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

Dictum

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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UNCHALLENGED FINDINGS OF FACT ARE DEEMED TO BE ADMITTED BY A PARTY

The law is trite that a specific finding of fact by a court which is neither challenged nor appealed is deemed to be an acceptable and admitted fact by the party against whom it was made. In this case, this specific finding of fact was made concurrently by the trial court and the lower court. Such findings of fact, as this Court held in BAKARE v. THE STATE (1987) 3 SC 1, are presumed to be correct. The burden of displacing this presumption is on the party challenging the specific finding, as this Respondent purports to do belatedly and without any cross-appeal. The burden, as Agim, JCA, stated in DONATUS OKAFOR v. IFEANYIISIADINSO (2014) LPELR – 14 23013 (CA), is not discharged by a mere assertion that the findings is wrong.

— E. Eko, JSC. CITEC v. Edicomisa (2017) – SC. 163 2006

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APPEAL ON FINDING OF FACT REQUIRES LEAVE OF COURT

The above finding complained of being a finding of fact, it is settled law that for the appellants to successfully appeal against the finding, they must first of all obtain the leave of either the lower court or of this court. It would have been otherwise if the complaint was purely a complaint of error in law. It is clear from the record that appellants never obtained the leave of either the lower court or of this court to appeal on the facts so ground 1 of the grounds of appeal in so far as it is a complaint against the findings of facts is incompetent and is consequently liable to be struck out.

– WS Onnoghen, JSC. Calabar CC v. Ekpo (2008)

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FACTS OF THE CASE DETERMINE LEGAL OUTCOME

Whichever is the case, it is important to state and emphasize that in a case of the nature before us, Counsel should have studied the facts of the case very well. Facts are the springboard of law. It is the facts of the case that determine the appropriate remedy.

— I.C. Pats Acholonu, JSC. Abdulhamid v Akar & Anor. (2006) – S.C. 240/2001

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DISTURBED FINDING OF FACT

The trite position of the law is that where the Court of Appeal wrongly disturbed any finding of fact of a trial court, the Supreme Court will not hesitate in restoring that finding, See: Board of Customs and Excise v. Barau (1987) 10 SC 48.

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

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