Nigerian Telecommunications Plc V. Chief S. J. Mayaki (2006)

LawGlobal-Hub Lead Judgment Report

RAPHAEL CHIKWE AGBO, J.C.A.

The respondent as plaintiff in the court below i,e. the High Court of Lagos State sitting in Lagos claimed of the appellant, in paragraph 10 of his 2nd amended statement of claim as follows:

“(1) An order directing the defendant to release to the plaintiff forthwith telephone line No.820890 or another telephone line with International Direct Dialing System in exchange;

(2) The sum of $30,000.00 (Thirty Thousand American Dollars) or its equivalent in Naira as special damages;

(3) N2,000,000 (Two Million Naira) as general and exemplary damages for the defendant’s wrongful acts and contempt of the rule of law.”

The case of the plaintiff, a legal practitioner was that he was a subscriber to the defendant’s telephone line No. 820890 in October 1996. The defendant now appellant disconnected the said telephone line on the ground that the telephone had an accumulated debt of N1,966.70k, a debt the plaintiff denied owing. The defendant transferred the said telephone line to another subscriber. As a result of the loss of access to the telephone line the plaintiff lost one of his most valuable retainers leading to the loss of an income of thirty thousand American dollars from the retainership transaction. Issues were joined, pleadings exchanged and the defendant denied these transactions and denied liability for any damages following therefrom.

After several adjournments, the case proceeded to hearing on 14th February 1996. Both parties were represented by counsel. Plaintiff testified and was cross-examined. Plaintiff called no witnesses and closed his case. The court then called on defendant to proceed with the defence. The defence counsel said he was not prepared to go on. He asked for an adjournment giving as his reason his desire to amend the statement of defence. The court below refused the application stating that the case had been set down for hearing for that day and that the defendant had all the time in the world between 20-2-95 when the statement of claim was amended and that day 14-2-96 to make any amendment it thought necessary to its pleadings but made no such amendment. The court was of the opinion that the defendant was non-serious in prosecuting its case. The court once more asked the defence to proceed. Defence counsel informed the court that the defendant was not in court and asked once more for an adjournment. The court refused the application and again called on the defence to proceed. The defence could not. Plaintiff’s counsel at this point asked the court close the defence case. This, the presiding judge did. The judge then called for addresses. None of the counsel offered addresses. The court adjourned the case for judgment to 16-2-96. On 15-2-96 the defendant i.e. the appellant in this appeal, filed a motion on notice at the court below seeking the following orders:

“(a) Granting leave to the defendant/applicant to amend its statements of defence dated 1st July 1991.

(b) An order granting leave to the defendant/applicant to recall Chief S. I. Mayaki the P.W.1 in this case for the purpose of concluding the cross examination by the defendant/applicant’s counsel of P.W.1 in this case.

(c) An order deeming the attached amended statement of defence properly filed and served.”

On 16-2-96 the case came up in court. Defence counsel was absent. The court delivered judgment. No mention was made of the pending application. In its considered judgment the court below granted the plaintiff’s prayers. On 4th March, 1996 the defendant’s motion dated 14/2/96 and filed on 15/2/96 came up before the court below. Applicant’s counsel was not in court. Plaintiffs counsel urged the court to strike out the application it being overtaken by events as judgment had been delivered in the case. The judge struck out the motion.

This is an appeal against the judgment of the court below on 16/2/96. In its further amended Notice of appeal dated 26th November 2003 and filed on 27111/2003 the appellant set out the following grounds of appeal:

“Ground 1

The judgment is against the weight of evidence.