⦿ CASE SUMMARY OF:
Nigerian Communication Commission v. Motophone Limited & Anor (2019) – SC
by NSA PaulPipAr
– Originating summons;
– Verifying evidence;
– Supporting evidence;
Nigerian Communication Commission
1. Motophone Ltd;
2. Minister Of Communications
⦿ LEAD JUDGEMENT DELIVERED BY:
Uwani Musa Abba A Ji, J.S.C.
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
The facts are that the 1st Respondent was awarded 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.
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.
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.
The Appellant appealed to the Court of Appeal which upheld the judgement of the trial judge and consequently dismissed the Appeal of the Appellant.
This is a further appeal by the Appellant to the Supreme Court.
1. 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.
1. 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.
2. 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.
3. Whether the Court of Appeal had the necessary jurisdiction to proceed with and determine the appeal, the action being fundamentally defective, incompetent and premature.
4. Whether the lower Court considered the material issues for determination in issue 4 formulated before it when it resolved issue 2, 3 and 5.
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.
1. 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?
⦿ HOLDING & RATIO DECIDENDI
[PRELIMINARY OBJECTION: DISCOUNTENANCED]
1. THE ONLY PRELIMINARY OBJECTION WAS DISCOUNTENANCED.
i. 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.
[MAIN APPEAL: DISMISSED, WITH N5,000,000 COST]
1 & 3: ISSUES 1 & 3 WERE TAKEN TOGETHER AND WERE RESOLVED IN FAVOUR OF THE 1ST RESPONDENT.
i. 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.
ii. 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.
iii. 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.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE 1ST RESPONDENT.
i. 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.
ii. 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.
4. ISSUE 4 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE 1ST RESPONDENT.
i. 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.
ii. 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.
5. ISSUE 5 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE 1ST RESPONDENT.
i. 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.
1. ISSUE 1 WAS RESOLVED AGAINST THE CROSS-APPELLANT.
i. 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. I have not seen wrong principles or error on the basis for the award given by the trial Court.
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
Evidence by affidavit is, it must be noted, a form of evidence. It is entitled to be given weight where there is no conflict. – Musa A Ji, JSC. NCC v. Motophone (2019)
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. – Musa A Ji, JSC. NCC v. Motophone (2019)
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. – Musa A Ji, JSC. NCC v. Motophone (2019)
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. – Musa A Ji, JSC. NCC v. Motophone (2019)
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. – Musa A Ji, JSC. NCC v. Motophone (2019)
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. 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. – Musa A Ji, JSC. NCC v. Motophone (2019)
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. – Musa A Ji, JSC. NCC v. Motophone (2019)