Lambert Sunday Iwueke V. Imo Broadcasting Corporation (2005)
LAWGLOBAL HUB Lead Judgment Report
ONNOGHEN, J.S.C.
This is an appeal against the judgment of the Court of Appeal sitting in Port-Harcourt Coram A. I. Katsina-Alu, JCA (as he then was) and R. O. Roland, M. O. Onalaja, JJCA delivered in appeal No. CAJPH/55/88 on the 28th day of June, 1994 in which it allowed the appeal of the present respondent and set aside the judgment of Ojiako, J. (as he then was) delivered on the 4th day of December, 1987. The facts of the case include the following. The appellant as plaintiff instituted an action against the respondent together with four others jointly and severally at the Owerri High Court claiming the following reliefs:-
“(a) N500,000.00 as damages for libel.
(b) An order of court that the defendants retract the said publication by the agencies of radio, television and newspaper.”
Pleadings were ordered in accordance with the applicable rules of court and while the appellant as plaintiff had filed his pleadings, the respondent defaulted even though it was duly served with the statement of claim and other processes. The failure of the respondent to file its statement of defence resulted in the appellant presenting an application for judgment in default of pleadings in accordance with the rules of court. The respondent was duly served with the motion and was represented by counsel on 24th November, 1986 when the application was fixed for hearing, but it filed no counter affidavit neither did it file any application for extension of time within which to file its statement of defence. The motion for judgment was however adjourned to 15th December, 1986 for argument at the instance of learned counsel for the appellant.
On the 15th day of December, 1986 the motion was heard with the respondent still not taking steps to put its house in order by way of extension of time to file its statement of defence neither did it file any counter-affidavit in opposition to the affidavit in support of the application for judgment in default of pleadings. The motion was also not opposed on points of law by learned counsel for the respondent as a result of which the learned trial Judge entered judgment for the appellant in the sum of N500,000.00 being the total amount claimed by the appellant but dismissed the second relief which was earlier reproduced in this judgment. The trial Judge went on to make orders that the 2nd to 5th defendants file their statement of defence, which orders were later complied with. However, on the 15th day of May, 1987 the respondent filed an application in which it prayed the trial court to set aside its default judgment in default of pleadings and admit it to defend the action. The motion was taken on 12th October, 1987 and in a reserved ruling delivered on 4th December, 1987, the learned trial Judge dismissed the application giving rise to an appeal by the respondent to the Court of Appeal sitting at Port Harcourt, the judgment on which resulted in the present appeal. The Court of Appeal in its judgment on 15/12/86 set aside the judgment of the trial court.
The issues for determination in this appeal, as formulated by learned counsel for the appellant, Amaechi Nwaiwu, Esq., SAN in the appellants brief of argument filed and adopted in argument of the appeal, are as follows:-
“Whether the Court of Appeal was right in holding that the judgment of the learned trial Judge was final, having finally disposed of the rights of the appellant and respondent if the answer is in the negative, whether ground 2 of the grounds of appeal on which the Court of Appeal based its judgment was one of law alone.
In the alternative “Whether the Court of Appeal was right in holding that the learned trial Judge was in error when he entered final judgment for the respondent in respect of the claim for damages for libel without receiving evidence on that claim”
On his part, learned counsel for the respondent, Chief Eze Duruiheoma in the respondent’s brief which he adopted in argument of the appeal on 12/7/05, while adopting the appellant’s issue No.2 formulated his issue No.1 on the following terms:-
“2.01 was the decision of the trial court awarding the sum of N500,000.00 as damages to the plaintiff against the 1st defendant an interlocutory decision just because the decision did not involve or affect the other defendants whose case was still pending in the lower court and was ground 2 of the grounds of appeal in the Court of Appeal a ground of law”.
Looking at the issues as formulated by both counsel in this appeal, it is very clear that appellant’s issue one and respondent’s sole issue are substantially the same. I however do not agree with learned senior counsel for the appellant that judging from the grounds of appeal, issue No.2 can be properly described as an alternative one to issue No.1. It is a competent and independent issue, a resolution of which cannot be said to result in the same effect as a resolution of issue No 1. That apart, I have to observe that the sub issue in issue No.1 can only be considered, as formulated by learned counsel for the appellant, if the resolution of the main issue therein stated is in the negative. In other words if the answer to the main issue in issue No.1 is in the positive then there will be no need to waste time in considering the sub-issue therein.
In arguing the appeal with respect to issue No.1, learned counsel for the appellant submitted that the lower court was wrong in holding that the judgment of the learned trial Judge was final having finally disposed of the rights of the appellant and respondent. Learned counsel submitted further that the lower court also erred in holding that ground 2 of the grounds of appeal was one of law alone, and that the said ground 2 was of mixed law and fact. Referring to the portion of the judgment of the trial court where it is stated by that court that “the other defendants will proceed to file their statement of defence based on the plaintiff’s statement of claim”, counsel stated that the battle was still on between the appellant and the 2nd to 5th defendants in the trial court and as such the rights of all the parties to that case have not been finally disposed of neither did the order of that court finally dispose of the matter in dispute.
Citing and relying on the case of Ezenwosu v. Ngonadi (1992) 3 NWLR (Pt. 228) 154 at 172; Bozson v. Altrincham U.D.C. (1903) 1 KB 547: Blay v. Solomon (1947) 12 WACA 175; Ude & Ors. v. Agu (1961) 1 SCNLR 98; (1961) 1 All NLR 66 and Akinsanya v. UBA Ltd. (1986) 4 NWLR (Pt. 35) 273 at 292-295, learned counsel submitted that for the court to determine whether the decision of the lower court is final or interlocutory the court has to look at the result of the decision to be appealed against. He further argued that if the decision finally disposes of the rights of the parties then it is final, but if not, it is interlocutory. That if the said decision invariably affects the status of the parties to the decision and does not involve any further reference to the court appealed from, then it is a final one. That in the present case the rights of the parties were still valid and subsisting and could be affected one way or the other by the decision of the court after the full hearing of the case.
Expanding the argument on sub-issue No.1 as to whether ground 2 of the grounds of appeal is of law alone or of mixed law and fact, learned counsel submitted that the ground reveals or questions the evaluation of facts by the lower court before the application of the law thereto. That there were facts by affidavit evidence before the learned trial Judge and which the Judge had to evaluate and assess before exercising his discretion in refusing to set-aside the judgment.
That leave of the court of first instance or of the court below was required before the respondent could file its appeal to the court below and that since no such leave was obtained, that appeal was incompetent, relying on section 221(1) of the Constitution of the Federal Republic of Nigeria 1979; U.B.A. v. GMBH (1989) 3 NWLR (Pt. 110) 374 at 388-389; Ogbechie v. Onochie (1986) 2 NWLR (Pt.23) 484, (1986) 3 SC 54 at 58 – 61; NNSC v. ESV (1990) 7 NWLR (Pt 164) 526 at 537 and 549; Metal Construction (WA.) Ltd. v. Migliore (1990) 1 NWLR (Pt. 126) 299 at 311 – 313, and Ifediorah v. Ume (1988) 2 NWLR (Pt. 74) 5 at 15 – 16. Learned counsel then urged the court to resolve the issue in favour of the appellant.
On his part, learned counsel for the respondent conceded, in the respondent’s brief, that the law in determining whether a judgment is final or interlocutory is as stated by the Supreme Court in the cases cited by appellant’s counsel and is to the effect that if the decision finally disposed of the rights of the parties, it is final, if not, it is interlocutory. That appellant counsel’s argument that the decision was interlocutory is based on the fact that part of the action is still pending in the trial court which has nothing to do with the nature of the order made by that court. That when the trial court pronounced judgment in favour of the appellant and refused to set same aside upon application to that effect, the judgment became a final judgment because there was nothing left for the court to do on the matter as it affects the 1st defendant.
Turning to the sub-issue of issue No.1, learned counsel submitted that ground 2 of the grounds of appeal is a ground of law alone and that the lower court was right in so holding. That the ground is a challenge of the application of the law by the trial court to the facts that are not in dispute in the matter. That the undisputed facts are as stated in the particulars of error therein. That the trial court erred in applying the law to the facts thereby making the error one of law. That since the claim was for unliquidated damages for libel there was need for evidence before it could be said that the appellant was entitled to anything. Learned counsel then urged the court to resolve the issue in favour of the respondent.
A look at decided authorities on the issue as to whether a decision of a court is final or interlocutory reveals that two distinct tests are used by the court in resolving the issue. The tests were laid down in two different cases, namely, Bozson v. Altrincham U.D.C. (1903) 1 KB 547 and Salaman v. Warner (1891) 1QB 734. At page 548 of Bozson’s case, Lord Alverstone, C. J. stated the test thus:-
“It seems to me that the real test for determining this question ought to be this: Does the judgment or order made, finally dispose of the rights of the parties, if it does, then I think it ought to be treated as a final order but if it does not, it is then, in my opinion, an interlocutory order.
In Salaman v. Warner (supra) at page 735, Lord Esher, M. R. formulated the test in these terms:-
“Taking into consideration all the consequences that would arise from deciding in one way or the other respectively, I think the better conclusion is that the definition which I gave in Standard Discount Co. v. La Grange is the right test for determining whether an order for the purpose of giving notice of appeal under the rules is final or not. The question must depend on what would be the result of the decision of the divisional court; assuming it to be given in favour of either of the parties. If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute; I think that for the purposes of these rules, it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory.”
It is generally agreed, and I share in that opinion, that while the test in Bozson’s case takes a look at or considers the nature of the order made, the test in Salaman’ s case looks at the nature of the proceedings in which the order in question is made. These tests are therefore not the same.
From decided authorities in Nigeria it is very clear that the Supreme Court has consistently preferred and applied” the nature of the order made” test in our courts see – Omonuwa v. Oshodin (1985) 2 NWLR (Pt.10) 924 at 937 per Karibi-Whyte, JSC (as he then was); Ebokam v. Ekwenibe & Sons Trading Co. Ltd. (1999) 10 NWLR (Pt. 622) 242 at 251 per Kalgo, JSC; Blay v.Solomon (1947) 12 WACA 175; Ude v. Agu (1961) 1 SCNLR 98; (1961) All NLR 65; Chike Obi v. DPP (No.2) (1961) All NLR 458 (1961) 2 SCNLR 164; Adegbenro v. Akintola (1962) 1 All NLR 442; Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622; Akinsanya v. UBA Ltd. (1986) 4 NWLR (Pt. 35) 273; Akaniya Oguntimehin v. Omotoye (1957) 2 FSC 56, (1957) SCNLR 187; Afuwape & Ors. v. Shodipe & Ors (1957) 2 FSC 62; (1957) SCNLR 265; Alaye of Effon v. Fasan (1958) 3 FSC 68, (1958) SCNLR 171; Ojora & Ors v. Odunsi (1964) NMLR 12; Falola v. UBN Plc. (2005) 7 NWLR (Pt.924) 405 at 418 – 419 etc.
From the decided authorities on the matter in Nigeria, it is clear that in order to determine whether a decision is final or interlocutory, the decision must relate to the subject matter in dispute between the parties and not the function of the court making the order. The proper test is therefore the one that does not look at the nature of the proceedings resulting in the order in question. In other words, it is immaterial that the order made resulted from an interlocutory application or proceeding. The nature of the order made will determine whether the order has finally determined the rights of the parties in the proceedings in issue appealed against and not whether the rights of the parties in the substantive action have been fully disposed of see Igunbor v. Afolabi (2001) 11 NWLR (Pt. 723) 148.
The law on the matter being what it is I have no hesitation in holding that where the decision of the court under scrutiny clearly and completely disposes of all the rights of the parties to the action, that decision is final. On the other hand where the decision only disposes of an issue or issues in the case thereby leaving the parties to go back to claim other rights in the court, the decision is interlocutory. From the submission of both counsel reproduced earlier in this judgment, it is clear that they also agree with this proposition of the law as being the applicable principles in the attempt at resolving the issue under consideration in this appeal.
In the instant case, the appellant claimed the sum of N500,000.00 as damages for libel against the respondent jointly and severally with the 2nd – 5th defendants who are not parties to this appeal. In addition to the damages, appellant also claimed an order that the respondent and the others retract the allegedly offensive publication by the agencies of Radio, Television and Newspapers.
In giving judgment in default to the appellant, the learned trial Judge decided as follows:-
“There will therefore be judgment for the plaintiff against the 1st defendant in the sum of N500,000.00 The second arm of the plaintiff’s prayer for an order of court that the 1st defendant retracts the said publication by the agencies of radio, television and newspaper fails as the plaintiff is seeking to eat his cake and have it.”
It must be noted that the respondent did present an application before the trial court praying for an order, inter alia, setting aside the said judgment in default of pleadings which application was refused by that court in a reserved ruling. It must also be noted that there is evidence on record that the appellant did apply to execute the judgment in default of pleading.
In my considered opinion a final decision can be said to be one which puts an end to the action by deciding whether the plaintiff is or is not entitled to the reliefs he claims thereby leaving nothing for further action by the trial court except proceedings in respect of enforcement of that decision. Simply put, it is the application of the nature of the order test earlier enunciated in this judgment.
I am of the firm view that the judgment in default of pleadings reproduced supra, as far as the appellant and the respondent are concerned, has completely put an end to the action between them and therefore qualifies as a final judgment particularly as it has disposed of the rights of the parties thereto i.e. appellant and the respondent. I am also of the view that the finality of that decision is not in doubt, notwithstanding the fact that the appellant’s case against the 2nd-5th defendants still subsists at the trial court: the parties whose rights in the action were disposed of in the judgment in issue being the appellant and respondent. These are the material and relevant parties for the purpose of the proceedings leading to the judgment in issue. So I hold the view that the trial Judge did not have to deal with all the claims including those involving the 2nd -5th defendants before the judgment in question is regarded as a final judgment. To hold otherwise, in my considered view, is to adopt the test of the nature of the proceedings in which the order is made which as I had held earlier is contrary to the decided authorities by the Supreme Court, some of which had earlier been reproduced in this judgment.
Having come to the conclusion that the decision of the trial court in issue is a final one as opposed to an interlocutory decision as canvassed by learned counsel for the appellant, it follows that the respondent did not need the leave of either the trial court or the Court of Appeal before appealing against same as it is the law that an appellant appeals as of right against the final decision of a court of first instance.
In such a situation it becomes immaterial or irrelevant that a ground of appeal against such a final decision is of law, facts or mixed law and facts, see section 220(1) of the Constitution of the Federal Republic of Nigeria 1979 (hereinafter referred to as the 1979 Constitution).
However since this is the final Court of Appeal in the land I will proceed to consider the sub-issue to issue No.1 to wit: Whether ground 2 of this ground of appeal before the Court of Appeal is a ground of law alone or of mixed law and fact for which leave is required.
Now section 220(1)(a) and (b) of the 1979 Constitution provide as follows:-
220(1) An appeal shall lie from decisions of a High Court to the Court of Appeal as of right in the following cases:-
(a)final decisions in any civil or criminal proceedings before the High Court sitting at first instance;
(b)where the ground of appeal involves questions of law alone, decision in any civil or criminal proceedings.”
On the other hand, section 221(1) of the said 1979 Constitution provides thus:-
(1)Subject to the provisions of section 220 of this Constitution, an appeal shall lie from decisions of a High Court to the Court of Appeal with the leave of that High Court or the Court of Appeal.”
Ground 2 on which the sub-issue is grounded complains as follows:
Ground 2: Error in law
“The learned trial Judge erred in law by holding that he could enter judgment in damages claimed by the respondent although the respondent gave no evidence on which the trial court could rely to assess the damages. The ground went on to provide particulars of error in law as follows:-
Particulars of error
1.The plaintiff/respondent claimed from the defendants jointly and severally the sum of N500,000.00 damages for libel as well as an order of court that the defendants retract their publication to the effect that the plaintiff was one of the nine persons who burnt and looted the Orie Emii market.
2.The respondent never gave oral or even affidavit evidence which would enable the court assess the damages the respondent should be entitled to should he succeed in his claim.
3.In the affidavit in support of the motion for judgment in default sworn to on 13/11/86 and the further affidavit the respondent never averred facts on which the court could rely to assess the damages that he would have been entitled to should he succeed. Nor did the learned trial court consider the issue (sic) damages due to the respondent. Rather the respondent who claimed N500,000.00 was awarded N500,000.00 damages for libel against the appellant and the case was then set down for hearing against the appellant and 2nd to 5th defendants. The case is now adjourned for continuation of hearing against the 2nd to 5th defendants. But in his ruling dated 4th December, 1987 the learned trial Judge held. One thing certain, however, is that the plaintiff cannot be entitled to any amount above what he has claimed in his statement of claim whether he succeeds against all the defendants or some of them.’”
Though the difficulty involved in distinguishing a ground of law from a ground of fact has always been present and recognized by the courts, the position of the legal authorities on the issue is for the court to examine thoroughly the grounds of appeal involved to see whether the grounds reveal a misunderstanding by the lower court of the law or a misapplication of the law to the facts already proved, or admitted in which case it could be a question of law, or one that would require questioning the evaluation of facts by the lower court before the application of the law, in which case, it would amount to a question of mixed law and fact – see Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484; Orakosim v. Menkiti (2001) 9 NWLR (Pt. 719) 529 at 538.
To determine the nature of the grounds of appeal in issue, in this case ground 2, it is very necessary to read the ground and particulars of error together so as to glean what the appellant’s complain about the judgment is all about.
Looking closely at ground 2 and the particulars of error supra, I agree with the learned counsel for the respondent that what the respondent challenged in that ground is the application of the law by the trial Judge to the facts that are not in dispute. It must be noted that the judgment involved in this case is one in default of pleadings, which by the provision of the rules of court the lower court has jurisdiction to entertain.
However it is trite law that in the proceedings leading to the entry of such a judgment, the defendant is deemed to have admitted the facts as pleaded in the statement of claim on the basis of which judgment in default of pleading is always entered where appropriate.
In the present case, the undisputed facts used as particulars of error are:-
(a)That the plaintiff claimed the sum of N500,000.00 jointly and severally against the 1st defendant and others for libel.
(b)That the plaintiff did not give oral evidence in support of his claim.
(c)That there was also no affidavit evidence in support of the claim.
(d)That inspite of these lapses, the trial court awarded the damages as claimed by the plaintiff without evidence.
It is very clear and I hold that the complaint of the respondent is simply that the trial Judge misapplied the law to the facts already admitted. That he failed to use his knowledge of the law to note that since the claim was for unliquidated damages for libel, there was need for evidence as the basis for assessment of the quantum of damages. I therefore hold the view that the misapplication of the law by the trial Judge as complained of in ground 2 of the grounds of appeal amounts to an error in law and therefore a ground of law alone for which by the provisions of section 220(1)(b) of the 1979 Constitution, an aggrieved party has a right of appeal without leave of court. As stated earlier in this judgment, the sub-issue is based on the assumption that the decision of the trial court was an interlocutory one and that the ground of appeal in issue is a ground of mixed law and facts in which case the appellant would have needed leave to appeal. However, as found in this judgment, the decision of the trial court involved in the appeal is a final decision for which leave to appeal is not required. Even if it were an interlocutory decision, which I do not concede, ground 2 of the grounds of appeal involves question of law alone for which no leave is required by virtue of section 220(1)(b) of the 1979 Constitution. In the circumstance, issue No.1 is hereby resolved against the appellant.
On issue No. 2 learned counsel for the appellant submitted that the lower court erred in holding that the trial Judge was in error when he entered final judgment for the respondent in respect of the claim for damages for libel without receiving evidence on the claim. That the respondent in this appeal admitted not having any defence to the action leading to the judgment in default of pleadings. That there was no contest between the parties and as such the lower court tightly entered judgment in favour of the appellant.
Submitting in effect, by way of an alternative though learned counsel never said so, learned counsel for the appellant stated that there was affidavit evidence in support of the motion for judgment, which, was not contested. That the legal position is that evidence given on oath by way of affidavit evidence is a form of evidence and ought to be given weight especially as there was no counter affidavit in this case; for this learned counsel cited and relied on Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688 at 718. Learned counsel then urged the court to resolve the issue in favour of the appellant and allow the appeal.
On his part learned counsel for the respondent submitted that though the respondent is deemed to have admitted all the facts pleaded in the statement of claim the admission does not extend to averment on damages, which is deemed traversed, unless specifically admitted, relying on Ngilari v. Mothercat Ltd. (1999) 13 NWLR (Pt. 636) 626 at 647.
That the learned counsel for the appellant failed to refer the court to the relevant paragraphs of the affidavits where attempts were made to prove the damages awarded the appellant because no such evidence exists. Learned counsel then urged that court to resolve the issue against the appellant and dismiss the appeal. I have carefully gone through the submission of both counsel and the authorities cited and relied upon in support of their contending positions.
The law is that in an action, a claim for damages is always deemed to be in issue. That being the case any allegation in pleadings that a party has suffered damages and any allegation as to the amount of damages so suffered is deemed to be traversed unless of course, specifically admitted see – Osuji v. Isiocha (1989) 3 NWLR (PUII) 623; Produce Marketing Board v. Adewunmi (1972) 11 SC III. It follows therefore that though for the purpose of a proceeding for judgment in default of pleadings the defendant, as in this case, is deemed to have admitted the facts as pleaded in the statement of claim, such implied admission does not extend to averments in respect of damages. This clearly constitutes an exception to the general rule that for the purposes of application for judgment in default of pleadings the defendant is deemed to have admitted the facts as pleaded in the statement of claim.
The question then is there being a traverse by operation of law in respect of the damages has the appellant discharged the burden of proof thereby placed on him
Both parties agree that the appellant did not give oral evidence concerning his claim for damages or at all though learned counsel for appellant has talked of affidavit evidence, which I intend to deal with presently.
Apart from the exception stated supra in relation to admission of facts in a statement of claim for the purposes of proceedings for judgment in default of pleadings, there is the specific principle of law that in a claim for unliquidated damages as in this case the plaintiff must lead evidence as to the damages and the quantum suffered by him. See Odume v. Nnachi (1964) I All NLR 329; Oke v. Aiyedun (1986) 2 NWLR (Pt. 23) 548. In Oke v. Aiyedun (supra) at 565 the position of the law on the issue is stated by this court as follows:-
“It is a principle of pleading that that which is not denied is deemed to have been admitted and if a plaintiff filed a statement of claim and the defendant failed or refused to file a statement of defence in answer thereto he, clearly, will be deemed to have admitted the statement of claim, leaving the trial court with the authority to peremptorily enter judgment for the plaintiff without hearing evidence.
An exception to that would obviously be in respect of a claim for damages, for, damages are always said to be in issue, requiring the plaintiff to prove them.
Learned counsel for the appellant has argued that there was affidavit evidence in support of the claim but as rightly pointed out by learned counsel for the respondent; no reference was made by learned counsel for the appellant to any specific paragraphs of the affidavits.
From the record, though there are affidavits in support of the application for judgment in default of pleadings, no paragraph thereof deposed to any fact relating to the claim for damages. I am very sure that that is the reason why learned counsel could not refer this court to any relevant paragraph. It is important to note that the issue has been raised both in the court of trial and the lower court thereby putting appellant on notice to refer this court to any such paragraph if any.
So the demonstrable and irresistible conclusion arising from the facts of this case is that the trial Judge did not receive any evidence either oral or in affidavit in support of the claim for damages before making the award of N500,000.00 damages in favour of the appellant and against the respondent.
The lower court was therefore right in coming to the conclusion that the trial Judge erred in law by so awarding the damages claimed and thereby set aside the judgment. In the circumstances issue No.2 is resolved against the appellant.
In conclusion the appeal is devoid of any merit and is accordingly dismissed with costs, which I assess and fix at N10,000.00 in favour of the respondent and against the appellant.
Appeal dismissed.
SC.89/2001
