Appeal against weight of evidence

• Pages: 176-176

176

Per Muntaka-Coomassie, J.C.A., in Ogbeide v. Osula (2003) 15 N.W.L.R. (Pt.

843) 266 at 284.

(17) APPEAL AGAINST WEIGHT OF EVIDENCE

364. Appellate Court’s duty where judgment of trial Court is said to be against

weight of evidence.

(1) “In Macaulay v. Tukuru (1881 1911) 1 N.L.R. 35, the held not as to what was

held in that judgment, which I think correctly summarizes the principle therein laid

down, read along with the extracts of judgments of Lindley, M.R., in Coghlan v.

Cumberland (1898) 1 Ch. 704 and Lord Esher, M.R., in Colonial Security Trust

Co. Ltd. v. Massey (1896) 1 Q.B.D. 38 therein considered, reads: “When a judgment

is appealed from as being against the weight of evidence the appeal Court must

make up its mind on the evidence, not disregarding the judgment appealed from but

carefully weighing and considering it and not shrinking from overruling it, if, one full

consideration, it comes to the conclusion that the judgment is wrong.” - Per Uwaifo,

J.C.A., in Davies v. Ajibona Suit No. CA/L/161/91; (1994) 5 N.W.L.R. (Pt. 343)

234 at 252.

(2) “When an issue is raised on an appeal on the question whether or not the decision

is against the weight of evidence, that issue is not properly argued in the brief by the

appellant merely stating that the defendant gave evidence supporting, his defence

and merely repeating that the decisions is against the weight of evidence as has been

done in this case without particularizing in what regard it is contended that the decision

is Against the weight of evidence. Merely to argue the issue in such vague terms is

to lure the Court into arguing the appellant’s appeal for him. In our system of justice

that is not the role of the Court.” - Per Ayoola, J.C.A., in Davies v. Ajibona Suit

No. CA/L/161/91; (1994) 5 N.W.L.R. (Pt. 343) 234 at 254.

(18) APPEALS GENERALLY

365. Appeal.

“Afterwards an appeal is not an inception of a new case; no new issues are raised

and no fresh evidence taken. It is a continuation of the original suit. See Oredoyin v.

Arowolo (1989) 4 N.W.L.R. (Pt. 114) 172, 211.” - Per Nsofor, J.C.A., in Ejilemele

v. Opara Suit No. CA/PH/46M/91; (1998) 9 N.W.L.R. (Pt. 567) 587 at 609.

366. Appeals and what the appellate Court considers in an appeal.

“Appeals are by way of re hearing. The appellate Court should reconsider the materials

before the trial Judge and should not hesitate to overrule his decision even on facts

where, after giving due regard to the advantage which the trial Court has of seeing

the witnesses, it is clear the decision is wrong.” - Per Ayoola, J.S.C., in Okhuarobo

v. Aigbe Suit No. S.C.82/1997; (2002) 9 N.W.L.R. (Pt. 711) 29 at 83.

Paras. 363-366 172