Headnote and Holding:

IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 7TH DAY OF OCTOBER 2005

SC 89/2001

BETWEEN

IWUEKE ................................................................. APPELLANT

AND

IMO BROADCASTING CORPORATION .............................................. RESPONDENT

BEFORE: Umaru Atu Kalgo; Akinola Olufemi Ejiwunmi; George Adesola Oguntade; Walter Samuel Nkanu Onnoghen; Ikechi Francis Ogbuagu, JJSC

ISSUES

Whether the decision of the trial court in refusing to rescind a default judgment, was final or interlocutory?

Whether a ground of appeal is one of law, or of fact, or of mixed law and fact?

Whether the passing of judgment without having regard to evidence, was competent?

 

FACTS

The appellant as plaintiff instituted an action against the respondent and four others jointly and severally at the High Court claiming N500,000 as damages for libel and an order of court that the defendants retract the publication.

In response to the appellant's statement of claim in the libel proceedings in the trial court, the respondent, as one of five defendants sued by the appellant, failed to file its pleadings. The appellant consequently applied for judgment against the respondent. The trial court granted judgment as prayed, and the respondent then applied to the trial court for the setting aside of the default judgment. The application was refused, and the respondent appealed to the court of Appeal. That court set aside the trial court's judgment, leading to the present appeal in the Supreme Court.

The appeal was dismissed.

 

HELD

1.      On an action based on libel

For a plaintiff to succeed in libel, there must be proof in the form of evidence from a third party regarding the effect of the alleged publication on him. Libel consists in the publication by the respondent, by means of printing, writing, pictures, or the like, of a matter defamatory to the plaintiff. Per Ogbuagu, JSC at 271.

 

2.      On the need for evidence in support of a libel claim

In a libel or defamation case, there must be evidence in support of the claim for damages. Pleadings do not constitute evidence, and pleadings of a party, not referred to in evidence, are deemed abandoned. Pleadings are mere notice and can never be a substitute for evidence required in proof of the facts pleaded. The trial court had therefore erred in granting judgment in favour of the appellant without having heard actual evidence from him or the respondent. The appellant could not rely on affidavit evidence. Per Ogbuagu, JSC at 271.

 

3.      On the determination of whether a court's decision is final or not

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 does not look at the nature of the proceedings resulting in the order in question. It is therefore 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. Where the decision 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.

The decision of the trial court in this case was final in nature as it disposed of all the issues between the parties. Per Onnoghen, JSC at 255.

 

4.      On the determination of the nature of a ground of appeal

In assessing whether a ground of appeal is one of law or one of fact, or one of mixed law and fact, a court must 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. It was found that the ground of appeal in this case was one of law, and therefore no leave to appeal was required. Per Onnoghen, JSC at 255.

 

The following cases were referred to in this judgment:

Nigeria

Adegbenro v Akintola (1962) All NLR 442

Afuwwaoe & others v Shodipe & others (1957) 2 FSC 62, (1957) SC NLR 265

Agua Ltd v Ondo State Sport Council (1988) 4 NWLR (Part 91) 622

Akaniya Ogunlimehin v Omotoye (1956) 2 FSC 56

Akinsanya v U.B.A Ltd (1986) 4 NWLR (Part 35) 273

Akoh v Abuh (1988) 3 NWLR (Part 85) 696

Alhaja Adesanya v Otukwu & others (1993) 1 NWLR (Part 270) 414, (1993) 1 SCNJ 27

Aqua v Ondo State Sports Commission (1988) 4 NWLR (Part 91) 622

Blay v Solomon (1947) 12 WACA 175

Chief Nsirim v Nsirim (1990) 3 NWLR (Part 138) 285, (1990) 5 SCNJ 174

Chike Obi v DPP (No 2) (1961) All NLR 458, (1961) 2 SC NLR 164

Clement C. Ebokan v Ekwenibe & Sons Trading Co Ltd (1999) 7 SCNJ 77

Ebokam v Ekwenibe & Sons Trading Co Ltd (1999) 10 NWLR (Part 623) 242

Economides v Thomopulos & Co Ltd (1956) 1 FSC

Effon v Fasan (1958) 3 FSC 68

Ejabulor v Osha (1990) 5 NWLR (Part 148) 1

Eseigbe v Acholor & another (1993) 12 SCNJ 82

Etinosa Omoregie v Mathew Onigie & another (1990) 2 NWLR (Part 130) 29

Eze v State (1985) 3 NWLR (Part 13) 429

Ezenwosu v Ngonadi (1992) 3 NWLR (Part 228) 154

Falola v UBN Plc (2005) 7 NWLR (Part 924) 405

Gobblah v Gbeke 12 WACA 284

Hon. Osuji & another v Isiocha (1989) 3 NWLR (Part 111) 623, (1989) 6 SCNJ 227

Honika Sawmill (Nigeria) Ltd v Mary Okojie Hoff (1994) 2 SCNJ 86, (1994) 2 NWLR (Part 326) 252

Ifedorah v Ume (1988) 2 NWLR (Part 5)

Igunbor v Afolabi (2001) 11 NMLR (Part 723) 148

Igunbor v Mrs Afolabi & another (2001) 5 SCNJ 124

Kaiye'oja v Egunta (1974) 12 SC 55

Kodilenye v Odu 2 WACA 336

Magnusson v Koiki & others (1993) 12 SCNJ 114

Metal Construction (W.A.) Ltd v Migeore (1990) 1 NWLR (Part 126) 299

Ngilari v Mother Cat Ltd (1999) 13 NWLR (Part 635) 626

Nigeria Airways Ltd v Ahumadu (1991) 6 NWLR (Part 198) 492

NNSC v ESV (1990) 7 NWLR (Part 164) 526

Nwosu v Imo state Environmental Sanitation Authority (1990) 2 NWLR (Part 135) 688

Obimlami Brick & Stone (Nigeria) Ltd v ACB Ltd (1992) 3 NWLR (Part 229), 260 (1992) 3 SCNJ 1

Oduma & others v Nnachi & others (1964) 1 All NLR 324

Odutola v Chief Oderinde & 2 others (2004) 5 SCNJ 285

Ogbechi v Onochie (1986) 2 NWLR (Part 23) 484, (1986) 3 SC 54

Ojora & others v Odunsi (1964) NWLR 12

Oke v Aiyedun (1986) 1 NWLR (Part 23) 548

Orakosin v Mankiti (2001) 9 NWLR (Part 719) 529

Osuji v Isiocha (1989) 6 SC (Part 11) 159, (1989) 3 NWLR (Part III) 623

Produce Marketing Board v Adewunmi (1972) 11 SC 111

Sodipo v Lemninkainem (1985) 2 NWLR (Part 8) 547

Shell BP Petroleum Co of Nigeria Ltd v Abedi & 2 others (1974) 1 SC 2

UBA v GMBH (1989) 3 NWLR (Part 10) 374

Ude v Agu (1961) 1 SC NLR 98, (1961) All NLR 65

West Steel Worked Ltd v Iron & Steel Workers Union (1986) 2 NSCC 786

 

Foreign

Bozson v Altrincham U.D.C. (1903) 1 KB 547

Caw v Hood (1808) 1 Camp 355

Farrester v Tyrell (1893) 9 TLR 257

Foucar v Sinclair 33 LT R 318

Salaman v Warner (1891) 1 QB 734

Wilby v Elston 8 CB 142

 

The following statute was referred to in this judgment:

Nigeria

Constitution of the Federal Republic of Nigeria 1979: Ss 221(1); 220(1)

 

The following books were referred to in this judgment:

Atkins Court Forms (2ed) (1985) Vol. 32

 

Onnoghen, JSC (Delivered the Leading Judgment):- 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 CA/PH/55/88 on 28 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 4 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 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 24 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 15 December 1986 for argument at the instance of learned Counsel for the appellant.

On 15 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 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 second to fifth defendants file their statement of defence, which orders were later complied with. However, on 15 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 12 October 1987 and in a reserved ruling delivered on 4 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 December 1986 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

2       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 July 2005, 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 as damages to the plaintiff against the first 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 second to fifth 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 (Part 228) 154 at 172; Bozson v Alkincham U.D.C. (1903) IKB 547; Blay v Solomon (1947) 12 WACA 175; Ude & others v Agu (1961) 1 SC NLR 98, (1961) 1 All NLR 66 and Akinsanya v U.B.A Ltd (1986) 4 NWLR (Part 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; UBA v GMBH (1989) 3 NWLR (Part 10) 374 at 388-389; Ogbechie v Onochie (1986) 3SC 54 at 58-61; NNSC v ESV (1990) 7 NWLR (Part 164) 526 at 537 and 549; Metal Construction (W.A.) Ltd v Migeore (1990) 1 NWLR (Part 126) 299 at 311-313, and Ifedorah v Ume (1988) 2 NWLR (Part 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 first 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) 1 QB 734. At page 548 of Bozson's case, Lord Alverstone, CJ 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, MR 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 purpose of these rules, it is final. On the other hand, if their decision, if given in one way will finally dispose of the matter 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 (Part 10) 924 at 937 per Karibi-Whyte, JSC (as he then was); Ebokam v Ekwenibe & Sons Trading Co Ltd (1999) 10 NWLR (Part 623) 242 at 251 per Kalgo, JSC; Blay v Solomon (1947) 12 WACA 175; Ude v Agu (1961) 1 SC NLR 98, (1961) All NLR 65; Chike Obi v DPP (No 2) (1961) All NLR 458, (1961) 2 SC NLR 164; Adegbenro v Akintola (1962) All NLR 442; Agua Ltd v Ondo State Sport Council (1988) 4 NWLR (Part 91) 622; Akinsanya v U.B.A Ltd (1986) 4 NWLR (Part 35) 273; Akaniya Ogunlimehin v Omotoye (1956) 2 FSC 56; Afuwwaoe & others v Shodipe & others (1957) 2 FSC 62, (1957) SC NLR 265; Alaye of Effon v Fasan (1958) 3 FSC 68; Ojora & others v Odunsi (1964) NWLR 12; Falola v UBN Plc (2005) 7 NWLR (Part 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 NMLR (Part 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 as damages for libel against the respondent jointly and severally with the second-fifth 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 first defendant in the sum of N500,000. The second arm of the plaintiff's prayer for an order of court that the first 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 second-fifth 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 second-fifth 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 (herein after 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 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 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 November 1986 and the further affidavit the respondent never or 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 was awarded N500,000 damages for libel against the appellant and the case was then set down for hearing against the appellant and second to fifth defendants. The case is now adjourned for continuation of hearing against the second to fifth defendants. But in his ruling dated 4 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 recognised 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 Ogbechi v Onochie (1986) 2 NWLR (Part 23) 484; Orakosin v Mankiti (2001) 9 NWLR (Part 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 jointly and severally against the first 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 in spite 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 impliedly 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 rightly 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 (Part 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 Mother Cat Ltd (1999) 13 NWLR (Part 635) 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 Ishola (1989) 3 NWLR (Part 111) 623; Produce Marketing Board v Adewunmi (1972) 11 SC 111. It follows therefore that though for the purpose of a proceeding for judgment in default of pleadings the defendant, as in his 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 Oduma v Nnachi (1964) 1 All NLR 329; Oke v Aiyedun (1986) 1 NWLR (Part 23) 548. In Oke v Aiyedun (supra) 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." (My emphasis.)

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 trial court 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 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 in favour of the respondent and against the appellant.

 

Kalgo, JSC:- I have had the privilege of reading in advance the judgment just delivered by my learned brother, Onnoghen, JSC in this appeal. I entirely agree with him that there is no merit in the appeal, and it ought to be dismissed.

The claim by the appellant against the respondents at the trial court was joint and several, which makes every respondent distinctly and singly liable. The judgment of the learned trial Judge, Ojiako, J (as he then was) was a default judgment against the first defendant now respondent. After giving that judgment against the respondent, there is nothing more the trial court would do or is required to do in respect of the claim against the said respondent. Therefore to that extent, that judgment is final, see Akinsanya v U.B.A. Ltd (1986) 4 NWLR (Part 35) 273; Akoh v Abuh (1988) 3 NWLR (Part 85) 696; Sodipo v Lemninkainem OY (1985) 2 NWLR (Part 8) 547; Aqua v Ondo State Sports Commission (1988) 4 NWLR (Part 91) 622. There is therefore the right to appeal from that judgment to the Court of Appeal as of right, see Section 220(1)(a) of the 1979 Constitution. The ground of appeal 2 which was filed by the appellant in the Court of Appeal against the judgment was clearly a ground of law simpliciter and no leave was required to file it. Therefore the appeal in the Court of Appeal was valid and competent. This now has fully answered issue 1 of the appellant in favour of the respondent. On this ground alone, this appeal can be dismissed.

Issue 2, which the appellant wanted the court to treat as an alternative issue to issue 1 cannot be taken in the alternative, as it stands by itself and independently talked about the necessity to receive some evidence in a claim for damages for libel. However even if issue 2 is considered, there is no where on record where any evidence was received on the claim at the trial or the attention of the Court of Appeal was drawn to any such evidence on the record. And since the N500,000 damages claimed was unliquidated damages for libel, and the respondent did not specifically admit the whole amount, the judgment of the trial court for the whole amount cannot stand, see Oke v Oyedun (1986) 2 NWLR (Part 23) 548; Ejabulor v Osha (1990) 5 NWLR (Part 148) 1; Etinosa Omoregie v Mathew Onigie & another (1990) 2 NWLR (Part 130) 29. Therefore the alternative issue 2, is also resolved against the appellant in favour of the respondent.

On the whole, therefore, for the above and the more detailed reasons given by my learned brother, Onnoghen, JSC in the leading judgment, I find no merit in this appeal and I accordingly dismiss it with N10,000 costs in favour of the respondents.

 

Ejiwunmi, JSC:- This appeal stems from the judgment of the Court below, which affirmed the judgment of the trial court. Before the trial court the appellant was the plaintiff and the respondent was the first of five defendants from whom the appellant had claimed for two reliefs from them.

Following the order for pleadings, the appellant being the plaintiff, duly filed his Statement of Claim. But the respondent, the first of the five defendants sued by the appellant failed to file its pleadings. The appellant thereupon in accordance with the Rules of Court therefore applied to the trial court to have judgment against the respondent. The Court duly upheld this application and awarded judgment against the respondent in terms of the claim. Thereupon the respondent appealed to the Court below. The Court below upheld the judgment of the trial court. But then ordered that the case be remitted to the trial court for that Court to take evidence with regard to the claim in damages.

The real question that falls to be determined in this appeal is, whether the Court below was right to make that Order. That question on appeal now falls to be determined on the further question as to whether the judgment of the trial court was final. If it is not final, then that judgment could as it were be opened up to have evidence taken to perfect the judgment. But if it adjudged as a final judgment, then it is not open to admit any evidence in respect of it.

Now, it is settled law that a decision between parties to an action can be regarded as final when the determination of the Court disposes of the rights of the parties in the case, and not merely the rights in issue. Where only an issue is the subject matter of an appeal, the determination of that Court which is final on the issue before it but does not finally determine the rights of the parties in the action, is an interlocutory decision, see West Steel Works Ltd v Iron & Steel Workers Union (1986) 2 NSCC 786.

In the case on appeal, it is manifest that when the trial court acceded to the application of the appellant then plaintiff, to enter a default judgment against the respondent, the Court in responding to that application by awarding judgment in favour of the appellant in respect of the claim before it. The Court therefore decided conclusively the claim before it. In other words, the Court by its decision decided the matter finally and disposed of the rights of the parties in the case.

It follows therefore, that the judgment being final, there is no room to make such orders as were made by the Court below. In the result, I will also dismiss the appeal for the above reasons and the fuller reasons in the judgment of my learned brother, Onnoghen, JSC and I abide with the order as to costs.

 

Oguntade, JSC:- In suit No HOW/158/86 at the Owerri High Court of Imo State, the appellant was the plaintiff and the respondent was the first of five defendants. The appellant had claimed for the following:

"(a) N500,000 as damages for libel.

(b)     An order of court that the defendants retract the said publication by the agencies of Radio, Television and Newspaper."

In accordance with the Rules of Court, pleadings were ordered. The appellant who was the plaintiff duly filed his Statement of Claim. The respondent who was the first of five defendants did not file its Statement of Defence. The appellant, as authorised by the Rules of Court therefore applied for judgment in default of pleadings. Though served with appellant's application for judgment, the respondent did not react or ask for extension of time to file a defence. The trial Judge, Ojiako, J on 4 December 1987 accordingly gave judgment in appellant's favour for N500,000 damages as claimed. Dissatisfied, the respondent brought an appeal against the judgment of Ojiako, J On 28 June 1994, the Court of Appeal, Port Harcourt Division (hereinafter referred to as "the Court below") allowed the appeal. It set aside the judgment of Ojiako, J given on 4 December 1987.

The appellant has brought before us a final appeal against the judgment of the court below. It has formulated for determination in this appeal two issues, namely:-

"1.     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

2.      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."

My leaned brother, Onnoghen, JSC has in the lead judgment discussed the germane principles of law relevant to the issues raised for determination. I agree with his views on the issues. I wish however to make a few remarks as regard whether or not the judgment of the trial Judge finally disposed of the rights of the parties. This Court has in numerous cases taken the position that the test to be applied in determining whether an order of court is final or not is that stated by Lord Alverstone, CJ in Bozson v Altrincham U.D.C. (1903) 1 KB at 548. The leaned Chief Justice 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."

(See Blay v Solomon (1947) 12 WACA 175; Akinsanya v U.B.A. (1986) 4 NWLR (Part 35) 273 and Ebokam v Ekwenibe & Sons Trading Co Ltd (1999) 10 NWLR (Part 623) 242 at 251).

The court below was of the view that the trial court ought to have first taken the evidence of the appellant to enable it determine the quantum of damages before awarding the whole of the N500,000 damages claimed by the appellant. At page 170 of the record, the court below in its judgment said:

"In view of the authorities which I have cited I think the learned trial Judge was clearly 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. In the case of Nigeria Airways Ltd v Ahumadu (1991) 6 NWLR (Part 198) 492, this Court per Mohammed, JCA, (as he then was) held that the court cannot enter judgment on a claim based on a relief for payment of unliquidated damages without taking evidence for the amount of damages as may be proved and assessed."

I have no doubt that the court below in the above passage correctly stated the law and proceeding applicable in a claim for unliquidated damages where a defendant fails and or neglects to deliver a defence. Damages claimed are always to be treated as a matter in issue, which must be proved by evidence, see Oke v Aiyedun (1986) 1 NWLR (Part 23) 548. In Osuji v Isiocha (1989) 6 SC (Part 11) 159, (1989) 3 NWLR (Part III) 623 at 640, this court per Agbaje, JSC observed:-

"The law is that damages are deemed to be an issue whether special or general and whether the alleged damage is part of the cause of action or not. (See Wilby v Elston 8 CB 142; Foucar v Sinclair 33 LT R 318). So any allegation as to the amount of the damage is deemed to be traversed unless specifically admitted."

And in Atkins Court Forms (2ed) (1985) Vol. 32 the learned authors write:

"Any allegation that a party has suffered damage or as to the amount of damages is deemed to be traversed unless specifically admitted. In general therefore, no denial of damage is necessary. This applies whether the damage is general or special even where the alleged damage is not part of the cause of action."

There is no doubt that the decision of the court below appears at first sight to have thrown open the question whether or not the judgment of the trial court ought to be regarded as final. In other words, if evidence ought to have been taken before the trial court awarded N500,000 as damages and such evidence was not taken, could the judgment be regarded as final? This appears to be the issue so strongly agitated by the appellant in his brief. But it seems to me that appellant's Counsel has overlooked the fact that the duty of the court below in determining whether or not the judgment of the trial court was final was confined to taking the decision of the trial court as the full expression of its views. There is no doubt that the trial court did intend to finally determine the rights of the parties by its judgment. The decision that it was still necessary that evidence be led in proof of the damages claimed was that of the court below and not that of the trial court.

More importantly, however, is the fact that the trial Judge had fully and in accordance with the court's rules recognised the appellant's right to seek and obtain judgment following respondent's failure to deliver a defence. It was the quantum of the damages to be awarded that remained to be ascertained from the evidence of witnesses. Plaintiff/appellant's right or entitlement to the judgment was not in issue. It seems to me therefore that the judgment of the trial court, even if it was later found to be erroneous, as a judgment that ought to have been given only after evidence had been taken, was nonetheless a final judgment, since it had disposed of the rights of the parties. In coming to this conclusion, one must look at the nature of the application, which the appellant had brought to the court as the plaintiff/applicant. It was an application for judgment in default of a Statement of Defence. I do not therefore agree with appellant's argument that the judgment of the trial court was not final. That a judgment was reversed on appeal cannot be taken as proof of the fact that the judgment when given was not final.

I would also dismiss this appeal as in the lead judgment of my learned brother, Onnoghen, JSC. I award N10,000 costs in favour of the respondent against the appellant.

 

Ogbuagu, JSC:- I have had the advantage of reading before now, the lead judgment of my learned brother, Onnoghen, JSC, just delivered by him and I agree with him that there is no merit in the appeal. I note or observe with regret, that the learned Counsel for the appellant, may not have vetted the brief of argument before it was signed and filed as there are some irritating spelling, typographical and grammatical errors and a repetition therein. See his Nos. 2.5, 2.7, 2.8, 4.6, 4.7, page 10 - first sentence and 6.1. This with respect is not right.

However, by way of emphasis, I wish to make a few contributions. The appellant in his brief of argument, formulated the issues thus;

"1.     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

2.      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 of damages for libel without receiving evidence on that claim?"

From the said brief, Issue 2, with respect, could not be in the alternative having regard firstly, to Grounds 3 and 4 of the Notice and Grounds of Appeal from which the said issue was distilled. Secondly, in paragraph No 5, of the brief, the following appear: "Issue No 2 under Grounds 3 and 4 of The Grounds of Appeal". Then, under 5.1 - "the second issue", appears as formulated herein above. Indeed or lastly, the said issue for determination, is numbered 2.

In other words, if the second issue is in the alternative, then, there is only one lone issue for determination. It is after the consideration of the lone issue, that the Court may/will, consider the alternative issue depending on the result of the decision in the lone issue. What I am saying therefore, is that having regard to the argument proffered in paragraph 5.1 of the brief and the inferences the appellant wants this Court to draw under paragraph 5.6 wherein the appellant talks about the "arguments and submission covering the two issues for determination", I am not in doubt that the appellant has formulated two (2) Issues for determination.

The crux of the appeal to me, is the determination of the said Issue 2 of the appellant of which the respondent adopted. After dealing with this issue, then it will be clear what the answer to the first arm of Issue 1 will be.

Claim (a) of the appellant, is for the sum of half a million naira as damages for an alleged libel. For a plaintiff to succeed in libel, there must be proof by evidence, of a third party of the effect of the alleged publication on him i.e. the reaction of a third party to the publication. Afterwards, libel consists in the publication by the respondent, by means of printing, writing, pictures, or the like signs, of a matter defamatory to the plaintiff, see Caw v Hood (1808) 1 Camp 355. Thus, reading out a defamatory document to a third party, is the publication of a libel, see Farrester v Tyrell (1893) 9 TLR 257.

It must be stressed and this is settled, that it is not necessary for a plaintiff to prove publication, see Economides v Thomopulos & Co Ltd (1956) 1 FSC where the defendant has admitted it. Also settled, is that averment on damages is deemed traversed unless specifically admitted, see Ngilari v Mothercat Ltd (1999) 13 NWLR (Part 635) 626 at 647 cited and relied on by the learned Counsel for the respondent (it is also reported in (1999) 12 SCNJ 101) - per Onu, JSC (a case in Negligence) citing the case of Produce Marketing Board v A.O. Adewunmi (1972) 11 SC 111 at 124.

It need be pointed out and this is also settled, that a claim for damages, is always to be deemed to be in issue. (See Hon. Osuji & another v Isiocha (1989) 3 NWLR (Part 111) 623, (1989) 6 SCNJ 227). This is why as noted hereinabove, it is not necessary for a plaintiff to prove publication, where the defendant, has admitted it, see Economides v Thomopulos & Co Ltd (supra).

Compare the decision in the case of Ajakaiye v Okandeji & others (1973) 1 SC 92 where it was held that an admission in pleadings of printing and publishing, did not of itself, prove publication of libel.

It is settled that what is important in a libel or defamation as I earlier stated in this judgment, is the re-action of a third party, to the publication complained of. It is not what the plaintiff thinks about himself, but rather, what a third party thinks of the plaintiff as regards his reputation. (See Chief Nsirim v Nsirim (1990) 3 NWLR (Part 138) 285 at 289, (1990) 5 SCNJ 174 at 184) - per Belgore, JSC. Therefore, a person's reputation, is not based on the good opinion he has of himself, but the estimation in which others hold him.

I will pause here to state, that the fact that the respondent did not file a Statement of Defence, is of no consequence. Firstly, a plaintiff relies on the strength of his own case. (See Kodilenye v Odu 2 WACA 336 at 357; Gobblah v Gbeke 12 WACA 284; Kaiye'oja v Egunta (1974) 12 SC 55 and Alhaja Adesanya v Otukwu & others (1993) 1 NWLR (Part 270) 414, (1993) 1 SCNJ 27 and many others).

I have gone this far, in order to buttress the fact, that in a libel or defamation case, there must be evidence in support of the claim for damages. This is so because and this is settled, that pleadings do not constitute evidence. (See Obimlami Brick & Stone (Nigeria) Ltd v ACB Ltd (1992) 3 NWLR (Part 229) 260 at 293, (1992) 3 SCNJ 1; Eseigbe v Acholor & another (1993) 12 SCNJ 82; Magnusson v Koiki & others (1993) 12 SCNJ 114 at 124 - per Kutigi, JSC). This is why, pleadings of a party not referred to in evidence, are deemed abandoned, see Olarenwaju v Bamigboye (1997) 3 NWLR (Part 60) 358 at 359. Pleadings are mere notice and can never be a substitute for evidence required in proof of the facts pleaded, see Shell BP Petroleum Co of Nigeria Ltd v Abedi & 2 others (1974) 1 SC 2 and Honika Sawmill (Nigeria) Ltd v Mary Okojie Hoff (1994) 2 SCNJ 86, (1994) 2 NWLR (Part 326) 252 at 260 and many others.

So, when the trial Judge proceeded to enter judgment for the appellant without any evidence from him or any other witness in support of either the pleadings or the claim for damages in the Statement of Claim, the lower Court, on the decided authorities, was perfectly in order, to have set aside the said judgment. I so hold. Any reference by the appellant to evidence by affidavit and further affidavit and reliance on them by him, with respect, is completely misconceived.

Afterwards, a claim by Writ of Summons followed by a Statement of Claim, is not proved or established by affidavit evidence and in any case, not in the instant case. What the court looks at, is the Statement of Claim and the evidence proffered in support. Certainly not affidavit evidence. The appellant from the particulars of error in Ground 3 of the Grounds of Appeal, conceded that the trial court, relied on affidavit evidence and not on the Statement of Claim.

Therefore, if a plaintiff failed to prove his case as required by law in a libel case as in the instant case, his said

claim or claims will fail. He is not given a second chance to have a bite at the cherry. Having set aside the said judgment as the procedure to establish a case of libel, was not followed, the lower court, with respect, had no respect, had no option, other than to allow the appeal. Particulars 3 in Ground 4 of the Notice of Appeal, cannot be true. Since the learned trial Judge, did not receive evidence in proof of the alleged libel, the lower court was justified and right, in holding that the trial court was in error to have entered judgment for the appellant. This is also because, as noted in the case of Oduma & others v Nnachi & others (1964) 1 All NLR 324 at 328 (which was a case in trespass), Idigbe, JSC stated inter alia, thus: ". . . A claim for damages does not become one for 'liquidated damages' merely because a specific amount of money is claimed."

The learned Jurist referred to Odgers on The Common Law (1927) (3ed) Vol. 2 page 654 where the following appears:

"Whenever the amount to which the plaintiff is entitled can be 'ascertained by calculation or fixed by any scale or other positive data' it is said to be Liquidated or 'made clear'. But when the amount to be recovered depends on all the circumstances of the case and on the conduct of the parties and is fixed by opinion or by an estimate, the damages are said to be unliquidated".

The claim of the appellant, is for unliquidated damages. The lower Court set aside the judgment on the ground that evidence in support, was a must. See also the case of Nigerian Airways Ltd v Ahumadu (1991) 6 NWLR (Part 198) 492 also referred to and relied on by the lower court.

The determination of this issue, in my respectful view, puts to rest, the complaint in this appeal. But if I may, in respect of the first arm of Issue 1, certainly, the trial court, having entered judgment for the whole/entire amount claimed by the appellant as damages and refusing the second claim, and having dismissed/refused the application of the respondent, to set aside the said judgment, with profound humility, it goes beyond any controversy, that the said judgment, is/was final. For settled Test, see Clement C. Ebokan v Ekwenibe & Sons Trading Co Ltd (1999) 7 SCNJ 77 at 85, 86 - per Kalgo, JSC, citing several cases therein and at page 83 - per Onu, JSC; (1999) 10 NWLR (Part 623) 242 and Igunbor v Mrs Afolabi & another (2001) 5 SCNJ 124 at 141 - per Karibi-Whyte, JSC. See also recently, Odutola v Chief Oderinde & 2 others (2004) 5 SCNJ 285 at 290-291 - Kutigi, JSC.

If this is the position or fact, what will be the usefulness of the second to fifth defendants, filing their own Statement of Defence? I or one may ask. Surely, it would have been an exercise in futility or to say the least, an academic exercise.

This is why, the "Conclusion" of the appellant under his paragraph 6.1 of the brief, with respect appears, funny and amusing to me. He urges the Court to set aside the judgment of the lower court "and to restore the Ruling and Judgment of the trial court dated 4 December 1987 and 15 December 1986 respectively".

But in his paragraph 7.1 of the brief, the reason for the above conclusion is:

"The Judgment of the learned trial Judge was not final having not finally disposed of the rights of the parties".

Which parties? I or one may ask. If it means repeating myself, this is in spite of the fact that the appellant had been granted the entire amount of half a million naira he claimed and the refusal of his other claim/claims. The attempt by the respondent, to have the said judgment set aside, was refused by the learned trial Judge.

It is from the foregoing and the fuller reasoning and conclusion reached in the said lead Judgment of my learned brother, Onnoghen, JSC, that I too, dismiss the appeal.

I abide by the consequential order in respect of costs.

Appeal dismissed.