In The Supreme Court of Nigeria
On Friday, the 9th day of January 1990
S.C. 21/1987
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
N 100,000.00 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 N 5m
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
N 50,000.00. 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 N 100,000.00 awarded be reduced to N60,000.00.
Thus, the Court of Appeal reduced the award of N100,000.00 to N 60,000.00 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