Attitude of appellate court to findings of fact by trial court

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not made serious efforts to consider numerous cases upon the subject of the

admission of fresh evidence, new evidence or additional evidence on appeal.

It must be appreciated that the Court of Appeal is wholly an appellate Court and as

an appellate Court, appeals are argued before it on the said record of proceedings

forwarded to it by the High Court. However, under Order 1 rule 20(3) of the Court

of Appeal rules, 1981 the Court has power to admit further evidence during the

hearing of an appeal in exceptional cases on special grounds.” As I said above, in

the instant case, it has not been shown that exceptional or special grounds exist for

the admission of the document, there was even no formal application to admit the

document in evidence, rather the learned Senior Advocate threw the document to

the Court and insisted without any reason that it be used. The approach of the

learned counsel for the appellant to this matter is, in my view, totally inexplicable,

misconceived and has no legal backing, I accordingly rule that the document is

inadmissible and I shall ignore it completely in my consideration of the appeal.” -

Per Musdpaher, J.C.A., in Iredia v. First Bank Suit No. CA/B/212/88; (1991) 3

N.W.L.R. (Pt. 182) 751 at 764-765.

(33) ASKING FOR THE INDULGENCE OF COURT

528. Party’s duty when asking for indulgence.

“One who asks the Court to grant him indulgence must show something which

entitles him to the exercise of it: Finding v. Finding (1939) 2 All E.R. 173 at

177.” - Per Omosun, J.C.A., in Ukwu v. Bunge Suit No. CA/B/143M/90; (1991)

3 N.W.L.R. (Pt. 182) at 677 at 689.

(34) ATTITUDE OF APPELLATE COURT TO FINDINGS OF FACT BY

TRIAL COURT

529. Attitude of Appellate Court of findings of fact by trial Court.

“It is settled law that the duty of appraising evidence and ascribing values to it, is

pre-eminetly that of the trial Court who saw and heard the witnesses and that an

appellate Court may not disturb a finding or conclusion in a judgment simply because

it would have come to a different finding or conclusions on the facts. An appellate

Court may, however, interfere with such conclusion or finding at a trial Court if it

is satisfied (1) that the finding was perverse and cannot be supported having regard

to the evidence or (ii) that the finding is an inference from established facts, so

that the appeal Court is in as vantage a position as the trial Court to draw its own

conclusion, or (iii) that the trial Court applied wrong principles of law, see Woluchem

v. Gudi (1981) 5 S.C. 291 at 326: Nwobodo v. Chief Federal Electoral Officer

(1984) 1 S.C. 1 at 53.” Per Tabai, J.C.A., in Odali v. Ahmadu (1999) 5 N.W.L.R.

(Pt. 148) 22 at 30.

Paras. 527-529

299

530. Attitude of Appellate Court to finding of fact by trial Court on credibility

of evidence.

(1) “In the case of Obeng Akesse v. Odikro Takie Ababio 2 W.A.C.A. 264 the

erstwhile West African Court of Appeal laid down the duty of and the circumstances

justifying interference with the finding of facts of the trial Court by the appeal Court.

At page 265 of the report the Court said- “Whilst it (appeal Court) has the right to

form its own opinion even as to the credibility of the respective evidence it should be

very chary about differing from the trial Judge in that respect, but if the question is

the proper inference to be drawn from facts proved, then this Court should form its

own independent opinion. I may say at once that whenever the Judge has expressed

his opinion as to the credibility of the evidence I accept his view without reserve, I

can see no possible reason to differ from it.” (Bracket and contents supplied) See;

also Ebba v. Ogodo & Ors. (1984) 4 S.C. 84; (1984) 1 S.C.N.L.R. 372; Okafor v.

Idigo (1984) 1 S.C.N.L.R. 481; Mogaji v. Odofin (1978) 4 S.C. 91; Victor Woluchem

& Ors. v. Gudi and Ors. (1981) 5 S.C. 319, 326; Benmax v. Austin Motor Co. Ltd.

(1955) 1 All E.R. 326 327; Montgomerie & Co. v. Wallace Jomes (1904) A.C. 73

and Chief Okpiri & Ors. v. Chief Igoni Jonah (1961) All N.L.R. 102; (1961) 1

S.C.N.L.R., P. 174 cited in the appellant’s brief.” Per Salami, J.C.A., in Contract

Resources (Nig.) Ltd. v. Wende (1998) 5 N.W.L.R. (Pt. 549) 243 at 255.

(2) “I signed the memorandum and articles of association of the company. The

signature against my name on the last Exhibit BB annexed to the affidavit in support

of the originating motion is my signature. It is not true that the signature is not mine….”

To compare the signatures in Exhibits 10, on the further counter affidavit on the one

part with the signature on Exhibit BB on the other would not amount to ascription of

probative value to the evidence adduced before the learned trial Judge. It is only

drawing conclusion from the evidence adduced in the lower Court. There are plethora

of authorities to the effect that the appeal Court should differ to the opinion of trial

Judge whenever he has expressed his preference on the credibility of evidence or

witnesses.” Per Salami, J.C.A., in Contract Resources (Nig.) Ltd. v. Wende (1998)

5 N.W.L.R. (Pt. 549) 243 at 257.

531. Attitude of appellate Court to finding of fact by trial Courts.

(1) “Being a finding of fact, the attitude of an appellate Court towards finding of

facts is well settled that ordinarily the appeal Court loathes disturbing finding of fact

by a lower Court unless such finding of fact was perverse or based on credibility of

witnesses. Woluchem v. Gudi (1981) 5 S.C. 291; Ebba v. Ogodo (1984) 1

S.C.N.L.R. 372; Dr. Tunde Bamigboye v. University of Ilorin & Anor. (1999) 10

N.W.L.R. (Pt. 622) 290 at 332, and in Akinloye & Anor. v.. Eyiyola & Ors. (1968)

N.M.L.R. 92 at 95 the Supreme Court held that- “Where a Court of trial unquestionably

evaluates the evidence and appraises the facts, it is not the business of a Court of

Appeal to substitute its own views for the views of the trial Court.” In the instant

Attitude of appellate Court to findings of fact by tral Court Paras. 530-531

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appeal the finding of a delivery date was based on the pleaded fact in the statement

of claim being a demurrer proceeding appellant is deemed to have admitted the fact

therefore I do not find the finding of fact of the delivery date of 31st January, 1996 to

perverse as appellate Court. I do not wish nor inclined to disturb this finding as from

all the circumstances of the case the finding in my view and estimation was not

perverse.” aside.” Per Onalaja, J.S.C., in G & C. Lines v. Olaleye (2000) 10

N.W.L.R. (Pt. 676) 613 at 635.

(2) “In most cases, an appellate Court will not interfere with the findings of fact of a

trial Tribunal which has the unique opportunity of seeing and hearing the witnesses

and observing their demeanour in the witness box. However, where the findings of

fact by a trial Court or Tribunal are perverse or run contrary to the evidence adduced,

an appellate Court will be in as a good a position as the trial Court to come to a

decision more especially where the demeanour of a witness is not in point or the

matter concerns interpretation of documents. Refer to Ebba v. Ogodo (1984) 1

S.C.N.L.R. 372; Fabunmi v. Agbe (1985) 1 N.W.L.R. (Pt. 2) 299. I must say here

that the performance of the Tribunal is commendable.” Per Fabiyi, J.C.A., in Enemuo

v. Duru (2004) 9 N.W.L.R. (Pt. 877) 75 at 103.

(3) “It is a cardinal principle of our law that an appeal Court will not lightly interfere

with the finding of facts of the Court of trial. See e.g. Ebba v. Ogodo (1984) 1

S.C.N.L.R. 372 at 378 E & F Ogbechie v. Onochie (1988) 1 N.W.L.R. (Pt. 70)

370 at 390 G & H. In Paul O. Omoregbe v. Ehigiator Edo (1971) 1 All N.L.R. 282

at 289 the Supreme Court held that: “It is not the business of a Court of Appeal to

substitute its views of fact for those of the Judge of Tribunal.” The only time when

such interference is permissible is when the finding of the facts are perverse of

unsupported by evidence.” Per Nasir, P.C.A. Oyegun v. Igbinedion (1992) 2

N.W.L.R. (Pt. 226) 747 at 758.

(4) “I find no reason to disturb the findings of the Tribunal which is clearly borne out

by the evidence before them and shown on the records. Their findings cannot be

said to be perverse. They cannot be faulted. Before leaving this point, let me reiterate

that appellate Courts always bear in mind that it is the trial Court which has the

advantage of seeing and hearing the witnesses when they testify, and that it is in a

better position to observe and assess them. Thus, unless found to be perverse or that

wrong inferences have been raised or drawn from accepted facts, or that wrong

principles have been applied to facts, our appellate Courts ordinarily do not interfere

with findings of the lower Court or substitute their own views (See Ibodo v. Enarofia

(1980) 5 S.C. 42. Also Ebba v. Ogodo (1984) 1 S.C.N.L.R. 372.” Per Nzeakor,

J.C.A., in Wuam v. Ako (1999) 5 N.W.L.R. (Pt. 601) 150 at 161.

(5) “Issue 2 is who was the candidate of P.D.P. for the Anambra Central Senatorial

election. The individual learned counsel to each of the three sets of parties to this

Para. 531