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 In September 1996, the telephone services were withdrawn by the respondent, leaving the appellant unable to communicate through the line.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
- 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
- Whether the Court of Appeal was right to discountenance the appellants claim for negligence for breach of contract
- 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
(a) The Appellant was not challenged, contradicted, or even at all cross examined on the special damages claimed or any of the damages at all.
(b) There was no iota of evidence that the amount the Appellant is claiming as special damages excessive or any alternative amount suggested by the Respondent.
(c) The Appellant in spite of being unchallenged as aforesaid led credible and relevant evidence with over two hundred documentary (Exhibits) in support of her claim for special damage
(d) By paragraph 1 of the conditions for supply of telephone services contained in the last page of the Agreement for supply of telephone services Exhibit B the Respondent covenanted or agreed to be liable to any damage(s) or loss arising from an interruption of telephone services to Appellant for a continuous period of 14 days when such interruption has been acknowledged by the respondent as in Exhibits H1-8.
The learned trial judge erred in law when he failed to award a reasonable and substantial amount as special, general and exemplary damages but awarded a paltry sum of N200,000 (Two Hundred Thousand Naira) as special, general and exemplary damages in favour of the Appellant against the respondent.
PARTICULARS OF ERROR
(a) The Appellant led credible, unchallenged and uncontradicted evidence that she suffered substantial or colossal loss or damage as a result of the respondent’s breach of contract for the supply of telephone services.
(b) The learned trial judge failed to take cognizance of or consider the relevance of the value of naira in the award of damages as enunciated in the case of Onagoruwa vs. I.G.P. (1991) 5 NWLR (part 193) 593 at 621.
(c) The essence of exemplary damages which is to teach a defendant hard lessons and to deter others is lost or unattainable in the above paltry sum awarded.”
These grounds covered the following issues raised in the appellant’s brief of argument.
“1. Is the learned trial judge right, to have failed to award the whole amount claimed as special damages to the Appellant, when he held evidence on same to be unchallenged, true and as such Appellant entitled to special damages claimed
………………………………..
- Whether having regards to the circumstances, and evidence of the colossal loss incurred by the Appellant in this suit the paltry sum of N200,000.00 (two hundred thousand naira) awarded as special, general, and exemplary damages is reasonable”.
The argument covering these issues in the parties’ briefs of argument centred on the evidence before the trial court, their credibility, the very nature of their substance and consequence where they were not challenged. In a situation like that the Court of Appeal had no choice than to re-examine the pertinent pieces of evidence, albeit evaluate them where necessary if that will meet the end of justice, and for the just determination of the appeal. There was no way the lower court could have ignored this aspect of the argument, without occasioning substantial miscarriage of justice, as it was bound to raise the issues it raised, even if suo moto in the circumstance of the appeal.
In this case it is on record that issues were raised in the court vide the appellant’s grounds of appeal, issues and the arguments proffered. I refuse to subscribe to the stance of the learned counsel for the appellant that the appellant never raised the issue of finding of facts. Although an appellate court is bound by the finding of a trial court, in view of the principle of law that the trial court having seen and heard witnesses is in a better position to make findings of fact, an appellate court is at liberty to interfere with the findings of a trial court when the findings are perverse. The cardinal principle of law is that an appellate court will disturb such findings where they are not supported by evidence, and they are perverse. See Olohunde v. Adeyeru 2000 10 NWLR part 676 page 562, Ibhafidon v. Igbinosun 2001 8 NWLR part 716, page 653, Woluchem v. Gudi 1981 5 SC 29, and Nwosu v. Mbadugha 2000 1 NWLR part 641 page 486.
Besides, section 16 of the Court of Appeal Act 1976 vests the court below with wide powers in such a situation to re-appraise evidence, as the provision states inter alia thus:-
“16. The Court of Appeal may, from time to time make any order necessary for determining the real question in controversy in the appeal…
And generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part……”
A very careful perusal of the judgment of the lower court does not reveal a departure from the law, and its requirements. An appellate court cannot be put in a straight jacket (so to speak) in the pursuance of its judicial function, and power of ensuring that justice in its undiluted form is arrived at in its judgment. Anything short of that is bound to occasion miscarriage of justice.
In this wise, I endorse the finding of Muhammad JCA in the lead judgment of the lower court which reads as follows:-
“Looking at the findings of the lower court in the con of the pleadings and evidence before it, one is inclined to agree with Respondent’s counsel that Appellant’s claim for weekly loss of profit as well as that as to the amount it expended in its resort to prepaid phone cards had not been proved for same to attract any award. Appellant did not provide the trial court with its previous sales figure or cash flow to enable the court make necessary deduction there from. The total number of the prepaid telephone cards used by the Appellant following the withdrawal of the telephone line installed by the Respondent inspite of the evidence before the court, is not ascertainable. And receipt of purchase to determine the expenditure incurred in that regard has not also, been made available. These specific heads of claim cannot, in the circumstances, be said to have been made out. It does not matter that Respondent’s counsel has in one breath conceded in their brief of argument that the two heads of claim are recoverable. Counsel’s submission does not substitute evidence. Concession by counsel is relevant only where the law allows it to be so. The trial court’s finding that the special damages claimed has been proved given the reasoning’s now advanced is clearly perverse. The inadequacies recounted had made it legally impossible for the damages which relate to these two specific heads of claim to be recovered. The Appellant has also failed to prove malice on the part of the Respondent in the course of breaching the contract.”
In the light of the foregoing reasoning, the answer to issue (2) supra is in the negative, and the related grounds of appeal fail, and they are hereby dismissed.
I will now proceed to the treatment of issue (3) supra. It is necessary to reproduce and consider the pleading that is relevant to the argument covering this issue. In its amended statement of claim the appellant averred as follows;-
“22. (a) Further to (sic) in the alternative to the following, the defendant was negligent in respect of handling the said contract of and withdrawal of telephone services to the plaintiff.
PARTICULARS OF NEGLIGENCE:-
(a) The plaintiff after payment of the said sum of N23,655.00 to the bank dropped a duplicate or counterpart of the said bank acknowledging payment into the Defendant’s box placed at the said banks premises, however the defendant failed and or refused and or neglected to cross check the said box and the said charge sheet/bill before cutting or withdrawing telephone services from the plaintiff.
(b) The plaintiff pointed out the fact in paragraph A above to the defendant but the defendant refused and or failed and neglected to check same” and to properly handle the said contract and withdrawal of telephone services.
(c) ………………………………………….
(d) The defendant would not have withdrawn, telephone services till date from the plaintiff if she had exercised reasonable or due care and diligence paying regards to the above…”
The learned counsel for the appellant in proffering argument under this issue set out the definition of the word ‘negligence’ as is set out in some Supreme Court judgments, as Odinaka v. Moghalu 1992, 4 NWLR part 233 page 1, and A.N.T.S. v. Atoloye 1993 6 NWLR part 298 page 233. In the case of Anyah v. Imo Concorde Hotels Ltd 2002 18 NWLR part 799 page 377 the conditions that have to exist before the claim of negligence can be raised were set down. Kalgo JSC in the lead judgment had the following to say:-
“The general principle is that the tort of negligence arises when a legal duty owed by the defendant to the plaintiff is breached and to succeed in action for negligence the plaintiff must prove by the preponderance of evidence or the balance of probabilities that:
“(a) the defendant owed him a duty of care;
(b) the duty of care was breached;
(c) the defendant suffered damages arising from the breach”.
See Agbonmagbe Bank Ltd v. C.F.A.O. (1966) 1 All N.L.R. 140 at 145
The most fundamental ingredient of the tort of negligence is the breach of the duty of care, which must be actionable in law and not a moral liability. And until a plaintiff can prove by evidence the actual breach of duty of care against the defendant the action must fail. See Benson v. Utubor (1973) 3 SC. 19; Okoli v. Nwagu 1960 SCNLR 48; (1960) 3 FSC 16, Nigeria Airways Ltd. v. Abe 1988 4 NWLR (pt.90) 524………..”
I am fortified by the above.
The learned counsel has submitted that the respondent was very negligent in the breach of the contract for supply of telephone services to the appellant, having failed in their obligation or duty to supply the appellant with uninterrupted telephone services, which occasioned loss or damages to the appellant.
It is the submission of the learned counsel for the respondent that the evidence and the present appeal rested squarely on the issue of the quantum of damages and not negligence as contended by the appellant.
It is a fact that the claim as in the appellant’s pleading was premised on negligence in the alternative, having premised the claim on the breach of contract and the issue of the quantum of damages as the main claim. In a situation like this, the court can adopt only one of the claims for the purpose of the consideration of the case and judgment. In the instant case, the learned trial judge considered and based his judgment on the main claim, rather than the claim in the alternative, which he was at liberty to do.
The appellant by its pleadings sought for damages in respect of breach of contract, or the breach of duty arising from the tort of negligence, and the claims being in the alternative, the law permits the court to consider only one of the claims and base its damages on it. The other arguments of the learned counsel for the appellant are of no moment. My answer to this issue (3) is in the affirmative. The grounds of appeal covering the said issue fail, and they are dismissed.
On the last issue, which is in respect of the award of interest, the learned counsel for the appellant has argued that the law is trite that once a party is kept out of his/her money the party is entitled to interest on same. The learned counsel for the respondent however took solace in a rule of the Lagos State High Court Civil Procedure Rules 1994 as amended, which makes the following provision.
“The court at the time of making any judgment or order, or at anytime afterwards, may direct the time within which the payment or other act is to be made or done, reckoned from the date of the judgment or order, or from some other point of time, as the court thinks fit, and may order interest at a rate not exceeding seven and a half per centum per annum to be paid upon any judgment, commencing from the date thereof or afterwards.”
It is the submission of the learned counsel that the provision is mandatory, as such, the entitlement is automatic unless otherwise ordered by court. He referred to the case of DPMS LTD v. Larmie 2005 5 NWLR part 655, page 138. He further submitted that it behoves the appellant to prove its claim of 21% if it wished to claim interest in excess of the statutory provision, which the appellant failed to do.
The above provision of the Lagos State High Court rules is very clear. The learned trial judge in this case did not make any order on payment of interest to the appellant. However, as one of the grounds of appeal of the appellant in the lower court complained against the failure of the trial court to award interest of 21% per annum before judgment on the damages and 6% per annum thereafter, the lower court was bound to examine and determine the issue married to the ground, which it did, and ordered as per Muhammad JCA in the lead judgment as follows:-
“In the instant case where the rules of court have provided for the recovery of interest on a judgment sum, the entitlement is automatic unless otherwise ordered by the court. Since the lower court had neither ordered the payment of interest to the Appellant nor given a direction to the contrary, the sum of N200,000.00 awarded to the Appellant automatically carries interest at the rate of 7 1/2% fixed by order 38 rule 7 of the Lagos State High Court (Civil Procedure) rules 1994 as amended.”
I endorse the above finding and affirm it. This last issue is resolved in favour of the respondent, and its related ground of appeal fail and it is dismissed. In the final analysis this appeal fails in its entirety, and it is hereby dismissed. The costs of N50,000.00 is awarded to the respondent against the appellant.
SC.177/2005