Native law and custom being a question of fact in an action in the High Court, it is true that the findings in these cases are not binding as precedents, and it is also true, as has been pointed out by Mr Oseni on behalf of the respondents, that however learned and experienced the Judges whose judgments are relied on may have been, they could only act on the evidence which the parties in the cases concerned chose to call before them.
Odunsi Lasisi Ajibola v. Aminu Akindele Ajani Ojora (1961)
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Although appellate courts are very slow and reluctant in interfering with the findings of fact by the trial lower courts, nevertheless where such findings are not borne out by conclusive or positive evidence, or where the lower court did not properly evaluate the evidence before making the findings or where the lower court failed to apply the law properly to the facts proved, the appellate courts are under a duty to interfere with such findings. To neglect to do so will certainly occasion a miscarriage of justice sufficient to warrant a superior appellate court to interfere with the trial court’s findings.
– Mahmud JSC. Ogiorio v. Igbinovia (1998)
A perverse finding is when it runs against and counter to the evidence led and the pleadings of the parties or where it has been shown that the trial judge took into consideration or account of matters which he ought not to have taken into account or shuts his eyes to the obvious. See: Akinloye v. Eyiola (1968) NWLR 92; Isah Onu and Ors v. Ibrahim Idu and Ors (2006) 6 SCNJ 23 at Pg. 45-46.
— T.S. YAKUBU, JCA. Fayose v ICN (2012) – CA/AE/58/2010
Before I turn to the treatment of the above findings of fact by the Court of Appeal, I think I need re-emphasize that where facts in issue, whether in a criminal or civil proceedings are accepted or believed by the trial court and no question of misdirection arises, an appellate court, will not ordinarily interfere with such findings of fact made by a trial Judge which are supported by evidence simply because there is some other evidence in contradiction of the finding or that if the same facts were before the appellate court, it would not have come to the same decision as the trial Judge. See: Ike v. Ugboaja (1993) 6 NWLR (Pt.301) 539;Odofin v. Ayoola, supra; Ogbero Egri v. Uperi (1974) 1 NMLR 22; Ogundulu & Ors. v. Phillips & Ors. (1973) NMLR 267 etc. This, as already stated, is because findings of fact made by a trial court are matters peculiarly within its exclusive jurisdiction and they are presumed to be correct unless and until an appellant satisfactorily proves that they are wrong. Such trial courts saw the witnesses and heard them testify and unless the findings are perverse or unsupported by credible evidence, the Court of Appeal will not interfere with them. See: Adelumola v. The State (1988) 1 NWLR (Pt.73) 683. An appellate court may however interfere with such findings in circumstances such as where the trial court did not make a proper use of the opportunity of seeing and hearing the witnesses at the trial or where it drew wrong conclusions from accepted credible evidence or took an erroneous view of the evidence adduced before it or its findings of fact are perverse in the sense that they did not flow from the evidence accepted by it. See: Okpiri v. Jonah (1961) 1SCNLR 174; (1961) 1 All NLR 102 at 104-5; Maja v. Stocco (1968) 1 All NLR 141 at 149; Woluchem v. Gudi (1981) 5 SC 291 at 295-6 and 326-9.
— Iguh, JSC. Oguonzee v State (1998) – SC.131/97
An appellate court can draw conclusion or make inference from the record before it. Conclusion or inference borne out of/from the record cannot be branded as raising fresh point of law. A fresh point of law is a new point of law which was not raised by any of the parties at the trial of the case. A point of law which was raised by the parties at the trial cannot be a fresh point of law.
– Niki Tobi JSC. Gbadamosi v. Dairo (2007)
It is true that the Court of Appeal will be reluctant to upset the findings of fact of a trial court but where as in this case the learned trial court draws wrong conclusions from the totality of the evidence before it, the Court of Appeal will and in fact has a duty to reverse the wrong conclusions and make findings that the facts before it demand.
– Babalakin JSC. Finnih v. Imade (1992)
Appellate Court will only interfere with findings of fact of a trial Court, if it is shown that the conclusion reached is not in tune with the flow of evidence, or that the decision was wrong or perverse.
– Afolabi Fabiyi JCA. Mueller v. Mueller (2005)
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