APPEAL ON FINDING OF FACT

• Date: 07 September 2019

(1) "As in the Court of Appeal, the appeal here is mainly on facts. I have set out already the duty of an appeal Court when dealing with the issue of findings of fact by a Trial Court. I would like to add that, in my respectful view, the normal error which a Court of Appeal falls into in this regard is in its application of the legal principles. The legal principles are now so well entrenched and Courts of Appeal refer to them with utmost ease and correctness. I think, with respect, that a practical stance should be adopted in the application of these principles, otherwise the principles may become a mere academic statement when in fact it is the practical stance that is essential. It is herein a Court of Appeal usually misses the road. An Appeal Court, in applying these principles should, I venture to suggest: - (a) start with an attitude to the trial Court, as the only Court which has, principally, the duty to make findings of fact from the evidence "oral and or documentary" before it, also that the trial Court is the Court that has been specially suited, by its peculiar constitution, set up and rules, so to do. (The trial Judge sees the witnesses and has the exclusive advantage to observe their demeanour) (b) then find out whether the conclusion which has been arrived at by the trial Court is justifiable, when it is re- examined against the very premise and or the controversy vel non which formed the basis of the conclusion arrived at by the trial Court; (c) where the conclusion is arrived at without any real controversy, e.g. in the case of documentary evidence, or where it does involve a controversy the controversy is limited only to number, complexity or contradiction or interpretation of the document or further where there is oral evidence but it involves merely an admission by the adversary or there is an unchallenged piece of oral evidence, the Court of Appeal should consider itself to be in as good a position as the Trial Court, in so far as the evaluation of such evidence as aforesaid in this paragraph is concerned; (d) where the decision is arrived at, after there has been an examination of a controversy (and this is the commonest aspect) as where the opposing parties produce witnesses in the case to contradict each other by oral evidence, then the Court of Appeal should appreciate that the following will be relevant: - (i) Credibility of witnesses based on demeanour of the witnesses only: Here, the trial Court is the sole judge as the observation of the demeanour of witnesses has to be peculiar and exclusive to the trial Court which advantage is not and may never be available to the appellate Court. (ii) Credibility of Witnesses based on factors other than demeanour. The Court of Appeal should examine those factors which the trial Court examined as a result of which it made the inference which led to its finding and determine whether that trial Court has made use of its singular advantage of seeing and hearing the witnesses before making its finding especially having regard to the inference that could reason-ably be made by a just and reasonable Tribunal from the same factors." - Per Eso, J.S.C. in Chief Frank Ebba v. Chief Warri Ogodo & Anor. Suit No. 79/1982; (1984) 15 N.S.C.C. 255 at 261; (1984) 4 S.C. 84 at 98, 100 and 102- 104.

(2) "Issues of fact, evaluation of evidence, credibility of witnesses, these are peculiarly and comfortably within the exclusive competence and domain of the trial Court. An appellate Court is bound by the findings of the trial Court especially where, as in this case, much depended on which side the trial Judge believed before making his findings. Issues of the credibility of witnesses are best left to the Judge who saw, heard and believed. An appellate Court would not normally descend into the arena (if it is still open I doubt) of contest to usurp the functions of the trial Court except: - (i) where no finding was made on a relevant and material issue; (ii) where there is no evidence to support the...