CORAM

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Mohammed Mustapha Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Muhammad Ibrahim Sirajo Justice of the Court of Appeal

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PARTIES

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APOSTOLOS PANTAZIS

APPELLANTS 

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BIANCA JENNIFER PANTAZIS

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, EVIDENCE, JUDGMENT, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

By a Motion on Notice brought pursuant to Order 19 Rule 4 of the Court of Appeal Rules 2016, the Appellant/Applicant sought for an order of this Honourable Court that the clerical mistake or error arising from the accidental slip or omission in its judgment dated 9th November 2017 be corrected or to vary the judgment so as to give effect to its meaning or intention by substituting the words “specimens be taken from the persons named below within a period of three (3) months from the date of this order” or alternatively “within a reasonable time for the words “…specimens be taken from the persons named below on or before 21 February 2014” at page 28 of the judgment attached hereto and marked as exhibit “A”.

In the Appellant/Applicant’s application filed 24th January 2014 in the Court below, the ruling on which was the subject matter of this appeal, the Appellant/Applicant had applied for an order for direction that paternity tests be carried out on or before 21st February 2014 and it has become impossible or impracticable to carry out this Court’s order as it would require rolling back time to 21st February 2014. It is also obviously not the intention of this Court, in its judgment dated 9th November 2017, to give an order with retrospective effect or which cannot be carried out by reason of lapse of time or accidental slip in the judgment.

 

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HELD

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Application granted/allowed

 

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ISSUES

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 Whether the Applicant has shown good grounds why the Court of Appeal should exercise its inherent and/or statutory power to amend or correct the clerical mistake or error arising from the accidental slip or omission in its judgment dated 9th November 2017?

 

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RATIONES DECIDENDI

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JUDGMENT – WHERE A JUDGMENT OR DECISION HAS NOT BEEN APPEALED

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That issue has, however, been settled by this Court in its judgment delivered on the 9th day of November, 2017 upon the Applicant’s appeal. The Respondent has not appealed the decision of this Court in that regard as details of the pendency of such appeal is not on record before this Court, if it does exist at all. The said decision is therefore binding on the Respondent. See UBA Plc vs. Mabogunje (2022) LPELR-57823 (SC); Opara vs. Dowel Schlumberger (2006) 7 SC. (Pt. 111) 56; Standard Engineering Co. Ltd vs. Nigeria Bank for Commerce & Industry (2006) 13 LRCN 1330 at 1346 and Orji vs. Orji (2011) 7 NWLR (Pt.1275) 113 at 135. – Per M. I. Sirajo, JCA

 

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COURTS – WHETHER A COURT CAN COMMAND AN IMPOSSIBILITY

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The law is well settled that a Court will not command an impossibility. See Adeniyi vs. Ifelodun LGA & Ors (2018) LCN/11218. The Supreme Court in Ohuka vs. State (1988) 7 SC 24; enthused thus;

“… one has to bear in mind that the law itself and its administration must yield to that which everything must bend- to necessity or impossibility of performance. Impotentia excusat legem. The mere fact that a thing cannot be done excuses the doing of it..”

See also Yamo Nig Ltd & Anor vs. Access Bank Plc (2015) LPELR- 50613 (CA). – Per M. I. Sirajo, JCA

 

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THE SLIP RULE – THE SLIP RULE AND WHETHER IT ALLOWS A COURT TO VARY ITS DECISION AFTER IT HAS DELIVERED SAME

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My noble Lords, can a Court vary its judgment after it has delivered the same and therefore becomes functus officio? The answer is given in a long line of decisions of this Court and the Apex Court. It is trite law that, generally, a Court of law has no jurisdiction to entertain an application for review of its judgment once such judgment is delivered, save for the situation of the narrow concept of the Slip Rule. This is when the need arises 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. See Order 20 Rule 4 of the extant Rules of this Court. The Supreme Court stated in Dingyadi & Anor vs. INEC & Ors (2011) LPELR-950 (SC), what in essence amounts to an “Accidental slip” in a judgment or order of a Court at pages 27-28 of the Electronic Report, thus:

” … a clerical error in a judgment or order of a Court, which must be an error in expressing the manifest intention of the Court.

The Court will exercise its power to correct clerical errors or mistakes arising from accidental slips or omissions if nothing has intervened to make it inequitable to do so.

Any other error outside this saving clause would not be permitted by the slip rule since the judgment would then have represented what the Court decided and any alteration or variation would be a variation of the substantive part of the judgment.” The Rules of this Court, reproduced earlier in this Ruling, expressly permit the Court to correct any clerical mistake, or some error arising from a judgment or any accidental slip or accidental omission in a judgment, or to vary the judgment or order so as to give effect to its intention or meaning. The Supreme Court in Obioha vs. Ibero & Anor (1994) LPELR-2180 (SC) (Pp. 37-39) also cited by the Respondent, restated the law more emphatically thus:

“The general principle of the law is that after a judgment has been passed and entered, even if it is a consent judgment entered under a mistake, that Court cannot set it aside otherwise than in a fresh action brought for the purpose unless-

(i) there has been a clerical mistake or an error arising from an accidental slip or omission in the judgment, or

(ii) the judgment, as drawn up, does not correctly represent what the Court actually decided or intended to decide and in either of which cases the application may be made by motion in the action. See Ainsworth v. Wilding (1896) 1 Ch. 673 and in Re: Swire, Mellor v. Swire (1885) 30 CH D 239 at 243, p. 246 and 247.

Accordingly, the Court has clear inherent jurisdiction to amend or vary its own order or judgment so as to carry out its own meaning, and where the language used has been doubtful, to make it plain. ….. It has to be emphasized, however, that this jurisdiction is limited only to situations where:-

(i) There is a clerical mistake in the judgment or order; or

(ii) It is necessary to do so to carry out the Courts own meaning and to make the same plain. I think it necessary to stress that such an error or omission as aforesaid must be an error in expressing the manifest intention of the Court and the correction can only be made on motion. See Thynne v. Thynne (1955) P. 272 and Olurotimi v. Ige (1993) 8 NWLR (Pt.311) 257 at 274. But where there is no ambiguity in the judgment or order of a Court which calls for interpretation, construction or clarification, any attempt to import some contrary interpretation would amount to varying the judgment or order which correctly represents what the Court decided and is erroneous on point of law. See Daniel Ashiyanbi & Ors v. Emmanuel Adeniji (1967) 1 All NLR 82; Chief Okro Orukumkpor v. Itebu, (supra); NICON v. Pie Co. Ltd (1990) 1 NWLR (Pt.129) 697 at 708 and University of Lagos v. Aigoro (1991) 3 NWLR (Pt.79) 382.” (Emphasis supplied). There is no doubt that an error or slip in the judgment or order of this Court, as in the instant appeal, can be so corrected as prayed for in this application. Most rules of the Court make such appropriate provisions to enable the Judges or Justices to correct their judgments. In Akpan vs. 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. Also, persuasively, in Thynne vs. Thynne [1955] P. 272, C.A, cited by the Applicant, divorce decrees nisi and absolute were amended by substituting the date of the earlier marriage for the date of the second ceremony of marriage. See Umunna & Ors vs. Okwuraiwe & Ors (1978) LPELR-3378 (SC); Makanjuola vs. Balogun (1989) 3 NWLR (Pt. 108) 192, NICON vs. PIE Co. Ltd. (1990) 1 NWLR (Pt. 129) 697. – Per M. I. Sirajo, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Court of Appeal Rules 2016

2. Court of Appeal Rules 2021

3. Child’s Rights Act

 

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