APPELLATE PRACTICE — Fresh Issue on Appeal — Missing Evidence as Occurrence After Judgment — Court May Raise Suo Motu
Ratio Decidendi
Per Kastina-Alu, JSC, in Edjekpo & Ors v. Osia & Ors (2007) NLC-123-250-2001(SC) at p. 4; Paras C–D:
"The issue of the loss of the evidence of Respondents' witnesses Nos. DW1, DW2, DW3 and DW4 is an issue that the court below and indeed this court could have raised suo motu. I think this is glaringly obvious. It is only when one set of evidence is put side by side with the other set of evidence that the court would be in a position to determine which outweighs the other. In a situation, as in the present case, where there is total loss of the evidence, called by a party, the court itself can raise the issue."
Explanation / Scope
Although appellate courts are generally reluctant to raise issues not argued by the parties, certain fundamental issues affecting the integrity of the proceedings can be raised suo motu. The loss of a party’s evidence is such a fundamental issue because it goes to the fairness of the trial and the appellate court’s ability to do justice. Where the record is incomplete, the appellate court cannot properly evaluate whether the trial court’s findings were supported by the evidence. Raising such an issue suo motu is permissible and necessary to prevent a miscarriage of justice.