CORAM
PARTIES
MTN NIGERIA COMMUNICATION LTD
APPELLANTS
CORPORATE COMMUNICATION INVESTMENT LTD
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Claimant/Respondent is one of the Defendant/Appellant’s trade partners who have been in business together since 2005 and over years have been governed by various agreements. In January 2011, the Appellant issued fresh terms of agreement and it was specifically stated that the 2011 agreement supersedes previous agreements. The agreement contained a term which states that the Respondent had the right to terminate the agreement upon giving the Appellant 3 months’ notice in writing, while the Appellant had the right to terminate the agreement upon giving the Claimant/Respondent 60 days written notice. It was the contention of the Respondent that despite trading and carrying on business with the Appellant in accordance with the agreement, the Appellant purportedly terminated the agreement vides a letter. It contended that the letter was not in compliance with the terms of the agreement and was addressed to a different company to wit: Corporate Communication Ltd. The Claimant/Respondent protested by writing a letter. Subsequently, it placed orders for the Appellant’s products which were rejected on account of the termination letter. Despite its solicitor’s letter challenging the termination of the agreement and requesting an amicable settlement, the Appellant withdrew 27 SIM registration kits assigned to the Respondent. By its writ of summons and statement of claim, the Respondent sought the following reliefs against the Appellant: 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 and that same does not refer to the Claimant; N500,000,000 being 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. After a careful consideration of the entire case, judgement was entered in the Respondent’s favour. The Appellant was dissatisfied with the judgment and filed an appeal at the Court below which appeal was dismissed. Still dissatisfied, the Appellant has filed the instant appeal.
HELD
Appeal Dismissed
ISSUES
Whether the Court of Appeal below was right when it acted on extraneous matters including the evidence of the a D.W.1 at the trial in reaching its decision to affirm the judgment of the trial Court? Whether the Court of Appeal was right in holding that the document which was admitted in evidence at the trial as Exhibit ‘A” created an implied, binding and enforceable contract between the appellant and the respondent? Whether the affirmation of the award of general damage made to the respondent against the appellant and the award of costs made against the appellant is justified?
RATIONES DECIDENDI
DECISION OF COURT- INGREDIENT AN APPELLATE COURT IS CONCERNED WITH IN RESPECT OF DECISION BY A TRIAL COURT
“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.”
EVIDENCE -IN- CHIEF – PURPOSE OF EVIDENCE- IN -CHIEF
“The purpose of evidence in chief is to lead evidence in support of a party’s pleadings.”
CROSS-EXAMINATION – PURPOSE OF CROSS-EXAMINATION
“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.”
EVIDENCE ELICITED UNDER CROSS-EXAMINATION – TREATMENT OF EVIDENCE ELICITED UNDER CROSS-EXAMINATION
“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. I have considered the authority of Gaji Vs Paye (supra) relied upon by learned senior counsel for the respondent and which learned senior counsel for the appellant sought to distinguish on the basis that evidence elicited under cross-examination is only relevant if it arises from issues joined between the parties. In other words, that it is only where both parties have filed pleadings that issues can be joined and the party cross-examining may rely on evidence elicited under cross-examination. With due respect to learned senior counsel, the submission does not reflect the decision of this Court in that case. His Lordship, Niki Tobi, JSC held at page 611 A-B of the report: Evidence procured from cross examination is as valid and authentic as evidence procured from examination-in-chief. Both have the potency of relevancy and relevancy is the heart of admission in the law of Evidence. Where evidence is relevant, it is admissible and admitted whether it is procured from examination-in-chief or cross-examination.”(Underlining mine) For this reason, lawyers are often advised to be wary of questions they put to witnesses under cross-examination, particularly when they do not know the answer the witness would give. This is because the response to a question put to a witness under cross-examination may turn out to sound the death knell for his opponent’s case. 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).”
PERVERSE FINDING- WHEN IS A FINDING 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.”
FRESH APPRAISAL OF EVIDENCE – WHETHER IT IS THE DUTY OF AN APPELLATE COURT TO EMBARK ON A FRESH APPRAISAL OF EVIDENCE
“It is not the duty of this Court to embark on a fresh appraisal of the evidence merely to reach a different conclusion or to substitute its views for the views of the trial Court or the Court below.”
APPEAL – NATURE OF AN APPEAL
“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.”
DECLARATORY RELIEFS- OBLIGATION OF A PARTY SEEKING DECLARATORY RELIEFS
“The law is that a party seeking declaratory reliefs must succeed on the strength of his own case and not on the weakness of the defence, if any. He has an obligation to prove his claims to the satisfaction of the Court notwithstanding any admission made by the defendant. This is because the grant of a declaratory relief is discretionary. See: Okoye Vs Nwankwo (2014) LPELR – 23172 (SC) @ 71-72 D-B (2014 15 NWLR (Pt.1429) 93, Kwajaffa & Ors. Vs B.O.N. Ltd. (2004) 13 NWLR (Pt 889) 146; Emenike Vs P.D.P (2012) 12 NWLR (Pt.1315).”
PRINCIPLE OF ESTOPPEL – STATUTORY PROVISION ON THE PRINCIPLE OF ESTOPPEL
“Section 169 of the Evidence Act provides: When one person has either by virtue of an existing Court judgement, deed or agreement or by his declaration, act or omission caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representatives in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing.”
AWARD OF GENERAL DAMAGES – 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 interim. 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.”
ASSESSMENT OF DAMAGES- MODE OF ASSESSMENT OF DAMAGES IN A CASE OF BREACH OF CONTRACT
“In Ijebu-Ode Vs L.G. Adedeji Balogun & Co. Ltd. (supra), it was held, per Karibi-Whyte, JSC at 158 F-G: In cases of breach of contract, assessment of damages is calculated on the loss sustained by the injured party which loss was either in the contemplation of the contract or is an unavoidable consequence of the breach. See also: Shell B.P. Vs Jammal Engineering Ltd. (1974) 4 SC 33, 1 ALL NLR (Pt.1) 542.”
AWARD OF DAMAGES- BASIS FOR THE EXERCISE OF DISCRETIONARY POWERS OF THE COURT IN AN AWARD OF DAMAGES
“It is also trite that an award of damages is within the discretionary powers of the Court. The exercise of such discretion must however be based on the evidence before the Court. See: British Airways Vs Atoyebi (2014) 13 NWLR (Pt. 1424) 253; Hamza Vs Kure (2010) 10 NWLR (Pt. 1203) 630; Okoko Vs Dakolo (2006) 14 NWLR (Pt. 1000) 401.”
UNCONTRADICTED EVIDENCE- STATUS OF UNCONTRADICTED EVIDENCE IN SUPPORT OF A CLAIM FOR DAMAGES
“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.”
FINDINGS OF FACT- CONSEQUENCES OF A FAILURE TO APPEAL AGAINST SPECIFIC FINDINGS OF FACT MADE AT THE TRIAL COURT
“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.”
CROSS EXAMINATION – WHETHER CROSS EXAMINATION ANSWERS CAN BE PLEADED
“I agree with learned counsel for the respondent that that argument just cannot fly as cross-examination answers are not usually pleaded since a party cannot be in the know or anticipate the mind of the other as to predicting what would be asked in cross-examination therefore if as happened in this case the amount claimed by the respondent and admitted by the appellant’s witness under cross-examination tallied with each other, there is no need for further pleading and it is to the advantage of the respondent and nothing stops the Court utilising it as it is as valid as examination in chief. See Adeosun v Governor of Ekiti State (2012) 4 NWLR (Pt.1291) 581 at 600; Gaji v Paye (2003) 8 NWLR (Pt.823) 583 at 611; Mobil Oil (Nig.) Ltd v National Oil & Chemical Marketing Co Ltd (2000) a NWLR (Pt.671) 44 at 52.
DECISION OF COURT – WHETHER AN APPELLATE COURT IS CONCERNED WITH THE REASONS FOR THE DECISION APPEALED AGAINST
“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”.
CONCURRENT FINDINGS OF FACT BY LOWER COURTS – ATTITUDE OF THE SUPREME COURT TO CONCURRENT FINDINGS OF FACT BY LOWER COURTS
“The above were concurrently accepted by the two Courts below and no reason has been brought before this Court in persuasion to disturb those findings and a long line of cases is on record that when such a situation occurs, this Court as any other appellate Court should not disturb such findings. See Ibuluya v Dikibo (2010) 18 NWLR (Pt.1225) 627 at 650 and 651.
CASES CITED
None
STATUTES REFERRED TO
Evidence Act, 2011|