CRIMINAL PROCEDURE — Suo Motu Issue by Appellate Court — Propriety Where Issue Was Raised by Appellant’s Counsel in Brief
Principle Statement
Where an appellant's counsel himself argued a defence or issue in his brief, the appellate court cannot be said to have raised that issue suo motu when it reacted to it in its judgment. It is therefore wrong to argue that the court considered the issue without granting the appellant a hearing on the point.
Ratio Decidendi (Source)
Per Oguntade, JSC, in Yaro v. State (2007) NLC-123-244-2004(SC) at pp. 18–19; Paras A–C.
"It is obvious that the appellant's 2nd issue is misconceived as it was appellant's counsel himself who in his brief argued the defences of provocation and justification to which the court below reacted in its judgment. It is therefore wrong to argue that the court below considered these defences without granting the appellant a hearing on the point."
Explanation / Scope
The prohibition against courts raising issues suo motu without hearing the parties applies only where the court introduces a completely new issue not raised by any party. Where a party has voluntarily placed an issue before the court by arguing it in his brief or pleadings, the court is entitled to consider and pronounce upon it. The party cannot subsequently complain that the court denied him a hearing, as he had the opportunity to develop his arguments in the brief he filed.
