FRED CHIJINDU AJUDUA v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/13564(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 25th day of June, 2019
CA/L/909C/2018(R)
RATIO
COURTS: POWER OF THE COURTS TO AMEND RECORDS IN ORDER TO BRING IT INTO HARMONY WITH THE ORDER THE COURT INTENDED TO PRONOUNCE
My Lords, I am clear in my view that it is within the competency of a Court to correct the record in order to bring it into harmony with the order which the Court intended to pronounce. This correction is aimed at laying plain the manifest intention of the Court. See: UMMUNA V OKWURIWE (1978) 11 NSFF 319 @ 324; OSIGWE V PSPLS MGT CONSORTIUM LTD & ORS (2009) 3 NWLR (Pt 1128) 378. This is such a power in which Court is enabled to correct its inadvertence as reflected in the foregoing. The power has been described by the Supreme Court in ASIYANBI & ORS V ADENIJI (1967) ALL NLR 88, per Coker, JSC, in the following words:The power of amendment or correction of its record inherent in the jurisdiction of the Court is manifestly wide and subject to the limitation that it must be exercised when the purposes of justice requires it. PER GABRIEL OMONIYI KOLAWOLE, J.C.A.
INTERPRETATION OF DOCUMENT: THEIR PLAIN AND ORDINARY MEANINGS SHOULD BE GIVEN TO THEM
In the circumstance, the law is trite that whilst considering the construction of a document, the primary rule is that, effect should be given to the factual contents in their plain or ordinary meanings in the same con as they appear on the documents. Where the words of a document are clear and unambiguous, they must be so construed. See THE NORTHERN ASSURANCE CO LTD V WURAOLA (1969) 1 ANLR pg 14; SOLICITOR GENERAL OF WESTERN NIGERIA V ADEBONOJO (1971) 1 ALL NLR 1978; UNION BANK OF NIGERIA V OZIGI (1994) 3 NWLR (Pt 333) p 385. PER GABRIEL OMONIYI KOLAWOLE, J.C.A.
INTERPRETATION OF DOCUMENTS: IT MUST BE INTERPRETED AS A WHOLE
This is the admonition of the Supreme Court in the instance, the apex Court in MBANI V BOSI & ORS (2006) 11 NWLR (Pt 991) p 400, per ONNOGHEN, CJN (Rtd.), restated the law that: …in interpreting a document or judgment, the document or judgment must be read as a whole and interpreted in that light with effort being made to achieve harmony among the parts. PER GABRIEL OMONIYI KOLAWOLE, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
FRED CHIJINDU AJUDUA Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
GABRIEL OMONIYI KOLAWOLE, J.C.A. (Delivering the Lead Ruling): The Appellant herein, vide a Notice of Appeal filed on 9/7/18 approached this Court in an Appeal against the Ruling of the High Court of Lagos State, Ikeja Division Coram; Dada, J, delivered on 5/7/18. In the Ruling, the lower Court refused to grant the applications of the Appellant for bail pending trial in Charge No: ID 16C/2005. In a well considered judgment of the Court, delivered on 10/12/18 by my learned brother, Yakubu, JCA, the Appellants appeal was allowed, with the indication that the Ruling of the lower Court delivered on 5/7/18, was set aside.
The instant appeal is pursuant to the Motion on Notice filed on 5/2/19 by the Appellant, wherein the following reliefs are being sought from the court:
1. AN ORDER that the Judgment of the Honourable Court dated 10th December, 2018 allowing the Appellant?s/Applicant?s appeal in Appeal No: CA/L/909C/2018- Fred Chijindu Ajudua V Federal Republic of Nigeria against the Judgment of the High Court of Lagos State be clarified or interpreted to mean that the Honourable Court granted or intended to grant
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all the reliefs sought by the Appellant/Applicant in the Notice of Appeal filed on 9th July, 2018.
2. Pursuant to relief one supra, AN ORDER of the Honourable Court adding the following to the Judgment of the Honourable Court delivered on 10th December, 2018; it Is further ordered that the Chief Judge of the High Court of Lagos State should transfer or re-assign the substantive case in Charge No: ID/16C/2005 to another Judge of the High Court of Lagos State for trial DE-novo.
The grounds upon which the application was brought are also reproduced hereunder:
1) The Honourable Court is vested with both inherent and statutory jurisdictions to correct accidental-slip or omissions in its Judgment so as to give effect to the manifest intention of the Honourable Court in the Judgment.
2) Although the Honourable Court allowed the Appellants/Applicants appeal against the Judgment of the lower Court in Appeal No: CA/L/909C/2018, however the Court omitted to give effect or include the order for the transfer and reassignment of the substantive case in Charge No: ID/16C/2005 to another Judge of the High Court of Lagos State
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for trial de-novo as contained in the Appellants/Applicants Notice of Appeal.
3) The Appellants/Applicants motion is aimed at clarifying the Judgment of the Honourable Court delivered on 10th December, 2018 and to ensure the correction of the accidental-slip or omission in the said Judgment.
4) The granting of the Appellant?s/Applicant?s motion will be in the interest of justice.
The Motion on Notice was supported by a 12 paragraphed affidavit filed on 5/2/19 and deposed to by one Chukwuebuka Anyiam-a legal Practitioner in the law firm of the counsel to the Appellant/Applicant.
The Respondent in its response, filed a 7 paragraphed counter-affidavit on 13/2/19, the counter affidavit was deposed to by one Owede Spiff, a legal officer attached to the Economic and Financial Crime Commission, an agency of the Respondent.
The Appellant thereafter filed a written address on 15/3/19. The learned counsel to the Appellant, at the hearing of the SAID Motion on Notice, adopted the written address as the Appellant?s argument.
?The Appellant in its Written Address, nominated two (2)
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Issues for determination in the appeal. The issues are as reproduced hereunder:
Issue one:
Whether the Honourable Court has lost its jurisdiction to entertain the Applicants motion on notice dated 5th February, 2019 by reason of the deposition in the counter- affidavit.
ISSUE TWO
Whether the Applicant?s reliefs in the motion on notice dated 5th February, 2019 ought to be granted having regard to the material placed before the Honourable Court and the legal principles governing the exercise of the power of the Honourable Court to correct clerical and accidental slips in its judgment.
The argument canvassed by the Appellant is reflected in the following manner: On issue one (1), the Appellant?s counsel relied on EZEOKAFOR V. EZEILO (1996) 6 SC 1; GANIYU BADARU V. SOMOLU COMMUNITY BANK NIG. LTD. (2008) LPELR-4520 (CA) and Order 8 Rule 11 of the Supreme Court Rules, submitted that a party must place substantial evidence before the Court that an appeal has been entered at the Supreme Court before the principle in Order 8 Rule 11 will be applicable.
The learned Counsel contended that, evidence of
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entering an appeal is provable by presentation of CTC of relevant processes to the Court.
It was also argued that mere entering an appeal in the Supreme Court, does not oust the jurisdiction of the Court, it was submitted that the Appellant?s application does not fall within the provision of Order 8 Rule 11 of the Supreme Court Rules. The learned Appellant?s counsel urged the Court to overrule the Respondent?s objection and hear the Appellant?s application in his motion on Notice.
On Issue two of the Appellant?s argument, the Appellant counsel averred that only the Court is imbued with the power to correct its error or accidental slips.
The provision of Order 20 of the Court of Appeal Rules, 2016 was relied on in support of the assertion.
The learned Appellant?s counsel further cited the following judicial authorities: FIRST BANK OF NIG PLC V T.S.A IND LTD (2018) LPELR -43563(CA); SUNDAY UGWA & ANOR V OJILE KWAUWA & ANOR (2010) LPELR-4993 (CA); ASIYANBI & ORS V ADENIJI (1967) LPELR -25384 (SC) and ENTERPRISE BANK LTD V AROSO & ORS (2015) S.C 1, and submitted that the Court is
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ably empowered to correct its slips.
The Appellant further argued, that the judgment of the Court, delivered on 10/12/18, having allowed the Appellants appeal, had granted every relief sought by the Appellant in its entirety as reflected in Appellants Motion on Notice filed on 9/7/18 in the said appeal. The case of P.W LTD & ORS V GOMBE 52 WRN 144 @ 157-158 was cited in support of the proposition. The Appellant, in conclusion, submitted that it is incumbent on the concerned party to approach the Court to clarify the intendment of the Court in relation to the reliefs so granted in such judgment or ruling of the Court. The Court was urged to grant the Appellants application in the instant appeal.
It is apt to note that the Respondent only filed a Counter-Affidavit as I had earlier mentioned in this judgment, it is however important to observe that the Respondent failed to file any written address in this appeal, and at the hearing of the appeal, the Respondent counsel, S.K Atteh, Esq., tersely remarked that the Court did not direct the Respondent to file written address. I will have to be guided by the depositions of the
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Respondent in its counter-affidavit filed on 13/2/19. The Respondent, in the said counter-affidavit emphasised that the judgment never intended to remit back the case file to the lower Court for reassignment. The deposition contained in the paragraph 4 of the counter-affidavit filed on 13/2/19 which is germane to the Respondent?s case is hereunder reproduced:
4. That I was informed by the lead counsel in this case Mr. S.K Atteh in our office at 15A Awolowo Road, Ikoyi Lagos on 12th of February, 2019 at about 14:40hrs and I truly believe him as follows:
a. That this honourable Court delivered its judgment on the 10th December, 2018 granting bail to the Appellant.
b. That the judgment of this Honourable Court did not contain an Order that the trial Court should transfer the case to the Chief Judge of Lagos State for reassignment to another Court (judge).
c. That the Respondent (was) dissatisfied with the judgment of the Honourable appealed to the Supreme Court of Nigeria in its notice of appeal filed on the 4th day of January, 2019.
d. That the record of appeal has been compiled and transmitted to the Supreme Court of Nigeria,
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Abuja.
e. That the record of appeal was entered at the Supreme Court, Abuja on the 22nd of January, 2019 and the Appeal No is SC/51C/2019.
f. By virtue of the rules of the Supreme Court of Nigeria and that of this Honourable Court, once an appeal is entered, any application in respect of the subject matter of the appeal should be directed to the Supreme Court and not the Court of Appeal.
5. That based on the fact deposed to in the above the Honourable Court has no power to hear this application.
The crux of the instant appeal is the need for the clarification of the judgment of the Court delivered on 10/12/18 wherein the Appellant?s appeal for a pre-trial bail was allowed. The Appellant was standing trial for sundry charges in the lower Court from which he sought for pre-trial bail on health ground. The lower Court declined the Appellant?s application, but was subsequently granted by the Court of appeal as referred to earlier. The instant application is to determine the extent of the orders contained therein in the judgment. There was contention between the parties as to the propriety or otherwise of the instant appeal owing to
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the fact that there has been an appeal entered against the judgment of the Court delivered on 10/12/18. The Respondent maintained that there was an appeal already entered against the judgment, and actually quoted some facts relating to initiation and actual existence of the said appeal. But my Lords, I am of the opinion that the prayer before the Court is immuned from being caught in the web of the provision of Order 8 Rule 11 of the Supreme Court of Nigeria. The Appellant?s Motion on Notice filed on 5/2/19 was brought pursuant to Order 20 Rule 4 of the Court of Appeal Rules, 2016. The rule provides as follows:
Order 20 Rule 4:
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. …
The foregoing is the fountain from which the Court is empowered to look into its judgment or orders in order to readjust same so as to be in tandem with the intention of the Court as expressed in the said decision of the Court. I am in agreement that the
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Appellants Motion on Notice filed on 5/2/19 does not fall within the provision of Order 8 Rule 11 of the Supreme Court Rules. The Court is sufficiently seised with the wherewithal to review its decisions peradventure, clerical mistakes or any accidental slip or omission-induced error had occurred, as the decisions of the Court must reflect the intention of the Court on the facts as presented before the Court. Every Court has such an inherent power to correct accidental slips and omissions properly brought to its notice. My Lords, I am clear in my view that it is within the competency of a Court to correct the record in order to bring it into harmony with the order which the Court intended to pronounce. This correction is aimed at laying plain the manifest intention of the Court. See: UMMUNA V OKWURIWE (1978) 11 NSFF 319 @ 324; OSIGWE V PSPLS MGT CONSORTIUM LTD & ORS (2009) 3 NWLR (Pt 1128) 378. This is such a power in which Court is enabled to correct its inadvertence as reflected in the foregoing. The power has been described by the Supreme Court in ASIYANBI & ORS V ADENIJI (1967) ALL NLR 88, per Coker, JSC, in the following words:
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The power of amendment or correction of its record inherent in the jurisdiction of the Court is manifestly wide and subject to the limitation that it must be exercised when the purposes of justice requires it.
In the light of the foregoing, and perforce of the doctrine of judicial precedent, I am much obliged to hold, in deference to the deposition of the Respondent in the paragraph 5 of the Counter-Affidavit filed on 13/2/19, that the instant application is competent and the Court is seised with powers to hear and determine the application.
Having held as above, and in reference to the Appellants issue two (2), I am obligated to look into the wordings of the judgment of this Court delivered on 10/12/18 by my learned brother, Yakubu, JCA, perhaps there may be any slip or omission which deserves the invocation of the inherent powers of this Court to correct such. It will be apt to view the said judgment Vis-a-vis the prayer(s) of the Appellant before the Court in the appeal. The well considered judgment held at page 32 of the judgment, as follows:
For all I have been saying, it is manifestly clear that the issues discussed
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in this appeal, be and they are resolved favour of the appellant. Therefore, the appeal succeeds. It is allowed. The ruling rendered by M.A. Dada J., of the Ikeja Judicial Division of the Lagos State High Court, in re-Charge NO: ID/16C/2005, on 5th July, 2018, is hereby set aside.
CONSEQUENTLY, IT IS ORDERED THAT:
The appellant is granted bail, pending his trial, on the same terms decreed by this Court 4th November, 2014, that is:
(1) The Appellant – Fred Ajudua, is granted bail in the sum of N10, 000,000:00 (Ten Million Naira) and two sureties in like sum, who shall be respectable and responsible members of society.
(2) The sureties shall each swear to an affidavit of means, that they each have property worth N50, 000,000.00 in the Lagos metropolis.
(3) The sureties must each produce two recent passport photographs of themselves.
(4) The Appellant shall undertake to remain resident in Nigeria, for as long as his trial shall be.
(5) He is to retain his international passport, with the variation that if there is an urgent need for him to travel out of the country for medical treatment, there must be a certification to
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that effect, by a Consultant Nephrologist at the Lagos University Teaching Hospital, (LUTH), Lagos, indicating that the appellant?s ailments, cannot be treated in the said hospital. And such a certification shall be communicated to the Court below before the appellant can leave the shores of Nigeria for further medical treatment.
The Appellant in the instant appeal, seeks the indulgence of the court to clarify the tenor of the judgment, whether same has granted the reliefs as prayed vide the Appellant?s Notice of Appeal filed on 9/7/18. Also, the relief sought by the Appellant, as contained in the said Notice of Appeal are hereunder reproduced:-
1. AN ORDER of the Honourable Court of Appeal Allowing the Appellant?s Appeal herein
2. AN ORDER Setting Aside the considered Ruling of the Trial Court delivered on Thursday 5th July 2018 by Honourable Justice M. A Dada (Mrs.) with respect to the Appellant?s application for Pre-trial bail in ID/16C/2005: – Federal Republic of Nigeria vs. Ajudua.
3. AN ORDER Granting the Appellant the Relief contained in his Motion on Notice dated 1st June 2018, by admitting him to
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Pre-trial Bail.
4. AN ORDER remitting the substantive Suit to another Judge of the Lagos Stare High Court for trial DE-NOVO.
See page 465 of the Record of Appeal.
I am clear in my understanding that the issue in the instant appeal is one involving the canon of interpretation of a document. The rule of interpretation of a document like the judgment sought to be clarified in this appeal has been well settled beyond doubt. In the circumstance, the law is trite that whilst considering the construction of a document, the primary rule is that, effect should be given to the factual contents in their plain or ordinary meanings in the same con as they appear on the documents. Where the words of a document are clear and unambiguous, they must be so construed. See THE NORTHERN ASSURANCE CO LTD V WURAOLA (1969) 1 ANLR pg 14; SOLICITOR GENERAL OF WESTERN NIGERIA V ADEBONOJO (1971) 1 ALL NLR 1978; UNION BANK OF NIGERIA V OZIGI (1994) 3 NWLR (Pt 333) p 385.
The judgment delivered by this Court on 10/12/18, in my view, is plain and unambiguous one which does not require the interpretation which the Appellant is seeking because, the appeal decided
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was in relation to the issue of bail which clearly indicates that the substantive charge is yet to be determined.
The judgment is required to be read together with and along the reliefs sought by the Appellant in the Notice of Appeal files. This is the admonition of the Supreme Court in the instance, the apex Court in MBANI V BOSI & ORS (2006) 11 NWLR (Pt 991) p 400, per ONNOGHEN, CJN (Rtd.), restated the law that: …in interpreting a document or judgment, the document or judgment must be read as a whole and interpreted in that light with effort being made to achieve harmony among the parts.
The instant judgment, when read in conjunction with the reliefs sought by the Appellant as presented before the court in the Notice of Appeal, reflects a direct incorporation of the reliefs sought therein. In the word of my learned brother, Yakubu, JCA, it was stated as follows:
For all I have been saying, it is manifestly clear that the issues discussed in this appeal, be and they are resolved in favour of the appellant. Therefore, the appeal succeeds. It is allowed. The ruling rendered by M.A. Dada J., of the Ikeja Judicial Division of the
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Lagos State High Court, in re – Charge NO: ID/16C/2005, on 5th July, 2018, is hereby set aside.
According to the Court, the appeal of the Appellant succeeds and was allowed. In my humble opinion, this was without any shred of ambiguity. Every issue raised therein was resolved in favour of the Appellant.
I reflected over the Respondent argument that the relief did not include the other legs of the Appellant?s prayers,to wit: An order remitting the substantive suit (sic) to another judge of the Lagos State High Court for trial de-novo?, and the thought that agitated my mind was that whether the intention of the Court in the said judgment was in the least, manifestly expressed. I am clear in my view, that the judgment of the Court was based on the reliefs in the appeal which the Court allowed in its entirety, and the judgment went ahead consequently to state the terms upon which the pre-trial bail, which was a leg of the prayers in the appeal, was granted. The intention of the Court was manifestly expressed in that the Appellants appeal was allowed, and as I have earlier in the judgment referred to, it is of significance that
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issues in the said appeal were all resolved in favour of the Appellant. I have no doubt in my mind that the Court intended to and did grant the reliefs sought by the Appellant in the appeal. And, in the light of this fact, I have no hesitation to hold that the judgment of the Court delivered on 10/12/18 delivered by my learned brother, Yakubu, JCA, wherein the Appellant?s appeal was allowed, invariably had granted all reliefs sought by the Appellant, to wit:
1. AN ORDER of the Honourable Court of Appeal Allowing the Appellant?s Appeal herein
2. AN ORDER Setting Aside the considered Ruling of the Trial Court delivered on Thursday 5th July 2018 by Honourable Justice M. A Dada (Mrs.) with respect to the Appellant?s application for Pre-trial bail in ID/16C/2005: – Federal Republic of Nigeria vs. Ajudua.
3. AN ORDER Granting the Appellant the Relief contained in his Motion on Notice dated 1st June 2018, by admitting him to Pre-trial Bail. And;
4. AN ORDER remitting the substantive Suit to another Judge of the Lagos State High Court for trial DE-NOVO.
I hold that the case file in this matter be remitted back to the
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High Court of Lagos State, and same shall be reassigned to another judge of the Court who shall commence the trial de-novo and only subject to any order the Supreme Court may make or had made with regard to the Respondent?s appeal filed to challenge the judgment of this Court delivered on 10/12/18 in the unlikely event, that the proceedings in the lower Court are stayed pending the said appeal having regard to fundamental objective clearly expressed in the letters and spirit of the Administration of Criminal Justice Act, 2015 which encouraged accelerated hearing of criminal matters.
I make no order as to cost.
Parties are to bear their respective costs.
MOHAMMED LAWAL GARBA, J.C.A.: I agree
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I entirely agree with, and do not desire to add to, the decision of my learned brother, Gabriel Omoniyi Kolawole, JCA, which I was privileged to read in draft.
?I adopt the entire decision as mine, with nothing more to add.
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Appearances:
Olalekan Ojo, SAN with him, Akinwale Kola-TaiwoFor Appellant(s)
S.K. Atteh with him, Joy J. AmahianFor Respondent(s)
Appearances
Olalekan Ojo, SAN with him, Akinwale Kola-TaiwoFor Appellant
AND
S.K. Atteh with him, Joy J. AmahianFor Respondent
