Practice and Procedure

• Pages: 6-522

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(35) EVALUATION OF EVIDENCE.

Approach of appellate Court where evaluation of evidence by trial Court is challenged.

“It is also the law that where a judgment is attacked on the ground of being against the weight

of evidence or where the finding or non-finding of facts is questioned, the Court of Appeal in

its primary role in considering a judgment on appeal in a civil case in which the finding or non-

finding of facts is questioned will seek to know the following:- “(i) The evidence before the

trial Court; (ii) Whether it accepted or rejected any evidence upon the correct perception; (iii)

Whether it correctly approached the assessment of the value on it; (iv) Whether it used the

imaginary scale of justice to w eigh the evidence on either side; (v) Whether it appreciat ed upon

the preponderance of evidence which side the scale weighed having regard to the burden of

proof. See Agbonifo v. Aiwereoba (1988) 1 N.W.L.R. (Pt. 70) 325 at 339; MISR (Nig.) Ltd. v.

Ibrahim (1975) 5 S.C. 55 at 62; Egonu v. Egonu(1978) 11-12 S.C. 111 at 129.” – Per Obadina,

J.C.A., in Bodi v. Agyo Suit No. CA/J/42/97; (2003) 16 N.W.L.R. (Pt. 846) 305 at 317 – 318.

Ascription of probative value to conflicting oral evidence of witnesses.

“It is clear to me that in the face of exhibit 4, DW2 was obviously lying when he testified on

oath in Court that it was not true that the passengers were asked to bring their bags of money

for safekeeping on the day they travelled. It is also apparent that the testimony of DW2 did not

deserve any greater weight on this issue as well as on the issue of the condition of the safe

when plaintiff’s money was found missing from the other parcels accepted for safe keeping

than was given by the learned trial Judgeto the other witnesses presented by the defence except

DW3 who only came to produce documents in the Court’s custody. Also since exhibit 4

supported the version of the plaintiff and his witnesses on the issue of handing over moneys by

passengers to DW 1 at the commencement of the journey, it stands to reason that the evidence

of the plaintiff and his witnesses deserves to be given greater weight and credibility (as given

by the Court) when there is conflict between the assertions of plaintiff and those of the

defendants.” – PerOduyemi, J.C.A., in Oluigbo v. Umeh Suit No. CA/A/34/98; (2004) 6

N.W.L.R. (Pt. 870) 621 at 643.

Attitude of appellate Court to appraisal and evaluation of evidence by trial Court and

when it will interfere therewith.

(1) “It is only where a trial Court or Tribunal fails in its duty to evaluate evidence adduced

before it before deciding a case, that an appeal Court can re-evaluate such evidence based on

the record or where the decision of the trial/Court/Tribunal isperverse, that an appeal Court

can interfere, disturb or re-evaluate such evidence. See Tinubu v. Khalil & Dabbo Transport

Nig. Ltd.(2000) 11 N.W.L.R. (Pt. 677) 171. In the instant case, we did not subscribe to the

view expressed by the 1st cross-appellant’scounsel that the decision of the Tribunal is perverse

at all. We therefore find no justifiable reason to re-evaluate the evidence adduced at the trial.”

– PerSanusi, J.C.A., in Bayo v. Njidda Suit No. CA/J/153/2003; (2004) 8 N.W.L.R. (Pt. 876)

544 at 612 – 613.

(2) “The law has long been settled, that an appeal Court has no right to substitute its view of

the evidence because the trial Court had the golden opportunity of seeing, hearing and watching

the demeanour of all the witnesses that testified before it. SeeOdofin v. Ayoola(1984) 11 S.C.

72; Bunyan v.Akingboye(1999) 7 N.W.L.R. (Pt. 609) 31; Fabunmi v.Agbe(1985) 1 N.W.L.R.

(Pt. 2) 299; Ebba v. Ogodo(1984) 1 S.C.N.L.R. 372. As I posited earlier, it is only where a

trial Court/Tribunal failed to properly evaluate the evidence before it as a result of which its

decision is perversethat an appellate Court can evalu ate, re-evaluate or interfere with or disturb

the decision of a trial Court. Even then, such failure to evaluate must be clear and glaring from

the trial Court’s printed record before an appellate Court can embark on the exercise of

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evaluation or re-evaluation. See Adegoke v. Adibi (1992) 5 N.W.L.R. (Pt. 242) 410; Macaulay

v. Tukuru (1881-1911) 1 N.L.R. 35.” – PerSanusi, J.C.A., in Bayo v. Njidda Suit No.

CA/J/153/2003; (2004) 8 N.W.L.R. (Pt. 876) 544 at 616.

(3) “The evaluation and ascription of probative value are the primary functions of a trial Court

see Oduwola v. Aina(2001) 17 N.W.L.R. (Pt. 741) 1. Where that Court clearly evaluated the

evidence before it, the appeal Court ought not to interfere with its findings. The appellate Court

may in fact not do so unless the findings are perverse. See Kuforiji v. V.Y.B. Ltd.(1981) 6-7

S.C. 40; Fashanu v. Adekoya (1974) 1 All N.L.R. (Pt. 1) 35; Akinloye v. Eyiyola (1968)

N.M.L.R. 92; Woluchem v. Gudi (1981) 5 S.C. 291; Onyejekwe v. Onyejekwe (1999) 3

N.W.L.R. (Pt. 596) 482.” – PerNzeako, J.C.A., in Bayo v. Njidda Suit No. CA/J/153/2003;

(2004) 8 N.W.L.R. (Pt. 876) 544 at 624.

(4) “The law is trite that if there has been a proper appraisal of evidence by a trial Court, an

appellate Court ought not to embark on a fresh appraisal of the same evidence in order merely

to arrive at a different conclusion from that reached by the trial Court. See Akinleye v. Eyiyola

(1968) N.M.L.R. 92; Nwankpu v. Ewulu (supra).” – PerTobi, J.S.C., in Owie v. Ighiwi Suit

No. S.C. 257/2000; (2005) 5 N.W.L.R. (Pt. 917) 184 at 221.

(5) “Where a trial Court appraises the facts of a case and evaluates the evidence, it is not the

function of an appellate Court to interfere with such finding of facts made by the trial Judge

see the case of: – (1) Sagay v. Sajere(2000) 6 N.W.L.R. (Pt. 661) p. 360 (2) Wilson v. Oshin

(2000) 9 N.W.L.R. (Pt. 673) p. 442.” – PerAbdullahi, J.C.A., in Trade Bank Plc. v. Yisi (Nig.)

Ltd. in Suit No. CA/IL/M.6/2003; (2006) 1 N.W.L.R. (Pt. 962) 101 at 137.

(6)“The Court of Appeal may not disturb the judgment of the 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: AjumobiOgundulu & Ors. v. Chief E.O. Philips & Ors.(1973) 1

N.M.L.R. 267 at 272; Mogaji v.Odofin (1978) 4 S.C. 91 at 93; 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;

Nzekwu v. Nzekwu(1989) 2 N.W.L.R. (Pt. 104) 373 at 393. When a trial Court fails in its

appraisal of evidence and the appellate Court is in as good a position as the trial Court to

reappraise such evidence and make appropriate findings thereon from the printed record and/or

documents put in evidence, it will do so instead of ordering a retrial. However, when the

evidence is such that the impression of the trial Court of the witnesses as to their credibility is

bound to play a decisive role, the Appellate Court which, naturally had no advantage of making

such an impression cannot embark on the evidence. It will order a retrial unless the case can be

decided by the Appellate Court on other crucial grounds. See: Ugwu v. Ogbuzuru(1974) 10

S.C. 191; Olatunji v. Adisa(1995) 2 N.W.L.R. (Pt. 376) 167; Oro v. Falade(1995) 5 N.W.L.R.

(Pt. 396) 385; Tinubu v. Khalil & Dibbo Transport Limited(2000) 11 N.W.L.R. (Pt. 677) 171.”

– PerAkaahs, J.C.A., in Ilokson & Co. (Nig.) Ltd. v. U.B.N. Plc. Suit No. CA/J/97/2003; (2009)

1 N.W.L.R. (Pt. 1122) 276 at 316.

(7) “The function of a trial Court is the appraisal of oral evidence and the ascription of probative

value of such evidence. Therefore, where the issue turns on the credibility of witnesses, an

appellate Court which has not seen or heard the witnesses mustdefer to the opinion of the trial

Court. Unless an appellant can show that miscarriage of justice had been occasioned, and there

was in fact a wrong appraisal of the evidence, the opinion of the trial Court must be accepted.”

– Per Bulkachukwa, J.C.A., inBongo v. Gov., Adamawa State Suit No. CA/YL/8/10; (2013) 2

N.W.L.R. (Pt. 1339) 403 at 446.

(8) “It is trite law that a Court of Appeal should not lightly reverse or disturb the conclusions

or views of the trial Court based on the credibility of witness.” – Per Bulkachukwa, J.C.A., in

Bongo v. Gov., Adamawa State Suit No. CA/YL/8/10; (2013) 2 N.W.L.R. (Pt. 1339) 403 at

446.

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(9) “It is trite law that the ascription of probative value to the evidence adduced in a case is pre-

eminently the business of the trial Court which saw and heard the witnesses. An appellate Court

will not lightly interfere with the same unless for compelling reasons: See Ogbechie Onochie

(No. 2) (1988) 1 N.W.L.R. (Pt. 70) 370 and Makinde v. Akinwale (2000) 1 S.C. 89, (2000) 2

N.W.L.R. (Pt. 645) 535 and Agbomeji v. Bakare(1998) 9 N.W.L.R. (Pt. 564) 1.” – Per

Ogakwu, J.C.A., in Raphael v. Ezi Suit No. CA/B/458/2013, (2015) 12 N.W.L.R. (Pt. 1472)

39 at 58 – 59.

(10) “The point must also be made that ascription of probative value to the evidence of

witnesses is pre-eminently the business of the trial Court which heard the witnesses. An appeal

Court does not make it a practice to lightly interfere with same unless for compelling reasons.

See Ebba v. Ogodo(1984) 1 S.C.N.L.R. 372; Ogbechie v. Onochie(1988) 1 N.W.L.R. (Pt. 70)

370; Arowolo v. Olowookere(2011) 18 N.W.L.R. (Pt. 1278) 280 at 312.” – Per Fabiyi, J.S.C.,

in Taiwo v. Ogundele Suit No. S.C. 142/2004; (2012) 15 N.W.L.R. (Pt. 1322) 57 at 80.

(11) “Ascription of probative value to the evidence before the Court is pre-eminently that of

the trial Court who saw and heard the witnesses. An appellate Court will not lightly interfere

with same unless for compelling reasons. (1) Ebba v. Ogodo (1984) 1 S.C. 372; 1 S.C.N.L.R.

372 (2) Ogbechie v. Omochie (1988) 1 N.W.L.R. (Pt. 70) Pg. 370 (3) Omoregbe v. Edo (1971)

All N.L.R. p. 282; and (4) Ayua v. Adasu (1992) 3 N.W.L.R. (Pt. 231) p. 598 Such compelling

reasons are as follows: (a) If the finding is perverse and cannot reasonably be supported having

regard to the evidence or (b) If the finding is an interference from established facts so that an

appellate Court is in a vantage a position as the trial Court to draw its own conclusions or (c)

If the trial Court has applied wrong principles of law or (d) When the decision of the trial Court

has occasioned a miscarriage of justice.” – Per Omoleye, J.C.A., in Ojo v. F.R.N. Suit No.

CA/A/81C/06; (2008) 11 N.W.L.R. (Pt. 1099) 467 at 536.

(12) “An appellate Court will be reluctant to interfere with the decision of a trial Court on issues

of assessment or weight of evidence except such decision is perverse and not the result of

proper exercise of judicial discretion. In this appeal, as the trial Judge failed to consider issues

some of which are listed above, the decision of the lower Court was bound to be perverse and

not the result of a proper exercise of judicial discretion. See Lord Jankerton in WATT Thomas

v. Thomas(1947) A.C. 484. This decision was approved in Okpiri v. Jonah & Ors.(1961) 1

S.C.N.L.R. 174; (1961) 1 All N.L.R. 102 at 104.” – PerUmoren, J.S.C., in Anyafulu v. Agazie

Suit No. CA/E/169/2001; (2005) 3 N.W.L.R. (Pt. 912) 416 at 431 – 432.

(13)“It is the function of a Court of law to appraise and evaluate all evidence adduced before

it oral and documentary in its fact-finding mission before reaching a decision thereon. Where

the lower Court fails to properly appraise and evaluate the evidence, that is, it abdicates the

sacred duty, the matter at large is for the appellant Court. See Romaine v. Romaine(1992) 4

N.W.L.R. (Pt. 238) 650. In the instant appeal the Court below failed completely to advert its

mind to exhibit ‘M’. Exhibit ‘M’ is the allocation register/list containing the name of the

appellant as the occupant of stall No. 1052. Exhibit ‘M’ of course is a very significant piece of

evidence paramount to the appellant’s case as it is the only document tendered which

establishes possession ofthe stall by the appellant. Is this omission by the lower Court

sufficient to vitiate the proceedings? It is necessary in the circumstances to examine exhibit

‘M’. Exhibit ‘M’ was tendered by the appellant through her witness DW1 Jonathan Omode

who was also a trader at Igbudu Market just like the appellant. He tendred exhibit ‘M’ a list of

all traders at Igbudu Market which list also contains the name of the appellant as the occupant

of stall 1052. DW1 did not state this source or how he came by exhibit ‘M’. The respondents

at the Court of trial called two witnesses, PW1 and PW2. PW1 Daniel Igbinosun, a Senior

Executive Officer Accounts, th e market master at the material time. He stated that the appellant

is not their tenant as there is nothing to show thatshe is one. PW2 Newton Akuya, the former

market master before PW1 stated in his evidence that the stall was assigned to the 2nd