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IT IS THE PRIMARY DUTY OF TRIAL COURT TO ASSESS WITNESSES

Dictum

I fully subscribe to the well settled position of the law that an appellate Court which had not seen the witnesses testify and observe their demeanour in the witness stand, should respect the views of a trial Court and should not readily substitute its own views except where it is shown that the conclusion reached by the Court below was perverse. An appellate Court must always bear it in mind that the primary function of assessing the quality of evidence and ascribing probative value thereto is that of the trial Court, which heard and saw the witnesses testify. Thus, it is only when the findings of the trial Court have been demonstrated to be perverse as not flowing from the established and proved evidence or hinged on extraneous matters or for whatsoever other reasons not correct that an appellate Court would intervene to disturb such findings of fact and re-evaluate the evidence on the printed record, if so called upon by the Appellant to make proper findings in accordance with the dictates of justice. See Saeed v. Yakowa (2013) All FWLR (P. 692) 1650 @ p. 1681. See also Layinka v. Makinde (2002) FWLR (Pt. 109) 1557 @ p. 1570; Martins v. COP (2013) All FWLR (Pt. 666) 446 @ p. 460; Obajimi v. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ p. 19. See also Owor v. Christopher (2010) All FWLR (Pt. 511) 962 @ p. 992; Sogbamu v. Odunaiya (2013) All FWLR (Pt. 700) 1247 @ p. 1307.

— B.A. Georgewill JCA. Stanbic IBTC Bank Plc V. Longterm Global Capital Limited & Ors. (CA/L/427/2016, 9 Mar 2018)

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VARIATIONS IN LPDC PANEL MEMBERS AFFECTS ITS’ FINAL DECISION

In Adeigbe & Anor v. Salami Kusimo & Ors (1965) LPELR -25226 (SC) this issue was properly explained by Ademola JSC (as he then was) as follows: “The complaint against a hearing that was not always before the same bench does not pertain to any matter that goes to the jurisdiction of the Court. It is at bottom a complaint that the judgment cannot be satisfactory on the ground that as the persons who gave it had not seen and heard all the witnesses, they could not appraise the evidence as a whole and decide the facts properly. Thus, it is a complaint on the soundness of the judgment itself, and not a complaint that is extrinsic to the adjudication, which is the test to apply when considering a submission on jurisdiction. We are therefore of the opinion that variations in the bench do not make the judgment a nullity; they may make it unsatisfactory, and it may have to be set aside for this reason, but whether they do or not depends on the particular circumstances of the case.”

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HE IS NOT ON TRIAL FOR THAT

The Appellant himself testified that he was a narcotics dealer, but he is not on trial for that. – Ogunwumiju JCA. Okeke v. State (2016)

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ASSESSMENT OF WITNESS IS WITHIN THE PROVINCE OF THE TRIAL COURT

In the case of Afolalu v. The State (2012) vol. 10 LRCNCC 30 at 40, ratio 13; (2010) 16 NWLR (Pt. 1220) 584, when this court held, inter alia, that: “The assessment of credibility of a witness is a matter within the province of the trial court as it is the only court that has the advantage of seeing, watching and observing the witness in the witness box. The court also has the liberty and privilege of believing him and accepting his evidence in preference to the evidence adduced by the defence. On the issue of credibility of witnesses, the appraisal of evidence and the confidence to be reposed in the testimony of any witness, an appellate court cannot on printed evidence usurp the essential function of the trial court which saw, heard and watched the witnesses testify.”

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PLEA BEFORE TRIAL COMMENCES

The trial does not commence until the plea is taken.

– Chima Centus Nweze, J.S.C. Independent National Electoral Commission & Anor v. Ejike Oguebego & Ors (2017)

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A RETRIAL WILL NOT BE MADE WHERE THE PLAINTIFF FAILS TO PROVE HIS CASE

There are two options open to this court. 1. to remit the case to the trial court to be heard de novo by another judge, or 2. for this court to put itself in the shoes of the trial court and do what that court ought to have done after hearing arguments on the admissibility of both letters. It would be wrong to make an order of retrial if such an order would give the party that lost an opportunity a second time to prove what he failed to prove. A retrial should not be made where the plaintiff fails to prove his case and there is no substantial irregularity apparent on the record. See Thompson v. Arowolo (2003) 7 NWLR Pt.818 P.163 Solomon v. Magaji (1982) 11 SC. P.1. Wassah & Ors. v. Kara & Ors. (2014) – SC.309/2001

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WHERE ABSENT PANELIST RELIES ON REPORT OF OTHER COLLEAGUES

In Nwalutu v. NBA & Anor (2019) 8 NWLR Pt.1673 Pg.174 at Pg.195. wherein his Lordship stated thus: “It appears to me, and I so hold, that when an absent panelist relies on the colleague present when a witness (es) testified to render an opinion that such opinion is premised on hearsay evidence and it is perverse. A Decision in the circumstance is nothing but travesty of justice. In such circumstance also, it cannot be said that the person tried by the LPDC had received fair trial. Fair hearing, as this Court has consistently held, involves a fair trial and a fair trial of a case consists of the whole hearing. There is no difference between the two.”

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