Barrister Mike Nkwocha & Ors V. Mtn Nigeria Communications Ltd. & Anor (2008)

LawGlobal-Hub Lead Judgment Report

PETER-ODILI, J.C.A.

This is an appeal against the decision of Honourable Justice B.F.M. Nyako of the Federal High court, Abuja dated 2nd February, 2005, wherein the learned trial Judge struck out the appellant’s suit in line with the decision in a sister/similar suit and for want of prosecution. The appellants being dissatisfied have filed this appeal.

Statement of Facts:

The appellants (as plaintiffs in the trial court) filed a writ and statement of claim on 25th March, 2004 at the Federal High Court, Abuja. In the suit, the appellants alleged several breaches of contract by the respondents (defendants in the Court below). They also alleged breaches by the respondents of their (i.e. respondents) Digital Mobile Licences in that the respondents failed (according to the appellants) to ensure that the traffic capacity provided in their systems would be dimensioned to guarantee a satisfactory grade of service.

The appellant therefore sought, inter alia, an order directing the defendants jointly and severally to render accounts of money received on behalf of the plaintiff’s the sum representing the monetary value of dropped and uncompleted calls (see pages 44-45 of the record).

The 1st and 2nd respondents respectively filed their notices of preliminary objection without filling their statement of defence. The matter was adjourned for hearing of the preliminary objections. On the date slated for hearing of the objection, counsel representing the 1st respondent applied that the decision on a similar notice of objection filed in a similar suit of NAAC v. MTN suit No: FHC/ABJ/CS/M/517/2003 pending before the same court (infact the same Judge) should apply to the instant case. All the parties were represent by counsel on that date and they raised no objection.

In fact, counsel to the appellants (then plaintiffs) said he had no objection. The court subsequently adopted that procedure (see page 86 of the record).

The court delivered a ruling in NAAC v. MTN on 21st October, 2004, wherein it sustained the similar notice of preliminary objection filed by the 1st respondent therein. On the 11th November, 2004, the court adjourned the appellants’ suit for hearing on 2nd February, 2005 in the presence of the appellants’ counsel.

On the date slated for hearing, the appellant was absent and unrepresented. The court struck out the matter in line with the decision reached on the notice of preliminary objection in the other suit and for want of prosecution. The appellants thus lodge the instant appeal.

Learned counsel for the appellant filed an appellants’ brief and formulated three issues for determination which are: –

I. Even though it neither heard nor determined the respondents’ preliminary objection, whether the trial court was right to strike out the appellants’ suit on the basis of its earlier decision in a different case not involving the appellants and without hearing the appellants.

2. Whether the trial court was right to have considered legal and factual issues raised suo motu by the court in striking out the suit without affording the appellant the opportunity of being heard.
3. Whether the trial court was right in striking out the appellants’ suit for want of prosecution.

The 1st respondent filed their brief on 1/3/06 which was deemed filed on 18/10/06 and in it framed only one issue which is: –

Whether in view of the procedure adopted by the parties, the trial court was wrong in applying the decision reached in suit No. FHC/ABJ/CS/M/517/2003 between Nationwide Action Against Corruption v. MTN Nigerian communications Limited to the appellants suit.

The 2nd respondent filed their brief on 30/10/06 and it was deemed filed on 23/11/06. They couched three issues for determination which are as follows: –