Council, Federal University Of Technology, Akure V. Prince Adeola Ajidahun (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JCA (Delivering the Leading Ruling)

This is a motion on notice dated 17/5/2012 brought pursuant to Order 19 Rule 4 of the Court of Appeal Rules 2011 on behalf of the appellant/applicant for the following order:

“Leave to and an order correcting a slip (i.e. costs in favor of the respondent/cross-appearing at page 31, last line of the Judgment of Court nay lead Judgment delivered on the 26th day of April, 2012 by His Lordship, Hon. Justice Chinwe E. Iyizoba, JCA to read Costs awarded in favour of the Appellant/Respondent to Cross-Appeal”

The grounds for the application are:

1. “At page 31 last line of the Judgment of this Honourable Court, costs awarded in respect of the appeal which was adjudged successful was stated to be in favour of Respondent/Cross-Appellant rather than the Appellant/Respondent to the Cross-Appeal who is the successful party.
2. Respondent to the main appeal, who is also the Cross-Appellant failed in his Cross-Appeal before the Honourable Court. Again the appeal of applicant herein as appellant was resolved in favour of the Appellant/Applicant herein and against the Respondent, Costs as a matter of law is usually awarded to the successful Party, as Cost in itself follows the event.
3. The slip that has arisen in the judgment page 31 last line which is being sought to be corrected is to give effect to the correct meaning and intention of the court regarding the award of costs to the successful party.”

The application is supported by an 8-paragraph affidavit deposed to by one Gbenga Bello, Litigation Officer in the Chambers of learned senior counsel for the applicant. In opposition to the application the respondent filed a 10-paragraph counter affidavit sworn to on 28/5/2012 by one Toyin Oluyemi, Litigation Clerk in the chambers of learned counsel for the respondent.

We heard the application on 30/5/2012. O. AGBONIKA ESQ., learned counsel for the applicant relied on all the averments in the supporting affidavit particularly paragraph 4 thereof. On the power of the court to correct accidental slips he relied on Order 19 Rule 4 of the Court of Appeal Rules 2011 and the cases of: Union Bank of Nig. Plc. V. C.F.A.O. Nig. Ltd. (1997) 11 NWLR (527) 53; Berliet Ltd. V. Alhaji Mustapha Kacha (1995) NWLR (420) 50 – 51. He urged the court to grant the application.

In opposing the application, L.O, ALADETOYINBO ESQ., learned counsel for the respondent relied on all the paragraphs of the counter affidavit, particularly paragraph 8 thereof. He argued that the application is incompetent for failure of the applicant to attach a copy of the judgment thereto. He contended further that there is no mistake to be corrected, as the costs awarded were clearly meant for the respondent/cross appellant. He urged the court to dismiss the application.

The law is settled that once a judgment has been delivered in a cause or matter, the only basis upon which a court can revisit the judgment is to rectify an accidental slip or typographical error therein under what is known as the “slip rule”, so long as it does not occasion a miscarriage of justice. The Supreme Court has interpreted the “slip rule” to mean “a clerical mistake in a judgment or order. Such error must be an error in expressing the manifest intention of the court: See: Alh. I.Y. Ent. Ltd. v. Omolaboje (2006) 3 NWLR (966) 195 @ 202 E – F; Aba South L.G. V. Nwajiobi (2008) 6 NWLR (1084) 503 @ 526 C – E.

Notwithstanding the general rule, in appropriate cases a court has inherent jurisdiction to make incidental or consequential orders to its judgment and/or to vary its own orders in order to carry out its meaning or to make its meaning plain. See: Obioha V. Ibero & Anor. (1994) 1 NWLR (322) 503 at 524 C; Olurotimi V. Ige (1993) 8 NWLR (311) 257: Inakoju V. Adeleke (2007) 4 NWLR (1025) 423 @ 708 – 709 F-H.

Order 19 Rule 4 of the Court of Appeal Rules 2011 provides:

”The Court shall not review any judgment once given and delivered by it, save to correct any clerical mistake or some error arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention. A judgment or order shall not be varied when it correctly represents what the Court decided nor shall the operative substantive part of it be varied and a different form substituted.” (Emphasis supplied).

See also: Uba V. Etiaba (2010) 10 NWLR (1202) 343 @ 397 – 398 H – G; Alao V. C.S.N. Ltd. (2000) 6 SC (Pt. I) 27 @ 36 – 37.There is no doubt that in an application of this nature, a copy of the judgment sought to be varied or corrected ought to have been attached to the affidavit in support. We however exercise our discretion under Order 20 Rule 3 of the Court of Appeal Rules 2011 and waive compliance with the rules in the interest of justice and to avoid unnecessary waste of judicial time.

The facts that gave rise to the appeal as summarized at pages 2 – 3 of the judgment of this court are as follows:

“In 1988, the defendant appointed the plaintiff a Consultant Services Engineer for a project in the University mini campus – School of Environmental Science and Fine Art School II Buildings. The plaintiff accepted the appointment, finished and delivered the design with his bill of N105, 774.64k (one hundred and five thousand, seven hundred and seventy four naira, sixty four kobo) to the defendant. The defendant defaulted in paying the plaintiff’s bill. The plaintiff wrote several letters of demand putting the defendant on notice that interest will be charged on the amount. In February 1992, the defendant made a part payment of N45, 000.00 (forty-five thousand naira) leaving a balance of N60, 774.64K (sixty thousand naira, seven hundred and seventy four naira sixty four kobo). The defendant’s failure to pay the balance after repeated demands for about four years led to the filing of this action by the plaintiff claiming the balance with interest as stated above. The Federal High Court granted the plaintiff’s claim in part and awarded him the sum of N497, 283.04. Being dissatisfied with the judgment of the court, the defendant, as appellant and the plaintiff as cross-appellant have appealed to this court respectively.”