Union Bank of Nigeria Plc. V. Cfao (Nigeria) Ltd. & Anor. (1997)

LawGlobal-Hub Lead Judgment Report

MOHAMMED J.C.A.

The dispute between the parties in this appeal began in 1983 when the respondents as plaintiffs by paragraph 14 of their further amended statement of claim filed at the Kano High Court claimed as follows against the appellant and Nigeria-Arab Bank Ltd. who were the defendants:

“14. Whereof the plaintiffs claim from the defendants the sum of N194.920.05 plus 10% interest from the 5th February 1981 and 10% thereof until the whole judgment debt is completely paid.” This action went before Saka Yusuf J. for hearing and after going through a full trial, the learned trial Judge found for the plaintiffs now respondents in a well considered judgment of the court delivered on 4/10/93 part of which reads:-

“In the light of the foregoing findings, I found merit in the plaintiff claim and enter judgment for it in sum of N95.740.22 which is the face value of Exhibits A – A9.”

The appellant which had no quarrel with this judgment immediately took steps to settle the judgment debt on 13/11/93 by a cheque dated 8/11/93.

However by a motion on notice dated 6/12/93, nearly two months after the delivery of the judgment and filed at trial court, the respondents asked for the following reliefs:-

“An order to award/include in the judgment of this Honourable Court delivered on the 5th October, 1993 in the above suit, interest on 10% from 5th February, 1981 to the date of judgment and thereafter 10% until the whole judgment debt is liquidated.”

On being served with this motion, the appellant by a notice of preliminary objection to the motion dated 23/12/93, challenged the jurisdiction of the trial court to entertain the motion. On 21/2/94, both the motion filed by the respondents and the appellant’s preliminary objection to the hearing of the motion came before the same Saka Yusuf J. of the High Court of Justice Kano State sitting at Kano who had also earlier heard the substantive case and delivered the judgment the subject of the motion, for hearing. At the hearing, only the preliminary objection was moved and argued by the learned counsel on both sides, Mr. Okulaja for the appellant which had raised the objection and Alhaji Ali-Balogun for the respondents who opposed the objection. However, in his ruling delivered on 18/4/94, the learned trial Judge treated the respondents’ motion which had not been moved along with the appellants’ preliminary objection to the motion and ruled against the preliminary objection and went ahead and granted the reliefs sought in the motion in these terms “In the circumstances therefore I found no merit in the preliminary objection. It is over-ruled. The applicants’ prayer for interest is hereby granted. I therefore order that the judgment creditor/applicant be paid interest at 10% from 1981 until 4th day of October, 1993, when judgment for the sum of N95,740.22 was awarded in his favour. Thereafter at 10% court interest until the judgment sum is paid.”

The appellant which was not satisfied with this ruling against it had sought for an extension of time and the leave of this Court to appeal against it and the application was granted by this Court on 20/11/96. The appellant’s notice of appeal contains 4 grounds of appeal from which the following 3 issues for determination were identified in the appellant’s brief of argument.

1. “Whether the learned trial Judge had jurisdiction to entertain and grant the respondents’ prayers as contained in their application dated 6th December 1993 in view of the circumstances of the entire matter before him.
2. Whether the learned trial Judge was justified in law by granting the respondents’ prayers as contained in their application dated 6th December, 1993 without affording the appellant right of fair hearing in respect of same and without entertaining same.
3. Whether the prayers of the respondents contained in their application dated 6th December, 1993 is claimable and grantable in law having regard to the ways and manners in which the further and better amended statement of claim was framed and in view of the nature of the respondents’ original claims before the lower court.”

The respondents did not contest this appeal inspite of their having been duly served with all the necessary papers including the appellant’s brief of argument. On the date the appeal came up for the hearing being 21/5/97, on proof of service on the respondents, the appeal was heard ex-parte in line with ORDER 3 RULE 26 OF COURT OF APPEAL RULES 1981.

On the first issue for determination, Mr. Dada counsel for the appellant had observed that after the trial in the main case which lasted almost 10 years, the learned trial Judge delivered his judgment in respect of all the issues raised and argued before him without making any award or finding in respect of the claim for interest. Learned counsel also observed that the application for the alleged correction of the judgment of the lower court was not filed until after 3 months and after the appellant had paid the entire judgment debt. He pointed out that the law is crystal clear and settled that a Judge or court becomes functus officio after making an order or giving judgment and had no power to review such order or judgment. The case of NICON v. P.I.E Co. Ltd. (1990) 1 NWLR (Pt. 129) 697 at 708 was cited and relied upon. Counsel conceded that in exceptional circumstances a Judge had jurisdiction to correct his judgment or order arising from mistakes and accidental slip but that the exercise of such power would be improper if it has the effect of varying a judgment or order which correctly represents what the court decided. He referred to the case of Asiyanbi v. Adeniji (1967) 1 All NLR 82 in support of this submission. Learned counsel therefore submitted that in the present appeal the learned trial Judge had no jurisdiction to grant the prayers of the respondents having regard to the fresh findings on the evidence he made before deciding to grant the application. Counsel cited a number of cases including Berliet (Nig.) Ltd v. Kachalla (1995) 9 NWLR (Pt. 420) 478; Himma Merchant Ltd. v. Aliyu (1994) 5 NWLR (Pt. 347) 667 and Olurotimi v. Ige (1993) 8 NWLR (Pt. 311) 257 and submitted that having regard to all the circumstances of this case, the learned trial Judge clearly had no jurisdiction to entertain and grant the application by the respondents for the award of interest.

The Law on the issue raised here is crystal clear and well settled that a judge after making an order or giving a judgment, becomes functus officio, and has no power to review such order or judgment except in cases of corrections or mistakes and accidental slips. Under the principle of “slip-rule”, the court has power to amend its own judgment so as to correct and bring the judgment to carry out the meaning which the court intended. Such amendment would, however, be improper if it has the effect of varying a judgment or order which correctly represents what the court decided. See Asiyanbi v. Adeniji (1967) 1 All NLR 82 and NICON v. Power & Industrial Engineering Co. Ltd. (1990) 1 NWLR (Pt. 129) 697. Ogundare, J.S.C. had further explained this power of a judge to run end his judgment in Olurotimi v. Ige (1993) 8 NWLR (Pt. 311) 257 at 274 as follows:”

The power of a judge to amend his judgment is limited only to where there is a clerical mistake in the judgment or order, or an error arising from an accidental slip or omission. And the inherent power of a court to vary its own orders relates only to where it is necessary to carry out its own meaning and to make its meaning plain. See Thyane v. Thyane (1955) p. 272. The error or omission must be an error in expressing the manifest intention of the court.” (Italics for emphasis).

In the present case, it is not at all in dispute that the judgment in favour of the respondents for the sum of N95,740.22 was delivered on 4/10/93. The appellant which did not dispute this judgment promptly took steps and the amount of the judgment debt was paid by a cheque dated 8/11/93. The application by the respondent for award or inclusion in the judgment interest of 10% from 5/2/81 to the date of the judgment and thereafter 10% until the whole judgment debt is liquidated was not filed until after 6/12/93. The motion was heard on 21/2/94 and ruling delivered on 18/4/94 granting the respondents’ reliefs as follows:-