AWOYALE V. OGUNBIYI

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1200

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NIGERIAN SUPREME COURT CASES

[1985] 2 N.S.C.C.

The appellant eventually jumped on his motorcycle and escaped. He was how-

ever eventually arrested in his village, Affa, the next day.

In his defence the appellant put up a plea of

alibi

saying that he in fact left Onit-

sha in the morning at about 5.30 a.m. and arrived at his village at about 9.00 a.m.

and that in the circumstances he could not have committed the offence. He also

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said that his houseboy (whose name he did not mention) knew that he left Onitsha

for his home town on the day of the incident at 5.30 a.m. It should however be

noted that in his statement to the police - exhibit A - which was made by the ap-

pellant on 25/9/80, he did not say anything about his houseboy knowing his move-

ment on the day of the incident. It was in his defence at the trial on 13th June; 1983

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that he said for the first time that his houseboy knew that he left Onitsha on 24/9/80

at 5.30 a.m.

The learned trial judge carefully considered all the evidence adduced, includ-

ing the defence of

alibi,

and came to the conclusion that the case had been proved

against the appellant beyond reasonable doubt. The trial judge accepted the evi-

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dence of 4th P.W. that it was the appellant that committed the offence and without

hesitation, rejected the appellant's defence of

alibi.

The appellant's appeal to the

Court of Appeal was dismissed.

Having considered the totality of evidence adduced before the learned trial

judge, I have no hesitation in coming to the conclusion that the conviction of the

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appellant was proper and that the Court of Appeal was right in dismissing his ap-

peal. I see no merit in this appeal. It is hereby dismissed and the decision of the

Court of Appeal confirming that of the High Court is hereby affirmed.

Appeal dismissed.

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AWOYALE V. OGUNBIYI

30

SAMSON AWOYALE



APPELLANT

V

JOSHUA

0.

OGUNBIYI



RESPONDENT

SUIT NO. SC 123/1983

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SUPREME COURT OF NIGERIA

IRIKEFE,



J.S.C.

BELLO,



J.S.C.

ESO,



J.S.C.

NNAMANI,



J.S.C.



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COKER,



J.S.C.

KARIBI-WHYTE,



J.S.C.

KAWU,



J.S.C.

18th October, 1985

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Practice and Procedure -Judgment - Time for delivery of - Constitutionally imposed

limit of 3 months after conclusion of evidence and addresses - Parties moved

after adjournment for judgment but within prescribed period to address

Appellate High Court on propriety or otherwise of proposed order for translation

from vernacular to English (official language of the Court) of certain documentary

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exhibits whose contents court considered essential for just decision - Subsequent

judgment delivered within prescribed period after 2nd set of addresses but

out of time in relation to original addresses - Judgment valid in particular

circumstances.

AWOYALE V. OGUNBIYI

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1201

ISSUES:

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

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case.

2.

Whether 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.

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3. Whether the fact that the Supreme Court, is faced with the same situation as a

lower court might have exercised its discretion in a different manner affects

such exercise of discretion by the lower court.

FACTS:

The High Court of florin, heard an appeal from the Upper Area Court, concern-

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ing the ownership and possession of certain property. The High Court, after the

appeal had been fully argued, adjourned for judgment. There were however some

documentary exhibits rendered in Yoruba language which the court needed to

translate into English. The c ourt thus summoned counsel to address, on the need

for the recall.

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The judgment was then delivered in excess of the statutory 3 months for de-

livery of judgment, but within 3 months from the counsel's address on recall. The

appellants appealed to the Supreme Court challenging the validity of the judgment.

HELD:

1.

The discretion to invite counsel to address the Court and to adjourn for judgment

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were all 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

(1984) 5 S.C. 79 and

Odi v. Osafile & ors.

(1985) 1 N.W.L.R. 221

where the acts were done after 3 months. The Court may grant or refuse an

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application for an adjournment or other matters, subject to the jurisdictions of

the appellate court, in the exercise of its discretion in the interests of justice and

for the proper determination of the case before it. The exercise of the courts

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

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address it on points of law. This discretion by a judge in an essential

requirement of the administration of justice and should not only be respected

but be upheld. Except for cases of where the discretion will result in injustice,

the exercise of this judical discretion is seldom interfered with.

2.

The mandatory provision of section 258(1) of the 1979 Constitution prohibits

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judgments delivered later than 3 months from the date of the conclusion of

evidence and final addresses. The invitation of counsel to express their opinion

as to the course of action on the untranslated documents and the opinions so

expressed were not mere comments but addresses. What counsel did on the

25th July, 1980 were addresses on the invitation of the court. Since these were

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addresses before the judgment of the court on the 7th August 1980 they were

the final addresses. 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 section 258(1) of the 1979

constitution.

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3. The fact that this court, if faced with the same situation might not have exercised

the discretion in the same manner as the High Court had done would not affect

the exercise of discretion of the High Court.