SODIPO v. LEMMINKAINEN OY (1985)

Alternative Citation: (1985) NWLR (Pt.8) 547

CHIEF HAROLD SODIPO v. LEMMINKAINEN OY & ANOR

In The Supreme Court of Nigeria

On Friday, the 12th day of July, 1985

Suit No: SC.149/1983(-R)

Before Their Lordships

GEORGE SODEINDE SOWEMIMO……. Justice of the Supreme Court

MOHAMMED BELLO……. Justice of the Supreme Court

ANDREWS OTUTU OBASEKI……. Justice of the Supreme Court

ANTHONY NNAEMEZIE ANIAGOLU……. Justice of the Supreme Court

ADOLPHUS GODWIN KARIBI-WHYTE……. Justice of the Supreme Court

CHUKWUDIFU AKUNNE OPUTA……. Justice of the Supreme Court

KAYODE ESO……. Justice of the Supreme Court

 Between

CHIEF HAROLD SODIPO     Appellants

 And

LEMMINKAINEN OY

RAKENNUS-RUOLA OY Respondents

……………………A…………………….

A. N. ANIAGOLU, J.S.C. (Delivering the Leading Judgment): This judgment deals with the constitutional issue raised in ground 8 of the amended grounds of appeal and is limited to it.

On 25th February 1985, upon an application to this Court made by the appellant for extension of time within which to further amend his grounds of appeal; to add a ground of appeal which raised a constitutional issue, and to amend his Brief of Argument by adding a new paragraph 1, this Court granted the application and ordered

“(1) that the appeal be adjourned for hearing before a full court on a date to be fixed by the Chief Justice of Nigeria;

(2) that the application for extension of time within which to amend the grounds of appeal and for leave to file and argue the additional ground of appeal and to file further brief to cover the additional ground be hereby granted;

(3) that the Appellant be at liberty to file all the necessary papers within 14 days from today; and

(4) that N25 (twenty-five naira) costs be awarded in favour of the Respondents.”

Following this Order the Appellant filed eight amended grounds of appeal the last of which dealt with the constitutional issue and reads as follows:

“8. The judgment of the High Court is a nullity in that it was delivered on the 13th May 1980 more than three months after the addresses of counsel on the 11th February 1980, contrary to section 258(1) of the Constitution and the judgment of the Federal Court of Appeal from the said judgment is also therefore a nullity.”

Both Counsel filed amended briefs.

The facts giving rise to the constitutional issue were as follows:

“By a specially endorsed writ, pursuant to Order 3 Rules 4 and 5 of the High Court of Lagos State (Civil Procedure) Rules, 1979 the plaintiffs, who were said to reside at Helsinki 52, Finland, by their Solicitors, Messrs. Kehinde Sofola & Co., claimed in the High Court of Lagos, from the defendant, Chief Harold Sodipo, a liquidated sum of N760,556.91. The writ reads:

“The Plaintiffs’ claim against the defendant is for the sum of $1,169,817.41 and 17,000.00pounds or their equivalent, N760,556.91 being money payable by the Defendant to the Plaintiffs for money lent by the Plaintiffs to the Defendant as per particulars below:-

……………………B…………………….

                                PARTICULARS

5/7/76    $385,360.96         N241,454.24

2/7/76    415,536.47           260,361.20

2/8/76    39,900.00             25,000.00

15/10/76 17,000.00pounds   19,424.13

20/5/77   61,406.00            39,998.70

20/5/77   76,757.75            49,998.70

20/5/77   190,856.23          124,320.11

TOTAL     $385,360.96        17,000.00pounds  N760,556.91

In the alternative, the Plaintiffs claim the said $1,169,817.41 and 17,000.00pounds or their equivalent, N760,556.91 being money payable by the Defendant to the Plaintiffs for money had and received by the Defendant for the use of the Plaintiffs.”

On 2nd February 1980 the plaintiffs filed an application

“for an order for leave to enter final judgment against the Defendant herein on the ground that the said Defendant has no defence to the claim herein for the amount claimed in the specially endorsed writ, with interest and costs”.

A supporting affidavit was sworn to by one Olutokunbo Sofola, a legal practitioner in the Office of Kehinde Sofola & Co., deposing, inter alia, to her belief that the defendant had no defence to the action.

Before then, on 10th January 1980, the defendant filed a motion seeking for an order of court dismissing the claim for want of prosecution or, in the alternative, for an order for security for costs. In support of this motion one Adesuyi Olateru-Olagbegi, of Counsel, swore to an affidavit maintaining that the plaintiffs’ writ was not, in law, a specially indorsed writ and should be dismissed. The trial judge, C.A. Johnson, J., (as he then was) ruled that the writ of summons substantially satisfied the requirements of a specially indorsed writ and therefore refused the prayer for the dismissal of the claim.

……………………C…………………….

Argument was then heard on 11th February, 1980 on the motion of the plaintiffs to sign judgment. Ruling was reserved to 17th March, 1980 on which date the parties were absent and the Ruling was further reserved to 24th March, 1980. But the Ruling was not in fact given on the 24th March, 1980; rather, it was delivered on 27th March 1980.

Inside the Ruling, the learned trial judge raised, suo motu, the issue of illegality under the Exchange Control Act and stated he would want to be addressed by Counsel on the issue. Be it noted that on the 27th March, 1980 it was only 1 month and 16 days from 11th February 1980 when argument was heard and the matter reserved for Ruling.

After this fresh address on the issue of illegality on 24th April, 1980, the learned trial judge adjourned for Ruling to 13th May, 1980 on which date he ruled that on the available evidence the transaction was not shown to be illegal and granted leave for the plaintiffs to enter final judgment against the defendant for the sum claimed with N3,000.00 costs.

From the first address of 11th February 1980 to 13th May 1980 was a period of 3 months and 2 days; from the second address of 24th April 1980 to the same 13th May 1980 was 19 days. If the final address is regarded as having taken place on 11th February 1980 then the Ruling delivered on 13th May, 1980 was delivered 3 months and 2 days from the date of the final address; if, on the other hand, the final address is regarded as having taken place on 24th April, 1980 then the Ruling was made 19 days from the date of the final address. The issue then is: Which was the final address in the matter that of 11th February 1980 or that of 24th April 1980?

That question needs to be answered because the portion of section 258(1) of the Constitution, 1979, relevant for our purposes in this judgment, provides that

“(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 ”

That a judgment of a court established by the 1979 Constitution delivered outside the three months period, in contravention of section 258(1) of the Constitution, is null and void, has been settled by this Court in Chief Dominic Onuorah Ifezue v. Livinus Mbadugha and Another (1984) 5 S.C. 79 and reinforced by the later judgment of this Court in SC.144/1983 Paul Odi and Ors. v. Gbaniyi Osafile & Another decided on 11th January, 1985 (yet unreported).

The words “final addresses” contained in that section 258(1) have not been defined in the Constitution. I do not think however, that they needed to be defined as the meaning to be ascribed to them must be their ordinary and natural meaning.

The 5th Edition of the Concise Oxford Dictionary defines the word “final”, as adjective and noun, as

……………………D…………………….

“At an end, coming last, ultimate; putting an end to doubt, conclusive, definitive, unalterable; concerned with the purpose or and aimed at.”

Defining it in the context of the last in athletics or a competitor in an examination, it states final to be “last of a series of examinations;”

Mr. Lardner, SAN, submitted that the address of the 11th day of February 1980 must be regarded as the final address and contended that Ifezue v Mbadugha; and Odi v. Osafile (Supra) decided that the period begins to run

“from the date when judgment is first reserved and not from the date of any further addresses or “re-opening” of the case.”

Relying on Macfoy v. U.A.C. (1961) 3 W.L.R. 1405 he submitted the decision of the Federal Court of Appeal in this appeal on 29th June, 1982 was a nullity. But MACFOY which was a judgment of the Privy Council, delivered on 27th November, 1961, on an interpretation of Order 50 Rule 1 of the Rules of the Supreme Court of Sierra Leone, did not decide that that judgment was a nullity but rather that non-compliance with the rule “shall not render any proceedings void unless the Court shall so direct, but such proceedings may be set aside as irregular”. Consequently, it was held, that the delivery of the statement of claim during the long vacation was only voidable and not void; it was only an irregularity and not a nullity, and therefore, it was a matter for the discretion of the court whether it should be set aside or not. Not having been avoided, there was no ground on the facts for interfering with the discretion of the court below refusing to set aside the default judgment.

MR. SOFOLA, SAN, in reply, did not agree that Section 258(1) was breached by the trial judge and said that if he was held wrong in that submission then “this alleged delay will only be 2 days”

and that would not be sufficient to render the decision a nullity, “more so when in this case no defence of any kind has been shown to exist up till now”. It is necessary to emphasize that section 258(1) has set down a mandatory three months within which a judge must deliver the judgment. Even if it was only one day beyond the three months when he delivers the judgment, that judgment, will be null and void.

However, in the instant appeal that does not arise, for, I am clearly of the view that however one looks at the case, the learned trial judge delivered his judgment within the three months period and was not in breach of section 258(1) of the Constitution. I say so because when he reserved Ruling after the addresses of the 11th February 1980, he delivered his Ruling, based on the case before him as raised by the parties, on 27th March 1980. That was 1 month and 16 days after the final address of 11th February 1980 on the issue before him. The issue before him on that day was whether it was right that judgment be entered in default of defence. He held that there was no defence to the action when he said in his Ruling:

“The defendant filed a counter affidavit on the facts deposed to by one Adesuyi Olateru-Olagbegi described as a legal practitioner of 40 Strachan Street, Lagos. Even though the affidavit in support of the plaintiff’s summons clearly showed in paragraph 5 that the deponent verily believes that the defendant has no defence to this action, no attempt whatsoever was made in all the paragraphs of the counter affidavit to put forward any defence to the action. The only material point of dispute taken up in the counter affidavit was that the summons was neither indorsed nor accompanied by the plaintiffs statement of claim. I have already dealt with this point and do not intend to say anything further on it.”

……………………E…………………….

It was after the above Ruling that he himself raised a fresh issue not raised or, apparently, not contemplated by the parties, namely, the issue of illegality of the transaction under the Foreign Exchange Control Act. He invited the parties to address him – more or less pleading with them to do so – when he wrote:

“….and I hope both parties would be prepared to address the court on this aspect of the matter”. On 24th April 1980, (almost one month after), Mr. Sofola, SAN, addressed extensively on the foreign exchange issue, but Mr. Ade Makanju who was appearing for the defendant said:

“I have nothing to urge in the Foreign Exchange aspect because the Defendant has not really examined the true nature of the transaction.”

This is why i say that the issue of illegality based on the Exchange aspect was, apparently, not contemplated by the parties, more so, by the defendant. That address on 24th April 1980 was, therefore, an address on an entirely new issue raised suo motu by the judge. It was not part of the case presented to Court by either of the parties. After that address the judge reserved his Ruling on the new case to 13th May, 1980 on which date he ruled for the plaintiffs. That was 19 days after that address of 24th April 1980- well within the three months period commanded by section 258(1) of the Constitution.

This was one angle of looking at the proceedings.

Another angle is to regard the proceedings from 11th February 1980 as one continuous proceedings in which the parties addressed the court on 11th February, 1980 and addressed again on 24th April, 1980.

In the course of the trial of a civil action, issues will continue to arise on which the parties will necessarily address the court for as many times as is necessary. The final address must, therefore, be the last in the series, after which judgment is delivered there and then, or is reserved for delivery at a future date in accordance with our Law. The use of the words “final addresses” in section 258(1) presupposes earlier address or addresses and the legislature must be deemed to have contemplated the delivery of earlier address or addresses, leaving the one or ones, under section 258(1), to be the final.

A situation can quite easily present itself, in the course of the hearing of a case, in which a trial judge may, after adjourning the case for judgment, encounter a serious problem, on a question of Law or fact, which he is unable to resolve and will named the assistance of Counsel to re-argue the point before he can make up his mind on it. In that case the trial judge reconvenes the parties and their Counsel for them to argue the problematic point.

……………………F…………………….

I envisage two situations that could arise:

(i) after reserving judgment, but within the 3 months period allowed by section 258(1) of the Constitution, a trial judge faced with a problem, as I had earlier stated, reconvenes the court for the parties and their Counsel to argue a fresh point, contained in the pleadings or to re-argue a point or points on which he had earlier received addresses;

and

(ii) After reserving judgment, but beyond, and outside, the 3 months period allowed by section 258(1), the trial judge purports to reconvene the parties and Counsel for a fresh, or a continued, argument on the case or some aspects of it. That was the situation in IFEZUE’s case.

In their concurring opinions in IFEZUE v MBADUGHA (supra), their Lordships Nnamani and Uwais, JJ .S.c., tackled the above situations (i) and (ii) but they had differing opinions. At page 180 of the report Nnamani, J.S.C., stated:

“Finally, it remains for me to say that while I agree with Dr. Umeh, learned counsel for the appellant that if, having regard to the provisions of Section 258, a judgment is delivered on a date beyond 3 months from the close of final addresses such a judgment is null and void, I am afraid that I cannot go along with his further contention that a court cannot even reopen argument on an appeal once it has set it down for judgment. 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.”

But Uwais, J.S.C.; held the view that the requirement of section 258(1) cannot be circumvented by calling further addresses. AT page 181, he stated his view, thus:

……………………G…………………….

“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, enlarge or extend the period of three months prescribed.”

It appears to me that the matter revolves on the issue of jurisdiction. Once a judge has reserved judgment after conclusion of evidence (where evidence was taken) and final addresses, he must deliver his judgment within three months thereafter.

If he waits and does nothing till the three months are over he is functus officio and has no more the jurisdiction to deliver the judgment. But within the three months period he is still seized with the case and can exercise all the powers he has been given by Law in respect of the case. One of these powers is to recall counsel and parties for further argument. It appears to me to be a dangerous fetter on the power of the judge, which may well occasion grave injustice, to hold that within the 3 months period, if the judge discovers something warranting a reconsideration of his stand in the case, or a fresh research by all concerned is needed, he could not take immediate steps to put right the situation, but must proceed to deliver an unjust judgment, all because he had already “reserved” judgment. It appears to me that within the 3 months allowed him, a Judge must be free to use any or all of his powers in the interest of the administration of justice. In the situations posed as (i) and (ii) above, my answer is that the trial Judge can carry out (i) above, but not (ii).

But ought the learned trial judge to have raised, in the circumstances of this case, the issue of illegality under the Exchange Control Act?

No court, it has been said by Kennedy, J., in GEDGE v. ROYAL EXCHANGE ASSURANCE CORPORATION (1900) 2 Q.B. 214 at 220, ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of the court, and if the person invoking the aid of the court is himself implicated in the illegality. It mattered not whether the defendant pleaded the illegality or not. If the evidence adduced by the plaintiff proved the illegality, the court ought not to assist him. Bairamian, F.J., supported this statement in GEORGE and Ors. v. DOMINION FLOUR MILLS LTD. (1963) 1 All N.L.R. 71 at 74 and gave the reason why it should be so:

“for the courts administer the law of the land, and will not help a plaintiff who breaks it.”

A contract may be against public policy either from the nature of the acts to be performed or from the nature of the consideration. Where the illegality of the contract, although not pleaded, is disclosed in the evidence it is the duty of the court to take objection. That was so hold by Shearman, J., in MONTEFIORE v. MENDAY MOTOR COMPONENTS CO. LTD. (1918) – 1919) All E.R. (Reprint) 1185. An example of where an insurance policy was not void as against public where it covered liabilities of the insured for accidental damage to property caused by negligence even though gross and attended by criminal circumstances, is offered by JAMES v. BRITISH GENERAL INSURANCE CO. LTD. (1927) 2 K.B.D. 311. The court is also entitled to take cognisance of a contract which is detrimental to public interest as being, for example, in restraint of trade, and should dismiss the action although the defendant has not raised the question of illegality on his pleadings. (NORTH-WESTERN SALT CO. LTD. v. ELECTROLYTIC ALKALI CO. LTD. (1914 – 1915) All E. Reprint 752). North-Western Salt Co. Ltd. was cited with approval in OKAGBUE And Ors. v. Romaine (1982) 5 S.C. 133 where Idigbe, J.S.C., delivering the judgment of this Court stated at page 156 that:

“A close examination of all or most of the various decisions of this Court on the subject clearly bears out the point made in the preceding paragraph. Dominion Flour Mills Ltd. (Supra) was a case in which the decision re-stated the well known principle of law that where a contract is not ex facie illegal and the question of illegality depends on the surrounding circumstances, then as a general rule the court will not entertain the question of its illegality unless it is raised in the pleadings; in such circumstances evidence adduced in support of the unpleaded illegality clearly goes ‘to no issue. The situation in the North Western Sale Company Ltd. case (Supra) is to the same effect.”

……………………H…………………….

The same principle applies in respect of a contract which is made illegal by a statutory Order, even though the question of illegality is raised by the party who has been guilty of it, and even though the other party honestly believed, as a result of statements made to him by the party guilty of the illegality, that no breach of the Order was being committed, the reason for this attitude of the law being that the contract sought to be enforced was altogether prohibited: Re AN ARBITRATION BETWEEN MAHMOUD AND ISPRAHANI (1921) All E. Reprint 217.

Running through all these cases is the one common feature that ex facie or from the facts adduced in evidence or from the surrounding circumstances, the illegality of the transaction has become apparent. In such a case the trial judge must act to enforce and protect the law of the land. But the illegality has to be apparent. The Judge is not to embark on an inquisitorial investigation where nothing illegal is apparent. Hence, it was said in DIAB NASR v. BERINI(BEIRUT-RIYAD) (Nig.) BANK LTD. (1968) 1 All N.L.R. 274 at 295 – per Coker, J.S.C.:

“….but where illegality does not appear ex facie the court is not entitled to speculate upon its incidence let alone expressly prenounce upon it unless it was made a part of the case of either side.”

In the same vein, it was held in GEORGE And Ors. v. DOMINION FLOUR MILLS LTD. (supra) ,

(i) that where the contract is not ex facie illegal and the question of illegality depends on the circumstances, as a general rule, the court will not entertain it unless it is raised by the pleadings and

(ii) that, having regard to the rule of audi alteram partern, the trial judge had rightly exercised his discretion in refusing the defendant leave to amend his statement of defence in order to raise the illegality, where the application to amend the statement of defence was made after the close of the case for the plaintiff.

I do not think that the circumstances of this case, before the learned trial judge, justified his raising, suo motu, the issue of illegality under the Exchange Control Act because

(i) it was not pleaded by the defence;

(ii) it was not apparent in the papers before the court;

(iii) no circumstances from which the trial judge would readily gather that the transaction was illegal, were placed before the judge.

It stands to reason that if the defendant was aware of any illegality in his transaction with the plaintiffs he would have queen the first to draw attention to it. After all, he does not appear to want to pay the money. As it turned out, throughout the entire period this matter had been dragging on, the defendant neither raised a defence of illegality nor, indeed, any defence whatever.

As I had stated at the very start, this judgment is restricted to the constitutional issue on section 258(1) of the Constitution. Allusion had to be made to the question of illegality raised by the trial judge because it was the o raising of that issue by the judge and the subsequent addresses by counsel on that issue which drew the argument of which of the two addresses – of  11th February 1980 or of 24th April 1980 – was the “final” address for the purposes of that sub-section of the Constitution.

I hold that the Ruling of the learned trial Judge, C. A. Johnson, J. (now Chief Judge of Lagos State) dated 13th May 1980 was delivered within the constitutional period stipulated by section 258(1) of the 1979 Constitution and that, accordingly, ground 8 of the Appellant’s amended grounds of appeal dated 8th March 1985 hereby fails.

As the appeal has yet to be determined on the remaining grounds of appeal, costs must be costs in the cause.

……………………I……………………

G. S. SOWEMIMO, C.J.N. (Presiding): I have had the privilege of reading, in draft, the judgment of my learned brother, Aniagolu, J.S.C., and I agree with it. I adopt all his orders as to costs.

M. BELLO, J.S.C.: I have read in advance the judgment of my learned brother, Aniagolu, J.S.C. For the reasons stated by him, I agree the constitutional issue for the alleged non-compliance by the trial judge with the provisions of section 258(1) of the Constitution fails. I endorse the order as to costs.

The constitutional question for determination is a very simple one. It is: Which of the two addresses, the one delivered on 11th February 1980 or the other delivered on 24th April 1980, was the final address within the purview of section 258(1) of the Constitution? If the address of 11th February 1980 was the final address, then the judgment of the trial judge is caught by Ifezue v. Mbadugba (1984) 5 S.C. 79 and is null and void. However, if the address of 24th April 1980 was the final address, then the provisions of the subsection have been complied with. I adopt the reasons stated by my learned brother, Aniagolu, J.S.C., that the address of 24th April was the final address.

A.O. OBASEKI, J.S.C.: This Ruling deals only with the constitutional issue raised in this appeal. It was raised in ground 8 of the amended grounds of appeal filed with leave of this Court. This said ground reads:

“The judgment of the High Court is a nullity in that it was delivered on the 13th May, 1980 more than three months after the addresses of counsel on the 11th February, 1980 contrary to section 258(1) of the Constitution and the judgment of the Federal Court of Appeal from the said judgment is also therefore a nullity.”

The facts on which this ground is founded have been fully set out in the Ruling/Judgment of my learned brother, Aniagolu, JSC. delivered a short while ago, the draft of which Ruling I had the privilege of reading in advance. I agree with his opinions on the issue and I adopt them as my own.

I am however making these additional comments by way of emphasis as the issue raised is one of a variation on the theme already dealt with in Ifezue v. Mbadugha (1984) 5 Sc. 79 and confirmed in Paul Odi & Ors. v. Gbaniyi Osafile SC. 144/83 decided on 11th January, 1985.

The short facts of the case is that by a specially endorsed writ, respondents claimed N760,556.91 (as debt or money lent or as money had and received by the defendant for the use of the plaintiffs) from the appellants in the High Court of Lagos. There being no affidavit filed by the appellant disclosing a defence to the claim, the respondents moved the court for leave to sign judgment. The application was listed for hearing on 11th February, 1980 when arguments of counsel for both sides were heard. At the conclusion of the hearing, Ruling was reserved till 17th March, 1980 but was not delivered till 27th March, 1980. After delivering the Ruling in which the arguments of counsel were considered, the learned judge, Johnson, J. on his own motion, raised the issue of a possible breach of the Foreign Exchange Control Act and invited counsel to address him on the issue before concluding his Ruling. On 24th April, 1980 counsel for the respondents addressed the court on the issue while counsel for the appellant said he had nothing to say on the issue. The learned judge then adjourned his Ruling to 13th May, 1980 on which date he delivered his final Ruling in which he considered on that issue of a possible breach of the Act before granting the application of counsel for the respondents to sign judgment with N3,000.00 costs. From the first address on 11th February, 1980 to 27th March, 1980, the period was one month sixteen days. From the 11th February, 1980 to 13th May, 1980, the period was three months two days. From 24th April, 1980 to 13th May, 1980, the period amounted to only 19 days. The question, therefore, is which day will the court take as the date when final addresses were heard before judgment in the matter? Is the 11th February, 1980 or 24th April, 1980? Section 258(1) of the Constitution of the Federal Republic of Nigeria in its relevant portion for the purposes of this judgment provides:

……………………J…………………….

“Every court established under this constitution shall deliver its decision in writing not later than 3 months after the conclusion of the evidence and final addresses…”

In Chief Dominic Onuorah lfezue v. Livinus Mbadugba and Another (1984) 5 SC. 79 followed by Paul Odi and Ors. v. Gbaniyi Osafile SC.144/83 decided on 11th January, 1985, this Court declared that any judgment delivered outside this three months period is null and void even if it is one day outside the three months. The submission by learned counsel, Mr. Kehinde Sofola that on the appellant’s reckoning, the judgment delivered was only two days outside the statutory period by two days cannot therefore save a judgment delivered in breach of the section.

The strong point made by learned counsel for the respondents is that the Ruling of 27th March, 1984 resolved the issue before the court on the basis of the affidavit evidence and addresses by counsel.

The foreign exchange aspect of the case was not an issue canvassed by either party before the court. It was raised suo motu by the learned judge in exercise of his undoubted power so to do to avoid aiding illegal contracts.

The minimal importance attached to the issue by the defendant was loudly demonstrated by the reply by learned counsel for the defendant, Ade Makanju, Esq. to the invitation of the learned judge to counsel to address it on the point. The reply was:

“I have nothing to urge in the Foreign Exchange aspect because the defendant has not really examined the true nature.”

The law is well settled that when the learned trial judge raises an issue suo motu, he must invite addresses from counsel for both sides before pronouncing on the issue. In such circumstances, the addresses delivered by counsel displace the previous addresses’ as final addresses. This can only be so where the issue raised suo motu is a genuine independent issue which is not in the contemplation of both parties or their counsel and not a sham issue raised with a view to securing an illegal extension of time outside the statutory period in which to deliver his judgment.

In the instant appeal, the issue raised by the learned judge is a genuine independent one not in the contemplation of the parties. It was raised before the expiration of the three months statutory period for delivering the first adjourned ruling. It was not a case of adjourning for a Ruling and not delivering one. The learned judge did deliver his Ruling. But his call for addresses on the issue he raised made the hearing a continuous one and the addresses on the issue became final addresses for the purpose of judgment on the issue and on the whole case.

Illegality once brought to the attention of the court overrides all questions of pleadings. [see Belvoir Finance Co. Ltd. v. Harold G. Cole (1969) 2 All E.R. 904 at 908 per Donaldson, J]. It is the duty of the court when asked to give judgment which is contrary to statute to take the point although the litigants may not take it. [see Phillips v. Copping 1935 1 KB 15 at 21 per Scrutton, L.J.]. In Phillips v. Copping (supra), Scrutton, L.J. said:

“The question however arose as to the duty of the court when it appeared that a policy under consideration was p.p. i “[There is a well known statutory provision that a policy of marine insurance p.p. i is void]” and neither of the litigants took the point. Several judges who took commercial list said that it is the duty of the court to take the point if it was clear that the policy was p.p.i. A curious and practical difficulty sometimes arose. A policy was handed up to the judge and it was seen to contain pin holes.

……………………K…………………….

The court might strongly suspect that the p.p.i slip had been attached by a pin and had been taken off; but there being no evidence of this, the court was unable to act upon the supposition. But it is the duty of the Court when asked to give judgment which is contrary to a statute to take the point although the litigants may not take it.”

The learned judge, Johnson, J. was perfectly right in taking the point of illegality and inviting addresses on it. Having done that in the performance of his legal duty within the three months period for judgment, time to give judgment on the matter begins to run from the date of the conclusion of final addresses on the point. Since judgment was delivered after only 19 days from the date of conclusion of the addresses, the judgment is valid and not caught by the provisions of section 258((1) of the Constitution of the Federal Republic of Nigeria, 1979.

For the above reasons and the reasons so ably set out in the Ruling of my learned brother, Aniagolu, JSC., I hereby dismiss the constitutional objection raised in ground 8 of the grounds of appeal.

K. ESO, J.S.C.: It is for the reasons that this appeal raises a constitutional issue that I am adding my views to that of my learned brother Aniagolu, J.S.C. whose judgment I was privileged to read in advance and with which I agree.

The point raised and which is the one I am discussing herein is contained in ground 8 of the Appellant’s grounds of appeal to wit:

“8. The judgment of the High Court is a nullity in that it was delivered on the 13th May 1980 more than three months after the addresses of counsel on the 1st February 1980, contrary to section 258(1) of the Constitution and the judgment of the Federal Court of Appeal from the said judgment is also therefore a nullity.”

On the face of this ground a constitutional point is raised for this court has in the case of Ifezue v. Mbadugba & Anor. (1984) 5 S.C. 79 held that a decision given by any court, established by or under the Constitution, over three months after the conclusion of the evidence and final addresses in the case is a nullity. This view was reiterated with force of the full court again in Paul Odi & Anar. v. Gbaniyi Osafile & Anar. SC.144/83 a decision given on 11th January 1985 but not yet reported.

The only question that should arise and did arise in this case is whether the facts of the case are within the confines of the previous decisions of this Court and whether the decision of Candido Johnson J. (as he then was) who tried the case was given within three months of the final addresses of the parties or their counsel.

What are these facts? They are simple and largely uncontrovertial. By his counsel Kehinde Sofola, S.A.N., the Plaintiff, a foreign company resident in Finland, filed a claim under a specially endorsed writ for a liquidated sum the equivallent of N760,556.91 from the Defendant, one Harold Sodipo. The claim was actually in dollars and sterling to wit: $1,169,817.41 and 17,000pounds. It was alleged the amount represented a loan made to the Defendant. There was an alternative claim for the same amount as money had and received by Sodipo for the use of the Finish Company. Interest was claimed at the rate of 9% per annum up till the date of payment. This writ was filed on 18th December, 1970.

……………………L…………………….

The defendant replied with an application for the case to be dismissed for want of prosecution or at least for the plaintiffs to give security for Costs. Precisely on 25th February 1980, the Finish Company again through their counsel Mr. Kehinde Sofola, S.A.N., sought leave of court for the entry of final judgment against Sodipo on the ground that Sodipo had no defence to the action.

There were two applications before the court then on 11th February, 1980 when the Judge heard both applications. He adjourned for ruling till 17th March and on that day adjourned till 24th March, 1980. The ruling was in fact given on 27th March. That day, on his own motion the judge introduced a new dimension into the case. He said –

“The procedure under Order 14 of the F.S.C. is analoguous to that under Order 10 of our rules. It is my considered view that there are circumstances here over which the parties appear silent which require to be closely investigated and I therefore consider it inappropriate as at the present stage to grant leave to the plaintiffs to sign judgment. The Court believes that ihe justice of this matter requires that the Exchange Control aspect of it be fully explained and would call on counsel for the parties to address it on that issue before a final decision is taken in the motion. “(Italics mine)

Both learned counsel in compliance with this order of the court addressed the learned trial judge on 24th April 1980. But it is of great significance that the only party the Defendant who could have benefited by the new dimension of the learned Judge, refused, as per his learned counsel Mr. Ade Makanju, “to urge anything on the Foreign Exchange aspect” of the case for he said –

“the Defendant has not really examined the true nature of the transaction”

On 13th May after these addresses the learned trial Judge gave his ruling. He concluded –

“In the circumstances therefore, I rule that the plaintiffs are entitled to the prayer of their summons, for leave to enter final judgment. Leave is accordingly granted for the plaintiffs to enter final judgment against the defendant in the sum of N700,556.91.”

The complaint of the Appellant, Chief Harold Sodipo is this:

This addresses of 11th February 1980, being final addresses, the ruling given on 13th May was given outside the constitutional period and therefore void.

The question as I see it is this – After the addresses of 11th February 1980 and the learned Judge’s ruling of 27th March where he raised a point suo motu calling for further addresses on the points he had raised, are those addresses of 11th February final addresses within the purview of S.258(1) of the Constitution for the ruling of 13th May.

And so, I ask myself the following questions-

(i) What does the word “final” qualifying addresses mean in s.258?

……………………M…………………….

(ii) Could a judge after hearing the addresses of the parties which in so far as the parties were concerned were meant to be final, raise fresh points in his ruling which would call for further addresses by parties and thereby go outside the three month period in the later ruling when related to the, first addresses?

Probably the only point that the appellant could claim as an authority in his favour is the pronouncement of my learned brother Uwais, J.S.C. in the Ifezue case when he said – though obiter –

“This requirement (sic the three month period) cannot be circumvented by calling for further addresses by counsel after the case had been adjourned for judgment. For such further addresses are not comtemplated by the sub-section and where they occur, they cannot in my view enlarge or extend the period of three months.”

I have already said this pronouncement was obiter, and with all deference to my learned brother, Uwais, I did not subscribe to it in the Ifezue case and cannot subscribe to it. A court exists, whether in trials nisi prius or on appeal to get to the root of a matter and if a judge who, in delivering a ruling within the three month period, or who not yet delivering his ruling called back counselor parties for further addresses to explain a point, the latter addresses are the final addresses and time would start to run thenceforth.

There could be another circumstance when a judge had adjourned for ruling or judgment, and within the three months, also before he gave his ruling, one or both of the parties or their counsel discover a point upon which they believe they could further assist the court to come to a just decision, and acting upon that pray the court to recall them for further assistance and the court agrees to take further addresses, the latter addresses are the final addresses for the purpose of S.258 and the three month period starts to run thenceforth.

To hold otherwise would be to stifle a court and turn the administration of justice into a mechanical but stiff wheel. It would amount to a perversion of S.258 and to use the words of Shakespeare –

“and turn pre-ordinance and first decree into the law of children”

I am, as respects this, inclined to the view of my learned brother, Nnamani J.S.C., who said in the Ifezue case – again obiter-

“Finally, it remains for me to say that while I agree with Dr. Umeh, learned counsel for the appellant that it, having regard to the provisions of section 258, a judgment is delivered on a date beyond three months from the close of the final addresses such a judgment is null and void. I am afraid that I cannot go along with his further contention that a court cannot even reopen argument on an appeal once it has set it down for judgment. 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 reopened the three months period starts to run from the date on which the subsequent final addresses close.”

With respect, this represents in my view a true interpretation of the word “final” in s.258 for “final” means final and nothing else.

……………………N…………………….

For these reasons and the reasons so well given in the judgment of my learned brother Aniagolu, J.S.C., with which I agree, I too will dismiss this appeal and I abide by all the orders made by my learned brother Aniagolu, J.S.C. in his judgment.

A. G. KARIBI-WHYTE, J.S.C.: I have had a preview of the ruling of my learned brother Aniagolu, JSC in respect of the ground of appeal, and I agree that ground 8 of the appellant’s amended grounds of appeal fails and should be dismissed. This is the last of the grounds of appeal filed by the appellant in this appeal. It is a point of immense constitutional importance which if successful will determine the appeal in limine. It is for that reason that Mr. Lardner SAN for the appellant had decided to argue the ground first. This point of law is being taken for the first time in this Court as undoubtedly it is a point of law of considerable constitutional importance and relevance. Ground 8 of the amended grounds of appeal subject matter of this ruling reads –

“8. The judgment of the High Court is a nullity in that it was delivered on the 13th May, 1980 more than three months after the addresses of Counsel on the 11th January, 1980, contrary to section 258(1) of the Constitution and the judgment at the Federal Court of Appeal from the judgment is also therefore a nullity.”

The effect of a successful argument in respect of this ground of appeal will nullify the ruling of the trial Judge and accordingly the judgment of the Court of Appeal appealed from also a nullity. Consequently there will be no appeal properly before this Court. The provisions of section 258(1) of the Constitution, 1979 relied upon in this ground of appeal was provided by the founding fathers of our Constitution after sober reflection of the inconvenient antecents of unreasonable delays in delivering judgments and to alleviate the anxieties of litigants by ensuring the delivery of judgments within a reasonable time. See Awobiyi & Ors. v. Igbalaiye & Ors. (1965) 1 All NLR. 163; Lawal v. Dawodu & Anor. (1972) 1 All NLR. (pt. 2) 207; Chief Justus Uduebor Akpor v. Odhegu Igbuoriguo (1978) 2 SC. 115. This section now seems to provide a sanctuary and haven for Counsel confronted with the fear of imminent failure of their appeals. Since the recent decision of this Court in Dominic lfezue & Ors. v. Mbadugba, (1984) 5 S.C. 79, many other appeals both in this Court and in the court of Appeal have been lost or won, mostly un meritoriously, on the facile ground that judgment was delivered more than three months from the date of final addresses. The most recent of these cases in this Court is SC.144/1983 Paul Odi & Ors. v. Gbaniyi Osafile & Anor. (yet unreported), decided on the 11th January, 1985. It is obvious from thefacts of this appeal that the only issue for determination is the proper meaning of the expression “final addresses” in section 258(1) of the Constitution 1979. I consider it necessary to state so much of the facts as are relevant to the issue that has given rise to ground 8 of the amended grounds of appeal.

By a specially endorsed writ dated 18th December, 1979 pursuant to Order 3 rr. 4 and 5 of the High Court of Lagos State (Civil Procedure) Rules, 1979, the plaintiffs who were indicated as residing at Helsinki 52, Finland, claimed in the High Court of Lagos. from the defendant, Chief Harold Sodipe, a liquidated sum of N760,556.91. The writ is endorsed as follows:

STATEMENT OF CLAIM

The Plaintiffs’ claim against the defendant is for the sum of $1,169,817.41 and 17,000pounds or their equivalent, N760,817.91 being money payable by the Defendant to the Plaintiffs for money lent by the Plaintiffs to the Defendant as per particulars below:

……………………O…………………….

PARTICULARS

5/7/76   $385,360.96       N241,454.24

2/7/76   415,536.47         260,361.20

2/8/76    39,900.00          25,000.00

15/10/76 17,000.00pounds 19,424.13

20/5/77   61,406.00           39,998.70

20/5/77    76,757.75          49,998.70

20/5/77    190,856.23        124,320.11

TOTAL    $385,360.96   17,000.00pounds N760,556.91

In the alternative, the Plaintiffs claim the said $1,169,817.41 and 17,000.00pounds or their equivalent, N760,556.91 being money payable by the Defendant to the Plaintiffs for money had and received by the Defendant for the use of the Plaintiffs.”

The Plaintiffs also claim interest on the said sum at the rate of 9% until payment or judgment.”

On the 2nd February 1980, the Plaintiffs filed an application for an order for leave to enter final judgment against the defendant on the ground that defendant has no defence to the claim. Plaintiff also asked for interests and costs. The application was supported by affidavit sworn to by one Olatokunbo Sofola, a Legal Practitioner in the Chambers of Kehinde Sofola & Co., Solicitors to the Plaintiffs. It was deposed therein that deponent believe that the defendant had no defence to the claim.

On the 10th January, 1980 before Plaintiffs’ application for leave to sign final judgment was filed, the defendant filed a motion for an order of Court seeking to dismiss Plaintiffs’ claim for want of prosecution or, in the alternative for plaintiff to give security for cost. There was an affidavit in support of this application, sworn to by one Adeseyi Olateru-Olagbegi, maintaining that Plaintiffs’ writ was in law, not a specially endorsed writ, and should be dismissed. The two applications were argued the same day the 11th February, 1980. The learned Judge dismissed defendants’ application that the writ of summons did not satisfy the requirements of a specially endorsed writ, and ruled against the Defendant as follows :-

“RULING: I am of the considered view that the writ of summons filed by the plaintiffs substantially satisfies the requirements of a specially indorsed writ. The prayer for dismissal therefore fails. I shall rule on the issue of security after hearing of the motion for judgment.”

The motion for judgment was then argued and ruling was reserved to the 17th March, 1980. The ruling was not delivered on the 17th March, as was indicated in the adjournment because the parties were absent; it was delivered on the 27th March, 1980. It was on this date that the event which has given rise to this ground of appeal occurred.

On the 27th March, 1980, the learned Judge observed and correctly too as follows –

“The only point which to me calls for consideration at the moment is whether or not the plaintiffs are entitled to obtain leave to sign judgment as prayed.” (see p. 18 of record of proceedings.). Without ruling on this “only point”, as he has observed and is obliged to do in the interest of justice if confronted with an unresolved point either of law or fact agitating his mind, the learned Judge went on to observe further as follows –

“It is intriguing to observe that inspite of the nature of the claim as it appears both in the indorsement on the writ of summons and the affidavit in support of the summons, showing that these were amounts paid to the defendant in foreign currency, the equivalent of which is shown in Nigerian currency, neither party said anything to indicate the true nature of the transactions between them”. (see p.18).

……………………P…………………….

This is a point of law raised suo motu by the learned Judge. Most probably on account of this observation, the learned Judge declined to deliver his ruling on the motion for judgment and invited Counsel on both sides to address him on the foreign currency element in the transaction. He therefore concluded as follows –

“It is my considered view that there are circumstances here over which the parties appear silent which require to be closely investigated and 1 therefore consider it inappropriate as at the present

stage to grant leave to the plaintiffs to sign judgment. The Court believes that the justice of this matter requires that the Exchange Control aspect of it be fully explained and would call on counsel for the parties to address it on that issue before a final decision is taken in the motion.” (see p. 19).

It is abundantly clear from this passage that the learned judge did not deliver his ruling on the motion to sign judgment, because as he pointed out “the justice of the matter requires that the Exchange Control aspect of it be fully explained..” It was for this reason that Counsel for the parties were required to address the Court “before a final decision is taken in the motion.”

Counsel for both parties were invited and addressed the Court on the 24th April, 1980, and ruling on the motion as indicated on the 24th April, 1980 was adjourned to the 13th May, 1980. The learned Judge described this ruling of the 13th May, 1980 as the final ruling. It would have been observed that the ruling of the 11th March, 1980 decided nothing affecting the motion for judgment which was the issue. The motion for judgment was neither granted nor dismissed. It was deferred for ruling after the addresses on the question of illegality of the transaction. It is in my view neither a provisional ruling as was suggested in argument by Mr. Lardner for the appellants nor is it a partial ruling as the learned judge himself described it. The ruling of the 11th February, 1980 was limited to defendants’ application to dismiss plaintiffs’ claim. It was only after that ruling that the argument in respect of motion for judgment was heard. The ruling of the 13th May, 1980 clearly explained what the learned judge thought he was doing all along. The first sentence of the ruling stated as follows-

“On the 27th day of March, 1980, the Court delivered a part Ruling in respect of this summons for an Order of this Honourable Court for leave to enter final judgment against the defendant on the ground that the said defendant had no defence to the claim made against him…….” (see page 24).

The learned judge after listening to the addresses of counsel on the 24th April on the issue of illegality of the transaction subject matter of the action, on the 13th May ruled that on the evidence before him the transaction has not been shown to be illegal. He therefore concluded his ruling as follows-

“In the circumstances therefore, I rule that the plaintiffs are entitled to the prayer of their summons for leave to enter final judgment. Leave is accordingly granted for the plaintiffs to enter final judgment against the defendant in the sum of N700,556.91 with costs to be assessed.” (see p. 26).

The learned judge awarded N3,000 costs against the defendant. This was the ruling on the motion for judgment. The above in summary form are the facts. The issue now to be resolved is which of the two addresses in this ruling should be regarded as the final address for the purposes of section 258(1) of the Constitution 1979? The first address in respect of the Motion for judgment was on the 11th February, 1980. The ruling on the Motion for judgment was on the 13th May, 1980. This is a period of 3 months and 2 days. There was a second address in respect of the Motion for judgment on the 24th April, 1980 specifically limited to the question of legality vel non of the transaction subject matter of the action, This is a period of 19days to the date of the ruling in the motion for judgment on the 13th May, 1980, If the date of the final address is reckoned from the 11th March, i,e. the date of the first address as contended for by Mr. Lardner, S.A.N. for the appellants, there is no doubt that the ruling is caught by the provisions of section 258(1) of the Constitution, 1979, and on the authority of Ifezue & ors, v. Mbadugba & ors, (1984) 5 Sc. 79 is a contravention of the constitutional provision and is therefore void, If on the other hand, the final address is reckoned from the second address on the 24th April, 1980, as contended by Mr. Kehinde Sofola, S.AN, for respondents, this is well within the period of three months stipulated in section 258(1) and the ruling is valid, The issue then is which of the two addresses is the final address?

A proper construction and understanding of the phrase requires a careful analysis of the provisions of section 258(1) of the Constitution, 1979 and construction of the expression conclusion of evidence and final address. We are here concerned only with the phrase “final addresses” and the computation of the period.

……………………Q…………………….

Section 258(1) of the Constitution 1979 reads, in part as follows –

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

A simple recasting for better effect of this part of the section will read as follows –

“Every Court established under this Constitution shall after the conclusion of evidence and final addresses deliver its decision in writing not later than three months.”

Thus recast the juxtaposition of the phrase final addresses to the expression “deliver its decision” explains the propinquity and sequence of the events, A ruling is a decision within S. 277 of the Constitution, The purpose of this section, as I have already said in this judgment, and has been pointed out by this Court in Ifezue v. Mbadugba (supra) is to compel Courts to deliver their decisions and in writing within three months of the conclusion of the hearing of the case, That a judgment of a Court established under this Constitution delivered outside the period of three months prescribed by the Constitution and in contravention of S. 258(1) is void has been settled in Chief Ifezue v. Mbadugba & anor, (1984) 5 SC. 79; and SC.144/1983 Paul Odi & ors, v. Gbaniyi Osafile & anor. (decided on 11th January, 1985).

The operative phrase in the issue before the Court is final address, and the key or operative word is final. Neither the word “final” nor “address” is any where defined in the Constitution. Stricto sensu, the word final alone without qualifying a noun is not a word of art. It is therefore sufficient to rely on its ordinary semantic meaning. In relation to proceedings in Court with which section 258(1) is concerned, an “address” may be defined as a speech or……….respect to the particular issue litigated. – I have no doubt that the word ‘final’ is not used in s.258(1) in any technical connotation. It was there used as an adjective to qualify the word “address.” The Concise Oxford Dictionary of Current English Fourth Edition at p.444 defines the word “final” “a” & “n” thus-

“At the end,. coming last, ultimate…..”

Therefore, in its adjectival usage qualifying the noun “address” it is acceptable to regard a “final address” as the late or ultimate speech or submission made to the Court in respect of the issue before it. I intend to adopt this definition in this ruling. The word “final” has been used in respect of many actions in the law. We speak of a “final decision” as distinguished from an “interlocutory decision”; of “final and binding decisions”, “final and conclusive.” All these expressions refer to decisions themselves and are not quite different from expressions such as “final award” or “final distributions.” In Cogstead (C.T.) & Co. v. Newsum (H.) Sons & Co. (1921) 2 AC 528, Lord Buckmaster referring to a final award said,

“Unless it can be found that, according to its terms, the powers of the arbitrator were so exercised, that, in any “event, his duties under the arbitration were ended, and “that he reserved to himself no further power in any event, then the award cannot be regarded as final.”

……………………R…………………….

With respect to estates Pape J. in the Victorian case of Brown v. Holt (1961) V.R. 435 at p. 441, said,

“I am prepared to accept the view that there has been a final distribution of an estate, when the executors have got in all the estate and have completed their executorial duties and have assented to the dispositions of the will taking effect so that thereafter they hold the estate as trustee for the person entitled.”

It is apparent that in each of these cases the persons concerned have done the last thing requisite for the purposes of moving to the next stage. In each case the word final has been given its ordinary and natural meaning. The last, the ultimate.

Let us now apply this natural and ordinary meaning of the word “final” to the facts of this case. Mr. Lardner’s contention that the address of the 11th February, 1980 and not that of the 24th April, 1980 must be regarded as the final address, on the ground that the period of three months begins to run

“from the date when judgment is first reserved and not from the date of any further address or “reopening” of the case”

is on the facts difficult to appreciate. It is obvious from the ruling of the 11th March, 1980, that the motion to dismiss the summons filed by the defendant having failed was dismissed. The ruling on the motion for judgment filed by the plaintiff was adjourned to the 17th March, 1980. There was no ruling on this motion on the 27th March, 1980. On the 24th April, 1980 when counsel on both sides addressed the learned judge on the foreign exchange element in the transaction, it was still less than three months from the date of the address reckoning from the 11th February, 1980. It was therefore proper for the Judge to invite counsel to address him on their matter in issue. Having been so addressed this will now constitute the last address before the ruling, unless of course he was obliged to seek further clarification by asking for further address from counsel in which case such further address will constitute the ultimate. In my opinion, a proper computation of the period of three months prescribed by the Constitution, should start from the date of the judgment or decision counting backwards, to the date of the address before such judgment or ruling. In other words, the final address is the last address before the judgment or ruling. This is the inescapable construction of the expression “final addresses” in section 258(1) of the Constitution 1979.

……………………S…………………….

Mr. Lardner’s main contention is that the moment there is an address and an adjournment of ruling, the case cannot be reopened for any or further address. The address already made being regarded as final.

Mr. Lardner derives support for this proposition from the judgment of my learned brother Uwais, J.S.C. in Ifezue v. Mbadugba (supra) where the said, .

“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 comtemplated by the subsection and where they occur, they cannot in my view enlarge or extend the period of three months” (see p. 181).

This view was expressed in support of the argument of Counsel in the case. However, in the same case my learned brother Nnamani, J.S.C. expressed a contrary view with which I am in respectful agreement. He said, at p. 180, referring to the argument,

“I am afraid that I cannot go along with his further contention that a court cannot even reopen argument on an appeal once it has set it down for judgment. I think argument can be reopened provided this is done before the three months time limit is up. I am of the further view that if argument is so opened the 3 months period starts to run from the date on which the subsequent final address 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.”

Mr. Kehinde Sofola for the respondent is therefore right in my view in his submission that the learned Judge was right in reopening the case for further address on the 24th April, 1980 after adjournment for judgment, and that period under S.258(1) should start to run from that day. The primary function of courts is to do justice within the law. This, it can do by either a benevolent, or strict interpretation of enabling provisions depending on the justice of the case to realise this end. The ends of justice demands that the Judge should appreciate the possibility of the fallibility of his wisdom, and should not spare any effort to inform himself through recall of counsel for fuller argument on point of law in respect of which he is in doubt. There is no doubt the word used in section 258(1) is final addresses. It is conceded also that there can only be one final address. But this is my humble opinion as I have already said can only be the address before the delivery of the decision. There can be many addresses with respect to an issue, or in a case. But the final address is the last address before the decision. The period of 3 months can only properly be computed from the date of this address.

Now, the contention that a Judge seized with a matter cannot, whilst so seized, and before he pronounces his judgment, recall counsel to address him on points of law in respect of which he has doubts, would appear to me somewhat chilling. It suggests that the Judge lacks jurisdiction or is functus officio to perform his judicial function and exercise his judicial powers after the address and adjournment for judgment. Nothing is farther from the true legal position. There is no doubt there are limits to the Judge’s powers to recall witnesses, or call witnesses not called by either party in the litigation before him. It has however not ever been seriously contested that this power can be exercised at any time before judgment. See Ojiegbe & anor. v. Ubani & anor. (1961) 1 All NLR. 227 Ogbodu v. Odogha & anor. (1967) NMLR Carpenter & anor. v. Bello (1970) 2 All NLR. 221. Taylor on Evidence (12th Ed.) Vol. 2, para. 1477 states the rule clearly that “The judge has always a discretionary power, with which the Court above is very unwilling to interfere of recalling witnesses at any stage of the trial, and putting such questions to them as the exigencies of justice require. See also Pearce L.J. in Fallon v. Colvert (1960) 1 All E.R. 28 at p.283. Besides these, 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 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 reaffirm his conviction by further exposition 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 dispute unresolved and doubting the correctness of the legal views expressed in his judgment, and above all the justice of his decision. I do not think any provision of the law will tolerate such a situation. It seems to me clear from the provisions of s.258(1) that the period 00 months for the delivery of the decision is granted the judge to enable him endeavour to do justice to the parties in the case within the powers vested in him under the Constitution and by the rules of Court.

……………………T…………………….

The conclusion I have reached in this ruling is that the address of the parties on the 24th April, 1980, being the last address before the ruling on the 13th May, 1980, is the final address for the purposes of section 258(1) of the Constitution 1979. I hold therefore that the Ruling of the learned Judge C.A. Johnson, J. (now CA. Johnson, CJ. of Lagos State) dated 13th May, 1980 having been delivered 19 days from the date of the final address as required by section 258(1) of the Constitution 1979. Accordingly ground 8 of the appellants amended grounds of appeal dated 8th March, 1985, hereby fails and is dismissed.

Since there are yet other grounds of appeal to be argued in this appeal, costs shall be in the cause.

C. A. OPUTA, J.S.C.: I have had the privilege of a preview of the lead judgment just delivered by my learned brother, Aniagolu, J.S.C. I am in complete agreement with him that the constitutional issue raised lacks merit and that the appeal, on that issue, ought to be dismissed.

Section 258(1) of the 1979 Constitution stipulates:-

“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.”

For the purposes of the present appeal, the only issue is:- What is the interpretation of the phrase:- “Not later than 3 months after the conclusion of evidence and final addresses”? Can there be more than one set of “final addresses” where the parties have had to address the court more than once?

This Court had addressed itself to the interpretation of Section 258(1) of the 1979 Constitution in the case of Chief Dominic Onuorah Ifezue v. Livinus Mbadugha & anor. (1984)1 SCNLR. 427. It held (Bello, J.S.C. Dissenting) that:-

“The first limb of section 258(1) of the 1979 Constitution which contains the words “shall deliver….in writing not later than 3 months is mandatory and imperative and not directory and that any judgment delivered outside the three months limit is a nullity and of no legal effect.”

It is this ratio decidendi that will govern the case on appeal since the court had not here been asked to distinguish, let alone reverse, its decision in Ifezue supra. In fact, from the appellants point of view, the main prop of this appeal is the decision in Ifezue. The only constitutional issue in the present appeal is:- When does the 3 months period stipulated in Section 258(1) start to run when the Court had to be addressed more than once? In such a situation, which “addresses” will be the “final addresses”? Can there be final “final addresses”? Conclusion of evidence envisages the totality of the entire evidence. What of conclusion of addresses? Does that envisage one address or many addresses?

To answer the above questions, as they relate to the case on appeal, it will be necessary to set out briefly. the facts and surrounding circumstances of the case (although that had been beautifully done in the lead judgment):-

……………………U…………………….

  1. On the 18th December, 1979, the plaintiffs/respondents issued a writ specially endorsed under Order 3 Rule 4 and Order 10 of the High Court of Lagos Civil Procedure Rules claiming the equivalent of N760,556.91 payable to the plaintiffs/respondents by the defendant/appellant, being the sum total of various sums of money lent by the respondents to the appellant. The particulars and date of each loan were clearly set out.
  2. On 24/12/79, the defendant/appellant entered an appearance.
  3. On the 11/1/80 the defendant/appellant applied to the court of first instance for the dismissal of the suit for want of prosecution or alternatively for security for costs in the sum of N50,000.00
  4. On 5/2/80 the plaintiffs/respondents took out a summons under Order 10 Rule 1 High Court of Lagos Civil Procedure Rules to enter final judgment.
  5. On 11th February, 1980, the motion for dismissal was argued and the court ruled:-

“I am of the considered view that the Writ of Summons filed by the plaintiffs substantially satisfies the requirements of a specially indorsed Writ. The prayer for dismissal therefore fails. I shall rule on the issue of Security after hearing the motion for judgment.”

  1. On the same date, 11th February, 1980, the parties addressed the trial court on the motion for judgment. Ruling was then reserved for 17/13/80; then adjourned to 24/3/80 and ultimately delivered on 27/3/80. Part of the Ruling of 27/3/80 read:-

“Even though the affidavit in support of the plaintiffs’ summons clearly showed in paragraph 5 that the deponent verily believes that the defendant has no defence to this action, no attempt whatsoever was made in all the paragraphs of the counter affidavit to put forward any defence to the action.”

  1. During his ruling of 27/3/80, the trial judge suo motu raised the issue of whether or not the transactions in this case offended the Foreign Exchange Control Act 1962 observing:-

“It is my considered view that there are circumstances here over which the parties appear silent which require to be closely investigated and I therefore consider it inappropriate as at the present stage to grant leave to the plaintiffs to sign judgment. The Court believes that the justice of this matter requires that the Exchange Control aspect of it be fully explained and would call on counsel for the parties to address it on that issue before a final decision is taken in the motion” (italics are mine to show that the trial court adverted its mind to “final addresses” and “final decision”).

  1. The addresses on the issue of the legality or illegality of the transactions vis-a-vis the Foreign Exchange Control Act 1962 were delivered on 24th April, 1980 and the “final decision” mentioned by the trial judge in his ruling of 27/3/80 was ultimately delivered on 13th May, 1980.

From the above facts the questions calling for answers are:-

(i) Were the addresses of 11th February, 1980 the “final addresses” contemplated by S. 258(1) of the 1979 Constitution OR the Addresses of 24th April, 1980? Or in the alternative;

……………………V…………………….

(ii) Will the statutory and mandatory 3 months period from “final addresses to judgment” begin to run from the 11th February, 1980 (in which case the judgment appealed against was 2 days out of time) or from 24th April, 1980 (in which case the final judgment was very comfortably well within time)?

But before answering these two questions, let’ me first probe the genesis, the root cause of the problem. How did it come about that there were two sets of “addresses” each competing to be designated “final addresses”: Has a trial court the legal competence to re-open a case after it had adjourned for judgment in order to conclude addresses already begun? Does Section 258(1) of the 1979 Constitution make any difference to that legal position? As I observed earlier on, the learned trial judge during his ruling on 27/3/80, was of the view (rightly or wrongly is here immaterial) “that the justice of this matter requires that the Exchange Control aspect of it (the transactions inter parties) be fully explained,” so he adjourned for further addresses. Surely, a judge is entitled to re-open a case as often as he thinks that course will lead, in the end to the full facts, be uncovered so that justice should thus be done: see Onyeama Ezenwa v. 5.1. Mazeli & ors. 15 WACA. 67 at p. 69. The essential function of all courts is to discover the truth in order to do justice to the parties before them. If the contract in this case were tainted with illegality and the parties chose to keep quiet, the trial court had a duty to satisfy itself that it was doing justice, by not rushing to a decision without further addresses. Cases in which a plaintiff seeks the enforcement of an illegal contract are governed by the maxim ex turpi causa non actio oritur. The aim of pleadings however is to bring to the knowledge of the opposite side and the court, all the essential facts. A defendant, like the present respondent, who, filed no affidavit showing a defence on the merits or even a Statement of Defence (irregular though that may be) as was done in Nishizawa Ltd. v. S.N. Jethwani SC/151/1983 of 14/12/84 (not yet reported), will be very anxious to clutch at any and every straw. He would be the first to plead illegality. But he did not. So unless the alleged illegality was apparent on the face of the record, the learned trial judge should have hesitated before, as it were, conducting the case for the parties and making an issue of an alleged illegality which no party either pleaded or relied upon: Gedge v. Royal Exchange Assurance Corporation (1900) 2 QB. 214 at p. 220:

see also Montefiore v. Menday Motor Components Co. Ltd. (1918-1919) All E.R. (Reprint) 1185. But all said and done, the gratuitious intervention of the learned trial judge led to the problem of two sets of addresses.

Will Section 258(1) of the 1979 Constitution allow for two sets of addresses “after conclusion of evidence”? My learned brother, Nnamani, J.S.C. in Ifezue’s case tried to proffer an answer:-

“Finally it remains for me in say that while I agree with Dr. Umeh, learned counsel for the appellant that if, having regard to the provisions of Section 258, a judgment is delivered on a date beyond three months from the close of the final addresses such a judgment is null and void, I am afraid that I cannot go along with his further contention that a court cannot even rcopen argument on an appeal once it has set it down for judgment. I think argument call be re-opened provided this is done before the three-months time limit is up. I am further of the view that if argument is so re-opened the three months period starts to run from the date on which the subsequent final address close” (the italics is mine)

……………………W…………………….

In Ifewe’s case, the above observation (with which I am in complete agreement) was obiter; in this appeal, it is the focal point calling for a decision. This case is thus an extension of the principle formulated in Ifezue supra. The question to be decided is – When there are two sets of address, which of the two will be regarded as the “final addresses”? In Ifezue’s case supra,  Uwais, J.S.C. observed:-

“In my opinion the subsection has made it mandatory for all 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 the case had been adjourned for judgment. For such further addresses are not contemplated by the sub-section and where they occur, they cannot, in my view, enlarge or extend the period of three months.”

I am happy this is a Constitutional Court which can look at the two obiter dicta by my learned brothers, Nnamani, J.S.C., and Uwais, J.S.C. On the face of it, both do not seem to agree, but when one looks beyond the surface, one soon finds out that the disagreement, if any, is not substantial. Section 258(1) mentioned specifically “final addresses” not further addresses. The difficulty will be to determine in each given case which are the “final addresses”, Final addresses are addresses that can lead to a final judgment and a final judgment has been defined as a judgment obtained in an action by which a previous existing liability of the defendant to the plaintiff is ascertained and established, or where the question whether there was a pre-existing right of the plaintiff against the defendant is finally determined in favour of either the plaintiff or the defendant. In the case on appeal, the addresses on 11th February, 1980 could not (in view of the trial judge’s doubt on the question as to whether the contract offended the Exchange Control Act 1962) and did not lead to an enforceable judgment. But the addresses of 24th April 1980 resulted in an enforceable judgment delivered on the 13th May 1980 confortably within the 3 months prescribed by Section 258(1) of the 1979 Constitution. These were the addresses which cleared the learned trial judge’s doubts on the issue of illegality. It was on the 24th April, 1980 that the learned trial judge satisfied himself, on the facts and on the law, that the Plaintiffs/Respondents could sign final judgment under Order 10 Rule 1 of the High Court of Lagos Civil Procedure Rules. In my view, what can answer “final addresses”, in this case on appeal, were the addresses delivered on the 24th April, 1980, and therefore I hold that the judgment delivered at the conclusion of those “final addresses” i.e. the judgment delivered on 13th May, 1980, was valid and consistent with both the letter, the spirit and the intendment of Section 258(1). That judgment is not therefore a nullity as the Appellant had urged this Court to hold.

……………………X…………………….

Looking at the facts and circumstances of this case from yet another angle – from the angle of vires, competence and the jurisdiction of the trial court to take all necessary steps that would lead to a just decision, while still keeping within the statutory requirement of Section 258(1) of the 1979 Constitution; one soon discovers that the request for “further addresses” made on 17/3/80 was made I month and 16days from the date of the first addresses on 11/2180. It was therefore made within the 3 months’ period allowed by Section 258(1); it was made when the trial court still had jurisdiction to make any order or orders for the effective adjudication of the dispute before it. That court had not become defunctus officio by the effluxion of the Statutory 3 months imposed by Section 258(1).

It may now be asked – what was the mischief that Section 258(1) aimed at and set out to remedy? Aniagolu, J.S.C. in Ifezue’s case supra gave the answer as:-

“The mischief aimed at was clearly against delays in the delivery of judgments after the conclusion of hearing of cases by the courts.” Irikefe, J.S.C., opined:-

“The mischief aimed at by the constitutional provisions under review is the avoidance of delayed judgments, which is the same thing as justice delayed, which is usually described as a denial of justice.”

Eso, J.S.C., with characteristic humour observed:-

“The legislator is no doubt justified in this unusual exercise and imposition having regard to the history of inordinate delays by Courts in the determination of cases before them. I adopt the language of Chief Williams that what those Courts did before the coming into force of the Constitution was to preserve and not just to reserve judgments. It has been scandalous.”

Uwais, J.S.C., commented:-

“The intendment of Section 258(1) is very clear. It is to stop judges from delaying the delivery of judgments unnecessarily as has been the case prior to the enactment of the Constitution.”

Throughout the web of all these comments, one golden thread is to be seen – that it is the intendment of Section 258(1) to stop the erstwhile inordinate, scandalous and unnecessary delays in the delivery of judgments. The question now arises – Was there any delay at all in the case on appeal let alone delay in delivering the judgment? The writ was filed on 18th December, 1979, and the final judgment was delivered on 13th May, 1980 – a period of less than 5 months in all. This is a record. Has S.258(1) in its contemplated these types of cases? My answer would be an emphatic, No. Section 258(1) is not like the proverbial laws of the Meedes and Persians stern and immutable. It was aimed at certain existing mischief – delays in the delivery of judgments. Section 258(1) must be applied judiciously to meet the peculiar circumstances of any given case. It would have been otherwise if the adjournment for further addresses was merely a ruse, a subterfuge, to defeat the statutory 3 months imposed by s.258(1): See the case of Paul Odi & Ors. v. Gbaniyi Osafile & Anor. SC.144/1983 decided on 11th January 1985 (not reponed yet). In the case on appeal, the adjournment for further addresses was done in good faith and with no visible intention to render nugatory or ineffective the provisions of S.258(1). Section 258(1) should (to borrow from my learned brother, Bello, J.S.C. in Ifezue’s case) be “a vehicle for expeditious administration of justice and not a shackle to the administration of justice”. I therefore hold that in the case on appeal, the final addresses were concluded (for that is the word used by S.258(1) on 24th April, 1980, and that the judgment delivered on 13th May 1980 – 19 days after was delivered well within the statutory 3 months stipulated in Section 258(1) of the 1979 Constitution. The constitutional issue raised by the Appellant therefore fails and his appeal fails along with it.

In the final result and for all the reasons given above and also for the fuller reasons given in the lead judgment of my learned brother, Aniagolu, J.S.C. It will dismiss the appeal. I hereby adopt all the consequential orders made in the lead judgment.

Appeal dismissed Decisions of the Court of Appeal and the High Court confirmed.

Appearances

Mr. H. A. Lardner, S.A.N. (With him A. Ade Makanju and A. I. Idigbe)   For the Appellants

Mr. K. Sofola, S.A.N. (With him K. Sofola and A. O. Aniagolu)     For the Respondents

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