The LPDC is not an appellate body but an adjudicator of first instance, all the members who delivered the Directions must have participated in the full trial after utilizing the opportunity of seeing the demeanor of witnesses, etc.
– Ogunwumiju JSC. Gbenoba v. LPDC (2021)
SHARE ON
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)
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)
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.”
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.”
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.”
Ariku v. Ajiwogbo (1962) All NLR (Pt. 4) 630, Ademola CJF (of blessed memory) delivering the judgment of the Supreme Court stated the law as follows:- “This court has frequently directed attention to the practice, now not uncommon of making use of evidence of a witness in another case as if it were evidence in the case on trial. As was pointed out in Alade v. Aborishade (1960) 5 FSC 167 at 171, this is only permissible under section 33 or 34 of the Evidence Act. Where a witness in a former case is giving evidence in a case in hand, his former evidence may be brought up in cross-examination to discredit him if he was lying, but evidence used for this purpose does not become evidence in the case in hand for any other purpose. There are also prerequisites to the making use of the former testimony of a witness; for example his attention must be called to the former case where such evidence was given and he would be reminded of what he had said on the occasion.”
Click the icons to like, follow, and join JPoetry