Appellate court's attitude to evaluation of evidence

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468. When Court of Appeal will disturb decision of lower Court.

“Let me reiterate the current position of the law, that unless a decision on appeal is

found to be perverse, the appeal Court does not disturb such a decision. No perversity

is shown to exist in the decision of the UAC. The lower Court affirmed it. It is a

concurrent decision, which is seldom disturbed by the appeal Court. See Magatakarda

v. Isa (1961 1989) 1 S.L.R.N., 159; Nakundi v. Nunu (1998) 3 N.W.L.R. (Pt. 543)

671.” - Per Mahammad, J.C.A., in Kyarmi v. Mungadi Suit No. CA/K/222/S/2000;

(2001) 18 W.R.N. 38 at 41.

(24) APPELLATE COURT’S ATTITUDE TO EVALUATION OF EVIDENCE

469. Appellate Court’s lack jurisdiction to interfere with decision of trial

Court based on credibility of witnesses.

(1)”With regard to the findings of fact, as an appellate Court the findings of fact

were not perverse as they were borne out from the evidence therefore I see no legal

justification to disturb the findings of fact by the learned trial Judge. It is trite law that

an appellate Court lacks jurisdiction to interfere with the decision of a trial Court

based on credibility of witnesses, the complaints and attacks against the judgment of

the learned trial Judge lack substance in that they were based on the demeanour of

the witnesses there is no satisfactory, cogent and convincing reasons that the learned

trial Judge failed to use effectively the opportunity of seeing and hearing the witnesses

therefore I am unable and no legal basis to interfere with the decision of the lower

Court based on credibility of witnesses. The complaints and attacks against the

judgment of the lower Court are unmeritorious and are hereby rejected. Issue one

encompassed by this Court is resolved against the appellants the appeal lacks merit

it is therefore dismissed Elendu v. Ekwoaba (1995) 3 N.W.L.R. (Pt. 386) page

704.” - Per Onalaja, J.C.A., in Eya v. Qudus Suit No. CA/I/75/93; (2001) 15 N.W.L.R.

(Pt. 737) 587 at 622.

(2) “The 1st and 3rd respondents who have boundary with appellant were admonished

to confine themselves within their own portion. The learned trial Judge who saw and

heard DW1 and later evaluated his evidence, part of which was to the effect that “I

know Kalu Agbai (PW3) he was not sent by the Amalas of Eben because he belonged

to one of the branches of the disputing parties, hence they sent five of us who are

independent to come and testify.” This piece of evidence not having been challenged

was the version as between the appellant’s and the respondent’s stories accepted by

the trial Court and it was affirmed by the Court below. The Court below was therefore

right in refusing to re-open the issues as to the credibility of the two witness, see

N.I.C.O.N. v. Power and Industrial Engineering Co., Ltd.(1986) 1 N.W.L.R.

(Part 14) 1 and Etowa Enang v. Ikor Adu (1981) 11-12 S.C. 25 at 39.” - Per Onu,

J.S.C., in Ndukwe v. Acha Suit No. S.C.222/91; (1998) 6 N.W.L.R. (Pt. 522) 25 at

41.

Paras. 468-469 216

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(3) “The trial Judge had the opportunity of seeing and hearing the witnesses testify.

He was placed to assess the demeanour of the witnesses and ascribe probative

value to the evidence. What happened here is that the trial Judge disbelieved the

evidence of 1st and 2nd defendants as to the relationship between them. I have not

the advantage in this Court of seeing the witnesses testify. I ought not disturb the

findings of the trial Judge. See Akinloye & Anor v. Eyiyiola & Ors (1968) N.M.L.R.

92 at 95; Balogun & Ors v. Agboola (1974) 1 All N.L.R. (Pt. 2) 66 at 73 and Chief

Victor Woluchem & Ors v. Chief Simon Gudi (1981) 5 S.C. 291 at 326.” - Per

Oguntade, J.C.A., in Umar v. Ahungwa Suit No. CA/J/98/93; (1997) 1 N.W.L.R.

(Pt. 483) 601 at 612.

(4) “In Ebba v Ogodo (1984) 1 S.C.N.L.R. 372 the application of the principle

deducible from Eso, J.S.C., on credibility of witness is to the following effect that: -

“Where the decision is arrived at after there has been examination of a controversy

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 demeanors 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 can never be available to the appellate Court. (ii) Credibility of witnesses based

on factors other than demeanor: - 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 witnesses before making its finding especially having

regard to the inference that could reasonably be made by just and reasonably Tribunal

from the same factors.” See also Customs v. Barau (1982) 10 S.C. 48; Fabumiyi

&Ors. v. Obaje (1968) N.M.L.R 242; Nasiru v. C.O.P. (1980) 1-2 S.C 94; Benmax

v. Austin Motors Co. Ltd. (1955) A.C.370; Lion Buildings Ltd. v. M.V. Shadipe

(1976) 12 S.C.135; Anyaduba v. NRTC Ltd. (1992) 5 N.W.L.R. (Pt. 243) 535. With

respect the lead judgment in my estimation has gone to re-evaluate the evidence

without adverting itself that it was after consideration of the contents of Exhibit 5

and 6 at pages 46 and 47 that the learned trial Judge concluded at page 48 line 9-19

that his finding and based his conclusion on the credibility of the witnesses after

consideration of Exhibits 5 and 6.

As the conclusion of the trial Judge was based on finding of fact touching

credibility of witnesses after careful consideration of the role of an appellate Court

in interfering with the finding of fact with the above authorities as the beacon guide

with a searchlight on the conclusion of the trial Judge I am reluctantly unable to

agree with the lead judgment in setting aside the finding of fact by the trial Judge that

the appellant failed to discharge the burden placed upon him as he disbelieved the

appellant that he paid for any part of the goods more especially when it was based

217 Appellate Court’s attitude to evaluation of evidence Para. 469

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on credibility of the defendants/appellants, for this reason I find myself unable to

disturb this finding of the trial Judge.

I have considered that there is nothing esoteric or sacrosanct in the usage of the

word “I believe or I disbelieve” if there is no supportive reason but based on the

demeanor of the parties a Court of Appeal is handicapped unless the trial judge

failed to take advantage of the peculiar opportunity of seeing the witnesses. There

has not been in my assessment a failure on the part of the trial Judge.” - Per Onalaja,

J.C.A., in Jumbo. v. Bryanko Int. Ltd. Suit No. CA/PH/104/90; (1995) 6 N.W.L.R.

(Pt. 403) 545 at 562-563.

(5) “In any case the exercise of the appraisal of evidence which the respondent is

asking this Court to embark upon for the failure of the trial Judge to do so, and

pronounce on the merits of the case, cannot be done in the instant case where the

bulk of the evidence led by the parties is oral evidence in which credibility of the

witnesses would have to play a vital role in the determination of which party’s evidence

is heavier on the imaginary scale of justice. It is trite that this Court being an appellate

Court which did not have the benefit of hearing and seeing the witnesses give

evidence, shall not be in a position to determine their credibility. This responsibility is

primarily that of the trial Court. See Karibo v. Grend (1992) 3 N.W.L.R. (Pt. 230)

426.” - Per Mohammed, J.C.A., in Owonikoko v. Arowosaiye Suit No. CA/k/23/

96; (1997) 10 N.W.L.R. (Pt. 523) 61 at 79.

(6) “The learned Judge considered all the evidence adduced on the issue and

disbelieved the appellant. The Court of Appeal, quite rightly, looked into the issue and

found that it was a matter of credibility of the witnesses’ testimonies which they

must not re-open or re-appraise since the Court did not see nor heard the witnesses.

I quite agree. Any trial Court has the liberty and privilege to believe one litigant and

disbelieve the other. Where the issue is that of credibility of witnesses the appellant

Court has a very limited, if any, scope to interfere. It can only do so when the trial

Court decides to believe a witness quite contrary to the trend of accepted evidence

or where oral testimony is contrary to the contents of a written document. See

Samuel Agbonifo v. Madam Arorore Aiwereoba and Anor. (1988) 1 N.S.C.C.

237 at 245; (1988) 1 N.W.L.R. (70) 325.” - Per Mohammed, J.S.C., in Ndukwe v.

Acha (1988) 6 N.W.L.R. (Pt. 552) 25 at 36.

(7) “Can this Court in the instant case turning on the credibility of the witnesses

substitute its own satisfaction for that trial Court? It cannot do so. See Ogbechie v.

Onochie (1988) 1 N.W.L.R. (Pt. 70) p. 370; University of Lagos v. Aigoro (1985)

1 N.W.L.R. (Pt. 1) 143.” - Per Okezie, J.C.A., in Danjuma v. U.B.N. Ltd. Suit No.

CA/J/50/91; (1995) 5 N.W.L.R. (Pt. 395) 318 at 327.

(8) “A plaintiff who however fails to prove his case by credible evidence is bound to

fail, as by virtue of Section 135 of the Evidence. Act Cap. 112, Laws of the Federation

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