LEGAL PRINCIPLE: CIVIL PROCEDURE – Retrial – When Appropriate – Failure to Make Findings on Material Issues Depending on Credibility
PRINCIPLE STATEMENT
Where an appeal is allowed because of the failure of the trial court to make findings on material issues and the determination of such material issues depends on the credibility of witnesses, as in the present case, the proper order to make is that of a retrial.
RATIO DECIDENDI (SOURCE)
Per Iguh, JSC, in Sha (Jnr) & Anor v. Da Rap Kwan & Ors (2000) NLC-1401994(SC) at p. 15; Paras D–E.
"Where an appeal is allowed because of the failure of the trial court to make findings on material issues and the determination of such material issues depends on the credibility of witnesses, as in the present case, the proper order to make is that of a retrial."
EXPLANATION / SCOPE
When an appeal succeeds because the trial court failed to make findings on material issues that depend on witness credibility, retrial is the appropriate remedy. The appellate court cannot resolve credibility issues without seeing and hearing witnesses. Remitting for retrial allows a fresh trial court to evaluate credibility properly. Retrial is preferable to making findings on appeal where credibility is central. This preserves the advantage of trial courts in assessing witness demeanor. The remedy restores the parties to pre-trial position for proper adjudication.