CORAM

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JOSEPH SHAGBAOR IKYEGH JCA

E. O. WILLIAMS-DAWODU JCA

MOHAMMED BABA IDRIS JCA

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PARTIES

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JULIET EKE

APPELLANTS 

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NTA STAR TV NETWORK LTD (STARTIMES)

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, COURT, CONTRACT LAW, PRACTICE AND PROCEDURE,

 

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SUMMARY OF FACTS

The Appellants case at the lower court is that she bought a decoder from the Respondent for the purpose of accessing the Respondent’s TV services but the Appellant’s decoder stopped working and she discovered that the Respondent scrapped it. The Appellant’s issue therefore was that the Respondent unilaterally scrapped her decoder without her consent or notifying her or replacing same but asked her to purchase another decoder. The Respondent on the other hand averred that the Appellant stopped being its customer when she abandoned the Respondent’s services and that its products and services are subject to industry regulations as well as international best practices. The Respondent also averred that customers are notified at the point of sale/service, through product manuals, fliers, handbills and that sometime in 2015 the Federal Government of Nigeria began to pursue its National Digital Switch over policy which necessitated the Respondent to change their broadcast from T1 to T2.

While delivering judgment in the case, the learned trial judge dismissed the Appellant’s reliefs. Dissatisfied with the judgment of the lower Court, the Appellant then appealed to this Court.

 

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HELD

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Appeal succeeds in part

 

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ISSUES

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Whether the trial judge was right when he held that “the relationship between the Plaintiff and the Defendant is contractual in so far as the plaintiff purchased the Defendant’s decoder and smartcard and is willing to subscribe to the Defendant’s service” and yet dismissed the case of the Appellant for alleged failure to subscribe monthly.

Whether the trial judge was right when he relied on the case of AIRTEL NETWORKS LTD V IMERM (2017) LPELR 43459 and held that: “…the Defendant can (for good reason) cause the Plaintiff’s decoder (and those of other subscribers) to stop functioning without her consent but with notice which the Defendant in this case gave notice” and thereby dismissed the case of the Appellant.

Whether the trial judge was right when he held that: “…the Defendant can, without the Plaintiff’s consent or its customers/subscribers, request the payment of certain amount for replacing her scrapped decoder in the peculiar circumstances of the case” and thereby dismissed the case of the Appellant.

 

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RATIONES DECIDENDI

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ISSUE(S) FOR DETERMINATION – WHETHER A RESPONDENT’S ISSUE FOR DETERMINATION MUST ADDRESS THE ISSUES FILED BY THE APPELLANT

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“The law is indeed trite that the Respondent’s brief shall answer all material points of substance contained in the Appellant’s brief. See Order 19 Rule 4(2) of the Court of Appeal Rules, 2021. The material points of substance are therefore the issues distilled from the Grounds of Appeal filed by the Appellant. The Respondent thus must address the issues in the grounds of appeal by either adopting the issues formulated by the Appellant or formulating his own issues without departing from the complaints raised in the Grounds of Appeal. In the case of ATANDA VS. AJANI (1998) 3 NWLR (Pt. 111) 511, it was held that:

“Indeed none of the four issues for determination as formulated by the respondents has any relevance to the grounds of appeal before the court. This court has stated a number of times that a respondent’s primary duty is to support the judgment appealed against by showing that the contentions of the appellant as to the grounds of error are without merit. Also, as they have not cross-appealed, they cannot formulate issues as it were, in nubibus- hanging in the skies. They can only either adopt the issues as formulated by the appellants based on the grounds of appeal before the court or, at best, recast them giving them a slant favourable to the respondent’s point of view, but without departing from the complaints raised by the grounds of appeal.”

”- Per IDRIS, JCA

 

 

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COURT – WHETHER A COURT CAN MAKE SPECULATIONS OR ASSUMPTIONS

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“Firstly, the law is trite that a trial court is precluded and should not decide a case on mere assumption, conjecture or speculation. Hence, they decide issues placed before them on fact as pleaded and established by evidence adduced before them, predicated on applicable laws. See the case of LAWSON NNAMDI CHUKWU & ANOR VS. HONORABLE LOLO STELLA C. CHUKWU & ORS (2018) LPELR – 45482 (CA).” – Per IDRIS, JCA

 

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CONTRACT – DUTY OF PARTY IN A CONTRACTUAL RELATIONSHIP TO GIVE NOTICE TO THE OTHER PARTY

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“In essence, whether the Appellant had an active subscription to the Respondent’s services or not, she should have received notice before her decoder was scrapped. It is not so out of place to expect the Respondent to have sent SMS messages or even emails to their customers aside from the point of sale/ service, product manual, fliers and handbills that they use to notify customers.

In the case of MULTICHOICE NIGERIA LIMITED VS. MR BANKOLE AZEEZ [2010] 15 NWLR (PT 1215) 40, this Court held that:

“From the entire evidence before me. it is implied in the contract between the parties that notice of such increase would be given to the 2nd plaintiff. The defendant confirmed that such notices are usually given by the defendant to their subscribers by writing letters, by sending text messages to their mobile phones and SMS messages to their screens. However, she failed to state that the 2nd plaintiff was given such notice and by what means before his service was scrambled on the 2nd October 2004 and reconnected on 3rd October, 2004 after the 1st plaintiff’s protest. The learned trial Judge came to the finding that 2nd plaintiff was entitled to be informed of the monthly increase from N9000 to N9550 based on the evidence of DW1 that such communication to its subscribers was done by any of three modes but that she failed to state that 2nd plaintiff was given such notice and by what mode the notice was given to him. …”

The above case lends credence to my assertion that the Appellant should have in fact received notice before the decoder was scrapped.” – Per IDRIS, JCA

 

 

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DAMAGES – PRINCIPLE GUIDING THE AWARD OF DAMAGES FOR BREACH OF CONTRACT

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“It is trite law that damages to be awarded for breach of contract are those damages for the ordinary consequences which flow in the usual course of things from the breach, or for those consequences of a breach which may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract. See the cases of AGBAJE VS. NATIONAL MOTORS NIGERIA LTD (1970) 2 ALR PG. 266 and G. CHITEX INDUSTRIES LTD VS. OCEANIC BANK INTERNATIONAL (NIG) LTD (2005) LPELR – 1293 (SC) where the Supreme Court held:

“Now, generally, the amount of damages to be paid to a person for breach of contract is the amount it will entail to put the person in the position he would have been if there had not been any breach of contract…In cases of breach of contract a plaintiff is only entitled to damages naturally flowing or resulting from the breach. See Swiss Nigerian Wood Industries Ltd v. Bogo (1971) 1 UILR 337; Agbaje v. National Motors (1971) 1 UILR 119.”

In this case, the Appellant’s claim is for 15 Million Naira as damages for breach of contractual obligation with the Plaintiff and denying her of her viewing pleasure. I have already stated that the Respondent has given evidence that the Federal Government of Nigeria through the Nigeria Broadcasting Commission (NBC) began to pursue its National Digital Switchover policy with greater intensity which mandated the Respondent to migrate its technological services from T1 to T2 in compliance with the said directive of the government. As such, whether or not notice was served, the Appellant would still be required to have changed her decoder in accordance with the extant regulation of the Nigeria Broadcasting Commission (NBC) if she wanted to continue viewing the Respondent’s TV channels. I therefore find that the Appellant is not entitled to any damages as the damages would not have put her back into the position she was before the contract was breached by the Respondent.” – Per IDRIS, JCA

 

 

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WHETHER ADDRESS OF COUNSEL CAN TAKE THE PLACE OF EVIDENCE

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“… however the address of counsel does not take the place of evidence. See the case of ANGADI VS.  PDP & ORS (2018) LPELR – 44375 (SC).” – Per IDRIS, JCA

 

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COMMENCEMENT OF ACTION – WHETHER IT IS IMPROPER TO COMMENCE AN ACTION ON CONTRACT BY ORIGINATING MOTION

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“On a final note, I will like to state that issues of contractual relationships such as in the instant case, should not be brought by way of Originating Summons. In the case of OGAH VS. IKPEAZU & ORS (2017) LPELR – 42372 (SC) the Supreme Court held that:

“This court has remained resolute on the criteria which justify determination of claims by originating summons. From the seemingly endless number of the decisions of the court, where the facts are or likely to be in dispute it is improper to commence such action by originating summons. See Pam v. Mohammed (2008) 16 NWLR (Pt. 1112) 1 SC, Doherty v. Director of SSS & Anor v. Agbakoba (1999) 3 NWLR (Pt. 595) 425.”

I am perplexed as to why this action was commenced by way of Originating Summons given that it was rife with dispute between the parties.” – Per IDRIS, JCA

 

 

 

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CASES CITED

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Not Available

 

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STATUTES REFERRED TO

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Court of Appeal Rules, 2021

Consumer Code of Practice Regulations, 2007

Nigerian Communication Act, 2003

 

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