CIVIL PROCEDURE – Remittal of Case – Failure of Trial Court to Resolve Conflicting Traditional History Evidence
Ratio Decidendi
Per Ogundare, JSC, in Ibenye v. Agwu (1998) NLC-771992(SC) at pp. 36–37; Paras C–E:
"The decision of the case before the trial court depended on which of the parties' traditional history to believe. The court below should have proceeded to set aside the decision of the trial court. Instead, it gave judgment for the plaintiffs. It could not have done so. Since the trial court failed to resolve the conflict in the evidence of traditional histories of the parties, the court below should have remitted the case to the High Court for retrial. The lacuna created by the trial Judge can only be put right by a trial court."
Explanation / Scope
Failure to resolve conflicting traditional history is a fundamental error. The appellate court cannot resolve it for the first time. The proper remedy is remittal for retrial. The principle applies to land disputes. The trial court has the advantage of seeing witnesses. The appellate court should not make findings on credibility. The rule promotes substantial justice. The remittal allows a fresh evaluation.