Multichoice Nigeria Limited V. Mr. Bankole Azeez (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

STANLEY SHENKO ALAGOA, J.C.A. (Delivering the Leading Judgment)

In the High Court of Justice Ibadan, Oyo State of Nigeria, the Respondent as Plaintiff took out a writ of summons against the Appellant as Defendant claiming as follows at page 6 of the Record of appeal-

“1. A declaration that the scrambling by the Defendant of Plaintiff’s DSTV Satelite services in October and November, 2004 when he is not in default of service charges is illegal, arbitrary and wrongful and a breach of the contractual agreement between them and the defendant.

2. Plaintiffs claim from the Defendant payment of N1,000,000.00 (One million Naira Only) being general damages for the loss of enjoyment and deprivation of the services of the defendant.”

Pleadings were filed and exchanged by the parties and the case went on to be heard with Respondent as Plaintiff calling one witness Dr. Abdul Liadi Azeez as PW1 while the Appellant as Defendant also called one witness Mrs. Oluwakemi Shaba as DW1. A number of exhibits were tendered and admitted. Counsel for the parties submitted written addresses which they adopted and relied upon in Court.

In a considered judgment delivered on the 29th June, 2006 the learned trial Judge found in favour of the Plaintiff. For a fuller appraisal of the issues it is necessary to delve into the background facts of this case. The Respondent Mr. Bankole Azeez was the 2nd Plaintiff in the court below having instituted action with one Dr. Olayinka Azeez who from evidence is his father as joint plaintiffs against the Appellant, a Digital Satellite Television Services business outfit. The name of Dr. Olayinka Azeez was later to be struck out by the court but nevertheless the learned trial Judge accepted his evidence in court as PW1.

Briefly, the Respondent’s case in the court below is that he was a subscriber to the Satellite Television Services rendered by the Appellant and he paid the sum of N9,000.00 monthly and was regular in his payment. That amount (N9,000.00 a month) was the sum chargeable by the Appellant for a double decoder which allowed the viewing of more than one channel at a time. He paid this sum until the 2nd October 2004 when while watching a Cable News Network programme, the service was scrambled and he contacted Favourite Systems Ltd. an agent of the Appellant who indeed confirmed that his service had been scrambled.

Upon complaint by the Respondent the service was restored but the Respondent was informed that the subscription fee had been increased from N9,000.00 to N9,550.00 monthly and the balance of N550.00 was paid by the Respondent to the Appellant on the 4th October 2004. On the 1st November 2004, the Respondent’s service was again scrambled by the Appellant and the Respondent had to travel to the Appellant’s office in Lagos to lodge a complaint before the service was reconnected by the Appellant. It is on the basis of these facts that the Respondent took out a writ against the Appellant. The learned trial Judge in delivering Judgment for the Respondent on the 29th June 2006 stated as follows,

“The scrambling by the defendant of the Plaintiff’s DSTV services on the 2nd October 2004 and 1st November 2004 when he was not in default of service charges is arbitrary and wrongful and a breach of the contractual agreement between the plaintiff and the defendant. A sum of (N627.00) six hundred and twenty seven naira is hereby awarded as damages for the said breach of contract.”

Dissatisfied with this judgment, the Defendant as Appellant has appealed to this Court by a Notice of Appeal Filed on the 11th August 2006 and contained at pages 88-90 of the Record of Appeal. The following are the Grounds contained in the Notice of Appeal –

GROUND 1 – The Learned Trial Judge misdirected himself by concluding that it is implied in the contract between the parties that Notice of increment of subscription fee for Defendant’s service would be given to the Plaintiff before disconnecting his service.

GROUND 2 – The Learned Trial Judge misdirected himself by finding that the Defendant had no legal excuse or reason to scramble or disconnect the service to the Plaintiff on 2nd October 2004 and 1st November 2004 when there were sufficient evidence before the Honourable Court explaining why the service to the Plaintiff was disconnected.

GROUND 3 – The Learned trial Judge erred in law by relying on inadmissible evidence of hearsay evidence which offends section 77 of the Evidence Act.

GROUND 4 – The judgment is against the weight of evidence.

The Appellant has in paragraph 3 at page 5 of its Brief of Argument dated the 25th July 2008 and filed same day formulated the following two issues for the determination of this Court viz –