LEGAL PRINCIPLE: CIVIL PROCEDURE — Retrial — When Order for Retrial Is Inappropriate
PRINCIPLE STATEMENT
An appellate court will be reluctant to order a retrial where: (a) the plaintiff has established his case; (b) a retrial would enable the defendant to improve his position; (c) litigation will be unnecessarily prolonged; (d) proceedings largely complied with evidence rules; or (e) there was no substantial irregularity.
RATIO DECIDENDI (SOURCE)
Per Musdapher, JSC, in Osolu & Ors v. Osolu & Ors (2003) NLC-571998(SC) at pp. 23–24; Paras E–A.
"An appellate court will be reluctant to order a retrial where: (a) The plaintiff has established his case by raising the probabilities in his favour; or (b) The order of retrial will enable the defendant to improve his position during retrial to the prejudice of his opponent; or (c) The litigation will be unnecessarily prolonged; or (d) The proceedings are conducted by the trial court largely in conformity with the rules of evidence and procedure; or (e) There was no substantial irregularity in the conduct of the case. An order for retrial in any of the above instances would occasion injustice on the appellant."
EXPLANATION / SCOPE
Retrial is not automatic. Several factors militate against it. The principle applies to appellate practice. The court will not order a futile retrial. The rule protects against injustice. The appellant must show substantial irregularity. The principle is well-established.