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WHERE FINDING OF COURT NOT APPEALED

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Dictum

The law is that a finding or holding of a Court, not appealed against or challenged, remains binding and conclusive. – Mbaba JCA. Aduba v. Aduba (2018)

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WHERE FACTS PROPERLY APPRAISED, COURT OF APPEAL SHOULD NOT SUBSTITUTE VIEWS FOR TRIAL COURT

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 trial court. It is equally settled that a Court of Appeal should not easily disturb the findings of fact of a trial Judge who had the singular opportunity of listening to the witnesses and watching their performance although such findings of fact or the inferences drawn from them may be questioned in certain circumstances (See for example Akinola v. Fatoyimbo Oluwo & 0rs ( 1962) 1 SCNLR 352: (1962) 1 All NLR 244: Fabumiyi & 0rs. V. Obaje & Anor (1968) NMLR 242; Fatoyinbo Williams (1956) SCNLR 274: (1956) 1 FSC 87.

— Kutigi, JSC. Awaogbo & Ors. v. Eze (1995) – SC.69/1991

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APPELLATE COURT WILL NOT INTERFERE IN FINDING OF FACT

In concluding this Issue, it is now firmly established, that where the question involved are purely those of fact, an Appellate Court, will not interfere, unless the decision of the trial Judge, is shown to be perverse and not the result of a proper exercise of judicial discretion (to believe or disbelieve witnesses) or that there is no evidence at all to support a particular crucial finding or that the trial court made wrong deductions or drew wrong inferences from admitted or established facts. See Ubani & 2 ore, v. The State (2003) 12 SCNJ 111 @ 727-728.

— Ogbuagu, JSC. Moses v State [2006] – S.C.308/2002

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EACH CASE MUST BE DETERMINED ON ITS MERIT

As the Respondent rightly submitted, each case must be determined upon its own peculiar circumstances as no two cases are identical; they may be similar but not identical – see Admin/Exec., of the Estate of Gen. Abacha V. Eke-Spiff & Ors. (supra).

— A.A. Augie, JCA. Elias v Ecobank (2016) – CA/L/873/2013

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WHAT IS A PERVERSE FINDING?

A perverse finding is when it runs against and counter to the evidence led and the pleadings of the parties or where it has been shown that the trial judge took into consideration or account of matters which he ought not to have taken into account or shuts his eyes to the obvious. See: Akinloye v. Eyiola (1968) NWLR 92; Isah Onu and Ors v. Ibrahim Idu and Ors (2006) 6 SCNJ 23 at Pg. 45-46.

— T.S. YAKUBU, JCA. Fayose v ICN (2012) – CA/AE/58/2010

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TWO TYPES OF FINDING OF FACTS – WHEN APPEAL COURT CAN INTERFERE

In a trial, there are generally two sets of findings of facts: A finding of fact may be based on the credibility of witnesses or may be informed from other facts proved before the trial court. Where a witness gives direct evidence that is the evidence of the facts in issue as seen, heard or perceived by any other sense by him. (Section 77 of the Evidence Act). The finding of the trial court on such evidence depends on whether or not it believes that witness (credibility of the witness). Such a finding on such evidence is a primary finding of fact, i.e. the way the witness testifies, his demeanor in the box tells much of his credibility. The trial court that saw and heard the witness is in the best position to assess his credibility and make findings of primary facts. But, where on the other hand, other facts are put in evidence from which the facts in issue can be inferred, or where a witness gave circumstantial evidence, the finding of the trial court on the facts in issue depends on inference. This is a secondary finding of fact as it is not based on the credibility of the witness but on logical process of inference. In the former’s case, i.e. primary findings of fact, an appeal court should always be loathe in interfering with such a finding as it did not have the privilege of seeing, hearing or observing the demeanour of the witness. There are several decided authorities on this: Ebba v. Ogodo & Anor (1984) 4 SC 75; Akintola v. Olowa (1962) 1 All NLR 224; Fatoyinbo v. Williams (1956) 1 FSC 87; Egri v. Uperi (1974) 1 NMLR 22; just to mention a few. In the latter’s case, i.e. where findings of fact are secondary, i.e. drawn from inferences, an appeal court is in as good position as a court of trial to do this. It can differ from the trial court. See: Akpopuma V. Nzeka (1983) 2 SCNLR 1.

— T. Muhammad, JSC. VAB Petroleum v. Momah (2013) – SC.99/2004

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CASES SHOULD BE DECIDED ON ITS OWN FACTS

It is also of paramount importance to always have it as a central theme that each case must be examined and decided on its own facts and circumstances as no two cases are alike in all particulars.

– Gumel, JCA. Ehanire v. Erhunmwuse (2007)

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