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MTN Nigeria Communication Limited v. Corporate Communication Investment Limited (2019) – SC

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➥ CASE SUMMARY OF:
MTN Nigeria Communication Limited v. Corporate Communication Investment Limited (2019) – SC

by “PipAr” Branham-Paul C. Chima.

➥ COURT:
Supreme Court – SC.674/2014

➥ JUDGEMENT DELIVERED ON:
Friday, the 15th day of March, 2019

➥ AREA(S) OF LAW
Cross examination;
Breach of contract.

➥ PRINCIPLES OF LAW
⦿ INTERMEDIATE COURT SHOULD PRONOUNCE ON ALL ISSUES
This approach is in keeping with the advice often given by this Court that where a Court is not the final Court on the subject matter, it should endeavour to proffer an opinion on all the issues submitted to it so that the appellate Court would have the benefit of the Court’s reasoning in the event that it does not agree with the position of the Court on the issue of competence, jurisdiction, locus standi, etc. — K.M.O. Kekere-Ekun, JSC.

⦿ APPELLATE COURT IS CONCERNED MORE WITH THE DECISION REACHED, THAN REASON FOR DECISION
As rightly, submitted by learned counsel for the respondent, an appellate Court is more concerned with whether the decision reached by the lower Court is correct and not necessarily whether a wrong reason was given for reaching a right decision. See: Arisa Vs The State (1988) 3 NWLR (Pt. 83) 386; Ojengbede vs Esan & Anor. (2001) 18 NWLR (Pt. 746) 771. If the decision is right, it will be upheld notwithstanding the fact that a wrong reason was given for the decision. It is only where the misdirection has caused the Court to come to a wrong decision that it would be material. See: Oladele & Ors Vs Aromolaran II & Ors. (1996) 6 NWLR (Pt.453) 180. — K.M.O. Kekere-Ekun, JSC.

⦿ PURPOSE OF EVIDENCE IN CHIEF & CROSS EXAMINATION
The purpose of evidence in chief is to lead evidence in support of a party’s pleadings. The purpose of cross examination is to discredit the witness of one’s opponent and make his testimony unworthy of belief. Cross-examination of a witness may also enhance the case of the party cross-examining by affirming of supporting his position. His Lordship Onnoghen, JSC (as he then was) provided an illuminating explanation on the treatment of evidence elicited under cross-examination in the case of: Akomolafe Vs Guardian Press Ltd. (2010) 3 NWLR (Pt.1181) 338 @ 351 F-H, as follows: “On the Issue as to whether both parties called evidence in support of their pleadings, as held by the lower Court, it is settled law that evidence elicited from a party or his witness(es) under cross examination, which goes to support the case of the party cross-examining, constitute evidence in support of the case or defence of that party. If at the end of the day the party cross-examining decides not to call any witness, he can rely on the evidence elicited from cross examination in establishing his case or defence. In such a case, you cannot say that the party calls no evidence in support of his case or defence. One may however say that the party called no witness in support of his case or defence, not evidence, as the evidence elicited from his opponent under cross examination which are in support of his case or defence constitute his evidence in the case. There is however a catch to this principle. The exception is that evidence so elicited under cross examination must be on facts pleaded by the party concerned for it to be relevant to the determination of the question/issue in controversy between the parties. — K.M.O. Kekere-Ekun, JSC.

⦿ CONCURRENT FINDINGS OF FACT
The position of this Court has always been to refrain from interfering with concurrent findings of fact unless it is shown that the findings are perverse. A finding is perverse (i) Where it is not supported by evidence on the record; (ii) Where it does not reflect a proper exercise of judicial discretion; (iii) Where evidence has been wrongly admitted or rejected at the trial; (iv) Where there has been an erroneous appraisal of facts leading to erroneous conclusion; (v) Where the finding has been reached as a result of a wrong application of some principles of substantive law or procedure. See: Ayeni Vs Adesina (2007) ALL FWLR (Pt. 370) 1451 @ 1457-1458; Woluchem Vs Gudi (1981) 5 SC 291 @ 326; Adegbite Vs Ogunfaolu, (1990) 4 NWLR (Pt.146) 578; Itu Vs The State (2016) 5 NWLR (Pt.1506) 443. — K.M.O. Kekere-Ekun, JSC.

⦿ APPEAL IS THE CONTINUATION OF THE ORIGINAL ACTION
It is also trite that an appeal is a continuation of the original action. The parties are therefore confined to their case as pleaded and presented at the Court of first instance. See: Ngige Vs Obi (2006) 14 NWLR (Pt.999) 1 @ 225; Adegoke Motors Vs Adesanya (1989) 3 NWLR (Pt. 109) 250 @ 266; Alhassan Vs Ishaku (2016) LPELR – 40083 (SC) @ 680. — K.M.O. Kekere-Ekun, JSC.

Available:  Universal Trust Bank of Nigeria v. Fidelia Ozoemena (2007)

⦿ OBJECT OF AN AWARD OF GENERAL DAMAGES
The object of an award of general damages is to compensate the plaintiff, as far as money can do so, for the damages, loss or injury he has suffered. The guiding principle is restitution in integrum. It envisages that a party which has been damnified by the act which is called in question must be put in the position he would have been if he had not suffered the wrong which he is now being compensated for. In other words, the loss inevitably and unavoidably flowing from the breach. See: Chief S.I. Agu Vs General Oil Ltd. (2015) LPELR -24613 (SC) @ 31-32 G-B; NEPA Vs R.O. Alli & Anor. (1992) 10 SCNJ 34; Ijebu-Ode L.G. Vs Adedeji Balogun & Co., Ltd (1991) 1 NWLR (Pt.166) 136. — K.M.O. Kekere-Ekun, JSC.

⦿ WHERE NO APPEAL AGAINST SPECIFIC FINDINGS, THOSE FINDINGS REMAIN UNASSAILABLE
The excerpts above of the trial Court findings and conclusions were not appealed against at the lower Court which throws up the settled law that where there is no appeal against specific findings of fact made at the trial Court, those findings remain for all time unassailable and deemed accepted as representing the true state of affairs. It therefore becomes futile trying to smuggle those same issues at another level of appeal since they have in effect been conceded by the party against whom they were decided and remains valid and binding on all parties forever.  I rely on Anyanwu v Ogunewe (2014) All FWLR (Pt. 738) 1012 at 1037; Nwankwo v Yar’Adua (2010) All FWLR (Pt.534) 1; L.A. & A.C. Ltd v U.B.A. Plc (2014) All FWLR (Pt.739) 1080 at 1094. — M.U. Peter-Odili, JSC.

⦿ APPELLATE COURT IS CONCERNED ABOUT THE RIGHTNESS OF A DECISION, NOT REASONS
This makes one remind himself that what an appellate Court is concerned with should at all times be the rightness or wrongness of the decision and not necessarily the reasons for the conclusion or decision. This is so because, once the decision is right it would be upheld at the higher level irrespective of the fact that a wrong reason was given for that decision. See Dickson Arisa v The State (1988) 7 SCNJ 760 at 84; Akpene v Barclays Bank (1977) 1 SC 57; Osakwe v Governor of Imo State (1991) 5 NWLR (Pt.191) 318 at 333-334; Anekwe v Nweke (2014) All FWLR (Pt.739) 1154 at 1175; Amadi v Nwosu (1992) 5 NWLR (Pt. 241) 275;Nitel Ltd v Ikpi (2007) 8 NWLR (Pt.1035) 96 at 109 -110. — M.U. Peter-Odili, JSC.

⦿ FAILURE OF APPELLANT TO SIGN – EQUITY SEES AS DONE WHICH OUGHT TO BE DONE
Though not mutually executed Exhibit A was regarded by the parties as their binding contract. Equity acts in personam and therefore takes as done that which ought to be done, if from the conduct of the parties such inference can be drawn. In the instant case, such facts abound on which the two Courts below concurrently found that the parties intended to be bound by Exhibit A and that Exhibit A would be the basis of their mutual transaction, whether or not the document was formally executed. Again, Equity acting in personam would look at the intent of the parties and the substance and not at the form. In the instant case, insistence on compliance with all formalities of executing a written agreement will be oppressive to the Respondent. The Appellant, in the Court of Justice, will not be allowed to take advantage of the Respondent on his own iniquity by his ingenious booby trap by which he deliberately withheld his signature while at the same time it made the Respondent go with the impression that the relationship is governed or regulated by Exhibit A. Section 169 of the Evidence Act, 2011, which codified the principle of estoppel by conduct, will not countenance the present posture of the Appellant and allow it resile out of Exhibit A. — E. Eko, JSC.

➥ LEAD JUDGEMENT DELIVERED BY:
Kudirat Motonmori Olatokunbo Kekere-Ekun, J.S.C.

➥ APPEARANCES
⦿ FOR THE APPELLANT
D.C. Denwigwe, SAN.

⦿ FOR THE RESPONDENT
Nyengierefaka Joshua, Esq.

➥ CASE FACT/HISTORY
By its writ of summons and statement of claim dated 12th May, 2011, the respondent sought the following reliefs against the appellant:
(a) A declaration that the purported termination of Agreement Number 381730 between the Claimant and the Defendant on the 1st day of April. 2011 is not valid, oppressive and wrongful.
(b) A declaration that the purported letter of termination of the agreement number 381730 dated 18th March, 2011 does not refer to the Claimant and cannot be relied upon by the Defendant as proper Notice of termination against the Claimant.
(c) N500,000,000.00 as general damages for the unwarranted and abrupt cancellation of Claimant’s Orders as a result of the wrongful, invalid or oppressive conduct of the Defendant against the Claimant.

Available:  Umeano v. Anaekwe (SC.323/2008, Friday, January 28, 2022)

In its Statement of Defence dated 5th July, 2011, the appellant pleaded that the agreement was validly terminated in accordance with clause 16.2 thereof for reason of non-performance and rejected the claim that the respondent had incurred any expenses on its account.

At the conclusion of the trial, the parties exchanged written addresses. In the course of his written submissions, learned counsel for the Claimant (now respondent) argued that the Statement of Defence filed by the appellant was defective, as it did not disclose the name of the legal practitioner who signed it “for: G. Akitoye Esq.” The learned trial Judge agreed with him and held the Statement of Defence to be incompetent. The Court further held that in the circumstances, the evidence of DW1 predicated upon an incompetent Statement of Defence, was of no moment. In other words, it was discountenanced.

After a careful consideration of the entire case, judgement was entered in the claimant/respondent’s favour to the effect that the appellant was in breach of Exhibit A in terminating the agreement between the parties. The respondent was awarded the sum of N250 million as general damages and costs of N20, 000.00. The appellant was dissatisfied with the judgment and filed an appeal at the Court below. The appeal was dismissed on 21/7/2014. The appellant is still dissatisfied, hence the instant appeal.

➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]

🆕I. Whether the Court of Appeal below was right when it acted on extraneous matters, including the evidence of the DW1 at the trial in reaching its decision to affirm the judgment of the trial Court?

RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE TRIAL JUDGE DID NOT RELY ON THE STRUCK OUT STATEMENT OF DEFENCE BUT ON THE TESTIMONY ELICITED DURING CROSS EXAMINATION
“Having carefully read the judgement of the Court below, it would appear that the appellant’s main quarrel is with the finding that DW1 admitted that the respondent was entitled to the sum of N100 million for the SIM Cards it reactivated and also testified as to what the respondent would have earned if the contract had been carried out as provided in Exhibit A. It is pertinent to note that neither of the Courts relied on the Reply to the Statement of Defence or the further deposition of DWI in support of the said Reply. What they referred to were admission made by DWI in the course of cross examination.”

“Again, in Adeosun Vs Governor, Ekiti State (2012) 4 NWLR (Pt. 1289) 581 @ 602 A-B, it was held per Onnoghen, JSC (as he then was): “it is settled law that evidence elicited from the cross-examination of a defence witness, which is In line with the facts pleaded by the plaintiff, forms part of the evidence produced by the plaintiff in support of facts pleaded in the Statement of Claim and can be relied upon in proof of the facts in dispute between the parties.” (Underlining mine) From the authorities cited above, it is clear that the claimant was fully entitled to rely on evidence elicited from DW1 under cross-examination, which supported the claimant’s pleadings.”

B. THAT DW1 AFFIRMED THE PLAINTIFF/RESPONDENT CLAIM UNDER CROSS EXAMINATION
“In paragraph 19 of the Statement of Claim, it is averred that “the defendant is indebted to the claimant to the tune of N100,000,000.00” for the SIM Kit activation exercise and other repaid activation bonuses. The appellant’s witness, under cross-examination admitted that the respondent was entitled to N100,000,000.00 for the exercise. It is an admission against interest. In paragraph 21 (c) of the Statement of Claim, the respondent claimed the sum of N500,000,000.00 as general damages for the unwarranted and abrupt cancellation of its orders. Under cross-examination, DW1 admitted that a trade partner could make a commission of up to N500 million depending on the volume of the order placed by the trade partner or its sales. These are not extraneous matters. They are facts pleaded by the claimant. It was entitled to rely on the evidence elicited from DW1, which supported its pleadings.”
.
.
🆕II. Whether the Court of Appeal was right in holding that the document which was admitted in evidence at the trial Court as Exhibit A created an implied, binding and enforceable contract between the appellant and the respondent?

RULING: IN RESPONDENT’S FAVOUR.
A. THAT EXHIBIT A CREATED A BINDING CONTRACT BETWEEN THE PARTIES
“The terms of Exhibit A were therefore pleaded and Exhibit A was before the Court to support the pleading along with the written deposition of the witness. The evidence in chief of CW1, as per his written deposition made on 13/5/2011 and his evidence under cross-examination were summarised by the learned trial Judge at pages 148-158 of the record. It is therefore not correct, to contend that the terms of Exhibit A were not demonstrated before the Court. It must also be recalled that there were no pleadings on behalf of the appellant to counter the pleadings of the respondent. Furthermore, the authenticity of Exhibit A was never challenged by the appellant at the trial Court. The learned trial Judge noted this at page 176 of the record, reproduced earlier in this judgement. It was in the course of writing the judgment that His Lordship, on observing that Exhibit A was not signed by the appellant, adjourned the delivery of the judgment and invited the parties to address him on the evidential weight to be attached to it. Exhibit A therefore stands as the contract between the parties. The appellant’s witness, DW1, confirmed under cross-examination that Exhibit A was relied upon by the appellant to issue Exhibit B. The learned trial Judge found this to be so when he held at page 176 of the record: …. the defendant in alleging that its relationship with the claimant has been terminated relied on Exhibit A. See the letter of termination of the agreement sent to the claimant by the defendant Exhibit B. In this regards, in so far as the claimant and the defendant transacted their business in compliance with the terms of Exhibit A and the defendant relied on Exhibit A in terminating its relationship with the claimant, the fact that the defendant did not sign Exhibit A is of no moment. This is because equity looks at that which ought to be done.” The appellant did not appeal the finding of the trial Court that Exhibit B was issued to terminate Exhibit A. The appellant did not deny terminating its agreement with the respondent nor did it tender any other agreement to show that it was not Exhibit A that was terminated by Exhibit B. It did so by the written deposition of CW1 adopted and relied upon at the trial and the exhibits tendered.”

Available:  F.M. Saraki & Anor. v N.A.B. Kotoye (1992) - SC

B. THAT THE DEFENDANT/APPELLANT DELIBERATELY REFUSED TO SIGN EXHIBIT A
“The main reason why the appellant challenged the findings of the two Courts with regard to Exhibit A, is that it was one of the terms of agreement that it would take effect from the date the last person signs and that since it did not sign the document after it was signed by the respondent, the document was inadmissible and could not be relied upon as a valid contract between the parties. The reasoning of the learned trial Judge was that Exhibit A was prepared by the appellant without any input from the respondent. It was sent to the respondent for its signature signifying its acceptance. The respondent complied. The Court held that the appellant, for reasons best known to it, did not sign the document but continued carrying on business with the respondent in accordance with its terms. It held that the appellant would not be allowed to take advantage of its own wrong doing by deliberately refusing to sign the document. The Court below dealt with this issue extensively at pages 323-333 of the record and agreed with the Court below that in the circumstances of this case, the appellant ought not to be allowed to take advantage of its wrong doing by deliberately refusing to sign Exhibit A.”

STATUTE: section 169 Evidence Act 2011.
.
.
🆕III. Whether the affirmation of the award of general damages against the appellant and the awards of costs made against the appellant is justified?

RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE RESPONDENT’S CLAIM FOR DAMAGES WAS NOT CONTRADICTED
“The respondent’s claim for damages was uncontradicted. Where the claimant pleads and gives evidence in support of his claim for damages and his evidence is uncontradicted, the trial Court is bound to accept the evidence unless there is something inherent in the evidence which disproves it. See: Ijebu-Ode L.G. Vs Adedeji Balogun & Co. Ltd. (supra) at 159 A-B; 165 C-D; Incar Nig. Ltd. Vs Adegboye (1985) 2 NWLR (Pt. 8) 453 @ 461-462 B-C.”
.
.
.
✓ DECISION:
“In conclusion, I find no merit in the appeal. It is hereby dismissed. The judgement of the lower Court is affirmed. I make no order for costs.”

➥ MISCELLANEOUS POINTS

➥ REFERENCED (STATUTE)

➥ REFERENCED (CASE)

➥ REFERENCED (OTHERS)

End

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