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CAN A COURT RAISE AN ISSUE SUO MOTO?

Dictum

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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PARTIES MUST ADDRESS ON ISSUE RAISED SUO MOTO

It is wrong for an appellate court to raise an issue suo motu and determine the issue without giving the parties or their counsel the opportunity to argue the point.

– Adio, JSC. UBN v. Ozigi (1994)

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SUO MOTO; COURT SHOULD NOT SHUT OUT PARTIES

While the Court as master of the law and its Rules are bound to consider all issues based on facts and relevant law in reaching justice in a matter before it, it must not shut out the parties who initiated the process in the first place and owner of the cause or matter in making the decision which effect would impact on the parties.

– M. Peter-Odili JSC. Adegbanke v. Ojelabi (2021)

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TRIAL COURT CAN SUO MOTO JOIN PARTY IN THE SUIT

But when the suit has been filed the trial judge becomes dominus litis and then assumes, under Order IV Rule 5(1) of the High Court Rules, Cap 61 of the Laws of Eastern Nigeria 1963 still operative in the Rivers State, the duty and responsibility to ensure that the proceedings accord with the justice of the case by joining either as plaintiff or defendants all the persons who may be entitled to, or who claim some share or interest in the subject-matter of the suit, or who may be likely to be affected by the results if these had not already been made parties. This joinder by the Court suo motu can be done at any state of the proceedings.

– Oputa, JSC. Green v. Green (1987)

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COURT CAN APPLY RELEVANT LAW SUO MOTO

In the case of Galadima v. Tambai the court while upholding the power of the court to take notice of and apply all relevant laws or enactments including subsidiary legislation, it added that the court can even do so without calling on both counsel to address it before doing so.

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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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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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