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

FINDING NOT APPEALED MUST NOT BE DISTURBED BY APPELLATE COURT

In the case of Oshodi vs Eyifunmi (2000) FWLR (pt. 8) 1271 at 1305 per Iguh, JSC, this court held as follows: “In this regard, it is to be emphasised that the appellate jurisdiction of the Court of Appeal is to hear and determine appeals from the High Courts. If a finding or decision of a trial court, whether on an issue of fact or law is not challenged in an appeal to the Court of Appeal, such finding or decision, rightly or wrongly, must not be disturbed for the purposes of the appeal in question – see Nwabueze vs Okoye (1988) 4NWLR(pt. 91)664. …… Perhaps I should also add that when an issue is not placed before an appellate court, it has no business whatsoever to deal with it – see Florence Olusanya vs Olufemi Olusanya (1983) 3 S.C 41 at 56 – 57.”

WHERE CONCURRENT FINDINGS OF FACT IS PERVERSE

It is trite law that where the findings of trial court and indeed the concurrent findings of the Judge and the Court of Appeal are perverse, this court can interfere and give the correct findings as the evidence in the record show. See Ajeigbe vs. Odedina (1988) 1 NWLR (Pt. 72) 584; Okonkwo vs. Okolo (1988) 2 NWLR (pt. 79) 632; lbhafidon vs. 1gbinosun (2001) FWLR (pt. 49) 1426, (2001) 8 NWLR (Pt. 716) 653.

— N. Tobi, JSC. Ezennah v Atta (2004) – SC.226/2000

WHERE TRIAL COURT DRAWS WRONG INFERENCE, APPEAL COURT MAY REJECT FINDINGS

I wish to emphasize that where the trial court has drawn the wrong inference from primary facts the appellate court can reject the inference and make what it considers to be the right inference supported by evidence.

– Babalakin JSC. Finnih v. Imade (1992)

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