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.