G. K. F. Investment Nigeria Ltd. V. Nigeria Telecommunications Plc (2009)

LAWGLOBAL HUB Lead Judgment Report

M. MUKHTAR, J.S.C. 

This is an appeal against the decision of the Court of Appeal, Lagos Division, which affirmed the judgment of the Lagos State High Court in favour of the appellant who was plaintiff in the trial court. The case of the appellant as per its amended statement of claim was that it was allocated a telephone line No. 0012630142 formerly owned by Linx Collavino Nigeria, in April, 1996 on applying to the respondent for one. In September 1996, the telephone services were withdrawn by the respondent, leaving the appellant unable to communicate through the line. As a result of this development, the appellant lodged a complaint to the respondent, and the appellant was informed that the withdrawal was necessitated by the non-payment of the sum of N23,655.00 which the respondent charged the plaintiff.

According to the appellant it had already paid the said sum vide the Nigeria Arab Bank, and the bank remitted the money to the respondent on 23rd September 1996. Inspite of the payment the respondent refused to restore the telephone services, even after several demands. The failure to restore the line has created hardship on the appellant, to wit it claimed the following:-

“(a) The sum of N30,000,000.00 (Thirty million naira) being special Exemplary and general damages from the defendant for breach of the contract between the plaintiff and the Defendant by the defendant or for negligence.

(b) Loss of income/profits at the rate of N500,000.00 per week.

(c) Interest on the above damages and loss of income/profit at the rate of 21% per annum from the 5th day of December, 1996 till final payment, and 6% thereafter until liquidation.”

The defendant/respondent denied most of the allegations. On completion of pleadings both parties adduced evidence. The trial court appraised the evidence, and at the end of the day found for the appellant and awarded damages which it was not satisfied with, and therefore appealed to the lower court, which dismissed the appeal. Again it is not satisfied with the judgment, and it has appealed to this court on fourteen grounds of appeal. Briefs of argument were exchanged in compliance with the practice of this court. Fourteen issues for determination were raised in the appellant’s brief of argument to relate to the fourteen grounds of appeal which he has filed. The respondent however raised four Issues for determination, and the issues are:-

“1. Whether grounds 4,6,7,8, 10 and 11 of the Appellant’s notice of appeal are competent having been filed without leave of court

2. Whether the Court of Appeal’s evaluation of evidence and refusal to reverse damages awarded by the trial court is perverse or unreasonable so as to warrant interference by the Supreme Court
3. Whether the Court of Appeal was right to discountenance the appellants claim for negligence for breach of contract
4. Whether the Appellant is entitled to 21% interest on the judgment sum and if costs of N10, 000 awarded against the Appellant are appropriate under the circumstances”

Issues 2 and 3 I have reproduced above are more comprehensive and succinct to the appeal than those raised in the appellant’s brief of argument, and so I will adopt them for the treatment of this appeal. The appellant’s issues for determination are just as prolix and unnecessarily verbose as their grounds of appeal. I find some of them absolutely unnecessary. It was as though the learned counsel for the appellant wanted to appeal against every point the learned justice made in his lead judgment. That to my mind is poor advocacy, as the success of an appeal is not dependent on the number of the grounds of appeal, but the substantiality and competence of the grounds of appeal. See Sossa v. Fokpo 2001 1 NWLR part 693, page 16, and Kupoluyi v. Phillips 2001 13 NWLR part 731 page 736.

I will commence the treatment of the appeal with issue (2) supra. The argument of the learned counsel for the appellant is that the appellant’s appeal to the Court of Appeal did not raise the issue of findings of facts, credibility of witnesses and evaluation of evidence by the trial court, and so the lower court had no business veering or raising the issues suo motu. He placed reliance on the case of Oshodi v. Eyifunmi 2000 13 NWLR part 684 page 298. In reply, the learned counsel for the respondent argued that the true position is that the appellant in its grounds of appeal and brief of argument before the Court of Appeal severally questioned the basis upon which the trial court awarded N200,000 damages to it. On the other hand the respondent had inter alia contended that the award was proper given the fact that the appellant had failed to properly prove special damages according to the test laid down by a plethora of cases. The learned counsel referred to the cases of ACB Ltd v. BBB Manufacturing Co. Ltd 1996 4 NWLR part 444 page 564 and Incar v. Adegboye 1985 2 NWLR part 8 page 453.

According to him the questioning by the appellant of the basis of the award of damages clearly opened the issue to scrutiny by the Court of Appeal, and this it did. The learned counsel for the respondent further submitted that even though the assessment and evaluation of evidence produced at the trial is within the exclusive power of the court of trial, by virtue of section 16 of the Court of Appeal Act (Cap 36 of the Laws of the Federation of Nigeria), the Court of Appeal in its appellate jurisdiction is in as good a position as the trial court to evaluate such evidence to arrive at its own conclusion where the lower court either fails to evaluate or improperly evaluates evidence. See Fashanu v. Adekoya 1974 1 All NLR part 1 page 35, and Anyaoke v. Adi 1986 3 NWLR part 310 page 731. It is also the submission of learned counsel that the act of the lower court in reviewing the issue of damages would not lead to the disturbance of its decision, and that an appellate court will only intervene on issue of damages where there is clearly a very high or low estimate and same is perverse or appears to have been arrived at on wrong principles. See Usman v. Abubakar 2001 12 NWLR part 728 page 685, Bahegu v. Labiran 1988 3 NWLR part 80 page 66, and Lasisi v. Allied Bank (Nig) PLC 2002 7 NWLR part 767 page 542.

At this juncture I consider it pertinent to look at the record of proceedings in the lower court. In the notice of appeal in the Court of Appeal, (to be found on page 62 of the printed record of appeal), the pertinent grounds of appeal to this discussion read as follows:-

“1. The learned trial judge erred in law and facts when he failed to award the Appellant the whole amount claimed as special damages when he (learned trial judge) has held same to be unchallenged, believed and as such Appellant entitled to special damages claimed.

PARTICULARS OF ERROR