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THERE MUST BE IMPROPER EVALUATION FOR APPEAL COURT TO RE-EVALUATE EVIDENCE

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Unless and until the appellate Court comes to the conclusion that the trial Court had not carried out its duty of proper evaluation and ascription of probative value to the evidence before it, the duty of the appellate Court to re – evaluate the evidence on the printed records would not arise. The law is that for an appellate Court to embark on such a duty it must be demonstrated that the Court below had either not carried out its duty of evaluation of the evidence led before it or had carried out an improper evaluation of the evidence and had arrived at findings which are perverse, and which ought in law to be set aside so that proper findings as dictated by the proved evidence as in the printed record are made by the appellate Court in the interest of justice and to avoid the perpetuation of injustice should the perverse judgment of the trial Court be allowed to stand.

– B.A. Georgewill, JCA. Ganiyu v. Oshoakpemhe & Ors. (2021) – CA/B/12A/2021

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EVALUATION, ASCRIBING PROBATIVE VALUE, DUTY OF TRIAL JUDGE

Generally, and it is settled law that the evaluation of evidence adduced and ascription of probative value or weight to such evidence is the primary duty of the trial judge who saw and heard the witnesses testified. The trial judge is therefore in a position to access the credibility and watch the demeanour of the witnesses.

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

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DUTY OF TRIAL COURT; PERCEPTION & EVALUATION OF EVIDENCE

There is a duty in a trial court to receive all available relevant evidence on an issue. This is perception of evidence. After that there is another duty to weigh that evidence in the context of the surrounding circumstances of the case. This is evaluation of evidence. A finding of fact will entail both perception and evaluation. But very often in actual practice it is difficult to say when perception ends and evaluation begins.

– Oputa JSC. OLUFOSOYE v. OLORUNFEMI (1989)

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EVALUATION OF EVIDENCE AND IMAGINARY SCALE

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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THE APPELLATE COURT IS IN A GOOD POSITION TO EVALUATE EVIDENCE AS THE TRIAL JUDGE

Indeed, if there is a complaint that a trial judge did not make findings based on the evidence placed before him, the appellate court is in as good position as the trial court to do its own evaluation of the evidence contained in the records of appeal. See: Narumai and Sons Nig. Ltd v. Niger Benue Transport Co Ltd (1989) 2 NWLR (Pt.106) 730. And where the appellate court finds that there are inadequacies on the part of the trial judge in reaching his decision or finding that is perverse, the appellate court has a duty to examine the inferences and conclusions drawn by the trial judge and then re-evaluate the evidence in order to come to its own judgment, to see that justice is done. See: Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) 360; Eki v. Giwa (1977) 2 SC, 131; Lion Building Ltd v. Shadipe (1976) 12 SC 135.

— T.S. YAKUBU, JCA. Fayose v ICN (2012) – CA/AE/58/2010

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TRIAL JUDGE HAS THE PRIMARY FUNCTION OF EVALUATING EVIDENCE

It is a basic principle of law that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a court of trial which saw, heard and assessed the witnesses while they testified before it. The trial court has the exclusive jurisdiction on matters of appraising evidence and ascribing probative value to the evidence of witnesses whom it had the opportunity of seeing, hearing and observing while in the witness box. Where a court of trial unquestionably evaluates the evidence and justifiably appraises the facts and arrives at a conclusion on the credible evidence, the appellate court will not interfere with such findings of fact nor is it the business of such appellate court to substitute its own views of the facts for those of the trial court. What the appellate court ought to do is to scrutinise the record carefully and find out whether there is evidence on which the trial court could have acted. Once there is such evidence on record from which the trial court arrived at its findings of fact, the appellate court cannot interfere with such findings. See: Mufutau Bakare v. The State (1987) 1 NWLR (Pt.52) 579: Ogundiyan v. The State (1991) 3NWLR (Pt. 181) 519: Akpagbue v. Ogu (1976) 6 SC 63; Odofin v. Ayoola (1984) 11 SC 72: Amadi v. Nwosu (1992) 5 NWLR (Pt. 241) 273 at 280 etc.

— Iguh, JSC. Oguonzee v State (1998) – SC.131/97

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EVALUATION OF EVIDENCE REMAINS EXCLUSIVE PRESERVE OF TRIAL COURT

The settled principle of law is that it is the trial court which alone has the primary function of fully considering the totality of evidence placed before it, ascribe probative value to it. Put same on the imaginary scale of justice to determine the party in whose favour the balance tilts, make the necessary findings of facts flowing therefrom, apply the relevant law to the findings and come to the logical conclusion. The evaluation of evidence remains the exclusive preserve of the trial Court because of the its singular opportunity of hearing and watching the demeanour of witnesses as they testify and thus the court best suited to assess their credibility of a witness an appellate court would not ordinarily interfere.

— F.F. Tabai, JSC. Mini Lodge v. Ngei (2009) – SC.231/2006

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