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EXCEPTIONS TO COUNSEL ADDRESSING ON SUO MOTO ISSUES

Dictum

To raise an issue suo motu means that a Judge raised the issue which was not raised or which was not in contemplation of the parties. It is the law, that when raising an issue suo motu, the Judge should afford counsel or parties, an opportunity to address on it, before he can decide on it, especially the party that would be adversely affected by the issue. This is because, issue of fair hearing is thus involved – KUTI v. BALOGUN (1989) 1 NWLR (PT. 99) 566. However, there are exceptions to this law. Where (a) the issue relates to the jurisdiction of the Court, then it is not mandatory for the Judge to hear the parties on it; (b) when both parties ignored or were unaware of a statute which has a bearing on the case; (c) when the record ex facie, shows or discloses serious questions of the fairness of the proceedings.

– Yahaya, JCA. Petroleum Resources v. SPDC (2021)

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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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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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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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COURT SHOULD NOT RAISE AND DECIDE ISSUES SUO MOTO

In regard to the second issue, that is, as to the court’s action in formulating its own issues suo motu and without calling upon learned counsel to address him, this court has always frowned upon a Court of Appeal arrogating to itself determination of issues that were not placed before it. The Court of Appeal has constitutional jurisdiction to take appeals from decisions in criminal or civil proceedings before the High Court and not proceedings which were not before the High Court. A Court of Appeal in its majesty awaits the decisions of the High Court and not manufacture decisions to be appealed against. To say the least it is not even dignifying.

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

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

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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