National Insurance Corporation of Nigeria V. Power & Industrial Engineering Company Limited (1989)
LawGlobal-Hub Lead Judgment Report
AKPATA, J.C.A.
The main issue, which is intriguing, raised by this appeal is whether a person interested in a judgment by a Court may apply by originating summons to another Court of coordinate jurisdiction to resolve any question of construction arising in the judgment.
As far back as 1978 the first respondent as plaintiff instituted an action at the Federal High Court (then Federal Revenue Court) against the appellant as defendant upon a contract of Marine Insurance for the sum of N1,231,359.00 being the cost of the cargo of rice insured with the defendant. Judgment was entered for the plaintiff by Belgore, J. (as he then was) on 19th November, 1981 for the entire sum claimed with interest at the rate of 10% from 23/5/78.
The defendant appealed against the judgment and then filed an application for a stay of execution. The application was taken by Anyaegbunam, C. J., of the same Court on 27th January 1982 and ordered with the consent of parties, “that there shall be a stay of execution of the judgment given in this action on the 19th day of November, 1981 pending the determination of the appeal lodged against the said judgment on the following conditions namely:
(i) “that the defendant/applicant do within 30 days from today pay the judgment debt of N1,231,359.00 (one million, two hundred and thirty-one thousand, three hundred and fifty-nine naira) with interest thereon at the rate of 10% per annum from the 23rd May, 1978 to 19th November, 1981 and the same put on a FIXED DEPOSIT ACCOUNT for a minimum period of 12 months in the Union Bank of Nigeria Ltd. 40 Marina, Lagos.
(ii) That the said deposit shall be in the name of the Chief Registrar, Federal High Court, Lagos.
(iii) ……
(iv) That whichever side wins the appeal should be at liberty to withdraw the monetary deposit with the accruing interest.
(v) ….”
The defendant carried out the order by paying into Court the Principal amount plus interest at 10% up to 19th November, 1981, the date of judgment in the substantive action. The Chief Registrar accordingly deposited the amount in the Bank as ordered.
The defendant lost its appeal in the Court of Appeal on 31/1/84. A further appeal to the Supreme Court was also unsuccessful on 3/1/86. The plaintiff, through its Solicitors, by letter dated 21/1/86 wrote to the defendant demanding the payment of the judgment debt with interest at 10% up to the date of the letter. The defendant, through its solicitors, replied on 28/1/86 reminding the plaintiff that the total judgment debt with interest at 10% had been paid into court and put in a deposit account for the winner to collect after the final determination of the appeal. The solicitors observed that what was paid into court represented the damages and interest up to the date of its payment.
In their reply to the defendant’s letter the plaintiff’s solicitors by letter dated 31/1/86 argued that the order “with interest at 10% from 23rd May 1978” in the judgment of Belgore J., imposed a 10% interest rate on the judgment debt from 23rd May, 1978 to payment. The solicitors drew attention to the fact that when the judgment debt was paid into the bank the bank interest rate was 6.7/8% which later increased to 8%. The plaintiff’s solicitors concluded that the difference between the bank interest rate and the 10% awarded by the court remained outstanding from the defendant.
As the parties disagreed as to the construction to be placed on the judgment of Belgore, J., of the Federal High Court, that the “special damages on N1,231,359.00 is awarded with interest at 10% from 23/5/78” the defendant, as plaintiff, now to be referred to as the appellant, by an originating summons filed on 11/2/86, initiated proceedings in the High Court of Lagos State for the determination of the construction of the judgment of Belgore, J., and whether the appellant had not satisfied the judgment debt on payment into court of the principal amount plus interest at 10% as ordered by Anyaegbunam, C. J., pursuant to the defendant’s application for a stay of execution pending the determination of its appeal.
The plaintiff that will now be referred as the respondent, the 2nd respondent being a dormant respondent, filed a preliminary objection against the originating summons questioning the jurisdiction of the High Court of Lagos to hear and determine the suit on the ground that “no Judge is competent to review a decision of another Judge of co-ordinate powers. Such powers being exercisable by an appellate court.”
At the hearing of the objection, counsel for the respondent relied on the cases of Skenconsult v. Ukey (1981) 1 S.C. 6 at 34 and Akporue v. Okei (1973) 12 S.C. 137 contending that the High Court had no jurisdiction to review the judgment of another Judge of co-ordinate jurisdiction. Counsel further submitted that the matter was a Maritime action which had been properly determined by the Federal High Court.
Counsel for the appellant on the other hand argued that the judgment sought to be interpreted was “an instrument” within the context of Order 44 of the Lagos State High Court (Civil Procedure) Rules 1972 which could be interpreted by that court.
In his ruling of 25/7/86, Agoro, J., upheld the preliminary objection on the grounds that the Federal High Court had exclusive jurisdiction in respect of causes or matters mentioned under Section 7(1) of the Federal Revenue Court Act No. 13 of 1973 as provided by Section 8(1) of the same Act. He cited in support the case of American International Insurance Company v. Ceekay Traders Limited (1981) 5 S.C. 81. The learned trial Judge also held that a judgment of a court was not an instrument within the context of Order 44 Rule 1.
He also observed that the High Court was being asked to sit on judgment over the decision of Belgore, J., in an admiralty matter, or order made by Anyaegbunam, C. J., in the same action. He went on to point out that “in the context of the legal system in this country judicial review is primarily the function of the appellate courts, that is to say, the Court of Appeal and the Supreme Court.”
The suit was accordingly dismissed. The appellant has now come to this Court attacking the dismissal of its action on six grounds. The issues arising from these grounds as framed in the appellant’s brief read:
“(i) Is this suit (M/77/86) an Admiralty matter?
(ii) Does the Federal High Court exercise exclusive jurisdiction in admiralty causes?
(iii) Is an application for CONSTRUCTION of the terms of a court order brought under Order 44 rule 1 High Court of Lagos (Civil Procedure) Rules 1972 an application for a REVIEW of the order?
(iv) Is a court order an INSTRUMENT within the meaning of order 44 Rule 1 High Court of Lagos (Civil Procedure) Rules 1972?
(v) The question posed by the originating summons on page 1 of the Record of Appeal.”
Issue (v) as framed is totally unacceptable. The appellant might as well say that the issues arising are the questions implicit in the judgment and not formulate them. Counsel are to formulate issues in the appeal concisely and not to refer the Court to the writ or any portion of the proceedings or judgment for the purposes of ascertaining any of the issues in controversy.
No issues were framed in the respondent’s brief. It is however clear that the respondent accepted the issues as framed by the appellant because the arguments contained therein are directed at the arguments canvassed by the appellant along the line of the issues formulated by it. Mrs. S. E. Ekpe who apparently prepared the respondent’s brief, signed it and has argued the appeal for the respondent should however take note that it is desirable that the respondent’s brief should contain issues arising in the appeal or it should be specifically stated that the respondent accepts the issues framed in the appellant’s brief as the issues for determination in the appeal.
All the issues framed in the appellant’s brief boiled down to one issue, that is, whether the suit by originating summons was competent. I have not the slightest hesitation in holding, and thus agreeing with the learned counsel for the appellant Mr. T. A. Molajo, that suit No. M/27/86, the subject matter of this appeal, is not an admiralty matter. The object of the action was the construction and interpretation of the judgment and an order of the Federal High Court.
The main fact that suit No. M/27/86 is an off-shoot of a judgment relating to an admiralty matter does not make it an admiralty matter. The admiralty aspect of it had ceased to operate. In a manner of speaking, it had become a spent force. It is analogous to a situation where there is a claim for damages and loss of goods which occurred after they had been discharged from a ship. In the case of Aluminium Manufacturing Co. (Nig) Ltd. v. Nigeria Ports Authority (1987) 1 N.W.L. R. (Pt.51) 475 and (1987) 2 SCNJ 84 at page 101, Obaseki, J.S.C., observed that “it will amount to ridiculous interpretation to say that because the goods had been carried in a ship any claim for damage or loss occurring anywhere on land falls within the paragraph”, that is, paragraph h of Section 7 of the Administration of Justice Act 1956 of England or paragraph d of Section 7 of the Federal High Court Act 1973 vesting jurisdiction in Admiralty matters in the Federal High Court.
In my view, without trying to be offensive, it verges on the absurd to term an action for the interpretation or construction of a part of a judgment of a court as an admiralty matter. It is however necessary to observe that if it were an admiralty matter, the Lagos High Court would not have jurisdiction since the substantive action of which it was an off-shoot was filed before the 1979 Constitution. In effect the case of Savannah Bank of Nigeria Ltd. v. Pan Atlantic Shipping and Transport Agency Limited and Anor. (1987) 1 N.W.L.R. (Pt.49) 212 where it was held that “by virtue of Section 230(2) of the Constitution and Section 7(1) of the Federal High Court Act 1973, and the unlimited jurisdiction under Section 236 of the said Constitution both the Federal and State High Courts have concurrent jurisdiction in admiralty cases” would not have been applicable.
Order 44 Rule 1 of the Lagos High Court (Civil Procedure) Rules which the appellant relied on in instituting the action states:
“1. Any person claiming to be interested under a deed, will, or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument, and for a declaration of the rights of the persons interested.”
In his ruling, Agoro, J., reasoned thus at page 41 of the Records.
“It seems to me that having regard to the ejusdem generis rule, the words “other written instrument” within Order 44, Rule 1 should be confined to a document or writing which gives formal expression to a legal act or agreement, for the purpose of creating, securing, modifying, or terminating a right. Such a document or writing does not, in my view, include a judgment of a Court either in default or on the merits.”
There is also Rule 2 of Order 44 which states:
“2. Any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of an Enactment, may apply by originating summons for the determination of such question of construction, and for a declaration as to the right claimed. ”
Both rules 1 and 2 of Order 44 are covered by Order 5 Rule 4 of the Supreme Court Practice (England) 1981 which states that proceedings may be begun either by writ or by originating summons as the plaintiffs considers appropriate in proceedings:
(a) in which the sole or principal question at issue is, or is likely to be, one of the construction of an Act or of any instrument made under an Act or of any deed, will, contract or other document, or some other question of law, or
(b) in which there is unlikely to be any substantial dispute of fact.
Indeed Order 5 Rule 4 covers a wider field than Order 44 because it provides for originating summons in respect of “some other question of law” which Order 44 does not provide for. Order 44 Rule 1 is word for word with Order 54A Rule 1 of the Annual Practice England before 1962. I shall avert more to it presently.
Instrument is defined in Strouds Judicial Dictionary, amongst other definitions, as “anything reduced to writing, a document of a formal or solemn character.” The word “Instrument” used in the widest sense therefore embraces a “‘judgment.” However whether anything reduced to writing is an instrument largely depends on the context in which it is used. For instance, Strouds Judicial Dictionary Vol.3 makes it plain at page 1386 that “Orders of Court were not instruments within Apportionment Act 1834.” It is also stated on the same page that “instrument in the phrase “bond, covenant or instrument (Stamp Duty Act 1870) meant an instrument of the same nature as “bond” or “covenant” with which it was associated, that is, one which was a security for money.” This observation by Stroud lends support to the observation of the learned trial Judge that “judgment” is not an instrument within the context of order 44 as it is not associated with deed or will.
Order 44 which is relevant to this appeal talks of “any person claiming to be interested under a deed, will, or other written instrument.” As I have said, this Order is word for word with Order 54A Rule 1 of the Annual Practice in operation before 1962. It is stated at page 1431 of the 1960 Annual Practice that the word “instrument” in the rule is meant to receive a wide construction and applies to any written document in which any right or liability, whether legal or equitable exists. It is however observed at page 1433, dealing with extent of Order 54 and following the decision of Lewis v. Green (1905) 2 Ch. 340 at page 344, that the Order is intended for the decision of question of construction where the decision of such questions, whichever way they go, will settle the litigation between the parties, that is, that an action already filed will no longer proceed or that it will not be necessary to institute an action in respect of the dispute between the parties. It is therefore clear that Order 44 is not for construction of a judgment which had dealt with the dispute between parties.
It is also stated in Stroud’s Judicial Dictionary page 1388 that “Deed, Will or other written Instrument” applied to “any written document under which any right or liability whether legal or equitable exists, e.g. a contract for an option to repurchase land, a bill of lading or a charter party, (Mason v. Schuppisser 81 L.T. 147)”. A Judge may decide that a person’s legal and equitable right exists in a document e.g. a Will. It is not in the judgment itself that his legal or equitable right exists. It is for this reason I have come to the conclusion that within the context of Order 44 Rules 1 and 2 the judgment is not an instrument.
It must be stated that Order 5 Rule 4 of the Supreme Court Practice (England) which is not the same as the former Order 54A allows the use of originating summons in place of certiorari in certain cases in respect of inferior courts because the court of Queen’s Bench has an inherent jurisdiction to control inferior tribunals in a supervisory capacity. Such will be necessary where an authoritative statement of the law by the High Court will serve to undermine a decision or order so that it need not be complied with and would not in the light of the pronouncement of the law be successfully enforced. (see Punton & Anar. v. Ministry of Pensions and National Insurance (No.2) (1964) I All E.R. 448 at 454 – 455.)
Therefore granted that a judgment is an instrument within the context of Order 44, which I do not concede, the provision would not give a High Court jurisdiction to determine any question of construction or interpretation arising from a judgment of a court of co-ordinate jurisdiction or that of a higher court. If a judgment were an instrument and Order 44 Rule 1 were all embracing as propounded by Mr. Molajo, the Order would create a situation where the High Court would be at liberty to entertain an application for the construction and interpretation of any judgment of the Supreme Court. This to my mind would be ridiculous and would lead to confusion in the otherwise well established hierarchy of Courts.
I agree with Mr. Molajo that the suit of the appellant in the High Court was not an application for a review in the true sense of it. The truth however is that where a Judge purports to interpret an ambiguous judgment of another Judge of co-ordinate jurisdiction his order which purports to clarify the judgment will be in the nature of a review. His interpretation maybe different from the intendment of the Judge who gave the judgment.
In the case of Chief Waghoreghor and Ors. v. Josiah Aghenghen (1974) 1 S.C. 1 at page 5 and 6 cited by Miss Ekpe, the Supreme Court frowned at the practice of High Court Judges “sitting on appeal, as it were, upon judgments of other High Court Judges …. In the present case Ogbobime, J., even purported to review and interpret a Supreme Court Judgment in his own way. This is clearly insupportable.” The appellant, in this case, was asking a Judge of a state High Court to interpret a judgment or order of the Federal High Court “in his own way.” In Akporue v Okei (1973) 12 S.C. 137 at 145, the Supreme Court also made the point that “no Judge is competent to sit in judgment over decision or order made by a brother Judge.”
It must also be made clear 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 the power to amend its own judgment so as to correct and bring the judgment to carry out the meaning which the court intended. Such an 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 N.L.R. 82 at page 86). Whether a Judge can be called upon to interpret his judgment is an issue I will not like to pronounce upon now.
Therefore in the instant case, if there was any error or ambiguity in the judgment or in the phrasing of the order, and the judgment or order was open to misapprehension, it could be corrected by the Judge who made it to make it clear. It is not a question of interpretation of an instrument but that of correction of ambiguity if any. There is however the question of the competence of a Judge to make any correction after the drawing up of the formal order.
I therefore hold that the appeal fails. The Lagos State High Court lacked jurisdiction. This court cannot, therefore, exercise its powers under Section 16 of the Court of Appeal Act 1976 as prayed by the appellant to construe and interpret the orders of the Federal High Court. This court can only exercise its powers under Section 16, by adjudicating on the matter in controversy as if the proceedings had been instituted in this court, if the trial Court had jurisdiction on the matter.
The appeal is dismissed with costs assessed at N250.00 in favour of the respondent.
Other Citations: (1989) LCN/0072(CA)
