WHEN COURT CAN RAISE ISSUE SUO MOTU AND DETERMINE IT WITHOUT HEARING PARTIES THEREON

The doctrine of audi alteram partem (hear the other side) is one of the twin pillars of natural justice in Nigeria. Section 36(1) of the 1999 Constitution guarantees every person a fair hearing in the determination of their civil rights and obligations. Because of this, the general rule is that a court must not decide any issue that has not been raised by the parties and argued before it.

However, Nigerian courts have recognized narrow, well-defined circumstances where a court may raise an issue suo motu (on its own motion) and even determine it without calling on parties to address it. These exceptions exist because some matters go to the root of the court’s power to adjudicate at all. If left unaddressed, the entire proceedings would be a nullity.

Despite the general rule, the courts will intervene without hearing parties where the issue is fundamental to jurisdiction or to the integrity of the judicial process. The main categories when court can raise issue suo motu and determine it without hearing parties are mostly on matters of Jurisdiction; Competence and Procedural Defects that Render Proceedings a Nullity; Matters of Public Policy and Illegality; Abuse of Court Process; Obvious Errors of Law on the Face of the Record; inter alia.

To the above effect, the Learned Justices of the Supreme Court, in the case of Isiyaku v. U.B.A. Plc (2026) 6 NWLR (Pt. 2039) 327, emphasized on when court can rise issue suo motu and proceed to determine it without hearing the parties thereon.

A brief fact of the aforementioned case is as follows: 

The appellant, a customer of the respondent bank, maintained a savings account into which he deposited ₦955,000. On 18 September 2009, he discovered that ₦350,000 had been withdrawn from his account through unauthorized ATM transactions. He immediately reported the incident to the respondent's branch in Sokoto, where a staff member, Mr. Sunday, collected his ATM card and assisted him in completing the necessary complaint forms because he was illiterate in English. After the bank concluded its investigation and refused to refund the money, the appellant rejected the bank's decision and lodged a complaint with the Public Complaints Commission.

The appellant insisted that he never lost or disclosed his ATM card or PIN to anyone and maintained that the disputed withdrawals were made in Asaba, Delta State, a place he had never visited. He further alleged that the respondent failed to produce CCTV footage to identify the person who made the withdrawals. At the trial, he testified personally, tendered documentary evidence, and subpoenaed the respondent's Area Manager to produce his ATM card, which remained in the bank's custody.

The respondent admitted that the appellant was its customer and argued that its investigation showed the transactions were carried out using the appellant's ATM card and the correct PIN. It therefore attributed the loss to the appellant's negligence in using an easily guessable PIN and denied liability. However, during cross-examination, the respondent's witness admitted that he wrongly recorded in the complaint form that the appellant had misplaced his ATM card and also admitted that the ATM camera was not functioning when the disputed transactions occurred.

The trial court entered judgment in favour of the appellant, ordering the respondent to refund the ₦350,000, pay ₦5 million as damages, issue a written apology, and pay costs. On appeal, the Court of Appeal affirmed the respondent's liability but reduced the damages from ₦5 million to ₦200,000. Dissatisfied with the reduction in damages, the appellant further appealed to the Supreme Court.

At the conclusion of the trial, the parties exchanged final written addresses and the trial court delivered its judgment in favour of the appellant and held that the appellant had discharged the burden of proof placed on him by law. Consequently, the court granted the appellant’s reliefs sought in paragraphs 37(i), (ii), and(iii)of the statement of claim.

Dissatisfied with the judgment of the trial court and pursuant to an order of court made on the 16th day of April, 2013, the respondent, by an amended notice of appeal dated and filed on the 17th day of April, 2013, appealed to the Court of Appeal, Sokoto Judicial Division which court, in a unanimous decision, partly affirmed the decision of the trial court. However, the court below set aside the award of N5,000,000.00 (Five Million Naira) as compensation granted in favour of the appellant and, in its place, awarded the sum of N200,000.00 (Two Hundred Thousand Naira) as general damages in favour of the appellant.

Now, the issue is whether the court below was right to have suo motu raised the issue of the arbitrary nature of the award of N5,000000 (Five million naira) only when there was no ground of appeal challenging the arbitrary nature of the award and when no opportunity was given to parties to address the court below on the issue suo motu raised?

In determining this issue, the Court held that:

It is a settled principle of law that a court or Judge is not permitted to raise an issue suo motu and proceed to determine it without affording the parties an opportunity to be heard. However, this requirement is not absolute. Where the issue raised suo motu can be resolved on the basis of evidence already adduced before the court, or where the issue pertains to a point of law (particularly one involving jurisdiction, the court may, in appropriate circumstances, proceed without inviting further address from the parties.

Learned counsel for the appellant has contended that the award of N5,000,000.00 as damages in favour of the appellant was arbitrarily set aside by the court below, and that this issue was not encompassed within any of the amended grounds of appeal filed by the respondent. It was further submitted that the court below raised the issue suo motu and determined it without affording the appellant an opportunity to be heard.

By way of conclusion, the default position is clear, which is no issue should be raised suo motu without hearing parties. However, the exceptions are narrow and driven by necessity, not convenience. They are limited to matters of jurisdiction, competence, illegality, and abuse of process, issues that strike at the court’s power to hear the matter at all. Hence, the court may, in appropriate circumstances, proceed to raise and determine issues suo motu without inviting further address from the parties.

About the Author: Adamu Umar Adam is the Litigation Assistant of the Research and Litigation Directorate, Solace Chambers, Bayero University, Kano. He can be reached via 07062519698.