Online Reporter
Trust Maanda
Legal Position
WHEN a party to legal proceedings is aggrieved by a lower court’s decision, one of the things you do is to appeal, if he or she so wishes.
If it was a trial, the court of first instance would have heard the testimony of all the parties concerned.
The court would have ruled on the credibility of the evidence and why certain testimony is disbelieved and discarded while the other is believed.
In assessing the testimony, the court considers various factors. One of the things the court considers is credibility of the witnesses.
The court asks itself was the witness credible? Was their evidence so solid that the court can believe to be probable and convincing.?
The court looks at all the facts in order to assess the evidence as a whole. Assessment of evidence includes evaluating the credibility of witnesses, consistency in testimony, and corroboration, particularly in criminal matters. The trial court assesses evidence in its totality rather than in isolation.
The court looks for inconsistencies, if any, and their overall effect on the evidence led.
In assessing the credibility, the court may also consider the demeanour of the witness and manner of answering questions, whether a witness is evasive or not. Demeanour of a witness can mainly be determined by the trial court which has the benefit of actually seeing it as the trial is in progress.
Thus, a court of appeal may not have this benefit of observing demeanour because it deals with the appeal on the record of proceedings in the trial court.
An appellate court will not interfere with the factual findings of a lower court unless such findings are grossly irrational.
In Ngirazi & Anor v Rensburg & Others SC 89/21, the court reiterated this principle as follows: “It is sometimes said that for the appellate court to interfere with factual findings such finding must be irrational. The finding complained of must be so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his or her mind to the question to be decided could have arrived at such a conclusion.” See Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S) at 670 C-E; Metallon Gold Zimbabwe v Golden Million (Pvt) Ltd SC 12/15.”
On the test to be applied by an appellate court in analysing the findings of credibility of a witness by a lower court, it is the position that while a court of appeal is generally reluctant to disturb findings which depend on credibility it is trite that it will do so where such findings are plainly wrong.
This is especially so where the reasons given for the finding are seriously flawed. The court shuns over-emphasis of the advantages which a trial court enjoys and reconsider the factual findings where there is need so that an appellant’s right of appeal does not become illusory.
Findings of credibility cannot be judged in isolation, but require to be considered in the light of proven facts and the probabilities of the matter under consideration.
An appellate court does not, in the exercise of its appellate jurisdiction, undertake an assessment of the rationality of a lower court’s factual findings in a vacuum nor does it assess the credibility of a witness in isolation or without the proper evidential context.
The court may only engage in that exercise where it has been expressly invited to do so by the appellant through grounds of appeal that specifically seek to impugn the factual findings of the lower court.
What has to be understood is that if your gripe with the decision of the trial court is on its acceptance of evidence as credible and its findings of fact. Then your grounds of appeal must say so and state how the court was wrong in that regard.
It is where the court was clearly wrong on its factual findings that the appellate court may assess that court’s rationality in making the findings as it did.
The best thing to do is to make sure that all your evidence is put before the trial court and properly recorded.
The appellate court will ordinarily not allow you to lead any fresh evidence. It will deal with the matter on the record.
This then calls for you to make sure that before the record is sent to the appellate court, you peruse it and confirm it as the correct record of proceedings.
If you challenge the factual findings of the court, you need to point out where that court went wrong and raise it as a ground of appeal.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646
