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SUIT NO. CA/K/196/89

3PLR/1993/30  (CA)



4 NWLR (PT 289) 597




OKAY ACHIKE, J.C.A. (Presided)

MURITALA AREMU OKUNOLA, J.C.A. (Read the Leading Judgment)




PRACTICE AND PROCEDURE – APPEAL -Appellate court – Power of to set aside lower court’s decision – Limit of.

CONSTITUTIONAL LAW – Fair hearing – Court deciding an issue without hearing parties – Whether breach of rule affair hearing.

PRACTICE AND PROCEDURE – COURT – Court raising and deciding issue suo motu – Failure to accord parties hearing – Consequence of.

PRACTICE AND PROCEDURE – COURT – Court raising issue suo motu – Power to do so – Condition for exercise of

PRACTICE AND PROCEDURE – COURT – Court raising issue suo mom – Procedure to follow.

PRACTICE AND PROCEDURE – Court – Appellate court – Power to set aside lower court’s decision – Limit of.

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – Judgment based on facts not pleaded – Validity of

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – Non-suit – Order of – Nature and effect of

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – Retrial order – When it will be made

PRACTICE AND PROCEDURE – Issues – Court raising issues suo motu – Proper procedure to follow.

PRACTICE AND PROCEDURE – Non-suit – Order of -Nature and effect of 598 Nigerian Weekly Law Reports 14 June 1993 PRACTICE AND PROCEDURE – Pleadings – Duty on court to confine decision to matters pleaded.

PRACTICE AND PROCEDURE – Retrial order – When it will he made




J.W. Iroju -for the Appellant.

  1. Folaranmi -for the Respondent.


OKUNOLA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice S.A. Olagunju sitting in the High Court of Kwara State, Okene delivered on 27/3/86 in Suit No. KWS/OKHC/43/33.


The facts of this. case briefly put are as follows:­


The plaintiff/appellant is a limited liability Company incorporated in Nigeria and carrying on the business of Commercial bankers with its Head Office at Kano, Nigeria. The 1st defendant, a limited company at Okene, is a customer of the plaintiff/appellant operating a current account No. 50195 with the Bank while the 2nd and 3rd defendants are directors of the 1st defendant who are signatories to the said 1st defendant’s account with the plaintiff/appellant. Between May 1980 and September, 1983 the plaintiff granted to the defendants overdraft facilities to the tune of N179,187.84k including interests accruing thereon.


The plaintiff/appellant sued the defendant/respondent in the High Court of Okene after the defendant/respondent had refused to liquidate their indebtedness despite repeated demand in order to recover the money. After pleadings had been settled, the plaintiff/appellant called one witness, the Branch Accountant who gave evidence and tendered 8 Exhibits to establish her case. The 2nd and 3rd defendants also called one witness, the 3rd defendant in this case who gave evidence. Both counsel to the parties addressed the Court at the end of hearing. At the end of trial, the learned trial Judge after reviewing the evidence on both sides and going through the statement of account tendered in composite form found that the plaintiff on whom the onus of proof rested had failed to discharge same as required by law. In consequence the plaintiff’s case was dismissed in toto.


Dissatisfied with this judgment, the plaintiff/appellant has appealed to this court. From her only ground of appeal the appellant has formulated the following issues for determination in this appeal. viz:


“1.     Is it right in law for the learned trial Judge to address the issue of fraud and deliver his judgment based on that issue when the defendant did not allege fraud in his pleadings?


  1. Did the learned trial Judge reach the right decision in dismissing the Suit rather that non-suiting it?


  1. What is the effect of a decision reached by a learned trial Judge on the issue of non-Suit which he did not call on Counsel to address him upon:


The Respondent also formulated similar issues but added a slightly different one viz:


  1. Whether this is an appropriate case for retrial?”


At the hearing of the appeal, both counsel to the parties adopted the briefs filed herein for their respective clients and addressed us viva voce in elaboration of their respective briefs. Learned counsel to the appellant Mr. J.W. Iroju referred the court to their appellant’s brief. He relied on the brief and urged the court to allow the appeal.


By way of reply Mr. F. Folaranmi for the respondent relied on the respondent’s brief filed herein and urged the court to dismiss the appeal. I have considered the issues raised by both sides in the appeal vis-à-vis the records and the prevailing law. From the arguments and submissions of both sides in their briefs and the records, it appears to me that only one main issue arises for determination in this appeal viz:


  1. Whether the learned trial Judge raised suo motu without input from the parties the issue for Fraud and Non Suiting.


  1. If answer to the above poser is positive, what is the effect of this on the judgment?


As regards the issue of fraud, the learned trial Judge in his judgment at page 57 line 26 of the records held that “the whole transactions are tainted with fraud” and went on at page 58 lines 16-19 to conclude thus:


“Besides, the court will not lend its process to enforce rights that are tainted with fraud. For these reasons, this action must fail” Speaking on the issue of cost the learned trial Judge at page 64 lines 21-24 also said; “Having carefully considered the merits of this case which appears to be overcast by technicality, albeit aided by the fraudulent practice of the plaintiff’s staff ………….”


Learned counsel for the appellant submitted that the learned trial Judge erred in law in reaching the above conclusion by inferring from the facts before him what he called fraud. Mr. Iroju in his brief submitted that if the defendants had wanted to base their defence on fraud they would have pleaded it and what is not pleaded goes to no issue and the court had no power whatsoever to hinge its decision on a state of affairs the existence of which was not pleaded. By way of reply, the learned counsel to the respondent Mr. Folaranmi at page 4 of his Respondent’s brief conceded and submitted that “Fraud” was not alleged in the statement of defence. He went further


“The word fraud never came up in the course of defence counsel’s address to court.”


The question that arises, is what is the effect of a judgment based on a state of affairs which is not pleaded? The position of the law on the above poser is that a finding of fact is to be based on limit of issues before the court and not on a fact not pleaded. The Judge must confine himself to his judgment on evidence before him. Finding or judgment not supported by evidence will attract the interference of the appeal court. It is for this reason that the Supreme Court has frowned on the attitude of some courts as in the instant case making for a party a case other than that which he makes for himself. See S. A. Adebanjo v. A. A. Brown (1990)3 NWLR (Pt. 141) 661; (1990) 6 SCNJ 1; Obikoya v Wema Bank Ltd & anor (1989) 1 NWLR (Pt. 96) 157); (1989) 1 SCNJ 127; Sunday Nwosu v Board of Customs & Excise (1988) 5 NWLR (Pt. 93) 225; (1988) 12 SCNJ 313; Isaac D.O. Ejabulor v His Highness D.B. Osha (1990) 7 SCNJ 187; (1990) 5 NWLR (Pt. 148) 1 Nwankwo v The State (1990) 2 NWLR (Pt. 134) 627 CA; Opeola v Falade (1991) 2 NWLR (Pt. 173) 303 CA; Otaru v Otaru (1986) 3 NWLR (Pt.26) 14 CA.


All the above authorities show that the Court of Appeal will interfere with judgment not based on pleadings or evidence and that it is unethical and contrary to the prevailing law for a Judge to substitute his own views for evidence given as


I was done in the instant case. The learned trial Judge was in error when he based his judgment on a state of affairs not pleaded and I so hold. See: Amodu Latunde & anor v Bello A. D. Lajinfin (1989) 3 NWLR (Pt. 108) 177; 5 SCNJ (1989) p 59.


On the issue of non-suiting, the learned trial Judge in his judgment on page 58 line 25 conceded to the fact that he did not have the benefit of the view of the counsel on both sides on the point of non-suiting, yet he raised the matter suo motu and proceeded in determining name. The learned counsel to the appellant submitted that the learned trial Judge erred in law in this direction. On the contrary learned counsel to the respondent Mr. Folaramni submitted at page 9 of the respondent’s brief that the court was in order in this regard since according to him “Non Suit arises invariably where the court suo motu raises it” In effect both counsel agree that non-suiting was taken suo mom by the Judge. The poser raised here is simply, what is the legal procedure to follow where the court raises a matter suo mom and whether such a procedure has been followed in the instant case? The general principle of the law is that if in the interest of justice a technical point is raised suo motu by the court, as in the instant case, the proper course open to the court is to invite all counsel to the Suit to address the court on the point before a decision is reached. See: Ejidike v Obiora 13 WACA 270; Cole v Martins & anor (1968) NMLR 217; United Bank for Africa Ltd. & anor v Mrs Ngozi Achoru (1990) 6 NWLR (Pt. 156) 254; (1990) 10 SCNJ 17; Kuti v Balogun (1978)1 S.C. 53; Olusanya v Olusanya (1983) 1 SCNLR 134 and Mohammed Juwo v. Alh. Shehu & anor (1992) 8 NWLR (Pt.258) 129 at 136


From the above authorities, I agree and hold that by his failure to invite and avail himself of the benefit of the addresses of counsel to the parties on the issue of non-suiting which he raised suo motu and before a decision is reached the learned trial Judge has committed another error in law which is fatal to the decision reached based on his consideration of that point.


The final point for consideration is what is the effect of these two errors committed by the learned trial Judge? The effect of both errors highlighted in the course of this judgment is that the appellate court cannot as a result of both errors properly evaluate the evidence before the lower court. In such a situation such as in the instant case where the court cannot properly evaluate the evidence or issues added or substracted by the lower court, the proper order to be made by appellate court in such circumstance is one of retrial. See Okori Nwaezema & ors v Obeta Nwaiyeke & ors (1990) 3 NWLR (Pt. 137) 230; (1990) 5 SCNJ 155. I need also to add that in the case of the second error committed by the learned trial Judge viz: raising an issue suo motu without giving the adverse party an opportunity to react, the effect will depend upon the issue raised suo motu. Thus, where the issue raised suo motu by the lower court affects its jurisdiction and competence to adjudicate on the matter before it as in the instant appeal an appellate court will declare the proceedings a nullity and I so hold. However, where the issue raised suo motu is on a matter which is merely procedural and does not affect the jurisdiction and competence of the court to adjudicate on the matter before it, an appellate court will feel reluctant to nullify proceedings or set aside a particular process. See Carribean Trading & Fidelity Corporation v Nigerian National Petroleum Cor­poration (1992) 7 NWLR (Pt. 252) 161 page 182 paras C-E. Since in either way the trial is a nullity, the proper order to make by the appellate court is one of retrial. This is because inherent jurisdiction to set aside decisions is limited to orders which are nullities and I so hold. See Amarando Nwosu v Chukwumanjo Udeaja (1990) 1 NWLR (Pt. 125) 188; (1990) 1 SCNJ 152.


For the above reasons, this appeal succeeds and it is accordingly allowed. The judgment of High Court of Kwara State, Okene delivered on 27/3/86 in Suit No. KWS/OKHC/43/33 is hereby set aside. Respondents shall pay costs to the appellant assessed at N500. However, in the interest or justice, I direct that this case be sent for a rehearing before another Judge of the competent High Court.


ACHIKE, J.C.A.: Two main points stick out clearly in this case for which the appellant has launched its attacks on the judgment of the trial court. These are:


­(a)     Whether the trial Judge could raise issues suo motu and unilaterally determine same without the parties being invited to react to them;


(b)     Whether the Judge’s unilateral acts have affected his judgment. The attacks on the judgment of the trial Judge are first that he suo motu raised the issue of fraud in his judgment when the respondent neither pleaded fraud nor particularised the acts of fraud. It is undoubted that the trial Judge can suo motu raise a point in the course of trial provided he invites all the parties to make their input in respect thereof. The reason is obvious, a Judge is not allowed to make or formulate a case for either of the parties or even decide the case on an issue not raised by them without calling their attention to such issue unilaterally raised by him.


Again, it is now trite that in a civil case at the level of the High Court, the trial court is limited to decide only the issues raised on the parties’ pleadings. In fact, both parties as well as the trial court are bound by the parties’ pleadings. It is not open to the court to found its judgment on any evidence adduced at the trial if such evidence is not supported by the pleadings. The trial Judge is obliged to discountenance such evidence otherwise any decision resulting therefrom must be upturned on appeal. See. Ajayi v Texaco Nigeria Ltd & ors (1987) 3 NWLR (Pt. 62) 577; (1987) 9-10 SCNJ 1 and Ugo v Obiekwe (1989) 1 NWLR (Pt. 99) 566. Fulani & anor v Idi (1990) 5 NWLR (Pt. 150) 311.


Now where the trial court or an appellate court raises an issue suo motu and proceeds to base its judgment on it without according the parties a hearing, the resultant trial is a mis-trial. It is manifestly a breach of the constitutional rule of fair hearing.


Secondly, the judgment of the trial court was under fire because the trial court at the end of his judgment decreed a non-suit without also inviting the parties to make any input on the matter. The trial Judge conceded that he made the order of non-suit without allowing the parties canvass the desirability or otherwise of making such important decree. The order of non-suit is a far-reaching order. On the one hand, while in an appropriate case it denies the defendant the right to judgment that would have been decreed in his favour by reason of some technical slip on the part of the plaintiff, yet on the other hand, it affords the plaintiff another opportunity to mend his broken fence and thereby accord him a second chance to establish his case. Such crucial decision, although discretionary, cannot be made as a matter of course without proper evaluation of the state of the case, and giving due regard to the state of the parties’ pleadings and the evidence adduced. Clearly, a decision of such magnitude, in the interest of justice, demands that the parties must be given ample opportunity to address the issue. See U.BA. Ltd & Anor v Mrs. Ngozi Achoru (1990) 6 NWLR (Pt. 156) 254; (1990) 10 SCNJ 17 and N. Juwo v Alh.. Shewu & Anor. (1992) 8 NWLR (Pt. 258) 129.


To base a decision upon an unpleaded matter constitutes procedural error. In effect, the court has unwittingly formulated a case for one party without inviting the other party to be heard on that issue. It is not a mere technical slip, but an error which goes to the very root of the case. it is a fundamental vice. It hinders the trial court as4vell as the appellate court from giving a dispassionate consideration of the case as perceived by the parties. In the circumstances the court must cut down the judgment of the trial.


For all 1 have been saying, and for the fuller reasons contained in the judgment of my learned brother, Okunola, J.C.A., I will allow the appeal. I hereby set aside the judgment of the trial court and order a retrial before another Judge of the same jurisdiction. I award N500 costs to the appellant.


MOHAMMED, J.C.A.: I have read in advance the draft of the lead judgment just delivered by my teamed brother Okunola J.C.A. I entirely agree with the decision including the order as to costs.


Appeal dismissed Retrial ordered



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