LEGAL PRINCIPLE: CIVIL PROCEDURE — Appellate Practice — Order of Retrial — When Appropriate
PRINCIPLE STATEMENT
Where an appellate court can do complete justice between the parties, a new trial should not be ordered. Where a finding depends on credibility of witnesses, a retrial should be ordered. Where the plaintiff has totally failed to prove his case with no substantial irregularity, a retrial should not be ordered.
RATIO DECIDENDI (SOURCE)
Per Ogundare, JSC, in Thompson & Anor v. Arowolo (2003) NLC-1351998(SC) at pp. 46–47; Paras A–C.
"Where an appellate court is in a position, after considering the evidence, to do complete justice between the parties an order for a new trial should not be made; the court should where the circumstances of the case permit, correct the decision appealed against. Where however, a finding depends so much on the credibility or reliability of witnesses an appellate court should order a retrial. Where the plaintiff has failed totally to prove his case and there is no substantial irregularity apparent on the record or shown to the court, an order of retrial should not be made."
EXPLANATION / SCOPE
Retrial is appropriate only when credibility is crucial. The principle applies to appellate practice. The court will not order retrial if it can finally determine the case. The rule prevents unnecessary retrials. The appellant must show substantial irregularity. The principle is well-established.
