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Home » Nigerian Cases » Supreme Court » Samson Awoyale V. Joshua O. Ogunbiyi (1985) LLJR-SC

Samson Awoyale V. Joshua O. Ogunbiyi (1985) LLJR-SC

Samson Awoyale V. Joshua O. Ogunbiyi (1985)

LawGlobal-Hub Lead Judgment Report

BELLO, J.S.C. 

This judgment only deals with the constitutional issue, to wit, whether the High Court of Kwara State delivered its decision not later than 3 months after the conclusion of final addresses as prescribed by section 258(1) of the Constitution when the case was on appeal before it.

The case was retried by the Igbomina South Central Area Court Grade 1 which dismissed the claim of the plaintiff, now the Respondent, against the defendant, now the Appellant, for ownership of a parcel of land situated in Ujomu-Oro town and injunction restraining the Efundere Family from using the land. The plaintiff successfully appealed to the Upper Area Court Omu-Aran which awarded the disputed land to him. In his turn, the defendant appealed against the judgment of Upper Area Court to the High Court, Ilorin.The High Court allowed his appeal, set aside the decision of the Upper Area Court and restored the judgment of the trial court.

Being dissatisfied with the decision of the High Court, the plaintiff further appealed to the Court of Appeal which allowed his appeal, set aside the judgment of the High Court and restored that of the Upper Area Court. Against that judgment, the defendant has now appealed to this Court and has raised. inter alia, the constitutional question.

The facts relevant to the constitutional issue may be stated at this stage. The appeal in the High Court was argued for four days, namely on April 16, 17, 18 and 2nd May 1980 when the Court reserved judgment to be delivered on 9th June 1980. The judgment was not ready on the reserved date and it was further reserved to 25th July 1980. When the court resumed on the latter date, it did not deliver the judgment but made the following statements:-

“In the middle of the task of judgment writing in this appeal, we were faced with an insurmountable situation which finally halted the writing of the judgment entirely.

We suddenly discovered that Exhibits A, B, C and F are documents written entirely in the Yoruba Language. Although two members of this court have Yoruba language as their mother tongue, the irony of law is that we do not in law, technically-speaking, understand Yoruba. English is the official language of the court and all records which are to be examined and/or considered by us must, as far as possible, be translated into the English language.

As this appeal stands at the moment, part of the record of proceedings is in English and part is in Yoruba, because documentary exhibits once admitted in evidence form part of the record of the court that admits them.

The respondent in this appeal is relying heavily on the documents which he tendered and the untranslated exhibits are prominent among them. We are not allowed by law to use our personal knowledge of any vernacular, more so if such use could end up being to the advantage or disadvantage of any of the parties.

We cannot give a fair consideration to the cases made by the parties to this appeal if we deprive ourselves the benefit of the translations of the exhibits already above listed.

We have therefore thought it fit to charge any sworn and competent translator (Yoruba-English) with the duty of translating the exhibits (or at least the portions of them that are relevant to this case) into the English language.

We wonder if any of the parties, through his counsel, has any objection to the step we propose to take”

Mr. Babalola, counsel for the appellant in that Court, informed the court that he had no objection to the proposal but Mr. Olorunnishola, counsel for the respondent, extensively addressed the court objecting to the proposal on the ground that taking such a course would be tantamount to calling additional evidence.

In its Ruling on the issue, the High Court stated thus:-

“We think the justice of this case demands that we order that the exhibits concerned be translated for our use and consideration.

We therefore hereby order that Exhibits A and B be translated in full and that pages 2 and 3 of exhibits C and F be also translated in full by the official, sworn professional court Yoruba-English translator. This order shall be carried out on or before 30th July, 1980. Adjourn to 7th August 1980 for judgment.”

On 7th August 1980 the court delivered the judgment which is now being impugned.

The constitutional question for determination is: on what date was the “final addresses” concluded within the purview of section 258(1) of the Constitution, which provides:

“258(1) Every court established under this Constitution shall deliver its decision in writing not later than 3 months after the conclusion of evidence and final addresses, and furnish all parties to the cause or matter determined with duly authenticated copies of the decision on the date of the delivery thereof.

If 2nd May 1980 should be taken as the date on which the final addresses had been concluded, then the High Court did not comply with the provisions of the subsection because it delivered its decision on 7th August 1980 which was 3 months and 6 days after the conclusion of the final addresses. If this was the case, then the judgment of the High Court is a nullity: Ifezue v. Mbadugha (1984) 5 S.C.79. On the other hand if, having regard to the decision of this Court in Sodipo v. Lemminkainen Oy & Anor. S.C.149/1983 delivered on 12th July 1985 (unreported yet), 25th July 1980 should be regarded as the date of the conclusion of the final addresses then the High Court did not offend the provisions of the subsection for it delivered its decision only 13 days after the conclusion of the final addresses.

It appears from his brief that Chief Williams was tempted to raise the constitutional issue by the conflicting obiter dicta of Nnamani and Uwais JJSC in Ifezue’s case on the question whether a court could reopen argument after addresses had been concluded and it had set down the case for judgment.

Nnamani JSC answered the question as follows:

“I think argument can be reopened provided this is done before the three months time limit is up. I am further of the view that if argument is so opened the 3 months period starts to run from the date on which the subsequent final addresses close. To hold otherwise would be to divert the courts from their duty to do justice since they cannot call for further argument even when important points of law are brought to their attention before judgment is delivered.”

Uwais JSC expressed contrary view in these words:

“In my opinion, the subsection has made it mandatory for all the courts established under the Constitution to deliver judgment at any time within three months from the conclusion of evidence (where applicable) or final addresses (in any case). This requirement cannot be circumvented by calling for further addresses by counsel after a case had been adjourned for judgment. For such further addresses are not contemplated by the subsection and where they occur, they cannot, in my view, salvage or extend the period of three months.”

It is pertinent to state that before the present appeal matured for argument, this Court sitting as a full Court decided the cases of Odi v. Osafile (1985) 1 NWLR 17 and Sodipo v. Oy (Supra). In Odi’s case, the Court held that after the three months limit for judgment had expired, the Court of Appeal had no jurisdiction to recall upon parties to clarify some points in the appeal and the judgment of the Court of Appeal delivered after the recall was null and void.

However, in Sodipo v. Oy (Supra) the Court held that the discretion of a court to reopen argument by calling upon parties to address it on a question of law or fact, after it has reserved judgment, for the just decision of the case is not fettered by the provisions of section 258(1) of the Constitution if the discretion is exercised before the expiry of the three months limit for judgment. The Court further held that where the court so exercises its discretion, then the addresses on recall are the “final addresses” within the purview of the subsection and the period of three months is to be reckoned thereafter.

It is not surprising, having regard to the decision in Sodipo v. Oy, that Chief Williams sparingly argued the constitutional issue. He at first contended that no question of “final Addresses” arises in the appeal and it is the question whether the High Court can do the obvious, i.e. cause the translations of the exhibits from Yoruba to English to be made, that is in issue. Later learned counsel appears to change his stand by conceding that counsel for the parties addressed the High Court on recall but submitting that the addresses were not the final addresses envisaged by section 258(1). Relying in Sodipo’s case, Chief Williams contended that for addresses on recall to be treated as final within the ambit of the subsection, the addresses must relate to matters before the court. While agreeing with Chief Williams that final addresses must relate to matters before the court, Mr. Sofola submitted that Exhibits A, B, C and F in respect of which the High Court called for argument were matters before the High Court and the addresses of counsel on the translations of the Exhibits therefore became final.

Now, it is a notorious fact that the official language of the High Court is English and since the record of proceedings shows the High Court formed the opinion that the contents of the exhibits, written in Yoruba, were essential to the just decision of the case, it is obvious that the exhibits had to be translated into English. As Chief Williams has contended, the High Court could have caused the documents to be translated without necessarily calling upon the parties to hear their submissions whether the translation should be ordered. It appears to me that if there was the need to hear counsel, it was not on the question whether the documents ought to be translated, but it should have been on the question of the correctness of the translations after the documents had been translated. The High Court did not, as the record of proceedings shows, invite the parties to address it on this question.

Be that as it may, the fact remains that in the course of writing its judgment, the High Court discovered that the exhibits had not been translated. It considered the non-translation as causing to it “insurmountable situation” and, in order to assist it to surmount and solve the problem, that court invited the parties to address it before the expiry of the three months limit for judgment. I think, having regard to the High Court’s own understanding of the gravity of the consequence of non-translation of the documents, that court was entitled to exercise its discretion to recall the parties for argument on the matter. I may add that the apparent indication in the foregoing paragraphs of this judgment to the effect that this Court, if faced with the same situation, might not have exercised the discretion in the manner as the High Court had done would not affect the exercise of discretion of the High Court: see Enekebe v. Enekebe & Anr. (1964) 1 All N.L.R. 102 at 107. Having heard the argument, the High Court delivered its decision not later than three months after the conclusion of the addresses on recall.

In my view, the circumstances of the case on appeal are on all fours with those in Sodipo’s case. Accordingly, the High Court did not contravene the provisions of section 258(1) of the Constitution and its judgment is valid and has effect.

The appeal on the constitutional issue has failed and the appeal on the non-constitutional matters remains to be argued. I make no order as to costs.

A. G. IRIKEFE, J.S.C.: The constitutional issue raised in this matter relates to the recall of parties and their counsel by the High Court sitting in its appellate jurisdiction after the appeal before it had been fully argued and adjourned to a date for delivery of judgment. The recall became necessary to enable certain documentary exhibits which were tendered in the YORUBA language to be interpreted into ENGLISH (the language of the court).

Learned counsel on being summoned addressed the High Court both in support of and against the need for the recall. It is common ground that at the time of the recall, the period of 3 months stipulated for delivery of judgment had not yet expired. See IFEZUE V. MBADUGHA – (1984)5 S.C. p.79. Such conduct is permissible, so long as the period of 3 months had not yet run out. See the decision of this court in SODIPO VS. LEMMINKAINEN OY & ANOR. SC.149/83 delivered on 12th July, 1985 (as yet unreported).

In the peculiar circumstances of this case, the objection taken would run into the teeth of the SODIPO case, and consequently, must fail. I agree with the lead judgment delivered by my learned brother, BELLO, J.S.C. the draft of which I had earlier read, that the constitutional issue raised hould fail and that there should be no award of costs. The appeal on issues other than the constitutional one to go on at a later date.

K. ESO, J.S.C.: I have, after anxious moments, decided to agree with the judgment just delivered by my brother Bello J.S.C. a preview of which he kindly gave me.

The issue in the case is really the interpretation that should be placed on the words – “final address” in s.258(1) of the Constitution of the Federal Republic of Nigeria 1979 (hereinafter referred to as the 1979 Constitution).

In Ifezue v. Mbadugha 19845 S.C. 79, this Court expressed strong views in regard to the reasons for the interpretation placed on s.258(1) of the 1979 Constitution. Irikefe J.S.C. said-

“I can see no difficulty in declaring as incompetent any judgment delivered outside the prescribed period. On the other hand, once we go the other way, by adopting selective approach, the entire floodgate would be thrown open and the evil of yesteryears, that is judgments preserved for an interminable length of time, would be back with us.”

p.85 ibid.

According to Obaseki J.S.C., the clear intention of the Constitution in the provision of s.258(1)- “is to ensure that there is no miscarriage of justice.”

Aniagolu J.S.C. traced the history of the provision to the 1960 and 1963 Constitutions and said –

“The mischief aimed at was clearly against delays in the delivery of judgments after the conclusion of hearing of cases, by the courts. Realising that no much progress had been made by some courts by hearing the matter to the discretion of those courts by having the provision, in the earlier Constitution of a fair hearing within a reasonable time by a court the makers of the 1979 Constitution must have been determined to leave nothing to chance or to some tenacious judicial interpretation as to what ‘was a reasonable time’ and therefore came down with a distinctive definitiveness in stipulating the exact period.”

As regards “final address” the 1979 Constitution is silent (as would be expected as to the definition thereof). My anxiety in this case is for the possibility of some courts after transgressing the provisions of s.258(1) of the 1979 Constitution, hiding under the cloak of “final addresses” and thereby start again a preservation of their judgments instead of merely reserving them within the time permitted by the 1979 Constitution and thus present a clever sidetract of the mischief aimed at by that important provision of the Constitution.

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My learned brother Bello J.S.C. in his judgment has reiterated the notoriety in the fact that the official language of the High Court – the Court involved in this case is English and that court had formed the opinion that the contents of the exhibits in the Upper Area Court written in Yoruba, were essential to the just decision of the case. I agree that is within the peculair discretion of that Court and as my brother Karibi-Whyte, J.S.C. put it in his own judgment, the dispute in this case has resolved itself to one only, that, is what an address is and what the proper exercise of the discretion of the Court of Appeal is in determining how to deal with a matter before it.

Frankly, I do not consider the action of the High Court as reasonable in calling upon counsel to “address” it whether or not a sworn competent translator should be charged to interprete it. It does stand to commonsense that once the documents were not in the language of the court and they were regarded as essential to the just determination of the case, they just must be translated.

I became troubled that to allow unreasonable actions on the part of the court to defeat the spirit of s.258(1) of the 1979 Constitution could bring us back to the sad days of Ariori v. Elemo which would sentence judgments to the archives. Nevertheless, it is already trite that a court can exercise its discretion in calling or recalling a witness when it is in the interest of justice – See Ogbodu v. Odogba (1967) N.M.L.R. 221. What is in the interest of justice in a particular case is within the discretion of the Court and could hardly be objective. See Enebeke v. Ebebeke and Anor. 19641 All N.L.R. 102.

It is with this anxiety that I will agree with the judgment just read by my learned brother Bello, J.S.C. and to be read by my learned brother Karibi Whyte J.S.C. but then emphasizing that this should be limited to the peculiar facts of this case and no more.

A. NNAMANI, J.S.C.: I had the advantage of reading in draft the judgment just read by my learned brother, Bello, J.S.C. and I agree entirely with his reasoning and conclusions. My short comments are only by way of emphasis. The constitutional point taken in this appeal relates to Section 258(1) of the Constitution of the Federal Republic of Nigeria on the interpretation of which this Court has made definitive statements in Chief Dominic Onuorah Ifezue v Livinus Mbadugha and Anor. (1984) 5 S.C.79; Paul Odi and Ors. v Gbaniyi Osafile & Anor. (1985) 1 N.W.L.R. 17 S.C. and Chief Harold Sodipo and Lemminkainen O. Y. and Anor. (decided 12th July 1985 and as yet unreported). A further dimension is being urged in the interpretation of this provision of the Constitution.

The facts of this aspect of the appeal have been set down in the judgment of my learned brother, Bello, J.S. C. and I need not repeat them. It is necessary, however, to mention that the High Court of Kwara State had after hearing address of counsel on 16th, 17th, 18th of April and 2nd May, 1980 reserved judgment to 9th June, 1980. On the 25th July, 1980 to which date the judgment was further adjourned, the High Court made a statement which is fully set down in my learned brother’s judgment and which ended thus:-

“…………………………….

……………………………..

We have therefore thought it fit to charge any sworn and competent translator (Yoruba – English) with the duty of translating the exhibits (or at least the portions of them that are relevant to this case) into the English language. We wonder if any of the parties through his counsel has any objection to the step we propose to take.”

After the argument of counsel, a ruling was made appointing a translator. Judgment was eventually delivered on 7th August, 1980. Learned Senior Advocate of Nigeria, Chief Williams, is not now contesting the decision of this Court in Ifezue (Supra) that pursuant to Section 258(1) of the Constitution every court must deliver its judgment not later than 3 months after the close of final addresses, nor is he challenging the further decision of this Court in Sodipo’s case (Supra) that argument can be reopened provided such reopening is done before the 3 month period from the date of final address expires. What is really in issue in my view is the nature of the matter which can be taken in such a reopening so as to keep within the spirit of the decision in Sodipo.

In the instant case, the High Court order related to the translation of Exhibits A, B, C, E and F from Yoruba to English on the ground that one of the 3 members of the Court did not understand Yoruba. The High Court had as can be seen from the portion of the statement set down above wondered whether any of the counsel to the parties wished to object. It is the contention of Chief Williams that the response of the counsel to this invitation was not an address such as to qualify as the final address. It is his further view that matters which can be taken when a suit is reopened for argument after being set down for judgment must be substantial matters relating to the case.

It is of the utmost importance that if a suit set down for judgment after final address is to be reopened such that the 3 months deadline will start to run, such reopening must be for reasons which do not do violence to the decision of this Court in Sodipo’s case. The reopening ought to be to enable the court take, in the interest of justice, important points of law and fact relating to the case. Such a point of law or fact may be discovered by the Court in the course of preparing its judgment and the Court may then desire further address by counsel on it, or the Court’s attention may be drawn to it. It is in my view extremely difficult to lay down a hard and fast rule as to how to determine this. It would appear to me that each case ought to be dealt with on its own merit. The spirit of Sodipo’s case would of course be violated if the reopening of the suit is done not to take further address on a point of law or fact but to achieve a prolongation of the 3 months period and so save a judgment which otherwise would have been null and void.

To return to the appeal in hand, I do not myself find it necessary to go in any detail into the question whether there was an address as I am in agreement with learned Senior Advocate of Nigeria, Mr. Sofola, that there was an address by counsel on matters of law. In the Dictionary of English law by Earl Jowitt, address is simply defined as a petition. This to me means a petition by each counsel to the Court to accept his own conception of the law and facts in a case. Although the words used by the High Court – i.e. “wondering whether any of the counsel would object” – created the ground for this present contest, it seems to me that what the Court really asked for was argument by counsel in relation to a course of action which it proposed to take and which did raise arguable points of law. After all earlier in that statement the High Court had said “we were faced with an insurmountable situation”.

Both counsel in the case clearly saw that points of law arose from the course of action proposed by the High Court. At pages 239 and 240 of the Records, Messrs Olorunnishola and Babalola argued as follows respectively “……………………………………..

“If the Appeal Court should call a translator to translate such evidence it amounts to calling additional witness to give evidence. If such evidence is called the appeal court would be faced with the problem of determining what the decision of the trial court would have been if it had that evidence” “I submit that calling a translator will not amount to calling an additional witness. I also further submit that even if it amounts to calling additional evidence an appeal court can admit additional evidence where it could be shown that by reasonable diligence such evidence could not be adduced at the trial.”

In its ruling the Court found it necessary to hold

“Calling additional evidence is different from ordering a translator to translate for our benefit a document already made part of the records before us”

The only other point is whether the matters on which counsel addressed the Court were matters relating to. this case. Exhibits A, B, C, E and F had already been admitted in evidence, and since English is the language of the Court it was necessary that the documents be translated from Yoruba to English so as to be available to all 3 members of the Court. The points of law taken about the propriety or otherwise of appointing a translator at that stage to translate those exhibits from Yoruba to English are clearly to me points relating to this case.

In the result, I am also of the view that the addresses of counsel on 25th July, 1980 were the final addresses within the meaning of Section 258(1) of the Constitution. The judgment of the High Court delivered on 7th August, 1980 is therefore valid. I also would dismiss this aspect of the appeal. I abide by the orders made by my learned brother, Bello, J.S.C.

D. O. COKER, J.S.C.: I have had the advantage of reading the lead judgment of the Court just delivered by Bello, J.S.C. The constitutional issue which has been raised as a preliminary point although not raised in the Court below, is whether the judgment of the High Court of Kwara State sitting on appeal from the decision of the Upper Area Court Omu Aran, was not in contravention of the provision of Section 258(1) of the 1979 Constitution of the Federation.

The facts and the main point for decision have been fully set out in the judgment of Bello, J.S.C., and Ineed not repeat them. The provision of Section 258(1) has been the subject matter of several decisions of this court, namely Ifezue v. Mbadugha (1984) 5 S.C. 79 Odi v. Osafile (1985)1 N.W.L.R. 17 Harold Sodipo v. Lemminkainen OY. and Anor. S.C. 149/1983, delivered on 12th July, 1985.

This case, as in Sodipo’s case, puts to rest, the apparent conflict between the views expressed by Nnamani, J.S.C. and Uwais, J.S.C., in Ifezue’s case, as to the correct date of when the three months period begins to run after final addresses, where counsel have been recalled by the Court after judgment has been initially reserved. If before the expiration of three months after the first final addresses Counsel are recalled to address the Court on a point relevant to the decision of the Court, then the three month limitation period commences after the second addresses.

I agree with the reasons, conclusion and order reached by Bello, J.S.C. and adopt them as my own.

A. G. KARIBI-WHYTE, J.S.C.: I have had the privilege of a preview of the judgment of my learned brother Bello J.S.C. in this ruling. I entirely agree with him. I wish however to say a few words in amplification of his reasons, and to express my opinion on the proper construction of section 258(1) of the Constitution 1979 and the inherent powers of a court to deal with matters before it in its desire to do justice to the parties who are bound to be affected by its decision.

My brother Bello, J.S.C., has in his judgment clearly set out the fact and the circumstances leading to this application. I consider it unnecessary to repeat them. I however will refer to the salient features which support the reasoning I have adopted.

The real issue before this court as presented by Chief F.R.A. Williams S.A.N., leading counsel for the appellants is whether the judgment of the High Court of Kwara State sitting on appeal from the Upper Area Court of Ilorin was delivered not later than three months from the conclusion of final addresses.

The question whether the judgment of the High Court, now challenged, for the first time in this Court, was delivered not later than three months of the conclusion of final addresses, would no doubt depend upon whether what was regarded as an address is within the practice of our courts an address. It is pertinent to point out that the argument adopted by learned Senior Counsel for the appellants is a simple, but if successful, a very effective one to terminate this appeal in limine. This is because if the judgment of the High Court on Appeal was delivered later than three months from the conclusion of final addresses, it is a contravention of S.258(1) of the Constitution and accordingly a nullity. See Ifezue v. Mbadugha (1984) 5 S.C.79. Consequently, the judgment of the Court of Appeal which was based on the judgment of the High Court is also a nullity. see U.A. C. Ltd. v. Macfoy (1961) 3 All E.R. 1169.

The facts relied upon by Chief Williams SAN, for his argument, are very simple, short and undisputed. The only dispute is with respect to his views as to what is an address and the proper exercise of the discretion of the Court in determining how to deal with a matter before it. The first was not seriously canvassed. As has already been stated, this is an appeal from the Upper Area Court, Ilorin to the High Court Ilorin in the exercise of its appellate jurisdiction. Arguments in the appeal were concluded before the High Court on the 2nd May 1980, and the Court adjourned for judgment to the 25th July, 1980. On this date, the Court suo motu pointed out to counsel in the case that in the preparation of the judgment it observed that certain Exhibits written in Yoruba language had no English translation. The Court observed that a member of the panel could neither read nor write in the Yoruba language. The Court then invited counsel to address it on the issue whether the Court could charge any sworn and competent translator with the duty of translating the documents (or at least the relevant portion) into English language. Counsel addressed the Court on the issue. The Court gave its ruling the same day, and held that it was competent to have the document translated. So it accordingly directed a translation of the documents. The judgment was adjourned to the 7th August, 1980.

The complaint against the judgment of the High Court, as I understand it, is that the address of the 25th July, 1980 were unnecessary for the determination of the appeal, consequently, the final address was that of the 2nd May, 1980. Accordingly, the judgment delivered on the 7th August, 1980 was later than three months from the 2nd May, 1980 and therefore a nullity. This is a very interesting and impeccable syllogism, if the arguments in support are acceptable. I have considerable doubts whether on the authorities cited to us, recent as they are, the contention has any merits whatsoever.

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It is important to trace the short history of judicial interpretation of Section 258(1) to bring the argument of Chief Williams SAN, within its true perspective. The relevant part of Section 258 provides as follows:-

“(1) Every Court established under this Constitution shall deliver its decision in writing not later than 3 months after the conclusion of evidence and final address…..”

This part of the section has been construed in the recent decision of this Court in Ifezue & ors v. Mbadugha (supra) as requiring compliance to be mandatory. The non-compliance of the 3 months period was held to nullify the judgment delivered therefore. The rejection in that decision of the submission by Counsel that the expression “The conclusion of evidence and final addresses” contemplated that the provision applied only to trial courts because ordinarily evidence is not led in appellate courts requires the reading of the conjunction “and” between the expression “conclusion of evidence” and “final addresses” to read “or.” This will clear the ambiguity where actions in the trial court are tried only by affidavit evidence, and in the appellate courts where evidence is ordinarily not led. Thus construed the 3 months period should be reckoned where applicable should read, after the conclusion of evidence and/or final addresses.

I think it is fair to observe that Ifezue v. Mbadugha (Supra) did not consider the issue of the question of the expression “conclusion of evidence and final addresses, ” or the issue of the computation of the 3 months from the “conclusion of evidence and final addresses.” All that it decided was that the proper construction of section 258(1) of the Constitution required that, considering the mischief which that section is intended to prevent, any judgment of a court established under the Constitution delivered later than three months from the conclusion of evidence and/or final addresses, is decided without jurisdiction and therefore a nullity.

In Paul Odi & Anor. v. Osafile SC.144/1983, another decision of this court decided on the same principle, final addresses were made on the 25th February, 1982 and judgment was reserved in the Court of Appeal on a date to be notified. Due to the ill health and inevitable hospitalization of the presiding justice, the appeal did not come up for mention till the 26th January 1983, when the Court invited counsel to address it on a point of law arising from the grounds of appeal. Judgment was then delivered on the 10th March, 1983. It is clear from the sequence that the three months period within which judgment must be delivered on the conclusion of evidence and/or final addresses, expired on the 24th May, 1982. Hence any exercise by the Court of jurisdiction in respect of that appeal would be a contravention of the provisions of S.258(1) and therefore a nullity.

Like Ifezue v. Mbadugha, exercise of its discretion to invite counsel to address the court was made after the court had lost its jurisdiction. These two cases are authority for the proposition that –

(a) A Judgment delivered later than three months from the conclusion of evidence and final addresses is a nullity.

(b) As a necessary corollary, acts done by the court in respect of the judgment after the period of three months from the date of the conclusion of evidence and final addresses in such matter, are done without jurisdiction and the court is functus officio.

As I said above, the computation of the period was not directly in issue in any of these cases, but was the question to be decided in Chief Harold Sodipo vs. Lemminkainen OY & Anor. SC.149/83. This case is clearly different both on the facts and on the interpretation of S.258(1).

In Chief Harold Sodipo v. Lemminkaine & Anor. (which I shall hereafter refer to as the Sodipo case) the court adjourned for judgment on the 11th February, 1980. On the 24th April, 1980, counsel were invited by the trial judge suo motu to address the Court further on certain issues. The Court then proceeded to deliver its judgment on the 13th May, 1980. This Court unanimously held that s.258(1) has prescribed that judgments of Courts established by the constitution must be delivered not later than three months from the conclusion of evidence and final addresses. Accordingly, the period of 3 months prescribed under S.258(1) can only be reckoned from the last address. Thus computed, since the judgment was delivered not later than 3 months from the last address, there was no contravention of s.258(1), and the judgment was therefore not a nullity.

The effect of the cases is that:-

  1. Judgments delivered later than 3 months from the conclusion of evidence and/or final addresses is a nullity.
  2. Any judicial act purported to be done after the period of 3 months from conclusion of evidence and final addresses by a court which has adjourned for judgment is done without jurisdiction.
  3. The period of three months within which judgment must be delivered must be reckoned from the conclusion of evidence or final addresses which ever applicable before the date of the delivery of the judgments.

The appeal before us is in most respects similar to the Sodipo case. The judgment challenged is not that of the Court below, but of the High Court. The final address is the address by the parties before the judgment. On the 2nd May 1980, the High Court after the addresses of Counsel to the parties adjourned to 9th June, 1980 for judgment. On the 9th June, 1980, the record states€¢ as follows:-

“9/6/80 KWS/45A/79

SAMPSON AWOYALE APPELLANTS

VS

J. O. OGUNBIYI RESPONDENT

Parties present.

Abolaji for the appellant.

Babalola (David) for the respondent.

Court: The judgment in this appeal is still not ready. Besides the 3rd member of the Court has been away on ‘leave for ‘quite some time. The judgment will therefore be delivered on the 25th of July, 1980.

(Sgd.) D.J. Adeniyi (Sgd.) A.A.M. Ekundayo

Judge Judge

9/6/80 9/6/80.”

The judgment was still not ready on the 25/7/80, although the third member was present. When the appeal came up for judgment on the 25/7/80 the Court stated that because of the discovery, in the process of writing the judgment, of what was described as “an insurmountable situation which finally halted the writing of the judgment entirely,” The court decided to ask counsel whether the parties or any of them objected to the step the court was proposing to take. The “insurmountable situation” was what to do with an untranslated Yoruba version of certain documents already in evidence. The Court observed that the content of the record now is that part is in English and part in Yoruba. The respondent is relying heavily on the exhibits tendered. The untranslated documents are prominent among them. The Court pointed out that members of the Court are not allowed by law to rely on personal knowledge of any vernacular, that the Court cannot give a fair consideration to the cases without benefit of the translation of the untranslated exhibit. It was considered fit to charge any sworn and competent translator with the duty of translating the exhibits into the English language.

Mr. Babalola, counsel for the respondent supported the suggestion of the Court that a translator is sworn to translate the exhibits which were in vernacular. Mr. Olorunisola opposed the suggestion. He submitted that it could not be said with any degree of certainty that on the face of the untranslated exhibits being part of the record, the trial court can be taken to have considered all the evidence before it. After listening to the submissions the Court made an Order that Exhibits A and B be translated in full by the sworn professional court Yoruba-English translator. The appeal was adjourned to the 7th August, 1980 for judgment. Judgment was accordingly delivered on that day.

Chief Williams S.A.N. has argued both in his brief and its elaboration before us that arguments were concluded on the 2nd May 1980. The judgment delivered on the 7th August 1980 was delivered outside the period of 3 months prescribed. He contended that counsel were on the 25th July, 1980 merely invited to comment on the action the Court proposed to take on the issue of the untranslated documents. What counsel did was not addressing the Court on the issue. It was further submitted the action taken by the Court inviting counsel on the action they proposed to take was unnecessary since the court could have validly taken the action without reference to counsel.

He relied on Sasiman v. Narayan (1922) A.I.R. 63. Finally, and in any event, it was submitted, it was wrong to circumvent the mandatory provisions of S.258(1) by the exercise of discretion of this nature: Chief Williams submitted that the issue here is not one of address, but whether a Court can adjourn a matter beyond the statutory period. He argued that the materiality of the issue in the address is the relevant factor. In his view inviting counsel to address the Court on matters which are irrelevant to the determination of the case is opening the floodgate to the erosion of section 258(1) of the Constitution 1979.

Mr. Sofola S.A.N. leading counsel to the respondent’s referred to s.258(1) and the mischief of the provision. He referred to the Sodipo case and submitted that the period of 3 months is to be reckoned from the last address before the judgment alleged to have contravened the provision.

Counsel submitted that the court invited counsel for assistance in determining what view they were to take with respect to the untranslated documents on the record of proceedings. Mr. Sofola submitted that the Court expressed the view that the documents in issue were relevant to the determination of the appeal before the Court, and the adjournment for that purpose was the only proper thing for the court to do in the circumstance. After a careful review of the submissions of counsel, the issues for determination fall to this

(1) Whether a court is entitled to invite counsel after address and adjournment for judgment to address it further on a matter relevant to the determination of the case.

(2) Must the date for judgment in the circumstances of (1) above be reckoned from the date of the earlier or first address, and therefore be delivered within 3 months of the first address, or should it be reckoned from the last address before the delivery of the judgment.

  1. Does the adjournment for the purposes of address cease to be an adjournment merely because it is held not to be relevant to the determination of the issue before the Court.

I would ordinarily have thought that the point raised before this court has considerable merit if it were not for the earlier recent decision of this court in the Sodipo case (supra). The argument of Chief Williams, S.A.N. seems to me to be calling into question the exercise of the discretion of the court to deal with a matter before it, either in the way of adjournment, or inviting counsel to clarify a doubtful point. It is well settled law that a trial judge has a discretion not only to recall a witness but also to exercise this discretion at any stage of the proceedings, provided that discretion is exercised in the interest of justice to clarify a point of error in the case without which

the court might come to an unjust decision. – See Ogbodu v. Odogha (1967) NMLR 221., Fallon v. Calveri (1960) 1 All ER. 281 at p. 283.

In Ogbodu v. Odogha (supra) Coker JSC stated the rule as follows at p.223-224.

“Undoubtedly, the discretion to recall a witness by a judge is one which should be exercised with great care regard being had to the interest of justice and the desirability of remaining an impartial arbiter between the parties, but it will be as wrong to say that a judge has an unfettered discretion to call or recall a witness in civil proceedings at any stage of the trial, as to say that he has no right to recall a witness at any stage of the proceedings even when in the interest of justice he was obviously obliged to do so in order to clarify a point of evidence which has arisen in the proceedings and the implication of which are well within the knowledge of both parties to the litigation.”

In Ogbodu v. Odogha (supra), evidence in the case had been concluded and counsel had made their final addresses, and adjourned for judgment when the learned trial judge allowed Plaintiff’s surveyor to submit a new plan which was tendered in evidence. The Supreme Court held that this could be done in the interest of justice. It is the duty of any Court subject to the provisions of the Constitution or any contrary rules of Court to make any order which it considers necessary for doing justice between the parties before it. This discretionary jurisdiction has always been exercised by the Courts in the interest of justice without question. The exercise of discretion is a judicial act and is expected to be exercised judicially, namely in accordance with recognised and established principles.

What then is the nature of the exercise of his discretion The delivery of the judgment was adjourned to enable the court to clarify a matter relevant to the determination of a case before it. The question therefore is whether this is a proper exercise of discretion

Chief William’s contention is that it may be prima facie valid, but it is a clever way of eroding the mandatory effect of s.258(1). He submits that the Court could have without reference to counsel proceeded to do what they invited counsel to express opinion upon. He relied on Sasiman v. Narayan (supra). With due respect that case does not support the view advocated. The case relied upon is not a case of translating from one language. It is a question of the correctness of the translation. Here the issue is whether there should be a translation in the Appeal Court of an Exhibit in Yoruba language. In any event the issue is irrelevant here. I find it difficult to accept this argument. As I said in the Sodipo case, section 258(1) does not contemplate only one address, after the conclusion of evidence and before judgment. The expression final addresses may mean, more than one and clearly, the last address before the judgment or ruling. In support of this view I preferred and adopted the view expressed by my brother Nnamani JSC. at p.180, to the contrary view of my brother Uwais, JSC at p.181, both in Ifezue v. Mbadugha, in the Sodipo case. There is no doubt that in the appeal before us, the discretion to invite counsel to address the court and to adjourn for judgment were all done within the competence of the Court which had the powers to make the orders. This is because it was done before the expiration of 3 months from the conclusion of evidence and final addresses. It is not the same as was in Ifezue v. Mbadugha, (supra) and Odi v. Osafile & Ors. where the acts were done after 3 months. The defect in the exercise of the discretion arises where it is shown to be ultra vires, the court as in Ifezue v. Mbadugha, (supra) and Odi v. Osafile, SC.144/1983 or will result in injustice as in Maxwell v. Keun (1928) 1 K.B. 649. Dick v. Peller (1943) 1 K.B. 498, 503.

In Maxwell v. Keun (supra), the Court of Appeal reversed the decision of the trial judge for refusing an application for an adjournment on the ground that the refusal will defeat the right of the applicant altogether. It is not now open to controversy that the power of adjournment is a matter within the discretion of the Court. The court may grant or refuse an application for adjournment or other matters, subject to the jurisdiction of the appellate court, in the exercise its discretion in the interests of justice and for the proper determination of the case before it. The exercise of this discretion includes, adjournments of the hearing to a convenient time and place, or the recalling of any witness to clarify points of fact, or inviting counsel to address it on points of law – See Fallon v. Calvert 1960 1 All E.R. 281. It is an essential requirement of the administration of justice that the exercise by a judge of his judicial discretion should not only be respected but invariably upheld. The exercise of discretion may be interferred with where the discretion so exercised will result in injustice.

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In Sackville West v. Attorney-General 128 L.J. Jrnl. 265. Cozens-Hardy MR, expressed the attitude of appellate courts to the exercise of their discretion by courts below as follows –

“although it could be said that under no circumstances would the Court of Appeal be justified in interfering with the discretion of the learned judge in a court below, as to the proper mode and time of trying an action, yet it would only be in the most extraordinary circumstances that an application to review the decision of the learned judge as to the conduct of the business in his own court could succeed; that the only case in which the Court of Appeal would so inter fere would be as if satisfied that the decision was such that not-withstanding any exercise by the learned judge of the power of control which he could have over the action when it came on for trial, justice did not result, and he failed 10 see that such would be the effect of his decision.”

I accept and adopt this dictum as a correct statement of the practice of appellate courts. In African Continental Bank Ltd. v. Agbanyim (1960) 5 FSC. 19, just before his final address in the trial court, counsel applied to the court for adjournment to call other witnesses. His application was refused by the Court. On appeal, to the Supreme Court, it was contended that the learned judge in the court below should have granted the application in the interest of justice since they were taken by surprise by the production of Exhibits B and C at the trial. The Supreme Court rejected the contentions of appellants and held that the granting of an adjournment is a matter within the discretion of the trial judge and that there was no reason why they should interfere with it. In this case, action had been adjourned in the court of trial on three previous occasions on the application of the appellant. On the last of these adjournments the learned trial judge warned counsel that there would be no further adjournment since he was leaving the jurisdiction on transfer and would not like to leave past-heard matters. Counsel then stated they were ready to go on with the hearing. In rejecting the application to interfere with the exercise of the discretion of the trial judge to reject the application for adjournment, Hubbard Ag. F.J. said, at p.23:

“Taking all these matters into consideration, I am of opinion that there is no justification whatsoever for interfering with the learned Judge’s refusal to allow any further adjournment”.

It seems to me clear from the decided cases discussed in this ruling that appellate courts would invariably respect the exercise of the discretion of courts below to control the conduct of proceedings in their courts. They would however interfere with the exercise of such discretions in the most extraordinary circumstances. The most obvious case is where the exercise of discretion tends to injustice to one of the parties, as was in Maxwell v. Keun (1928) 1. K.B. 645. Chief Williams has invited us to interfere in the exercise by the Kwara State High Court of their discretion to invite counsel to address them on a matter which they considered relevant and important to the determination of the appeal before them. In his view the matter did not require further argument and that the adjournment had the effect of circumventing the infraction of section 258(1) of the Constitution.

It will be stating the principle too high to say that under no circumstances will a Court of Appeal interfere with the exercise of its discretion by the court below. The truth is that we can interfere under proper circumstances, but will be very wary and slow indeed and only in the most obvious situations where the exercise of discretion has resulted in injustice to one of the parties to the actions. In Maxwell v. Keun supra), Lord Atkin stated the circumstance in his characteristic lucidity as follows – at p.653,

“I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does so; but on the other hand if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to that which the court of Appeal is satisfied would be an injustice to one or other of the parties, then the court has power to review such an order, and it is, to my mind, the duty to do so.”

For this court to interfere with the exercise of the discretion of the Kwara State High Court we must be satisfied that the High Court acted without jurisdiction, or that the exercise of discretion will result in injustice to one of the parties to the case before them.

It is well settled that where a court has jurisdiction, the exercise of its powers within such jurisdiction is competent and valid – see Madukolu v. Nkemdilim (1962) 1 ALL NLR 587. Consequently its reasons whether right or wrong for its action will not affect its exercise of jurisdiction, which remains competent and valid. Chief Williams does not suggest that at the time the appeal was adjourned for judgment the court had no jurisdiction to do so. The argument that the adjournment results in a circumvention of the mandatory provision of section 258(1) of the Constitution 1979, which prohibits judgment delivered later than 3 months from the date of the conclusion of evidence and final addresses, ignores the last decision of this court in Sodipo v. Lemnikainen & Anor, that the period of three months should be reckoned from the date of the last address before the delivery of the judgment sought to be nullified. There is not doubt that in this appeal, if so reckoned, the 28th July, 1980being the last date of the addresses of the parties to the 7th August, 1980 is merely 14 days, and falls well within the period of 3 months prescribed under the Constitution.

The main thrust of the contention of Chief Williams is that since the reasons given by the court for inviting counsel to address it is one which they could have decided themselves without such invitation, there was no real address, and it was merely a strategem to circumvent the mandatory provision of S.258(1) of the Constitution 1979. It is conceded that if it is accepted that if there is no intervening address between the 2nd May 1980 when the appeal was adjourned for judgment and the 7th August, 1980, the judgment was delivered later than 3 months from the date of final ‘address and contravenes S.258(1). If however the exercise of the 28th July, 1980 is regarded as an address, then the position is clearly different. I am satisfied that the invitation of counsel to express their opinion as to the course of action on the untranslated documents and the opinions so expressed to the court were not mere comments but addresses. It is unanimously accepted in the profession that when the court invites counsel to express opinion on a difficult point of law it is an invitation to address the court on such matter.

One of the dictionary meanings of the word is that “it is a discourse delivered to audience” – Oxford Concise Dictionary of Current English 4th Ed.p.16. Websters’ New Twentieth Century Dictionary (unabridged) Second Ed. p.22, defines the word as “a written or spoken speech; a discourse”. In whichever sense one takes the word, what counsel did on the 25th July, 1980 were addresses on the invitation of the court. Since these were the addresses before the judgment of the court on the 7th August, 1980. They were the final addresses. It is therefore inescapable that the judgment challenged was delivered on the 7th August, 1980 not later than 3 months from the conclusion of final addresses on the 25th July, 1980, and did not contravene the provisions of S.258(1) of the Constitution 1979.

Again where a court exercises its discretion in controlling the determination of a case before it, this court can only interfere where the exercise of such discretion would result in injustice to one of the parties. It is not sufficient merely to contend that such exercise of discretion was in the circumstance unnecessary where no injustice resulted, thereby. It is sufficient if the court believes even if wrongly, that it required further addresses from counsel to clarify some doubt it had. The question whether a point of law argued before it, or in respect of which it requires elucidation for the determination of the case before it is doubtful or not is a matter in respect of which an appeal court can interfere. I take leave to repeat here the opinion I expressed in the Sodipo case. I there said,

“…. I am not aware of any fetter on the powers of the judge to invite counsel to address him on a fresh point of law or address him further on a point of law in respect of which the earlier address lacks clarity. I venture to be dogmatic that if there were to be such a rule of court to prevent the judge, immediately he adjourns for judgment, from seeking assistance from counsel on both sides in argument before him to clear whatever doubts he entertains, or reassure his conviction from further expositions of the law, then his capacity to do justice is correspondingly inhibited. I cannot conceive of a proper administration of justice in a situation in which a judge is required to deliver his judgment, convinced that there are areas of unresolved dispute, and doubting the correctness of the legal views expressed in his judgment, and above all the justice of his decision”.

The only goal of the court in deciding disputes is to do justice to the parties. Where the court has observed that injustice may be done unless the doubt is cleared or error corrected, it will not be in the interest of justice to allow the error remain uncorrected or doubt unresolved. If the procedure adopted by the court in pursuing this objective of doing justice to the parties is by inviting counsel to address it on a doubtful issue and adjourning for judgment, it is in my opinion a discretion which it has an inherent power to exercise. To adjourn a matter in order to determine a doubtful point is a proper ground, and the adjournment in this case was proper and competent. I refer on this point to the dictum of Farewell J in Hinckley & South Leicestershire Permanent Benefit Building Society v. Freeman (1940) 4 AVER. 212 at p.216.

“The proposition that this court has no power to adjourn any matter on any proper ground is new to me. No doubt the court cannot postpone the hearing of a matter indefinitely because, if a court did so, it might thereby lead to defeating justice altogether and a mere arbitrary refusal to hear a particular case is not a matter which, when dealing with litigation would ever become a recognised thing. I cannot conceive of a judge taking a course of that sort. However to say that the court has not always an inherent power to direct that any matter which comes before it should stand over for a period if the court thinks that that is the proper way to deal with the matter, is a proposition entirely new to me”.

All of the cases relied upon were decided upon the exercise of discretion with respect to adjournment. The common golden thread in all the cases is that the discretion can only be validly exercised in the interest of justice. Hence where injustice would result in the exercise of the discretion, the appeal court is entitled to set aside such exercise of discretion. There is no proper basis on which this court can interfere with the exercise of the discretion of the Kwara State High Court to invite counsel to address it on the issue of the translation of certain documents which are exhibits in the appeal before it. The reason for inviting counsel to address was related to the determination of the case before the court, and was proper for the adjournment. I again borrow the words of Lawrence L.J. in Maxwell v. Kaun (1929) 1 K.B. at p. 658, where he said,

“No words of mine are needed to emphasize the reluctance of this court to interfere with a discretionary order such as the case now under appeal. The court never interferes with the discretion of a judge below in arranging his list or in fixing time for trying any cases before him unless that discretion is exercised so as to result in a denial of justice”.

In conclusion, the Kwara State High Court exercise of their discretion to invite counsel to assist it in the elucidation of points of difficulty in the determination of the appeal before it in a matter sought to be clarified is relevant to the determination of the case before the court. The question whether further guidance is necessary can only be determined by the court confronted with such a situation.

It is clearly not a contravention of the provisions of S.258(1) of the Constitution 1979, to seek to have clarification on doubtful points of law on matters relevant to the determination of the case before the court. The judgment challenged was not delivered later than 3 months from the final addresses but was delivered within 14 days of the last addresses.

S. KAWU, J.S.C.: I have had the advantage of reading in draft the judgment just delivered by my learned brother, Bello, J.S.C. I agree with his conclusion that in the circumstances of this case, and following the decision of this Court in Sodipo v. Lemminkainen OY & Anor., SC.149/1983 which was delivered on 12th July, 1985 (not yet reported), the High Court of Kwara State did not contravene the provisions of S.258(1) of the Constitution and consequently the appeal on the Constitutional issue failed. There will be no orders as to costs.

Appeal Dismissed

on Constitutional Point


SC.123/1983(1)

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