Sua Sponte/Sua Motu/ Own its own Motion Powers Curtailed.

Abstract

This paper will address the issues that arise when a decision making body initiates a matter on its own motion, every decision making body is subject to the rules of Natural Justice, whether it starts a matter on its own motion or when it is moved by a person. No one is allowed to play God. Not even the Courts or Tribunals can assume the role of investigator,prosecutor,judge and executioner a matter.

So when and in what circumstances can a decision making body act on its own motion?

Suppose that children run to their father to submit complaints for settlement and the father instead of resolving the dispute brought to him, declares ‘Well now that I see what is going on here , I announce the following rule must be observed. To some measure the father has not only breached the children’s trust but sacrificed his role as an adjudicator[1]. A court which decides issue entirely on its own is not likely to be regarded as fair.

Kenya uses the adversarial process, this process promotes litigant and societal acceptance of decisions rendered by courts as a decision making body. The integrity of the adjudicative process itself depends upon the participation of the advocate[2]. Many don’t imagine that an issue may be raised by a court and decided without the input of the parties concerned, but it happens.

The principles of an adversarial process entail;

1.     That the parties control the litigation

2.     The decision maker will be neutral and passive

When a court or a decision making body raises an issue on its own motion, it deviates from the passive role that the court or a decision making body’s practice.  Courts or decision making bodies may raise issues such as standing, subject matter jurisdiction or errors committed by the lower court on their own motion. Courts and decision making bodies do have the authority to raise issues on their own motion however they do not have authority to direct the issues on their own motion.[3]

It would be illegal and improper for a decision making body to play God and decide issues raised on their own motion without input from the parties who would be most directly affected by the decision.

Issues that are decided by courts on their own motion may often have a far reaching consequence on the development of the law and individual parties. Picture Mapp v Ohio[4]. This decision overruled Wolf v Colorado[5] precedent without briefs or arguments from the parties on the issue. Dolree Mapp was convicted for being in possession of obscene material that was found through an unlawful search of her home. The court held that the exclusionary rule that applies to illegally obtained evidence applies to federal as well as state courts. Wolf v Colorado had been the precedent for more than ten years and it stated that the 14^th amendment did not bar admission of evidence that was obtained by unreasonable search and seizure in state court prosecutions. The petitioners brief never mentioned Wolf v Colorado, and when pressed by questions from the bench as to whether they were asking the court to overrule Wolf v Colorado, the petitioner disavowed such purpose. The court in its own opinion stated that it was urged to once again review Wolf v Colorado and went on to overrule it. Justice Clark wrote the majority opinion. Justices Stewart and Harlan, dissenting, questioned the wisdom of overruling an important doctrine in a case where the issue was not briefed, argued or discussed by the parties. The court should have put it as a point for determination.

Mistakes are made when the court is acting on its own motion. Picture the case of Poyner v Loftus[6] in this decision the court identified and applied a common law rule from another jurisdiction which had not been briefed by the parties and which had specifically been abrogated by statute. Poyner is legally blind and does not use a cane or a walking dog. He was injured when he fell from an elevated walkway. He had walked through the area many times and testified that there were bushes at the edge of the platform that prevented him from falling if he walked too far. On the day of the accident it is alleged that he heard someone shout the name Billy, turned to look behind but kept on walking towards the door and one of the bushes was missing.

He brought a negligence suit against the landlord and tenant of the premises, he was found to be contributorily negligent. On appeal he argued whether it was reasonable for a legally blind man to turn towards the direction of the caller but still reach forward for the door? The court raised a more general matter which is whether a different standard of care would apply to disabled persons when analyzing contributory negligence. The court noted that the parties furnished no authority with regards to this and went about to decide the issue on their own. The court found no authority in the Columbia District and went to other jurisdictions where they applied the common law rule that a blind person walking without a cane or dog is contributorily negligent. The District of Columbia had a statute that abrogated the common law position. The statute was never discussed or mentioned in the case. Poyner lost and this error would have been avoided were the parties given a chance to make submissions on the issue that the court had raised on their own motion.   

The losing party in a proceeding where a matter was raised in the courts own motion is normally the worst affected. The losing party’s lack of an opportunity to present its views on the determination of an issue is;

1.     Inconsistent with the right to fair administrative action and right to a fair trial

2.     Inconsistent with key aspects of the adversarial system

3.     An abuse of judicial discretion

When the JSC acts on its own motion, it is only procedural that it petitions itself as it is a person, in this instance if it petitions itself but does not accord the other party a hearing, it can be said that it was moved by the motion of one party without listening to the other?

Consider Nelson v Adams USA Inc.[7].   Nelson was the president and sole shareholder of OCP (Ohio Cellular Products Corporation) which had sued Adams claiming a patent infringement. The District Court ruled for the defendant and ordered that the plaintiff pay costs as well as attorney’s fees. Nelson wrote to Adams stating that if they dared sought more than nominal fees then OCP would be liquidated. Adams moved the Court to amend the pleadings and add Nelson personally as a party from whom fees may be collected and also asked the court to amend the judgement and make Nelson immediately liable.  The District Court granted the motion and amended its judgement without a hearing.

On appeal, the Court held that Nelson was not prejudiced as he had/ would not have shown anything different or additional to, that would prevent judgement if he were a party, in his individual capacity from the beginning of trial.

The Supreme Court reversed the holding and stated that due process required that Nelson be given an opportunity to be heard and respond to the amended pleading before judgement was entered against him. This highlights the importance of a party’s right to be heard.

Professor Vestal[8] explains that when a court considers a matter on its own motion, it means that the litigants have not been given an opportunity to consider the matter and urge arguments in support of and against the position adopted by the court. If the question had been raised and put before the parties, there is at least the possibility that the other facts other authorities they may have been presented would have influenced the courts attitude on the matter but this opportunity is never given to the parties.

A court is more likely to reach a correct decision because advocates will uncover and present more useful information and arguments to the decision makers than when the court will develop on its own.

Prof Lon Fuller[9] says that, ‘before a judge can gauge the full force of an argument, it must be presented to him with partisan zeal by one who is not subject to the constraints of judicial office and cannot understand how strong an argument is until he hears it from the lips of he who has dedicated all the powers of his mind to its formulation.

Snider v Melindez[10]. The second circuit reversed a District Courts decision dismissing a prisoner’s action on its own motion because he had failed to exhaust administrative remedies. The problem was not that the matter was raised on the courts own motion but because Snider was not afforded notice and an opportunity to be heard.

For the court to raise a matter and consider it alone would be an abuse to judicial discretion, which must be exercised according to well settled principles of law.

A case on good practice? Consider Brown v Board of Education[11]the court through the proceeding raised issues on its own motion and also restored cases to the docket for rehearing. Whenever it did so, it requested supplemental briefs from all the parties concerned. The court actions in this case show an implicit recognition of the need to hear from parties on issues that are raised by the court on its own motion so that the court must reach the most fully informed decision.

In the case of Isodore M.K Bagorogoza v Bazilio Mbarinda[12], the application involved whether the place of trial should be at Kabale or Kampala or Mbarara. O.44 r.8 of their civil procedure rules stated that the plaintiff has no right to fix the venue of the trial but subject to the courts discretion. It was held that in fixing the venue of the trial it may do so on its own motion but must take into account the wishes of the parties involved.

In the case of Political Parties Dispute Tribunal & another v Musalia Mudavadi & 6 others ex parte Petronilla Were [13]. There was a dispute as to which firm was appointed to represent UDF, a political party. 2 suspended officials appointed Muma and Kanjama instead of Kithi and Co advocates. The honourable court in deciding the matter stated that a tribunal can raise a matter on its own motion only if it is under the obligation of listening to the parties concerned. The best course to be taken by a tribunal is that when it raises a matter on its own motion, the parties affected must be notified and given ample opportunity to respond before a ruling is made

The legal lacuna that is to be found in section 168(2) is what prompted this positive review. It is my desire that the scholarship will be a guide as to how Constitutional Commissions can decide on matters in their own motion

Bibliography

1.     Laws

2.     The Constitution

3.     The Judicial Service Act

Journals/Articles/Reports

1.     Lon l. Fuller, The Problems of Jurisprudence 707 (temp. ed. 1949)

2.     Professional Responsibility:  Report of the Joint Conference of the American Bar Association and the Association of American Law Schools, 44 A.B.A. J. 1159, 1160 (1958)

3.     Allan D. Vestal, Sua Sponte Consideration in Appellate Review, FORDHAM L. REV. 477, 493 (1959)

4.     A. Milani and M. R. Smith, Playing God: A Critical look at Sua Sponte Decisions, Tennessee Law Review, Vol 69

5.     Lon L. Fuller, the Adversary System, in TALKS ON AMERICAN LAW 31 (Harold J. Berman ed., 1976).

Caselaw

6.       Mapp v Ohio 367 U.S. 643 (1961)

7.       Wolf v Colorado 338 U.S. 25 (1949).

8.      Poyner v Loftus 694 A. 2d 69 (D.C 1997)

9.      Nelson v Adams USA Inc. 529 U.S. 460, 471 (2000)

10.   Snider v. Melindez, 199 F.3d 108, 113 (2d Cir. 1999)

11.  Brown v Board of Education  344 U.S. 1 (1952)

12.  Isodore M.K Bagorogoza v Bazilio Mbarinda H.C Kampala, Uganda, civ case no 849 of 1958 E.A.L.R pg 125. 

13.  Political Parties Dispute Tribunal & another v Musalia Mudavadi & 6 others ex parte Petronilla Were H.C Nairobi Miscellaneous Civil Application no. 406 of 2014

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[1] LON L. FULLER, THE PROBLEMS OF JURISPRUDENCE 707 (temp. ed. 1949)

[2] Professional Responsibility:  Report of the Joint Conference of the American Bar Association and the Association of American Law Schools, 44 A.B.A. J. 1159, 1160 (1958)

[3] Playing God: Sua Sponte Decisions pg 7

[4] 367 U.S. 643 (1961)

[5] 338 U.S. 25 (1949).

[6] 694 A. 2d 69 (D.C 1997)

[7] 529 U.S. 460, 471 (2000)

[8] Allan D. Vestal, Sua Sponte Consideration in Appellate Review, 27 FORDHAM L. REV. 477, 493 (1959)

[9] Lon L. Fuller, the Adversary System, in TALKS ON AMERICAN LAW 31 (Harold J. Berman ed., 1976).

[10] Snider v. Melindez, 199 F.3d 108, 113 (2d Cir. 1999)

[11] 344 U.S. 1 (1952)

[12] H.C Kampala, Uganda, civ case no 849 of 1958 E.A.L.R pg 125. 

[13] H.C Nairobi MISCELLANEOUS CIVIL PPLICATION NO. 406 OF 2014