HOLBORN NIGERIA LIMITED v. O. C. CHRIS ENTERPRISES LIMITED (2014)

HOLBORN NIGERIA LIMITED v. O. C. CHRIS ENTERPRISES LIMITED

(2014)LCN/6798(CA)

In The Court of Appeal of Nigeria

On Monday, the 27th day of January, 2014

CA/K/77/2009

RATIO

WHETHER A COURT, AFTER DELIVERING ITS FINAL JUDGMENT, HAS THE POWER TO REOPEN THE CASE FOR MAKING CORRECTIONS

It is an established principle of law that once a Court or tribunal delivered its final judgment in a case before it, it becomes funtus officio with respect to that case. It has no power to reopen the case for the purpose of making corrections or changing any opinion expressed in its earlier judgment in the case. The only exception to the rule is where there is need to make minor permissible correction under the slip rule. As was stated by Akintan, J.S.C. in Nigeria Army vs. Major Jacob Lyela (2005) 7-12 SC page 35 or (2005) 18 NWLR (Part 1118) page 115, what can be altered under the slip rule is not as to the substance of the judgment earlier delivered that limited in minor errors such as spelling errors, typographical or mathematical errors wherein correct figures can be entered. Every judgment takes effect on pronouncement. Per THERESA NGOLIKA ORJI-ABADUA, J.C.A.

WHEN A JUDGMENT IS IN NEED OF CLARIFICATION OR CORRECTION, CAN THE COURT WHICH DELIVERED THE JUDGMENT EFFECT SAME?

It is now well settled beyond any doubt that where a judgment is in need of clarification or correction in respect of clerical slips, errors or omission, there is power under the law for the same Court that delivered the Judgment to correct the clerical slips, errors or accidental omission. See the cases of Federal Public Trustee vs. Mrs C. A. Sobanawo (1976) NMLR P.350; Asiyanbi & ors vs. Adeniyi (1967) 1 All NLR 82; Ununna & 5 ors vs. Okwuraiwe & 3 Ors (1978) 6 – 7 SC 1; Stirling Civil Eng. (Nig) Ltd vs. Yahaya (2005) 11 NWLR (Pt.955) 181 SC at page 201 – 202; Race Auto Supply Co. Ltd vs. Akibu (2006) 6 SC 1 at page 10 line 25 page 11 line 30 See also Section 5(6) (a) and Sections 251 & 252 (1) of the 1999 Constitution and Order 27 R 7 of the Federal High Court (Civil Procedure) Rules 2000. Per THERESA NGOLIKA ORJI-ABADUA, J.C.A.

JUSTICES

DALHATU ADAMU Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

HOLBORN NIGERIA LIMITED
(Sued on its own behalf, and as representing its sales persons, distributors and all persons firms or companies engaged in the trade of selling or offering for sale or distributing for sale “ile Products Kafal Rubber Design” adopting or using the same design similar or nearly resembling the Plaintiff’s Registered iles Products Kafal Rubber Design) Appellant(s)

AND

O. C. CHRIS ENTERPRISES LIMITED Respondent(s)

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): This appeal sprouted from the Ruling delivered by the lower Court on the 4th October, 2014 correcting or amending its final judgment delivered on the 13th October 2006 in some details without any prompting by the parties.

By the Amended Statement of Claim of the Respondent filed on 20/10/06, the Respondent claimed against the Appellant the following reliefs:

“a) A declaration that the Certificate of Registration of Design with Registration Number, 5528 dated the 15th September, 2003 issued by the Registrar of Patents and designs in the name of the Plaintiff, O. C. CHRIS ENTERPRISES NIGERIA LIMITED, is valid and subsisting and confers on the Plaintiff the Exclusive right to the use of the registered KAFAL RUBBER DESIGN for the Plaintiffs ile products in Nigeria.

b) A declaration that the acts of the Defendant whether by itself, its subsidiary Companies, Directors, Officers, Agents, Servants and Privies or/and persons or firms howsoever described known and unknown, in manufacturing or producing the ile products carrying the “KAFAL RUBBER DESIGN” similar and resembling the Plaintiffs registered KAFAL RUBBER DESIGN, and offering for sale, distributing for sale or supplying the said ile Products which are capable of deceiving the Plaintiffs customers and the buying public into believing they were the Plaintiffs ile Products Kafal Design is an infringement of the Plaintiffs proprietary right in the exclusive use of the registered and protected Kafal Rubber Design in ile products in Nigeria under the PATENTS AND DESIGNS ACT OF THE FEDERATION OF NIGERIA.

c) An order of perpetual injunction restraining the Defendant whether by itself, its subsidiary Companies, Directors, Officers, Agents, Servants, Privies and Employees or/and firms or persons howsoever described known and unknown from infringing the Plaintiff’s Proprietary right to the use of the ‘KAFAL RUBBER DESIGN’ registered and protected by the Certificate of Registration Number, 5528 under the PATERNS AND DESIGNS ACT OF THE FEDERATION OF NIGERIA, by the Manufacture or production of ile products carrying the Kafal Rubber Designs similar and resembling the Plaintiffs ile products Kafal Rubber Design, or by offering for sale or distribution for sale the ile products carrying the Kafal Rubber Design which are not of the Plaintiff but capable of deceiving the Plaintiffs customers and the buying public into believing that the said ile products carrying the Kafal Rubber Design are those of the Plaintiff.

d) An order directing the Defendant whether by itself, its subsidiary companies, Directors, Officers, Agents, Servants, privies and employees or/and firms or persons howsoever described known and unknown to VERIFY UPON OATH that they no longer have in their possession, custody or control the ile products carrying the KAFAL RUBBER DESIGN SIMILAR AND RESEMBLING THE PLAINTIFF’S registered KAFAL RUBBER DESIGN or manufacture or produce same or any ile products carrying Design nearly or resembling same.

or alternatively the Plaintiff claims against the Defendant the sum of Ten Million Naira (N10,000,000.00) as general damages for the defendant’s infringement of the Plaintiff’s proprietary right to the use of the registered KAFAL RUBBER DESIGN covered by the Certificate of Registration Number 5528, by producing for sale and distribution, the ile products carrying the KAFAL RUBBER DESIGN.

f) The cost of this action.”

After determination of the issues raised by the parties in the action, the learned trial Judge, on the 13th October, 2006 held thus:

“From the foregoing paragraphs of this judgment the Plaintiffs claims succeed in their entirety and I so hold.”

Accordingly, the Plaintiffs claim against the Defendant contained in paragraph 15 of its Amended Statement of Claim are hereby granted as follows:

a) A declaration that the Certificate of Registration of Design with Registration Number, 5528 dated 15th September, 2003 issued by the Registrar of Patents and Design in the name of Plaintiff, O. C. CHRIS ENTERPRISES NIGERIA LIMITED, is valid and subsisting and confers on the Plaintiff the Exclusive right to the use of the registered KAFAL RUBBER DESIGN for the Plaintiffs ile products in Nigeria.

b) A declaration that the act of the Defendant whether by itself, its subsidiary Companies, Directors, Officers, Agents, Servants and privies, or/and persons or firms howsoever described known and unknown, in manufacturing or producing the ile products carrying the “KAFAL RUBBER DESIGN” similar and resembling the Plaintiffs registered KAFAL RUBBER DESIGN, an offering for sale, distributing for sale or supplying the said iles products which are capable of deceiving the Plaintiffs customers and the buying public into believing they were the Plaintiffs ile products Kafal design is an infringement of the Plaintiffs proprietary right in the exclusive use of the registered and protected KAFAL RUBBER DESIGN in ile products in Nigeria under the PATENTS AND DESIGN ACT OF THE FEDERATION OF NIGERIA.

c) An order of perpetual injunction restraining the Defendant whether by itself, its subsidiary companies, Directors, Officers, Agents, Servants and privies and Employees or/and persons or firms howsoever described known and unknown from infringing the Plaintiffs proprietary right to the use of the “KAFAL RUBBER DESIGN” registered and protected by the Certificate of Registration number, 5528 under the PATENTS AND DESIGNS ACT OF THE FEDERATION OF NIGERIA, by the manufacture or production of ile products carrying the Kafal Rubber Design similar and resembling the Plaintiffs iles product Kafal Rubber Design, or by offering for sales or distribution for sale the ile products carrying the Kafal Rubber Design which are not of the Plaintiff but capable of deceiving the Plaintiffs customers and the buying public into believing that the said iles products carrying the Kafal Rubber Design are those of the Plaintiff.

d) An order directing the Defendant whether by itself, its subsidiary companies, Directors, Officers, Agents, Servants and privies and Employees or/and persons or firms howsoever described known and unknown to VERIFY UPON OATH that they no longer have in the possession, custody or control the ile products carrying the KAFAL RUBBER DESIGN SIMILAR AND RESEMBLING THE PLAINTIFFS Registered KAFAL RUBBER DESIGN or manufacture or produce some or any ile products carrying Design nearly or resembling same.

f) N10,000 costs of this action.

The record of this appeal further reveals that on the 4th October, 2007, the learned trial Judge further stated in a ruling delivered on the same day as follows:

“RULING
On the 13th of October 2006, this Honourable Court gave judgment in this suit in favour of the Judgment Creditor/Appellant O. C. CHRIS ENTERPRISES NIGERIA LIMITED. Since the delivery of the judgment by this Court there have been several interlocutory applications filed in the suit culminating in the Judgment Creditor/Applicant’s Solicitor, O. E. B. Offiong & Co’s application dated 11th day of July 2007 on notice to the Judgment/Debtor/Respondent’s Solicitor, E. C. Okpe. After listening to learned Counsel submissions, Ms. C. Fakoya for Judgment Creditor/Applicant and Mr. E. C. Okpe for Judgment Debtor/Respondent respectively, this Court on 19th July 2007 made certain orders with their consent namely: That the Judgment Debtor/Defendant, HOLBORN NIGERIA LIMITED, file an account of the profits by it on the Plaintiffs Kafal Rubber Design No. 5528 between the June 2004 – 13th October 2006 pursuant to this Court’s Judgment and Orders of 13th day of October 2006 within one month from today i.e. 19th day of July 2007 and adjourned the suit to 19th September 2007 for mention.
On resumption from the Court’s annual vacation; this Court, on 25th day of September 2007 was inundated with arguments and counter arguments of both Counsel as regard whether the Judgment Debtor/ Respondent had complied with this Court’s Judgment and orders of 13th day of October 2006 upon which this Court reserved today for further directions.
“In the interim this Court perused the contents of the judgment and orders delivered on the said date in open court and discovered certain clerical errors and omissions which need clarification presently.
It is now well settled beyond any doubt that where a judgment is in need of clarification or correction in respect of clerical slips, errors or omission, there is power under the law for the same Court that delivered the Judgment to correct the clerical slips, errors or accidental omission. See the cases of Federal Public Trustee vs. Mrs C. A. Sobanawo (1976) NMLR P.350; Asiyanbi & ors vs. Adeniyi (1967) 1 All NLR 82; Ununna & 5 ors vs. Okwuraiwe & 3 Ors (1978) 6 – 7 SC 1; Stirling Civil Eng. (Nig) Ltd vs. Yahaya (2005) 11 NWLR (Pt.955) 181 SC at page 201 – 202; Race Auto Supply Co. Ltd vs. Akibu (2006) 6 SC 1 at page 10 line 25 page 11 line 30 See also Section 5(6) (a) and Sections 251 & 252 (1) of the 1999 Constitution and Order 27 R 7 of the Federal High Court (Civil Procedure) Rules 2000. I have painstakingly perused the said typed judgment delivered on 13th October 2001 and Orders and my original draft upon which it was prepared and discovered the following clerical errors and omissions in the judgment. Page 2 of the judgment last paragraph to page 4 of the judgment reads as follows: “The Plaintiff claims against the Defendant are succinctly formulated in its amended statement of claim dated 26th day of April 2004. It reads as follows in paragraph 15 of the Amended Statement of Claim.” First and the foremost the Plaintiffs amended statement of claim was dated 26th day of April 2005 and amended the 5th of May 2005 pursuant to the Court of 5th May 2005 and not 26th day of April 2004 as erroneously stated in the typed judgment.
Furthermore paragraph 15 of Amended Statement of Claim reads as follows:

WHEREOF the Plaintiff claims against the Defendant as follows:

a) A declaration that the Certificate of Registration of Design with Registration Number, 5528 dated 15th September, 2003 issued by the Registrar of Patents and Design in the name of Plaintiff O. C. CHRIS ENTERPRISES NIGERIA LIMITED is valid and subsisting and confers on the Plaintiff the Exclusive right to the use of the registered KAFAL RUBBER DESIGN for the Plaintiff ile products in Nigeria.

b) A declaration that the act of the Defendant whether by itself, its subsidiary companies, Directors, Officers, Agents, Servants and privies or/and persons or firms howsoever described known and unknown in manufacturing or producing the ile products carrying the “KAFAL RUBBER DESIGN similar and resembling the Plaintiffs registered KAFAL RUBBER DESIGN and offering for sale, distributing for sale or supplying the said ile products which are capable of deceiving the Plaintiff s customers and the buying public into believing they were the Plaintiffs iles products Kafal Design is an infringement of the Plaintiffs proprietary right in the exclusive use of the registered and protected KAFAL RUBBER DESIGN in ile products in Nigeria under PATENTS AND DESIGNS ACT OF THE FEDERATION OF NIGERIA.

c) An order of perpetual injunction restraining the Defendant whether by itself, its subsidiary companies, Directors, Officers, Agents, Servants and privies and Employees or/and persons or firms howsoever described known and unknown from infringing the Plaintiffs proprietary right to the use of the KAFAL RUBBER DESIGN” registered and protected by the Certificate of Registration number, 5528 under the PATENTS AND DESIGNS ACT OF THE FEDERATION OF NIGERIA, by the manufacture or production of ile products carrying the Kafal Rubber Design similar and resembling the Plaintiffs iles product Kafal Rubber Design, or by offering for sales or distribution for sale the ile products carrying the Kafal Rubber Design which are not of the Plaintiff but capable of deceiving the Plaintiffs customers and the buying public into believing that the said iles products carrying the Kafal Rubber Design are those of the Plaintiff.

d) An order directing the Defendant whether by itself, its subsidiary companies, Directors, Officers, Agents, Servants and privies and Employees or/and persons or firms howsoever described known and unknown to VERIFY UPON OATH that they no longer have in the possession, custody or control the ile products carrying the KAFAL RUBBER DESIGN SIMILAR AND RESEMBLING THE Plaintiffs Registered KAFAL RUBBER DESIGN or manufacture or produce some or any ile products carrying Design nearly or resembling same.

e) An inquiry as to damages or at the Plaintiffs option, an account of the profits made by the Defendant whether by itself and all other persons and firms howsoever described which the Plaintiff know and those it can not identify by reason of the infringement of Plaintiffs copy right or proprietary right in the use of the KAFAL RUBBER DESIGN by the Defendant and all such persons and firms. Or alternatively the Plaintiffs claims against the Defendant and all the sum of Ten Million Naira (N10,000,000.) as general damages for the Defendant’s infringement of the Plaintiff’s proprietary right to the use of the registered number 5528 by producing for sale and distribution. The ile products carrying the KAFAL RUBBER DESIGN.

f) The cost of this action.”

Paragraph 15 of the original statement of claim was erroneously reproduced in full on the said pages 2-4 of the judgment.

Similarly the clerical errors and omissions were repeated on pages 12 – 14 titled 4 Disposition – In the typed said judgment vis-a-vis my original draft which should read as follows: Accordingly the Plaintiff claims against the Defendant contained in paragraph 15 of its amended statement of claim are hereby granted as follows:

a) A declaration that the Certificate of Registration of Design with Registration Number, 5528 dated 15th September, 2003 issued by the Registrar of Patent and Design in the name of Plaintiff O. C. CHRIS ENTERPRISES NIGERIA LIMITED is valid and subsisting and confers on the Plaintiff the exclusive right to the use of the registered KAFAL RUBBER DESIGN for the Plaintiffs ile products in Nigeria.

b) A declaration that the act of the Defendant whether by itself, its subsidiary Companies, Directors, Officers, Agents, Servants and privies, or/and persons or firms howsoever described known and unknown, in manufacturing or producing the ile products carrying the “KAFAL RUBBER DESIGN” similar and resembling the Plaintiff’s registered KAFAL RUBBER DESIGN, an offering for sale, distributing for sale or supplying the said iles products which are capable of deceiving the Plaintiffs customers and the buying public into believing they were the Plaintiffs ile products Kafal design is an infringement of the Plaintiff’s proprietary right in the exclusive use of the registered and protected KAFAL RUBBER DESIGN in ile products in Nigeria under the PATENTS AND DESIGN ACT OF THE FEDERATION OF NIGERIA.

d) An order directing the Defendant whether by itself, its subsidiary companies, Directors, Officers, Agents, Servants and privies and Employees or/and persons or firms howsoever described known and unknown to VERIFY UPON OATH that they no longer have in the possession, custody or control the ile products carrying the KAFAL RUBBER DESIGN SIMILAR AND RESEMBLING the Plaintiffs Registered KAFAL RUBBER DESIGN or manufacture or produce some or any ile products carrying Design nearly or resembling same.

e) The Plaintiff is awarded the sum of Five Millions Naira (N5, 000,000.00k) as general damages for the Defendant’s infringement of the Plaintiff propertiary right to the use of the registered KAFAL RUBBER DESIGN covered by the certificate of Registration Number 5528 by producing for sale and distribution the ile products carrying the KAFAL RUBBER DESIGN.

f) N10,000 costs of this action.

Accordingly from the foregoing paragraphs of this Ruling the Judgment of this Court dated 13th day of October 2006, Order are hereby amended to reflect the said accidental slips, clerical errors and omissions therein pursuant to the inherent jurisdiction of this Court as provided for in the above mentioned sections of the 1999 CFRN and the FHC (Civil Procedure Rules) 2000.”

The Appellant was obviously outraged by the said Ruling delivered by the Lower Court on 4/10/2007 in which N5 Million damages was awarded against the Appellant after delivery of its judgment in the matter on the 13th October, 2006 that had rendered it functus officio in the case. It then filed the present appeal on the 19th October, 2007 which was predicated on six grounds of appeal. The parties filed their respective Briefs as prescribed by the Rules of this Court. In the Appellant’s Brief of Argument two issues were presented for determination by this Court and they read:

“a) Whether the power of the trial Judge under Order 27 Rule 7 of the Federal High
Court Rules 2000, to correct mistakes or errors arising from any accidental slip or omission, extends to substituting his awards for another and thereby making an award which he had not earlier made and whether this can be done suo-motu (distilled from grounds 2, 3, 4 and 6).

b) Whether the trial Judge can substitute the awards in his judgment with fresh awards based on a non-existent amended Statement of Claim dated 26th April, 2005 (distilled from ground 5).”

The Respondent for its part equally postulated two issues for consideration in this appeal. They are as follows:

“(1) Whether the learned trial Judge had jurisdiction or inherent power under the Slip Rule to correct errors, clerical mistakes, and slips in his judgment.

(2) Whether the Ruling of the lower Court dated 4th October, 2007 wherein the learned trial Judge corrected errors/omission in his earlier judgment to express his intention amounted to re-writing the earlier judgment delivered on October 13, 2006.”

It was contended on behalf of the Appellant that the learned trial Judge practically rewrote the judgment and made awards which he had not made earlier in its judgment, and that the said act does not fall within the realms of correction of mistakes or errors arising out of an accidental slip or omission.

Learned Counsel for the Appellant, Kayode Amodu Esq; explained that in the Ruling of 4th October, 2007, the trial Court made award of N5,000,000.00 to the Respondent as general damages pursuant to the Respondent’s amended Statement of Claim dated 26/4/2005 whereas in the said Amended Statement of Claim, the Respondent had claimed the sum of N10 million as an alternative to a declaration that the Appellant gives account of profit made, or that an inquiry be made as to damages. He then queried whether the substitution of the earlier relief wherein the learned trial Judge directed that the Appellant should give account of profits made from the infringing design, with an order of damages of N5 million is a manifestation of the trial Court’s intention? He answered that in the negative, and, then relied on the decision of this Court in Dr. Emmanuel Andy Uba vs. Dame Virgy Etiaba (2010) 10 NWLR (Part 1202) 343 at 386 Paragraph A, the provisions of Order 27 Rule 7 of the Federal High Court (Civil Procedure) Rules 2000, the cases of Sunday Ugwa vs. Hon. Oji Lekwauwa (2010) 17 NWLR (Part 1222) 211 at 239 paragraphs G – H; and Alhaji A. Ahmed & Co. Nig. Ltd vs. African International Bank Ltd (2001) 10 NWLR (Part 721) 391 at 403 paragraphs E – F and submitted that the alteration made by the trial Court cannot be regarded as the correction of an error in a judgment, that an error affects only the content of the script or judgment where the entire decision making process is affected, it cannot be regarded as an error. He further stressed that the trial Court was functus officio of the fresh judgment and awards made in its ruling on the 4th October, 2007. It was further contended that the trial Court had no powers to revisit its judgment as it did without any application from either party to that effect, by way of motion or summons. Counsel then urged that this issue be resolved in favour of the Appellant.

Regarding issue No. 2 learned Counsel submitted that there is no amended Statement of Claim dated 26/4/2005 before the lower Court, that the only amended Statement of Claim before the lower Court was the one dated 26/4/2004, therefore the awards made by the trial Court in its ruling of 14/10/07 (sic) were based on a non-existent amended Statement of Claim. He relied on the case of Bilante International Ltd vs. Nigeria Deposit Insurance Corporation (2011) All FWLR (Part 598) 804 at 825 paragraph E and persuaded that this issue be equally resolved in favour of the Appellant.

Learned Counsel for the Respondent, Gideon Uzu Esq; submitted that a Court possesses the power where the justices of the case requires, to correct or amend the terms of its own orders or judgments to effect such variations therein in such a way as to carry out the meaning which the Court intended. He referenced the cases of Daniel Asiyanbi & ors vs. Emmanuel Awe Adeniyi All NLR 1967 page 88 at 92; Adigun vs. A.G. Oyo State (1987) 2 NWLR (Part 56) page 197 at 212 paragraphs C-D; Thynee vs. Thynne 1995 ALL E.R. page 129 at 145 paragraphs F-T; Adams & Harvey Ltd vs. International Maritime Supplies Co. Ltd 1957 1 ALL E.R. page 533 at 534 paragraph H; Alao vs. A.C.B (2000) 9 NWLR Part 676 page 264 at 229 paragraphs A-D; and Oguntayo vs. Adelaja (2009) 15 NWLR Part 1163 page 150 at 186 – 187 paragraphs G-B, the provisions of Order 20 Rule 11 of the English Rules which are in pari materia with Order 27 Rule 7 of the Federal High Court Civil Procedure Rules, 2000 in support. He emphasized that once the order or judgment of a Court does not represent the manifest intention of the Court or the words used are ambiguous requiring clarification, the Court can rely on its inherent powers or powers under the Rules to correct the terms of the Judgment or order to effect its intention. He further stressed that it is not in all cases where a Court takes a point suo motu that it will result to reversal of the decision. The Appellant must show that the point taken suo motu is substantial and it had occasioned a miscarriage of justice to the Appellant. He then invited this Court to resolve this issue in favour of the Respondent.

On issue No. 2, learned Counsel reiterated his argument under issue No. 1 regarding powers of the lower Court to amend its judgment under Order 27 Rule 7 of the Federal High Court (Civil Procedure) Rules, 2000 and cited the cases of Alh. I. Y. Ent. Ltd vs. Omolaboje (2006) 3 NWLR (Part 966) page 195 at 202 paragraph F; Benedict Agwunedu vs. Christopher Onwumere (1994) 1 NWLR (Part 321) page 375 at 396 – 297 paragraphs H-D, A 403 paragraphs E-F; Adigun vs. the Sec., Iwo Local Govt. (1999) 8 NWLR (Part 613) page 30 at 37 -38 paragraphs H-A; Adigun vs. A.G. Oyo State (No.2) (1987) 2 NWLR Part 56 page 197; Sunday Ugwa vs. Hon. Oji Lekwauwa (2010) 17 NWLR (Part 1222) 211 at 239 paragraphs G – H and Osigwe vs. PSPLS Mgt. Consortium Ltd (2009) 3 NWLR Part 1128 page 378 at 412 paragraphs A-F. It was further contended that the trial Court’s grant of the claim of the Plaintiff in its entirety as per paragraph 15 of the Amended Statement of Claim is akin to the phase, “ordered as prayed”. It, means that the lower Court made a blanket award of all the claims of the Plaintiff as per its amended Statement of Claim, therefore, whether the trial Court set out the reliefs claimed or not, the blanket award of all the reliefs claimed in the Amended Statement of Claim included the alternative relief claimed in paragraph 15(e) of the Amended Statement of Claim. He countered the other points raised by the Appellant under this issue and then made reference to the cases hereinbefore mentioned and urged this Court to resolve this issue against the Appellant.

As explicitly asserted by respective Counsel for the parties, the lower Court had on the 13th October, 2006 delivered its judgment in the said suit No FHC/K/CS/49/04 instituted by the Respondent and made the awards noted at pages 5-7 of this judgment.

Nevertheless, on the 4th October 2007, about one year later, the same trial Court after it has become functus officio, delivered a ruling in the same matter based on the Motion on Notice dated 11/7/07 but moved on 19/7/07. The prayers in the said motion which were made pursuant to relief No. (e) granted in the said Judgment of the lower Court delivered on 13/10/06 sought for the following:

“1. An Order requiring the judgment Debtor/Respondent to explain the delay in submitting, delivering and vouching an account in this matter as directed by this Honourable Court in its judgment dated 13th October, 2006.

2. An Order giving such directions as the Court may deem fit with regard to the manner in which the account is to be taken or vouched.

3. An Order directing the expediting of the submission delivery and vouching of the said account to wit: that the judgment Debtor/Respondent do submit, deliver and vouch the said account within 7 days of the making of the orders by the Court.

4. And such order or further Orders as the Court may deem fit to make in the circumstances of this case.”

The summation of the prayers was depicted at page 24 of the record where learned Counsel for the Respondent, C. Fakoya Esq, stated that it prayed the Court to direct the Judgment Debtor/Respondent to account for the profits from Kafal Rubber Design No 5528 made between June, 2004 and 13th October 2006 within one month. The trial Court then granted the prayers since the Appellant’s Counsel did not oppose it. After making the order, the trial Court on its own further adjourned the suit to 19/9/2007. Court did not sit on 19/9/07 and it was further adjourned to 25/9/07. On 15/9/07, the lower Court was intimated that the Appellant had not filed any account as ordered by the Court. Consequent upon that, the trial Court adjourned the suit to 2/10/07 for further directions. On the 2/10/07, the trial Court deemed it necessary to further adjourn the suit to the 4th October, for further directions. It was on the said 4th October 2007 that a Ruling was delivered by the trial Court as shown at pages 15-20 of the record of his.

It is explicit in the said application dated 11/7/2007 made by the Respondent the lower Court was not in the least invited to make any correction or clarification of the said judgment. The lower Court acknowledged that it was in the process of its determination of the application filed by the Respondent for further direction, it perused the contents of the said judgment and orders it delivered on the said date in open Court, and, discovered it contained clerical errors and omissions, which needed clarification.

Rightly, by the provisions of Order 27 Rule 7 of the Federal High Court Civil Procedure Rules, 2000, the lower Court may correct in chambers on Motion or Summons clerical mistakes in judgments or orders or errors arising therein from any accidental slip or omission. As appropriately argued by the Appellant’s Counsel, the act of correction must be preceded by a Motion or Summons. There must be a Motion or Summons before the Federal High Court may proceed to correct such clerical mistakes or errors therefore, it is not move it can just set out to make. It must be invited by Motion or Summons.

Prior to the aforementioned decision, the apex Court in Minister of Lagos Affairs Mines and Power & anor vs. Chief Akin-Olugbade & ors (1974) ALL NLR 745 per Ohial, C.J.N., had held that where issues of fact and law are raised for determination in a Motion the remedy if any does not come within the purview of the slip rule since as was stated by Morris L.J Thynne vs. Tynne (1955) 3 ALL ER 129 at 146, “where a Court has decided an issue and the decision of the Court is truly embodied in some judgment or order that has been made effective, then the Court cannot re-open the matter and cannot substitute a different decision in place of the one which has been recorded. Those who seek to alter must in those circumstances invoke such appellate jurisdiction as may apply. He emphasized that the rule envisages the correction or amendment of (a) clerical mistakes and (b) errors arising from accidental slip or omissions. His Lordship referred to Halsbury L.C in Preston Banking Co. vs. Williams Usup & Sons (1985) 1 CH.D at page 143, where the Court of Appeal in England established that the Court while able to correct a misnomer or misrescription under the “Slip Rule” will not under that Rule whether in the exercise of its inherent jurisdiction or by the powers conferred by the Rule of Court vary a judgment or order which correctly represents what the Court decided nor will it vary the operative and substantive part of its judgment so as to substitute a different form.
As clearly observed by the apex Court, the Rule envisages only an application for the invocation of the slip rule and it does not enable an application to be brought for the review of any fact or law in a previsions judgment of the Court. To allow that would amount to treating the application as an appeal.

It is pertinent to note that in the present appeal there was no application by any of the parties under the Slip Rule. None of the parties applied to the lower Court under the Rules of Court either by way of Motion or Summons for correction or clarification. The Court on its own volition on 4/10/2007 veered off and embarked on substitution of certain terms of the judgment it delivered on 13/10/2006. The established principle is where a Court has decided an issue and the decision is truly embodied in some judgment or order that has been made effective, then the Court cannot re-open the matter and cannot substitute different decision in place of the one which has been recorded. Those who seek to alter must in those circumstances invoke such appellant jurisdiction as may apply.

This Court is satisfied that the present appeal is meritorious. In the first place, there was no application made by any of the parties before the lower Court under the ‘Slip Rule’. The lower Court could not have under any guise embarked on substitution or correction of previous judgment suo motu. Order 27 Rule 7 says it must be on Motion or Summons.

The Supreme Court in another case of Ede vs. Mba (2011) LPELR-8234(SC) held that a judgment or order shall not be varied when it correctly represents what the Court decided nor shall the operative and substantive part of it be varied and a different one substituted. It is clear in the record that it was the lower Court in its own volition that proceeded to embark on the process it termed “correction of judgment,” i.e., “correction of mistakes.” All that the Respondent sought for in its Motion on Notice dated 11/7 /2007 was for the Court to direct the Appellant to file an account of profits made by it. The final judgment delivered by the lower Court on 13/10/2006 did not contain any award as to any damages allegedly suffered by the Respondent. Besides, the N10 million general damages sought by the Respondent in its Amended Statement of Claim was in the Alternative.

When a relief sought is in the alternative, it follows that the alternative relief will only be granted when it is practically impossible to award any of items sought in the main relief. The word “alternative” means a choice limited to one of two or more possibilities, the selection of which precludes any other possibility. Oxford Advanced Learner’s Dictionary, 8th Edition defines the word “alternative” as “a thing that you can choose to do or have out of two or more possibilities. It follows that it is either the Plaintiff succeeds in its main claim or the alternative relief. The Supreme Court in G.K.F. Investment Nigeria Ltd vs. Nitel Plc (2009) 15 NWLR (Part 1184) page 344, decided, per Ogbuagu, J.S.C., that an alternative award is an award that can be made instead of another. It is a separate claim and separate award. It is not an additional award otherwise, it would amount to double compensation. Where a claim is in the alternative, the Court should first consider whether the principal or main claim, ought to have succeeded. It is only after the Court may have found that it could not for any reason, grant the principal or main claim that it would now consider the alternative claim. In other words, where there are alternative reliefs once one of the reliefs is granted the other relief cannot be granted as there would be no need to do so. The position is that if and where the main claim fails, the alternative claim will be considered and the plaintiff can succeed thereon. Where a party has proved his principal claim there would be no justification for a Court to embark on the consideration of his alternative claim. Alternative claims are only granted where the trial Court found that the Plaintiff did not succeed in the main claim or where the grant of the substantive claim not feasible or it is unjust, or inequitable.

In the instant appeal, the trial Court had on the 13th October 2006 considered the Respondent’s reliefs and granted all the items under its substantive claims. By the established principle of law, since the trial Court had granted all the reliefs under the substantive claim, it ought not to have considered the alternative relief. It in fact, did not consider nor award the said alternative relief in the judgment delivered on 13/10/2006. On the said 13/10/2005 the trial Court became functus officio of the case, having declared its final decision or judgment in the matter.

Inexplicably the lower Court on 4/10/2007, about a year later, and suo motu, without any Motion or Summons by any of the parties’ tampered with the said judgment delivered on 13/10/06 by awarding in addition, the alternative relief in the form of general damages sought by the Respondent. The trial Federal High Court substituted its earlier decision under paragraph (e) of the awards made on 13/10/2006 with a new paragraph (e) awarded on 4/10/2007. It awarded the claim of general damages in addition to the main reliefs originally granted by it. It is the law that when a party makes a claim in the alternative the belief is that he wants either of the relief sought, in which case, when he is granted any of the reliefs, it suffices for the purpose of satisfying his claim. Both the main claim and the alternative claim cannot at the same time be granted. It cannot be granted along with or in addition to the grant of the main or principal claims made by the same plaintiff against the same defendants. See, also, Half – Nig. Ltd vs. Silver Aucher Nig. Ltd (2006) ALL NWLR Part 311 page 1833. The seeming calculated blunder committed by the lower Court was not only that it awarded the said alternative relief along side or in addition to the main claims, but, that it waited for about a year to lapse to re-opened the case it had become functus officio of, and, substituted an award it made on 13/10/05. The law is that the trial Federal High Court cannot give a decision or make an order on a matter twice. In other words, once a judge gives a decision or makes an order on a matter, he no longer has the competence or jurisdiction to give another decision or order on the same matter – see Emeka Onyemobi vs. The Hon. President of Onitsha Customary Court and ors. (1995) 3 NWLR (Part 381) page 50. I do not, therefore, subscribe to the Respondent’s Counsel’s argument that a blanket award of all the claims of the Respondent inclusive of the alternative relief as per paragraph 15 of its Amended Statement of Claim was made by the Lower Court. There is nothing in law like a blanket award. The term is unknown to law. There must be specific award of the reliefs sought so as to define the perimeter in which execution could be levied should the defendant fail to observe or comply with the terms of the judgment. In the instant case, the trial Court made specific awards in favour of the Respondent under its substantive claims on 13/10/2005 and there was no need for it to have considered the alternative claim in a separate award in 2007. I am afraid, this Court finds it judicious to consider the two issues raised in the Appellant’s Brief of Argument in favour of the Appellant, and, allow this appeal.

Accordingly, this appeal is hereby allowed by me, and, the decision of the lower Court delivered on 4/10/2007 about one year after it had delivered a judgment in Suit No: FHC/K/CS/49/04 without any Motion or Summons filed by any of the parties is hereby declared null and void. Consequently the same is hereby set aside by me with no order as to costs.

DALHATU ADAMU, J.C.A.: I agree.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I agree.

Appearances

Kayode Amodu Esq; and J. B. Majiyagbe Esq;For Appellant

AND

Gideon Uzu Esq; and C. Fakoya Esq;For Respondent