However, if the evidence is documentary, the appellate court is in as good a position as the trial court to evaluate it and may do so without ordering a retrial. This principle promotes judicial economy while respecting the trial court’s advantage in assessing oral testimony.