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In The Supreme Court of Nigeria
On Friday, the 9th day of January 1990


S.C. 21/1987

 

Before Their Lordships

 

 

 

Mohammed Bello

......

Chief Justice of Nigeria

Andrews Otutu Obaseki

......

Justice, Supreme Court

Kayode Eso

......

Justice, Supreme Court

Augustine Nnamani

......

Justice, Supreme Court

Muhammadu Lawal Uwais

......

Justice, Supreme Court
Saidu Kawu

......

Justice, Supreme Court

Abdul Ganiyu Olatunji Agbaje

......

Justice, Supreme Court

  

 

Between

 

 

Chief F. R. A. Williams

.......

Applicant

 

And

 

Daily Times of Nigeria Ltd

.......

Respondent

   

 

Judgment Of The Court

Delivered by

Kayode Eso. J.S.C.

 

 

This is a well argued appeal. We had the advantage of two top Senior Advocates (though one of them was a party to the action and therefore he appeared in person) excellent briefs and excellent oral submissions. Again two very important issues have been raised to wit:-

 

(1)    whether or not a 'Respondents Notice" and not a substantive "Notice of Cross Appeal" is the proper procedure for contending that a finding or determination which is crucial or fundamental to the Respondent's case be reversed; and

 

(2)    in regard to the assessment of aggravated damages, what should the Court take or not take into consideration?

 

It is however necessary to trace the history of the case up to this court. I rely on what I consider to be a concise and correct assemblage of the facts by the Court of Appeal per Adenekan Ademola, J.C.A.:

 

Chief F.R.A. Williams, S.A.N., commenced the action in the Lagos High Court where he claimed the sum of N250,000.00 as exemplary damages; or in the alternative N100,000.00 as aggravated damages for libel which he claimed was contained in a newspaper publication known as the "Evening News" of Monday 19, 1979. The newspaper was published by the Defendant Company - the Daily Times of Nigeria Ltd.

 

The article complained of was duly pleaded and it reads as follows-

 

One of the country's legal luminaries, Chief Rotimi Williams, (popularly known as F.R.A. Williams), has been sued for N5 million by the children of a deceased client. Thirteen children of late Michael Oredolapo Onayemi, nine of them infants, are claiming the amount from Chief Williams for "losing or otherwise failing to make available the February 1978 Will of the deceased." "Or in not seeing that the February 1978 draft Will of the deceased was duly executed between February

1978 when the Chief completed amending and causing the same to be typed out and 12th May 1978 when the deceased died." The children are also asking that Chief Williams be ordered to "surrender to the court the true last Will of the deceased made in February 1978 now in his custody or power and or copies thereof, and that the same pronounced for in solemn form.

 

Three other co-executors of the Will are joined by the children in their demand that probate of the pretended last Will of the deceased dated 27th October, 1975, propounded by the defendants be revoked and pronounced against.

 

Trustees: The three others are Mr. Vincent A.O. Ogunba, Mrs. Olaronke Adesola Agymann-Bempah and Mrs. Yetunde Alusi. The two women are children of the deceased. The children are also asking for a declaration that the defendants are trustees for the intended beneficiaries and to the extent provided for in the draft Will by the deceased in February 1978 after the Chief's legal superintendence and which Will he had negligently and or otherwise prevented the deceased from executing.

 

The banner headline of the Newspaper on its first page read in very bold capital letters-

 

F.R.A. WILLIAMS SUED FOR N5m

 

followed, in less bold letters by the words

 

Tussle over the Will of a father.

 

The picture of the plaintiff was displayed by the side of the publication.

 

The defendants put up a plea of privilege which was rejected by the trial court on the grounds that what was published was not a report of the proceedings that took place in open court but was of the writ of summons and indeed published by the Newspaper even before that writ was served on the plaintiff!

 

The trial court found the defendant liable in libel. Beckley, J., who tried the case did not accept that the libel attracted exemplary damages but he awarded aggravated damages of

N100.000.00. The Judge added-

 

In the present case the plaintiff on seeing the publication, wrote the defendant as per Exhibit B asking for an apology, and the defendant replied as per Exhibit C. That was the only letter from the defendant before the plaintiff took action. The defendant never apologised. The defendant did not even publish the end of the suit to show that the plaintiff was eventually vindicated, but instead published other further banner headlines about the plaintiff as follows:

 

(1)    Evening Times March 1st 1980

        Court Awards N100. Rotimi to pay costs. The full picture of the plaintiff appeared in the front page of the Newspaper. N100. Rotimi to pay costs. The full picture of the plaintiff appeared in the front page of the Newspaper.

 

(2)    Evening Times, Friday, March 14th August 1980

        Case put off as Rotimi stay away in the front page of the Evening Times. From the subsequent publications by the same paper, it appears to me that the intention of the Newspaper in this particular case was not to inform the public but to ridicule the plaintiff."

 

Ex. C, which was referred to reads:-

 

Chief  F.R.A. Williams

Chief  Rotimi Williams' Chambers,

208/212 Broad Street, Lagos.

 

Dear Sir,

 

Your letter Ref. No. FRAW/pca dated 19th November, 1979 has just been passed to the Legal Department by the addressee, the editor of Evening Times.

 

We have instantly started to investigate the circumstances leading to the publication.

 

It is only after obtaining some result that we can properly advise the editor in terms of the specific stipulations contained in your letter.

 

We hope you will offer us co-operation by exercising patience.

 

You will be hearing again from us so on.

 

 

Yours faithfully,

For THE DAILY TIMES OF NIG. LTD.

Eke Oduba

Legal Officer

 

The defendant appealed to the Court of Appeal on the issues of liability by relying on the defence of privilege. After a most learned treatise the court (as per Adenekan Ademola, J.C.A.) dismissed the appeal on this ground. However on the issue of damages the court held

 

It has not been established by the appellant in his argument that the learned Judge proceeded on wrong principle in the award of damages. What was taken into consideration which ought not to be taken into consideration were the two other publications of the same paper about the respondent which have not been proved to be false and had been said by the learned Judge to have been done to ridicule the respondent. The inference to ridicule the Respondent by the publications should not be readily and necessarily be drawn. Besides, I am of the view that to grant what was wholly claimed in this suit as exemplary - unliquidated damages was not in step with the practice of the court. In the case of Lardner v. The Sketch Publishing Company (supra) which was used by the learned Judge in the present case and which was the case in which imputation of dishonesty was made against a senior member of the legal profession in the conduct of his work, the court, (the same High Court of Lagos State) made an award of N50,000.00. Having regard to the trend of inflation, I think an award of say N60,000.00 at the time the judgment was given would in my view be adequate compensation to the respondent.

 

Nnaemeka-Agu, J.C.A. (as he then was) who concurred with Adenekan Ademola, J.C.A., on the issue of liability said nothing about damages while Owolabi Kolawole, J.C.A., dismissed the appeal on liability and also agreed "that the damages of N100,000.00 awarded be reduced to N60,000.00.

 

Thus, the Court of Appeal reduced the award of N100,000.00 to N60,000.00 on the arguments of the court aforesaid. The plaintiff has however appealed against this decision to this court. In this case, because reference will be made to the grounds relied upon by the appellant, it is necessary, and I do believe it is only when it is so necessary that the grounds of appeal should be copied out in a judgment, to set out the grounds of appeal relied upon by the appellant and also the subsequent reaction by the respondent's counsel.

 

Chief Williams' grounds of appeal read-

 

(i)    The court below erred and misdirected itself in law in holding as follows:

 

        what was taken into consideration which ought not to be taken into consideration were the two other publications of the same paper about the respondent which have not been proved to be false and had been said by the learned Judge to have been done to ridicule the respondent. The inference to ridicule the respondent by the publication should not readily and necessarily be drawn.

 

Particulars of Error and Misdirection

 

(a)      Each of the two publications contained a repetition of the libel or the   substance thereof.   Each of the two publications contained a repetition of the libel or the substance thereof.

 

(b)       Accordingly, at least to the extent of such repetition, the judgment in favour of the plaintiff on the issue of liability of the defendant for libel is, in law, conclusive proof of the falsity of the subsequent publications and also of the tendency of the said publications to bring the plaintiff to public ridicule.

 

(c)       There is in any event no burden on the plaintiff to prove that the subsequent publications were inaccurate.

 

(d)       The display of the said articles and the prominence given to the plaintiff both by words and picture was before the learned trial Judge and did not appear to have been considered by the Court of Appeal.

 

(ii)    The court below erred in law in holding:

 

I am of the view that to grant what was wholly claimed in this suit as exemplary - unliquidated damages was not in step with the practice of the court.

 

Particulars of Error

 

There is no rule of law or of practice which states that what a court can award as unliquidated damages must be less than what is claimed by the party in whose favour such award is made.

 

(iii)    The court below erred in law in treating the award made by Ajose-Adeogun, J., in Lardner V. The Sketch Publishing Co. as the standard award for ascertaining the quantum of damages which it would be reasonable to award to the plaintiff.

 

Now, on 2nd October 1986, that is a few weeks after the filing of the Notice of Appeal by Chief Williams, Chief G.O.K. Ajayi, S.A.N., filed the following Notice:

 

Notice by Respondent of Intention to Contend that the Decision of the Court Below be Varied Order 8 Rule 3(1) Supreme Court Rules 1985

 

TAKE NOTICE that upon the hearings of the above appeal the Respondent herein intends to contend that the decision of the Court below dated 27th of May, 1986 shall be varied as follows:-

 

That the damages of N60,000.00 awarded to the Plaintiff be further substantially reduced.

 

AND TAKE NOTICE that the grounds on which the Respondent intends to rely are as follows:-

 

(1)    In awarding the plaintiff damages of N60,000.00 the court below failed to give effect to its decision that the plaintiff was not entitled to an award of aggravated damages;

 

(2)    The amount of N60,000.00 damages is excessive and amounts to not just aggravated damages, but to exemplary damages.

 

Dated this 30th day of September, 1986.

(Sgd.) for: G.O.K. AJAYI & CO.,

Respondent's Legal Practitioners,

Unity House (14th Floor),

37, Marina, Lagos.

 

It is to be emphasised that this Notice was given in pursuance of Order 8 Rule 3(1), Supreme Court Rules 1985. The Rule reads as follows-

 

3      (1)    A respondent who, not having appealed from the decision of the court below, desires to contend on the appeal that the decision of that court should be varied, either in any event or in part, must give notice to that effect specifying the grounds of that contention and the precise form of the order  which he proposes to ask the court to make, or to make in that event, as the case may be.

 

(2)    A respondent who desires to contend on the appeal that the decision of the court below should be affirmed on grounds other than those relied upon by that court must give notice to that effect specifying the grounds of that contention.

 

(3)    Except with the leave of the court, a respondent shall not be entitled on the hearing of the appeal to contend that the decision of the court below should be varied upon grounds not specified in a notice given under this rule, to apply for any relief not so specified or to support the decision of the court below upon any grounds not relied upon by that court or specified in such a notice.

 

(4)    Any notice given by a respondent under this rule (in this Order referred to as a "respondent's notice") must be served on the appellant, and on all parties to the proceedings in the court below who are directly affected by the contentions of the respondent, and must be served-

 

(a)     in the case of an appeal against an interlocutory order, within 15 days, and

 

(b)    in any other case, within one month, after the service of the notice of appeal on the respondent.

 

(5)    A party by whom a respondent's notice is given shall file with the Registrar of the court below ten copies of such notice of which one shall be included in the record, and the other copies provided for the use of the Judges.

 

(6)    Omission to give such notice shall not diminish any powers of the court but may in the discretion of the court be a ground for postponement or adjournment of the appeal upon such terms as to costs or otherwise as may be just.

 

The defendant's counsel, Chief G.O.K. Ajayi, S.A.N., filed no notice of appeal or cross appeal.

 

The appellant, Chief Williams, objected to this Notice and followed his objection with a Brief. Therein he stated the Questions for Determination as follows

 

In what circumstances, if any, can a defendant who succeeded in persuading the Court of Appeal to reduce the amount of damages awarded by the High Court in favour of the plaintiff, be permitted to argue before the Supreme Court for an order for further reduction if he files no Notice of Appeal but relies only on a Respondent's Notice filed pursuant to Order 8 rule 3 of the Supreme Court Rules, 1985. (Italics supplied by me for effect)

 

And the Chief then argued in his Brief-

 

Complaints Regarding Award of Damages: It is well settled that a party is entitled to appeal if he complains that the award of damages is too high or too low. It is inconceivable that if a plaintiff appeals against an award by the High Court on the ground that damages awarded are too low, all that a defendant who intends to argue in the appeal that the award is too high need to do is to file a respondent's notice. It is conceded that he may do no more than that if his complaint is limited to arithmetical errors in the computation of the quantum of damages. But if he wants to contend that the decision of the court is erroneous in law, it is submitted that he can only do so by filing a substantive appeal. Since an appeal before the Court of Appeal is by way of rehearing, it is submitted that the same principle will apply in respect of appeals on quantum of damages from that court to the Supreme Court. (Italics supplied again)

 

Chief Williams then directed the attention of this court to its decisions in L.C.C. V. Ajayi (1970)1 All N.L.R. 291 Oyekan V. B.P. Nig. Ltd. (1972)1 All N.L.R. (Pt.1) 45 at 47-8 Adekeye V. Akin-Olugbade (1987) 3 NWLR (Pt.60) 214 at 22-227. He then submitted (again in the Brief) that it was sufficient to say that for the purpose of the objection all the cases established the proposition that in every case, where a party desires the Supreme Court to reverse a determination of law, or of mixed law and fact, or of fact, which form the substratum of the case, a Notice of appeal, rather than a respondent's notice, will enable him to argue the point before this Court. Plaintiff then buttressed this submission by a further reference to another decision of this Court, though obiter, that is, in Oguma V. International Bank for West Africa Ltd. (1988)1 NWLR (Pt.73) 658.

 

Chief G.O.K. Ajayi also filed a very full brief in reply to this objection. He put his grounds as follows-

 

Firstly, that the variation sought by the Respondent to the judgment of the Court of Appeal by the Respondent's Notice filed herein falls within the ratio decidendi of the decision of the Supreme Court in L.C.C. v. Ajayi (1970)1 Ml N.L.R. 291 because the same would not involve the reversal of the decision of the Court of Appeal that the damages awarded by the High Court be reduced. The variation sought accepts the Court of Appeal's determination in principle but merely seeks to contend that the Court of Appeal had not in reducing the damages, gone far enough and that the damages now awarded by the Court of Appeal be further reduced.

 

Secondly, the respondent says that even if the variation sought by the respondent does not fall within the ratio decidendi of L.C.C. v. Ajayi and the same were held to amount to a reversal of a determination of the court below, it will then contend that it is still not bound to file a substantive cross-appeal because-

 

(i)    a party dissatisfied with any part of a judgment of a court may challenge the same by filing a Respondent's Notice notwithstanding that he seeks a reversal of the whole or a part of the judgment on a crucial or fundamental issue except only in the following cases (where he must file a cross-appeal)

 

(a)    where he seeks to challenge the decision of court below a cause of action separate and distinct from that appealed against by the appellant;

 

(b)   where there are several parties and the respondent wishes to challenge the order of the court on a point in which the appellant has no interest but other parties are interested;

 

(c)   where the respondent intends to contest the jurisdiction of the court below.

 

(ii)    The Supreme Court, in the case of L.C.C. v. Aja)'i (1970)1 All N.L.R. 291 (usually cited as authority in support), did not in fact, decide that a party seeking the reversal of a finding or determination which is crucial and fundamental to a case can only do so by filing substantive cross-appeal.

 

(iii)    The Supreme Court decisions in:

 

(a)    L.C.C. v. Ogundemuren (a)    L.C.C. v. Ogundemuren Suit No. SC/335/69 dated 26th November, 1971.

 

(b)    Oyekan v. B.P. Nigeria Ltd. (b)    Oyekan v. B.P. Nigeria Ltd. (1972)1 All N.L.R. (Pt.l) 47.

 

(c)    B.E.O.O. IND. (Nig.) Ltd. v. Maduakoh (1975)12 SC. 91.

 

(d)    African Continental Seaways Ltd. v. Nigerian Dredging Road and General Works Ltd. (1977) 5 SC. 235.

 

(e)    Enang v. Adu (1981)11-12 SC.25; Dumbo v. Idugboe (1983) 1 SC. N.L.R. 29.

 

(f)     Eliochin v. Mbadiwe (1986)1 N.W.L.R. (Pt.14) 47

 

(g)    Adekeye v. Chief O.B. Akin-O/ugbade (1987) 6 SC. 268, and

 

(h)    Oguma Associated Co. Nig. Ltd. ".!BWA (1988)1 N.W.L.R. (Pt. 73) 658.

 

(i)    are inconsistent with the earlier decision of the Supreme Court in L.C.C. V. Ajayi,

 

(ii)     were wrongly decided,

 

(iii)    ought to be overruled by the Supreme Court.

 

This of course called for the setting up of the full court which sat on 10th October, 1989. Now, on that day, both Chief Williams and Chief Ajayi added oral arguments to the Brief which I have earlier referred to.

 

Chief F.R.A. Williams on the objection submitted that what the court had to do was to construe Order 8 Rule 3 of the 1985 Rules in the context of Order 8 itself. The Chief said that Rule 3 should be looked at from the background of Rule 2. The interpretation to be placed on Rule 3 should not detract from Rule 2. He however conceded that in the ordinary English language, and applying ordinary words a "Respondents Notice" to vary ought to include what one has asked the court to do by Notice of Appeal as the word "vary" is wide enough to comprehend this.

 

But the question is: which of the two meanings would be more appropriate in the context of Order 8? Chief Williams sought assistance in the U.K. Rules, Order 59 Rule 6.

 

He compared the 1979 Edition with the 1988 Edition. The latter carried an amendment by Statutory Instrument, 1979, No.35. There was added an additional item (c) which enabled cross appeal.

 

Chief G.O.K. Ajayi for the Daily Times in addition to his Brief, submitted that L.C.C. V. Ajayi was correctly decided. As a matter of law, the Supreme Court, at the time of the decision in L.C.C.v. Ajayi was obliged to follow the practice and procedure in the United Kingdom. That was the basis of his submission that L.C.C. v. Ogundemuren was wrongly decided.

 

I think, having regard to the various and potent submissions made by both the plaintiff and the learned counsel for the Daily Times, it is necessary to examine, in close detail, the decisions of this court in L.C.C. V. Ajayi and subsequent decisions. More importantly, it is necessary to examine the language and intendment of Order 8 Rule 3 itself.

 

I also believe it would be necessary to decide this issue of "Notice to Vary" or "Respondents Notice of Cross Appeal" before dealing with the main appeal in regard to damages. In other words, the position of the defendant, vis-a-vis the appeal should first be determined before the determination of the main appeal. What happened in L.C.C. v. Ajayi?

 

The property of Emmanuel Ayodeji Ajayi at 23 Catholic Mission Street was acquired by the L.C.C. and the issue of compensation payable thereupon was put before the Lagos High Court which determined the amount payable at 13,640.00. The Lagos City Council appealed against the decision and "after receiving the notice of appeal, the claimant, or rather counsel on his behalf, filed a notice pursuant to the provisions of the Supreme Court Rules, Order 7, rule 13(1) requesting that the decision of the court below dated 6th day of September, 1965 should be varied and averring in effect that if the learned trial Judge who heard the summons had not erred in law he would have assessed the monetary compensation at 31,415." Coker, J.S.C. (delivering the judgment of the Supreme Court) held as a preliminary point that-

 

A perusal of the notice filed by the respondents makes it plain that like the present appellants the respondent is as well dissatisfied with the terms of the judgment and will like the judgment in the case to be hi the terms suggested in his notice. The point therefore that arose for determination on the preliminary objection is whether the provisions of Order 7, rule 13(J) are designed to meet a citation which is tantamount to a complete reversal of the judgment already given or the employment of the rule is circumscribed within the bounds of what is strictly speaking a mere variation." (Italics supplied for effect)

 

It is necessary to examine the provision of Order 7 Rule 13 of the Supreme Court Rules LN 96 of 1961 upon which the decision in Ajayi V. L.C.C. was based and trace the history therefrom through the provisions, as contained in Order 7 Rule 13 of the Supreme Court Rules, 1977 to the present position. This is essential as there have been so many other decisions of this court based not on the 1961 Rules but on the 1977 Rules and the 1985 Rules.

 

Order 7 Rule 13(1) of the Supreme Court Rules LN96 of 1961 provides

 

13.    (1)   It shall not be necessary for the respondent to give notice of motion by way of cross-appeal; but if a respondent intends upon the hearing of the appeal to contend that the decision of the court below should be varied, or that it should be affirmed on grounds other than those relied on by that court he shall within one month after service upon him of the notice of appeal cause written notice of such intention to be given to every party who may be affected by such contention, whether or not such party has filed an address for service. In such notice the respondent shall clearly state the grounds on which he intends to rely and within the same period he shall file with the Registrar of the court below six copies of such notice of which one shall be included in the record, and the other five copies provided for the use of the Judges. (italics supplied for effect)

 

And so Coker, J.S.C., in his decision was right when he said-

 

There can be no doubt that the rule dispenses with the filing of a

notice by way of cross appeal.

 

He wondered why this was so. He said-

 

It is not easy to understand why this procedure, manifestly unknown

in this country, has been introduced into our rules.

 

Even in the United Kingdom that was not the position, Coker, J.S.C. noted this. The learned Justice of the Supreme Court said-

 

In the United Kingdom, by virtue of provisions contained in the rules of court, notice of motion is necessary in order to initiate appeals in certain circumstances (see Order 55 Annual Practice, 1967).

 

There is no doubt that the situation gave a lot of concern to the learned Justice of the Supreme Court for he examined various aspects of the matter in extenso. Permit me, my Lords, to refer again to the judgment of the learned Justice of the Supreme Court for this is a very important matter.

 

Coker, J.S.C., after examining various aspects of the matter, the reason for the innovation of which he could not unravel said-

 

The result of the enquiry therefore is that the notice under Order 7, rule 13(1) applies there a particular point in the appeal of the appellant is being stretched by the respondent who contends for its maintenance but proposes a variation of it if that be the only way by which he could be enabled to retain the judgment. It would seem however that once a respondent's notice has been given, the appellant cannot prevent the respondent having the point raised in his notice argued by withdrawing his (appellant's) notice of appeal. See in Re Cavander's Trusts, supra. The notice filed by the respondent in this case clearly seeks to retain the judgment but requests a variation of the amount awarded by that judgment. The notice postulates that the approach of the learned trial Judge to the case was correct, but that his conclusions had adversely affected the respondent who thereby contends that by the same reasoning of the learned trial Judge he should have received a greater award. We hold therefore that the notice filed in this case, pursuant to the provisions of Order 7, rule 13(1), is competent. We therefore overrule the preliminary objection of learned counsel for the appellant.

 

That was in 1970.

 

On 26th November, 1971, (of course the same Rules LN 96 of 1961 were still applicable) in the case of L.C.C. V. Ogundemuren and another SC.335/19 delivered on 26th November, 1971, a matter similar to that which arose in L.C.C. V. Ajayi (supra) came again before the Supreme Court. It is not strange that in the Ogundemuren case there was reference to L.C.C. v. Ajayi which had been decided the previous year especially as counsel who made the application in L.C.C. V. Ajavi was the same counsel in L.C.C. v. Ogundemuren. And also both Coker, J.S.C., who wrote the judgment in L.C.C. V. Ajayi and Fatayi-William J.S.C., (as he then was), who sat with him in that case were also in the Ogundemuren case. Again, and this is satisfactory, the Court in Ogundemuren case came to the same decision as it had earlier done in L.C.C. V. Ajayi. Udoma, J.S.C. who wrote the judgment of the court in the Ogundemuren case was not in doubt that the provisions of Order 7 Rule 13 (LN 96 of 1961) were "intended to facilitate a complaint by a successful party against a judgment of the court given in his favour and who seeks to support that judgment if the party who lost appeals". The learned Justice of the Supreme Court added-

 

On a true construction, these provisions contemplate that the party applying for variation or confirmation of the judgment was a successful party in the court below in respect to that aspect of the judgment for which he requires variation.

 

We do not think that even on liberal interpretation these provisions could ever be held to contemplate a situation wherein an application for variation or confirmation of a judgment 'on grounds other than those relied on by the court' would be entitled to ask for the complete reversal in his favour of the finding of fact made or judgment of the court given against him on certain issues contested in the case, even though the applicant succeeded in the court below on a number of other issues. Such is the nature of this application made to us by counsel for the 1St respondent. Re seeks that the court should reverse findings of fact which had been made by the court below against him and which had resulted in his being denied the relief which he had sought.

 

One only has to compare this with the dictum of Coker, J.S.C., in L.C.C. V. Ajayi where he said:-

 

Another characteristic of Order 7, Rule 13(1) is that it is applicable only where the respondent intends to retain the judgment but at the same time wants it varied; so where a respondent intends for instance to dispute the jurisdiction of the court of trial or to contest the competency of the entire proceedings or to maintain the absence of a fundamental prerequisite, it seems he cannot come under this rule. In that case he has to file a substantive cross-appeal. The basis for this is clear for a man cannot at the same time obtain an advantage by maintaining a particular standpoint and then seek to discard that same stand-point whilst keeping the advantage. As Lord Esher, M.R., observed in Roe v. Mutual Loan Fund Ltd. (1887)19 Q.B.D. 347 at p.350:-

 

I base my judgment on this, that the bankruptcy proceeded on the basis that the bill of sale was valid, and that this was with the knowledge and acquiescence and for the benefit of the plaintiff, who thereby affirmed that the bill of sale was valid, and cannot now be heard to say that it was invalid in order to obtain a further advantage. I cannot therefore agree with the judgment appealed from, and the appeal must be allowed.

 

A third authority to which our attention has been directed is Oyekan V. B.P. Nigeria Ltd. (1972)1 All N.L.R. (Pt. 1) 45. This case only made a cursory reference to Order 7 Rule 13 and the earlier cases of L.C.C. V. Ajayi and L.C.C. V. Ogundemuren without any decision as the plaintiffs who filed the notice under Order 7 Rule 13 were not present at the hearing.

 

In African Continental Seaways Ltd. V. Nigeria Dredging Roads and General Works Ltd. (1977) 5 S.C. 235, what the court decided was that Order 7 Rule 13 would not apply where a finding of the court which is crucial and fundamental to a case is sought to be set aside. I am of the firm opinion that this is not different from what the court said in the Ogundemuren case where the court said that even on a liberal interpretation, Order 7 Rule 13 could never be held to contemplate a situation wherein an applicant for "variation or confirmation. . . would be entitled to ask for the complete reversal in his favour of the findings of fact made . . . against him . . ." It is also obvious that L.C.C. V. Ajayi cannot be held, having regard to the three characteristics given of the Rule, to extend to reversal of a finding with which the respondent is dissatisfied, for Coker, J.S.C., said

 

On the other hand, there is nothing in the rules of court depriving a respondent of the right to appeal against a decision with which he is dissatisfied.

 

He said further-

 

Without doubt occasions must and do arise on which a respondent may have to appeal may have to appeal against a decision...

 

and this, notwithstanding the fact that "no provision other than Order 7 Rule 13(1) appears in the rules of the Supreme Court for bringing a cross appeal." Any appeal by a dissatisfied respondent must, per necesisate, amount to a cross appeal (see L.C.C. V. Ajayi supra).

 

On the 1St September, 1977, the Supreme Court had new Rules, that is, the Supreme Court Rules, 1977. Order 7 Rule 13 of the 1977 Rules which replaced Order 7 Rule 13 of the 1961 Rules read-

 

13    (1)     A respondent who, not having appealed from the decision of the court below, desires to contend on the appeal that the decision of that court should be varied, either in any event or in the event of the appeal being allowed in whole or in part, must give notice to that effect, specifying the grounds of that contention and the precise form of the order which he proposes to ask the court to make, or to make in that event, as the case may be.

 

(2)    A respondent who desires to contend on the appeal that the decision of the court below should be affirmed on grounds other than those relied upon by that court must give notice to that effect specifying the grounds of that contention.

 

One has to compare these new provisions with the 1961 Rules and one would note that a very important omission in the 1977 Order 7 Rule 13 are the opening words of the corresponding Rule in the 1961 Rules that is-

 

It shall not be necessary for the respondent to give notice of motion by way of cross-appeal.

 

I believe this omission makes a lot of difference. It is true however that none of the judgments, which have come under the 1977 Order 7 Rule 13 or the 1985 Order 8 Rule 3, which repeat that 1977 Order 7 Rule 13, makes reference to this omission, as constituting any significance. In Eliochin (Nig.) Ltd. V. Mbadiwe (1986)1 N.W.L.R. (Pt. 14) 47, the applicant under the Rules of the Supreme Court (both 1977 and 1985) did not seek a reversal of the decision of the Court of Appeal. The report in regard to this aspect of the case could be found in the decision of Kazeem, J.S.C., who concurred with the judgment of the court. The Report reads-

 

This appeal was essentially one against the decision of the Court of Appeal on the issue of failure to award exemplary damages claimed by the appellants, having found that the respondent was liable on the claim for trespass against him. If the issue has therefore been limited to that aspect, this appeal will probably not have suffered the delay of being heard before now since it was first filed in August 1979. It is to be noted that the findings of facts on the issue of trespass made by the trial court, were to a great extent reversed by the Court of Appeal; and consequently that court found in favour of the appellants, that the respondent was liable on the claims for trespass committed against all the appellants.

 

Against that decision, the respondent did not cross-appeal; but learned counsel for the respondent sought for an obtained an order under Order 7, Rule 13(2) of the Rules of the Supreme Court, 1977 to support the judgment on grounds other than the grounds relied upon by the Court of Appeal. He based his application on the fact that the decision of the Court of Appeal in reversing some findings of the trial Judge and in dismissing the appellants' claims nonetheless, was reached without reference to the pleadings of the parties at the trial. Hence during the appeal, learned counsel for the respondent attacked those findings of the Court of Appeal. But he could not do that without specifically cross-appealing against those findings of fact. See African Continental Seaways Ltd. v. Nigerian Dredging Roads and General Works Ltd. (1977) 5 S.C. 235 where the respondent had filed a similar notice and this court made the observation that:

 

We would like to say here . . . that a party seeking to set aside a finding which is crucial and fundamental to a case can only do so through a substantive cross-appeal and not by an application to vary.

 

Reference was made to African Continental Seaways Ltd. v. Nig. Dredging Roads and General Works Ltd. (1977) 5 S.C. 235. Though this decision could be explained to be in line with previous decisions nothing has been said of the change made in the 1977 Rules.

Oputa, J.S.C., in his own judgment indeed relied upon a case of L.C.C. v. E.A. Ajayi (supra). He wrote a full note on the Rule and said

 

I will now consider the provisions of Order 7 Rule 13(1) of the Supreme Court Rules 1977 (now Order 8 Rule 3) of the Supreme Court Rules, 1985 dealing with affirning the judgment appealed against on other grounds. That Order stipulates:

 

Order 7 Rule 13

 

(1)    It shall not be necessary for the Respondent to give notice of motion by way of cross-appeal, but if a respondent intends upon the hearing of the appeal to contend that the decision of the court below should be varied, or that it should be affirmed on grounds other than those relied on by that court he shall within one month after service on him of the notice of appeal cause written notice of such intention to be given to every party who may be affected by such contention . . In such notice the respondent shall clearly state the grounds on which he intends to rely ..

 

The most important word in the rule reproduced above is "decision." By Section 277(1) of our 1979 Constitution:-

 

S.27(1) 'decision means, in relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation.

 

Decision as defined above does not mean judgment although it includes a judgment. In the case on appeal, the fulcrum around which everything else revolves is the issue whether or not the plaintiffs were in lawful possession or in unlawful possession and therefore trespassers. The determination of the Court of Appeal was that the plaintiffs were all in lawful possession. They were not trespassers. It was also a determination of the Court of Appeal that the defendant's action amounted to trespass. If these two determinations or decisions are affirmed as requested by the defendant/respondent in his notice, then the logical and in fact the only result will not be a dismissal of the appeal, definitely not, but the allowing of the appeal. Chief Onyiuke, S.A.N., gallantly conceded that if trespass is proved against the defendant, the plaintiffs' claim for exemplary damages will be no reason or excuse for denying the successful plaintiffs some damages, be that general or even nominal. Both parties-plaintiffs/ appellants and defendant/respondent-therefore agreed that the Court of Appeal was wrong in not awarding damages of any kind simply because exemplary damages were claimed. What decision of the Court of Appeal now remains to be affirmed on grounds other than those relied upon by the court below? I do not see any. The ground relied upon by the Court of Appeal in dismissing the plaintiffs' appeal was unfortunately erroneous and cannot be affirmed in any event and on any ground. The present appeal does not therefore lend itself to the invocation of the procedure under the then Order 7 Rule 13(1) now Order 8 Rule 3, Rules of the Supreme Court, 1985. It lends itself only to a cross-appeal to reverse the pernicious and devastating findings of the court below without which this court cannot but allow the appeal. A respondent can only come under Order 8 Rule 3 of the Supreme Court Rules (or the old Order 7 Rule 13) if on the fact and on the law the decision of the court below will in any event be affirmed. This view is clearly brought out by the decision of this court in Lagos City Council v E.A. Ajayi (1 970) 1 All N.L.R. 291 at p.296:-

 

Another characteristic of Order 7 Rule 13(1) is that it is applicable only where the respondent intends to retain the judgment but at the same time wants it varied, so where a respondent intends for instance to dispute the jurisdiction of the court of trial or to contest the competency of the entire proceedings or to maintain the absence of a fundamental prerequisite it seems he cannot come under this rule. In that case he has to file a substantive cross-appeal. The basis for this is clear for a man cannot at the same time obtain an advantage by maintaining a particular standpoint and then seek to discard that same stand-point whilst keeping the advantage.

 

In the above case, the court was dealing with the variation arms of the Order. It is my humble view that the same principle will apply to the affirmation arm of the same Order 7 Rule 13. Chief Onyiuke, S.A.N., concentrated his entire fire power on the competence of the Court of Appeal to make the findings it made when, it is alleged that, the case as pleaded was not the case that that court considered and when it was further alleged that some of the fact relied on by the court below were not even pleaded. These are matters for a cross-appeal pure and simple.

 

The learned Justice of the Supreme Court also had the opportunity of examining the Rule in Chief Adedapo Adekeye & Anor. V. Chief 0.0. AkinOlugbade (1977)6 S.C. 268; (1987) 3 N.W.L.R. (Pt.60) 214. He came to the same conclusion. He said:-

 

In the recent case of Eliochin (Nig.) Ltd V. Mbadiwe (1986) 1 N.W.L.R. (Pt. 14) 47 the issue of the propriety or otherwise of a Respondent's Notice was considered by the Supreme Court and the court held that a respondent seeking to set aside a finding which is crucial and fundamental to a case can only do so through a substantive cross-appeal and not by an application to affirm or vary the judgment on other grounds. The Civil Form 20 on which the Otunba Awopeju, learned counsel for the appellants heavily relied upon is pursuant to Order 7 Rule 13 of the 1977 Supreme Court Rules dealing with "Respondent's Notice." Order 7 Rule 13(1) is predicated on the fact that there has been no cross-appeal by the Respondents. The present and relevant Rule is Order 8 Rule 3 of the Supreme Court Rules, 1985.

 

The essential findings of fact made by the trial court in this case were:-

 

(1)   That the plaintiff and the 3rd defendants (including the Alban Pharmacy) were all partners in the Partnership of Excelsior Building Society.

 

(2)    That the property in dispute though registered in the name of the 2nd defendant (Alban Pharmacy Ltd.) belongs to the partnership of Excelsior Building Society which provided the funds for the building of No.128 Broad Street, Lagos.

 

With those two findings of fact, the legal position of the 2nd defendant vis-a-vis the plaintiff and the other defendants will be a question of law-a legal conclusion from the facts as found. This is a conclusion which the trial Court or any appellate court could draw: Benmax v. Austin Motor Co. Ltd. (1955) A.C. 370 at p.375; (1955)1 All E.R. 326 at p.328. In this case the trial court failed to draw the right conclusion. It ran into error. The court below corrected that error. Now upsetting the fundamental findings of the trial court which formed the basis of the Court of Appeal's decision can only be done in a cross-appeal and not by a Respondent's Notice to affirm or vary' the judgment on other grounds: see National Society' for the Distribution of Electricity etc. v. Gibbs (1900) A.C. 280 at p.287.

 

He however did not make any reference to the change made by the 1977 and 1985 Rules to the 1961 Rules.

 

Agbaje, J.S.C., in Oguma V. I.B.W.A. (1988)1 N.W.L.R. (Pt. 73) 658 also examined the Rule. It is to the credit of Chief G.O.K. Ajayi,. S.A.N., that he referred our attention to all these decisions. It is this that has enabled me to give a comprehensive examination of all these decisions. A notice was filed in the Oguma case under Order 8 Rule 3 of the Supreme Court Rules (the equivalent of Order 7 Rule 13 of the 1977 Rules and Order 7 Rule 13 of the 1961 rules). In this case the decision sought to be varied was in fact put up as a ground of appeal to wit-

 

The learned Judges of the Court of appeal erred in law and misdirected themselves on the facts when they held that Exhibit 'G' in the proceedings was inadmissible in evidence and was properly received in evidence at the trial by counsel and could not in a civil suit be therefore expunged

 

Particulars were given. Even on the face of it, this is a potent ground of appeal and a far cry from what was sought to be varied in L.C.C. V. Ajay (supra). Agbaje, J.S.C. held-

 

I will deal first with this notice filed by the plaintiff bank. In the course of the hearing of this appeal the attention of counsel for th~ plaintiff Bank, Mr. Sogbesan, S.A.N., was called to the fact that the lowe Court made a categorical finding in respect of Exh. C to the effect that th trial court rightly exercised its discretion in expunging it from the proceedings in the case. This finding was contrary to the contribution of counsel for the plaintiff Bank, Mr. Sogbesan was asked if the notice filed by him was the correct step to be taken if he wanted the finding in question reversed or varied. He seemed to have conceded it that the proper step he should have taken was to have filed a cross appeal against that particular finding in respect of Exh. G at the lower court about which he is now complaining. I have no doubt however that the correct step counsel for the plaintiff Bank should have taken if he wanted the finding of the court below on Exh. G reversed was to have filed a cross appeal against that finding. In saying this I place reliance on the case of African Continental Seaways Ltd. V. Nigerian Dredging Roads and General Works Ltd. (1977) 5 S.C. 235 at 247.

 

Having gone through all these authorities one could have another quick look at and revisit L.C.C. V. Ajayi (supra), the parent decision in this matter:

 

(1)    The trial Judge after taking evidence in the case accepted substantially the valuation given by the claimant's valuer. He decreed the compensation in the amount of 13,640.00 and all rental profits due at the rate of 950 per annum.

 

(2)    L.C.C appealed against this decision complaining of misdirection-

 

 

(a)   that the order for payment of rents should not have been made; and

 

 

(b)   that the judgment was against the weight of evidence as the claimant would not submit his rent receipts for inspection.

 

The notice filed by the respondent to vary was to this effect that the decision of the court in decreeing 13,640.00 was wrong and the sum of 31,415 should have been decreed.

 

The respondent argued that as the trial court had rejected the evidence of the appellant's valuer, he should have accepted in-to-to the evidence of the claimant's valuer.

 

It is obvious to me that what the learned counsel for the respondent sought in that case was setting aside the decision of the trial court. Coker, J.S.C., was not oblivious to this. He said that it was plain that the respondent was as well dissatisfied with the "terms of the judgment" like the appellants. That the respondent would like the judgment as contained in his notice. That is the full acceptance of the evidence of his witness and an award of 31,415 instead of a partial acceptance of the evidence. Coker, J.S.C., also put the issues pointedly when he said that the point that arose for determination was whether the Rules were designed to meet a situation which is-tantamount to a complete reversal of the judgment already given; or

employment of the Rules is circumscribed without the bonds of what is strictly speaking a mere variation.

 

His conclusion?

 

The Rule applies where a particular point of the appeal is being stretched by the respondent who contends for the maintenance of the particular point but he proposes a variation of the particular point of that variation be the only way by which the respondent could be enabled to retain the judgment.

 

For the purpose of the Rule, as existed in 1961, and before 1977, the decision in L.C.C. V. Ajayi must be right, for the notice by the respondent was the only way the respondent could be enabled to retain the judgment. The Rule provided-

 

It shall not be necessary for the respondent to give notice of motion by way of cross appeal.

 

There is no doubt that subsequent decisions even before the 1977 Rules when these were omitted could be interpreted to the effect as if the words were not there. Even after the 1977 Rules no decision took cognisance of the omission and Chief Ajayi's arguments that those decisions were contrary to L.C.C. V. Ajayi, when examined ve~ strictly could not be held to be frivolous. All I have done hitherto is to bring the subsequent decisions broadly within the ambit of L.C.C. V. Ajayi. On a strict argument therefore before the 1977 Rules, Chief G.O.K. Ajayi's submission would have been held to be fundamental.

 

I cannot, with the provisions of Rules as they are and have been since the 1st of September, 1977 hold that the notice by variation is the only way to retain those judgments decided after the 1977 Rules.

 

Our Rules are clear. And I now revert to the 1985 Rules (which are of course in ipssisima verba with the 1977 Rules.

 

Order 8 Rule 2 provides

 

All appeals All appeals shall be by way of rehearing and shall be brought by notice (hereafter called 'the notice of appeal').

 

All appeals, All appeals, no doubt, include cross appeals. It is true Order VII Rule 2 of the 1961 Rules also said this but Rule 13 specifically stated that "It shall not be necessary" (mandatory too) "for the respondent to give notice of motion by way of cross appeal."

 

As this mandatory provision no longer exists, and has not existed since 1st September 1977, it is my view that any respondent seeking to set aside a finding which is crucial and fundamental to a case can only do so through a substantive cross appeal and shall not do so by an application to affirm or vary the judgment on other grounds.

 

For these reasons I will uphold the objection of the appellant, Chief

F.R.A. Williams, and strike out the notice of the respondent, the Daily Times, filed on their behalf by Chief G.O.K. Ajayi.

 

Again, I am obliged to both Chief G.O.K. Ajayi, S.A.N., learned counsel for the respondent and Chief F.R.A. Williams, S.A.N., the appellant, for their full treatment of the arguments in this application and objection.

 

I will now deal with the main appeal.

 

The questions set down for determination by the appellant are as follows-

 

(i)    Whether the Court of Appeal was correct in holding that the High Court was wrong in taking into account two other publications of the same newspaper in awarding damages.

 

(ii)    Whether it was correct for the Court of Appeal to have used the award in Lardner V. The Sketch Publishing Co. Ltd. as the yardstick for measuring the amount of damages that ought to be awarded to the plaintiff in this case.

 

(iii)   Whether the Court of Appeal is correct in regarding it as a rule of practice that what a court can award as unliquidated damages must be less than the amount claimed by the party in whose favour the award was made."

 

In regard to this question, the appellant referred to two publications which the learned trial Judge dwelt upon. They are

 

(i)    The Evening Times of 1St March, 1980, and

 

(ii)   The Evening Times of 14th August, 1980.

 

The appellant submitted that a look at each publication against the background of what was supposed to have happened in court amply justified the comments of the trial court which were-

 

From the subsequent publications by the same paper, it appears to me

that the intention of the Newspaper in this particular case was not to inform the public but to ridicule the plaintiff.

 

The appellant further submitted that proper proof of what in fact happened in court can only be established by producing a certified true copy of the relevant proceedings and no such evidence was ever produced.

 

Chief G.O.K. Ajayi's answer to this was the decision of Ademola, J.C.A., on the matter. The learned Justice had said-

 

The inferences to ridicule the respondent by the publications should not readily and necessarily be drawn.

 

Chief Ajayi conceded that in an action for libel the assessment of damages is within the discretion of the trial Judge who is expected to take into account all the circumstances of the case including the conduct of the defendant. Interference by the Court of Appeal would arise where the trial Judge proceeded on wrong principles. Chief Ajayi submitted that the publications were prima facie accurate reports of judicial proceedings, and, taken on their own, would be absolutely privileged.

 

Now, the issue here is one of aggravated damages. The claim was for N250,000 exemplary damages or in the alternative, N100,000.00 aggravated damages. The learned trial Judge did not award exemplary damages. He awarded the aggravated damages claimed.

 

The appeal, herein, is not against liability for the libel. This has been determined and there is no appeal against it. The learned trial Judge, before awarding those damages had the following to say-

 

In the present case the plaintiff on seeing the publication, wrote the defendant as per Exhibit B asking for an apology, and the defendant replied as per Exhibit C. That was the only letter from the defendant before the plaintiff took action. The defendant never apologised. The defendant did not even publish the end of the suit to show that his plaintiff was eventually vindicated but instead published other further banner headlines about the plaintiff. . .

 

Upon this the Judge awarded  N100,00.00.

 

What did the Court of Appeal do?

 

Ademola, J.C.A., said categorically-

 

It has not been established by the appellant in his argument that the learned trial Judge proceeded on wrong principle.

 

Why then, if the learned trial Judge did not proceed on wrong principle, did the Justice reduce the award of N100,000.00 to N60,000.00? He said the Judge should not have taken into consideration the two other publications which the Judge took into account. They have not been proved false. The inference to ridicule the respondent by the publications should not readily and necessarily be drawn.

 

What are these publications?

 

(1)    The Evening Times of March 1st, 1980.

 

It contains a large picture of the respondent with the words on the top print paper

 

Court awards hundred Naira

 

and full banner lines ''Rotimi to pay costs" followed by the words in not as prominent letters 13 kids sue lawyer." On reading the body of the report it is clear that Chief Williams was ordered to pay Costs of N100 to the plaintiffs. But for the prominence given to the publication, I do not see anything wrong with it. The learned trial Judge said the intention of the publication was not to inform the public but to ridicule the plaintiff. Ademola, J.C.A., in his judgment said that the intention to ridicule the plaintiff should not readily and necessarily be drawn. However, the learned Justice was considering exemplary damages which the learned trial Judge did not award, and not aggravated damages which he had awarded. There has always been a difference between exemplary and aggravated damages. Exemplary damages are usually awarded where Statutes prescribe them and apart from this, they are only awarded for two categories to wit

 

(1)    oppressive, arbitrary or unconstitutional action by servants of the Government. See Lord Devlm in Rookes ". Bernard (1964) A.C. 1230 matters for compensation are different from matters for punishment. In McCaney v . Associated Newspapers (1965) 2 Q.B. 104, Pearson. L.J. held

 

compensatory damages . . . may include not only actual pecuniary loss and anticipated loss or any social disadvantages which result or may be thought likely to result from the wrong which has been done.

 

This is not punishment. Punishment is best illustrated in the dictum of Lord Hailsham in Broome v. Cassell (1972) A.C. 1070, where Lord Hailsham regarded the principle of exemplary damages as teaching the defendant that tort does not pay. Lord Devlin has formulated in Rookes v. Bernard that exemplary damages includes cases where the defendant with a cynical disregard for plaintiff's rights has calculated that the money to be made out of his wrong-doing will probably exceed the damages at risk. All these, that is in regard to exemplary damages include some deliberations that warrant punishment.

 

(2.)   where the defendant's act which has been held to be tortious was done with a guilty knowledge, the motive being that the chances of economic advantage outweigh the chances of economic or even (perhaps) physical penalty. (Another act of deliberateness).

 

Aggravated damages which the Judge awarded and which Ademola, J.C.A., did not advert to might result out of malevolence on the part of the tortfeasor, spite by him or just the manner of committing the wrong which injures plaintiff's proper feeling of dignity and pride.

 

The plaintiff, Chief Williams, said in his submission to us, as regards this publication that the publications further repeated the substance of the libel. It is to be appreciated in this case that libel has been established and there is no appeal therefrom. Chief Ajayi on the other hand had said, while conceding that the Court of Appeal should only interfere if the trial court proceeded on wrong principle and the Court of Appeal itself held that it was not established that the learned Judge proceeded on wrong principles, but that the publication has not been proved to be false.

 

But then, could the publication that the plaintiff was to pay Costs, with a large inset of his picture when such publication was the truth of the order to pay costs be construed to be malevolent or spite of the plaintiff. By itself my answer is Nay. But when the publication repeated the libel the liability for which has been established and is not being appealed against, I would like to examine the publication from that aspect. The caption (not as prominent as the other captions) is 13 kids sue lawyer." The body of the publication reads in regard thereto-and this is put partly in thick set after the first paragraph has stated that the Lagos High Court awarded N100 Costs against a legal luminary"

 

The 13 children of Mr. Onayemi nine of them infants, are claiming the amount from Chief Williams for losing or otherwise failing to make available 'February Will' of their father.

 

This indeed was the libel complained of contained in earlier publication proved and determined to be libelous and no appeal had been lodged against

it. It has long been established that conduct of the defendant is a matter which the plaintiff may rely upon in the determination of aggravated damages. Could there not be inferred malevolence or spite in this publication repeating the libel? Will this publication which is not true of course as found by the court not such as to injure the plaintiff's proper feelings of dignity and pride? That is a '~legal luminary" losing or otherwise failing to make available a Will? I am of the clear view that this publication is sufficient to aggravate the damages. I agree with Ademola, J.C.A., that the inference to ridicule the plaintiff should not readily be drawn. But in this case I cannot see it otherwise. The inference is clear and the learned trial Judge was right in his conclusion of a defendant who did not even apologise but instead. repeated the libel.

 

The second publication seems to be more serious. It was made on March 14, 1980. The comer top caption reads-

 

Evening Times-Now A Must

 

with banner headlines in very bold letters-

 

Case put off as Rotimi stays away

 

Again the suit by the 13 children was inserted-

 

13 children sue lawyer

 

A picture of the plaintiff, not as prominent as the publication of March 1, was inserted.

 

Let us now see how the plaintiff came to stay away, an act which necessitated putting off of the case.

 

The body of the publications shows that the motion filed by the plaintiff was adjourned for hearing until March 21 as the plaintiff was not in court....Indeed a milder expression than "stays away." The reason for the absence from the court was given by his lawyer, Mr. Makanju, as not a disrespect to the court but "rather his absence is (sic) due to unavoidable circumstances-the plaintiff was off to Enugu Court of Appeal."

 

Now, the body of the Report is hardly compatible with the screaming headline which suggests a deliberate staying away for no good reasons. Could this not amount to malevolence? I think it does. Could it not amount to spite? I think so. Is the manner of publication not tantamount to injuring the plaintiff's proper feeling of dignity (a prominent Senior Advocate staying away from court, when he is a party to an action?) Yes, it was. And pride too? Yes, it must be. I cannot fault the conclusion of the learned trial Judge who concluded, and I think rightly, that the intention of the Newspaper in this particular case was not to inform the public but to ridicule the plaintiff. And ridicule the plaintiff it did, and if it did, it must be to its chagrin, and this in the language of Lord Hailsham in Broome v. Casseli (supra)

 

the natural indignation of the court at the injury inflicted on the plaintiff is a perfectly legitimate motive in making a generous, rather than a more moderate award to provide an adequate solatium.

 

Indeed it means the defendant's conduct has aggravated the damages payable.

 

The other reason given by the Court of Appeal in interfering with the award made by the trial court was by reference to the Lardner v. The Sketch Publishing Company. The Justice of the Court of Appeal said:-

 

Besides, I am of the view that to grant what was wholly claimed in this suit as exemplary-unliquidated damages was not in step with the practice of the court. In the case of Lardner v. The Sketch Publishing Co. which was used by the learned Judge in the present case and which was the case in which imputation of dishonesty was made against a senior member of the legal profession in the conduct of his work, the court (the same High Court of Lagos State) made an award of N50,000.00. Having regard to the trend of inflation, I think an award of say N60,000.00 at the time of judgement was given would in my view be adequate compensation to the respondent.

 

To start with, the trial court never awarded exemplary~unliquidated damages. However, the plaintiff's reaction to the La,-dner reference was that there was no basis for using the damages awarded in favour of H.A. Lardner as the yardstick for measuring what ought to be awarded to him. He said further in his Brief-

 

By section 73(J) of the Evidence Act, the court ought to take judicial notice of all the members of the Bar. That being so, there can be no reason why the 14 years seniority of the plaintiff over Mr. Lardner should be ignored...

 

Chief G.O.K. Ajayi, S.A.N., made a short put to this allusion to Lardner. He agreed with the plaintiff that the award in Lardne v. Sketch should not have been used as a yardstick for measuring the award of damages herein. This I believe the end of the matter.

 

As regards the award of the total amount claimed, Chief G.O.K. Ajayi, S.A.N., was gallant enough to state that the practice in the High Court of Lagos State was not in fact one of the grounds on which the Court of Appeal based its decision to reduce the amount awarded as damages. Though he submitted it was in order for the Court of Appeal to make the observation.

 

On the whole then, the appeal is allowed. The amount of damages awarded by the High Court of Lagos State (Beckley, J.) is hereby restored. The judgment and order of the Court of Appeal reducing that award is set aside. Costs already awarded by that court stand. Costs of N500.00 awarded to the appellant (the plaintiff) being costs in this court.

 

 

Judgment delivered by

Mohammed Bello. C.J.N.

 

I have read the judgment in draft of my learned brother, Eso, J.S.C. He had comprehensively considered and determined all the issues canvassed in the objection to the Respondent's notice and in the appeal. I entirely agree with his reasoning and conclusions. I adopt his judgment.

 

 

Judgment delivered by

Andrews Otutu Obaseki. J.S.C.

 

 

I have had the privilege of reading in advance, the draft of the judgment just delivered by my learned brother, Eso, J.S.C and I find that his opinions on all the issues raised for determination in this appeal accord with mine. I agree with him that objection to the respondent's notice of intention to vary the decision of the Court of Appeal succeeds and that it be struck out and the appellant's appeal against the reduction of the damages awarded in the High Court to the plaintiff by the Court of Appeal be allowed.

 

The two issues for determination in this appeal are.

 

(1)    Whether or not the respondent's notice and not a substantive notice of appeal by the respondent is the proper procedure for contending that a finding or determination which is fundamental and crucial to the respondent's case be reversed;

 

(2)    Whether the Court of Appeal was justified in reducing the amount of damages awarded to the plaintiff by the High Court from N100,000.00 to N60,000.00 having regard to the circumstances of the case.

 

These two issues raise very many important questions.

 

The importance of the 1st issue is emphasised by the fact that learned counsel for the respondent called upon this Court to depart from many previous decisions of this Court in

 

(a)    L.C.C. v. Ogundemuren Suit No. S.C. 355/69 delivered on 26th November, 1971;

 

(b)    Oy'ekan v. B.P. Nigeria Ltd. (1972)1 All N.L.R. (Part 1) 47

 

(c)    B.E.O.O. md. (Ni g.) Ltd. v. Maduakoh (1975)12 (c)    B.E.O.O. md. (Ni g.) Ltd. v. Maduakoh (1975)12 S.C. 91

 

(d)    African Continental Seaways Ltd. V. Nigerian Dredging Roads and General Works Ltd. (d)    African Continental Seaways Ltd. V. Nigerian Dredging Roads and General Works Ltd. (1977) 5 SC.235.

 

(e)    Enang v. Adu (e)    Enang v. Adu (1981)11-12 S.C. 25

 

(f)    Dumbo V. Jdugboe (1983)1 SCNLR 29

 

(g)    Eliochin V. Mbadiwe (1986)1 N.W.L.R. (Pt. 14) 47

 

(h)    Adekeye v. Chief  O .B. Akin-Olugbade (1987) 6 SC.268; (1987) 3 N.W.L.R. (Pt. 60) 214 and

 

(i)    Oguma Associated Co. Nig. Ltd. V. J.B.W.A. Ltd. (1987)1 N.W.L.R. (Pt. 73) 658

 

On the grounds that:

 

(i)    they were inconsistent with the earlier decision of the Supreme Court in L.C.C. V. Ajayi         (1970)1 All N.L.R. 291

 

(ii)    they were wrongly decided and

 

(iii)    ought to be overruled by the Supreme Court.

 

Since my learned brother, Eso, J.S.C., and I are ad idem on the resolution of the above two issues, my comments herein is dictated by the importance of those issues.

 

Issue No.1

 

The respondent's notice to which the appellant in this appeal has objected reads:

 

TAKE NOTICE that upon the hearing of the above appeal, the respondent herein intends to contend that the decision of the court below dated 27th of May, 1986 shall be varied as follows:-

 

That the damage of N60,000.00 awarded to the plaintiff be substantially reduced.

 

AND TAKE NOTICE that the grounds on which the respondent intends to rely are as follows:-

 

(I)    In awarding the plaintiff damages of N6O,00O.OO the court failed to give effect to its decision that the plaintiff was not entitled to an award of aggravated damages:

 

(2)    The amount of N60,000.00 damages is excessive and amounts to not just aggravated damages but to exemplary damages."

 

Order 8 Rule 3 of the Supreme Court Rules, 1985 governs the procedure for giving a "respondents' notice" and the circumstances in which a respondents' notice can be given. For our purposes, sub-Rule (3)(l) is most relevant and germane and reads:

 

A respondent who, not having appealed from the decision of the court below desires to contend on the appeal that the decision of that court should be varied, either in any event, or in part,  must give notice to that effect specifring the grounds of that contention and the precise form of the order which he proposes to ask the court to make, or to make in that event as the case may be.

 

In contrast, sub-rule (3)(2) provides as follows:

 

A respondent who desires to contend on the appeal that the decision of the court below should be affirmed on grounds other than those relied upon by that court must give notice to that effect specifying the grounds of that contention.

 

The defendant's counsel, Chief G.O.K. Ajayi, S.A.N., filed no notice of appeal or cross-appeal. The appellant quite properly objected to the notice on the ground that the order sought is not a relief that can properly be asked for and granted in a respondent's notice. Chief F.R.A. Williams, S.A.N., the appellant filed a brief in support of his objection and G.O.K. Ajayi, S.A.N., counsel for the respondent replied to the submissions of the appellant. Chief Williams properly formulated the issue for determination as follows:

 

In what circumstances, if any, can a defendant who succeeded in persuading the Court of Appeal to reduce the amount of damages awarded by the High Court in favour of the plaintiff be permitted to argue before the Supreme Court for an order for further reduction if he files no Notice of Appeal but relies on a respondent's Notice of Appeal pursuant to Order 8 Rule 3 of the Supreme Court Rules 1985.

 

In other words, is a notice of intention under Order 8 Rule 3(1) of the Supreme Court Rules, 1985 on the same pedestal as a notice of appeal under Order 8 Rule 2(1) of the said Rules to enable a respondent to contend that the decision of the Court of Appeal to award N60,000.00 against damages be set aside and a reduced amount of damages be assessed and awarded in its place? The other question that may be asked is this:

 

Does a ground that the damages awarded is excessive not amount to a complaint against the decision of the Court of Appeal on the claim for damages?

 

Rule 2 sub-rule (2)( I) of Order 8 of the said Rules reads:

 

All appeals shall be by way of rehearing and shall be brought by notice (hereafter called 'the notice of appeal') to be filed in the Registry of the Court below which shall set forth the grounds of appeal, state whether the whole or part only of the decision is complained of (in the latter case specifying such part) and state exactly the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal and shall be accompanied by a sufficient number of copies for service on all such parties. It shall also have endorsed on it an address for service.

 

What then does "variation" or "to contend on the appeal that the decision of that court should be varied" mean in Order 8 Rule 3(1) of the Supreme Court Rules?

 

In my opinion, a respondent who has not appealed cannot be regarded as a person dissatisfied with the decision of the court below. This is because in any notice of appeal, it is always expressly stated that the party appealing is dissatisfied with the decision in whole or in part. So, it cannot be in contemplation in Order 8 Rule 3(1) that the respondent is dissatisfied with the decision.

 

I shall now turn to the argument of counsel and examine them for the purpose of a resolution of the question for determination, Chief William's contention in his brief runs thus:

 

It is well settled that a party is entitled to appeal if he complains that the award of damages is too high or too low. It is inconceivable that if a plaintiff appeals against an award by the High Court on the ground that the damages awarded are too low, all that a defendant who intends to argue in the appeal that the award is too high need do is to file a respondent's notice. It is conceded that he may do no more than that if his complaint is limited to arithmetical errors in the computation of the quantum of damages. But if he wants to contend that the decision of the court is erroneous in law, it is submitted that he can only do so by a substantive appeal. Since an appeal before the Court of Appeal is by way of rehearing, it is submitted that the same principle will apply in respect of appeals on quantum of damages from that court to the Supreme Court.

 

He supported his contention with the decisions in L.C.C. v. Ajayi (1970)1 All N.L.R. 291; Oyekan v. B.P. Nigeria Ltd. (1972)1 All N.L.R. (Part 1) 45 at 47. Adeleye v. Akin-Olugbade (1987) 3 N.W.L.R. (Pt. 60) 214 at 22~227. He submitted that where a party desires the Supreme Court to reverse a determination of law or of mixed law and fact or of fact which forms the substratum of his complaint a notice of appeal rather than a respondent's notice will enable him to argue the point before the court. He found support in the case of Oguma V. International Bank for West Africa (1988) 1 N.W.L.R. (Pt. 73) 653

 

Chief G.O.K. Ajayi, S.A.N., learned counsel for the respondent, submitted that his respondent's notice filed herein was founded on the ratio decidendi of L.C.C. V. Ajayi (supra) because the same would not involve the reversal of the decision of the Court of Appeal that the damages awarded by the High Court be reduced. He contended that the variation sought accepts the correctness of the determination of the Court of Appeal on principle but seeks to contend that the Court of Appeal should have gone further in the reduction. Chief G.O.K. Ajayi S.A.N., further contended that even if the variation sought does not fall within the ratio decidendi of L.C.C. v.  Ajayi (supra) and the same were held to amount to a reversal of a determination of the court below, he was still not bound to file a substantive cross appeal. He argued that:

 

(1)    a party dissatisfied with part of a judgment of a court may challenge the same by filing a respondent's notice notwithstanding that he seeks a reversal of the whole or a part of the judgment on a crucial or fundamental issue except only in the following cases where he must file a cross appeal

 

(a)    where he seeks to challenge the decision of the court below upon a cause of action separate and distinct from that appealed against by the appellant;

 

(b)   where there are several parties and the respondent wishes to challenge the order of the court on a point in which the appellant has no interest but other parties are interested;

 

 

(c)   where the respondent intends to contest the jurisdiction of the court;

 

(2)    the case of L.C.C. V. Ajayi (supra) did not in fact decide that a party seeking the reversal of a finding or determination which is crucial and fundamental to a case can only do so by filing a substantive cross appeal.

 

The submissions of counsel for the respondent and the appellant himself are weighty but having regard to what I have said earlier in this judgment, it is my opinion that the respondent in this appeal by his respondent's notice seeks to set aside the decision of the Court of Appeal (which is a reversal) and not merely to vary as the "variation" in the context used in the notice amounts to a reversal.

 

This is not permitted by the Rules and the law as it stands today. Learned counsel is aware of this and hence his invitation to this Court to overrule the decisions of this Court in the cases earlier listed above. Has learned counsel made out a case for departure from or for overruling those decisions? A strong case of error and injustice is required to be made before a court can take such a deliberate step. The cases of Paul Odi y,. Osafile (1985) 1 N.S.C.C. 14; (1985)1 S.C. 38; (1985)1 N.W.L.R. (Pt. 1)17 S.C., emphasised this. The case of Bucknor-Maclean V. Inlaks Motors (1980) 8-11 S.C. 1; (1980) NSCC 232 emphasised this. It must be established that those previous decisions were erroneous and vehicles of injustice. I cannot say that respondent's counsel has succeeded in this task. It must also be shown that the earlier decisions were a bee hive of injustice. There is also a failure in this task by learned counsel for the respondent.

 

Since the appellant and Chief G.O.K. Ajayi, S.A.N., learned counsel found support for their opposing contentions in the case of L.C.C. V. Ajayi (supra), it is necessary to give a close examination to the decision of the Supreme Court in that case. If the appellant's contention is supported by the authority, then the invitation by learned counsel for the respondent to

overrule the subsequent decisions of this Court as being in conflict with L.C.C. ". Ajayi (supra) will be misconceived and based on wrong premise. If, however, the authority supports the respondent's contention, then the invitation by learned counsel to depart from and overrule the subsequent decisions will deserve further examination to see whether there are grounds to warrant such a departure from or overruling of subsequent decisions of this Court.

 

L.C.C. v. Ajayi (supra) considered in detail the application of Order 7 Rule 13(1) of the Supreme Court Rules 1961 which reads:

 

13    (1)    It shall not be necessary for a respondent to give notice or motion by way of cross-appeal; but if a respondent intends upon the hearing of the appeal to contend that the decision of the court below be varied, or that it would be affirmed on grounds other than those relied on by that court, he shall within one month after service on him of the notice of appeal cause written notice of such intention to be given to every party who may be affected by such contention, whether or not such a party has filed an address for service. In such notice, the respondent shall clearly state the grounds on which he intended to rely and within the same period, he shall file with the registrar of the court below six copies of such notice of which one shall be included in the record, and the other five copies provided for the use of the Judges.

 

It is propr to mention here that this Rule no longer exists word for word in our Supreme Court Rules. The 1961 Supreme Court Rules ceased to govern procedure and practice in the Supreme Court since 1977 when the 1977 Supreme Court Rules came into force. Certainly, it does not exist in the above text in the Supreme Court Rules 1985 Order 8 Rule 3(1) pursuant to which the respondent's counsel filed the ~notice'. The first observation made by the Supreme Court per Coker, J.S.C. on the above Rule is that:

 

the rule dispenses with the filing of a notice of motion by way of cross appeal. See page 294 of (1970)1 All N.L.R.

 

That Court also observed that

 

No provision other than Order 7 Rule 13(1) appears in the Rules of the Supreme Court for bringing a cross appeal although it is proper to regard any appeal by a dissatisfied respondent as a cross-appeal.

 

Commenting further, Coker, J.S.C., said:

 

Without doubt, occasions must and do arise in which a respondent may have to appeal against a decision, as where for instance there are several causes of action and he is dissatisfied with the determination of some of them or where, for instance, there are several parties and he deserves to contest the decision with respect to some of those parties or where, indeed, he decides to appeal on a decision affecting only one or the other of a number of consolidated actions. A similar situation arises where a respondent desires to challenge the jurisdiction of the court. pages 29-295.

 

Commenting on the three characteristics of the Rule Coker J.S.C. said;

 

Undoubtedly, the point or points which the notice contemplates must have arisen from the appeal filed otherwise it is inconceivable that the respondent would be required to want and receive the appellant's notice before proceedings by virtue of Order 7 Rule 13(i) where for instance a respondent proposes to contest the appeal with respect to a different cause of action other than the one on which the appeal is based or against another of the parties who has not appealed, or other similar circumstances, the respondent has to file a substantive appeal or cross appeal.

 

The next important comment made by the learned Justice Coker, J.S.C. at page 296 reads:

 

Another characteristic of Order 7 Rule 13(1) is that it is only applicable where the respondent intends to retain the judgment but at the same time wants it varied; so where a respondent intends for instance to dispute the jurisdiction of the court of trial or to contest the competency of the entire proceedings or to maintain the absence of a fundamental prerequisite it seems he cannot come under this rule. In that case, he has to file a substantive cross appeal. The basis for this is clear for a man cannot at the same time obtain an advantage by maintaining a particular stand point and then seek to discard that same stand point whilst keeping the advantage.

 

The respondent in the instant case maintains the absence of evidence justifying the high level of award of general damages granted. His contentions is that the award is a totally wrong estimate that the law dictates in the award of aggravated damages.

 

The third characteristic observed by the learned justice Coker, J.S.C. at page 296 reads;

 

Lastly, the rule requires that the notice under it should be given to 'every party who may be affected by such contention whether or not such party has filed an address for service.

 

Thus it will be seen that the notice envisages a variation which may affect not only the particular appellant but also others as well who may not have appealed in the first instance . . . Manifestly, therefore, the rule itself envisages cases in which although a cross-appeal is desirable, yet the notice under Order 7 Rule 13(1) may as well be appropriate.

 

In conclusion, the learned Justice Coker, J.S.C. said at p.296:

 

The result of the inquiry therefore is that the notice under Order 7 Rule 13(1) applies where a particular point in the appeal of the appellant is being stretched by the respondent who contends for its maintenance but proposes a variation of it if that be the only way by which he could be enabled to retain the judgment. It would seem however that once a respondent's notice has been given, the appellant cannot prevent the respondent from having the point raised in the notice argued by withdrawing his appellant's notice of appeal. See Re Cavanders Trust (supra). The notice filed by the respondent in this case seeks to retain the judgment but requests a variation of the amount awarded by the judgment. The notice postulates that the approach of the learned trial Judge to the case was correct, but that his conclusions had adversely affected the respondent who thereby contends that by the same reasoning of the learned trial Judge he should have received a greater award.

 

The learned Justice Coker, J.S.C. at 296 also observed that

 

It is not easy to draw a clear-cut line of demarcation between degrees of variation and it is not impossible for an order of variation to affect the interest of other parties to the extent of virtually reversing the judgment which they had obtained.

 

This is understandable under the Rule under consideration since the Rule provides that it shall not be necessary for the respondent to give notice of motion by way of cross appeal.

 

L.C.C. v. Ajayi L.C.C. v. Ajayi (supra) was a case of assessment of compensation. It was not a case of assessment of general damages for defamation and libel. Matters to be taken into consideration for the assessment of compensation for land compulsorily acquired were prescribed by the Public Lands Acquisition Act but are now prescribed by the Public Lands Acquisition (Miscellaneous Provisions) Act 1976 and are quite different from the principles of law which govern the assessment of general damages for libel in a complaint of excessive award.

 

The opening comments of the Supreme Court per Coker, J.S.C. which preceded the consideration of the Rule, Order 7 Rule 13(1) is significant in its texts which read (see page 293)

 

A perusal of the notice filed by the respondent makes it plain that like the present appellant, the respondent is as well dissatisfied with the terms of the judgment and will like the judgment in the case to be in the term suggested in the notice. The point therefore that arose for determination on the preliminary objection is whether the provisions of Order 7 Rule 13(1) are designed to meet a situation which is tantamount to a complete reversal of the judgment already given or the employment of the rule is circumscribed within the bounds of what is strictly speaking, a mere variation.

 

It is clear from the comments and observations of the learned Justice, Coker, J.S.C., reproduced above, that the employment of the Rule is circumscribed within the bounds of what is strictly speaking mere variation the dispensation of the need to give a notice of motion by way of cross appeal notwithstanding.

 

Having held that the respondent in the case sought to retain the judgment but requests an increase in the compensation awarded, on the same reasoning of the Judge, it is only the computation within the accepted parameters that is involved. That is not the case here in this appeal.

 

Firstly, the variation required was not stated. It was a blanket request that the damage of N60,000.00 awarded to the plaintiff be substantially reduced. Secondly, the grounds upon which the reduction is sought are that

 

(1)    the amount of N60,000.00 damages is excessive and

 

(2)    amounts to exemplary damages and not aggravated damages which the learned trial Judge said he awarded.

 

L.C.C. V. Ajayi L.C.C. V. Ajayi (supra) was therefore decided on the interpretation of the provisions of Order 7 Rule 13(1) Supreme Court Rules 1961 which is different in text from Order 8 Rule 3(1) Supreme Court Rules 1985. L.C.C. V. Ajayi (supra) was decided in 1979 and it dealt with the interpretation of Order 7 Rule 13(1) Supreme Court Rules 1961. The interpretation of the Rule encompasses several situations. It is contended that the decisions in L.C.C. V. Ogundemuren SC/355/69 delivered on 26/11/71; Oy'ekan V. BR. Nigeria Ltd. (1972)1 All N.L.R. (Part 1) 47; B.E.O.O. md. (Nig.) Ltd. V. Maduakoh Dredging Roads and General Works Ltd. (1977) 5 S.C. 235 constitutes a departure from the decision in L.C.C. V. Ajayi (supra). Those decisions were however in conformity with one of other aspects of the several situations envisaged and covered by the Rule.

 

In L.C.C.v. Ogundemuren (supra), Udoma, J.S.C. delivering the judgment of the Court, confirming the view earlier held in L.C.C. V. Ajayi (supra) but without reference to L.C.C. V. Ajayi (supra) said:

 

On a true construction, these provisions contemplate that the party applying for variation or confirmation of the judgment was a successful party in the court below in respect to that aspect of the judgment for which he requires variation. We do not think that even on a liberal interpretation those provisions could ever be held to contemplate a situation wherein an application for variation or confirmation of a judgment on grounds other than those relied on by the court would be entitled to a complete re"ersal in his favour of a finding of fact made or judgment of the court given against him on certain issues contested in the case, even though the applicant succeeded in the court below on a number of other issues. Such is the nature of this application made to us by counsel for the 1st respondent. He seeks that the court should reverse findings of fact which had been made by the court below against him and which had resulted in his being denied the relief which he had sought.

 

In Oyekan V. B.P. Nigeria Ltd (supra), the plaintiffs' claim had been non-suited and the defendant appealed and sought as relief the dismissal of the case. The plaintiffs on the other hand, filed a notice under the provisions of Order 7 Rule 13 of the Supreme Court Rules 1961 to contend that the decision of the court below be varied by entering judgment against the defendant for the amount of claim together with costs.

 

Coker, J.S.C., delivering the judgment of the Supreme Court said:

 

It is pertinent at this stage to observe that at the hearing of the appeal the plaintiffs were neither present nor represented by counsel. We observe that the contention of the plaintiffs as on their notice, was that the Judge should have given judgment in their favour and point out that if this were so it would have been desirable for them to file a cross appeal if they be so advised rather than file a notice pursuant to the provisions of Order 7 Rule 13 of the rules of the Supreme Court. We would refer in this connection to the observations of this Court in 4jayi V. L.C.C. SC. 74/68 decided on 25/9(70 and L.C.C. V. Ogundemuren and Another SC.335169 decided on 26/11/71.

 

It is important that the plaintiff and his counsel did not appear at the hearing and the Supreme Court struck out the notice.

 

In African Continental Seaways  Ltd. V. Nigecia Dredging Roads and General Works Ltd. (supra), the Supreme Court repeated the point made by Udoma, J.S.C. in L.C.C. v. Ogundemuren (supra) and by Coker, J.S.C. in Oyekan v. B.P. Nigeria Ltd. (supra) when Irikefe, J.S.C., delivering the judgment of the court said:

 

As we had indicated earlier in this judgment, we find little that calls for criticism of the above reasoning of the learned Judge. We were, however, amazed that learned counsel appearing on behalf of the respondents had sought by an application to vary the judgment by which we understood him to mean that the judgment should be supported on other grounds than those shown by the court of trial, that the finding as to the existence of a contract  should be set aside. We would like to say here, as we have done in many cases coming before us in this Court that a party seeking to set aside a finding which is crucial and fundamental to a case can only do so through a substantive cross-appeal and not by an application to vary.

 

Those were the decisions of this court on the Order 7 Rule 13(1) of the Rules of the Supreme Court 1961. The 1961 Rules ceased to be in force on 1st September, 1977 when the Supreme Court Rules 1977 came into force. Order 7 Rule 13 of the 1961 Rules was not repeated in the 1977 Rules. Order 7 Rule 13 omitted from its text the provision that it shall not be necessary for the respondent to give notice of motion by way of cross-appeal.

 

This is apparently to emphasise that the Rule is to cover a situation where the respondent wishes to retain the judgment but seeks a variation or confirmation on other grounds.

 

Hence, the Order 7 Rule 13 of the 1977 Supreme Court Rules was couched as follows:

 

(1)    A respondent who, not having appealed from the decision of the court below desires to contend that the decision of the court should be varied, either in any event or in the event of the appeal being allowed in whole or in part, must give notice to that effect, specifying the grounds of that contention and the precise form of the order which he proposes to ask the court to make, or to make in that event as the case may be:

 

(2)    A respondent who desires to contend on the appeal that the decision of the court below should be affirmed on grounds other than those relied upon by that court must give notice to that effect by specifying the grounds of that contention."

 

This Rule has found a place in the 1985 Supreme Court Rules as Order 8 Rule 3(1) and (2).

 

The decisions on the point in Chief Adedapo Adekeye and Anor. v. Chief O.B. Akin-Olugbade (1977) 6 S.C. 268 and Eliochin(Nigeria)  Ltd.v. Mbadiwe (1986)1 N.W.L.R. (Pt. 14) 47 were in line with all the previous decisions dealt with earlier in this judgment. Oguma v. I.B.W.A. (1988)1 N.W.L.R. (Pt. 73) 685 (per Agbaje, J.S.C.) made the same point citing African Continental Seaways Ltd.v. Nigerian Dredging Roads and General  Works Ltd. (1977) 5 S.C. 235 at 247. Here the notice was filed under Order 8 Rule 3 of the Supreme Court Rules 1985. The decisions on the 1961 Rules had regard to the constitutional right of a party to a case to appeal if dissatisfied against a decision. Thus, Coker, J.S.C. in L.C.C. v..Ajayi (supra) at page 294 said:

 

No provision other than Order 7 Rule 13(1) appears in the Rules of the Supreme Court for bringing a cross-appeal although it is proper to regard any appeal by a dissatisfied respondent as a cross-appeal. This involves prima facie that an appeal has already been filed since it is only in that context that one conceives of a respondent at all. On the other hand, there is nothing in the rules depriving a respondent of the right to appeal against a decision with which  is dissatisfied. To do this would tantamount in our view an infringement of the clear provisions of section 117(6) of the Constitution which is specifically  reserves the right of appeal prescribed therein. Without doubt, occasions must and do arise on which a respondent may have to appeal against a decision as where for instance there are several causes of action and he is dissatisfied with the determination of some of them

 

The Rules in Order 7 Rule 2(l) of the Supreme Court Rules 1961 specifically provide that:

 

All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called 'the notice of appeal') to be filed in the Registry of the court below which shall set forth the grounds of appeal, shall state whether the whole or part of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal and shall be accompanied by a sufficient number of copies for service on all such parties. It shall also have endorsed on it an address for service.

 

It is therefore clear that where there is a complaint against the decision in whole or in part under the 1961 Rules the aggrieved party must file a notice of appeal. Order 7 Rule 1 3(1) was properly interpreted as confined only to a situation where the respondent intends to retain the decision but wishes it varied or confirmed on other grounds, the opening sentence that it shall not be necessary for the respondent to give notice of appeal only emphasised the need to dispense with notice of cross-appeal for those contentions. It is obvious that what that Rule means is that where those contentions specified are the only complaints, it shall not be necessary to give notice of cross-appeal.

Supreme Court Rules, 1985.

 

It is true that the ratio decidendi of L.C.C. v. Ajayi (supra) was in regard to the quantum of compensation for property compulsorily acquired and the Supreme Court dismissed the objections to the notice of intention to vary. The court stated its reasons for so doing fully and emphasised that the respondent intended to retain the decision and the reasoning.

 

In the instant case where the appeal is solely on the quantum of general damages, the complaint goes much further. The principles governing the assessment are different and the attack of the respondent must of necessity be concentrated on those principles and the material evidence which influenced the decision to award that amount. In such a case, a notice of appeal is called for.

 

Accordingly, I agree with my learned brother, Eso, J.S.C. that the preliminary objection to the notice of intention to vary filed by the respondent be upheld and the notice be struck out. I agree with my learned brother also that the appellant's complaint against matters taken into consideration by the Court of Appeal that influenced it to reduce the N100,000.00 damages awarded by the High Court is justified. Those matters ought not to have had any influence on the minds of the learned justices of the Court of Appeal. They must be discarded and I hereby discard them.

 

Having discarded them, there is nothing to base the reduction of the damages to N60,000.00 on and so the appellant's appeal succeeds. I hereby allow the appeal, set aside the N60,000.00 awarded by the Court of Appeal and restore the N100,000.00 damages awarded by the High Court.

 

The appellant shall have costs in this appeal fixed at N500.00.

 

 

Judgment delivered by

Augustine Nnamani. J.S.C.

 

I had the advantage of reading in draft the judgment just delivered by niy learned brother, Eso, J.S.C. and I entirely agree with his reasoning and conclusions.

 

This concurring judgment is necessitated by the importance of the matter raised before the full Court and the opportunity it has given to revisit this issue of respondent's notice and respondent's cross-appeal.

 

For purposes of this concurring opinion, I shall rely on the facts of this case as set down in the lead judgment except such as are necessary for this judgment. It is pertinent to mention that the question of the defendant's liability for libel is not in issue here. For that liability Beckley, J., in the High Court of Lagos State awarded the plaintiff/appellant N100,000.00. The defendant/respondent appealed to the Court of Appeal, Lagos Judicial Division which allowed the appeal and reduced the damages from N100,000.00 to N60,000.00. The appellant appealed to this Court against the reduction, while the respondent filed a Respondent's notice contending for a further reduction.

 

Before going to the appeal and the respondent's notice, it is pertinent to mention that the plaintiff/appellant had in his claim in the Lagos High Court claimed N250,000.00 for exemplary damages or in the alternative N100,000.00 as aggravated damages. Paragraph 7 of the Statement of Claim read "And the plaintiff claims N250,000.00 exemplary damages and/or in the alternative N100,000.00 aggravated damages as per the writ of summons." It was as aggravated damages that Beckley, J., awarded N100,000.00. The significance of this will become obvious later in this judgment.

 

To return to the appeal to this Court, Chief Rotimi Williams, S.A.N., who is also the plaintiff/appellant herein, formulated 3 questions in his brief of argument as arising in this appeal.

 

They were:

 

(i)    whether the Court of Appeal was correct in holding that the High Court was wrong in taking into account two other publications of the same newspaper in awarding damages.

 

(ii)    whether it was correct for the Court of Appeal to have used the award in Lardner " The Sketch Publishing Co. Ltd. as the yardstick for measuring the amount of damages that ought to be awarded to the Plaintiff in this case.

 

(iii)    whether the Court of Appeal is correct in regarding it as a rule of practice that what a court can award as unliquidated damages must be less than the amount claimed by the party in whose favour the award was made."

 

Following the filing of the appeal to this Court, the respondent, as earlier mentioned, on 2nd October, 1986 filed a Respondent's notice in the following terms:

 

TAKE NOTICE that upon the hearing of the above appeal the respondent herein intends to contend that the decision of the Court below dated the 27th of May, 1986 shall be varied as follows:

 

That the damages of N60,000.00 awarded to the Plaintiff be further substantially reduced.

 

AND TAKE NOTICE that the grounds on which the Respondent intends to rely are as follows:

 

(I)    In awarding the Plaintiff damages of N60,000.00 the Court below failed to give effect to its decision that the Plaintiff was not entitled to an award of aggravated damages;

 

(2)    The amount of N60,000.00 damages is excessive and amounts to not just aggravated damages but to exemplary damages."

 

The notice was said to be flied pursuant to Order 8, Rule 3(1) of the Supreme Court Rules, 1985. Rules 3(i) and (ii) are in these terms:-

 

Order 8.

 

3    (1)      A respondent who, not having appealed from the decision of the Court below, desires to contend on the appeal that the decision of that Court should he varied, either in any event, or in the event of the appeal being allowed in whole or in part, must give notice to that effect specifying the grounds of that contention and the precise form of the order which he proposes to ask the Court to make or to make in that event, as the case may be.

 

(2)    A respondent who desires to contend on the appeal that the decision of the Court below should be affirmed on grounds other than those relied upon by that Court must give notice to that effect specifying the grounds of that contention.

 

Chief Williams raised an objection to the effect that what learned Senior Advocate for the Respondent Chief G.O.K. Ajayi, S.A.N., was contending was for a reversal of the decision of the Court of Appeal and this could only be done by a cross-appeal not by a respondent's notice to vary the judgment. Chief Ajayi, relying on the decision of this Court in L.C.C. v. Ajayi (1970)1 All N.L.R. 291 contended that his notice was competent. He listed such subsequent decisions of this court as-

 

(a)    L.C.C. v. Ogundemuren Suit No. 5C1335/69 dated 26th November, 1971

 

(b)    Oyekan v. B.P. Nigeria Ltd (b)    Oyekan v. B.P. Nigeria Ltd (1972)1 All N.L.R. (part 1)47

 

(c)    B.E.O.O. Irid (Nig.) Ltd. v. Maduakoh (1975)12 S.C. 91

 

(d)    African Continental Seaways Ltd v. Nigerian Dredging Roads and General Works Ltd. (d)    African Continental Seaways Ltd v. Nigerian Dredging Roads and General Works Ltd. (1977) 5 S.C. 235

 

(e)    Enang v. Adu (e)    Enang v. Adu (1981)11-12 S.C. 25

 

(f)    Dumbo v. Idugboe  (1983)1 S.C.N.L.R. 29

 

(g)    Ellochin v. Mbadiwe (1986)1 N.M.L.R. 47; (1986)1 N.W.L.R. (Pt. 14)47

 

(h)    Adekeye v. Chief O.B. Akin-Olugbade  (1987) 6 S.C. 268; (1987) 3 N.W.L.R. (Pt. 60) 214.

 

(i)    Oguma Associated Co. Nig. Ltd. v. I.B.W.A. (1988)1 N.W.L.R. (Pt.73) 668 all of which established the principle that a party seeking the reversal of a finding or determination which is crucial and fundamental to a case.

 

can only do so by filing a substantive cross-appeal, which decision was not reached in L.C.C. v. Ajayi (supra), and contended that they were inconsistent (with L.C.C. v. Ajayi) and wrongly decided and ought to be overruled. It was this that came before the Full Court.

 

Both Senior Counsel filed very useful briefs which were expatiated upon an oral argument. In his brief of objection, Chief Williams, S.A.N., identified the single issue for determination as:

 

In what circumstances if any, can a defendant who succeeded in persuading the Court of Appeal to reduce the amount of damages awarded by the High Court in favour of the plaintiff, be permitted, to argue before the Supreme Court for an order for further reduction if he files no notice of appeal but relied only on a Respondent's Notice filed puNuant to Order 8 Rule 3 of the Supreme Court Rules, 1985.

 

In oral argument, Chief Williams made three main submissions. He urged that Order 8 Rule 3 should be construed in the context of the Supreme Court Rules particularly in the context of Order 8 itself. He referred to Order 8 Rule 2(1) which provides that:

 

All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called the notice of appeal') to be filed in the Registry of the court below which shall set forth the grounds of appeal, state whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, and shall be accompanied by a sufficient number of copies for service on all such parties. It shall also have endorsed on it an address for service.

 

He said that a meaning must be put on Rule 3 which would not affect Rule 2 of Order 8. Although Chief Williams conceded that applying ordinary English language the word vary was wide enough to cover what can be asked for in an appeal, he thought the question was which of the two meanings was appropriate in the context of Order 8 Rule 3. Chief Williams said that up to 1979 the English rules were similar to our own Supreme Court Rules 1961. It was only in the White Book 1982 that a new subsection 1(c) was inserted allowing a contention by way of cross-appeal. He submitted that Order 8, Rule 3 should not be interpreted to affect the efficacy of Order 8 Rule 2 which requires anybody complaining of a judgment to put in an appeal. Relying on African Continental Seaways Ltd (supra), he finally submitted that this Court was right in all the cases in which it decided that if you are complaining of a crucial or fundamental part of a judgment, an appeal rather than a respondent's notice was the way to pursue it.

 

Chief Ajayl on his part argued that the decision in L.C.C. v Ajayi was to the effect that the respondent in that case clearly sought to retain the judgment but requested a variation of the amount awarded by that judgment. The case, he said, did not decide that a party seeking the reversal of a finding which is crucial or fundamental can only file a substantive cross-appeal. He contended that the subsequent cases, as much as they so decided, were inconsistent with LC.C. v. Ajay'i (supra) which was on Order7 Rule 13(1) of the Supreme Court Rules 1961. He submitted that as at 1970, this Court was bound to follow English law and practice on the issue of Respondent's Notice. See Order 7 Rule 36 of the Supreme Court Rules 1961, which provided that:

 

where no other provision is made by these Rules the procedure and practice for the time being in force in the Court of Appeal in England shall apply in so far as it is not inconsistent with these Rules, and the Forms in use therein may be used with such adaptations as are necessary.

 

Under English practice, a respondent's notice was filed if a party was dissatisfied with any part of a judgment notwithstanding that he seeks reversal. There were only 3 cases in which he must file a cross-appeal. Chief Ajayi conceded that both in the 1977 and 1985 Rules of the Supreme Court there is no obligation to follow English practice or law. Most of the cases after L.C.C. and Ajayi were, he agreed, based on the 1977 Rules. Although Chief Ajayi agreed that this Court could depart from English practice on Respondent's notice, he did not think there was need for such a departure. The word vary he submitted, was wide enough to sustain a reversal. He urged this Court to decide what the meaning of vary was. The Court could either take the old narrow meaning which excludes reversal or the wide meaning as in English practice. He submitted that both from the grammatical or practice point of view, the situation should be that vary should include reversal.

 

The first issue due for consideration is whether the subsequent decisions to L.C.C. v Ajayi were inconsistent with it and wrong. My learned brother, Eso, J.S.C. has in the lead judgment extensively reviewed all the relevant decisions and Supreme Court Rules and arrived at his conclusions with which I agree. I shall, therefore, not deal with this part in any detail to avoid needless repetition.

 

L.C.C. v. Ajayi L.C.C. v. Ajayi was decided on the interpretation of Order 7 Rule 13(1) of the Supreme Court Rules, 1981. As was mentioned earlier, by virtue of Order 7 Rule 36 of the 1961 Rules, this Court was obliged to follow English practice on the issue of Respondent's Notice which up to 1982 at least meant that the questions of cross-appeal arose in 3 cases~jurisdiction etc. In most other cases the respondent's notice to vary would be sufficient even where what was desired was a reversal. Order 7 Rule 13(1) of the 1961 Rules are in these terms:

 

13    (1)    it shall not be necessary for the respondent to give notice of motion by way of cross-appeal; but if a respondent intends at the hearing of the appeal to contend that the decision of the Court below should be varied, or that it should be affirmed on grounds other than those relied on by that Court he should within one month after service upon him of notice of appeal cause written notice of such intention to be given to every party who may be affected by such contention, whether or not such party has filed an address for service. In such notice, the respondent shall clearly state the grounds on which he intends to rely and within the same period he shall file with the Registrar of the Court Six Copies . . . may be just (Italics mine)

 

The words italicized above are very significant. In effect they rule out a cross-appeal and allow a respondent's notice to be used when what is desired is a reversal. It is pertinent to mention that those words do not appear in Order 7 Rule 13(1) of the Supreme Court Rules 1977 which came into effect from September 1977 or in the current Supreme Court Rules, 1985. Secondly, and equally significant, is the fact that, while under the 1961 Rules on which L.C.C. v. Ajayi was based this Court was obliged to follow English practice on the matter of respondent's notice, no such obligation arises in the 1977 and 1985 Supreme Court Rules. I am, therefore, of the view too that on these grounds putting it quite briefly, there can be no inconsistency between the decision in Ajayi and the subsequent cases listed earlier in this judgment. Most of those cases were decided on the 1977 and the 1985 Rules, most because some of the cases such as Ogundemuren, Oyekan, Maduakoh etc were decided on the 1961 Rules but still took a different line from what Chief Ajayi has contended is the real decision in L.C.C. v. Ajayi.

 

The next question is, are those decisions based as they were on Order 7 Rule 13 of the 1977 and Order 8 Rule 6 of the 1985 rules (which incidentally are in pari materia) wrong? I do not think so. I have already set down above the provisions of Rules 2 and 3 of Order 8 of the 1985 Rules. I am of the view that in consonance with the settled law and practice in the interpretation of statute and statutory provisions, the order i.e. Order 8 should be interpreted as a whole. Order 8 Rule 3 would, as Chief Williams rightly submitted, be interpreted in the context of the whole order and particularly Rule 2. Under Rule 2, an appeal is stated to be by way of a rehearing and a party dissatisfied with a judgment can file notice of appeal which must necessarily include a cross-appeal. Having given Rule 2 such a meaning, the word vary in Rule 3(1) cannot be given as wide a meaning as Chief Ajayi has urged as to mean that a party who is dissatisfied with a judgment such that he desires a reversal can come within Rule 3(1) instead of filing a cross-appeal under Rule 2. In my view, the word vary must be limited to its narrow meaning to cover a respondent who has accepted a judgment of a lower court, and having not appealed, desires a variation of some arithmetical and other details not crucial or fundamental.

 

That is the position taken by all the cases which Chief Ajayi now wishes this Court to overrule. Irikefe, J.S.C. (as he then was) put it this way in African Continental Seaways (supra).

 

a party seeking to set aside a finding which is crucial and fundamental to a case can only do so through a substantial cross-appeal and not by an application to vary.

 

This has been followed and reiterated in all the other cases and I think this is right.

 

To return to the instant case, the respondent is in effect contending that the lower court has erred on some principles of law. The grounds on which the respondent is pressing for a further reduction of the damages to my mind challenge some crucial findings of the lower court and cannot be pursued by a respondent's notice. They were properly the subject of a cross-appeal. None was filed. I agree therefore that Chief William's objection be sustained. Now one comes to Chief William's appeal. The 3 grounds on which the Court of Appeal based its decision to reduce the damages awarded by Beckley, J., can be seen in a portion of the lead judgment of Ademola, J.C.A., where he said:

 

It has not been established by the appellant in his argument that the learned trial Judge proceeded on wrong principle in the award of damages. What was taken into consideration were the two other publications of the same paper about the respondent which have not been proved to be false and had been said by the learned trial Judge to have been done to ridicule the Respondent. The inference of ridicule of the Respondent by the publications should not readily and necessarily be drawn. Besides, I am of the view that to grant what was wholly claimed in this suit as exemplary unliquidated damages was not in step with the practice of the court. In the case of Lardner v. The Sketch Publishing Co. (supra) which was used by the learned trial Judge in the present case and which was the case in which imputation of dishonesty was made against a senior member of the legal profession in the conduct of his work, the court, (the same High Court of Lagos State) made an award of  N50,000.00.

 

Before commenting on these three grounds it is necessary to mention two points. First is that while the Court of Appeal was concerned with exemplary damages unliquidated Beckley, J., awarded aggravated damages which, as was shown earlier, was claimed by the plaintiff in the alternative. Secondly, the portion of Adeniola, J.C.A.'s judgment started with the words that it has not been established that the learned trial Judge acted on wrong principles of law and yet proceeded to set aside the trial Judge's award. It is well settled that the award of damages by a trial Court can only be upset by an appellate Court if that Court feels that the trial court acted on wrong principles of law or that the amount awarded by the trial Court is extremely high or low. The appellate court ought not to upset the award of damages by a trial Court merely because if it had tried the matter it would have awarded a lesser amount. See Flint v. Lovel (1935)1 K.B. 354; 300, James v. Mid Motors (Nigeria) Ltd. (1978)12 S.C. 31.

 

It is difficult to resist the temptation to conclude that this last is what really happened. This is so as the 3 grounds on which the Court of Appeal based its decision are, with all due respect, untenable. I shall not take much time on the contention that it is the practice not to give a party all that it claimed or the point that what was awarded in Lardner' s case should be a yardstick as it was agreed by all including Chief Ajayi that those points are totally untenable.

 

Let me therefore limit myself to the two publications on which the learned trial Judge based his award of aggravated damages. The first publication which was on 1.3.80 had a prominent headline "ROTIMI TO PAY COSTS" on the front page. The photograph of the appellant was also displayed. The second publication of 14.8.80 had the headline: "CASE PUT OFF AS ROTIMI STAYS AWAY: 13 CHILDREN SUE LAWYER. In that portion of his judgment to which I earlier made reference, Ademola, J.C.A. said that they had not been proved to be false. It is not clear to me whether the learned Justice of the Court of Appeal meant that they had not shown to be false or otherwise. In my view, I think he was referring to the truth of the matters published. My answer is that even if the publications were true, and indeed it was true that the appellant was ordered to pay N100 costs and that on the day in which he was said to have stayed away, he was absent from Court, the manner in which the publication was made could show a desire to ridicule the appellant. In the course of oral argument, we had the opportunity of examining the publications of 1.3.80 and 14.3.80 which were tendered in evidence as Exhibit E and F. In Exhibit E for instance, the photograph of the appellant was prominently displayed on the front page. Another page had "ROTIMI TO PAY FINE". The sub-titles in the publication included "13 KIDS SUE LAWYER" and went on to state the substance of the libel in respect of which the respondent had been found liable. The publication of 14.8.80 is even worse. Not only was the appellant's photograph once more prominently displaced over an adjournment, but the words "case put off as Rotimi stays away" certainly gave the impression that the appellant was running away. Also added were the words "13 Children sue lawyer." I am also of the view that when one takes into account all these circumstances, one is bound to agree with Beckley, J., that the publications were intended to ridicule the appellant.

 

It was suggested in the course of argument that if the appellant had sued on these subsequent publications, he would have been met with a defence of privileges as the offending publications were records of court proceedings. Although a principal witness for the respondent gave evidence that the publications of 1.3.80 and 14.8.80 were reports of court proceedings, the trial Judge did not advert to this evidence and so did not evaluate it. I am inclined to agree with Chief Williams that if the respondent wished to rely on privilege these being reports of court proceedings, it was for it to produce certified true copy of such court proceedings. However, even if one conceded that the question whether the reports were of court proceedings was not controverted, the respondent would not have been able to establish privilege. Section 10 of the Defamation Law of Lagos State provides that:

 

A fair and accurate report in any newspaper of proceedings publicly heard before any court exercising judicial authority within the Lagos State shall, if published contemporaneously with such proceedings be privileged.

 

From all I have said, the publication of 14.8.80 and 1.3.80 were neither fair nor accurate.

 

For these reasons, and the more detailed reasons in the lead judgment, this appeal succeeds and I allow it. I endorse all the orders made by my learned brother, Eso, J.S.C.

 

 

 

Judgment delivered by

Muhammadu Lawal Uwais. J.S.C.

 

I have had the opportunity of reading in draft the judgment read by my learned brother Eso, J.S.C. I entirely agree with the reasons and conclusion therein. However, I wish to add the following by way of emphasis.

 

In this appeal, which concerns the publication of libel by the respondent, the appellant formulated the following issues for determination-

 

(i)    Whether the Court of Appeal was correct in holding that the High Court was wrong in taking into account two other publications of the same newspaper in awarding damages.

 

(ii)    Whether it was correct for the Court of Appeal to have used the award in Lardner v. The Sketch Publishing Co. Ltd. as yardstick for measuring the amount of damages that ought to be awarded to the plaintiff in this case.

 

(iii)   Whether the Court of Appeal is correct in regarding it as a rule of practice that what a court can award as unliquidated damages must be less than the amount claimed by the party in whose favour the award was made.

 

For his part the respondent filed a respondent's notice under Order 8 rule 3(1) of the Supreme Court Rules, 1985 seeking the judgment of the Court of Appeal, which reduced the aggravated damages awarded to the appellant from N100,000.00 to N60,000.00, to substantially be further reduced for the following reasons-

 

(1)    In awarding the Plaintiff damages of N60,000.00 the Court below failed to give effect to its decision that the Plaintiff was not entitled to an award of aggravated damages.

 

(2)    The amount of N60,000.00 damages is excessive and amounts to not just aggravated damages, but to exemplary damages.

 

When the appeal came up for hearing on the 9th day of May, 1989, the appellant raised objection to the argument of Chief Ajayi, learned Senior Advocate, for the respondent, on the respondent's notice. Consequently, the hearing was adjourned to the 10th day of October, 1989 to enable the respondent to file an amended respondent's brief of argument. In support of his objection, the appellant filed an objector's brief in which he stated the issue for determination in the objection to be thus-

 

In what circumstances, if any, can a defendant who succeeded in persuading the Court of Appeal to reduce the amount of damages awarded by the High Court in favour of the plaintiff, be permitted to argue before the Supreme Court for an order for further reduction if he files no Notice of Appeal but relies only on a Respondent's Notice filed pursuant to Order 8 Rule 3 of the Supreme Court Rules, 1985.

 

Learned Senior Advocate for the respondent filed an amended brief of argument in reply to the objector's brief, in which he inter alia urged that the decisions of this Court in a number of cases, which were said to have followed the earlier decision of the Court in L.C.C. v. Ajayi (1970)1 All N.L.R. 291 (relied upon by the appellant) ought to be overruled for being inconsistent with Ajayi's case (supra). The cases cited to be overruled are-

 

(i)    L.C.C. y,. Ogundemuren, Suit No. SC.335/1969 (unreported) judgment read on 26th day of November, 1971.

 

(ii)    Oyekan V. B.P. Nigeria Ltd. (1972)1 All N.L.R. (Part 1) 47

 

(iii)    B.E.O.O. md. (Nig.) Ltd. v. Maduakoh (1975)12 S.C. 91.

 

(iv)    African Continental Seaways Ltd. v. Nigerian Dredging Roads and General Works Ltd. (1977) 5 S.C. 235.

 

(v)    Enang v.Adu (1981)11-12 S.C. 25

 

(vi)    Dumbo v. Idugboe (1983)1 S.C.N.L.R. 29

 

(vii)    Ellochin v. Mbadiwe (1986)1 N.W.L.R. (Pt. 14) 47

 

(viii)    Adekeye V. Chief OB. Akin-Olugbade (1987) 6 S.C. 268; (1987) 3 N.W.L.R. (Pt. 60) 214; and

 

(ix)    Oguma Associated Co Ltd. v. IB.W.A. (1988)1 N.W.L.R. (Pt. 73) 658.

 

In arguing the objection, the appellant said that the grounds on which the award of damages by a trial court can be interfered with by an appeal court are settled in James v. Mid-Motors (Nig.) Ltd. (1978)12 S.C. 31; Jarmakani Transport V. Abeke (1963)1 All N.L.R. 180; Zik's Press Ltd., v. Ikoku 13 W.A.C.A. 188 and Zik's Press Ltd. v. Awolowo 14 W.A.C.A. 66 all of which followed the decision in Davies v. Powell Daffryn Collieries (1942) A.C. 601 at pp. 6l6-617 and 623-624. These grounds are-

 

(a)   That the trial Judge acted on a wrong principle of law, and

 

(b)   That the trial Judge has made an estimate of damages which is entirely erroneous i.e. which no reasonable tribunal would have made.

 

The appellant submitted that a party may complain that the award of damages is either high or low and should be interfered with, but the proper procedure to be followed in that respect must be by way of appeal or cross-appeal. He then cited L.C.C. v. Ajayi (supra), Oyekan v. B.P. Nig. Ltd. (supra) and Adekeye v. Akin-Olugbade (supra) which he submitted established the proposition that in every case where a party desires this Court to reverse a determination of law or of mixed law and fact or of fact which forms the substratum of a particular decision of the court below, only a notice of appeal, rather than a respondent's notice, will enable him to argue the point. He further submitted that the provisions of Order 8 Rule 3 of the Supreme Court Rules, 1985 should be construed in the context of the whole of Order 8 and such construction should not detract from the provisions of Order 8 rule 2 of the 1985 Rules.

 

In reply, Chief Ajayi contended that the variation sought accepts in principle the determination of the Court of Appeal in reducing the damages from N100,000.00 to N60,000.00; but seeks to contend that the Court of Appeal had not in reducing the damages, gone far enough and therefore the damages awarded by the Court of Apeal should be further reduced. He then submitted that the variation sought falls within the decision in L.C.C. N. Ajayi (supra). In the alternative, learned Senior Advocate argued that even if the variation did not fall within the ratio decidendi of L.C.C. v. Ajayi the respondent was not bound to file a cross-appeal because the only occasions on which it would be bound to cross-appeal are-

 

(a)    Where it seeks to challenge the decision of the court below upon a cause of action separate and distinct from that appealed against by the appellant.

 

(b)   Where there are several parties and the Respondent wishes to challenge the order of the court on a point in which the appellant has no interest but other parties are interested.

 

(c)    Where the respondent intends to contest the jurisdiction of the court below.

 

Arguing further, Chief Ajayi, submitted that this Court did not in fact decide in L.C.C. v. Ajayi (supra) that a party seeking the reversal of a finding or determination which is crucial and fundamental to a case can only do so by filing a substantive cross-appeal. It is on the basis of this submission that Chief Ajayi urged this Court to hold that the numerous cases cited above are inconsistent with the decision in L.C.C. v. Ajayi.

 

Now the decision in L.C.C. v. Ajayi was based on the provisions of Order 7 rule 13 of the Supreme Court Rules, 1961 which stated as follows-

 

13    (1)    It shall not be necessary for the respondent to give notice of motion by way of cross-appeal: but if a respondent intends at the hearing of the appeal to contend that the decision of the Court below should be varied, or that it should be affirmed on grounds other than those relied on by that Court he should within one month after service upon him of notice of appeal cause written notice of such intention to be given to every party who may be affected by such contention, whether or not such party has filed an address for service. In such notice the respondent shall clearly state the grounds on which he intends to rely and within the same period he shall file with the Registrar of the Court below six copies of such notice of which one shall be included in the record, and the other five copies provided for the use of the Judges.

 

(2)    Omission to give such notice shall not diminish any powers of the Court but may in the discretion of the Court be a ground for postponement or adjournment of the appeal upon such terms as to costs or otherwise as may be just.

 

It is clear from the opening words of subsection (1) above that if a respondent wished to cross-appeal under the 1961 Rules, it was not necessary for him to file a notice of motion by way of cross-appeal. This is a very important difference from the current Rules-the Supreme Court Rules, 1985, which in Order 8 rule 2 thereof require that-

 

 

2    (1)    All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called, 'the notice of appeal') . .

 

Though nowhere in the Supreme Court Rules, 1985 the expression "Cross-appeal" is used, as in the Supreme Court Rules, 1961, there can be no doubt that an appeal by a respondent in the same case is a cross-appeal. Black's Law Dictionary, 5th Edition, defines "cross-appeal" as "An appeal by the appel lee." Therefore, when Order 8 Rule 2 states that all appeals shall be brought by notice, it intends that even cross-appeal has to be brought by way of notice of appeal. This has in fact been the current practice in this court.

 

The provisions of the Supreme Court Rules, 1985 which allow for a respondent's notice to vary the decision of a court below are contained in Order 8 Rule 3(1) which states.

 

3    (1)    A respondent who, not having appealed from the decision of the court below, desires to contend on the appeal that the decision of that court should be varied, either in any event or in the event of the appeal being allowed in whole or in part, must give notice to that effect specifying the grounds of that contention and the precise form of the order which he proposes to ask the court to make, or to make in that event, as the case may be.

 

Order 8 rule 3(1) is the same Order 7 rule 13(1) of the (now repealed) Supreme Court Rules, 1977. In determining the nature of the subject-matter that falls under cross-appeal, this Court in the case of African Continental Seaways Ltd. v. Nigerian Dredging Roads and General Works Ltd. (supra) at p.247 thereof said (per Irikefe, J.S.C., as he then was)-

 

We would like to say here, as we have done in many cases coming before us in this Court that, a party seeking to set aside a finding which is crucial and fundamental to a case can only do so through a substantive cross-appeal and not by an application to vary, . . . (Emphasis mine)

 

It is true that when this pronouncement was made the applicable Rule was Supreme Court Rules, 1961. However, in considering the provisions of Order 7 rule 13 of the Supreme Court Rules, 1977, which, as already seen, has exactly the same provisions as Order 8 Rule 3 of the Supreme Court Rules, 1985, this Court held in Adekeye & Ors. ". Chief Akin-Olugbade,

(supra) at p.226 thereof (per Oputa, J.S.C.) as follows-

 

In the recent case of Ellochin (Nig.) Ltd. V. Mbadiwe (1986) 1 N.W.L.R. (Pt. 14) 47 the issue of the propriety or otherwise of a Respondent's Notice was considered by the Supreme Court and the Court held that a Respondent seeking to set aside a finding which is crucial and fundamental to a case can only do so through a substantive cross-appeal and not by an application to affirm or vary the judgment on other grounds.

 

What the foregoing decided cases have established is that it makes no difference, whether under the provisions of Order 7 Rule 13 of the Supreme Court Rules, 1961 or Order 71 rule 13 of the Supreme Court Rules, 1977, a respondent that wishes to challenge or set aside a finding which is crucial and fundamental to a case, can only do so by way of cross-appeal and not a respondent's notice.

 

Now coming to the present case, what the respondent is asking us to do is to further reduce the amount of N60,000.00 which the Court of Appeal awarded against it as aggravated damages. The amount was awarded by the Court of Appeal as part of the terms of the judgment of the trial court. There is a settled principle evolved through numerous decisions of this Court that an appellate court will not upset an award of damages merely because it might have awarded a different figure if it had heard the case itself. For an appeal or cross-appeal against the award of damages to succeed, the appellant must show that the trial Judge proceeded upon some wrong principle of law or that the award was an entirely erroneous estimate. These are matters that are fundamental and, therefore, the appropriate procedure to follow in raising them can only be by means of notice of cross-appeal and positively not by respondent's notice.

 

Finally is there any inconsistency between the decision in L.C.C. v. Ajayi (supra) and the subsequent decisions cited by Chief Ajayi as listed above? I do not think so; because even in that case (L.C.C. v. Ajayi) it was shown that if a respondent intends to raise a fundamental or crucial point he must do so by filing a cross-appeal. In the words of Coker, J.S.C. on p.296 thereof-

 

Another characteristic of Order 7 Rule 13(1) (of the Supreme Court Rules, 1961) is that it is applicable only where the respondent intends to retain the judgment but at the same time wants it varied; so where a respondent intends for instance to dispute the jurisdiction of the court of trial or to contest the competencv of the entire proceedings or to maintain the absence of a fundamental pre-requisite, it seems he cannot come under this rule. In that case he has to file a substantive cross-appeal. The basis for this is clear for a man cannot at the same time obtain an advantage &v maintaining a pa~7icular standpoint whilst keeping the advantage. (parenthesis and italics mine).

 

 

A  fortiori the respondent in the present case cannot, say by way of respondent's notice that the Court of Appeal awarded the appellant excessive aggravated damages by reducing the award of N100,000.00 made by the trial court to N60,000.00. Accordingly, the preliminary objection raised by the appellant succeeds and I too would strike-out the respondent's notice filed by the respondent.

 

I now turn to the appellant's appeal. The issues for determination have been stated at the outset of this judgment. I am not in doubt at all that the subsequent publications in the issues of the Evening Times of the I st March, 1980 and 14th August, 1980 were made in aggravation of the libel which appeared in the earlier issue of the 19th November, 1979 of the same newspaper, as found by the learned trial Judge (Beckley J.) who said

 

In the present case the plaintiff on seeing the publication wrote the defendant as per Exhibit B asking for an apology, and the defendant replied as per Exhibit C. That was the only letter from the defendant before the plaintiff took action. The defendant did not even publish the end of the suit to show that the plaintiff was eventually vindicated, but instead published other further banner headlines about the plaintiff as follows-

 

(1)    Evening Times, March 1st 1980 'Court Awards N100.00. Rotimi to pay costs.' The full picture of the plaintiff appeared in the front page of the Newspaper.

 

(2)    Evening Times, Friday, March (sic) 14th August, 1980 ''Case put off as Rotimi stays away' in the front page of the Evening Times.

 

From the subsequent publications by the same paper, it appears to me that the intention of the Newspaper in this particular case was not to inform the public but to ridicule the plaintiff.

 

It was from this finding that the learned trial Judge awarded the sum of N100,000.00 as aggravated damages. In his words-

 

I am satisfied that the plaintiff is entitled to aggravated damages which I assess as Nl00,000.00 with costs.

 

In reversing the decision of the learned trial Judge, the Court of Appeal (per Ademola, J.C.A.) stated thus-

 

It has not been established by the appellant in his argument that the learned trial Judge proceeded on wrong principle on the award of damages. What was taken into consideration which ought not to have been taken into consideration were the two other publications of the same paper about the respondent which have not been proved to be false and had been said by the learned trial Judge to have been done to ridicule the respondent. The inference to ridicule the respondent by the publications should not readily and necessarily be drawn. Besides, I am of the view that to grant what was wholly claimed in this suite as exemplary-unliquidated damages was not in step with the practice of the court. In the case of Lardner v. The Sketch Publishing Co. (supra) which was used by the learned trial Judge in the present case and which was the case in which imputation of dishonesty was made against a senior member of the legal profession in the conduct of his work, the court, (the same High Court of Lagos State) made an award of N50,000.00. Having regard to the trend of inflation, I think an award of say N60,000.00 at the time the judgment was given would in my view be adequate compensation to the respondent.

 

The result of this appeal therefore would be the reduction in the award of damages as indicated above. (Italics mine).

 

As can be seen from this quotation the defendant did not establish that the principles laid down for the award of damages by the trial court had been breached. It is only when there is a failure to follow the settled principles that an appellate court can properly interfere with the award of damages made by a trial court. These principles which have been established by a legion of cases are-

 

(1)    That the trial Judge acted on a wrong principle of law.

 

(2)    That the Judge made an estimate of damages which is entirely erroneous, that is which no reasonable tribunal would have made and

 

(3)    That the appellate court is not disturbing the award of damages merely on the ground that it would have come to a different figure had it heard the case itself.

 

What then influenced the decision of the Court of Appeal to reduce the aggravated damages awarded by the trial court? It is clear that the Court of Appeal did not consider the subsequent publications made on the 1st March, 1980 and 14th August, 1980, as did the learned trial Judge, to have aggravated the damages. Secondly, it considered that it was not the practice of the High Court of Lagos State to grant as a whole the amount of exemplary unliquidated damages claimed by a plaintiff. Thirdly, that in a similar case-Lardner's case (supra), the plaintiff was awarded N50,000.00. With respect none of these matters taken into consideration by the Court of Appeal squared up with the settled principles for an appellate court to interfere with the award of damages. Furthermore, what the appellant claimed in the alternative in his statement of claim was aggravated damages. For paragraph 7 thereof avers-

 

(7)    And the plaintiff claims N250,000.00 exemplary damages and/or in the alternative N100,000.00 aggravated damages as per the Writ of Summons.

 

and what the learned trial Judge awarded was aggravated damages but the Court of Appeal preoccupied itself with the consideration of exemplary damages. There is a distinction between exemplary damages and aggravated damages. Whilst the former is awarded in order to punish a defendant whose conduct has been outrageous or scandalous, the latter is to compensate the plaintiff for any aggravated harm done to him, such as injury to his feelings as a result of the special circumstances of the case-see Kemp and Kemp on the Quantum of Damages, 4th Edition, page 102.

 

For these and the reasons contained in the judgment read by my learned brother Eso, J.S.C., I entirely agree that the appeal succeeds and it is hereby allowed. I endorse the orders contained in the said judgment.

 

 

Judgment delivered by

Saidu Kawu. J.S.C.

 

I have had the advantage of reading, in draft, the lead judgment of my learned brother, Eso, J.S.C., which has just been delivered. I am in complete agreement with his reasoning and also with his conclusion that the appellant's objection to the respondent's notice of intention to vary the judgment of the Court of Appeal be upheld. I also agree that the reduction by the Court of Appeal of the damages awarded to the appellant was erroneous in law and that the appeal against that decision be allowed.

 

In this case, the appellant instituted an action against the respondent for libel published in a newspaper called 'the Evening Times.,' The trial court found for the appellant and awarded  N100,000.00 damages with costs. The respondent appealed to the Court of Appeal on both the issues of liability and quantum of damages. The Court of Appeal dismissed the appeal but reduced the damages awarded to N60,000.00. The appeal before this Court deals solely with the decision of the Court of Appeal reducing the damages awarded by the trial Court.

 

Now, after the filing of the Notice of Appeal, Chief G.O.K. Ajayi, S.A.N., for the respondent, filed, on the 2nd day of October, 1986, a respondent's Notice of intention to contend that the decision of the Court below be varied.

 

That notice reads as follows:

 

Notice by Respondent of  intention to contend that the decision of  the Court below be varied. Order 8 Rule 3(1) Supreme Court Rules, 1985.

 

TAKE NOTICE that upon the hearing of the above appeal the Respondent herein intends to contend that the decision of the Court below dated 27th of May, 1986 shall be varied as follows:

 

That the damage of N60,000.00 awarded to the Plaintiff be further substantially reduced. AND TAKE NOTICE that the grounds on which the

 

Respondent intends to rely are as follows:

 

(1)    In awarding the Plaintiff damages of N60,000.00 the Court below failed to give effect to its decision that the Plaintiff was not entitled to an award of aggravated damages;

 

(2)    The amount of N60,000.00 damages is excessive and amounts to not just aggravated damages, but to exemplary damages.

 

The appellant, Chief Williams, S.A.N., objected to the Notice. contending that in the circumstances of this case the Respondent should have filed a substantive Notice of Cross Appeal and not rely on a respondent's notice under Order 8 r. 3(1) of the Supreme Court Rules, 1985.

 

There are therefore, in my view. two main issues which have arisen for deternimation in this appeal, and they are-

 

(1)    whether or not the respondent's notice and not a substantive notice of appeal is a proper procedure for contending that a finding or determination which is fundamental and crucial to the respondent's case be varied;

 

(2)    whether the Court of Appeal was right in reducing the award of damages made by the trial court from N100,000.00 to N60,000.00.

 

With regard to the first issue, the respondent's notice, as stated earlier, was filed pursuant to Order 8 r. 3(1) of the Supreme Court Rules 1985, which reads as follows:-

 

3(1) A respondent who, not having appealed from the decision of the Court below, desires to contend on the appeal that the decision of that court should be varied, either in any event or in the event of the appeal being allowed in whole or in part, must give notice to that effect specifying the grounds of that contention and the precise form of the order which he proposes to ask the court to make, or to make in that event, as the case may be.

 

Now the question may be asked-what precise form of order did the respondent propose to ask this Court to make relating to the award of damages by the Court below? In my view a perusal of the grounds on which the respondent relied in the notice provides the answer. Obviously the respondent was not satisfied with the award made by the Court below and would like the decision set aside. He was of the view that the award was excessive and should be substantially reduced. It is therefore clear that in that case the respondent should have filed a substantive notice of cross-appeal and not a respondent's notice-see African Continental Seaways Ltd. V. Nigerian Dredging Roads and General Works Ltd. (1977) 5 S.C. 235 and Adekeye & Ors. v. Chief Akin-Olugbade (1987) 6 S.C. 268; (1987) 3 N.W.L.R. 214. Accordingly, in my view, the appellant's objection to the respondent's notice succeeds and I too would strike it out.

 

Now, in his amended brief of argument in reply to the appellant's objection, Chief G.O.K. Ajayi, S.A.N., contended that a number of cases relating to the filing of a respondent's notice which followed this Court's earlier decision in L.C.C. v. Ajayi (1970)1 All N.L.R. 291, were wrongly decided and should be overruled. The cases mentioned are:-

 

(1)    L.C.C.v. Ogundemuren Suit No. SC.335/69 (unreported) delivered on 26th November, 1971

 

(2)    Oyekan V. B.P. Nigeria Ltd. (1972)1 All N.L.R. (Part 1) 47

 

 (3)    B.E.O.O. md. (Nig.) Ltd. v. Maduakoh (1975)12 S.C. 91

 

 (4)    African Continental Seaways Ltd. V. Nigerian Dredging Roads and General Works Ltd. (1977) 5 S.C. 235.

 

(5)    Enang v. Adu (1981) 11-12 S.C. 25.

 

(6)    Dumbo V. Idugboe  (1983)1 S.C.N.L.R. 29

 

(7)    Ellochin V. Mbadiwe (1986)1 N.W.L.R. (Pt. 14) 47

 

(8)    Adekeye V. Chief OB. Akin-Olugbade (1987) 6 S.C. 268; (1987) 3 N.W.L.R. (Pt. 60) 214; and

 

(9)    Oguma Associated Co. Ltd. v. I.B.W.A. (1988)1 N.W.L.R. (Pt. 73) 658.

 

Having carefully perused the detailed and most comprehensive examination of all these cases made by my learned brother, Eso, J.S.C. in the lead judgment, I entirely agree with his conclusion that the cases do not constitute a departure from the earlier decision of this Court in L.C.C. V. Ajayi (supra).

 

I now come to the main appeal. As stated earlier the trial court, at the conclusion of the case found for the appellant and awarded him N 100,000.00 damages, observing, before doing so, as follows:-

 

In the present case the plaintiff on seeing the publication, wrote the defendant as per Exhibit 'B' asking for an apology, and the defendant replied as per Exhibit 'C'. That was the only letter from the defendant before the plaintiff took action. The defendant never apologised. The defendant did not even publish the end of the Suit to show that the plaintiff was eventually vindicated but instead published other further banner headlines about the plaintiff as follows:-

 

(1)    Evening Times March 1st 1980 Court awards N100. Rotimi to pay costs. The full picture of the plaintiff appeared in the front page of the Newspaper.

 

(2)    Evening Times, Friday 14th August, 1980 Case put off as Rotimi stays away in the front page of the Evening Times.

 

From the subsequent publications by the same paper, it appears to me that the intention of the Newspaper in this particular case was not to inform the public but to ridicule the plaintiff.

 

When the matter came before the Court of Appeal, the award of  N100,000.00 was reduced to N60,000.00. In the lead judgment of the Court delivered by Ademola, J.C.A., that Court gave its reasons for doing so as follows:-

 

it has not been established by the appellant in his argument that the learned Judge proceeded on wrong principle in the award of damages. What was taken into consideration which ought not to be taken into consideration were the two other publications of the same paper about the respondent which have not been proved to be false and had been said by the learned Judge to have been done to ridicule the respondent. The inference to ridicule the Respondent by the publications should not readily and necessarily be drawn. Besides, I am of the view that to grant what was wholly claimed in this suit as exemplary-unliquidated damages was not in step with the practice of the court. In the case of Lardner V. The Sketch Publishing Company (supra) which was used by the learned Judge in the present case and which was the case in which imputation of dishonesty was made against a senior member of the legal profession in the conduct of his work, the court, (the same High Court of Lagos State) made an award of N50,000.00. Having regard to the trend of inflation, I think an award of say N60,000.00 at the time the judgment was given would in my view be adequate compensation to the respondent.

 

Now it is settled law that an appellate court would not interfere with an award of damages made by a trial court unless it is shown that in making the award the trial court applied a wrong principle, or that the damages awarded are manifestly too high or too low-Eboh V. Akpolo (1968)1 All N.L.R. 220. In this case it is my view that the learned trial Judge adopted the right approach in his assessment of damages and that the interference by the Court of Appeal was totally unjustified.

 

It is for the above reasons and for the more comprehensive reasons contained in the lead judgment of my learned brother, Eso, J.S.C., that I have come to the conclusion that this appeal succeeds and it is accordingly allowed. I abide by all the orders contained in the lead judgment, including the order as to costs.

 

Judgment delivered by

Abdul Ganiyu Olatunji Agbaje. J.S.C.

 

I have had the opportunity of reading in draft the lead judgment of my learned brother, Kayode Eso, J.S.C. I agree with him that the appeal of the plaintiff/appellant on the issue of damages should be allowed and that the preliminary objection of counsel for the plaintiff/ appellant to the contention of the defendant/respondent by way of "Notice" by the respondent under Order 8 rule 3(1) of the Supreme Court Rules, 1985 that the damage of N60,000.00 awarded to the plaintiff by the lower court be further substantially reduced should be upheld.

 

I will deal with the latter first. The issue involved in the objection has been succinctly put in the brief for the objector as follows:-

 

In what circumstances, if any, can a defendant who succeeded in persuading the Court of Appeal to reduce the amount of damages awarded by the High Court in favour of the plaintiff, be permitted to argue before the Supreme Court for an order for further reduction if he files no Notice of Appeal but relies only on a Respondent's Notice filed pursuant to Order 8 rule 3 of the Supreme Court Rules, 1985.

 

Having identified the issue arising for determination in the preliminary objection, I must necessarily now put down the grounds upon which the defendant/respondent is asking in the respondent's notice for further reduction of the damages of ~60,000.00 which are as follows:-

 

(1)    In awarding the plaintiff damages of N60,000 the court below failed to give effect to its decision that the plaintiff was not entitled to an award of aggravated damages;

 

(2)    The amount of N60,000.00 damages is excessive and amounts not to just aggravated damages, but to exemplary damages.

 

Pertinent to the issue of damages the Court of Appeal as per the lead judgment of Ademola, J.C.A., in which Nnaemeka-Agu, J.C.A., as he then was, and Kolawole, J.C.A., concurred held as follows:-

 

It has not been established by the appellant in his argument that the learned Judge proceeded on wrong principle in the award of damages. What was taken into consideration which ought not to be taken into consideration were the two other publications of the same paper about the respondent which have not been proved to be false and had been said by the learned Judge to have been done to ridicule the respondent. The inference to ridicule the respondent by the publications should not readily and necessarily be drawn. Besides, I am of the view that to grant what was wholly claimed in this suit as exemplary~unliquidated damages was not in step with the practice of the court. In the case of Lardner V. The Sketch Publishing Company (supra) which was used by the learned Judge in the present case and which was the case in which imputation of dishonesty was made against a senior member of the legal profession in the conduct of his work, the court, (the same High Court of Lagos State) made an award of N50,000.00. Having regard to the trend of inflation, I think an award of say N60,000.00 at the time the judgement was given would in my view be adequate compensation to the respondent.

 

There is nothing in the above passage from the judgment of the Court of Appeal to suggest, as indicated in ground (1) of the respondent's notice, that that court held that the plaintiff was not entitled to an award of aggravated damages. What that court held that the plaintiff was not entitled to was an award of exemplary damages which in fact the trial court said it would not award. The trial court awarded aggravated damages which, going by the finding of the lower court that it has not been established before it that the learned trial Judge proceeded on wrong principles in the award of damages, must be taken to have been endorsed by the Court of Appeal. So the real ground of the respondent in the respondent's notice for asking for variation of the award of N60,000.00 in favour of the plaintiff is ground in the respondent's notice which is that the amount of N60,000.00 damages is excessive and amounts to not just aggravated damages but to exemplary damages.

 

The lower court was of the view that the sum of N60,000.00 it awarded the plaintiff was adequate compensation to him for the damage he suffered as a result of the libel he complained of So in the view of the lower court that award was not excessive. Again it is implicit in the above passage from the judgment of the lower court that in its view that award of N60,000.00 would not amount to exemplary damages which it was not prepared to countenance.

 

From what I have said, I am in no doubt that in the respondent's notice filed by the defendant/respondent the latter does not accept in principle the determination of the Court of Appeal on the points germane to the award of N60,000.00 by that court. On the other hand, the respondent is by way of the respondent's notice asking for the reversal of the decision of the Court of Appeal on the points in question. A formidable long line of the decisions of this court to wit L.C.C. V. Ajayi (1970)1 All N.L.R. 291; Oyekan V. B.P. Nig. Ltd. (1972)1 All N.L.R. (Pt. 1)45 at 47 and 48; Continental Seawage Ltd. V. Nigerian Dredging Road & General Works Ltd. (1977) 5 S.C. 235 at 247; L.C.C. V. Ogundemuren Suit No. SC/335/69 decision given on 25/11/71; and more recently Adekeye v. Akin-Olugbade (1987) 6 S.C. 268 (1987) 3 N.W.L.R. (Pt. 60) 214 and Oguma Association Co. Nig. Ltd. v. J.B.W.A. (1988)1 N.W.L.R. (Pt. 73) 658, to mention just a few, has established it that a party seeking to set aside a finding which is crucial and fundamental to a case can only do so through a substantive cross-appeal and not by an application to vary by a respondent's notice as it is the case here.

 

The above would have been enough to dispose of the preliminary objection of the objector but for the following submission made in the respondent's amended reply to the appellant's objection and in oral arguments by counsel for the respondent, Chief Ajayi, S.A.N.:

 

The Supreme Court, in the case of L.C.C. V. Ajayi (1970)1 All N.L.R. 291 (usually cited as authority in support), did not in fact, decide that a party seeking the reversal of a finding or determination which is crucial and fundamental to a case can only do so by filing a substantive cross-appeal.

 

For my decision on this point I need only refer to the following passage from the judgment of Coker, J.S.C., in L.C.C. V. Ajayi (1970)1 All N.L.R. 291 at 296:-

 

Another characteristic of Order 7, rule 13(1) is that it is applicable only where the respondent intends to retain the judgment but at the same time wants it varied; so where a respondent intends for instance to dispute the jurisdiction of the court of trial or to contest the competency of the entire proceedings or to maintain the absence of a fundamental prerequisite, it seems he cannot come under this rule. In that case, he has to file a substantive cross-appeal. The basisfor this is clear for a man cannot at the same time obtain an advantage by maintaining a particular standpoint and then seek to discard that same stand-point whilst keeping the advantage. As Lord Esher, M.R., observed in Roe v. Mutual Loan Fund Ltd. (1887)19 Q.B:D. 347 atp. 350:-

 

I base my judgment on this, that the bankruptcy proceeded on the basis that the bill of sale was valid, and that this was with the knowledge and acquiescence and for the benefit of the plaintiff, who therebv affirmed that the bill of sale was valid, and cannot now be heard to say that it was invalid in order to obtain a further advantage. I cannot therefore agree with the judgment appealed from, and the appeal must be allowed. (Italics mine)

 

It appears to me clear that when Coker, J.S.C., said in the above passage inter alia. ". . so where a respondent intends for instance . . . to maintain the absence of a fundamental prerequisite, it seems he cannot come under this rule. In that case he has to file a substantive cross-appeal" he was referring to a fundamental prerequisite for the judgment which the respondent intends to retain but at the same time wants it varied. The reference by Coker, J.S.C., to the observation of Lord Esher, M.R. in Roe V. Mutual Loan Fund Ltd. on the point at issue shows to me clearly that by the expression a fundamental prerequisite the learned Justice of Supreme Court meant a basis on which the judgment in question proceeded. So in my judgment the expression "a fundamental prerequisite for a judgment" is no more or less in the decisions which profess to follow what L.C.C. V. Ajayi decided than the expression "a finding which is crucial and fundamental to a case."

 

From what I have just said I have no hesitation in rejecting the submission of counsel for the respondent that L.C.C. V. Ajayi is not authority for the proposition that a cross-appeal must be filed where a respondent seeks the reversal of a crucial or important finding or determination of fact or law.

 

This is not the end of the matter. For there is this further submission of counsel for the respondent, Chief Ajayi, S.A.N., on the point at issue:-

 

Even if L.C.C. V. Ajayi did not lay down the principle credited to it, is the principle correct in point of law and practice?

 

It appears clear that Coker, J.S.C., in L.C.C. V. Ajayi based his views on the general scope of Order 7 rule 13 of the law and practice on the point of England.

 

Having referred to Order 59 rule 6 of the Rules of the Supreme Court, 1965 (England) which are essentially speaking in pan materia with our former Order 7 rule 13(1), Chief Ajayi then submitted having referred to series of English decisions on the point, that the practices in England are as follows:-

 

a party dissatisfied with any part of a judgment of a court may challenge the same by filing a Respondent's Notice notwithstanding that he seeks a reversal of the whole or a part of the judgment on a crucial or fundamental issue except only in the following cases (where he must file a cross-appeal)-

 

(a)    where he seeks to challenge the decision of court below upon a cause of action separate and distinct from that appealed against by the appellant;

 

(b)   where there are several parties and the respondent wishes to challenge the order of the court on a point in which the appellant has no interest but other parties are interested;

 

(c)   where the respondent intends to contest the jurisdiction of the court below."

 

And he further submitted:-

 

It therefore appears that the departure by our Supreme Court from the long established law and practice of the English Court has been occasioned by the adoption of a narrow and erroneous interpretation of the expression "to vary" which occurs in the rules. The result has been the introduction of a new contrary and, it is respectfully submitted, wrong principle into the law and practice with regards to cross-appeals and liberty to file a Respondent's Notice.

 

Having read very carefully the various English decisions to which Chief Ajayi, S.A.N., referred I am satisfied that he is correct in his submission to us as to the scope of Order 59 rule 6 of the Rules of the Supreme Court, 1965 which provides for Respondent's Notice. Note 59/6/1 in The Supreme Court Practice, 1976 to Order 59 rule 6 U.K. is on the same lines and it says:-

 

Respondent's Notice-There are two kinds of notice that may be given by a respondent-one, a substantive, cross notice of appeal; the other, a notice under this rule asking that the decision of the court below should be varied (subr.(1) or that it should be affirmed on grounds other than those relied upon by that Court (subr.(2). A cross notice of appeal should be given where there are separate and distinct causes of action (whether both by the same party, or one by claim and another by counterclaim), and one party seeks to contest the decision upon one cause of action and another party upon another cause of action (National Society for Distribution of Electricity V. Gibbs (1 900) 2 Ch. 280. So, too, where there are several parties and a respondent seeks to vary the order of the court on a point in which the appellant has no interest but other parties are interested (Re Cavender's Trust (1881)16 Ch.D. 270). Again where the respondent intends to contest the jurisdiction of the court below, he should serve a cross notice of appeal; a preliminary objection to the appeal is not appropriate (Re Wilson, (1916)1 K.B. 382, C.A., as reported in 89 L.J.K.B. 337). In other cases the notice to be given is a respondent's notice, and it must be given whether the appellant has appealed from the whole of the judgment or only part (Harris V. Aaron (1887) 36 L.T. 43). But the only material difference under the present rule, between a cross notice of appeal and a respondent's notice appears to be in the time within which they are to be served. In the former case the time specified in r.4( 1); in the latter case in r.6(4). In each case the grounds relied upon, and the precise form of order asked for, must be specified."

 

Chief Ajayi, S.A.N., has also submitted, and correctly too, in my judgment that, except as to unimportant differences as to the number of days within which notice is to be given and the number of copies of the respondent's notice to be filed, the provisions of Order 59 rule 6 R.S.C. 1965 U.K. are identical with the provisions of Order 8 rule 3 of our Supreme Court Rules, 1985, which provide for Respondent's Motion.

 

Again Chief Ajayi, S.A.N., is correct in my judgment when he submitted that Coker, J.S.C., drew heavily in his construction of the provisions of Order 7 rule 13(1) of the Rules of the Supreme Court, 1961 which provided for respondent's notice on the notes in the Supreme Court Practice to Order 56 rule 6 U.K. But I do not agree with Chief Ajayi, S.A.N., that Coker, J.S.C. drew exclusively on this source. For instance the case of Roe V. Mutual Loan Fund Ltd. (supra) on which the learned Justice of the Supreme Court relied for his decision that where a respondent intends to maintain the absence of a fundamental pre-requisite for a judgment he intends to retain he has to file a substantive cross-appeal and not a respondent's notice is not a decision relating to Order 59 rule 6 (U.K.). The case establishes the general principle enunciated by the learned Justice of the Supreme Court, that a man cannot at the same time obtain an advantage by maintaining a particular stand point and then seek to discard that same stand point whilst keeping the advantage. Again the learned Justice of the Supreme Court referred to the position in this country where appeals are initiated not by notice of motion but by a notice of appeal properly filed.

 

In so far as there were provisions in the rules of the Supreme Court, 1961 for respondent's notice, the provisions in Order 7 rule 36 of the same rules providing for recourse to the procedure and practice currently in force in England when our rules were silent on a point at issue, would not come into play. So, in my judgment decisions on the English rules of court relating to respondent's notice could only be used as aids in the construction of our rules. So I am satisfied that Chief Ajayi, S.A.N., was wrong in the following submissions of his to us in the respondent's amended reply to the appellant's objection:-

 

It might at this stage be helpful to point out that in apparently following the English law and practice in its thinking on the issue of the Respondent's Notice, the Supreme Court in L.C.C. V. Ajayi was not making a voluntary choice. It was indeed acting as it was bound to do- i.e., to follow English Law on the point-in accordance with the language and philosophy of the provisions of Order 7 rule 36 of the Supreme Court Rules, 1961 which provides as follows:-

 

'Where no other provision is made by these Rules the procedure and

practice for the time being in force in the court of Appeal in England shall apply in so far as it is not inconsistent with these Rules, and the Forms in use therein may be used with such adaptations as are necessary'.

 

In my judgment, Coker, J.S.C., in L.C.C. V. Ajayi sought voluntarily for assistance from English decisions on respondent's notice there. He was bound to restrict his decision on Order 7 rule 13(1) to the limits dictated by the decisions on respondent's notice in England when other valid reasons have regard, inter alia, to local conditions, dictate otherwise. I have referred above to the case of Roe V. Mutual Loan Fund Ltd., a decision not on respondent's notice in England, which Coker, J.S.C., referred to when construing our Order 7 rule 13(1).

 

The overall view of the learned Justice of the Supreme Court on Order 7 rule 13(1) was stated thus in L.C.C. y,. Ajayi at page 296:

 

Manifestly therefore the rule itself envisages cases in which although a cross-appeal is desirable yet the notice under order 7 rule 13(1) may as well be appropriate.

 

He gave instances where the notice under Order 7 rule 13(1) would not be appropriate. I have quoted the instances earlier on in this judgment.

 

The whole argument of Chief Ajayi, S.A.N., to the effect that L.C.C. v. Ajayi was wrongly decided was predicated on the submission by him, that the Supreme Court in its decision in the case was bound to follow the decisions in England on the scope of Order 59 rule 6 of R.S.C. 1965 (U.K.) which provides for respondent's notice. I have shown above that in my view, this is a misconception.

 

The reasoning of Coker, J.S.C., in L.C.C. V. Ajayi leaves me in no doubt that the decision of the Supreme Court in the case is correct. The question of departing from it or overruling it, does not therefore arise in my judgment.

 

I have shown earlier on in this judgment that the decisions in the other cases which Chief Ajayi, S.A.N., asks us to overrule, are in line with what L.C.C. V. Ajayi decides. A priori, the question of overruling, or departing from them does not arise either.

 

The conclusion I reach is that the respondent's notice is hereby struck out by me.

 

Having disposed of the respondent's notice, the way is now clear for me to consider the plaintiff's appeal from the decisions of the Court of Appeal which reduced the damages awarded him by the trial court.

 

The principles governing the consideration of appeals on the issue of damages have been laid down by the West African Court of Appeal in the case of Zik's Press Ltd. V. Alvan Ikoku 13 W.A.C.A. 188 at 189:-

 

These principles are clearly set out in the leading case of Owen V. Sykes (6), where the Court of Appeal followed the reasoning and decision in the earlier case of Flint V. Lovell (7). In the judgment of Slesser, L.J., in Owen V. Sykes (6), the following passage occurs:-

 

In the case of trials by a Judge alone this court has power, as the hearing is by way of re-hearing, to consider the matter and decide what damages ought to be awarded. In the case of an appeal from a Judge trying a case without a jury I would accept as a criterion what Greer, L.J., states in Flint V. Lovell (7), where he says: 'In order to justify reversing the trial Judge on the question of the amount of damages, it will generally be necessary that this court should be convinced (either) that the Judge acted upon some wrong principle of law, or that that amount awarded was so extremely high or so very small as to make it, in the judgment of this court an entirely erroneous estimate of the damage to which the plaintiff is entitled.

 

I must necessarily now go on to consider the reasons which the Court of Appeal gave for reducing the damages awarded the plaintiff against the defendant by the trial court. I have earlier on in this judgment set down the reasons for the decision of the Court of Appeal in this regard. I should have thought having regard to the authority I have just cited and having regard (I) to the fact that the learned Justices of the Court of Appeal held that it had not been established by the appellant before them that the learned trial Judge proceeded on wrong principles in the award of damages; and (2) to the fact that they had not even said that the amount awarded was so extremely high or so very small as to make it in their judgment an erroneous estimate of the damages to which the plaintiff was entitled, the appeal against the quantum of damages by the defendant should have been dismissed by them.

 

However, the Court of Appeal having said that it was not established before it that the lower court proceeded on wrong principles in the award of damages it made, went on to say "what was taken into consideration which ought not to be taken into consideration were the two other publications of the same paper about the respondent which have not been proved to be false and have been said by the learned Judge to have been done to ridicule the respondent." Before I go into the other reasons the learned Justices of Court of Appeal gave for reducing the damages I will discuss this first reason of them all.

 

It appears that the Court of Appeal had not said that the trial Judge was wrong in coming to the conclusion that the two publications were made to ridicule the plaintiff, what the Court of Appeal was concerned with was the falsity of the publications which according to it had to be established most presumably by the plaintiff. I have looked at the authorities on the point and I cannot find any authority supporting the view of the Court of Appeal that other derogatory statement made about the plaintiff by the defendant and upon which the plaintiff is relying to show malice in order to claim aggravated damages must be proved by the plaintiff to be false before he can achieve this end. McGregor on damages 14th Edition page 949 Article 1406 puts the law on the point as follows:-

 

1405    (a)    Evidence to prove malice in aggravation of damages. Malice may be shown by the defendant's conduct generally, but there are two particular ways in which it has come to be shown: by other derogatory statements made of the plaintiff by the defendant and by the defendant's persistence in the accusation, such persistence being either by way of an unreasonable plea of justification or by lack of any, or any adequate, apology.

 

1406    (i)    Other derogatory statements about the plaintiff. Any other derogatory statements made of the plaintiff by the defendant may be given in evidence to show malice . ..

 

1407The legacy of decisions with which the court in Pearson V. Lemaitre was presented is best disposed of by a series of propositions stating the modem law. (1) Other derogatory statements are admissible even although themselves defamatory . . . (2) Other derogatory statements are admissible even although there is no ambiguity in the statement sued upon . . . (3) Other derogatory statements are admissible even although not in substance the same as or related to the statement sued upon. . . (4) Other derogatory statements are admissible whether prior or subsequent to the statement sued upon...

 

The court of Appeal said the inference to ridicule the respondent by the publications should not be readily and necessarily drawn. But the Court of Appeal has not said that the inference drawn by the learned trial Judge as to the intention of the defendant to ridicule the plaintiff could not be drawn from the material in the subsequent publication. For the reasons given in the lead judgment of my learned brother, Kayode Eso, J.S.C., I am satisfied that the subsequent publications are derogatory of the plaintiff.

 

The other reason given by the Justices of the Court of Appeal for allowing the appeal on the issue of damages is as follows:-

 

In the case of Lardner V. The Sketch Publishing Company (supra) which was used by the learned Judge in the present case and which was the case in which imputation of dishonesty was made against a senior member of the legal profession in the conduct of his work, the court, (the same High Court of Lagos State) made an award of N50,000.00. Having regard to the trend of inflation, I think an award of say N60,000.00 at the time the judgment was given would in my view be adequate compensation to the respondent.

 

I am satisfied that the Court of Appeal was wrong to use the case of Lardner V. The Sketch Publishing Company as a yardstick for the measure of damage to which the plaintiff was entitled. The assessment of damages in the case of libel is usually subjective. So the award in an unrelated case cannot be a useful guide.

 

The last reason given by the Court of Appeal for the reduction of the damages could not be supported even by counsel for the respondent. The reason is as follows:-

 

Besides, I am of the view that to grant what was wholly claimed in this suit as exemplary-unliquidated damages was not in step with the practice of the court.

 

The plaintiff/appellant has in his appeal on the issue of damages challenged the reasons the Court of Appeal gave for reducing the damages in his favour. The respondent has not filed any notice under Order 8 rule 3(2) of the Supreme Court Rules, 1985 of its intention to support the decision of the court below on grounds other than those relied upon by that court. Instead the respondent has filed a notice under Order 8 rule 3(1) of the same rules of its intention to contend that the judgment of that court should be varied. I have earlier on held in this judgment that that notice cannot achieve the purpose for which it was intended. In the circumstances I must be content to limit my consideration of the issues arising in this appeal to only those matters arising from the reasons which the lower court gave for reducing the damages awarded the plaintiff by the trial court.

 

For the above reasons and the fuller reasons given in the lead judgment of my learned brother, Kayode Eso, J.S.C., I too will allow the plaintiff's appeal, set aside the judgment of the Court of Appeal reducing the damages in favour of the plaintiff from N100,000.00 to N60,000.00 and restore the judgment of the trial court for N100,000.00 damages in favour of the plaintiff. The respondent's notice is hereby struck out by me. I abide by all the consequential orders in the lead judgment.

 

 

Counsel

 

 

Chief F. R. A. Williams. S.A.N. in person

 

 

 

 

 

Chief G.O.K. Ajayi. S.A.N.

with him

Miss Y. Odia

......

For the Respondent