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.
- “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.
- 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.
- 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:-
“The applicant 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 in the sum of N95,740.22 was awarded in his favour. Thereafter at 10% court interest until the judgment sum is paid.”
It is quite clear therefore that the judgment of the trial court of 4/10/93 for the sum of N95,740.22 in favour of the respondents which was in fact paid by the appellant to the respondent on 8/11/93 did not contain any mistake or omission. There was no clerical error in it or accidental slip. The judgment is also quite plain and therefore did not require any correction to make its meaning plain. Therefore having regard to the various decisions earlier reviewed in this judgment on the subject, I am of the strong view that in the circumstances of this case, the learned trial Judge clearly acted without jurisdiction in entertaining and granting the respondents’ application dated 6/12/93 relating to the award of interest from 1981 to the date of the liquidation of the judgment debt. This is because what the learned trial Judge did in this case is clearly not permitted by law as he was funclus officio. He re-opened the case by making references lo pleadings, exhibits and oral evidence in order to justify the award of interest in the supplementary judgment. To put it in the learned trial Judge’s own words where he said;-
“No doubt by their pleadings, the judgment creditor/applicant asked for 10% interest and no doubt what I would have done if I had exercised more diligence at the time I was giving judgment would have been to award the interest to the judgment creditor/applicant in accordance with their pleadings but most unfortunately this escaped my memory.”
With all respect, I do not think the law allows the learned trial Judge who forgot to consider the respondents’ claim on interest from 1981 to 4/10/93 when judgment was delivered and thereafter until the judgment debt is settled, in respect of which no clear evidence was led, nor findings on liability in this respect made by the trial Judge, to hide behind the ‘slip-rule’ and make not only the award but also the findings of liability on the claim. See John Andysons & Co. Ltd v. National Cereals Research Institute (1997) 3 NWLR (Pt. 491) 1 at 15.
I am not unaware of the decision of the Supreme Court in Berliet (Nig) Ltd. v. Kachalla (supra) that an application by motion for the award of 10% court interest on judgment debt from the date of judgment to the dale of liquidation of the judgment debt if granted would not amount to or have the effect of making an addition to the term of the judgment. I wish to observe that the situation in the present case is not the same as the situation in that case considered by the Supreme Court. In the present case, the interest claimed in the application for the variation of the judgment also included interest from 1981 to the date of the judgment which by law requires proof before finding of liability could be made followed by the award. Further more, in the present case, taking into consideration that the judgment debt was paid immediately after the judgment on 8/11/93, by the time the respondents’ application for variation was filed after 6/12/93, there was no judgment debt in existence to which the claim for variation could have been attached for the purposes of calculation. In other words the relationship between the respondents and the appellant as judgment creditor and judgment debtor, had ceased to exist with the payment of the judgment debt before the filing of the application. The foundation of the application being the judgment debt having been eroded, it would appear that looking at the claim from this angle, it is clearly not competent. For the foregoing reasons, I have come to the conclusion that the learned trial Judge had no jurisdiction to entertain and grant the respondents’ application to vary the judgment of the lower court earlier granted in favour of the respondents. The ruling is clearly a NULLITY as the motion ought to have been struck out.
The second issue for determination is whether the conduct of the trial Judge in ruling on the respondents’ motion dated 6/12/93 without affording the appellant a hearing amounted to a denial of fair hearing. It was argued for the appellant that the respondents’ counsel did not move or argue his application dated 6/12/93 and in the absence of an order that the motion and the preliminary objection be heard together, that motion remained unheard. That for the learned trial judge to proceed in his ruling on the preliminary objection to grant the reliefs sought in the motion, had resulted in denying the appellant the right of fair hearing. The case of Mohammed v. Olawunmi (1990) 2 NWLR (Pt.133) 458 at 484 and Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 190 were cited by the appellant in support of its argument.
It is not in dispute fromll1e proceedings of the trial court as reflected at page 27 of the record of this appeal that when the respondents’ motion and the appellant’s preliminary objection came up for hearing before the lower court on 21/2/94, only the preliminary objection was argued and therefore heard and specifically adjourned at page 28 of the record to 14/3/94 for ruling. However in the ruling delivered on 18/4/94, not only over-ruled the preliminary objection of the appellant but also proceeded to grant the reliefs sought by the respondents in their motion which was neither moved nor argued before the learned trial Judge. This is exactly what the Supreme Court said he should not do while considering a similar situation in Mohammed v. Olawunmi (supra) where Nnaemeka-Agu (J.S.C. as he then was) said at page 484 as follows:-
“I also believe that the respondents have no answer to the appellant’s complaint of breach of the rule of fair hearing and rules of procedure. The gist of the complaint is that the Court of Appeal merely dismissed the preliminary objection raised before it by the appellants and, without considering the application for stay on the merits, granted it. In my respectful opinion, this was in error. It is not correct, as the respondents contended, that by filing a preliminary objection to the application, the appellants had opted to sink or swim on the result; and so, as the objection failed, the learned Justices of Appeal were right to have granted the application. I am of the clear view that a person who files a preliminary objection does not thereby submit himself to such an option. Rather, by the preliminary objection, he is saying that the suit or motion before the court ought not be heard at all because it is incompetent or it is bedeviled by some other fundamental vice. If the court, by its ruling, decides that the objection is not well founded that docs not necessarily mean that the suit or motion before the court must succeed. The court is then bound to consider the suit or motion on its merits.”
Although the court is capable of coming to the conclusion that since the preliminary objection fails, the suit or motion also fails on the merit, depending upon the materials put before the court, particularly where the preliminary objection and the suit or motion are taken together, the situation in the present case does not justify such a conclusion. This is because as the motion was not heard at all, the learned trial Judge had no power or jurisdiction to rule on it. Our courts of law in this country by virtue of SECTION 6(6) OF THE 1979 CONSTITITION and the provisions of the respective relevant statutes establishing such courts, can only rule or decide on matters that have been duly heard between the parties with each of the parties given its constitutional right of not only being heard but also being given a fair hearing.
It is indeed equally well settled that the right to fair hearing entrenched in SECTION 33(1) OF THE 1979 CONSTITUTION also entails not only hearing a party on any issue which could be resolved to his prejudice but also ensuring that the hearing is fair and in accordance with the twin pillars of justice, namely, audi alteram partem and nema judex in causa sua. In the instant case therefore, when the respondents’ application was granted without a hearing at all, the appellant’s complaint that it was not given a hearing much less a fair one, is in my view on a very firm ground. It is trite law that the result of any proceeding characterized by such a denial of fair hearing is a nullity.
The third issue for determination is whether the prayers of the respondents as contained in their application dated 6/12/93 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. It was argued for the appellant that since the claim of the respondent originally was founded on negligence, the respondents ought to have claimed for damages from the appellant for the loss of use of their fund from 1981 rather than interest. This issue clearly relates mainly to the judgment of the lower court of 4/10/93 in respect of which there is no appeal before this court. It is quite clear from the appellant’s notice of appeal made with the leave of this court that this appeal only relates to the decision of the lower court of 18/4/94 which did not decide on the issue now under consideration. Thus, the issue not being one which has properly arisen for determination in this appeal from the ruling of the lower court on appeal, the issue is incompetent. For this reason the issue is hereby struck out. In any case having regard to the success of the appellant’s second issue on the denial of fair hearing, it is no longer necessary in my view to go into the third issue which was only raised and argued on the basis that there had been a hearing when in fact there had been none at all.
Finally, having resolved issues 1 and 2 in this appeal in favour of the appellant, the appeal must succeed. Accordingly, The APPEAL IS HEREBY ALLOWED. The ruling of the lower court of 18/4/94 on the motion med by the respondent’s which was granted by the lower court in the absence of jurisdiction and in flagrant violation of the appellant’s right to fair hearing guaranteed under SECTION 33(1) OF THE 1979 CONSTITUTION shall be is HEREBY DECLARED A NULLITY. As the trial court had no jurisdiction to grant the reliefs sought by the respondents in the application, the motion ought to have been struck out. Accordingly the respondents’ motion dated 6/12/93 IS HEREBY STRUCK OUT.
I am not making any order as to costs.
Other Citations: (1997)LCN/0321(CA)
