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EVALUATION OF EVIDENCE AND IMAGINARY SCALE

Dictum

Re-evaluation suggests and presupposes a prior evaluation. If evidence has already been evaluated by the trial Court, on what grounds, on what basis, on what principles would an appellate court undertake another re-evaluation of the same evidence? Before tackling this main issue, it may be necessary to dispose of a subsidiary but related issue: What does evaluation of evidence consist of? What is the meaning of the expression evaluation? To evaluate simply means to give value to, to ascertain the amount, to find numerical expression for etc. Thus if a plaintiffs case is supported by witnesses, while the defendant’s case is supported by 6 witnesses then the numerical expression, the quantum of evidence, the amount, would be 4 to 6. If cases are decided solely by the number of witnesses called by either side, then in the above instance the plaintiff will lose, having a preponderance of 6 witnesses to 4 witnesses in the scale against him. Now talking of scale naturally leads one to the famous dictum of Fatayi Williams, J.S.C.(as he then was) in A.R. Mogaji and ors v. Madam Rabiatu Odafin and ors (1978) 4 S.C.91 at 93:- “When an appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which have been given to the totality of the evidence before him, (the trial Judge) ….. Therefore in deciding whether certain set of facts given in evidence by one party in a civil case before a court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial Judge, after a summary of all the facts, must put the two sets of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to it ….” (italics ours). This scale though imaginary is still the scale of justice, and the scale of truth. Such a scale will automatically repel and expel any and all false evidence. What ought to go into that imaginary scale should therefore be no other than credible evidence. What is therefore necessary in deciding what goes into the imaginary scale is the value, credibility and quality as well as the probative essence of the evidence.

— Oputa JSC. Onwuka & Ors. V. Ediala & Anor. (SC.18/1987, 20 January 1989)

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FOR AN EVIDENCE TO BE RELIED UPON, IT MUST HAVE COGENCY OR PROBATIVE VALUE

The law does not permit evidence which is of no probative value to be relied upon by a party, nor to be acted upon by the court, to support a claim. It is an important aspect of civil procedure that for evidence to be considered useful and which a court can act upon, there are certain basic qualities it must possess. The first consideration is usually the double requirement of relevancy and admissibility. But in essence they can be separated. The evidence must be relevant to a fact in issue, or to any fact which, though not in issue, is so connected with the fact in issue, or relevant to a fact which is inconsistent to any fact in issue or to a fact which by itself or in connection with any other fact makes the existence or non-existence of any fact in issue probable or improbable. S.7 & 12 Evidence Act. It must be admissible having regard to the facts pleaded and if no law or rule precludes its admission: see Emegokwue v. Okadigbo(1973) 4 SC 113; Onobruchere v. Esegine (1986) 1 NWLR (PU9) 799. It must have credibility or cogency thereby enabling the Judge to ascribe some probative value to it having regard to its nature and what it is intended to establish: Misr (Nig.) Ltd. v.Ibrahim (1974) 5 SC 55 at 62; Aikhionbare v. Omoregie (1976) 12 SC 11 at 27. I have had to state the above because Exhibit V neither has cogency nor any probative value which can be ascribed to it.

Rockonoh v. NTP (2001) – SC.71/1995

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EVALUATION OF EVIDENCE IS PRIMARY FUNCTION OF TRIAL JUDGE

The evaluation and ascription of probative value are primary functions of the trial court who saw and watched the demeanour of the witnesses who testified at the trial. It is not proper for an appellate court to interfere where the trial court has properly discharged its functions in relation thereto. This appeal court will not interfere with findings of fact where there is sufficient evidence backed by the pleadings in support of such findings and where no substantial error is apparent on the record such as a miscarriage of justice or violation of some principle of law or procedure.

– Musdapher, JSC. Atta v. Ezeanah (2000)

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WHAT APPELLANT MUST DO WHEN HE ALLEGES FAULTY EVALUATION OF EVIDENCE

Evaluation of evidence entails the trial Judge examining of all evidence before him before making a finding. This is done by putting all the evidence on an imaginary scale to see which side outweigh the other by way of credible evidence. See LAFIA L. G. v. EXEC. GOV. OF NASARAWA STATE (2012) LPELR-20602 (SC). So where the Appellant complained that the judge did not evaluate evidence properly as in this case, he has the duty to show the Appellate Court how the correction of the omission will make the decision wrong and liable to be set aside. For example, the Appellant must show which admissible evidence the trial Judge rejected or inadmissible evidence he relied upon to the extent that resulted in a miscarriage of justice. In other words, it is not just enough to complain against the evaluation of evidence, but the Appellant must show that the decision of the trial Court was wrong. See PETROLEUM (SPECIAL) TRUST FUND v. WESTERN PROJECT CONSORTIUM LTD and ORS. (2006) LPELR-7719 and ODUNUKWE v. OFOMATA and ANOR. (1999) 6 NWLR (PT. 602) 416 at 425 (CA). The law has been stated and re-stated in uncountable number of decisions of this Court and the Supreme Court that the duty of evaluation of evidence and the ascription of probative value to such evidence is the primary duty of the trial Court. This is especially so where the evaluation of evidence is on the conflicting oral testimonies and belief or disbelief of such evidence. The Appellate Court cannot be in a position to recapture that advantage that the trial Judge had in observing the witnesses as they testified. Therefore, unless the Appellant satisfied this Court as an Appellate Court that the decision of the trial Court was wrong vide improper evaluation of evidence, we have no business re-evaluating the evidence to substitute our own decision for that of the trial Court.

— B.B. Aliyu, JCA. Oboh v. Oboh (2021) – CA/B/372/12

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NOT THE DUTY OF APPEAL COURT TO RE-EVALUATE FACT

Generally, the duties of an appellate court does not involve re-evaluation of the evidence of witnesses. An appellate court may only interfere when the findings are perverse or wrong because of violation of some principles of law or procedure.

– Ogunwumiju JCA. NBC v. Olarewaju (2006) – CA/IL/43/2004

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GUIDING PRINCIPLES FOR EVALUATION OF EVIDENCE

However, when the evaluation of evidence by a particular trial judge is in issue or being challenged, the guiding principles are as follows: (i) whether the evidence is admissible (ii) whether the evidence is relevant (iii) whether the evidence is credible (iv) whether the evidence is conclusive (v) Whether the evidence is probable than that given by the other Party.

– O. Ariwoola, JSC. Tukur v. Uba (2012) – SC.390/2011

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EVALUATION AND PERCEPTION OF EVIDENCE

In carrying out its sacrosanct function of evaluation of evidence, the trial judge begins by receiving into its record all relevant evidence on the case or the fact in issue, and this is perception of evidence. He then proceeds to weigh the evidence in the light of the surrounding circumstances; this is evaluation of evidence. The findings of fact by a trial Court involves both perception and evaluation. See ONI vs. JOHNSON (2015) LPELR (24545) 1 at 35-38.

— A.A. Wambai, JCA. Aliyu v. Bulaki (2019) – CA/S/36/2018

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