LEGAL PRINCIPLE: APPELLATE PRACTICE — Issues for Determination — Suo Motu Raising of Issues — Duty of Court to Afford Parties Hearing
PRINCIPLE STATEMENT
An appellate court that determines a matter on an issue raised suo motu without giving counsel the opportunity to be heard commits a miscarriage of justice; such a decision cannot stand.
RATIO DECIDENDI (SOURCE)
Per Ejiwunmi, JSC, in Comptroller, Nigerian Prisons Services & Ors v. Adekanye & Ors (2002) NLC-1841999(SC) at p. 26; Para B.
"For an appellate court to determine a matter upon an issue raised suo motu by the court without giving the counsel appearing for the parties the benefit of being heard and the question so raised by the court cannot be allowed to stand as it surely portends a miscarriage of justice."
EXPLANATION / SCOPE
If an appellate court raises an issue on its own motion, it must give the parties an opportunity to be heard. Failure to do so results in a miscarriage of justice. The decision cannot stand. The principle protects the right to fair hearing. The parties may have arguments that could affect the court’s decision. The court cannot assume that the parties agree or have nothing to say. The rule applies to all issues except those that are purely procedural. The court may invite counsel to address the point. The principle is fundamental to natural justice. The appellate court will set aside a decision made without hearing parties on a suo motu issue.