Multichoice Nigeria Limited V. Hon Jerry Akpan (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ONYEKACHI A. OTISI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the High Court of Akwa Ibom State, Uyo Judicial Division, delivered on the 12th day of April, 2011 wherein judgment was entered in favour of the Respondent against the Appellant.

The facts leading to this appeal are as follows: On 28th January, 2009, the Appellant, defendant in the lower court, suspended the Respondent’s DSTV account No.38210900 used in his law firm and barred him from further viewing, although the expiry date of the subscription was on 31st January,2009. As a result of the disconnection of his account by the Appellant, the Respondent was forced to pay for another subscription on the same date, while the subsisting subscription was yet to expire.

Aggrieved by the inconvenience and embarrassment caused him by the breach of the Appellant’s obligation under the subscription agreement to keep him fully and unceasingly subscribed, having fully paid his monthly subscription fee, the Appellant took out a Writ of Summons at the lower court, signed in the name of his law firm, Jerry Akpan & Co. on 15th March, 2010, and to which was attached the Statement of Claim and other processes; claiming against the Defendant (now Appellant) the sum of N50,000,000.00 (Fifty Million Naira) being general damages for injuries and loss suffered in breach of contract.

At the conclusion of hearing, judgment was entered in favour of the Respondent against the Appellant. Dissatisfied by the said judgment, the Appellant brought this appeal.

In their Amended Notice and Grounds of Appeal filed on 9/4/2013, the Appellant raised three grounds of appeal and sought the following Reliefs:

1. That this Appeal be allowed.
2. That the judgment of the trial Court be set aside and dismiss the claims of the Respondent.

The Appellant’s Brief of Argument was settled by S.C. Ukairo, Esq. of Counsel, and filed on 14/10/2013 but deemed properly filed and served on 22/10/2013. J.K. Omang, Esq. of Counsel for the Respondent settled the Respondent’s Brief on 19/3/2014, but it was deemed properly filed and served on 25/3/2014. These Briefs were respectively adopted on 25/3/2014 by Mr. Ukairo for the Appellant and by the Respondent, Jery, Akpan, Esq., who appeared in person.

The Appellant raised 2 Issues for determination as follows:

1. Whether the Trial Court was clothed with the requisite jurisdiction to entertain the suit having regard to the fact that the same was not initiated with due process of law.
2. Whether the award of the sum of N100, 000.00 as damages is not excessive in the light of the evidence before the trial court.

I shall first consider Issue No 1.

The complaint of the Appellant is that the writ of summons initiating this action is inchoate. That the said writ of summons dated 15th day of March, 2010 by which this suit was commenced clearly shows that it was issued by Jerry Akpan & Co. See page 3 of the Record of Appeal. It is submitted that, while it is not in doubt that Jerry Akpan & Co. is a firm of legal practitioners and represented the Respondent as Claimant in this suit at the lower court, the said writ of summons had not been issued in compliance with the Rules and therefore was incompetent.

Learned Counsel for the Appellant relied on the provisions of Order 6 of the Akwa Ibom High Court (Civil Procedure Rules) 2009, and Sections 2(1) and 24 of the Legal Practitioners Act, Laws of the Federation of Nigeria 2004.

It is submitted that the trial court was therefore bereft of jurisdiction to entertain it. Learned Counsel relied, inter alia, on Min.of Transport Adamawa State vs. Yakubu (2013) 1 MJSC (PT 11) 65 at 80; Kida vs. Ogunmola (2006) ALL FWLR (PT 327) 402 at 412.

While conceding that the appeal ought to succeed, the Respondent however raised a sole issue for determination:

Whether a striking out order is not the proper order to be made by this Honourable Court where it finds that the lower court lacks jurisdiction to determine the matter.