⦿ CASE SUMMARY OF:
MTN Nigeria Communications Limited v. Ezugwu Emmanuel Anene (2018) – CA
⦿ LITE HOLDING
The burden to show that the respondent was not charged for caller-tunez is placed on the Appellant, and that presumption of the illegal charges was not discharged by the Appellant. Further, where general damages awarded are too high, the court will interfere to reduce it.
⦿AREA OF LAW
– Illegal charges.
– Caller tunez.
– General damages.
MTN Nigeria Communications Limited
Ezugwu Emmanuel Anene
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Abubakar Datti Yahaya, J.C.A.
* FOR THE APPELLANT
– Ogechi Ogbonna.
* FOR THE RESPONDENT
– Jude Ugwnanyi.
⦿ FACT (as relating to the issues)
This is an appeal against the decision of the High Court of the Federal Capital Territory Abuja, delivered on the 24th January 2017. According to the respondent, who was the plaintiff at the trial High Court of the FCT, he was making contributions to a live Radio programme Vision FM 92.1 Abuja on the 18th of May 2014 using his phone, which was serviced by the appellant, who was the defendant at the lower Court, when he was cut-off by the appellant. He found that there was no airtime and could not purchase air time on that day to reconnect as it was a Sunday. He realised that it was the appellant that was responsible for his air time losses. He wrote the appellant complaining of this and that the appellant had subjected him to illegal and unholy deductions from his airtime, for caller tunes services which he said he never subscribed to.
The appellant wrote to him stating that it had deactivated the caller tunes and refunded him N700 airtime. After a while, the appellant resumed deducting his airtime for caller tunes services when he did not subscribe to it, and notwithstanding the earlier assertion that it had de-activated same. He therefore took out a Writ out of the trial High Court and in the statement of claim, prayed for:
a. A declaration that uncountable deductions of N50.00 per month in plaintiff’s airtime as service charge for caller tunez without the plaintiffs subscription to it breached his quiet enjoyment of the airtime he had paid for.
b. An Order of the Court restraining the defendant from further deduction from the plaintiffs airtime as service charge for caller tunez.
c. An Order of the Court directing the defendant to refund all deductions so far made from the plaintiff’s air time as shown in their computer gadgets.
d. The sum of N50,000.000 (Fifty million naira) only as general damages for the breach of the plaintiff’s quiet enjoyment of his airtime and the consequent hardship and discomfort he has been subjected to while this unholy deduction lasted.
e. The sum of N1,000,000 (one million naira) only being the cost of litigation.
Parties joined issues and at the end of the trial, the Court gave judgment to the respondent, awarding N5.0 million naira for the disruption of the quiet enjoyment, consequent hardship and discomfort and N500,000 as cost of litigation.
Dissatisfied, the appellant filed this appeal.
1. Whether the judgment delivered by the honourable Court below was against the weight of evidence before it?
2. Whether the Court below was right in law to award the sum of N5 million against the appellant as general damages and N500,000 as cost of action?
⦿ RESOLUTION OF ISSUE(S)
[APPEAL: SUCCEEDS PARTIALLY]
1. ISSUE 1 IS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. There is nothing before the Court to show that Exhibits 3J and 3K did not emanate from the appellant. Even when the respondent was cross-examined on the messages, he stated that he was the source of the printing of the messages and not that the messages emanated from him or that he was their source. What has emerged therefore, is that the appellant charged the respondent N50 for caller tunez and so the SMS messages (exhibits 3J and 3K) emanating from it on the issue of the charging of N50, can only mean that it was the appellant that charged the respondent and nobody else. This is how every reasonable person will understand and interpret exhibits 3J and 3K. It will be absurd to say it was the respondent that charged the N50 as he is not in a position to so charge and to “extend” the service to any particular date. It is the appellant that is in such a position as it is in custody of the money paid by way of air time. It did not say that the exhibits did not emanate from it.
ii. Throughout the trial, the appellant did not produce any evidence to show that the respondent subscribed to the caller tunez, justifying its deductions of N50 from his airtime at various times. The onus is on the appellant to produce the evidence since it was the one that made the assertion. If it had done so, it would have shown that its deductions were in order and justified. When it failed to tender any evidence in proof of its assertion that the respondent subscribed to the caller tunez and the conditions governing the subscription, it had to fail in the face of the pleadings and evidence of deduction supplied by the respondent. The fact that it also made a refund of N700 to the respondent for deducting N50 monthly from his air time account, is a strong presumption that it did so without any authorisation. If indeed the respondent had subscribed to the caller tunez, there would have been no reason whatsoever, for it to refund him after he had enjoyed the service. Instead of the appellant admitting that the deduction was a mistake, may be due to a computer glitch, it put the respondent to unnecessary litigation.
2. ISSUE 2 IS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. I agree with learned counsel for the respondent, that the respondent suffered embarrassment, inconveniences and disruption of services he had paid for. He was also put to a great expense and trauma in going to Court to fight for his right. However, it is clear to us, that the award of N5 million general damages is manifestly too high. The entire surrounding circumstances have not justified the assessment of the quantum awarded. In that vein therefore, we feel obliged to interfere. In our considered view, the equitable amount the respondent is entitled to, by way of general damages is assessed at N400,000.00 only. The cost of litigation has not been particularised, but we accept that expenses were involved. The cost of litigation is assessed to be N100,000. We therefore review downwards the award of general damages. We assess it to be and we award N400,000. The cost of litigation is pegged and awarded in the sum of N100,000.
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
In C.B.N v. AMAO (2010) 16 NWLR (Pt. 1219) 271 at pages 299 – 300 that the principles governing the grant of declaratory reliefs are – (a) a declaration will be granted even when the relief has been rendered unnecessary by lapse of time for the action to be tried, if at the time the action was brought, it raised substantial issues of law; (b) the claim to which the declaratory relief relates must be substantial, that is the plaintiff must be entitled to the relief in the fullest sense of the word; (c) a declaration will only be granted where there is a breach; (d) the plaintiff must establish a right in relation to which the declaration can be made, hence the Court will not generally decide hypothetical questions; (e) the relief claimed must be something which it would not be unlawful or unconstitutional or inequitable for the Court to grant; (f) the relief should not be contrary to the acceptable principles upon which the Court exercises jurisdiction.
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
Usually, when a witness is not cross-examined, the Court will be entitled to act on his evidence as having been admitted – EGWUMI Vs. STATE (SUPRA) at 552. However, where it was not on a material point or the evidence was incredible, false, improbable or falls below the standard expected in a particular case, there will be no necessity of cross-examining the witness or for the Court to be bound to accept it – NEKA Vs. ACB (SUPRA). – Yahaya, JCA. MTN v. Ezugwu (2018)
This Court is not a robot, but a Court of justice and equity and in interpreting a document, it has to take into consideration all the surrounding circumstances of the case. – Yahaya, JCA. MTN v. Ezugwu (2018)
It is not every error or mistake made by a trial Court that can lead to a reversal of the judgment appealed against. It is only when the error or mistake is so substantial as to occasion miscarriage of 24 justice that there will be an interference by an appellate Court. – Yahaya, JCA. MTN v. Ezugwu (2018)
General damages are what the law presumes, but they must flow from the type of wrong complained about by the plaintiff and they frequently result from the tort for which the plaintiff has sued. They are at large in that the quantum of general damages need not be pleaded and proved as they are supposed to be a compensation for the loss or inconvenience flowing naturally from the wrong. They are thus not quantifiable but assessable by the trial Court taking the relevant matters into consideration. – Yahaya, JCA. MTN v. Ezugwu (2018)
When the issue of liability is established by a plaintiff and he claims general damages, the duty is on the trial Court to assess the quantum. Once that is done, an appellate Court will be wary of disturbing the award. However, where the award is manifestly too high or too low or based on wrong principles of law, an appellate Court will be justified and will be bound to interfere with the award. – Yahaya, JCA. MTN v. Ezugwu (2018)