CONCURRENT FINDING AS TO IDENTIFICATION

WHEN COURT WILL INTERFERE IN THE EXERCISE BY THE TRIAL COURT

The appellate court will therefore not interfere with the exercise of it by the lower court unless it has been shown that it was not exercised judicially, that is bonafide, and not arbitrarily or illegally or by reference to extraneous considerations or by omitting to take relevant factors into account. This is the result of all the cases.

– Nnaemeka-Agu, JSC. Adejumo v. Ayantegbe (1989)

THE CONCURRENT FINDINGS ON WILLFUL MISCONDUCT

There was no evidence before the learned trial judge that there was any reason to deviate from the agreed stopping places. Flying to Johannesburg, South Africa amounts to willful misconduct that the appellant has been unable to explain. The appellant was in breach of contract and created the situation which led to the loss of the respondent’s brief case, and his deportation to Nigeria after spending eight nights in jail. In the absence of justification for flying to Johannesburg, South Africa, there is a clear breach of contract since the respondent was never flown to Manzini, Swaziland. The appellant is responsible for all that happened to the respondent in South Africa, and so concurrent findings by the two courts below that the appellant was in breach of contract is affirmed.

– Rhodes-Vivour, JSC. Cameroon v. Otutuizu (2011) – SC.217/2004

UNLESS CLEAR ERROR IS SHOWN, CONCURRENT FINDING WILL NOT BE DISTURBED

The attitude of the Supreme Court to concurrent findings of fact has been reiterated in a plethora of authorities. In Ogundiyan Vs The State (1991) 3 NWLR Pt. 1811 519 @ 528-529 H-A this court held per Obaseki, JSC: “without any clear evidence of errors in law or fact leading to or occasioning miscarriage of justice, this court will not interfere with the concurrent findings. It is settled law that there must be clear proof of error either of law or fact on the record which has occasioned miscarriage of justice before the Supreme Court can upset or reverse concurrent findings of fact,” Per Nnaemaka-Agu, JSC in Ogoala Vs The State (1991) 2 NWLR (Pt. 175) 509 @: It is settled that where there is sufficient evidence to support the findings of fact by two lower courts, such findings should not be disturbed unless there is a substantial error apparent on the record: that is, the findings have been shown to be perverse, or some miscarriage of justice or some material violation of some principle of law or procedure is shown.”

NATURE OF CONCURRENT FINDINGS

There are thus concurrent findings of fact that the appellant was in breach of contract to fly the respondent from Lagos to Manzini and back to Lagos. It is very well settled that concurrent findings by the trial court and the court of Appeal would not be disturbed by the Supreme Court except there has been exceptional circumstances to disturb those findings such as: 1. The findings cannot be supported by evidence, or are perverse. 2. There is miscarriage of justice or violation of law or procedure.

– Rhodes-Vivour, JSC. Cameroon v. Otutuizu (2011) – SC.217/2004

REASON WHY NOT TO INTERFERE IN CONCURRENT FINDINGS

True, it has long been established that this Court, generally speaking, should not interfere with findings of facts by lower Courts. The reason is simple. In the first place, the trial Courts had the unique opportunity of seeing and hearing the witnesses give evidence. They not only see the witnesses, they equally observe all their habits and mannerisms. These include their demeanour and idiosyncrasies. As a corollary to these peculiar advantages, the Law anticipates that they should utilize all their judicial competence; competence or skill rooted or anchored on law and commonsense to evaluate the evidence by eliminating the chaff from the grain of probative evidence. Proper conclusions which a reasonable Court ought to arrive at, expectedly or ideally, should eventuate from that rigorous exercise. The lower Court, upon being persuaded by such findings, would endorse them as concurrent.

– Chima Centus, JSC. Dondos v. State (2021) – SC.905/2014