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IT MUST BE SHOWN THAT SUO MOTO ISSUES RAISED AFFECTED THE RIGHT OF THE PARTY COMPLAINING

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Dictum

Looking at the judgment, I observe that although the learned Justice has dealt with issues that never arose from the grounds argued, he adverted to the issues formulated by counsel. He set out the submissions of counsel after stating the facts in detail. The learned Justice, however, under the issues formulated by him, dealt with the issues formulated by the appellant and the respondent. The excursion to other issues raised Suo motu, though uncalled for, does not spell fatality to the judgment since the proper issues were covered. That disposes of the 2nd issue.

— Obaseki, JSC. Saude v. Abdullahi (1989) – SC.197/1987

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EXCEPTIONS TO AN ISSUE RAISED SUO MOTO

In Gbagbarigha vs Toruemi (2013) 6 NWLR (Pt.1350) 289 at 310, paragraphs C-G as follows: “When a Judge raises an issue on his own motion, or raises an issue not in contemplation of the parties; or an issue not before the Court, the Court is said to have raised the issue suo motu. The well laid down position of the law is that when an issue is raised suo motu the parties should be heard before a decision is reached on the issue… but there is an exception to this procedure. There would be no need to call on counsel to address the Court on an issue raised suo motu by the judge:
1. When the issue relates to the Court’s own jurisdiction;
2. When both parties are not aware or ignored a statute which may have bearing on the case; or
3. When on the face of the record serious questions of the fairness of the proceedings is evident.”

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WHERE A COURT RAISES AN ISSUE SUO MOTO

It is settled law that where a court raises an issue, suo motu it must afford the parties or their counsel the opportunity of addressing the court on the issue so raised so as to ensure that the rules of fair hearing are adhered to for the purpose of doing justice to the parties.

– Onnoghen JSC. Dalek v. OMPADEC (2007)

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RATIONALE BEHIND NOT RULING ON ISSUE RAISED SUO MOTO

The law, as I understand it, is that when a court, for any compelling reason finds it necessary, and particularly in the interest of justice, to raise a point or issue suo motu, the parties must be given an opportunity to be heard on such a point or issue, particularly the party that would be prejudiced as a result of the point raised without the prompting of any of the litigants in the case, Adegoke v. Adibi (1992) 5 NWLR (pt.242) 410; Atanda v. Lakanmi (1974) 3 SC 109; Odiose v Agho (1972) 3 SC 71; Kraus T. Org. Ltd v UNICAL (2004) 25 WRN 1, 17. The rationale for this inflexible rule is that it is not competent for any court to make a case for either or both of the parties suo motu and then proceed to give judgment in the case so formulated contrary to the case of the parties before it, Adeniji v Adeniji (1972) 4 SC 10; Commissioner for Works, Benue State and Anor v Devcom Development Society Ltd (1988) 3 NWLR (pt 83) 407; NHDS Ltd Anor v. Mumuni (1977) 2 SC 57; (1977) NSCC65. The rule that has crystallised from this position is that when an issue is not placed before a court, such a court has no business whatsoever to deal with it. This is because decisions of a court of law must not be founded on any ground in respect of which it has neither received argument from or on behalf of the parties before it nor even raised by or for the parties or either of them, Shitta Bey v. FPSC (1981) 1 SC 40; Saude v. Abdullahi (1989) 4 NWLR (pt 116) 387; Kraus T. Org. Ltd v. UNICAL (supra) 16-17. This rule is so fundamental that its abuse has been characterised as a flagrant breach of the aggrieved party’s right to fair hearing as entrenched in the Constitution, Oje v Babalola (1991) 4 NWLR (pt 185) 267; Ugo v Obiekwe (1989) 1 NWLR (pt 99) 566: a breach that amounts to a miscarriage of justice, Owoso v Sunmonu (2004) 30 WRN 93, 106-107. That is, failure of justice, Ojo v Anibire (2004) 5 KLR (pt 177) 1205, 1207 or justice which is not according to law, Wilson v Wilson (1969) ALR 191 approvingly adopted in Ojo v Anibire (supra) 1214. Such a flagrant breach must, therefore, not be allowed to desecrate the precincts of the hallowed temple of justice. As such, the proceedings resulting from such an exercise, no matter how brilliantly conducted, must be vacated as a travesty of justice, Owoso v Sunmonu (supra).

— C.C. Nweze, JCA. Ayorinde v Ayorinde (2010) – CA/IL/45/2008

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CIRCUMSTANCES A COURT OF LAW WILL DECIDE AN ISSUE SUO MOTO

In addition, a court can take an issue and decide on it suo motu in the circumstances stated in the case of Blessing Toyin Omokuwajo V. Federal Republic of Nigeria (FRN) (2013) 9 NWLR (pt. 1359) 300 at 332 per the illuminating judgment prepared by Rhodes – Vivour, J.S.C., thus- “The need to give parties a hearing when a Judge raises an issue on his own motion or suo motu would not be necessary if: (a) the issue relates to the court’s own jurisdiction. (b) both parties are/were aware or ignored a statute which may have a bearing on the case. That is to say where by virtue of statutory provision the Judge is expected to take judicial notice. See Section 73 of the Evidence Act. (c) when on the face of the record serious questions of the fairness of the proceedings is evidence.”

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A TRIAL JUDGE MAY EXPUNGE DOCUMENT SUO MOTO

The law is elementary that a trial Judge has the right to expunge from the record a document which he wrongly or wrongfully admitted. He can do so suo motu at the point of writing judgment. He needs no prompting from any of the parties, although a party is free to call his attention to the document at the stage of address. Where a trial Judge is wrong in expunging a document, the appellate process will correct it and so an argument that the Judge ought to have expunged the document suo motu at the stage of writing judgment, will not avail the party wronged. After all, it is better for a Judge to expunge suo motu a document which is clearly inadmissible under the Evidence Act than allow it to be on the record to give headache to the appellate court. As the appellate court has the competence to expunge it from the record, why not the trial Judge?

– Niki Tobi, JSC. Brossette v. Ilemobola (2007)

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CAN A COURT RAISE AN ISSUE SUO MOTO?

Succinctly put, can a judge raise an issue suo motu, and determine same without calling on the parties to address him? AGU, JSC (as he then was) in OJE v. BABALOLA (1991) 4 NWLR (Pt.185) 267 at 280, paragraph E-G held that: “there are occasions where a court may feel that a point which has not been raised by one of the parties is necessary for consideration in order to reach a correct decision in a case. In the few cases where this situation does arise it is always necessary for the judge to bring it to the notice of the parties, or their counsel as the case maybe, so that they may address him on the point before he could base his decision on it. It is not competent for the judge to raise the point and decide it without hearing the parties. If he does so he will be in breach of the party’s right to fair hearing,… in this country this is a constitutional right and this court has always insisted that on no account should a court raise a point suo motu and no matter how clear it may appear to be, proceed to resolve it one way or the other without hearing the parties. See LAWRENCE OKAFOR v. OBIEKWE (1989) 1 NWLR (Pt.99) 556 AT 581. So the learned trial judge was in error to have raised the point, resolved it and proceeds to strike out the reply without hearing any of the parties.”

— S. Denton West, JCA. Ayorinde v Ayorinde (2010) – CA/IL/45/2008

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