➥ CASE SUMMARY OF:
Esther Oluwatoyin Ayorinde v. Richard Ayorinde & Ors. (2010) – CA
by “PipAr” Branham-Paul C. Chima.
➥ COURT:
Court of Appeal – CA/IL/45/2008
➥ JUDGEMENT DELIVERED ON:
Friday, the 26th day of March, 2010
➥ AREA(S) OF LAW
Suo moto.
Scale of justice.
➥ PRINCIPLES OF LAW
⦿ RATIONALE BEHIND NOT RULING ON ISSUE RAISED SUO MOTO
The law, as I understand it, is that when a court, for any compelling reason finds it necessary, and particularly in the interest of justice, to raise a point or issue suo motu, the parties must be given an opportunity to be heard on such a point or issue, particularly the party that would be prejudiced as a result of the point raised without the prompting of any of the litigants in the case, Adegoke v. Adibi (1992) 5 NWLR (pt.242) 410; Atanda v. Lakanmi (1974) 3 SC 109; Odiose v Agho (1972) 3 SC 71; Kraus T. Org. Ltd v UNICAL (2004) 25 WRN 1, 17. The rationale for this inflexible rule is that it is not competent for any court to make a case for either or both of the parties suo motu and then proceed to give judgment in the case so formulated contrary to the case of the parties before it, Adeniji v Adeniji (1972) 4 SC 10; Commissioner for Works, Benue State and Anor v Devcom Development Society Ltd (1988) 3 NWLR (pt 83) 407; NHDS Ltd Anor v. Mumuni (1977) 2 SC 57; (1977) NSCC65. The rule that has crystallised from this position is that when an issue is not placed before a court, such a court has no business whatsoever to deal with it. This is because decisions of a court of law must not be founded on any ground in respect of which it has neither received argument from or on behalf of the parties before it nor even raised by or for the parties or either of them, Shitta Bey v. FPSC (1981) 1 SC 40; Saude v. Abdullahi (1989) 4 NWLR (pt 116) 387; Kraus T. Org. Ltd v. UNICAL (supra) 16-17. This rule is so fundamental that its abuse has been characterised as a flagrant breach of the aggrieved party’s right to fair hearing as entrenched in the Constitution, Oje v Babalola (1991) 4 NWLR (pt 185) 267; Ugo v Obiekwe (1989) 1 NWLR (pt 99) 566: a breach that amounts to a miscarriage of justice, Owoso v Sunmonu (2004) 30 WRN 93, 106-107. That is, failure of justice, Ojo v Anibire (2004) 5 KLR (pt 177) 1205, 1207 or justice which is not according to law, Wilson v Wilson (1969) ALR 191 approvingly adopted in Ojo v Anibire (supra) 1214. Such a flagrant breach must, therefore, not be allowed to desecrate the precincts of the hallowed temple of justice. As such, the proceedings resulting from such an exercise, no matter how brilliantly conducted, must be vacated as a travesty of justice, Owoso v Sunmonu (supra). — C.C. Nweze, JCA.
⦿ ADVANTAGE OF APPRAISAL OF EVIDENCE BY THE TRIAL COURT
Before I come to this, however, some prefatory remarks are imperative. It is undoubtedly settled that if there has been a proper appraisal of evidence by a trial court, a court of appeal should not embark on a fresh appraisal of the same evidence just to arrive at a “different conclusion from that reached by the trial court. Put differently, if a trial court unquestionably evaluated the evidence then it is not the business of the Court of Appeal to substitute its own views for the views of the trial court, Balogun v Agboola (1974) 10 SC 111; Woluchem v Gudi (supra). As the Supreme Court explained in Woluchem v Gudi (supra), these principles are based on sound common sense. The trial Judge has the singular advantage of seeing and observing the witnesses. He watches their demeanour, candour and -partisanship; their integrity; manner etc. He can, therefore, decide on their credibility. These advantages are normally not enjoyed by an appeal court. All it has is the printed record. It does not have the other evidence – evidence of the demeanour of the witnesses or other incidental elements that go to make up the atmosphere at the trial, see per Nnamani JSC (as he then was) at pages 52- 53. — C.C. Nweze, JCA.
⦿ COURT HAS A DUTY TO DISCHARGE BEFORE ASCRIBING PROBATIVE VALUE
The law on the evaluation of evidence presupposes that where parties testified before the trial court and called witnesses, the court has a duty to discharge before accepting or rejecting the evidence of either party. That duty is this: it must set up an imaginary judicial scale. Above all, it must put the pieces of evidence adduced by the plaintiff on one side and those of the defendant on the other side. The next task is to weigh them for the purpose of ascribing probative value to them, Mogaji v Odofin (supra); Woluchem v Gudi (2004) 3 WRN 20. — C.C. Nweze, JCA.
⦿ CAN A COURT RAISE AN ISSUE SUO MOTO?
Succinctly put, can a judge raise an issue suo motu, and determine same without calling on the parties to address him? AGU, JSC (as he then was) in OJE v. BABALOLA (1991) 4 NWLR (Pt.185) 267 at 280, paragraph E-G held that: “there are occasions where a court may feel that a point which has not been raised by one of the parties is necessary for consideration in order to reach a correct decision in a case. In the few cases where this situation does arise it is always necessary for the judge to bring it to the notice of the parties, or their counsel as the case maybe, so that they may address him on the point before he could base his decision on it. It is not competent for the judge to raise the point and decide it without hearing the parties. If he does so he will be in breach of the party’s right to fair hearing,… in this country this is a constitutional right and this court has always insisted that on no account should a court raise a point suo motu and no matter how clear it may appear to be, proceed to resolve it one way or the other without hearing the parties. See LAWRENCE OKAFOR v. OBIEKWE (1989) 1 NWLR (Pt.99) 556 AT 581. So the learned trial judge was in error to have raised the point, resolved it and proceeds to strike out the reply without hearing any of the parties.” — S. Denton West, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Chima Centus Nweze, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT
T.O.S. Gbadeyan.
⦿ FOR THE RESPONDENT
O. Ayodele.
➥ CASE FACT/HISTORY
The appellant herein, Mrs Esther Oluwatoyin Ayorinde, was one of the wives of Major Saka Adekunle Ayorinde (late). In a suit, which she took out as next friend of her two children, Tosin and Tolani Ayorinde, she claimed declaratory, prohibitory and restraining orders against the respondents, the Administrators and Administratrices of the Estate of Saka Adekunle Ayorinde, deceased.
For their bearing on this appeal, the reliefs are set out hereunder, inter alia: “A declaration that the defendants herein, whether jointly or severally through any of their agents, privies or assigns, are not entitled to sell, dispose of or intermeddle in anyway whatsoever with the estate, situated at Ilorin, of Late Major Saka Adekunle Ayorinde who died intestate in Ilorin.”
She anchored her claim on a promise of marriage which the late Saka Adekunle Ayorinde made to her. In sum, the case was that the said Saka Ayorinde promised to build a house for her in Ilorin if only she agreed to marry him. Above all, the said Saka Ayorinde actually built the property known as No. 12 Peter Tokula Street, GRA, Ilorin and Ajibike Nursery and primary School on Airport Road, Ilorin, for her in fulfilment of the said premarital promise which he (Saka Ayorinde) made to her in order to facilitate their customary law marriage.
The Kwara State High Court, Ilorin (coram Adebara J) (hereinafter referred to as the lower court), which heard the case, dismissed it. Aggrieved by the outcome of that judgment, she appealed to this court.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL ALLOWED]
I. Whether the trial court validly raised issues suo motu and justifiably determined the matter, before it, upon those issues without affording the parties the opportunity to address it on them?
RULING: IN APPELLANT’S FAVOUR.
A. THE TRIAL COURT UNILATERALLY RAISED THE ISSUE AND DECIDED IT
“In the present case, the juridical status or pedestal of a written deposition agitated the mind of the trial court. Unfortunately, that court unilaterally, indeed, arbitrarily, confronted the question of the status of that deposition under Order 40 (supra) without seeking to hear the views of the parties, particularly, the appellant who was to be, and, was actually, affected by an adverse ruling on its ineffectuality. There is considerable merit in the complaint of the appellant here. The lower court glossed over a very crucial fact, namely, that it was dealing with issues which were at the threshold of the entire trial process: pleadings and written depositions – processes which not only shape the future course of the actual trial, but, actually, make or mar the chances of success at the trial of an action. Being fundamental processes in the trial procedure, it is only prudent, and actually makes for justice and fair play for their adequacy; sufficiency; validity and relevance to be tested at the beginning of an action or as soon as possible thereafter, see, per Ejiwumi JSC in Ughutevbe v Shonowo (2004) 32 WRN 27, 52. Surely, in the determination of the adequacy; sufficiency; validity and relevance of such processes which are so crucial in the determination of the fate of the entire suit, the parties [particularly, the side who would be adversely affected by a contrary decision] ought to be given an opportunity of being heard before the court takes its decision, Ughutevbe v. Shonowo (supra) at 52.”
B. THAT THE COURT RULED WITHOUT HEARING THE PARTIES
“The above authorities apply with equal force to the second limb of the first issue. At page 235, the lower court suo motu raised the issue whether the appellant was a party to the suit. It held, without hearing from the appellant, thus: “…Mrs Esther Oluwatoyin Ayorinde for all intents and purposes is not a party to this suit but the next friend of her two children on whose behalf she is to prosecute the case for their benefits”. The appellant has, equally, complained about the propriety of this approach. From what I said above, I have no hesitation in deprecating this approach. The lower court erred in so doing. In all, I find for the appellant on this issue. Even on this score alone, I am bound “to set aside, the judgment of the lower court. However, since this is the penultimate court in the country, I have to remind myself that I am under obligation to consider the second issue too. We now turn it.”
.
.
II. Whether the court improperly evaluated the evidence used in resolving the issues for determination?
RULING: IN APPELLANT’S FAVOUR.
A. THAT THE LOWER COURT WRONGLY DISALLOWED THE EVIDENCE OF PW3
“Unfortunately, that was not what happened at the lower court. In that court, the edifice of the appellant’s case was structured on three pillars or limbs, namely, the testimonies of PW1, PW2 and PW3. Although these three witnesses gave evidence in the case, the lower court amputated the third limb on which the edifice rested: the court utilised only the testimonies of PW1 and PW2 in the evaluation of evidence, while side-stepping or side-tracking the written depositions of the PW3 on the ground of non-compliance with Order 40 (supra). The effect was predictable: having disallowed the said written depositions, which were the invaluable building blocks in the architecture of her case, the edifice (the entire case) was bound to collapse. As already held above, the approach of the lower court amounted to a travesty of justice, indeed, a miscarriage of justice! The question then is: if the entire trial has been declared a nullity, how do we consider the issue of the court’s evaluation of evidence? If an appeal court can interfere with findings of a trial court which have been shown to be perverse, Akinyele v Eyiola (1981) 5 SC 291; Woluchem v Gudi (supra); Ebba v Ogodo (2003) 41 WRN 70, surely, the said appeal court should have the power to vacate a trial that amounted to a miscarriage of justice. What is important here is not whether the appellant would have succeeded. That is an entirely different question that must abide a trial known to law. So also is the submission on the primacy of documentary evidence [for example exhibits 7 and 8] over the oral evidence of the appellant. Such contentions must, equally, abide a real trial according to law. What is important for now is that what happened at the lower court was not justice according to law, Ojo v Anibire (supra). Surely, if it does not qualify as justice according to law, then the benchmarks for the evaluation of evidence in a trial according to law can not be applied to such a trial. That is the fate of this case. By breaching the appellant’s right to fair hearing as enshrined in the Constitution, the lower court embarked on a venture that is unknown to law, namely, a travesty of justice.”
.
.
.
✓ DECISION:
“In all, I hereby allow this appeal. I hereby enter an order setting aside the judgment of the lower court delivered on March 20, 2007. I, further, order a retrial of this matter by another Judge of the Ilorin Division of the High Court of Kwara State. Appeal allowed with costs assessed at N30, 000 in favour of the appellant.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
