3PLR – KASIOBI NWANKUDU V. ENOCK IFEZUO IBETO

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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KASIOBI NWANKUDU

V.

ENOCK IFEZUO IBETO

IN THE COURT OF APPEAL OF NIGERIA

ON TUESDAY, THE 29TH DAY OF JUNE, 2010

CA/PH/81A/2005

3PLR/2010/39(CA)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS

ABUBAKAR JEGA ABDUL-KADIR, JCA

HELEN MORONKEJI OGUNWUMIJU, JCA

MOJEED ADEKUNLE OWOADE, JCA

 

BETWEEN

KASIOBI NWANKUDU – Appellant(s)

 

AND

ENOCK IFEZUO IBETO – Respondent(s)

 

REPRESENTATION

Nnamdi Ahunanya for the Appellant in 81A and Respondent in 81B. – For Appellant

 

AND

Chief Donald Udogu SAN with him P. O. Duru Esq., A. I. Ezeugo (Miss) for the Respondent in 81A. – For Respondent

 

 

ORIGINATING STATE

Abia State: High Court (C. B. U. Wogu J- Presiding)

 

CONNECTED AREAS OF PRACTICE

1. Corporate/Commercial Law
2. Litigation

 

MAIN ISSUES

1. PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – whether an application to arrest judgment is known to our adjectival law and jurisprudence- minimum standards of a judgment- power of court on correction of orders –whether an error or slip in the judgment of a court can be corrected by that court
2. PRACTICE AND PROCEDURE – COURT – duty to consider all applications before it- duty to consider the evidence of all sides in a case concerning every material issue- duty to express in writing whether it agreed with the objection or it did not- duty to hear a motion or process before it
3. PRACTICE AND PROCEDURE – NOTICE OF HEARING- what is the best notification to parties to an action

 

MAIN JUDGMENT

HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Leading Judgment):

This is an appeal against the judgment of His Lordship Justice C. B. U. Wogu J. of the High Court of Abia State delivered on the 14th of April, 2003 granting the 1st set of reliefs contained in the statement of claim. Another appeal had been lodged given the No. CA/PH/81B/2005. The latter is an interlocutory appeal against the order for stay of execution pending the outcome of the substantive appeal. CA/PH/81B/2005 has been adjourned sine die since the substantive appeal has been taken.

 

The facts that led to this appeal are as follows:

 

The Plaintiff at the lower court now Respondents herein had sued the Defendant now Appellant by their amended statement of claim dated 23/6/2000 for the following reliefs:

 

(a)     Specific Performance of the said contract of Agreement.

 

(b)     N=100,000.00 (One hundred thousand Naira) being loss and general damages.

 

(c)     An Order of injunction restraining the defendants, their agents, servants, successor-in-title and assigns from further dealing with the land, the subject matter of this action, by way of alienation or sale, pledge or mortgage until the final determination of this action.

 

IN THE ALTERNATIVE

 

(I)      Repayment of the said part payment of N=1,200,000.00 (One Million, Two Hundred thousand Naira).

 

(II)    N=1,000,000.00 (One Million Naira) being general damages for loss and breach of contract.

 

(III)   An Order injunction restraining the Defendants, their agents, servants, successor-in-title and assigns from further dealing with the land, the subject matter of this action, by way of alienation or sale, pledge or mortgage until the final determination of this action.

 

Upon service of the Writ of Summons on the Defendants, the 1st and 3rd Defendants entered appearance and duly filed their joint statement of defence. See pages 49-55 Record. The 2nd Defendant never entered appearance and never filed any defence though duly served. Subsequently the 1st Defendant died.

 

The 1st and 3rd Defendants filed a joint defence and counter-claim. See pages 49-55 of the record.

 

Issues were joined and the case proceeded to trial. Both learned counsel in their briefs gave very divergent facts of what transpired during the course of the trial leading to judgment.

 

The Appellants in 81A filed an Appellants’ brief dated 24/7/06 and filed on 1/9/06. The brief was deemed filed on 27/9/06. The Respondent’s brief was dated 16/12/08 and filed on 20/1/09.

 

Since the grounds of appeal from which issues for determination were distilled largely depend on the facts which transpired during the course of trial, I am obliged to wade through the daily proceeding contained in the record myself to see exactly what happened during the course of the trial. The following are what I can elicit from the records:

 

Hearing in the suit commenced with the Respondent as Plaintiff testifying as the PW1. He later called two other witnesses who testified as PW2 & PW3 and all witnesses were duly cross-examined by the 1st Defendant’s (now Appellant’s) counsel.

The Plaintiff opened his case on 13/3/2000. His counsel tendered a photocopy of a document dated 25/5/96 claimed to be the written authority given by 1st Defendant (father) to 2nd Defendant (son) to sell the land in dispute.
The 2nd Defendant had kept the original and did not produce it even after the Plaintiff had given him notice to produce same. The Defendants’ counsel objected to the admissibility of the document and the learned trial judge ruled that “ruling shall be in cause of judgment”.

 

PW1 continued his evidence on 16/10/2000, on that day the Plaintiff swore that he prepared and gave to the 2nd Defendant 3 copies out of the 4 copies of the memorandum of sale to be executed by the father of the 2nd Defendant. The 2nd Defendant never returned the copies of the memorandum of sale. Counsel wanted to tender the 4th copy. At this stage, counsel for the Defendant objected and said even though they were given notice to produce the 3 copies of the memorandum of sale, they ignored it because their averment in their statement of defence is that they never collected any copy and could not produce what they did not have. Defence counsel said that since he could not say where the Plaintiff got the document he was tendering, the document should be rejected. Plaintiff’s counsel replied that at this stage the court is concerned with admissibility and not proof. Notably the learned trial judge adjourned the case for ruling and continuation till 13/11/2000. See page 93 of the record.

 

On 20/11/2000, the learned trial judge held that the 4th copy of memorandum in the possession of the Plaintiff was admissible being relevant to the proceedings and admitted same as Exh. E.

 

On 29/1/01 the Plaintiff concluded his evidence in the absence of the Defendants whose counsel was present.

 

On 19/3/01 the Plaintiff was cross-examined.  On 25/4/01 PW.2 gave evidence and continued on 7/5/01 he later concluded on 30/5/01. PW2 and PW3 gave evidence on 30/5/01 and PW3 was cross-examined on 10/12/01. Thereafter the 1st Defendant died and on 20/5/02, order was given for the 3rd Defendant to replace him both in the main suit and the counter-claim.

 

On 22/7/02, DW1 started his evidence. Thereafter the learned trial judge was transferred from Amuzu Ohanze to Obehie. The record of the court of the proceedings of 28/3/03 is illuminating. I will set it down below:

 

“HOLDEN AT OBEHIE

BEFORE HIS LORDSHIP HON. JUSTICE C. B. U. WOGU

ON FRIDAY THE 28TH DAY OF MARCH, 2003.

SUIT NO. HOB/12/99

ENOCK IFEZUE IBETO

AND

CHIEF A. C. NWANKUDU & 2 ORS.

Plaintiff in court, Defendants absent.

1. C. Nwaobosi Esq for the Plaintiff

No counsel for the Defendants

 

1. C. Nwaobosi Esq. ask the court most humbly to close the case of defence at this stage and to proceed to write the judgment for the reason that the Plaintiff closed its case on the 10th December, 2001, this was then adjourned to 25th February, 2002 for defence to open. On 25th February, 2002 we were in court at Amuzu Ohanze, on that day and counsel were not in court despite the fact that both Plaintiff and defendant’s counsel chose that day. Both counsel for Defendant and Plaintiff were not in court. On that day I specifically asked for the defendant case to be closed. The court was not inclined to do so. In the alternative the court gave us a cost of N=2,000.00. The case was adjourned to 18th March, 2002 for defence to open. On that day the defendant was not present but his counsel was in court. That day, counsel for defendant Mr. Ahunanya made an application to allow them bury their dead father. The court granted that application and adjourned to 20th May, 2002. The defence did not take place until 22nd July, 2002.  We came back for continuation for defence to open their case. On that date, the 3rd Defendant put up appeal for the 1st time. Their counsel Nnamdi Ahunanya was present. The defence then opened and put in 3rd Defendant as the 1st defence witness. This witness gave evidence in chief and after a very busy moment, his counsel then applied to the court for an adjournment that he was attending a meeting and did not state how urgent or important the meeting was as to take precedence over the court’s sitting. I strenuously opposed the application and then state that the application was a scheme to delay the trial of the case, but not withstanding this court granted the application and adjourned to 11th and 14th October, 2002 – before that day my case was transferred to Ukwa Judicial Division. I then applied for an assignment Order – Assignment Order speaks for itself. Back at the Ukwa Judicial Division, the adjournment continued, we got our assignment notice and appeared on the 3rd February, 2003. The Defendants were not in court on that 3rd February, 2003 – the court did not hold and was adjourned to 17th March, 2003 at Ukwa High Court. The 1st Defendant who was giving evidence in chief as 1st defence witness had never put up appearance to complete his evidence in chief nor did any of the Defendants up appearance. On that 17th the Record Book were locked up by the Registrar. The court asked the case to proceed but Defendants’ counsel insisted for the Records as he wanted some documents in the file. The case was then adjourned today. It was noted that 2 days and 1 day in March and April respectively both of us took these days. Today the same 2nd Defendant and his counsel are not in court till now. It is now 3 minutes after eleven a.m.  No written reason for adjournments. Urges me to further their case.
   COURT: Already there is one more adjournment for the party – Therefore I adjourn to that date 9/4/03 wherein the matter will be adjourned for judgment.”

The same thing happened on the 9/4/03 and the learned trial judge then ordered the defence case closed and asked the Plaintiffs’ counsel to address the court.

 

On 11/4/03 Defence’s counsel filed a motion to arrest the judgment of the court or for leave to address the court on the issues of law arising from the Plaintiff’s case and/or address.

 

The learned trial judge ignored the application and proceeded to deliver the judgment on 14/4/03. The judgment is on page 153 of the record. On 26/4/03, counsel for the Plaintiff wrote to the Registrar of the court asking that certain amendments be made to the drawn up order of the court. Counsel pointed out that in the order drawn up, the trial judge had ordered that the Plaintiff was entitled to judgment in terms of paragraphs 9(a) (b) and (c) of his writ whereas the trial court had allowed an amended statement of claim which superseded the writ of summons and the Plaintiff had claimed same reliefs in paragraphs 26(a) (b) and (c) of the amended statement of claim.

 

The judgment of the trial court barely took up 3 pages of the record from pages 153-155. The whole judgment is set out below:

 

“This is a judgment arising from the claim of the Plaintiff against the Defendants jointly and severally as set out in his Writ of Summons dated 18th day of 15th March, 1999. Pleadings were exchanged on both sides.

The matter really begun on 13/3/2000 with PW1 (the Plaintiff) followed with PW2 and PW3 respectively. With a very long adjournments all at the instance of the Defendant. The case re-commenced briefly with the DW1 on the 22/7/02. Five months thereafter the Plaintiff had closed its case. It seemed as if the case would never be continued when His Lordship was transferred from Obingwa Judicial Division to Ukwa.

 

This is now an Assignment Order for the hearing and determination of this matter. Hearing Notices were duly issued and served. The matter was fixed for 3rd February, 2003 and subsequently to 17th March, 2003 on which day the DW1 who had commenced his short defence on 22/7/2000 and before the Assignment Order was not in court. Counsel for the Defendant who appeared sought to hold the court at ransom by requesting and insisting of certain records. After protracted arguments on both sides the court decided for an adjournment with both counsel agreeing on two consecutive days for adjournment viz.

 

On 28/3/2003 being one of the adjourned dates neither counsel and Defendant who was to continue his evidence-in-chief were not in court and no letter adducing reasons for their absence. The court thereafter noting that one day remains of the adjourned date for both counsel adjourned to 9/4/03. On that 2nd adjourned date neither the Defendants and their counsel appeared. On that 9th April, 2003, learned counsel for the Plaintiff proceeded to apply to the court urging for the Plaintiff proceeded to apply to the court urging it to close the case of the defence since it is clear that they have abandoned their case and urged the court to proceed to judgment based on the case for the Plaintiff.
This court seems and do hold that from the antecedents of this case as set herein above. The defence is no more interested in this matter. What is now left for the court is only the case of Plaintiff.  Indeed there must be an end to litigation.

In the sum total, the Plaintiff having made out its case is entitled to judgment as set out in paragraphs 26(a) (b) (c) of his statement of claim with cost assessed at N=5,000.00 (Five thousand Naira) only.”

 

The Plaintiff at the trial court is the Respondent herein and the 1st Respondent is the Appellant. The Appellant’s distilled the following issues for determination:

 

1. Whether the non-evaluation of evidence led in this suit by the Honourable Trial Court in the course of delivery of its judgment did not occasion a miscarriage of justice.
   Whether the Plaintiff/Respondent sufficiently proved, by the evidence led, his entitlement to the reliefs he sought in his Amended Statement of Claim as granted by learned trial judge when the said reliefs were not liquidated claims and being in the alternative were subject to proof on the preponderance of evidence.(Grounds 1 and 2)

 

2. Whether the learned trial judge was right in holding that the Defendant was no more interested in the suit taking into consideration the surrounding circumstances and antecedents of the case.
   Whether non-issuance of Hearing Notices on the Appellant who was not in court when hearing recommenced in a new judicial division and did not subsequently attend court being unaware of the adjourned dates for continuation of hearing did not impinge on his right to fair hearing thereby occasioning a miscarriage of justice. (Ground 4)

 

3. Whether the learned trial judge’s refusal and/or failure to rule on the admissibility or otherwise of the document dated 25/5/96 tendered by the Plaintiff as the cases of his action did not affect the judgment to the extent of occasioning a miscarriage of justice.(Ground 5)

 

4. Whether the amendment of the judgment of the trial judge already in open court and enrolled based on a letter written by the Respondent’s counsel did not occasion a miscarriage of justice. (Ground 8)

 

The Respondent also identified 3 issues for determination set out as:

 

1. Whether in the circumstances of the instant case, where the Appellant abandoned his defence, the trial judge was not justified to enter judgment for the Respondent.

 

2. Whether the failure of the trial judge to rule on the admissibility or otherwise of the document dated 25/2/96 tendered by the Plaintiff and the order of injunction pending the determination of the suit were sufficient to vitiate the judgment of the lower court.

 

3. Whether the learned trial judge was not right in correcting a slip in the open court made in the course of delivering his judgment.

 

For more clarity, as I am entitled so to do, I will formulate the following issues which seem to me to better illuminate in a more concise manner the grievances of the Appellant against the decision of the trial judge. See PAUL EDEM v. CANON BALLS (2005) 6 SCNJ 189.

 

1. Whether the failure of the learned trial judge to evaluate the evidence of the Plaintiff in the judgment led to a miscarriage of justice. (Appellant’s issues 1 & 2)

 

2. Whether in the circumstances of this case the learned trial judge was right in his conclusion that the Appellant had abandoned their case at the trial court. (Appellant’s issues 3 & 6, Respondent’s issue 1)

 

3. Whether the failure of the learned trial judge to rule on the admissibility of the written authority when it was objected to and in the course of the judgment led to a miscarriage of justice. (Appellant’s issue 4, Respondent’s issue 2)

 

4. Whether the subsequent amendment of an enrolled order of the court by the Registrar of the court is valid. (Appellant’s issue 7, Respondent’s issue 3)

 

On issue 1, learned counsel for the Appellant argued that the learned trial judge failed in his duty by not determining the issues raised in the pleadings and evaluate the evidence of the parties no matter how meagre in his judgment. Counsel argued that the pleadings of the Appellant nor evidence proffered in proof were nowhere considered. He argued that the trial judge did not give judgment according to the justice of the case. Counsel argued that even though the trial judge held that he had only the case of the Respondent, the court was still obliged to proceed to evaluate the case made out by the Respondent and to ascertain whether the Respondent made a case to ground an award of the reliefs sought or make another appropriate orders as the justice of the case dictates. Appellant’s counsel argued that the reliefs sought in paragraphs (a) (b) & (c) of the statement of claim granted by the trial judge were not liquidated sums of money and needed proof which was not available. Counsel argued that where the right procedure was not followed and the decision appealed against did not determine the fundamental issues before it, the appellate court has a duty not to affirm such a decision.

 

Appellant’s counsel argued that had the trial judge bothered to evaluate the evidence adduced by the Respondent, he would have found that the Respondent did not make out a case to warrant the grant of specific performance, damages and injunction. He cited the following cases: OBIORA v. OSELE (1991) 8 NWLR Pt. 208 Pg. 165 at 180, BAYOL v. AHEMBA (1999) 71 LRCN 2347, ADESINA v. OBALO (1999) 66 LRCN 181 at 2119, EDOSOMWAN v. OGBEYFUN (1996) 36 LRCN 432 at 443,; GOV. EKITI v. OSAYEMI (2005) 2 NWLR Pt. 909 Pg. 67 at 90; ONYEJEKWE v. ONYEJEKWE (1999) 67 LRCN 525 at 544; OLATUNJI v. ADEISA (1995) 28 LRCN 295 at 309 and OKULATE v. AWOSANYA (2000) 74 LRCN 167 at 188; OKWONKWO v. UDOH (1997) 53 LRCN 2341 at 2347; NWOKORO v. ONUMA (1999) 72 LRCN 3015 at 3033; AJADI v. OKENEHUN (1985) 1 NWLR Pt. 33 Pg. 484 at 492; JIWUL v. DIMLONG (2003) 9 NWLR Pt. 824 Pg. 154 at 213.

 

The brief of the Respondent’s counsel did not contain any response to the above submission. The submissions in Respondent’s issue 1, addressed the question of whether the trial court was right to assume that the Appellant had abandoned their defence and to go on to give judgment in favour of the Respondent. This issue is basically related to the propriety of the contents of the judgment delivered by the trial judge. That is to say, did the judgment of the trial judge contains reasons why the court arrived at the conclusion that the Respondent was entitled to the reliefs granted?

 

I must say emphatically with the greatest respect that the judgment of the trial court did not meet any known standard of a valid judgment of the High Court. A reading of the judgment shows that even though no reference was made to it His Lordship was in fact giving reasons for refusing the motion for arrest of judgment filed by the Appellant’s counsel by relating all the previous various adjournments at the instance of the Appellant. Then without giving a single reason, he pronounced judgment in favour of the Respondent.

 

I agree with the submission of learned Appellant’s counsel that it is the duty of a trial court to consider the evidence of all sides in a case concerning every material issue. See RABIATU ADEBAYO v. RASHEED SHOGO (2005) SCNJ 60; OGUNYADE v. OSHUNKEYE (2007) 12 NWLR Pt. 1057 Pg. 218. I cannot help but agree with the learned counsel for the Appellant that the judgment already set out above gave no reason at all for arriving at the conclusion that the Respondent made out his case and was entitled to judgment.

It is important to reiterate the point that there is no specific format prescribed by adjectival or any substantive law for writing a judgment. However, a judgment must meet some minimum standards. It must state briefly the reliefs claimed, the relevant facts on all sides, arguments and reactions of the judge or reason for findings and final order or orders made. See USIOBAIFO v. USIOBAIFO (2005) 1 SCNJ 226, AGBI v. OGBE (2004) 2 SCNJ 1; UDENWU v. UZUEGBU (2003) 7 SCNJ 145.  See also OKULATE v. AWOSANYA (2000) 2 NWLR Pt. 646 Pg. 530 cited by Appellant’s counsel. The reasons for these findings need not be elaborate. See AMALA v. THE STATE (2004) 6 SCNJ 79. Even though substance not form is regarded, a judgment must demonstrate in full a dispassionate consideration of all issues raised and canvassed and show the result of that exercise.

 

Suffice it to say, that the judgment of the trial court in this case did not meet the minimum standard of a judgment which settles the ‘res’ in controversy between the parties after a full and dispassionate consideration of the facts and issues canvassed before it. There is no doubt in my mind that this failure of the learned trial judge has caused miscarriage of justice as no one can tell how he arrived at his decision. See CHIEF FAGUNWA v. CHIEF ADIBI (2004) 7 SCNJ 322. In the circumstances, the effect of the failure of learned trial judge is that it must be set aside since it has occasioned miscarriage of justice. See EBE EBEUKA v. CHIEF KALU IROLO (2002) 7 SCNJ 137. The first issue is resolved in favour of the Appellant.  I believe that as the penultimate court we are obliged to consider all issues submitted to us for determination.

The 2nd issue is whether the learned trial judge was correct in his conclusion that the Appellants had abandoned their defence.

 

The kernel of the Appellant’s counsel’s argument on this issue is that when the learned trial judge was transferred to a new judicial division, the Appellant and his counsel were not issued any Hearing Notices of the hearing on the subsequent days of adjournment and that the trial judge in violation of the principles of fair hearing deprived him of the opportunity of being heard and proceeded to close the case of the Appellant when he was unaware of the proceeding. He submitted that it was the duty of the court to ensure that all parties are aware of its proceedings to afford all parties opportunity of being present and being heard. He cited MANKANU v. SALMAN (2005) 4 NWLR Pt. 915 Pg. 270 at 301; UDE v. A.G. RIVERS STATE (2002) 4 NWLR Pt. 756 Pg. 66 at 77. Counsel argued that it was wrong of the learned trial judge to ignore the motion to arrest the judgment which was an attempt on the part of the appellant to stop the delivery of the judgment and ensure his own side was heard. He citied SKYPOWER v. OLIMA (2005) 18 NWLR Pt. 957 Pg. 224 at 251-252; UPS v. UFOT (2006) 20 NWLR Pt. 963 Pg. 1 at Pg. 22; COOKEY v. FOMBO (2005) 15 NWLR Pt. 947 Pg. 182 at Pg. 201.

 

Learned Respondent’s counsel on this issue argued that the assertion of Appellant’s counsel that he was not served with Hearing Notice of the sitting at the new judicial division is false. He argued that Appellant’s counsel was served and appeared in court before he refused to turn up for subsequent adjournments without any explanation whatsoever. Counsel argued that the Appellant’s counsel was physically present in court when the case was adjourned and had voluntarily opted out of the proceedings and cannot be heard to complain. He cited AINA v. OBABIOLORUNKOSI (1986) 2 NWLR 22 at 316; JONASON TRIANGLES v. SM & P LTD. (2002) 12 NWLR Pt. 789 Pg. 176 at Pgs. 192-193.  He also argued that the trial judge was in perfect order to have ignored the motion for arrest of judgment as such a motion is unknown to Nigerian law. He cited NEWSWATCH COMMUNICATIONS v. ATTA (2006) 12 NWLR Pt. 993, 144 at 179.

 

Let me first say that the learned Appellant’s counsel was being economical with the truth when he insisted that the Appellant’s counsel was not served with Hearing Notice and was unaware of the proceedings after the learned trial judge was transferred to another judicial division. Appellant’s counsel in this court was the same counsel on record at the lower court. Not only that, on 17th March, 2003 at page 127 of the record, Appellant’s counsel Mr. Ahunanya was in court when the case was adjourned for hearing till 28/3/03 and 9/4/03 respectively with consent of both counsel. Appellant’s counsel failed to turn up without explanation on both days. In JONASON TRIANGLES v. SM & P LTD. supra, the court held as follows:

 

“The best notification to parties to an action is the one communicated to them personally in the open court. Thus where parties by their conduct voluntarily opt out of trial although they had adequate information of the hearing date and the venue of the trial, they cannot turn round to complain of want of fair hearing as a result of non-issuance of hearing notice.”

 

The argument of the learned Appellant’s counsel that his client was deprived of the right to fair hearing because no Hearing Notices were received are based on a deliberate fabrication of the facts in the circumstances. If a party is aware that he ought to be present to prosecute or defend a suit on a certain day and he fails to do so, his failure or tardiness is at his own peril. See ADEYEMI v. LAN & BAKER (2000) 7 NWLR Pt. 663 Pg. 33 at 49, MMS LTD. v. OTEJU (2005) 14 NWLR Pt. 945 Pg. 517 at 543. No party can hold the adverse party or the court to ransom.

 

On the issue of the motion to arrest judgment, I have always held the view with great humility and the greatest respect to those who come up with the expression “arrest of judgment” that it is a very offensive expression which connotes brigandage and lawlessness – all things anathema to the rule of law. The Supreme Court had settled this issue once and for all in NEWSWATCH COMMUNICATIONS v. ATTA supra to the effect that an application to arrest judgment is an improper application and is unknown to our adjectival law and indeed our jurisprudence. In spite of holding that a motion to arrest was unknown to our jurisprudence, the court held that a court must hear a motion or process before it however unmeritorious. In NEWSWATCH COMMUNICATIONS v. ATTA (supra) at page 168 of the NWLR, the Supreme Court held that any motion filed before delivery of a judgment must be heard and determined by the court before the judgment is delivered. In NEWSWATCH COMMUNICATIONS v. ATTA surpa, the trial court incorporated his decision in respect of the motion to arrest the judgment in the main judgment itself. The Supreme Court held that it was proper so long as he considered the motion and took a decision on it before delivery of the judgment. See also MRS. EVANGELINE FOMBO v. RIVERS STATE HOUSING & PROPERTY DEVELOPMENT AUTHORITY & ANOR. 2005) 5 SCNJ 213.

In the circumstances of this case, as much as one may empathize with the frustration of the learned trial judge after so many contrived adjournments by the Appellant, it is imperative to hold that even though the motion to arrest the judgment was improper and misconceived, the judge was obliged to hear, consider and give a ruling on it and not to ignore it. The ruling may be a separate formal one or incorporated into the judgment about to be delivered. All applications filed after hearing but before judgment must be considered and disposed of. See SALEH v. MONGUNO (2006) 12 SCNJ 29.

In this case, the motion to arrest judgment was dated and filed on 11/4/03. The learned trial judge did not take the application or give parties the opportunity to move or oppose it. His Lordship ignored it. However, the majority of the judgment already set out above was a justification of the learned trial court’s stand that the Appellant’s counsel having failed to appear in court without explanation on the days fixed for hearing, the court was obliged to conclude that the Appellant had lost interest in the matter. That approach in my humble view was erroneous. Court must consider all applications before it. See MAGNA MATTHEW v. OTEJU (2005) SCNJ 100.  If the learned trial judge had given a ruling on the application, I am in no doubt that I would have agreed with him that indeed it appeared that the Appellant had abandoned the defence of the suit.

The third issue is whether the failure of the learned trial judge to rule instantly on the admissibility of the written authority at the time objection was raised and later in the judgment caused miscarriage of justice.

 

Learned Appellant’s counsel argued that the document not ruled upon was the basis of the Respondents’ case at the lower court. Counsel argued that the refusal, neglect or omission of the learned trial judge to deliver a ruling during the course of the judgment was an error which had occasioned miscarriage of justice. He cited OLOWOLARAMO v. UMECHUKWU (2003) 2 NWLR Pt. 805 Pg. 537 at 557-558; ONYEKWULUJE v. ANIMASHAUN (1996) 3 LRCN 488; COOKEY v. FOMBO (2005) 15 NWLR Pt. 947 Pg. 182 at 200; MMS LTD. v. OTEJU (2005) 14 NWLR Pt. 945 Pg. 517 at Pg. 537.

 

In reply, learned Respondent’s counsel conceded that on 16/10/2000 the Respondent sought to tender a document which was opposed and no ruling was delivered. Counsel argued that since the Appellant abandoned his case thereafter, there was no need to rule on it. Counsel also argued that the document was not material and the failure of the trial judge to rule on it did not in any way affect the judgment more so as there is no evidence on the record that the learned trial judge relied on it.

 

In the first instance, the argument of the learned Respondent’s counsel is misconceived. The brief on page 7 referred to the document sought to be tendered on 16/10/2000. There was in fact a ruling on 20/11/2000 admitting the document as Exh. E. See page 99 of the record. The complaint of the Appellant was in respect of the proceedings of 13/3/2000. See page 198 of the record and ground 5 of the Grounds of Appeal. Obviously the Respondent’s counsel deliberately chose not to understand the case of the Appellant.

The Respondent’s action was for specific performance of a contract of sale of land for which the Respondent had paid large sums of money based on his belief that his vendor had the authority of his father to dispose of the land. PW1 – the Respondent herein had sought to tender on 13/3/2000 a photocopy of the written authority, the Appellant having failed to produce the original after notice to produce. Objection was raised to the tendering of the photocopy by Appellant’s counsel. The Respondent’s counsel replied on the points of law raised. The learned trial judge did not determine the matter at that point but held on page 58 of the record:

 

“Ruling shall be in cause of judgment”

 

In ONYEKWULUJE v. ANIMASHAHUN supra, the Supreme Court held as follows:

 

“The court is duty bound to express in writing whether it agreed with the objection or it did not. The issue may be technical in nature but where technicality touches a fundamental objection of fair hearing it cannot be ignored. It is a cardinal principle of administration of justice to let a party know the fate of his application whether properly or improperly brought before the court. It will amount to unfair hearing to ignore an objection raised by a party or his counsel against any step in the proceedings.”

 

This is no doubt that the procedure of not making a definite stand on the admissibility of a document is erroneous. If the trial judge is not sure of his stand in law, he ought to have adjourned the matter to enable him deliver a considered ruling on the admissibility or otherwise of the document. This would enable parties know precisely which documentary evidence they still need to proffer in proof of their case. It would also enable parties know precisely what they have been able to prove before the court. To refuse to deliver a ruling on the admissibility of a document during the course of trial is in my humble view very erroneous.

 

In the circumstances of this case, I am of the view that having failed to give an opinion on its admissibility, we are not sure whether that document was the basis of the decision of the learned trial judge, and that lacuna or omission has led to a miscarriage of justice. The parties cannot be put into a state of suspense in respect of their case before the court.

 

This issue is resolved in favour of the Appellant.

The fourth issue is whether the subsequent amendment to an enrolled order of the court was valid.

 

The grievance of the learned Appellant’s counsel on this issue is that even if the accidental slip or error in the judgment of the learned trial judge could be corrected, it must be through a motion on notice. He submitted that the Principal Registrar of the High Court, Ukwa Judicial Division had no right to amend an enrolled order of the court. He argued that the letter from the Respondent’s counsel requested for an amendment and that such amendment without jurisdiction amounted to a miscarriage of justice. He cited KOIKI v. FIRST BANK (1994) 8 NWLR Pt. 35 Pg. 665 at 668; OLUROTIMI v. IGE (1993) 8 NWLR Pt. 311 Pg. 257 at 274.

 

In reply, the learned Respondent’s counsel argued that the statement of claim supersedes the writ of summons and the learned trial judge should have considered the amended statement of claim in making the order for judgment. In the absence of that consideration the court was entitled to amend the slip in the judgment.

 

He argued that though not conceded that the amendment was never effected by the trial court on the day of the judgment, as long it has been satisfactorily shown that the judgment complained of reflects the reliefs sought in the Amended Statement of Claim, then, even the Court of Appeal can equally effect the amendment.

 

There is no doubt that an error or slip in the judgment of a court can be corrected by that court. Most rules of court make such appropriate provisions to enable the judges correct their judgments. Judges are human after all and are prone to fall into error like everyone else. In CHIEF WALTER AKPAN v. CHIEF EDO EKONG UMOH (1999) 7 SCNJ 154, the Supreme Court suo motu corrected a slip made by the lower court in referring to the Survey Plan of a disputed land. A judge can amend his judgment whether enrolled or not where there is a clerical slip or the order does not express the meaning of the judgment or the order intended by the judge. This is known as the slip rule principle. See MAKANJUOLA v. BALOGUN (1989) 3 NWLR Pt. 108 Pg. 192, NICON v. PIE CO. LTD. (1990) 1 NWLR Pt. 129 Pg. 697, BAKARE v. APENA (1986) 4 NWLR Pt. 33 Pg. 1. A correction of a slip can only be made by motion on notice. See OLUROTIMI v. IGE supra and KOIKI v. FIRST BANK supra. This is because there should be no ex parte communication between a party and the court.

In this case, there is no argument from the Respondent and it is conceded that the pronouncement by the trial judge while delivering the judgment referred to paragraph 9 of the writ instead of paragraph 26 of the amended statement of claim was a slip. The problem is the procedure for correcting the slip. I agree with the learned Appellant’s counsel that the slip can only be corrected by the court upon a motion on notice by the affected party. This was not done in this case. It is only in the highest court in the hierarchy of courts that amendments to orders of the lower court may be made suo motu. In the case of OSHO v. APE (1998) 8 NWLR Pt. 562, Pg. 492 at 504, the Supreme Court per Onu JSC stated as follows:

 

“It has been held in AFOLABI & ORS. v. JOHN ADEKUNLE & ORS. (1993) 8 SC 98 at 117, that there can be no doubt that not only is a court entitled to make formal amendments (such as the one in hand) it indeed has a duty to do so and this duty remains whether there is a formal application before it or not and whether it is in the trial court or any of the courts of appeal.”

 

There is no doubt that any of the lower courts can correct clerical error or a slip in their judgment. The correction of the error must be made through motion on notice to the other side. Then the error can be corrected on the order of the court.  The fourth issue is also resolved in favour of the Appellant.

For the reasons given above, I find this appeal meritorious. Appeal allowed. Judgment of the trial court is set aside. The case is sent back to the High Court for trial de-novo. The Chief Judge of Abia State is to re-assign the case to another judge. No order as to costs. This conclusion disposes of the CA/PH/81B for stay of execution. It is hereby struck out.

ABUBAKAR JEGA ABDUL-KADIR, J.C.A.:

I agree.

MOJEED ADEKUNLE OWOADE, J.C.A.:

I agree.