Evaluation of evidence by trial court

• Pages: 559-559

559

of the case. Where it is possible to exclude the wrongfully admitted evidence and yet

have enough material to sustain the decision, the wrongful reception of such evidence

would not affect that decision. See section 226 of the Evidence Act (now section

227) (1) of the Evidence Act Cap. 112, Laws of the Federation of Nigeria which

states thus: “227(1) The wrongful admission of evidence shall not of itself be a

ground for the reversal of any decision in any case where it shall appear to the Court

of Appeal that the evidence so admitted cannot reasonably be held to have affected

the decision and that such decision would have been the same if such evidence had

not been admitted. Were Exhibits D1 to D4 to constitute inadmissible evidence, it

was the duty of the respondents or their counsel to have raised an objection to their

admissibility. See Abolade Agboola v. Jagun Olukade (1976) 2 S.C. 83.” -Per

Onu, J.S.C., in Odunsi v. Bamgbala (1995) 1 N.W.L.R. (Pt. 374) 641 at 662.

(63) EVALUATION OF EVIDENCE BY TRIAL COURT

1069. Attitude of appellate Court to evaluation of evidence by trial Court.

(1) “It is settled 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. The learned trial Judge accepted the

evidence of traditional history led by the plaintiffs and rejected that of the defendants

who as I said based their root of title on settlement, while the case presented at the

trial was one of a grant of the land in dispute.” - Per Kutigi, J.S.C., in Eboade v.

Atomesin Suit No. S.C.227/1990; (1997) 5 N.W.L.R. (Pt. 506) 490 at 502.

(2) “The duty of appraising evidence given at a trial is pre-eminently that of the

Court that saw and heard the witnesses, and it is also the right of the Court to ascribe

values to such evidence. The Court of Appeal may not disturb the judgment of the

trial Court if it is supported by evidence even in the slightest degree just because it

would have come to a different conclusion on the same facts. See Ajumobi Ogundulu

& Ors. v. Chief E.O. Phillips & Ors. (1973) 1 N.M.L.R. 267 at 272; (1973) 2

S.C.1; Mogaji v. Odofin (1978) 4 S.C. at 94 - 96; Christopher Okolo v. Eunice

Uzoka (1978) 4 S.C.77 at 86; Adeyeye v. Ajiboye (1987) 3 N.W.L.R. (Pt. 61) 432

at 451 and Nzekwu v. Nzekwu (1989) 2 N.W.L.R. (Pt.104) 373 at 393.” - Per Onu,

J.S.C., in Eboade v. Atomesin (1997) 5 N.W.L.R. (Pt. 506) 490 at 507 - 508.

(64) EXERCISE OF DISCRETION BY COURT OF APPEAL

1070. Attitude of appellate Court to exercise of discretion by trial Court.

(1) “The appellate Courts have said over the years and I have also said it that in the

determination of the exercise of discretion by a trial Judge, an appellate Judge should

not exchange his discretion with that of the trial Judge or substitute his with that of

the trial Judge. Putting it in the most simplistic language, the decision on the discretion

555 Exercise of discretion by Court of appeal Para. 1068-1070