COUNCIL, FEDERAL UNIVERSITY OF TECHNOLOGY, AKURE V. PRINCE ADEOLA AJIDAHUN (2012)

COUNCIL, FEDERAL UNIVERSITY OF TECHNOLOGY, AKURE V. PRINCE ADEOLA AJIDAHUN

(2012)LCN/5552(CA)

In The Court of Appeal of Nigeria

On Monday, the 9th day of July, 2012

CA/B/374/2006

RATIO

JUDGMENT: THE SLIP RULE

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. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JCA

COURT: WHETHER A COURT HAS JURISDICTION TO VARY ITS ORDERS TO MAKE ITS MEANING PLAIN

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. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JCA

JUSTICES:

KUDIRAT M.O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria

CHINWE E. IYIZOBA Justice of The Court of Appeal of Nigeria

MOORE A.A. ADUMEIN Justice of The Court of Appeal of Nigeria

Between

COUNCIL, FEDERAL UNIVERSITY OF TECHNOLOGY, AKURE – Appellant(s)

AND

PRINCE ADEOLA AJIDAHUN
(Carrying on Business under the Name and Style of Adeola Ajidahun & Partners) – Respondent(s)

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.”
The two issues, which were considered and determined in respect of the main appeal, were:
1. Whether or not the learned trial Judge was right in entering judgment in favour of the respondent as plaintiff in the sum of N497, 283.04K notwithstanding its finding that the plaintiff did not prove his entitlement to interest on the debt. 2. Whether or not the judgment of the trial court was not against the weight of evidence.
In resolving these issues in favour of the appellant, my learned brother Iyizoba, JCA held at pages 12 – 13 of the judgment as follows:
“The point here is that the lesser figure was not covered by the pleadings. It is not correct as argued by the learned SAN that the lower court refused the claim for interest. The figure awarded clearly included the interest element. What the learned trial Judge said after agreeing with the respondent that from the nature of the transaction and custom of the trade that he is entitled to interest is that he had no evidence before him of strict proof of same. The learned trial Judge was clearly referring to the claim for interest that brought the figure to over three and a half million naira. This did not include the interest allegedly admitted in Exhibit P6.”
(Emphasis mine)
The issue for determination in the cross-appeal was:
“Whether the trial court was not wrong in refusing to award the interest on the principal sum claimed by the cross-appellant in accordance with the relevant law and practice of their trade.”
In determining the cross-appeal against the respondent/cross-appellant, my learned brother held thus at pages 30 – 31 of the judgment:
“Regrettably, the cross-appellant at the lower court failed to plead and lead evidence in a way to entitle him to a grant of the interest claimed. Apparently being aware of the difficulty, the learned trial Judge tried to get around it by granting a portion of the interest claimed on the ground that the cross-respondent admitted to owing the amount in Exhibit P6 but it was shown in the determination of the main appeal that there was no pleading or evidence to support the grant. The cross appellant spent 23 years in court battling this case. It is a pity that at the end he is left with more or less an empty victory…. Both sides are however in agreement as to the respondent/cross-appellant’s entitlement to the balance unpaid of his professional fees of N60, 774,64K.”
(Emphasis mine)
His Lordship concluded thus:
“In conclusion, I hold that the cross-appeal is unmeritorious. It is hereby dismissed. The judgment of the Federal High Court Akure in Suit No. FHC/AK/CS/19/97 delivered by Akanbi, J, on the 3rd day of July 2006 is hereby set aside. In its place, judgment, is hereby entered for the respondent /cross-appellant Prince Adeola Ajidahun in the sum of N60, 774.64 (sixty thousand seven hundred and seventy-four naira, sixty-four kobo) with interest at the rate of 10% per annum from the date of the judgment of the tower court that is the 3rd day of July 2006 until the judgment debt is fully paid. There shall be N250, 000.00 costs in favour of the respondent/cross-appellant.”
It is the appellant’s contention that the main appeal having been resolved in its favour and the cross appeal dismissed, the award of N250, 000.00 costs ought to have been in its favour. It is correct, as argued by learned counsel for the appellant/applicant that costs follow the event. From the facts of the case highlighted above and the order of this court entering judgment in favour of the respondent/cross appellant for the balance of the contract sum with interest, which the appellant has been owing him for more than 23 years, an award of N250, 000.00 costs in its favour could not have been the intention of the court. The costs awarded were with regard to the respondent/cross-appellant’s successful proof at the trial court of the balance of N60, 774.64.00 owed him by the appellant since 1988.
We therefore hold that the award of N250, 000.00 as costs in favour of the respondent/cross-appellant correctly represents the intention of the court. It was not an accidental slip or error. There was no intention to award costs in favour of the appellant/applicant.
We therefore hold that this application lacks merit. It is refused and accordingly dismissed. We make no order for costs.

CHINWE E. IYIZOBA J.C.A: I read before now the ruling just delivered by my learned brother, K.M.O. KEKERE-EKUN JCA. I agree entirely with the ruling. The cost of N250, 000.00 awarded to the respondent/cross-appellant was meant for him and was not a slip as contended by the appellant/ applicant. The appellant/applicant is right that costs follow event but in this particular instance, the circumstances justified the award of costs to the respondent/cross appellant notwithstanding that his cross appeal was dismissed. He succeeded in proving his entitlement to the balance of N60, 774.64.00 owed him by the appellant since 1988. Though entitled to interest, he did not get any because of flaws in his pleading and evidence relating thereto. It will be preposterous to award the appellant/applicant costs of N250, 000.00 after she had defaulted in paying the respondent/cross-appellant his entitlement and causing him to remain in court for 23 years fighting for it. That will surely amount to adding salt to injury.
I agree that the application lacks merit. I also dismiss it. I abide by the consequential orders in the lead ruling as to costs.

MOORE A. A. ADUMEIN, J.C.A: I read in draft the lead ruling just delivered. Having regard to the facts and circumstances of this case, I agree with my learned brother, Kekere-Ekun JCA that the award of N250, 000.00 costs in favour of the respondent correctly represents the intention of the court. I also dismiss the application for lack of merit and make no order for costs.

Appearances

O. AGBONIKA ESQ.
Appellant/Applicant represented by P.O. FASUNHAN, Deputy Registrar (Legal). For Appellant

AND

L.O. ALADETOYINBO ESQ. For Respondent