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

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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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WHAT APPELLATE COURT CONSIDERS WHERE FINDING OF FACT IS CHALLENGED

An appellate court in its primary role in considering a judgment on appeal in a civil case in which the finding or non-finding of facts is questioned will seek to know:- The evidence before the trial court. Whether it accepted or rejected any evidence upon the correct perception. Whether it correctly approached the assessment of the evidence before it and placed the right probative value on it. Whether it used the imaginary scale of justice to weigh the evidence on either side and Whether it appreciated upon the preponderance of evidence which side of the scale weighed having regard to the burden of proof.

– ADEKEYE JCA. Anyafulu v. Agazie (2005)

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WHERE FACTS PROPERLY APPRAISED, COURT OF APPEAL SHOULD NOT SUBSTITUTE VIEWS FOR TRIAL COURT

It is settled that where a court of trial unquestionably evaluates the evidence and appraises the facts it is not the business of a Court of Appeal to substitute its own views for the trial court. It is equally settled that a Court of Appeal should not easily disturb the findings of fact of a trial Judge who had the singular opportunity of listening to the witnesses and watching their performance although such findings of fact or the inferences drawn from them may be questioned in certain circumstances (See for example Akinola v. Fatoyimbo Oluwo & 0rs ( 1962) 1 SCNLR 352: (1962) 1 All NLR 244: Fabumiyi & 0rs. V. Obaje & Anor (1968) NMLR 242; Fatoyinbo Williams (1956) SCNLR 274: (1956) 1 FSC 87.

— Kutigi, JSC. Awaogbo & Ors. v. Eze (1995) – SC.69/1991

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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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FINDING OF FACT WILL BE DISTURBED WHEN PERVERSE

It is elementary law that needs no citation of any authority that an appellate court shall not disturb any finding of fact unless the finding is found to be perverse or cannot be justified having regard to the pleadings and the evidence led.

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

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MEANING OF A PERVERSE FINDING

A perverse finding is a wrong, unreasonable or unacceptable finding, having due regard to the evidence before the court. A perverse finding is one not supported by the evidence before the court. It is a finding raised on a wrong assessment of the evidence before the court. A finding of fact based on exaggerated or bloated evidence on the part of the trial court could be perverse. So too finding of fact borne out from addition or subtraction from the evidence before the court.

— Niki Tobi, JSC. Buhari v. INEC (2008) – SC 51/2008

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MEANING OF FACTS IN ISSUE

Facts in issue, as defined in Section 258 of the Evidence Act 2011: Includes any fact from which either by itself or in connection with other facts the existence, non-existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follows. A particular fact can only be said to be in issue when its assertion by a Party is denied by the other and it becomes a fact in dispute. So, an issue is said to be joined on a particular fact making its proof necessary when its assertion is disputed by the opposing party- see Mohammed & Anor V. State (2007) 11 NWLR (pt 1045) 303.

— A.A. Augie, JSC. Galadima v. State (2017) – SC.70/2013

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