Online Reporter
Trust Maanda
Legal Position
WHEN parties come before a court, their dispute is what the court is called upon to decide on.
The function of a court is to determine disputes placed before it by the parties.
It cannot go on a frolic of its own and formulate a case which the parties have not brought before it.
A court is not entitled to determine a dispute placed before it, wholly based on its own discretion, which is not supported by the issues and facts of the case. It is required to apply the law to the facts and issues placed before it by the parties.
It is not entitled to enquire into an issue of fact after the parties have been heard and without any reference to the parties, and then to decide it.
A court must not depart from the case of the parties as departure from a litigant’s case, may send a wrong signal to the parties who seek justice in the courts of law. It is the case of the litigants which must be heard and not of a judicial officer.
Judicial officers only rely for their decisions on matters put before them by litigants either in evidence or in oral or written submissions.
If a judicial officer comes across a point not argued before him or her by the parties or their legal representatives, but which he or she thinks material to the resolution of the case, it is his/her duty in such a circumstance to inform counsel on both sides and invite them to submit arguments either for or against the judge’s point.
It is not proper for a court to deliver a judgment with a substantial portion containing issues never canvassed or relied on by counsel.
A court does not decide more than what is absolutely necessary for the decision of a case.
When a judicial officer wants to take into consideration issues not covered in the court papers, evidence and submissions of the parties, it is the duty of that judge to inform the parties of the relevant point, more especially where that point is, in his/her view, conclusive of the matter, and to invite them to submit argument to him/her.
A judge may only have regard to the evidence placed before him or her during the course of the hearing. Reliance on facts not averred in the pleadings or raised in court constitutes a serious misdirection.
Each party places before the court a prayer he or she wants the court to grant in its favour.
The rules of the court require that such an order be specified in the prayer and the draft order. This ensures that the court merely determines issues placed before it by the parties and not go on a frolic of its own. The court must always be seen to be impartial and applying the law to facts presented to it by the parties in determining the parties’ issues.
The court can seek clarification of issues to enable it to correctly apply the law to those facts in determining the issues placed before it by the parties. The court has powers to raise questions with the parties.
Where a point of law or a factual issue exercises the court’s mind, but has not been raised by the parties or addressed by them either in their pleadings in evidence or in submissions from the bar, the court is at liberty to put the question to the parties and ask them to make submissions on the matter.
The parties must get an opportunity to address the court on an issue that the court views as requiring decision on.
Where a court is of the view that an order not sought by the parties may meet the justice of the case, it must put that possible relief to the parties and allow them an opportunity to address it on such an order. The determination of matters not placed before it, goes against a litigant’s right to be heard. No man is to be judged before they are.
On the other hand, a court which fails to determine an issue placed before it commits an irregularity.
A court must make a determination of all the issues raised by the parties, unless the one issue so determined can put the whole matter to rest. Where there is a dispute on some question of law or fact, there must be a judicial determination on the issue in dispute.
Failure to resolve the dispute or give reasons for a determination is a misdirection, one that vitiates the order given at the end of the trial.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646
