CASE CITATION: HON. POLYCARP EFFIOM & 3 ORS. v. CROSS RIVER STATE INDEPENDENT ELECTORAL COMMISSION (CROSIEC) & ANOR. (2010) 4-7 S.C. (Pt. I) 32
DATE OF JUDGMENT: 21ST DAY OF MAY, 2010
COURT: SUPREME COURT
SUIT: SC. 289/2008
- DAHIRU MUSDAPHER (Presided)
- WALTER S. N. ONNOGHEN
- FRANCIS F. TABAI (Delivered the Leading Judgment)
- JOHN A. FABIYI
- OLUFUNLOLA O. ADEKEYE
ISSUE(S): COURT RAISING AN ISSUE SUO MOTU AND DECIDING IT, WITHOUT AFFORDING PARTIES A HEARING – WHEN MAY BE VALID
“On the Issue of whether it was proper for the Court below to raise the Issue of locus standi of the Appellants suo motu and determine same without hearing from the parties, it has long been settled that no Court is entitled to do so. The elementary principle is that it is wrong for a Court to raise any Issue of fact suo motu and decide upon it, without giving the parties an opportunity to be heard on it.
This is so because the Court is bound by and therefore confined to the Issues raised by the parties. Where however the Court raises an Issue suo motu which it considers material for the proper determination of the case, it must give parties, particularly the party likely to be adversely affected by the Issue, the opportunity to be heard. See Ajuwon v. Akani (1993) 9 NWLR (Pt. 316) 182 at 190; Ajao v. Ashiru (1973) 11 S.C. 23 at 39-40; (1973) 11 S.C. (Reprint) 17; Atanda v. Lakanmi (1974) 3 S.C. 109; (1974) 3 S.C. (Reprint) 80; Kuti v. Jibowu (1972) 6 S.C. (Reprint) 84; (1972) 1 All NLR (Pt. II) 180; R.T.E.A.N v. N.U.R.T.W (1992) 2 NWLR (Pt. 224) 381; Finnih v. Imade (1992) 1 NWLR (Pt. 219) 511 at 537.
While the Court has a duty to give the parties the opportunity to be heard on any Issue it raises suo motu a failure to do so does not necessarily lead to a reversal of its decision. To warrant an Appellate Court’s reversal of the decision, the Appellant must go further to show that the failure to hear him on the point occasioned some Miscarriage of Justice. See Imah v. Okogbe (1993) 9 NWLR (Pt. 316) 159 at 178; Oludode v. Salami (1985) 2 NWLR (Pt. 7) 282.
As I indicated above, this principle that the Court ought not to raise an Issue suo motu and decide upon it without hearing from the parties applies mainly to Issues of fact. In some special circumstances the Court can raise an Issue of law or Jurisdiction suo motu and without hearing the parties decide upon it. Tukur v. Government of Gongola State (1989) 9 S.C. 1; (1989) 4 NWLR (Pt. 117) 517, is instructive on this point. In that case although the Issue of venue was not raised and argued by the parties in their Briefs, it being an Issue of Jurisdiction was taken by the Court.
In the instant case therefore, the Court below would be at liberty to raise the Issue of locus standi of the Appellants if such an Issue was relevant to the proper determination of the case. It is to be noted however that the Issue of the locus standi of the Plaintiffs/Appellants was raised at the Trial Court and effectively determined therein in favour of the Appellants. The Respondent did not Appeal against it and so it was not an Issue before the Court below. It was irrelevant and so the Court’s deliberation on it was an exercise in futility. It is not surprising therefore that the Appellants have not shown in any way that they suffered any Miscarriage of Justice by the lower Court’s deliberation on the Issue of their locus standi. Accordingly this Issue is also resolved against the Appellants.”