MTN Nigeria Communications Limited v. Hamsatu Abudullahi (An Infant) (Suing Through Her Next Friend Mallam Abdullahi Koki) & Ors (2024)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ALI ABUBAKAR BABANDI GUMEL, JCA (Delivering the leading judgment)

This is an appeal against the judgment of Yobe State High Court delivered on 30th May, 2022 in suit No.: YBS/D/HC2/001/2021. Coram Judice:-Lawan, J.

In a writ of summons and statement of claim filed on 23rd March, 2021, the 1st respondent herein, as the plaintiff sought for a number of diverse declaratory and monetary compensatory reliefs.

With the leave of the lower court, the originating processes were amended and an amended writ of summons and statement of claim were filed on 20th September, 2021. In more specific terms, the plaintiff/1st respondent by paragraph 38 of the amended statement of claim sought for the following main reliefs. They are:-

1. A declaration that the defendants action in situating and/or locating a booster site right in front of the plaintiffs fathers home in Chumbusko village in Karasuwa Local Government Area of Yobe State despite his protestations constitutes an act of danger to the lives and property of the entire family and thus unlawful.
2. A declaration that the refusal, failure and neglect of the defendants to secure completely the booster site with fence and/or any form of security is an act of negligence and a clear breach of their statutory duty of care.
3. A declaration that the defendants failure or omission to cover the stay wires that held the poles that connected the booster site with electricity is a clear sign of gross negligence with resulted in the electrocution of the plaintiff.
4. A declaration that the electrocution of the plaintiff resulting in permanent injury and her complete disfigurement due to the loss of her two hands, right leg, burns in some parts of the body, continuous pains, anguish and shock are direct consequences of the failure of the defendants duty of care.
5. A declaration that the plaintiff is entitled to be compensated with damages for the losses suffered, psychological trauma and shock caused the plaintiff by the defendants acts and omissions.
6. An order directing the defendants jointly and severally to pay to the plaintiff the sum of N500,000,000.00 (five hundred million naira) only being compensatory or general damages for the permanent disablement via the loss of the plaintiffs two hand and right leg, complete disfigurement and being rendered useless for life, continuous pains, medical treatment for life, anguish, shock and continuous psychological trauma and loss of amenities of life suffered by the plaintiff caused by the defendants acts and omissions.
7. The cost of the suit.

The amended pleadings were frontloaded with a witness statement on oath and a number of documents and photographs that were to be tendered as evidence at the trial. The defendants, though apparently duly served with all the relevant processes in the action, including hearing notices failed to enter appearance and file pleadings.

During its proceedings on 26th January, 2022, the lower court saw good reasons to proceed with the trial of the action, upon being satisfied fully that there was adequate proof of service of processes on the defendants, but they remained defiant by not filing any processes at all.

As part of the trial, the father of the plaintiff testified as PW1. In addition to his oral testimony, a number of documents were tendered through PW1 and admitted in evidence.

His evidence-in-chief is recorded at pages 49 to 55 of the printed record of appeal and after which the matter was adjourned for defence or address by learned counsel to the plaintiff.

On the next adjourned date, learned counsel Mr. N. B. Umar appeared in court, to hold brief for Mr. I. Kasim, of counsel for the 1st defendant/appellant. For reasons which remain inexplicable to me, the lower court allowed learned counsel to the plaintiff to proceed to adopt his already filed written address.

The matter was adjourned for judgment on a future date to be assigned by the court, without any serious objection by Mr. Umar, of counsel.

In an application dated 17th March, 2022, but filed on 5th April, 2022, the defendant/appellant sought for the following reliefs. They are: –

1. An order for leave of this honorable court and to arrest the judgment set for delivery pursuant to adoption of plaintiffs written address on 21/02/2022.
2. An order for enlargement of time for the 1st defendant to file memorandum of appearance, statement of defence, witnesses statement on oath, list of exhibits/witnesses out of time.
3. An order for leave to reopen the case, recall witnesses who testified and allow 1st defendant defend the action on merit.
4. An order deeming the documents in (2) above as properly filed and served same having been assessed, paid and filed as separate processes at the Registry.

There are 5 grounds for this application and a 9-paragraph affidavit in support and was brought pursuant to the inherent powers of the lower court. Learned counsel, on behalf of the plaintiff/1st respondent, filed a 5-paragraph counter-affidavit and a written address to oppose this application. Further to this, learned counsel on behalf of the 1st defendant/appellant went ahead to file a memorandum of conditional appearance, a statement of defence and a further and better affidavit in support of its motion. The purported statement of defence was frontloaded with a number of witness statements on oath.

The motion was duly argued on 9th May, 2022 and ruling was reserved. See pages 138 to 141 of the printed record of appeal. In its ruling delivered on 23rd May, 2022 and now contained at pages 142 to 158 of the record, the lower court refused and dismissed the application.

Sequel to the outcome of the ruling, the lower court proceeded to deliver its judgment on 30th May, 2022. As part of its judgment, the lower court found in favour of the plaintiff in the following words. Thus:-