HON. NWALI ALPHONSUS CHINEDU v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ANOR
(2014)LCN/6864(CA)
RATIO
WHETHER A JUDGE IS ENJOINED TO INVITE PARTIES TO ADDRESS HIM ON AN ISSUE RAISED SUO MOTO
In Oje vs. Babalola (1991) 4 NWLR (pt. 185) 267 at 280 the Supreme Court had this to say:-
“There are occasions when 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 when this situation arises, it is always necessary for the judge to bring it to the notice of the parties, or their counsel as the case may be, so that they may address him on the point before he could base his decision on it. It is not competent for a 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. See Shelden v. Bromfield Justices (1964) 2 Q.B. 573 at page 578: also Nex Henden Justices, (Ex Parte Gorchein) 1973 1 N.L.R 1502. 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 and Ors. vs. Felix Nnaife and Ors (1972) 3 E.C.S.L.R 261: Ugo v. Obiekwu (1989) 1 NWLR (pt 99) 566, at 5 page 581. So the learned trial judge was in error to have raised the point, resolved it, and proceed to strike out part of the reply without hearing any of the parties.”
In a further related case of Delek Nig. Ltd v. O.M.P.A.D.E.C. (2007) 2 SC 305 at 347 the Apex Court per Ogbuagu JSC stated thus:- “It is settled law, that where a court raises a matter suo motu, the parties or their counsel must be given the opportunity to be heard on such an issue. Failure by the court to hear the parties or their counsel will amount to a denial of fair hearing.
There are too many authorities in this regard. See Odiase vs. Aybo (1992) 3 SC (Report) 69: Ugo v. Obiekwe & Anor. (1989) 2 SC (Pt 11): Kotoye v. C.B.N. & 71 Ors. (1989) SCNJ 31 and case of Abbas v. Solomon (2001) 7 SC (PT. 11) 45: Osasana v. Oba Ajayi & Ors (2004) NWLR (Pt 894) 527 and Mrs Evangeline Fomb vs. Rivers State Housing & Property Development Authority (2005) 5 SCNJ 213.
Similarly, in Agbaeze v. C.C. Itom DISTRICT (2007) 7 NWLR (pt 1032) 196 the court observed that:-
“Although an issue of jurisdiction can be raised by the court suo motu at any stage of the proceedings, the parties must be invited to address the court, on the point before a decision is made.”
In Nasiru v. Chanti (1999) 1 NWLR (Pt 588) 605, the court held as follows:-
“The issue raised by the lower court could be raised suo motu and at any stage of the proceedings. See Kato v. C.B.N. (1991) 9 NWLR (Pt 214) 126. However, where the court raises an issue suo motu, it is mandatory that it affords the parties the chance to address it on the issues raised @ page 611 paras D – E.”
The court went on to say: “To deny the parties the opportunity to be heard on the issues tantamount to a denial of fair hearing”.
The bottom line of these decisions is that on no account should a judge raise an issue suo motu without calling on the respective parties to address him before coming to a decision on the issue. Per ADZIRA GANA MSHELIA, J.C.A
