Alhaji Muhtari Abdulkarim & Ors. V. Princess Vivian Ndigwe Anazodo & Anor. (2006)
LawGlobal-Hub Lead Judgment Report
PETER ODILI, J.C.A.
The appellants as plaintiff before the High Court of the Federal Capital Territory presided over by Kusherki J. claimed for the following reliefs against the Respondents being defendants in their statement of claim:-
(a) The sum of three million naira (3,000,000.00) as special damages for trespass to the plaintiffs’ land being plot No. 42 within the Maitama District and evidenced by Certificate of Occupancy No. FCT/ABU/SO.442.
(b) That the plaintiffs have title to the property and the rights on the said property remained unchanged and unaltered.
(c) An order of the honourable court that the defendant’s interference of the plaintiffs’ rights on the property is unlawful, illegal and illusory.
(d) An order of perpetual injunction restraining the defendant, her agents, servant, privies or anybody acting on her behalf or at her instance from further acts of trespass or in any way asserting acts of ownership on the said land.
FACTS:
The position as put forward by the plaintiffs/appellants is that the property is an object of assignment to the third plaintiff by the 1st plaintiff, the original holder of the said property. That upon the assignment of the property by the first plaintiff to the third plaintiff, the third plaintiff took possession, established acts of ownership and consequently leased the structure of portacabin to the second plaintiff. That while in lawful occupation, the property was trespassed into by the defendants/respondents and the said property was damaged and pulled down by the defendants. That there was no evidence of a revocation of plaintiffs’ plot before it was allocated to the first defendant.
The version proffered by the defendants/respondents as per their statement of defence is that the allocation of the plot to the plaintiff had been revoked and reallocated to the first defendant. That there was development on the property which was pulled down by the Federal Capital Development Authority (2nd defendant/respondent). That the first defendant having been allocated the properly by the second defendant, the first defendant cannot be held in contempt.
That learned trial Judge held that there was proper revocation of the allocation to the 1st plaintiff/appellant and the re-allocation to the 1st defendant/respondent was proper and that 1st defendant/respondent retains the said land.
It is against that judgment that the Appellants have appealed to this court.
The 1st respondent cross-appealed asking for a setting aside of the order of the lower court ordering the 2nd respondent to grant an alternative piece or parcel of land to the 1st appellant.
Mr. Zibiri learned counsel for the appellants filed brief of argument on 6/4/05. Also they filed a reply to respondents brief on 10/6/05 within time, and their reply to the preliminary objection are in the reply brief.
Mr. Tunyan for 1st respondent, filed 1st respondents brief on 8/6/05 and urged the court to dismiss the appeal and allow their cross-appeal.
Mr. Abdulahi for 2nd Respondent, filed 2nd respondent’s brief on 26/10/04 and it was deemed filed on 27/10/04. They urge the court to dismiss the appeal and allow the cross-appeal. They however abandon the preliminary objection of 1st respondent which they had earlier adopted.
The 1st respondent raised a preliminary objection in his brief of argument which has to be dealt first. 1st respondent urged the court to strike out grounds 1 and 2 and all arguments adduced in support of Issue No. 1 and 2 formulated from those grounds by the appellants on the ground that they are incompetent. That the two grounds of appeal are based on obiter dictum of the trial judge and there cannot be an appeal against an obiter dictum. He cited the case of Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 660) 228 at 297.
Learned counsel for the 1st respondent said that after the judgment the trial Judge went on to make some unsolicited remarks and recommendations on page 126 of the record. He stated that the nature of obiter dictum was discussed by the Supreme Court in the cases of Idise v. Williams Int. Ltd (1995)1 SCNJ 120 at 128, (1995) 1 NWLR (Pt.370) 142; Ofune & Ors v. Nnaemegwo Okoye & Ors (1966) NSCC 87 at 90 where the Supreme Court said obiter dicta were a mere academic exercise.
Learned counsel for 1st respondent said the issue of procedure for revocation was not part of the pleadings and no party gave evidence on it. That the 1st plaintiff/appellant never gave evidence and did not ask for alternative piece of land and/or compensation.
That the 1st defendant/respondent filed no counter-claim and there was no counter-claim before the court. Therefore there was no justification for the trial Judge stating that 1st defendant/respondent should retain plot 41, Zone A6 Maitama as per Certificate of Occupancy. Learned counsel said all the statement of the trial Judge on page 126 were all obiter dicta which are not the binding part of the court’s judgment that can be appealed against and as appellant was wrong to base grounds 1 and 2 on this obiter dicta. That the court should strike out the two grounds aforesaid and arguments in support of Issues 1 and 2 as formulated by the appellants.
The appellant in reply brief answered the preliminary objection of the 1st respondent. Learned counsel for the appellant said that grounds 1 and 2 of the notice of appeal are competent. That from the decision of the trial court and supposing there was no appeal against the said judgment, the 1st respondent may apply for execution of judgment by ejecting the 2nd and 3rd appellants from the property. Mr. Zabiri of counsel said on the other hand, the appellants may apply to the court for the enforcement of its order that an alternative plot be given to the 1st appellant and therefore grounds 1 and 2 are not obiter dicta as they are decisions of the trial court which are subject to appeal.
It is necessary to recant the portion of the judgment of the learned trial Judge upon which this preliminary objection is based. At page 126 of the record at the conclusion of the judgment the learned trial Judge had said:
“The 2nd defendant had notified the 1st plaintiff of the revocation of the right of the occupancy NO FCT/ABU/SO/447 granted him. The notice, exhibit C dated 10/2/98 though conclusive evidence of revocation of right of occupancy it had placed the 1st plaintiff in anticipation of a formal Deed of Revocation. This had not been forwarded by the 2nd defendants two years after the notice was given. If this is not forthcoming then the 1st plaintiff has claim against the FCT. He has to be compensated with an alternative piece of land since the 1st defendant is properly (sic) placed on the land in dispute. The plaintiff ought not have asked for an alternative piece of land but due to the 2nd defendant’s failure to secure a formal Deed of Revocation after the notice of revocation he should be compensated. While plot 41, Zone A6, Maitama retained by the 1st defendant as per the Certificate of Occupancy, exhibit “B”‘.
Perusing the above stated portion in the judgment, it cannot be fairly described as an unsolicited passing remark which was not a decision and cannot be the subject of an appeal. This is because the matters touched on by the learned trial Judge were issues that arose in the course of the trial and played a part in the decision. Therefore the situation is not like what happened in the Abacha v. Fawehinmi (2000) 6 NWLR (pt. 660) 228 at 297, 350-351 H-D which the Supreme Court dismissed as a mere unsolicited remark and which could not be basis of an appeal.
I have therefore no difficulty in holding that this preliminary objection lacks merit and is hereby dismissed.
Going into the main appeal, the appellant raised three issues for determination which are:-
- Whether the trial court was right in granting a relief not claimed by the first defendant.
- Whether the trial court was right in holding that the first defendant is properly placed on the land when there was evidence that he broke the fence to enter and take possession of the and.
- Whether the address of counsel can take the place of evidence which the court can rely on his decision.
The 1st respondent also raised three issues similar to those of the appellant and they are as follows:-
(i) Whether granting of only one relief that is not claimed by the defendant will cause this court to set -aside the whole judgment.
(ii) Whether the trial court was right in holding 1st defendant was properly placed on the land.
(iii) Whether the address of 2nd respondent’s counsel, which the court relied upon, is based on evidence adduced at the trial.
The 2nd respondent adopted the three issues of the 1st respondent and the arguments thereof.
I would utilize the issues as formulated by the 1st respondent for the free flow of the arguments in favour of the appeal and the arguments against the appeal.
Issue No.1
Learned counsel for the appellant stated that the learned trial Judge at page 126 of the record of proceedings held that plot 41 Zone A6, Maitama be retained by the first defendant as per the Certificate of Occupancy exhibit “B” and by so ordering in his judgment, the learned trial Judge had awarded to the first plaintiff/respondent what she did not ask for. That the position of the law is that the court cannot award what a party did not ask for. He cited the case of Akinboni v. Akinboni (2002) 5 NWLR (pt. 76) 564 at 571.
Mr. Zibiri for the appellant said the position of the law is that the court cannot make an order in favour of a defendant who did not counter claim except for purpose of punishing disrespect in the proceeding before it. He referred to the case of Registered Trustee, Apostolic Church v. Olowoleni (1990) 6 NWLR (Pt. 158) 514 at 519.
Learned counsel said the fact of having dismissed the plaintiff’s claim does not confer title on the defendant. That the learned trial Judge was wrong in the circumstance to have ordered that the property in question be retained by the first defendant upon dismissal of the plaintiff’s claim. He cited the case of Ikawa v. Dandy (1993) 8 NWLR (Pt. 310) 246 at 248.
That this court should set aside the judgment of the court below for the singular reason that the trial Judge awarded what the parties had not ask for.
In response the respondents through counsel said the learned trial Judge acted in error when in the judgment he conferred title on 1st respondent which error should not make the Appeal Court set aside the judgment of the court below since that error did not occasion a miscarriage of Justice. He cited the cases of Okegbu v. State (1979) 11 SC 1 Pp. 6 – 7; Atoyebi v. Governor of Oyo State (1994) 5 SCNJ 62 at 83 – 84, (1994) 5 NWLR (Pt.344) 290: Union Bank of Nigeria Ltd. v. Ozigi (1994) 3 SCNJ 42 at 57, (1994) 3 NWLR (Pt.333) 385; Famuroti v. Agbeke (1991) SCNJ 54 at 64; (1991) 5 NWLR (Pt.189) 1.
Chief Tunyan for 1st respondent said the judgment will still be valid if the unwarranted portion complained of is severed from the other part of the judgment.
The issue in contention has brought to the fore some trite principles of law which have to be pointed out or reiterated here and these are that an appellate court has power to reverse a finding of fact made by a trial court if the finding is not supported by evidence. See Union Bank of Nigeria Limited v. Ozigi (1994) 3 NWLR (Pt. 333) 385 at 402; Fatunde v. Onwoamanam (1990) 2 NWLR (Pt. 132) 322.
The reversal of the decision in the court below is done when the error of law committed by the lower court is fatal because it has occasioned a miscarriage of justice. See Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141.
Furthermore the appellant had made much on the fact that the court below had held that the 1st defendant/respondent retained the property and since that was not a matter from a counter-claim should occasion the appeal being dismissed on that sole ground being allowed and the setting aside of the judgment of the court below. In considering this view posited by the appellant I would refer to a few judicial authorities for a clearer view of what should obtain in the circumstance, such as we are faced in this Appeal on this issue No. 1. See the case of Akinboni v. Akinboni (2002) 5 NWLR (Pt. 761) 564 at 578 – 579 per Adamu JCA.
It is wrong or erroneous for a court to grant order or relief which is not claimed or sought by the party in whose favour the order was made. The rationale of the rule which forbids gratuitous award by the court contrary to the rule of practice and pleadings is to avoid surprises during proceedings and to ensure fair hearing to the parties without showing favour to one or the other. The rule against unsolicited or gratuitous awards by court is of general application to all cases as it affects or robs the court of jurisdiction to make such awards. See also Ekpenyong v. Nyong (1975) 2 SC 71; Adefulu v. Okulaja (1996) 9 NWLR (Pt. 475) 668; Lewis & Peat (NRI) Ltd v. Akhimien (1976) 7 SC 157; Makanjuola v. Balogun (1989) 3 NWLR (Pt.108) 192; Omotunde v. Omotunde (2001) 9 NWLR (Pt. 718) 252.
In the case of Registered Trustees of the Apostolic Church v. Olowoleni (1990) 6 NWLR (Pt. 158) 514 at 531 paras B – D per Olatawura JSC held:-
“It is a misconception to submit that consequential order made by a court must of necessity be based on the reliefs claimed. The basis for an order made by the court must be looked for from the evidence before the court. It is trite law that a court cannot award more than is claimed. It is equally misconceived that an order cannot be made in favour of a defendant simply because he has not filed a counter – claim”; Olatawura JSC at pp 530 – 531 G – A went on:-
“By the very nature of the term “consequential”, any consequential order must be one giving effect to the judgment. In its ordinary dictionary meaning, the word “consequential” means “following as a result, or inference; following or resulting indirectly”. Therefore a consequential order made subsequent to a judgment which detracts from the judgment or contains extraneous matters is not an order, made within jurisdiction because at that stage, having determined the rights of the parties, by giving judgment for any of the party as claimed, the judge has become functus officio except for any act permitted by law or rules of court.” See Obayabona v. Obazee (1972)5 SC 247 at 254.
Considering the facts of the case, evidence proffered and the directing judicial authorities I am of the view that the learned trial really went outside the scope of the suit in making that order of the 1st defendant retaining the property. There fore on this issue, I answer in the negative, that is to say. The trial court was not right in granting a relief not claimed by the 1st defendant. Also the order cannot be called consequential or flowing from the proper orders of court. The zeal of the learned trial Judge is felt clearly but that zeal was misplaced.
Issue No.2
Learned counsel for the appellant contended that it is difficult for this court to understand the basis of the trial Judge’s holding that the 1st defendant/respondent was properly placed on the land not minding his earlier holding that there was no formal Deed of Revocation and that presupposes that there was no valid revocation in law and if there was no valid revocation the 1st defendant/respondent could not have been granted the same property through another Certificate of Occupancy. That the trial Judge did not evaluate the evidence before him nor did he make any finding on material and indeed, decisive questions of fact on which the decision ought to have been founded. That whereas there was evidence as to how the 1st defendant/respondent destroyed appellant’s fence and took possession of the land, the basis for saying the 1st defendant was properly placed on the land is without justification and is incongruous with the evidence before the court. He referred to Macfoy v. UAC (1962) AC 152 at 160.
Learned counsel for the appellant stated that it is well settled that there is a duty on a trial judge to evaluate evidence before him and make proper findings and conclusion before reaching a decision in the matter as decisions of a court must flow from the evidence and findings of the court. That the trial Judge ought to have weighed the case of the parties on an imaginary scale and deciding which of the parties it would believe having regard to the issues before the court. He cited the case of Imah v. Okogbe (1993) 9 NWLR (Pt. 316) 159 at 177 paras C – D; Emetuma v Ngwumohaike (1993) 3 NWLR (Pt.283) 612 at 620 para B; Uwegba v. A.-G., Bendel State (1986) 1 NWLR (Pt. 16) 303 at 326 paras C – D.
Learned counsel said the learned trial Judge ought to have made a finding one way or the other as to whether the 1st defendant/respondent was indeed properly placed on the property and whether the 2nd defendant/respondent was right to allocate the property to the 1st defendant/respondent in the absence of a legal and valid revocation. That this court should set aside the order of the learned trial Judge and remit the case for retrial before another Judge as it will be difficult for this court to make these findings not having observed the witnesses and the matter being one which largely depends on the credibility of the witnesses.
Learned counsel for the 1st respondent said the trial Judge properly evaluated all the evidence in accordance with the principle in Mogaji v. Odofin (1978) 4 SC 91. He further stated that the trial Judge did the weighing of evidence in respect of who was in lawful possession of the land in dispute before he arrived at the conclusion that the 1st respondent was properly placed on the land. That the learned trial Judge evaluated the evidence on the validity of the title documents presented by both sides and made his findings. That the learned trial Judge considered the instrument of revocation of the allocation earlier served on 1st plaintiff/appellant, the date when the revocation was made, the Certificate issued to 1st respondent, the date it was issued before reaching his conclusion that the 1st defendant/respondent automatically became the bonafide holder of the right of occupancy over plot 41, Zone A6 Maitama, Abuja.
Learned counsel for the 1st respondent said there was abundant evidence on record that 1st respondent never forcefully ejected the plaintiffs/appellants but rather 1st respondent was put into possession by FCDA. Learned counsel said the trial Judge specifically found that there was lawful and valid revocation of 1st plaintiff/appellant’s allocation and re-allocation of same plot to 1st respondent was made lawfully. That there is no need to order a retrial since all relevant evidence were properly evaluated.
Learned counsel for the appellant urged the court to find for the appellant in that the learned trial Judge failed to make proper evaluation of the evidence and that what the court below did was a mere summarizing which does not meet the requirement of evaluation. The learned counsel for the 1st respondent said the position of the appellant was not correct.
Indeed a summary of the evidence proffered by the parties to an action cannot be called evaluation of evidence see Imah v. Okogbe (1993) 9 NWLR (Pt. 316) 159 at 177; Uwegba v. Attorney General of Bendel State (1986) 1 NWLR (Pt. 16) 303.
When an appeal court finds that the trial court had failed to consider and evaluate the evidence adduced by both parties to a dispute on certain relevant issues, the appellate court has to then consider and evaluate that evidence and to make the necessary findings. See Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745.
It is in the quest for this evaluation that the trial court has to weigh the evidence on either side on that famous imaginary scale which will then enable the court to decide which of the evidence of the parties is more credible having regard to the issues before the court. See Emetuma v. Ngwumohaike (1993) 3 NWLR (Pt. 283) 612 at 630 para B; Mogaji v. Odofin (1978) 4 SC 91 at 93.
The principles of the law on evaluation and balancing of the evidence on either side and going through the relevant parts of the judgment as shown from pages 123 – 125 of the record of proceedings it is unfair to say that the learned trial Judge did not evaluate the evidence of the parties. Equally erroneous is the assertion that all he did was to summarise the evidence before him. That is far from the truth and not supported by the record of that judgment. The learned trial Judge had not only restated in summary the salient parts of the evidence adduced before him. He had correlated evidence from either side to the relevant law or the documents in evidence before carrying out the obligation on him to evaluate the evidence, weigh that evidence against each party’s position and reached his conclusion. It is alright for a party not to have agreed with the decision reached by the learned trial Judge but that cannot be non evaluation or failure to use the imaginary scale. All one can say is that the conclusion reached in saying the 1st defendant retained the land is not buttressed either by the evidence adduced or the claim before the court.
From the evidence before the learned trial Judge he was right to hold that the 1st defendant/respondent in the prevailing circumstances and what transpired since 1st defendant had nothing to do with the demolition of the fence or other structures in the land and could not have been aware in the light of the evidence adduced. That operates as a third party interest without notice which would be protected. 1st defendant/respondent was properly placed on the land and that is my positive answer to Issue No.2.
Issue No.3
The Learned counsel for the appellant said the learned trial Judge on page 124 of the records upheld the submission of the second defendant/respondent’s counsel in total disregard of the fact that the 2nd defendant/respondent did not lead evidence to support his pleadings. That it is trite law that pleadings are not evidence and pleadings not supported by evidence are deemed abandoned in law. Learned counsel further stated that address of counsel is always predicated upon the evidence before the court and since the second defendant did not lead evidence in support of their pleading, the address of 2nd defendant/respondent’s counsel not predicated on any evidence ought to have been discountenanced since submission of counsel cannot amount to evidence. He cited the case of Elakhame v. Osemobor (1991) 6 NWLR (Pt.196) 170 at 174; Obade v. State (1991) 6 NWLR (Pt. 198) 435 at 440.
In reply learned counsel for the 1st respondent stated that the deed of assignment and power of attorney were sought to be tendered in evidence by the plaintiff/appellants’ witnesses but were rejected because they were not registered with the 2nd defendant/respondent. That these are documentary evidence before the court and they were rejected in evidence because they were not registered with 2nd defendant/ respondent. That 2nd defendant/respondent does not need to adduce additional evidence more than the rejection of the documents, for not being registered by the court in proof of paragraph 4 of the statement of defence. Learned counsel said that it is settled law that evidence can be adduced in support of opponent’s pleadings and the piece of evidence elicited from PW 3 established the facts averred in paragraph 4 of the 2nd defendant’s statement of defence. That they do not need any extra evidence to prove the averment other than the admission made by the PW3 which was an admission against interest. Learned counsel said the address of 2nd respondent’s counsel was based on evidence of PW3.
The appellant was at great pains to pick bones on the weakness of the case of the respondents and with that diverted attention failed to enhance or strengthen appellant’s case which really was what brought the dispute where it did. That 2nd respondent did not give evidence or get persons to testify on their behalf would not give the necessary proof required of the plaintiff/appellants case. The weakness of the respondent’s case would have been useful to the appellant if appellant’s had done all that would have made it difficult for the trial court or even this appellate one to find for them. The 2nd respondent could not be stopped in addressing the court on the evidence proffered by the plaintiffs/appellants if issues raised thereby or some parts of the evidence of the appellants supported the case of the respondent.
That is exactly what happened in this instance and I have no hesitation in stating that the address of 2nd respondent counsel which the court relied upon is based on the evidence adduced. It is true that the address of counsel cannot take the place of evidence which the court can rely on in his decision but where as in this case there is evidence on which that address can be based it does not necessarily need to be evidence proffered from the side of counsel addressing.
Considering the totality of what I have before me in this appeal I find the appeal lacking in merit and I dismiss it. I affirm the decision of the court below except for the part of the judgment where the trial Judge said without justification that the 1st defendant/respondent retained the property in dispute.
Cross – Appeal:
In this cross-appeal the learned counsel for the 1st respondent/cross-appellant adopted the introduction and the statement of facts contained in the 1st respondent’s brief of argument. He raised a single issue for determination from the only ground of appeal and that issue is:-
Whether the trial Judge was right when he held that the plaintiff be given alternative land by the 2nd defendant because a formal deed of revocation has not been forwarded by the 2nd defendant two years after notice had been.
In answering learned counsel for the 1st respondent/cross-appellant said that after delivering the main judgment, the trial Judge made an unsolicited comment and recommendation at page 126 of the record. That the learned trial Judge having held that the revocation was lawful and re-allocation lawful and valid in the main body of the judgment, the trial Judge was wrong to have again held on page 126 of the record:-
“That notice, exhibit C, dated 10/2/98 though conclusive evidence of revocation of right of occupancy it had placed the 1st plaintiff in anticipation of a formal Deed of Revocation. This had not been forwarded by the 2nd defendant two years after the notice had been given”.
Learned counsel stated on that the requirement of a formal Deed of Revocation was not pleaded by either of the parties. That whether or not such formal Deed of Revocation was forwarded by 2nd defendant was not pleaded and no issue was joined on same at the trial. That the learned trial Judge raised this issue of formal Deed of Revocation suo motu and decided on same without giving opportunity to the parties to address him on it. That the court should answer this only question in the negative. He cited the cases of:
- Oyekanmi v. NEPA (2000) 15 NWLR (Pt. 690) 414 at 439
- Olusanya v. Ofusanya (1983) 1 SCNLR 134 at 139.
- Hambe v. Hueze (2001) 4 NWLR (Pt. 703) p.372 to 388.
- Okonji v. Njokanma (1999) 14 NWLR (Pt. 638) 250 at 265 – 266.
In answer to this cross- appeal and argument learned counsel for the cross – respondent stated that the learned trial Judge in delivering his judgment was mindful of the provisions as to how a Certificate of Occupancy can be revoked. That having regard to the testimony of DW2 a staff of the 2nd respondent, the trial court was left in no doubt that the proper procedure was not followed. That an issue of law can be raised and determined by the court hence the decision of the trial court that an alternative plot be given to the 1st respondent. That for a revocation of right of occupancy to be valid, the purpose for which the revocation was made shall be stated in the notice of revocation. That in a situation where the revocation was done as a result of breach of the terms contained in the Certificate of Occupancy, the holder of the Certificate of Occupancy, the holder of the Certificate must be given an opportunity to be heard. He cited the case of Gwar v. Adole (2003) 3 NWLR (Pt. 808) p. 516 at 550.
Learned counsel for the cross-respondent said no notice was ever prepared by a public officer duly authorized by the governor in that regard and none was therefore served on the appellant. That where the revocation of the right of occupancy was done because of breaches of the terms of the certificate of occupancy, the 2nd respondent must accord the appellant fair hearing. He cited the case of Oto v. Adojo (2003) 7 NWLR (Pt. 820) 636 at 668 – 669.
Learned counsel said the revocation notice ought to be served on the cross-respondent in person and by other means because failure will amount to erecting an imminently dangerous precedent in the hands of mischief makers outside the contemplation of the combined effect of Sections 28 (6) and (7) and 44 of the Land Use Act. Learned counsel said the 2nd respondent had no right to revoke the 1st plaintiff’s right of occupancy for the purpose of granting same to the 1st respondent. He referred to Foreign Finance Corporation v. L.S.D.P.C (1991) 5 SCNJ 52; Obikoya & Sons v. Governor of Lagos State (1987) 1 NWLR (Pt. 50) 385. That the trial court should have set aside the Certificate of Occupancy issued to the 1st respondent because there was no proper revocation of right of occupancy of the 1st Appellant. That the court should dismiss this cross – appeal.
This cross-appeal is based on a trial Judge raising an issue suo motu without hearing from the parties before embarking on it.
A trial or appellate court can as of right raise issues that may aid the determination of the issue in controversy but cannot decide such issues without the parties counsel reacting to the issues raised suo motu by the court. See Okonji v. Njokanma (1999) 14 NWLR (Pt.638) 250 at 265 per Achike JSC. Finnih v. Imade (1992) 1 NWLR (Pt. 219) 511; Kuti v. Jibowu (1972) 6 SC 147.
In order to maintain judicial neutrality and thereby avoid deciding a case on issues raised by him suo motu in his judgment, the best posture for a judge is to confine himself to issues of facts raised by the parties. See Okonji v. Njokanme (1999) 14 NWLR (Pt.638) 250 at 266 paras B – C; Ochonma v. Unosi (1965) NMLR 325.
It is wrong for a court to raise and decide an issue suo motu without giving the parties an opportunity of being heard on it. It often leads to a miscarriage of justice if it is an issue upon which the judgment substantially rests. See Oyekanmi v. NEPA (2000) 15 NWLR (Pt. 690) 414 at 439 paras. E – F; Governor of Gongola State v. Tukur (1989) 4 NWLR (Pt. 117) 592; Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410; Eholor v. Osayande (1992) 6 NWLR (Pt. 249) 524; Ajuwon v. Akanni (1993) 9 NWLR (Pt.316) 182; Hambe v. Hueze (2001) 4 NWLR (Pt. 703) 372 at 388: Olusanya v. Olusanya (1983) 1 SCNLR 134.
From the fact that the cross-respondent had not asked for the relief which the learned trial Judge gave in the part of the judgment the subject of this cross-appeal and made the grant upon an issue he raised suo motu without giving the parties the opportunity of being heard on it that relief cannot stand. In fact it goes to no issue as it is clearly the blowing of hot air without substance which cannot be used. Therefore I allow this cross-appeal and set aside the decision and order of the court below in that regard.
In the appeal I award N10,000.00 costs to the 1st and 2nd respondents to be paid by the appellants. In the Cross-appeal I make no order as to costs.
Other Citations: (2006)LCN/1901(CA)
