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Nigerian Communication Commission V. Motophone Limited & Anor (2019)

LAWGLOBAL HUB Lead Judgment Report

UWANI MUSA ABBA AJI, J.S.C.

The 1st Respondent, as Applicant, took out an Originating Motion at the trial Federal High Court against the Appellant and the 2nd Respondent for a judicial review as to whether the confiscation of the rights and property of the 1st Respondent was constitutional and legal, as contained at pages 3-5 of the record thus:

A DECLARATION that the letter MC/TD/2000/VOL 1 dated 3rd October, 2000 from the Minister of Communications to the Applicant purporting that the frequency assignment given to Applicant has “already expired” is (i) a confiscation of the rights and property of the Applicant and is illegal, unconstitutional, null and void; (ii) wrongful, invalid and ineffectual; (iii) substantively and procedurally ultra vires the powers of the Respondents and is null and void; and (iv) is perverse, arbitrary, capricious and unreasonable and by reason thereof beyond the powers of the respondent to make and is null and void.
A DECLARATION that the letter from the Nigerian Applicants telecommunications licenses is (i) invalid and ineffectual; (ii) substantively and

procedurally ultra vires the powers of the Respondents and is null and void; (iii) is perverse, arbitrary, capricious and unreasonable and by reason thereof beyond the powers of the Respondent to make and is null and void; and (iv) is a confiscation of the rights and property of the Applicant and is illegal, unconstitutional, null and void.

A DECLARATION that the denial and interference by the Respondents with the effect and operation of the Applicants (i) Fixed Wireless PNL License in force from 1st June 1997 for a duration of Ten years from 1st June 1997 till 31st May 2007 and express provision for automatic renewal for a further period of ten years from 1st June 1997 to 31st May 2017; and (ii) Cellular Mobil License from 1st September 1997 for a duration of Fifteen years from 1st September 1997 to 31st August 2012 and express provision for automatic renewal for a further period of Fifteen years from 1st September 2012 to 31st August 2027 issued by the 1st Respondent to the Applicant and with the Frequency assignment granted to the Applicant by the 2nd Respondent under Decree 75 of 1992 and Wireless Telegraphy Act Laws of the Federation 1990 is a

deliberate and de facto confiscation of the Applicant’s rights and property which is ultra vires, unlawful and unconstitutional and which has injured the Applicant unlawfully and in breach of contract.

AN ORDER that the Respondents indemnify or pay as DAMAGES to the Applicant in respect of the following or such other sum or sums as may be found upon inquiry to be due: (i) for lost fees paid, (ii) costs thrown away, (iii) loss of use, (iv) loss of profit, (v) loss of opportunity and (vi) malicious injury to the Plaintiff’s business and undertaking all resulting directly from the Respondent’s decisions and actions complained of herein.

Particulars..

(I) Application, License and sundry Fees

(US $891,923) -NGN 93,651,950.

(ii) Payments made to Consultants, irrevocable Commitments with 3rd parties and recurrent Expenditure, rents and staff salaries (US $27,358,992)- NGN2,872,694,156.

(iii) Capital expenditure, Infrastructure, equipment and facilities (US $10,525,885 -NGN1,105,217.905.

(iv) Loss of profit-US $2,854,092,970. TOTAL US $DAMAGES- US$2,892,869,770 N442,609,074,810.00 at prevailing rate of =N=153.00 per US $ or

current equivalent)

Further or other relief
costs

The facts are that the 1st Respondent was awarded 2 Communications licenses as Private Network License and the Mobil Cellular License premised on continuing conditions to be met by the 1st Respondent, otherwise the License would be invalidated without the necessity of formal withdrawal or revocation. However, the 1st Respondent failed to meet some of the conditions especially the requirement to start operation within 6 months of the award of the Licenses and also interconnection with NITEL. The 1st Respondent also did not meet condition of Frequency Allocation by the Federal Ministry of Communications (the 2nd Respondent). Thus, the 1st Respondent lost the frequency by which it could offer services as a communications company and therefore would not be able to offer services. It was because of this loss and withdrawal of the frequencies that the Appellant offered to refund the License fees to the 1st Respondent. In its considered judgment delivered on 8/7/2005 at pages 36-63, the trial Court granted to the 1st Respondent damages in the sum of N93,651,950 and US $10 million. Dissatisfied, the

Appellant appealed to the lower Court of Appeal which also in its judgment of 10/7/2010 at pages 130-197 affirmed the judgment of the trial Court, hence the appeal to this Honourable Court.

By an amended Notice of Appeal dated 4/5/2010, the Appellant formulated 11 Grounds of appeal for the determination of this appeal as contained therein with their particulars. In arguing the appeal, the Appellant vide their learned Counsel Ned an Appellant’s Brief dated 6/5/2015 but deemed filed properly on 12/5/2015, settled by Adewale Adegboyega, Esq, wherein at page 5 of the Brief, he formulated 5 issues for the determination of the appeal thus:

Whether the Court of Appeal was right in law to have dismissed the appeal having regards to: – (i) The fundamentally defective state of the papers relied upon for the originating proceedings. ii. The complete absence of legally admissible or tenable evidence. iii. The valid and subsisting portions of the final Ruling of Adah, J.
Bearing in mind the very peculiar nature of this proceeding (particularly the dearth of pleadings, supporting affidavit and admissible evidence) whether the Court of Appeal was wrong in

not allowing the appeal on damages.

Whether the Court of Appeal had the necessary jurisdiction to proceed with and determine the appeal, the action being fundamentally defective, incompetent and premature.
Whether the lower Court considered the material issues for determination in issue 4 formulated before it when it resolved issue 2, 3 and 5.
Whether the lower Court ought to have raised the issue of the relative strength of the parties suo motu and resolve same without inviting the parties to address same.

The 1st Respondent filed a Respondent’s Brief of Argument dated 1/6/2015 but filed on 4/6/2015, settled by Emmanuel Ekpenyong, Esq; wherein he adopted all the issues formulated by the Appellant. Consequently, the Appellant filed a Reply Brief dated 24/11/2017 but deemed filed on 5/2/2018. Both parties on 28/1/2019 adopted their respective Briefs as argued and sought the judgment of this Court in their favour.

Having painstakingly read the briefs, judgment and supporting documents in this appeal, I shall consider the Appellant’s issues formulated for the determination of this appeal. Issues 1 and 3 shall be considered

together, issue 2 separately while issues 4 and 5 shall be jointly determined. Nevertheless, there is a preliminary objection filed by the 1st Respondent that I cannot gloss over.

PRELIMINARY OBJECTION:

The learned Counsel to the 1st Respondent has objected to the competence of issues 1 and 3 and urged that they should be struck out peremptorily on the basis that no leave was obtained before Grounds 1, 8 and 9 of issue 1 and Grounds 5 and 6 of issue 3, being questions of mixed law and fact were raised.

On the competence of issue 1, he submitted that no leave was obtained before Grounds 1, 8 and 9 were filed being questions of mixed law and fact. He referred to KOREDE V. ADEDOKUN (2001) 15 NWLR (P1.736) AT 499. On issue 3, he objected that Ground 6 being questions of mixed law and fact needed the leave of the Court to be raised since an incompetent Ground infects that issue and renders same incompetent. Additionally, that Ground 5 is liable to be struck out having raised no reasonable ground of appeal. He cited in support MILITARY GOVERNOR OF ONDO STATE V. AJAYI (1998) 3 NWLR (PT.540) 44. He prayed that the preliminary objection should be sustained.

In the Appellant’s Reply Brief dated 24/11/2017 but deemed filed on 5/2/2018, he submitted that the 1st Respondent can challenge the competence of the grounds of appeal either by filing a Motion on Notice where he challenges some Grounds or Notice of Preliminary Objection where he challenges all the Grounds of appeal. He relied on KLM ROYAL DUTCH AIRLINES V. JAMLAT ALOMA (2017) LPELR-42588 SC, ODUNUKWE V. OFOMATA (2010) 18 NWLR (PT.1225) AT 423. He submitted that the failure of the 1st Respondent to file a Motion on Notice to Grounds 1, 5, 6, 8 and 9 renders its challenge incompetent and urged this Court to discountenance the preliminary points. He referred to OKOROCHA V. PDP (2014) LPELR-22057 SC. He asked for the discountenance of the preliminary objection.

The 1st Respondent’s learned Counsel raised what he termed “Preliminary Points” to the competence of Grounds 1, 8 and 9 of Issue 1 and Grounds 5 and 6 of Issue 3, being questions of mixed law and fact, being raised without the leave of the lower Court first had and obtained. It is indisputable that his censorship is not against all the Grounds of appeal contained in the Amended Notice

of Appeal of the Appellant capable of completely debilitating and destroying the whole appeal. In DAUDU V. FRN (2018) LPELR-43637(SC), Per AKA’AHS, J.S.C, struck out the preliminary objection therein because it was not the appropriate mode to complain about some of the grounds of appeal. Per Rhodes-Vivour JSC in ADEJUMO V. OLAWAIYE (2014) 12 NWLR 9 (PT 142) 252 AT P.279 held that “A preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal… Where a preliminary objection would not be appropriate process to object or show to the Court defects in processes before it, a motion on notice filed complaining of a few grounds or defects would suffice.” This therefore must be the unfortunate fate of the preliminary points raised by the 1st Respondent against the competence of Grounds 1, 8 and 9 of issue 1 and Grounds 5 and 6 of issue 3 in this instant objection and it is hereby discountenanced without hesitation.

On the preliminary point raised by the learned Counsel to the 1st Respondent on the competence of issue 1 (ii) & (iii)

formulated by the Appellant, that by Order 6 of the Supreme Court rules, there is no provision for “sub issues” and that issue 1 (ii) & (iii) be struck out by relying on HUSSEIN V. MOHAMMED (2015) 3 NWLR (Pt. 1445) AT 126, I must not overlook. Issue 1 apparently appears split or to carry sub issues with it instead of being one whole issue for the determination of the appeal. What the Appellant did has the effect to obscure and obviate the fundamental and core issue in this appeal especially on issue 1. This is most undesirable and condemnable! The main purpose of formulation of issues for determination is to enable the parties to narrow the issue or issues in controversy in the grounds of appeal filed in the interest of accuracy, clarity and brevity. Counsel must learn to assist the Court rather than muzzle and puzzle things up for the Court. I may however forgive this for the sake of justice since the said split or sub issue can give some meaning and understanding to a reasonable mind without misleading or occasioning miscarriage of justice to the 1st Respondent. Thus, ‘A party who complains about the formulation of issue or issues by the Court must say

what injustice has been done to him by such formulation. In the absence of such evidence, an appellate Court cannot reverse the decision of the lower Court. The formulation of the issue by the Court must result in miscarriage of justice for this Court to intervene in favour of the appellant.” See Per TOBI, J.S.C in NWANA V. FCDA & ORS (2004) LPELR-2102(SC). I cannot therefore give place to the preliminary objection raised by the learned Counsel to the 1st Respondent.

MAIN APPEAL:

ISSUES 1 AND 3:

Whether the Court of Appeal was right in law to have dismissed the appeal having regards to:- i. The fundamentally defective state of the papers relied upon for the originating proceedings, ii. The complete absence of legally admissible or tenable evidence. iii. The valid and subsisting portions of the final Ruling of Adah, J.
Whether the Court of Appeal had the necessary jurisdiction to proceed with and determine the appeal, the action being fundamentally defective, incompetent and premature.

On issue 1, it is submitted by the learned senior Counsel that the matter initiated by Originating Motion ought to be fought by a supporting

affidavit and not verifying affidavit as held in KEYAMO V. LAGOS STATE HOUSE OF ASSEMBLY (2000) 12 NWLR (PT. 650) AT 213. Thus, the purported report of J.K. RANDLE and other documents are not evidence before the Court and that the suit was vitiated by fundamental defect and jurisdictional incompetence. Again, that by virtue of the dismissal of relief 1, all other reliefs stand legally impotent and the Court ought to have dismissed the appeal before it since relief 1 could not stand in the air.

On issue 3, it is settled that a Court is competent when the case before it is initiated by due process of law and upon fulfilment of any condition precedent as held in MADUKOLU V. NKEMDILIM (1962) ANLR AT 589. Similarly, that by Sections 85, 86 and 87 of the Nigerian Communications Act, 2003, the preconditions and procedural steps to be taken by the 1st Respondent were not followed contrary to the decisions in ADESOLA V. ABIDOYE (1999) 14 NWLR (PT.637) AT 58-59 and OWOSENI V. FALOYE (2005) 14 NWLR (PT.946) AT 740. Thus, since the remedies in the said sections were not followed, the Courts lack the jurisdiction to hear or continue this matter. He therefore urged this

Court to resolve these issues in his favour.

The learned Counsel to the 1st Respondent has submitted on issue 1(i) that the verifying affidavit filed instead of supporting affidavit as affecting the jurisdiction of the trial Court is trifling, incompetent and misconceived since the form of originating process is not a matter of jurisdiction but practice and procedure governed by the Federal High Court Rules. He referred to Order 47 Rule 3 of the Federal High Court (Civil Procedure) Rules, 2000, which provides for a verifying affidavit. He also submitted that failure to comply with the provisions for commencement of actions is an irregularity that can be waived. He cited in support the cases of SAUDE V. ABDULLAHI (1989) 4 NWLR (PT.116) 405, ADEBAYO JOHN WO V. JOHNSON OLUSEYE (1969) ALL NLR AT 185.

He submitted further that the Exhibits attached to the verifying affidavit and Applicant’s statement constitute the affidavit and are legally admissible evidence to prove the facts alleged. He relied on SHITTA-BEY V. ATTORNEY GENERAL OF THE FEDERATION (1988) 10 NWLR (PT. 570) 392, NWOSU V. IMO ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (PT.135) AT 715.

Again, on issue 1 (iii), it is submitted that this argument is based on incomplete reading of the trial Court’s decision. He submitted further that since the Appellant did not appeal against the finding of the trial Court on this, it subsists and the lower Court could not have dismissed the appeal based on an obiter dictum of the trial Court. He cited the authority in ALAKIJA V. ABDULAI (1998) 6 NWLR (PT.552) AT 24, COMMERCE BANK ASSURANCE LTD V. ALLI (1998) 10 NWLR (PT.571) AT 586.

The 1st Respondent on issue 3 has submitted that the cause of action arose in 2000 and not 2004 as alleged by the Appellant. Thus, the existing law, being Section 6 of the NCC Act, 1992, when the cause of action arose in 2000 did not provide for administrative remedies. He contended that the jurisdiction of a Court is determined by the existing law at the time the cause of action arose. He relied on GOVERNOR OF OYO V. FOLAYAN (1995) 8 NWIR (PT.414) AT 307, KOTOYE V. SARAKI (1994) 7 NWLR (357) AT 447. He urged that this issue be resolved in its favour.

By the provision of the law and rules of Court, the proceeding herein, by its nature and genre, is to originate

by Originating Motion accompanied with a verifying affidavit. In fact, Order 47 Rule 3 of the Federal High Court (Civil Procedure) Rules, 2000, provides expressly as follows:

3(1) no application for judicial review shall be made unless the leave of Court has been obtained in accordance with this rules

(2) An application for leave shall be made ex parte to the Court, except in vacation when it shall be made to the judge in chambers and shall be supported by-

(a) A statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought; and

(b) AFFIDAVIT TO BE FILED WITH THE APPLICATION, VERIFYING THE FACTS RELIED ON. (Emphasis mine)

This is a genre of proceeding that is fought on affidavit evidence and because verifying affidavit evidence is used, it cannot be said that there was fundamental defect in the process. The name verifying and supporting affidavit is a matter of nomenclature and the adjectival use of “supporting” and “verifying” does not garble or distort its substance and intent. All that matters is that it is a proceeding fought by affidavit evidence. It is to be noted that

evidence by affidavit is a form of documentary evidence which is prima facie admissible. It is entitled to be given adequate weight where it is concrete, cogent, credible and there is no conflict or after the conflict has been resolved from appropriate oral or documentary evidence. Supporting or verifying affidavit evidence has every equal weight as pleadings or oral testimony taken except where there are contradictions in the affidavit or documentary evidence. Thus, documentary evidence can suffice to adequately and judiciously adjudicate on the case of the parties herein. The verifying affidavit is the statutory and procedural document to be filed and attached to the Originating Motion and qualified as affidavit evidence and all other documents attached thereto cannot render it defective. Having decided on the competence and the qualification to use verifying affidavit, every document or exhibit attached thereto are properly tendered, legally admissible and tenable in law. The report of J.K. RANDLE and other documents attached are admissible evidence and may only be rejected based on other litmus tests of weight or relevancy of documents. Per PETER-ODILI,

J.S.C in EZECHUKWU & ANOR V. L O. C. ONWUKA (2016) LPELR-26055(SC) bluntly answered it thus:

“…it is also trite that all documents attached to an affidavit such as Exhibit R form part of the affidavit in question and it is not possible to raise objection to its admissibility in the affidavit of the respondent without running counter to Section 87 of the Evidence Act 1990.”

Evidence by affidavit is, it must be noted, a form of evidence. It is entitled to be given weight where there is no conflict. See Per PHILIP NNAEMEKA-AGU, J.S.C in NWOSU V. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY & ORS (1990) LPELR-2129(SC). In all, admissibility, relevancy and weight attached to a document has nothing to do with the jurisdictional competence of the trial Court or any Court of law.

The Appellant termed some portions of the ruling of Adah, J, as “as valid and subsisting” and queried why the lower Court did not dismiss the appeal before it since, if relief 1 was denied, other reliefs ought to have been dismissed with it. Although he has appealed against the judgment, it has not been set aside, and therefore as rightly referred by him, it is

valid and subsisting against the Appellant. More so, since the lower appellate Court could not set it aside, it is still valid against it until set aside here. Thus, is trite that a judgment not appealed against and or not set aside by a higher Court is a valid and subsisting judgment. See Per KATSINA-ALU, J.S.C in NWOKEDI & ORS V. OKUGO & ORS (2002) LPELR-2123(SC).

The contention of the Appellant that since the trial Court rightly dismissed relief 1, other reliefs following ought to be dismissed must spring from unmitigated understanding of the ratio decidendi of the trial Court and non-comprehension of the whole decision. Permit me to refer to the reasoning of the trial Court in the 3rd paragraph of page 58 of the record, wherein he held:

“For the 2nd relief, the 1st respondent had a full-fledged contract with the applicant that the licenses will be granted for a term of 10 years and even renewable thereafter. The applicant from the facts in this case worked through all the hurdles and had gotten all the conditions met including that of the revoked frequency allocation. Condition of allocation of frequency allocation was just one of the

conditions. If the frequency allocated to the applicant is withdrawn, that alone is not sufficient for the licenses that were timed to last 10 years to be revoked and resold. The applicant has established the fact that the same licenses they required from the 1st Defendant were the licenses resold to another operator called GLOBACOM. That no doubt has resulted in the breach of the contract the applicant had with the 1st Respondent…”

It is therefore not true that relief 2 and others following were hinged on the 1st relief for them to have collapsed like a pack of cards, hence the decision of Adah, J., is valid and subsisting and by the concurrent decision of the 2 Courts below, I see no reason not to affirm it.

It is argued by the Appellant that the lower Court of Appeal lacked the jurisdiction to proceed with and determine the appeal, the action being fundamentally defective, incompetent and premature based on the allegation that the conditions precedent to activate action against the Appellant were not followed by the 1st Respondent.

I must quickly state that once a legislation provides for a condition precedent before a Court has

jurisdiction, that condition must be fulfilled subject to recognized exceptions. The suit would be incompetent if the Court does not ensure that there is compliance with the condition precedent. See Per RHODES-VIVOUR, J.S.C in UGWUANYI V. NICON INSURANCE PLC (2013) LPELR-20092(SC).

By the Originating Motion at page 3-5 of the record, it is deducible that the cause of action arose in 2000 vide the letter MC/TD/2000/VOL 1 dated 3rd October 2000. The Act applicable to the contractual relationship between the Appellant and the 1st Respondent was the 1992 NCC Act. The Sections 85, 86 and 87 of the Nigerian Communications Act, 2003, providing for the preconditions and procedural steps to be taken by the 1st Respondent heavily clinched on now by the Appellant came in 3 years after the cause of action arose. It is therefore jurisprudentially wrong for a substantive legislation or law to have a retrospective effect. Per OPUTA, J.S.C in AFOLABI & ORS V. GOV OF OYO STATE & ORS (1985) LPELR- 196 (SC) postulated this thus:

“Generally speaking, retrospective laws are prima facie of questionable policy and contrary to the general principle that legislation

by which the conduct of mankind is to be regulated ought, when introduced, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law…Prima facie therefore, a new legislation will deal with future not past events. If it were not so, the Act might annul rights already acquired, while the presumption is against this intention. Coming to the policy of the Court, the consensus of judicial opinion is that the Courts lean against so interpreting an Act or Law as to deprive a party of an accrued right. Perhaps no rule of construction is more firmly established than this, that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards a matter of procedure.”

Section 6 (1) (c) and (e) of the NCC Act, 1992, did not make provision for administrative remedies as provided under the Nigerian Communications Act, 2003, particularly Sections 86 to 88. The said Section 6(1)(c)(e) of the 1992 Act preserved the right of a person to institute legal proceedings against the Appellant. The case as instituted therefore is not

premature to affect the jurisdiction of the trial Court. In ISAAC OBIUWEUBI V. CENTRAL BANK OF NIGERIA (2011) 3 SCNJ PAGE 166, a strikingly similar situation arose wherein it was decided that:

“The law in force, or existing at the time the cause of action arose is the law applicable for determining the case. This law does not necessarily determine the jurisdiction of the Court at the time that jurisdiction is invoked. That is to say the law in force at the time the cause of action arose governs determination of the suit, while the law in force at the time of trial based on cause of action determines the Court, vested with jurisdiction to try the case… A litigant who had a cause of action in 1990 would have his case governed by the law at the time (i.e. 1990), if trial commences before 1993 the Court to try the case would be the State High Court but if after 17/11/1993 the case would be tried in the Federal High Court… Jurisdiction of the Court to entertain an action is determined, examining the law conferring jurisdiction at the time the suit is instituted and trial commenced…”

The trial Court therefore had all the requisite and necessary

jurisdiction to entertain the suit as there was nothing in the process or institution of the action that could oust the jurisdiction of the Court. This issue is resolved against the Appellant.

ISSUE TWO:

Bearing in mind the very peculiar nature of this proceeding (particularly the dearth of pleadings, supporting affidavit and admissible evidence) whether the Court of Appeal was wrong in not allowing the appeal on damages.

Under issue 2, it is submitted by the Appellant’s learned Counsel that by the very nature of damages claimed to be speculative and futuristic upon inquiry, the claim ought not to be granted and the appeal allowed. That the Court having rejected the claim for special damages as not been made out, there was equally no claim for general damages properly before the Court. That even in general damages, the law requires pleadings and evidence to prove same as decided in CALABAR EAST COOPERATIVE V. IKOT (1999) 14 NWLR (PT.638) AT 248. That the amount of Ten Million dollars is objectionable as excessive, unwarranted and excessive. He relied on UWA PRINTERS V. INVESTMENT TRUST LTD (1988) 5 NWLR (PT.92) AT 111-112 and urged this Court to

intervene by citing in support ZIK’S PRESS LTD V. IKOKU 13 WACA 188. He prayed that this issue be resolved in its favour.

It is settled by the learned Counsel to the 1st Respondent that the lower Court is not duty bound to disclose the material or evidence upon which it makes its decision but to consider the evidence as contained in the record of appeal. He referred to IBWA LTD V. PAVEX (2000) 7 NWLR (PT. 663) AT 127. He submitted that the claim is not futuristic or speculative but amongst remedies a Court can grant since the Court can necessarily enquire into losses suffered as held in CALABAR EAST COOPERATIVE V. IKOT (1999) 14 NWLR (PT.638) AT 243. Similarly, it is submitted that a Court can grant alternative relief where the main reliefs failed as reinforced in OSUJI V. ISIOCHA (1989) 3 NWLR (PT.111) AT 638, UNION BANK OF NIGERIA LTD V. PENNY MART LTD (1992) 5 NWLR (PT.240) AT 241. Of the lower Court’s power to uphold the award of general damages, he argued that general damages do not require strict proof but based on the Court’s discretion. That in fact, there was evidence for basing its decision on general damages. On the excess of the award of US $10

million, it is settled that this is predicated on the fact that the 1st Respondent had suffered unquantifiable losses and where the evidence on record supports the award for damages, it cannot be perverse as decided in FAMUROTI V. AGBEKE (1991) 5 NWLR (PT.189) AT 275, AFOLAYAN V. OGUNRINDE (1990) 1 NWLR (PT.127) AT 385. He concluded herein that the 1st Respondent suffered unquantifiable losses because of the breach of License Agreement by the Appellant which ought to put the 1st Respondent back to where it was or restitutio in integrum decided in NIGERIAN PRODUCT MARKETING BOARD V. ADEWUNMI (1972) NCLR AT 459. He urged this issue be resolved in favour of the 1st Respondent.

The Appellant herein is postulating that because of the nature and peculiarity of this proceeding (particularly the dearth of pleadings, supporting affidavit and admissible evidence), the 1st Respondent is supposed to go home empty handed and without any remedy. It must be sounded that where there is a breach, there must be a remedy.

There are nevertheless two prong issues the Appellant based his argument, which are:-(1) That the very nature of damages claimed are speculative and

futuristic upon inquiry (2) That the amount of Ten Million dollars (US $10,000,000.00) as general damages is excessive, unwarranted and excessive.

I must for the risk of clarity and repetition reproduce the 4th relief sought by the 1st Respondent on damages in this suit as follows:

(4) AN ORDER that the Respondents indemnify or pay as DAMAGES to the Applicant in respect of the following or such other sum or sums as may be found upon inquiry to be due:

(1) for lost fees paid, (ii) costs thrown away, (iii) loss of use,

(iv) loss of profit, (v) loss of opportunity and (vi) malicious injury to the Plaintiff’s business and undertaking all resulting directly from the Respondent’s decisions and actions complained of herein

It is clearly discernable that this relief is not wholly speculative or futuristic as alleged by the Appellant. “AN ORDER that the Respondents indemnify or pay as DAMAGES to the Applicant in respect of the following or such other sum or…” The word “OR” is used to link alternatives, to connect different possibilities or indicate an alternative. Thus, the claims endorsed on the originating process are in the alternative and

therefore qualify as remedies a Court can grant alternatively. Thus, this claim for general damages is not speculative or futuristic but arising from breach of the contract by the Appellant.

In an action for breach of contract, the measure of damages is the loss flowing naturally from the breach and is incurred in direct consequence of the breach. See Per JOHN INYANG OKORO, J.S.C in AGU V. GENERAL OIL LTD (2015) LPELR-24613(SC). Once it has been found by a Court that a party is liable for breach of contract as in the instant case, award of general damages will follow and such damages need not be specifically pleaded as they are not in the nature of special damages. In determining the quantum of damages to be awarded, the Court is to exercise its discretion taking into consideration the evidence before it. Unlike special damages which is special in nature and must be pleaded specially and proved strictly, the quantum of general damages need not be pleaded or proved. The manner in which general damages is quantified is by retying on what a reasonable man’s judgment would be in the circumstance. In the case of general damages, where the plaintiff proves his

claim, the award of damages is determined by the Court based on what is reasonable in the circumstances of the case. Award is on the discretionary power of the trial Judge to make his own assessment of the quantum of damages. See ODULAJA V. HADDAD (1973) 11-12 SC 357.

The lower Court in considering the basis for the award of damages in this nature held variously as follows: In the 1st paragraph of page 185 of the record, the lower Court held thus:

The fact that damages are difficult to assess does not disentitle a plaintiff as in the case in hand where there was a lot from which the trial Judge could and in fact did make his assessment on compensation for loss resulting from a defendant’s breach of contract. The trial Court exercised a discretion having considered the pleadings and evidence from which he discerned the losses which could not be ignored and showed the handling of a discretion which was properly exercised and this Court has no basis to interfere.

In the 2nd paragraph of page 184, the lower Court similarly held that “It was based on the foregoing that the learned trial judge had no difficulty in holding that the plaintiff suffered

other unquantifiable loss from the breach of this contract and had suffered losses which must be compensated by the Court in the interest of justice.”

On the 2nd arm that the amount of Ten Million dollars (US $10,000,000.00) as general damages is excessive, unwarranted and excessive, it cannot be over emphasized that an Appellant attacking the excessiveness of damages awarded must go further to show how excessive the sum awarded is. The burden is on the Appellant to show that the award was either too high or that it was based on wrong principle or that it was not borne by credible evidence. See INTERNATIONAL MESSENGERS NIG. LTD V. PEGOFOR IND. LTD [2005] ALL NLR 234.

In the last paragraph of page 62 of the record to page 63, the trial Court summarily gave a litany of its reason and the discretion exercised in the award of US $10 million as follows:

From the foregoing, I come to the conclusion that the Applicant in the instant case no doubt was granted licence and she engaged in putting up efforts to roll out the Telecommunication services. There is evidence that she has deployed equipment at some zones as required by the licence before the

breach of the contract. She no doubt has suffered some losses which must be compensated by the Court in the interest of justice. Having looked into the level of loss in the circumstances of this case, I award to the Applicant in addition to the earlier refund of fees for licences, a sum of Tern Million Dollars (US$10m).

In the 2nd paragraph of page 184, the lower Court similarly held that “It was based on the foregoing that the learned trial judge had no difficulty in holding that the plaintiff suffered other unquantifiable loss from the breach of this contract and had suffered losses which must be compensated by the Court in the interest of justice.”

In truth, this award was based on the evidence available judiciously exercised by the trial Court and concurred by the lower Court. Decidedly therefore, an appellate Court will not entertain an appeal against award of general damages unless it is shown that such award was manifestly so excessive as to amount to an erroneous estimate having regard to the evidence. See NIGERIAN BOTTLING CO. LTD. V. NGONADI (1985) 1 NWLR 739 AT 741 RATIOS 9 & 10. In fact, the Appellant has not shown preponderantly how

excessive the award is, hence this issue must be resolve against it.

ISSUES 4 and 5:

Whether the lower Court considered the material issues for determination in issue 4 formulated before it when it resolved issue 2, 3 and 5.

Whether the lower Court ought to have raised the issue of the relative strength of the parties suo motu and resolve same without inviting the parties to address same.

It is herein submitted on issue 4 that the question whether the Appellant had breached the license issued the 1st Respondent being the crucial issue that the lower Court was invited to resolve as formulated in issue 4 but decided to avoid it which has occasioned grave injustice to the Appellant. He maintained by citing A.G. LEVENTIS NIG. V. AKPU (2007) 6 SC AT 252-253, that it is the duty of Court to consider every material issue placed before it especially one that has a bearing in determining the case before it one way or the other.

On issue 5, he submitted that in civil actions, cases of parties are limited to their pleadings and evidence, and not to go outside the case put forth by the parties, as decided in AMODU V. COMMANDANT, POLICE

COLLEGE, MAIDUGURI (2007) 7 SC AT 16, ORUGBO V. UNA (2002) 9-10 SC AT 79. He settled that the issue of the relative size of the parties one to another was raised suo moto by the lower Court which amounted to bias and descending into the arena, which should cause the Court to afford the parties the opportunity of addressing the Court on it. He cited in support respectively the cases of MAGAJI V. NIGERIA ARMY (2008) 2-3 SC AT 168-169 and DALEK NIGERIA LIMITED V. OIL MINERAL PRODUCING AREA DEVELOPMENT COMMISSION (OMPADEC) (2007) 2 SC AT 337. He prayed that these issues be resolved in his favour and the appeal allowed.

On the contrary, it is submitted under issue 4 herein by the learned Counsel to the 1st Respondent that by the authority inA.G. LEVENTIS NIG. PLC V. AKPU (2007) 6 SC AT 252-253, that where no prejudice is made, the omission to consider all issues cannot be basis for setting aside a Court’s decision. He also relied on COOKEY V. FOMBO (2005) LPELR-895 SC. Thus, that the determination of issues 2, 3 and 5 in favour of the 1st Respondent at the lower Court was sufficient for dismissing the Appellant’s appeal at the lower Court.

On issue 5, it is contended that the cases cited and relied on by the Appellant’s learned Counsel are distinguishable and inapplicable to the case at hand. Thus, that the lower Court did not read into the record for the purpose of reaching at a particular decision since there was no evidence of compromise or bias. He thus urged this Court to resolve this issue in its favour.

It is firmly settled that it is the duty of all Courts to consider and resolve all issues placed before it except in the clearest cases.

The issue 4 complained of by the Appellant for non-consideration by the lower Court of Appeal was for “Whether or not the Appellant was guilty of any breach of wrong doing in regard to licenses issued to the 1st Respondent.” See page 136 of the record. It is glaring that this issue was considered separately from page 185-188 by the lower Court. In fact, at pages 187-188 of the record, the lower Court held from the 3rd paragraph to the next page thus:

Learned Counsel further submitted for the 1st Respondent that the basis of the issuance of the licence was the payment of the stipulated fees amongst other conditions and it is only logical that a

refund of the fees amounts to either a refusal to issue the licence or a withdrawal/revocation

This issue has been answered in answers made in Issues 2, 3 & 5 and that is positively and against the Appellant, as even the Appellant can answer the question that they were in breach…

In the instant appeal, the issue 4 complained of by the Appellant will amount to superfluity and over flogging the matter since the lower Court has discharged its statutory duty.

Additionally, Per ALOMA MARIAM MUKHTAR, J.S.C in OPUIYO & ORS V. OMONIWARI (Deceased) & ANOR (2007) LPELR-2751(SC) had cause to observe thus:

The learned counsel for the appellant has submitted that where the Court of Appeal fails to consider the issues or any issue raised on appeal before it, the Supreme Court can consider it. He placed reliance on the case of Ukwunnenyi & Anor v. The State (1989) 4 NWLR (pt.114) 131, (1989) 7 SCNJ 34. I agree that this Court has the power to consider the issues as per the above authority.

It is in this light that I will tour same line with the trial Court and the lower Court that the question in that issue would have been “yes”, to

work against the Appellant. Obviously, the Appellant was in breach to have revoked and confiscated the license of the 1st Respondent instead of renewing same. At page 58 of the record, the trial Court in laying the foundation for the decision of the lower Court on this issue emphasized that the Appellant was in breach of the contract. It held in the 3rd paragraph that “when the frequency was withdrawn, the applicant who procured the frequency ought to be given the opportunity to repossess it. Since that was not done and the 1st Respondent resold the licenses, there is a breach of the contract the 1st Respondent had with the Applicant…”

Moreover, even failure to consider all issues submitted before it would not amount to a denial of fair hearing unless it is shown that a miscarriage of justice occurred. See BAMAIYI V. THE STATE & ORS (2001) 6 NSCQLR 156 AT 166-169 and KRAUS THOMPSON ORGANIZATION LTD VS UNIVERSITY OF CALABAR (2004) 18 NSCQR 262. According to EDOZIE, JSC: “…although a Court is bound to consider all the issues properly before it, the failure to do so is not necessarily fatal to the judgment appealed against. In the case of Balogun V

Labiran (1988) 3 NWLR (Pt.80) pages 66 at 80, this Court agreed with the submission of counsel that the Court of Appeal was obliged to consider and pronounce on all grounds of appeal filed and argued before it but that failure to do so however is not necessarily fatal to the judgment if the failure to do so had not occasioned a miscarriage of justice.” Per IKECHI FRANCIS OGBUAGU, J.S.C. A. G. LEVENTIS (NIG) PLC V. AKPU (2007) LPELR-5(SC) added in his conclusion to the omission to consider an issue formulated by the Appellant in the case above said: “I note that the appellant or his learned counsel, has not stated in their Brief, or in oral submission, what prejudice or embarrassment, that the appellant has suffered or what miscarriage of justice the omission has occasioned to it.”

In the same vein, there is the impossibility of the Appellant pointing at any miscarriage of justice suffered in this appeal for the “paltry” consideration of issue 4 by the lower Court of Appeal. It is not the length and verbosity that define consideration of issue. As far as I am concerned, issue 4 was and has been qualitatively and rightly considered and determined by the

lower Court.

Taking the next step, the complaint on issue 5 is not unconnected with what the lower Court of Appeal stated in the 3rd paragraph of page 184 thus:

“It is that finding and conclusion of the Court below which the appellant has a quarrel with and I am in difficulty to appreciate that point of view except to explain it as the arrogance of the strong and big when in contest or in a contract agreement with the disadvantages or smaller party. All I see is the trial Judge as much as he can possibly do attempting to put 1st Respondent, the injured party in a position so far as money can do it as if the contract had been performed if the breach had not occurred.”

It is also the law that a Court should not take up a point suo motu and decide the matter before it on that point without hearing the parties. Per DENNIS ONYEJIFE EDOZIE, J.S.C. in COOKEY V. FOMBO & ANOR (2005) LPELR-895(SC) having decried and condemned raising an issue suo motu observed:

No doubt, the learned trial Judge was in error to have raised suo motu the question as to whether the proposed amended statement of claim disclosed a reasonable cause of action and

deciding the issue without address of counsel, moreso, when the application for amendment had not been moved. But it is not every error committed by a trial Court that will lead to a reversal of its judgment by an appellate Court. An error that can warrant the reversal of the judgment of the trial Court must have substantially affected the decision.

The above notwithstanding, the case in this appeal is however not as pointed out and accused by the Appellant. From the excerpt above, what the lower Court did was not raising an issue or point that now should be enthroned as an issue suo motu that will necessitate the parties to be invited to address the Court on it. This is far from the truth and what is factually seen and discernable. At worst, what the lower Court did to my humble judgment and opinion is a comment which cannot translate to raising an issue suo motu. I must caution and give this caveat however that all Courts of law must be wary of commenting on what is strictly not part of the parties’ case in pleadings, but such comments must by no means be a ground to nullify the entire case. It is merely a way of a tribunal exposing its anger at a

failure of a party to obey simple order. See Per BELGORE, J.S.C in BUHARI & ANOR V. OBASANJO & ORS (2005) LPELR-815(SC).

Furthermore, from my critical and legal point of view, what the lower Court commented on was nothing but an obiter dictum or a statement by the way. Thus, even if the observation went outside boundary, it is nothing but what a Court Judge can do or say since he is not a robot being remote-controlled without an urge for speaking, coughing or reasoning. Per NWEZE, J.S.C in K. R. K. HOLDINGS (NIG) LTD V. FBN & ANOR (2016) LPELR-41463(SC) succinctly put this kind of issue sagely thus:

True indeed, His Lordship’s views, sequel to this categorical finding that the appellant’s issue went outside the compass of the appeal, were tantamount to obiter dicta. As this Court (per Nweze, JSC explained in Omisore and Anor v. Aregbesola and Ors (2015) 15 NWLR (pt1482) 205: “In Legal Theory, an obiter dictum, in contradistinction to the ratio decidendi of a case, is a Judge’s passing remarks which do not reflect the reasoning of the Court or ground upon which a case is decided…

This issue therefore must run against the Appellant

and is so resolved.

All the issues having been resolved against the Appellant, this appeal must fail. The judgment of the lower Court of Appeal delivered on 10/5/2009 is affirmed. This appeal therefore is dismissed and I make order as to costs of 5,000,000.00 against the Appellant for the delay and frustration arising from frivolities.

CROSS APPEAL:

By a Notice of cross appeal dated 8/6/2012 and filed on 11/6/2012, wherein a Ground of cross appeal was formulated, the Cross Appellant formulated in its Brief of argument coated 1/6/2015 but filed on 4/6/2015, settled by Emmanuel Ekpenyong, Esq., posed this question for determination at page 33 of the brief thus:

Whether upon the finding of NCC breach of contract, the learned Judge did correctly or at all assess damages suffered by MOTOPHONE or whether the issue ought to be re-assessed

The 1st cross Respondent on the other hand filed its cross Respondent’s Brief of argument dated 6/5/2015 but deemed filed on 12/5/2015, sought for determination:

Whether having regard to the decision of the trial Court and the procedure adopted at the Court, a case for breach of contract can be

established against the Appellant after it is conceded that the 1st Respondent has no frequency.

Consequently, the cross Appellant filed a Reply brief dated 1/6/2015 and filed on 4/6/2015 to augment his argument. There is a point of objection I must consider first before the cross appeal.

PRELIMINARY OBJECTION:

In the Reply brief dated 1/6/2015 and filed on 4/6/2015, the cross Appellant raised a preliminary objection to the issue formulated by the cross Respondent as having emerged outside the issue and ground formulated by the cross Appellant and same is incompetent and liable to be struck out. He relied on HALILCO NIGERIA LIMITED V. EQUITY BANK OF NIGERIA LIMITED (2013) LPELR-20743 SC, EKE V. OGBONDA (2006) 18 NWLR (PT.1012) 506.

In considering this objection, I must quickly refer to the Ground of the Notice of Cross Appeal at page 2 of the Notice of Cross Appeal filed on 11/6/2012. It is herein reproduced without its particulars:

GROUND 1:

The learned Justices misdirected themselves when they declined to consider increasing the award of general damages granted by the trial Court.

It is keenly observable and apparent that all the particulars therein are geared towards explaining the decline by the lower Court to consider and increase the award of general damages and nothing more. This must inform the formulation of the issue for determination from the said Ground of the Notice of Cross Appeal by the cross Appellant.

The cross Respondent contrarily framed this issue “Whether having regard to the decision of the trial Court and the procedure adopted at the Court, a case for breach of contract can be established against the Appellant after it is conceded that the 1st Respondent has no frequency.” I must be wondering whether this issue is reframed, retouched and paraphrased or it emanated from the said Ground of cross Appeal! In my humble view, it seems to be independent to any of this and runs parallel and contrary to the Ground of cross appeal with its particulars and the Issue formulated by the cross Appellant. The cross Appellant herein has the ball and sets it rolling and not the cross Respondent on the other way round. He dictates the tune and not the cross Respondent. What the cross Respondent has done has no source or basis in our civil jurisprudence. It is trite that

a Respondent/Cross Respondent has these limitedly available options when framing issues for determination; to adopt the issues formulated by the Appellant; give the Appellant’s issues a slant in favour of his side of the case; or formulate his own issue. However, the issue so formulated must be derived from the Grounds of Appeal raised by the Appellant. The cross Appellant is therefore, the owner of the Grounds of Appeal and the cross Respondent has no business conceding the said Grounds of Appeal to the cross Appellant. See Per AUGIE, J.S.C in PATRICK V. STATE (2018) LPELR-43862(SC). Furthermore, for the Respondent in an appeal to validly raise any issue not related to or arising from the grounds of appeal filed by the Appellant, such Respondent must file a cross-appeal or file a Respondent’s Notice. See MOMODU V. MOMOH (1991) 1 N.W.L.R. (PT. 169) 608 and OSSAI V. WAKWAH (2006) 4 N.W.L.R. (PT. 969) 208. This has unfortunately not been done by the cross Respondent in this cross appeal. The issue raised by the cross Respondent outside the Ground of the cross Appeal is incompetent and must be struck out. The objection by the cross Appellant is hereby sustained.

Thus, the cross Respondent’s Brief of argument dated 6/5/2015 but deemed filed on 12/5/2015 is hereby discountenanced and struck out as being incompetent.

Nevertheless, as a corollary, even in the absence of a brief or reply, every case must be considered on its merit and footings since the Court is not a charitable organization. I will therefore consider the cross appeal on its merit.

The learned Counsel to the cross Appellant submitted that the cross Respondent herein (NCC) had no power to withdraw the licenses of MOTOPHONE on the basis of the withdrawal by the Minister of the frequency license earlier assigned to MOTOPHONE since a contract was completed and NCC was estopped from resiling from same. It is submitted that there were no circumstances to justify the revocation of MOTOPHONE’s frequency license, hence liable in breach. The duty of the Court is to determine the nature of the damages claimed for breach of contract and under what head it falls. It is on the plaintiff to establish the accuracy of the projected gross profit in proof of his claim. He cited in support A-G OYO STATE V. FAIRLAKES HOTELS LTD (NO.2) (1989) 5 NWLR (PT.121) 255.

It is submitted that the trial Court’s refusal to rely on the report of the firm of KPMG prepared by Bashorun K. Randle because of failure to call him as fatal to their head of special damages was a misconception since the proceeding was for judicial review conducted by way of preponderance of affidavit and exhibit evidence and neither did NCC challenge same or substitute their own opinion. Also, that the trial Court put on the 1st Respondent an onerous burden of proof not in accordance with the Evidence Act. Thus, that this Court should either re-assess the damages to a higher sum or grant a new trial for hearing of further evidence. He cited in support ADEKUNLE V. ROCKVIEW HOTEL LTD (2004) 1 NWLR (PT. 853) 161 CA. That having itemized their losses in the KPMG report, how did the trial Court arrive at the sum of US $10,000,000 (Tem Million) as general damages due to MOTOPHONE This is the decision of the Court in ATIVIE V. KABEL METAL (NIG) LTD (2008) 10 NWLR (PT.1095) AT 424, to the effect that assessment of damages for breach of contract is on the doctrine of restitutio in integrum. That this sum cannot reasonably put the 1st Respondent back to the position it

was. He settled that establishing amount of damages where evidence is unchallenged, the burden of proof is minimum as decided in ADEJUMO V. AYANTEGBE (1989) 3 NWLR (PT.110) AT 435. He maintained therefore that this Court in upholding the decision of the Court of Appeal should either increase the damages or direct the lower Court to inquire into the appropriate level of damages. He consequently asked that the cross appeal be allowed.

The main grouses and prayers of the cross Appellant in this cross appeal can be summed up as follows: “either increase the damages awarded to the sum stated in paragraph 16.4(iv) or alternatively to direct the lower Court to inquire into the appropriate level of damages only.”

For a cross appeal against the award of damages to succeed, the cross Appellant must show that the trial judge proceeded upon some wrong principle of law or that the award was an entirely erroneous estimate. See Per UWAIS, J.S.C in WILLIAMS V. DAILY TIMES OF (NIG) LTD (1990) LPELR-3487(SC). I have not seen wrong principles or error on the basis for the award given by the trial Court. The cross Appellant challenged to know how the trial Court arrived

at the sum of US $10,000,000 (Ten Million) as general damages. May I boldly agree with the yardstick given by the trial Court at pages 62-63 of the record when it rationalized that:

“From the foregoing, I come to the conclusion that the Applicant in the instant case no doubt was granted license and she engaged in putting up efforts to roll out the Telecommunication services. There is evidence that she has deployed equipment at some zones as required by the license before the breach of the contract. She no doubt has suffered some losses which must be compensated by the Court in the interest of justice. Having looked into the level of loss in the circumstances of this case, I award the Applicant in addition to the earlier refund of fees for licenses, a sum of Ten Million Dollars (US$10m).”

The decision of the trial Court was as presented by the 1st Respondent based and predicated on the documentary evidence available. There must definitely be an end to litigation and to remit this case for retrial is to give the 1st Respondent a second bite at the cherry, which is not so in law.

This cross appeal fails and the parties are to bear their costs.

SC.6/2010

Nigerian Communication Commission V. Motophone Limited & Anor (2019) LLJR-SC

Nigerian Communication Commission V. Motophone Limited & Anor (2019)

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