IN THE COURT OF APPEAL OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
ON MONDAY, THE 3RD DAY OF APRIL, 2023
BEFORE THEIR LORDSHIPS:
MOORE A. ABRAHAM ADUMEIN JUSTICE, COURT OF APPEAL
JAMES GAMBO ABUNDAGA JUSTICE, COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL
APPEAL NO: CA/L/870/2018
BETWEEN:
MULTICHOICE NIGERIA LIMITED ----------------- APPELLANT
AND
ARAMIDE ADEOGUN -------------------------------- RESPONDENT
JUDGMENT
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)
Before the High Court of Lagos State (the lower Court), the Respondent, as Claimant, commenced an action against the Appellant, as Defendant, by way of Writ of Summons and Statement of Claim, seeking the reliefs stated here under.
The Appellant denied the claim and joined issues with the Respondent by filing a defence. During trial, the Respondent testified alone for himself while the Appellant also called a single witness. Both parties tendered documentary Exhibits. After the adoption of final addresses filed by the parties, the lower Court, presided over by Hon. Justice F. Bankole-Oki, entered Judgment for the Respondent as follows:
Peeved by the Judgment, the Appellant initiated this appeal by filing a Notice of Appeal containing three grounds of appeal, dated 09/10/2017 but filed on 10/10/2017, wherein he sought for an order allowing the appeal and setting aside the Judgment of the lower Court.
The facts of the case giving rise to the suit at the lower Court and which led to this appeal, can be summarized as follows:
The Respondent’s case is that sometimes in May 2010, before the commencement of the FIFA 2010 World Cup, he bought a Nokia phone 5330 Model for the price of N28,000.00 (Twenty-Eight Thousand Naira). The phone was advertised as coming with a pre-programmed MTN Sim Card which would enable him to watch 10 DSTV Channels, including the World Cup matches on Super Sport 3N channel, free from May, 2010 to March, 2011. All the 10 channels were airing until September, 2010 when Super Sport 3N channel was unilaterally tossed. When the Respondent complained in writing, the Appellant sent a response on the letter head of Details Nigeria Limited stating essentially, that it had windrawn the said channel and that such a change or withdrawal was based on a sound consideration and numerous factors. The said letter also referred the Respondent to the Terms and Conditions of the service which provided for changes in the channels which are brought to the attention of the customer as soon as it is practicable. Respondent stated that both Details Nigeria Ltd and the Appellant are chaired and owned by the same people and operate from the same office and that there was no mention in the advertisement of the service that the name Details Nigeria Limited was shown. That the reason he bought the said phone with the included service, was because of the inclusion of Super Sport 3N channel. The Respondent stated that the Appellant has breached its contract of service and ought to compensate him for the said breach.
The Appellant’s case, on the other hand, is that apart from denying liability, the Appellant maintained that it ought not to have been made à party to the suit in the first place and that MTN ought to have been made the Defendant. Appellant further contended that DSTV Mobile, was in fact Details Nigeria Limited and is the service provider and operator of the platform under which the product Nokia 5330 was advertised. Appellant further stated that advertisement for the product was subject to the Terms and Conditions applicable which were binding on the subscribers. That the service provider, Details Nigeria Ltd, has the right to manage, supervise and remove the channels. That Super Sports 3N channel was being aired only for the World Cup, but when it was removed after the World Cup, three extra channels were added to the bouquet.
As required by the Rules, parties filed and exchanged Briefs of Argument. Appellant’s Brief of Argument, filed on 14/09/2019 and deemed on 13/01/2021, was settled by Mahmud Adesina Esq. (now SAN), with Oloruntoba Obadofin and Maryam Abdullateef. Three issues were distilled for determination on behalf of the Appellant:
The Respondent’s Brief of Argument was settled by the Respondent himself, Aramide Adeogun Esq., filed on 15/01/2020 but deemed on 13/01/2021. He formulated two issues for determination, thus:
When the appeal came up for hearing on 25/01/2023, Mahmud Adesina, SAN, appearing with Maryam Abdullateef (Mrs.), adopted the Appellant’s Brief while Aramide Adeogun, appearing in person, adopted the Respondent’s Brief. It is clear from the issues formulated by the opposing parties that the parties are not dissimilar. In the circumstance, I will adopt the issues distilled by the Appellant in the resolution of this appeal.
Appellant’s Arguments
Learned senior counsel for the Appellant submitted that it is clear from paragraphs 3 and 11 of the Respondent’s Statement of Claim that he purchased the Nokia Phone 5330 which will enable him enjoy 10 DSTV channels with a pre-programmed MTN Sim Card at the outlet of the MTN and that the offer or Press Release was issued on the MTN website: www.mtnonline.com in respect of the product. He submitted that the transaction was clearly between the Respondent and MTN Communications Limited as both the Information about the Nokia 5330 model and the purchase of the said Nokia 5330 model was from MTN Communications Limited. He referred to the trite position of law that only parties to a contract can sue or be sued under it and only parties to a contract can be bound by it. Learned senior counsel argued that the Respondent did not prove or show before the lower Court that there was a contractual relationship between the Appellant and himself in respect of the purchase of his purported Nokia 5330 model, relying on the Supreme Court decision in Rebold Industries Ltd vs. Magreola & Ors (2015) LPELR-24612 (SC); A.O. Borishade vs. Nigeria Bank of Nigeria Ltd (2005) LPELR-11968 (CA); Ogundare & Anor vs. Ogunlowo & Ors (1997) LPELR-2326(SC), and other cases. Referring the Court to the evidence of the Respondent under cross examination at page 233 & 235 of the Record, learned silk contended that there is no dispute that the Respondent carried out all the transactions with MTN and not with the Appellant and therefore the Appellant has no contractual relationship with the Respondent, placing reliance on UBA & Anor vs. Jargaba (2007) Vol. 43 WRN 1 @ 19 (SC); Mediterranean Shipping Co. S.A. & Anor vs. Enemaku & Anor (2012) LPELR-9253.
It was submitted that from the Press Release admitted as Exhibit A4, the service being complained about was provided by MTN Communications, not the Appellant. The Court was urged to resolve issue 1 in favour of the Appellant.
On issue 2, counsel submitted that from the evidence before the Court, it is clear that the Appellant is a distinct legal personality from Details Nigeria Ltd, the provider of DSTV Mobile Services, as a Company is a distinct legal entity separate from its Shareholders or Directors. Counsel referred to the Respondent’s letter dated 12/10/2010, admitted as Exhibit A, which was addressed to DSTV and not the Appellant. On the distinct legal status of a Company from its Members, Shareholders and Directors, learned counsel relied on section 37 of the Companies and Allied Matters Act, CAP C20, LFN, 2004; Onuekwusi & Ors vs. The Registered Trustees of the Christ Methodist Zion Church; Bulet Int’l (Nig.) Ltd & Anor vs. Olaniyi & Anor (2017) LPELR-42475; and a host of other cases, to submit that the Appellant and Details Nigeria Ltd are different entities with distinct Company Registration numbers as reflected in their respective Forms CO2 and CO7, tendered as Exhibits A2 and A3. Learned senior counsel maintained that the fact that the Appellant and DSTV have the same Directors does not make them one entity as each of them enjoys its distinct legal personality. It was further submitted that from the evidence before the lower Court, especially Exhibit A1, it is clear that the services provided by Details Nigeria Ltd, i.e., DSTV Mobile, is separate from the DSTV provided by Multichoice Nigeria Ltd. The Court was urged to resolve this issue in favour of the Appellant by holding that the lower Court erred in law when it held that the Appellant trades with the name DSTV and that the name DSTV Mobile therefore belongs to the Appellant.
On the 3rd issue for determination, which questions the evaluation of evidence by the lower Court, it was the submission of senior counsel that the reason for the institution of the suit at the lower Court was because the Respondent claims he was unable to view Super Sport 3N which was one of the channels he received upon buying the Nokia 5330 through MTN with Sim + 10 DSTV channels for N28,000.00 only. He contended that the Respondent did not prove that there was a contract between him and the Appellant which was breached necessitating an award of N250,000.00 general damages. He argued that assuming, but not conceding, that there was breach of contract between the Appellant and the Respondent, damages recoverable should be within the reasonable contemplation of the parties, with a view to restoring the injured party, as far as is monetarily practicable, to the position he would have been but for the breach. Cases cited in support of the foregoing submissions are Kemtas Nig. Ltd vs. Fab Anieh Nig. Ltd (2007) ALL FWLR (Pt.384) 320 @ 342; Yalaju-Amaye vs. Associated Registered Engineering Contractors Ltd (1990) 4 NWLR (Pt.145) 450-451; Shodipo & Co. Ltd vs. Atoyebi (2014) LPELR-23120 (SC); Okoko vs. Dakolo (2006) 14 NWLR (Pt.1000) 401; Multichoice (Nig.) Ltd vs. Azeez (2010) 15 NWLR (Pt.1215) 40 @ 43-44.
With reference to the evidential burden of prove as provided in section 131 of the Evidence Act, learned senior counsel submitted, relying on Agboola vs. UBA Plc & 2 Ors (2011) LPELR-9353 (SC); Nwavu vs. Okoye (2009) 6 WRN 32, that the Respondent did not discharge the onus placed on him before the lower Court awarded the sum of N250,000.00 as general damages against the Appellant; just as the learned trial Judge did not discharge the onus of carefully evaluating the evidence placed before him vis-à-vis the pleadings of parties before delivering his Judgment. It was argued that throughout the Judgment of the lower Court there was never any paragraph showing the reason or analysis of how the Court arrived at the decision to award the sum of N250,000.00 general damages, which must be commensurate with the injury suffered by the Respondent. UBN vs. Ajabule (2011) LPELR-8239 (SC); Cameroon Airlines vs. Otutuizu (2011) 4 NWLR (Pt.1238) 512, cited and relied upon to support the contention that the amount awarded as general damages is in no way commensurate with the injury allegedly suffered by the Respondent. The Court was urged to interfere with the quantum of damages awarded by the trial Court as same was ridiculously too high.
Senior counsel further maintained that the Respondent is not entitled to the N200,000.00 awarded him as cost of this action, as the award was not judiciously and judicially made, being an exercise of discretion. That the amount awarded as cost is also too high and this Court was urged to interfere with same, placing reliance on Shanusi & Ors vs. Odugbemi & Anor (2017) LPELR-43377; Wema Bank Plc & Anor vs. Alaran Frozen Foods Agency Nig. Ltd & Anor (2015) LPELR-25980. The Court was urged to resolve this issue in favour of the appellant, allow the appeal and set aside the Judgment of the lower Court.
Respondent’s Arguments
On whether the Appellant was a necessary party to the suit, the Respondent submitted in his Brief that by the adverts of the products, the Respondent stated that it was a collaboration between MTN Nigeria Communications Limited [MTN] and Multichoice Nigeria Limited and that Multichoice Nigeria Limited is also commonly addressed by its brand name; "DSTV". The Respondent referred to a Press Release from the website of MTN Nigeria Limited tendered by it as Exhibit A4 where on the second page the name of the Appellant appeared clearly showing that the Appellant was exclusively responsible for the customer's DSTV channels thus: "MTN is putting together this innovative service in partnership with Nokia and Multichoice to further enrich the lives of our customers…” Learned counsel maintained that a close look at all the Exhibits tendered by him at the trial clearly shows that while MTN provided the phone, the Appellant provided the entertainment platform on which the 10 (ten) DSTV channels were viewed by subscribers. He argued that his claim is not in any way related to the malfunctioning of the Nokia phone 5330 model but against the unilateral withdrawal and tossing of the Super Sport 3N channel without the consent of the Respondent. It was submitted that the Appellant, Multi-choice Nigeria Limited, is also commonly known as and addressed by its brand name, "DSTV", and that it cannot be misleading and confusing to say that the Appellant was exclusively responsible for the DSTV channels, as MTN Nigeria Limited and Nokia are in no way suppliers of DSTV channels. That the fact that the Appellant was mentioned in the Press Release to supply DSTV channels is prima facie proof that Multi-choice, the Appellant herein, is DSTV as widely known. Reference was made to paragraph 4 of the Appellant's Statement of Defence, where counsel maintained that it unequivocally admitted that its responsibility was to supply channels to subscribers to wit: “…the Defendant avers that it ought not to be made a party in this Suit as it only supplies channels to subscribers, create a platform for the enjoyment of those channels but is not an operator of the platform and/or service provider under which the product Nokia 5330 is broadcasted." He submitted that facts admitted need no further proof, relying on the case of Olatunbosun vs. Odunjo& Ors (2016) LPELR-40542 (CA), and section 123 of the Evidence Act.
It was further submitted that it is idle for the Appellant who expressly and clearly admitted in its Statement of Defence that it was responsible for the supply of the channels to the subscribers and creators of the platform to enjoy those channels, to now argue and submit, that 'they have no idea of such transaction between the Respondent and MTN Nigeria Limited and that it ought not to be made a party in this Suit'. Counsel submitted that the Appellant was solely responsible for the supply of DSTV channels to subscribers; and that that any changes made with respect to those DSTV channels was the Appellant's doing. The Respondent argued that it had rightly sued the Appellant which he has a claim against and cannot be compelled to proceed against a party against whom he has no claim whatsoever. He also submited that from the Press Release/advert, the obligations of the partners in respect to the Nokia 5330 product were clearly spelt out - MTN being responsible for the data service on the Sim Card, Nokia being responsible for the Nokia 5330 model phone and Multi-choice (the Appellant herein) being well known to market its product under the brand name “DSTV' and exclusively responsible for the supply of DSTV channels. The Court was urged to hold that the lower Court rightly held that the Appellant is a necessary party to the Suit and was not wrongly sued.
It was further argued that contrary to the submission of the Appellant’s counsel, the Appellant is not a stranger to the transaction between the Respondent and MTN as it was fully abreast of the offer made to the public and was part and parcel of the collaboration between it, MTN Nigeria and Nokia on the Nokia phone 5330 model. Furthermore, the Respondent said he had no knowledge of an entity known as Details Nigeria Ltd as the name was nowhere mentioned in the Press Release making an offer to the public. In urging this Court to resolve this issue in his favour, the Respondent placed reliance on Carlil vs. Carbolic Smoke Ball Co. (1893) 1 QB 256; Amana Suites & Hotels Ltd vs. PDP (2006) LPELR-11675 (CA).
On the contention of the Appellant’s counsel that the name of the Appellant is not on the Press Release, learned counsel for the Respondent referred the Court to page 237 of the Record and submitted that the Appellant’s contention is a fallacy, made in bad faith and an attempt to distort the Record of the lower Court. Counsel argued that the intention of the Appellant was to maliciously blindfold this Court into believing that certain state of facts do not exist. Counsel submitted that the inclusion of Details Nigeria Ltd by the Appellant in its defence and in the Appellant’s Brief, as the Company that operates or regulates the channels it broadcasted, is a form of corporate fraud and an attempt to hoodwink the Court.
On the arguments of the Appellant under its issue 2 that itself and Details Nig. Ltd are distinct legal personalities, the Respondent submitted that the fact that the Appellant and Details Nigeria Limited are separate and distinct legal entities from each other is of no concern to him as the only party known to him as contained in the Press Release
which was in the public domain is the Appellant herein, whose responsibility was spelt out in the Press Release. Respondent submitted that he cannot make a claim against an organization it has no knowledge of at the time of the Press Release; and that the withdrawal of the Super Sports 3N channel is the doing of the Appellant, as its sole responsibility with respect to the collaboration was the provision of the DSTV channels and entertainment bouquet. The Court was urged to hold that the lower court rightly held that the Appellant trades with the name of DSTV and that the name DSTV Mobile belongs to the Appellant.
0n whether the lower Court was right in awarding the sum of N250,000.00 general damages and N200,000.00 cost in favour of the Respondent, it was argued, relying on the authorities of Ogunniyi vs. Hon. Minister of FCT & Anor (2014) LPELR-23164 (CA); B.F.I. Group vs. Bureau of Public Enterprise (2007) LPELR-8998 (CA), that a valid contract exists between the Respondent and the Appellant, which was breached by the Appellant by its unilateral withdrawal of the Super Sport 3N channel, and which necessitated the award of damages by the lower Court. Respondent contended that general damages are compensatory damages flowing from the wrong complained of which does not require specific pleading and strict proof - E.F.C.C. vs. Inuwa & Anor (2014) LPELR-23597 (CA); UBN Plc vs. Onuorah & Ors (2007) LPELR-11845 (CA), were cited and relied upon. Counsel maintained that the lower Court properly evaluated the evidence and applied the relevant legal principles before awarding to the Respondent the sum of N250,000.00 as damages for breach of contract and N200,000.00 costs, and urged the Court not to interfere with the lower Court’s discretion, relying on the case of Shanusi vs. Odugbemi (supra). Respondent urged the Court to dismiss the appeal and affirm the Judgment of the lower Court.
Resolution of issues
The first issue queries the decision of the lower Court where it held that the Appellant is a necessary party in the Suit before it. The law has defined a necessary party to be a person or legal entity whose presence in the proceedings is essential for the effectual and complete determination of the issues before the Court. In other words, a necessary party is a party, in the absence of whom the claim before the Court cannot be effectually, fairly, judiciously and completely decided or settled. See Jegede vs. INEC & Ors (2021) LPELR-55481 (SC); National Democratic Party vs. INEC (2012) LPELR-19722 (SC); Sifax (Nig.) Ltd & Ors vs. Migfo (Nig.) Ltd & Anor (2018) LPELR-49735 (SC); CBN vs. Interstella Communications Ltd & Ors (2017) LPELR-43940 (SC). In determining whether or not the Appellant is a necessary party, one has to look at the offer made to the general public, whose acceptance by the Respondent forms the basis of the action at the lower Court. The offer is contained in a Press Release on the website of MTN Nigeria Communications Ltd, www.mtnonline.com, tendered in evidence as Exhibit A4. The Advert/Press Release was a collaboration between MTN, Nokia and Multichoice. The Advert or Offer requires a prospective Offeree to visit nearest MTN walk-in centre, Nokia Partner retailers or Multichoice outlets nationwide to purchase the comprehensively packaged Nokia 5330 Phone loaded with MTN Sim plus 10 DSTV channels to enjoy free mobile TV for 10 months. On the strength of that representation, the Respondent bought the Nokia 5330 at the advertised price of N28,000.00 and was enjoying the 10 channels as provided by DSTV between May 2010 to September, 2010, when DSTV tossed the Super Sport 3N channel, without any notice to him, contrary to the terms of the offer that the 10 DSTV channels would be available for his viewing pleasure till March, 2011. From the collaboration between the three companies that made the offer, the role of each of them can easily be deciphered from the type of service they are known to have been providing. That is to say, while Nokia provides the Mobile Phone, MTN provides the Sim pack and Multichoice provides the 10 DSTV channels. Since MTN Communications Nigeria Ltd only provides mobile sim packages and allied telephone services, it lacks the capacity to remove or toss any of the 10 advertised channels. The same goes for Nokia, whose role is to provide its mobile telephone set. The 10 channels entertainment component of the Advert/Press Release is to be provided by DSTV, the flagship entertainment provider of Multichoice. Therefore, when any of the 10 channels is tossed or removed, the culprit must be the provider of the channels, as it is not within the power of Nokia or MTN to tamper with the channels. To the extent that the substratum of the Respondent’s action at the lower Court is founded on the tossing of the Super Sport 3N channel provided by DSTV, the finding of the lower Court that the Appellant is a necessary party to the action cannot be faulted, even if the reasons given for the finding is wrong. The trite position of the law is that once a decision of a Court is right, it is immaterial that the reason for the conclusion is wrong. See Grosvenor Casinos Ltd vs. Halaoui (2009) LPELR-1340 (SC); Amasike vs. The Registrar General, C.A.C & Anor (2010) LPELR-456 (SC); American Cyanamid Co. vs. Vitality Pharmaceuticals Ltd (1991) LPELR-461 (SC); Dairo vs. Union Bank & Anor (2007) LPELR-913 (SC).
In the instant appeal, the collaboration to make a public offer was between three entities, one of whom is DSTV, whose role is to provide the 10 entertainment channels. DSTV simply means Digital Satellite Television. It is a Sub-Saharan African direct broadcast satellite service owned by Multichoice Africa and based in Randburg, South Africa. Multichoice Nigeria, on the other hand, offers premium satellite entertainment, news, information, sports, and education channels through its Digital Satellite Television (DSTV) and GOTv platforms. In short, DSTV is the platform upon which Multichoice Nigeria operates its satellite television business, it is therefore owned by MultiChoice. See Wikipedia, The Free Online Encyclopaedia. This explains why among the designated places for the purchase of the comprehensively packaged Nokia 5330 as stated in the Advert, are Multichoice outlets. DSTV is an entertainment company owned by Multichoice, consequently, it is a necessary party to the action at the lower Court and the appeal before this Court. The Appellant’s argument that the transaction was between the Respondent and MTN Communications Limited as both the Information about the Nokia 5330 model and the purchase of the said Nokia 5330 model was from MTN Communications Limited, is of no moment and overlooks the fact that the information in Exhibit A4 clearly indicates a collaboration/partnership between MTN, Nokia and Multichoice. Part of the Press Release reads:
“MTN is putting together this innovative service in partnership with Nokia and Multichoice to further enrich the lives of our customers and to create opportunity for them to watch the entire FIFA World Cup matches live from wherever they are, as a way of taking mobile entertainment to the next level.”
Corroborating the collaboration between the three entities that made the Offer, Mr. Philip De La Vega, General Manager, Nokia, West Africa, stated in the Press Release admitted as Exhibit A4:
“We are proud of our partnership with MTN Nigeria and DSTV. We are confident that the expectation of our customers will not only be met but exceeded.”
Besides the above confirmation of partnership and collaboration, Multichoice outlets nationwide are among the designated places the Nokia Phone 5330 were put out on sale/offer to prospective buyers/offerees, such as the Respondent, as per the last paragraph of the Press Release in Exhibit A4. In the result, I resolve issue 1 against the Appellant by holding that the Appellant is a necessary party, whose presence is essential for the effectual and final determination of this dispute.
Appellant argued on issue 2 that from the evidence before the Court, it is clear that the Appellant is a distinct legal personality from Details Nigeria Ltd, the provider of DSTV Mobile Services, as a Company is a distinct legal entity separate from its Shareholders or Directors. Counsel referred to the Respondent’s letter dated 12/10/2010, admitted as Exhibit A, which was addressed to DSTV and not the Appellant. The Respondent, on the other hand contended that he had no knowledge of an entity known as Details Nigeria Ltd as the name was nowhere mentioned in the Press Release in which an offer was made to the public. A careful perusal of all the documentary exhibits relevant to this case shows that the only names that featured in the public offer, which was accepted by the Respondent when he purchased the customized Nokia 5330, are MTN, Nokia, DSTV and Multichoice. The name of Details Nigeria Ltd did not feature anywhere. That name came up only after the Respondent wrote a letter of complaint to DSTV. It was then that the said Details Nigeria Ltd took it upon itself to reply the letter stating that the service upon which the Respondent wrote a letter to DSTV was provided by itself and is separate from the DSTV service provided by MultiChoice Nigeria. It is trite in the law of contract that parties are bound by the terms of their contract and none of the parties can unilaterally alter the terms without the consent of the other; A.B.C. (Transport Co.) Ltd vs. Omotoye (2019) LPELrR-47829 (SC). In the same vein, a non-party to the contract has no right to intrude into the contract mid-way and claim responsibility for any action or for the provision of any service in the performance of the contract. The representation made in the public Advert or Press Release was that the offer was made by MTN Nigeria in partnership with Nokia and MultiChoice. Details Nigeria Ltd was not part of the partnership, it was not among the collaborating companies that put up the offer. It cannot therefore spring from nowhere and contend that the service in question was provided by itself and that the service is distinct from the DSTV service provided by MultiChoice Nigeria. The argument that DSTV Mobile was provided by Details Nigeria Ltd and is separate from the DSTV provided by MultiChoice Nigeria Ltd has no foundation on which to stand. That argument is neither here nor there, as Details Nigeria Ltd was not privy to the offer made to the public by the three collaborating entities. Not being a privy, Details Nigeria Ltd cannot sue or be sued or defend any action under the contract arising from the offer by the three companies and acceptance by the Respondent. On the doctrine of privity of contract and its application, see Nospetco Oil & Gas Ltd vs. Olorunnimbe & Ors (2021) LPELR-55630 (SC); Eyiboh vs. Mujaddadi & Ors (2021) LPELR-57110 (SC). I am in agreement with the submission of the Respondent, harsh as it might seem, that the inclusion of Details Nigeria Ltd by the Appellant in its defence and in the Appellant’s Brief of Argument, as the Company that operates or regulates the channels it broadcasted, is a form of corporate fraud and an attempt to hoodwink the Court. Details Nigeria Ltd does not fit into this transaction at all, and therefore, all the Appellant’s submission on the distinct legal personality of Details Nigeria Ltd and MultiChoice Nigeria Ltd, comes to naught. That submission was a legal gymnastic aimed at diverting the attention of the Court to the real issues before it. As found by me under issue 1, it was the Appellant, not Details Nigeria Ltd, that offers the mobile service in question in collaboration with MTN Nigeria and Nokia. Details Nigeria Ltd is a total stranger to that public offer, its name having not been mentioned in the terms and conditions of the offer contained in Exhibit B. As a result, I resolve issue 2 against the Appellant.
Issue 3 is concerned with improper evaluation of evidence and quantum of general damages to be awarded, vis-à-vis the principle guiding the award of general damages. Evaluation of evidence means assessment of the evidence led by the parties and ascription of probative value to them with a view to determining on which side the pendulum or scale of justice tilts. “Evaluation of evidence by a trial Court should necessarily involve a reasoned believe of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other”; Lagga vs. Sarhuna (2008) LPELR-1740 (SC). It involves reviewing and criticizing the evidence given and estimating it. That is the duty of the trial Court. Where the trial Court carried out a proper analysis and evaluation of the evidence led and made correct findings, the Appellate Court will not interfere, disturb or substitute its own views for the views of the trial Court. See Lagga vs. Sarhuna (supra); Sijuade vs. Makinde & Ors (2015) LPELR-40526 (CA) at 48-49.
With respect to general damages, it is defined as the kind of damages which the law presumes to flow from the wrong complained of by the victim. It covers all losses which are not capable of exact quantification, including non-financial losses. The manner in which general damages is quantified by the courts is by relying on what would be an opinion and judgment of a reasonable person in the circumstance of the case. General damages are awarded to assuage for the injury, loss or inconvenience or both, suffered by the victim against the person(s) found to be at fault. It need not be pleaded or proved and it is awarded in deserving cases as monetary compensation to a person who has suffered injury to his person or property as a result of the unlawful act or omission of another person. The quantum need not be specified as the award is based on what a reasonable man will consider to be adequate in the circumstances. See Badmus & Anor vs., Abegunde (1999) LPELR-705 (SC); Eneh vs. Ozor (2016) 16 NWLR (part 1538) 219; Union Bank Plc vs. Chimaeze (2014) 9 NWLR (part 1411) 166. Above is the guiding principle for the determination of quantum of general damages to be awarded in the event a civil claim succeeds. The trial court shall be guided by what a reasonable man will award as general damages taking into consideration the entire circumstances of the case.
In arriving at the decision to award the sum of N250,000.00 to the Respondent as general damages for breach of contract and N200,000.00 as cost of the action, the lower Court has made a finding that there existed a binding and enforceable contract for provision of service by the Appellant which was partially disrupted by the Appellant when it withdrew, in September, 2010, the Super Sport 3N channel from the list of 10 free channels the Respondent was entitled to watch till March, 2011, thereby breaching the term of the contract. The lower court found that the advertisement jointly put up by the Appellant, MTN and Nokia for the purchase of Nokia Phone 5330 loaded with 10 DSTV channels for free viewing between May, 2010 to March, 2011, constituted an offer to the public, and the purchase of the Phone by the Respondent amounted to acceptance of the offer, which action brought into existence a valid contract, relying on Carlil vs. Carbiolic Smoke Ball Co. (1893) 1 QB 256 and Orient Bank (Nig) Plc vs. Bilante International (1997) 8 NWLR (Pt.515). The Court also found at page 13 of its judgment, copied at page 185 of the Record of appeal, thus:
“I find that the Claimant’s right to continue to watch the Super Sport, Channel 3 was rudely disrupted by the Defendant. By all indications, this kind of lost cannot be quantified in monetary terms. It is more of an emotional and personal loss. In the circumstances, the Court will award general damages to assuage his feelings and compensate him for the loss of the viewing of his chosen channel, which he has stated was the main reason why he subscribed to the service in the first place.”
Going through the judgment of the lower Court, one will find that the learned trial Judge has given due consideration to the evidence adduced by the parties before ascribing probative value to same. The Court considered how the offer was made to the public and by who, and how the Respondent accepted the offer through his conduct, as well as the occurrence of the breach before the expiration of the subscription period when the Appellant withdrew Super Sport 3N channel from the bouquet without notice to the Respondent as provided for in paragraph 25 of the terms and conditions of the offer. Furthermore, in the area of award of damages, even though the Respondent asked for the sum of Two Million Naira (N2,000,000.00) as general damages, the lower Court reasoned that the sum of N250,000.00 would be adequate compensation for the inconveniences and deprivation caused the Respondent by the action of the Appellant in tossing the Super Sport 3N channel from the viewing pleasure of the Respondent. The said reasoning and the general evaluation of the evidence by the lower Court before arriving at its conclusion, cannot be faulted.
With regards to the award of N200,000.00 cost to the Respondent, which the Appellant maintained is excessive, I wish to restate the law that cost follows the event. A successful party is entitled to the cost of prosecuting or defending the action either wholly or partly unless he misconducts himself in such a manner that deprives him of such an award; Ubani-Ukoma vs. Seven-Up Bottling Co. & Anor (2022) LPELR-58497 (SC). It is the discretion of a Judge upon delivery of Judgment to award costs to the successful party, whether claimed in the Writ or not. See Cappa & D’Alberto (Nig) Plc vs. NDIC (2021) LPELR-53379 (SC); Mekwunye vs. Emirates Airlines (2019) LPELR-46553 (SC). The essence of awarding costs is to compensate the successful party for part of the loss or expenses legitimately incurred in the litigation. It is not to be awarded as punitive measure against the losing party, but to serve as palliative measure to the successful party to cushion the effect of the expenses of litigation. See Olusanya vs. Osinleye (2013) LPELR-20641 (SC); In my considered view, the costs of N200,000.00 awarded to the Respondent by the lower Court is neither punitive nor excessive, as it is not against the settled principle of law guiding the award of costs. The Appellant has not advanced any reason why I should interfere with the exercise of discretion by the lower Court in that regard. Consequently, issue 3 is also resolved against the Appellant.
Having resolved all the three issues formulated by the Appellant against it, the destiny of the appeal is as clear as bright day light. The appeal is dismissed for want of merit. Judgment of the High Court of Lagos State in Suit No. LD/2283/2010, delivered on 03/10/2017 by Bankole-Oki, J., is hereby affirmed. I assess cost in favour of the Respondent against the Appellant in the sum of N200,000.00 (Two hundred thousand Naira).
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF APPEAL
APPEARANCES:
Mahmud Adesina, SAN, with Maryam Abdullateef (Mrs.) for the Appellant.
Aramide Adeogun ,in person, for the Respondent.
M. I. SIRAJO, JCA CA/L/870/2018 | PAGE OF |
