LEGAL PRINCIPLE: CIVIL PROCEDURE – Appeals – Retrial – When Appellate Court May Order Retrial
PRINCIPLE STATEMENT
Where an appeal is allowed on the ground of failure of the trial court to resolve relevant issues and to make findings on material facts, and the determination of such material issues and/or facts, as in the present case, depends on the credibility of witnesses, the proper order to make in such circumstance is that of a retrial of the suit.
RATIO DECIDENDI (SOURCE)
"Where an appeal is allowed on the ground of failure of the trial court to resolve relevant issues and to make findings on material facts, and the determination of such material issues and/or facts, as in the present case, depends on the credibility of witnesses, the proper order to make in such circumstance is that of a retrial of the suit."
EXPLANATION / SCOPE
When an appeal succeeds because the trial court failed to resolve relevant issues or make findings on material facts, and those issues depend on witness credibility, retrial is the proper order. The appellate court cannot assess credibility without seeing witnesses. Remitting for retrial allows a fresh trial court to evaluate credibility properly. Retrial is preferable to the appellate court making findings where credibility is central. The remedy restores the parties to pre-trial position for proper adjudication. The appellate court should not substitute its own view where credibility matters. Retrial is not automatic—it requires that the failure to make findings was substantial and that the unresolved issues are material to the outcome. The retrial order is without prejudice to either party’s case.
