The following judgments were delivered :-
KINGDON, c.J., NIGERIA.
I am of opinion that this case stated is properly before this Court, which can and should express its opinion upon the question submitted to it.
It has been suggested that under section 4 of the West African Court of Appeal (Civil Cases) Ordinance, 1929 (No.9 of 1929). it is not competent to the lower Court to reserve for the consideration of this Court, upon a case stated, any question of law unless and until the lower Court has given its judgment or decision in the suit or matter before it. The wording of the section is :-
•• In addition and without prejudice to the right of appeal conferred by this Ordinance, any Judge of the Supreme Court or the Circuit Court may reserve for consideration by the Court of Appeal, on a case to be stated by him, any question of law which may arise on the trial of any suit or matter, and may give any judgment or decision subject to the opinion of the Court of Appeal. and the Court of Appeal shall have power to hear and determine every such question."
This section, in my view, gives an absolute discretion to the Judge to reserve a question at any stage of the proceedings before him. He may do so before taking any evidence, or after some evidence has been taken, or after all the evidence has been taken, but judgment not given or he may give his judgment or decision subject to the opinion of this Court. I cannot see that there are any words in the section to fetter his discretion, and it is clearly right that this should be so, inasmuch as the course which may be most convenient and economical in one case may be the reverse in another. The case stated is of course the case which comes before this Court, viz. the question submitted to it, and not the whole case before the lower court.
YATES, J
In this particular case I agree with the decision arrived at by the learned President, but for different reasons.
In my view the object of a special case stated is to ensure the finality of a decision, in order if possible to avoid future litigation. For this reason power has been given to a trial Judge by section 4 of Ordinance No.9 of 1929 to state a special case to the West African Court of Appeal when (a) he has given judgment in the case before him or (b) has come to a decision upon what is before him. In my view the effect of this is-he asks the West African Court of Appeal a question, or questions, (of law) as the case may be, which will determine the issu
