ADEYEMI IBIRONKE v. MTN NIGERIA COMMUNICATIONS LIMITED (2019)

ADEYEMI IBIRONKE v. MTN NIGERIA COMMUNICATIONS LIMITED

(2019)LCN/13146(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 24th day of April, 2019

CA/L/531/2017

RATIO

JURISDICTION: WHETHER A PARTY CAN WAIVE HIS RIGHT TO CLAIM THAT A COURT LACKS JURISDICTION

The Plaintiff had in my view submitted to the jurisdiction, the procedural jurisdiction of the Court, and will not be allowed to raise this issue at this stage. It is too late in the day. See NDAYAKO VS. DANTORO (2004) 13 NWLR (PT. 889) 187.PER MOHAMMED LAWAL GARBA, J.C.A.

RULES OF COURTS: PURPOSE OF RULES OF COURT
In the earlier case of Nneji v. Chukwu (1988) 6 SCNJ, 132, (1988) 3 NWLR (1981) 18, the apex Court had said that:-
Rules of Court are made to help the Court in its primary duty and objective, namely; to do justice to the parties by deciding on the merits of their case. These Rules are mere handmaids to justice and inflexibility of the Rules will only served to render justice grotesque.PER MOHAMMED LAWAL GARBA, J.C.A.

JUSTICE SHOULD BE ABOVE TECHINICALITIES TO A COURT
It will therefore be undesirable to give effect to rules which merely enable one party to score, not a victory on the merits, but a technical knock-out at the expense of a hearing on the merit.
In his usual erudition, Tobi, JSC, in the case of Sosanya v. Onadeko (2005) 8 NWLR (926) 185, concisely put the position thus: –
It is good law that rules of Court are made for the Courts and not the other way round and that is, the Courts are made for their rules. This means that if compliance with rules of Court, will cause injustice or miscarriage of justice in the case, the Court in its choice of doing substantial justice, will detract or move away from the rules of Court.PER MOHAMMED LAWAL GARBA, J.C.A.

THE COURT IS BOUND BY ITS DECISIONS EXCEPT WHEN THE DECISION IS INCONSISTENT AND NOT IN CONSONANCE OF THE DECISION OF THE SUPREME COURT

Ordinarily, the Court is bound by its decision, but the law is that it has a duty not to be so bound when its decision is inconsistent and not in consonance with the decision of the Supreme Court. Odido v. State (1994) 3 NWLR (333) 504, Peters v. David (1999) 8 NWLR (603) 486, Braithwaite v. M.S.A.L.S.A. (2001) 5 NWLR (707) 596, Carrena v. Akinlase (2008) 14 NWLR (1107) 262. PER MOHAMMED LAWAL GARBA, J.C.A.

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

ADEYEMI IBIRONKE Appellant(s)

AND

MTN NIGERIA COMMUNICATIONS LIMITED Respondent(s)

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): In the Suit No. FHC/L/CS/1377/2014 filed by the Appellant before the Federal High Court sitting at Lagos (Lower Court), he had claimed the following reliefs against the Respondent:-
1. A declaration that the Defendants action of sending the same message to the Plaintiffs phone every ten to twenty seconds constitute a nuisance which unduly interferes with the Plaintiff?s comfortable and convenient use and enjoyment of his MTN line.
2. A declaration that the Defendant?s act of surreptiously obtaining and retaining information from the Plaintiff?s SIM card on her database constitutes a violation of the Plaintiff?s right to privacy.
3. The sum of N5,000,000.00 (Five Million Naira) being general damages for the Defendant?s acts constituting a nuisance.
4. Punitive damages for the Defendants violation of the Plaintiff?s privacy.
5. Cost of this suit and attorney fees.

In reaction to the claims, the Respondent filed a Statement of Defence and raised a preliminary objection challenging the

jurisdiction of the Lower Court to entertain and adjudicate over the suit in respect of the subject matter thereof, which was nuisance.

After hearing on the objection and the merit of the suit, the Lower Court in a judgment delivered on 8th February, 2017, dismissed both and being aggrieved by the dismissal of his Suit, the Appellant brought this appeal by the Notice of Appeal dated 10th March, 2017.

From the four grounds contained on the said Notice of Appeal, four (4) issues are said to arise for decision by the Court in the unpagenated Appellants brief filed on the 20th June, 2017.
i. Whether the Appellant did in fact fail to raise the issue of non-filing by the Respondent of a memorandum of appearance at the earliest opportunity (Ground 1);
ii. Whether the Appellant had waived his right to object to the incompetence of the Respondents processes when he again raised the issue in his final written address (Ground 2);
iii. Whether the Appellant did not successfully prove, on a balance of probabilities that the Respondent violated his right to privacy so that the trial Court was in error when she found that there is no

hard evidence to support the Appellant?s allegation (Ground 4);
iv. Whether, in the light of issues (i)-(iii) above, the Appellant did not successfully prove his claim against the Respondent so as to be entitled to remedy (Ground 3).?

For the Respondent two (2) briefs were filed on the 13th October, 2017 in which a preliminary objection challenging the jurisdiction of the Lower Court to adjudicate over the Appellant?s suit on the same ground as the objection raised before and decided by the Lower Court in its judgment, was raised again, and on 31st December, 2018 in which the objection was omitted, apparently after receipt of the Appellant?s Reply brief filed on the 8th January, 2018.

At the hearing of the appeal on 6th February, 2019 learned Counsel for the Respondent abandoned the objection raised in the unpagenated brief of 13th October, 2017 which was deemed on the day.

The Appellant?s issues were repeated in the said brief for determination in the appeal and the Appellant filed a Reply brief on the 8th January, 2018, also deemed at the hearing of the appeal.

As can easily be observed, issues (i) and (ii) of the Appellant have the same substance as to alleged failure to file a memorandum of appearance and to object to processes filed in the absence of such memorandum. Issues iii and iv both raised the sole question of whether the Appellant proved his claim as required by law on the evidence before the Lower Court.

I intend to treat appeal on the basis of the Appellants issues which represent his complaints against the decision by the Lower Court together.

Appellant?s Submissions:
Citing Order 7, Rule 1(1), (2) and (3) of the Lower Court?s Rules, 2009 and relying on Owners of the MV ?Arabella? v. N.A.I.C. (2008) 5-6 SC (Pt. II) 189, per Ogbuagu, JSC that the Rules of Court are to be obeyed, it is submitted that the Respondent?s Counsel admittedly did not file a memorandum of appearance, did not serve the Appellant processes promptly as required by the Rules of Court and that the Appellant?s Counsel did not waive his right to object to the failure since he raised it promptly. According to learned Counsel for Appellant, compliance with Order 7, Rule 1(3) is mandatory by the use of the word

?shall? and should have been complied with before the filing of subsequent processes such as statement of defence by the Respondent. Reference was made to relevant dates of proceedings by the Lower Court and the Court is urged to hold that Court was wrong to say that the Appellant did not raise objection to the non-compliance at the earliest opportunity. It is maintained that the Appellant was right to raise it in the final address and the Lower Court had the duty to consider all issues raised by the parties on the authority of UBN, Plc v. Emole (2001) 18 NWLR (745) 501, among other cases. Finally on the issue, inspired heavily on the statement by this Court in Nigerian Navy v. Bassey (2016) LPELR-41415 (CA), said to be on all fours with the Appellant?s case, it is contended that the Respondent?s failure to file a memorandum of appearance in the case is material to the just determination of the Appellant?s action and the Court is urged to hold that the Respondent?s processes before the Lower Court are incompetent and go to no issue.

?On the proof of the claim, it is submitted that the Appellant?s evidence that the

Respondent surreptitiously retrieved contacts from his mobile phone and stored same in its database from which for several days, he was inundated with messages that interfered with his peaceful, enjoyment of the phone, and the failure by the Respondent to produce, after due notice to do so, has proved the claim on the balance of probabilities or preponderance of evidence. Sections 91, 140 and 167 (d) of the Evidence Act, 2011 were referred to and it is argued that the Appellant had produced hard evidence in Exhibit A2 which is in line with his oral evidence, which according to Counsel, was mostly admitted by the Respondent, thereby discharging the burden of proof placed on him by the law citing Adeniran v. Interland Transport (1991) LPELR-88 (SC), inter alia, on the definition of nuisance, and Macca v. General Telephone Company of the Northwest, Inc. 401 F3d 876 (2005) decided by the USA Court of Appeal. It is submitted that the Appellant is entitled to succeed in his claim since his right to the peaceful enjoyment of his mobile phone was interfered with by the inundating messages sent by the Respondent to the phone. The unreported decision of

this Court in Appeal CA/LA/689/2013 delivered on 12th May, 2017 was cited and the Court is urged to allow the appeal and set aside the judgement by the Lower Court.

Respondent Submissions:
With reference to proceedings of the Lower Court, it is submitted that after becoming aware of the non filing of a memorandum of appearance by the Respondent?s Counsel, the Appellant?s Counsel took steps in the proceedings by filing processes to oppose those filed for the Respondent and so was rightly deemed to have waived his right to object to it by the authority of NUB Limited v. Samba Petroleum Company Limited (2006) 12 NWLR (993) 123. Then relying on Abe v. UBN, Plc (2005) FWLR (266) 959, Guinness Nigeria Plc v. Ufot (2008) 2 NWLR (1070) 52 @ 79, Ebe v. COP (2008) 4 NWLR (1076) 211 @ 212, it is contended that the non filing of a memorandum of appearance is a mere irregularity, as a technical and formal step by a defendant to submit to the jurisdiction of a Court which did not in any material way engendered a miscarriage of justice against the Appellant. Eneji v. Int. Transaction Limited (2001) FWLR (50) 1765 and Nislizawa Limited v. Jethwani (1984) 12

SC, 234 @ 292-3 were cited on the law that a Court cannot shut its eyes to a statement of defence even if it was irregularly filed. In further submission, it is said that Rules of Court are made to help the cause of justice and not defeat it and so the Court would do justice in all cases, not deterred by technical rules of procedure, on the authority of FBN, Plc v. T.S.A. Ind. Limited (2010) 15 NWLR (1216) 247, and Atiku v. Yar?Adua (2008) 1 FWLR (408) 601 @ 664-5 (SC), among other cases. The Appellant was also said to have waived his right to object to the incompetence of the Respondent?s processes since he did not oppose the regularization of the statement of defence and asked for costs which learned Counsel acknowledged receipt of for the dismissal of the Respondent?s preliminary objection and reliance was placed on SPDCN Limited v. Edamuke (2009) 14 NWLR (1160) 1 @ 27. Nkwocha v. MTN Nigeria Comm. Limited (2008) 11 NWLR (1099) 439 @ 460 and IBWA Limited v. Imano Nigeria Limited (2001) FWLR (44) 421 (SC) were referred to on the law on the consequence of parties consenting to an irregular procedure at a trial Court and it is argued that the Lower

Court was right to have considered the Respondent?s processes as the non filing of the memorandum of appearance by counsel for the Respondent did not affect the merit of the case before it. The Court is urged to so hold.

It is also the case of the Respondent that the Appellant failed to prove the claim against the Respondent on the balance of probabilities or preponderance of evidence as required by the law, citing Kayode Ventures Limited v. Minister Federal Capital Territory(2010) 7 NWLR (1192) 205 and Eyo v. Onuoha (2011) 11 NWLR (1257) 1 @ 21. According to Counsel, DW1 controverted the evidence of the Appellant in Exhibit A2 and the oral testimony of PW1 and there was no full and clear admission by the Respondent of storing the Appellant?s data in its database on which to find for the Appellant on the authority of Asaba v. Bona (2007) 1 FWLR (348) 146. He said that failure to produce what the Respondent did not have could not constitute admission or with-holding evidence under Section 167(d) of the Evidence Act since it was the Appellant who made a positive assertion, the burden was on him to prove it. The cases of

Vulcan Gases Limited v. Gasellschaft F. Ind. (2001) FWLR (537) 1, (2001) 9 NWLR (719) 610 @ 667, Ukaegbu v. Nwololo (2009) 3 NWLR (1127) 194 @ 230 and DTM Ngeria Limited (2009) 18 NWLR (1173) 467 @ 190 were referred to for the argument, and that the Appellant failed to discharge the burden on him to be entitled to succeed on the claims made or for the burden to shift to the Respondent. In addition, it is contended that the Appellant failed to prove the ingredients of the private nuisance which are as follows: –
?i. The other has property rights and privileges in respect to the use or enjoyment interfered with.
ii. The invasion results in significant harm.
iii. The actor?s conduct is the legal cause of the invasion, and
iv. The invasion is either (a) intentional and unreasonable, or (b) unintentional and otherwise actionable under the rules governing liability for negligent, reckless, or ultra hazardous conduct.?

The definition of private nuisance in W.J. Steward Collins Dictionary of Law, 2006 was referred to and it is maintained that the Appellant did not conclusively establish the ingredients to be entitled to the reliefs claimed, reliance

being placed on Daodu v. NNPC (1998) 2 NWLR (538) 355. The facts of the case of Macca v. General Telephone Company of Northwest, lnc. (supra) are said to be different since it dealt with numerous telephone calls unlike the Appellant?s case of alleged unsolicited messages while the facts of the case of MTN v. Enefe (supra) involved revealing or permitting his private line to be accessed by others who sent unsolicited, irritating and annoying messages to the line, unlike in the Appellant?s case.

In conclusion, the Court is urged to hold that the Appellant did not prove his case and to dismiss the appeal.

In the Appellant?s Reply brief, it is maintained that the Appellant?s Counsel did not waive his right to object to the processes filed for the Respondent in the absence of a memorandum of appearance and that the interpretation of the word ?appearance? in Ebe v. COP is of no use since it was a criminal case.

Resolution:
The part of the Lower Court?s decision challenged and attacked by the Appellant?s Counsel under issues i and ii is at page 301-2 of the Record of Appeal and as follows:-

?It is too late in the day for the Plaintiff to raise the issue of non-filing of a memorandum of appearance having participated in these proceedings to trial, and having not raised it at the earliest opportunity. In fact, on the 19th of May 2015, the Defendant?s statement of defence which was filed out of time was deemed as properly filed and served. The Plaintiff who was served with the motion for extension of time to file the said statement of defence did not oppose the application. The Plaintiff has in my view waived the right to raise this jurisdictional objection, being a matter of mere procedure. The Plaintiff had in my view submitted to the jurisdiction, the procedural jurisdiction of the Court, and will not be allowed to raise this issue at this stage. It is too late in the day. See NDAYAKO VS. DANTORO (2004) 13 NWLR (PT. 889) 187.
The Defendant?s final written address though filed out of time was deemed as properly filed and served on the 18th of October 2016. The application for extension of time dated 20th April, 2016 was moved by Counsel for the Defendant and it was not opposed by learned Counsel for the Plaintiff, as a result

of which the Court granted same. The said address was therefore competent at the time it was adopted, and the matter adjourned for judgement.
All of the objections are hereby dismissed.?
Learned Counsel for the Appellant appears to quarrel with the opening sentence of the above finding/statement by the Lower Court and more with the last part thereof that ?having not raised it at the earliest opportunity?.
?As pointed out by him, he did raise the issue of non-filing of a memorandum of appearance by the Respondent?s Counsel in the case, on the 7th July, 2015 after the regularization of the statement of defence and accompanying processes on the 19th May, 2015 which were admittedly served on Appellant?s Counsel on same date. He also admittedly, did not oppose or object to the regularization of all the processes filed by the learned counsel for the Respondent on the 19th May, 2015 or challenged the appearance of the Respondent?s Counsel in the case on the ground of failure to file a memorandum of appearance, but rather continued to react or respond to all the processes filed by Counsel for the Respondent and to

participate in the proceedings of the case to the end. As may be observed from the arguments of the learned Counsel for the Appellant, he did not even suggest, let alone show, that the non-filing or absence of the memorandum of appearance in the case, did in any manner or way, howsoever, prejudice the Appellant?s case in the proceedings so as to have occasioned a miscarriage of justice to the Appellant. Learned Counsel insistence on the bindingness of the Rules of Court was based on complete disregard of the elementary position of the law established several years ago to guide the Courts on the nature, primary purport of the Rules of procedure of Courts and the proper approach to their application in matters that come before them. Thirty (30) years ago, in the case of UTC Nigeria Limited v. Pamotei (1989) 2 NWLR (103) 244, the apex Court had stated that: –
?The Rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the cause of justice and not to defeat justice. The rules are therefore aids to the Court and not masters of the Court. For the Courts to read the rules in the absolute without

recourse to the justice of the cause, will be making the Court slavish to the Rules. This certainly is not the raison d?etre of the Rules of Court.?
In the earlier case of Nneji v. Chukwu (1988) 6 SCNJ, 132, (1988) 3 NWLR (1981) 18, the apex Court had said that:-
?Rules of Court are made to help the Court in its primary duty and objective, namely; to do justice to the parties by deciding on the merits of their case. These Rules are mere handmaids to justice and inflexibility of the Rules will only served to render justice grotesque.
It will therefore be undesirable to give effect to rules which merely enable one party to score, not a victory on the merits, but a technical knock-out at the expense of a hearing on the merit.?
In his usual erudition, Tobi, JSC, in the case of Sosanya v. Onadeko (2005) 8 NWLR (926) 185, concisely put the position thus: –
?It is good law that rules of Court are made for the Courts and not the other way round and that is, the Courts are made for their rules. This means that if compliance with rules of Court, will cause injustice or miscarriage of justice in the case, the

Court in its choice of doing substantial justice, will detract or move away from the rules of Court.?
The above principle and position of the law on the nature, primary object and application of rules of procedure enacted for Courts, have been the foundation upon which the attitude of the Courts has been sustained and firmly established in subsequent years. See generally, Afribank v. Owoseni (1995) 2 NWLR (375) 110, Opara v. D. Schlumgerger (1995) 4 NWLR (390) 440, Emesim v. Nwachukwu (1999) 6 NWLR (605) 150, Ojiako v. A.G. Anambra State (2000) 1 NWLR (641) 375, FSB Inter Plc v. Imano Nigeria Limited (2000) 7 SCNJ, 65 @ 78; (2001) 11 NWLR (679) 620, Duke v. Akpabuyo L.G. (2005) 19 NWLR (959) 130, Sale v. Monguno (2006) 7 SC (Pt. II) 97, Miscellaneous Offences Tribunal v. Okoroafor (2001) 9 SC, 92, (2001) 18 NWLR (745) 295.
From the position of the law, in the absence of any complaint by the Appellant?s Counsel that the non-filing of a memorandum of appearance by the Respondent?s Counsel occasioned any prejudice to the Appellant?s presentation of the Appellant?s case in the conduct of the proceedings

before the Lower Court and the fact that he had freely and voluntarily participated in the proceedings, his arguments for the Court to hold that all the processes filed by the Respondent?s Counsel in the case are incompetent on the ground of failure to comply with the Rules of the Lower Court providing for the filing of a memorandum of appearance, is nothing but legalistic entrustment and crass technicality that is pedantic.
Again, I resort to the erudite Tobi, JSC in the case Yusuf v. Adegoke (2007) 4 SC (Pt. 1) 126, on when a technicality arises in a case. His lordship and Professor of Law had said that: –
A technicality arises if a party quickly takes an immediately available opportunity, however infinitesimal it may be, to work against the merits of an opponent?s case. In other words, he holds and relies tenaciously unto the rules of Court with little or no regard to the justice of the matter. As far as he is concerned, the rules must be followed to the last words and the last letters without much ado, and with little or no regard to the injustice that will be caused the opponent.
Learned Counsel for the Appellant has argued that

because the case of Ebe v. COP (supra) was a criminal case it does not apply to the Appellant?s case. He cannot be right to say that since principles of law enunciated by the apex Court are all applicable in appropriate cases whether criminal or civil, depending on the facts and the issues to which they are to be applied.
The fact of the Appellant?s objection was the non-filing a memorandum of appearance and the issue raised is whether that would, ipso facto, render the processes filed by Counsel who failed to file the memorandum of appearance, incompetent on the ground that there was no valid appearance by Counsel. The Supreme Court in Ebe v. COP (supra), per Onnoghen, JSC had held that: –
The word appearance is defined as a coming into Court as a party or interested person, or as a lawyer on behalf of a party or interested person, especially a defendant?s act of taking part in a law suit, whether by formally participating in it or by an answer, demurer or motion or by taking post judgement steps in the law suit in either the trial Court or an appellate Court.
An appearance can either be personal by the

party to the action or appeal or through his legal practitioner. The word signifies or designates the express or overt act by which a party against whom an action has been instituted or who seeks redress from the Court of law submits himself to the jurisdiction of the Court.
The act of appearing in Court may be expressly made by formal memorandum of appearance or to physically appear and make oral declaration or statement to that effect or may be implied from some act done with the intention of appearing and submitting to the jurisdiction of the Court.? (Underline supplied)
This position of the Apex Court has fully answered the argument of Appellant?s Counsel on the non-compliance with the Rules of Court on filing of a memorandum of appearance, the purpose of which is for a party to submit to jurisdiction of a Court and show intention to defend or prosecute an action brought in Court. The appearance can be either by the formal filing of a memorandum of appearance or by physical appearance of party or Counsel representing the party.
In the case of Nwosu v. State (1990) SCNJ, 97, the Apex Court had warned that: –

As we have stated several times, the days when parties would pick their ways in this Court through technical rules of procedure the breach of which does not occasion a miscarriage of justice, are fast sinking into the limbo of forgotten things. The Court now take the view that not every slip is fatal to the cause of justice.?
The final Court had since then, maintained the position that technicalities in the determination of matters in Court have been shown the ?red card? and so have given way to substantial justice; the primary object of the Courts in all cases. See Sanni v. Agara (2010) 2 NWLR (1178) 371, Akpan v. Bob (2010) 17 NWLR (1223) 42, Dosunmu v. Dada (2006) ALLFWLR (343) 1605.
In a similar situation as in this appeal which arose in the case of Ogbeshe v. Idam (2013) LPELR-20330 (CA), I had stated that:
By way of support, I wish to say that for the learned Counsel for the Respondent to insist that Appellants? Counsel could not appear in the case merely because he did not file a memorandum of appearance in compliance with the Rules of the High Court and the High Court agreeing to ?order no appearance for the

Defendant when the Counsel was physically before that Court, was an elevation of the Rules of procedure the breach of which did not in any reasonable way prejudice the Respondent, to an unimaginable level of being sacrosanct. It is known now that no matter what language was employed in drafting the Rules of a Court, their primary object is to facilitate and not defeat the course of justice by being employed to punish parties for even the most infinitesimal mistakes committed by their counsel in the conduct of their cases. Albeit the Rules of Court are made to be obeyed by both the Court and the parties, they are all the same, mere handmaids and not masters to the Court and to always read and apply the rules in the absolute without regard to the justice of a case, would only encourage crass technicality at the expense of the merit of a case which they are meant to serve.
The Rules of any Court are certainly not intended to deny the parties the opportunity to be represented and to present their case before the Court due to mere irregularity of errors committed by Counsel. See Solanke v. Somefun (1974) 1 SC, 141 @ 148; Nneji v. Chukwu (1988) 3 NWLR

(1981) 184 @ 206, UTC v. Pamotei (1989) 2 NWLR (103) 244, Kano ile Plc v. G & H. Nigeria Limited (2002) 2 NWLR (751) 420 @ 469.
I will say that a practice whereby a counsel would be prevented from appearance before a Court for a party in a case on the ground only that he did not file a memorandum of appearance is clearly inequitable, unfair and therefore undesirable and cannot be justified under the Rules of any Court created by the Constitution which guarantees the right to fair hearing.
Not long ago, this Court in the case of Baa v. Adamawa Emirate Council(2013) LPELR-22068 (CA), restated the position, as a reminder to Counsel when it said:-
It is well to remind Counsel that the days of technicalities are long since gone and Courts have welcomed substantial justice with open arms, such that she is no longer a stranger to our hallowed temples of justice.?
See also Odonigi v. Oyeleke (2001) 6 NWLR (708 )12 @ 24, Dantata v. Dantata (2002) 4 NWLR (756) 144, Egolum v. Obasanjo (1999) 7 NWLR (511) 255 @ 413, Inakoju v. Adeleke (2007) ALLFWLR (353) 1 @ 202, Bossa v. Julius Berger, Plc (2005) 15 NWLR (948) 409.

The statement relied on heavily by the learned Counsel for Appellant on filing a memorandum of appearance in the case of Nigerian Navy v. Bassey (supra) appears to be inconsistent and in conflict with the earlier pronouncements by the apex Court and this Court on the nature, purpose and application of the Rules of Court and the primary object of the Courts to do justice on the merit instead of slavish adherence to the Rules, the breach of which does not occasion a prejudice or miscarriage of justice in a case. Ordinarily, the Court is bound by its decision, but the law is that it has a duty not to be so bound when its decision is inconsistent and not in consonance with the decision of the Supreme Court. Odido v. State (1994) 3 NWLR (333) 504, Peters v. David (1999) 8 NWLR (603) 486, Braithwaite v. M.S.A.L.S.A. (2001) 5 NWLR (707) 596, Carrena v. Akinlase (2008) 14 NWLR (1107) 262. This position apart, the facts in that case are different from the Appellants case in that the Appellants Counsel here did not object to the regularization of the processes filed by the Respondents Counsel which were subsequently regularized by the

Court after which he filed processes in reaction thereto, inspite of the absence of a memorandum of appearance by the Respondents Counsel. The statement in the case dealing with an application for extension of time to file a Statement of Defence is therefore of no avail to the Appellant?s Counsel in this appeal.
I would like to say that the moment a Counsel appears physically before a Court and announces that he represents a party in the case, and the Court and other parties accept the appearance by continuing and conducting the proceedings of the case thereafter, the party who is represented by the said Counsel had practically submitted to the jurisdiction of the Court and has shown and disclosed an unqualified intention of the party to either prosecute or defend the case.
After all, appearance is the process; in whatever form, by which a person against whom a suit had been brought or filed in a Court of law, shows his intention to defend the suit and submit himself to the jurisdiction of the Court. Guinness Nigeria Plc v. Ufot (2008) 2 NWLR (1070).
In addition, as shown earlier, the objection by Appellants Counsel was raised

in July; about two (2) months after the processes filled by the Respondent?s Counsel were regularized by the Lower Court at the proceedings of 19th May, 2015 without objection by him.
On that ground, for raising it two (2) months after the Respondent?s processes were regularized, unopposed by the Appellant?s Counsel and after he had formally reacted to them in the proceedings, it was clearly an afterthought and belated to ground the statement by the Lower Court that the objection by Counsel to the non-filing of memorandum of appearance was not timeously raised by him.
In the above premises, the arguments by Appellant?s Counsel on his issues i and ii are unsustainable in law and so lacking in merit.
The two (2) issues are resolved against the Appellant.

Issues iii and iv complain of and are on proof of the claims by the Appellant as required by law. In its judgement, the Lower Court stated that:
There is clearly no hard evidence to support this allegation. It is based on speculation and the Court cannot act on mere speculations. Did the Defendant subscribe the Plaintiff to its back-up service. It has not

been proved by the Plaintiff that it did. There is no hard evidence to prove the allegations of the Plaintiff.?

There is the need to look at the case presented by the Appellant in both pleadings and evidence in order to determine if the Court was correct in this decision. The relevant facts pleaded by the Appellant in paragraphs 3-22 of the Statement of Claim dated 20th August, 2014 are to the effect that he subscribed to the Respondent?s network in 2006 and that information from his sim-card was stored into the Defendants back-up database without his consent or authority. That the Defendant sent him unsolicited, annoying and irritating messages persistently at least once every ten (10) to twenty (20) seconds on the 30th September, 2013 and thereafter despite complaints from him which necessitated the filing of the action when the Defendant failed to desist from the acts of nuisance.

The Appellants 31 paragraphs statement on Oath (500) which was the evidence given in support of the claims was in line with the facts in the pleadings and two (2) copies of a mail messages were admitted as Exhibits A-A1. The letter

dated 30th September, 2013 was admitted as Exhibit A2.

As a foundation, the law places the burden of proof, vide the provisions of Sections 131, 132 and 133(1) of the Evidence Act, 2011, on the Appellant as the party or person who desired the Lower Court to give judgement as to the existence of his legal right to privacy and alleged liability of the Respondent for its breach dependent on the existence of the facts which he asserted in the pleadings. It was also Appellant who would have failed in the case if no evidence was called at all, on either side bore the burden of proof if he was to succeed or for the burden to shift to the Respondent. The standard of proof required of the Appellant is that of preponderance of evidence or balance of probabilities. See generally, Adegoke v. Adibi (1992) 6 SCNJ, 136, (1992) 5 NWLR (242) 410, Onwuka v. Ediala (1989) 1 NWLR (1996) 182, Mogaji v. Odofin (1978) 4 SC, 91, Egharevba v. Osagie (2009) 18 NWLR (1173) 299, Agala v. Okusin (2010) 10 NWLR (1202) 412, Woluchem v. Gudi(1981) 5 SC, 291, Calabar C.C.T. & C.S. Limited v. Ekpo (2008) 1-2 SC, 229, (2008) 6 NWLR (1083) 362.
The nature of the evidence required for the

discharge of the burden and standard of proof is admissible, credible and sufficient evidence that would on the balance of probabilities, establish the claims by a party to be entitled to the judgement of the Court. Jiaza v. Bamgbose (1999) 5 SC (Pt. 1) 58, (1999) 7 NWLR (610) 182, Dibiamaka v. Osakwe (1989) 3 NWLR (107) 101 @ 113, Ogala v. Okusin (supra), Chabasaya v. Anwasi (2010) 10 NWLR (1201) 163. In assessing whether the evidence adduced in a case is sufficient to establish or prove the claims made on the balance of probabilities or preponderance of evidence, the totality of the evidence called by the two parties is placed on the imaginary scale of justice to be weighed in terms of credibility, relevance and conclusiveness on the issues to be decided by the Court. To succeed in the case, the evidence called by claimant or plaintiff, who bears the initial burden of proof, must weigh heavier so as to preponderate on the scale, to his side, otherwise the case would fail and be liable to be dismissed. Mogaji v. Odofin (supra), Woluchem v. Gudi (supra), Oduola v. Coker (1981) 5 SC (Reprint) 120, Veepee Ind. Limited v. Cocoa Ind. Limited (2008) 4-5 SC

(Pt. 1) 116, Adeyeye v. Ajiboye (1987) 3 NWLR (1961) 432, Duru v. Nwosu (1989) 4 NWLR (112) 14. Where however, only the claimant or plaintiff called evidence, then the requirement is minimal evidence of the same equality and which meets the standard of proof required by the law since in such a situation, the defendant would be presumed to have accepted the evidence adduced by the claimant or plaintiff.
See NEPA v. Alli (1992) 8 NWLR (259) 279, Egbunike v. ACB Limited (1995) 2 SCNJ, 58 at 78, Ajero v. Ugorji (1999) 7 SC (Pt. 1) 58 @ 76, Okoebor v. Police Council (2003) 40 WRN, 93 @ 107-8, Adewuyi v. Odukwe (2005) ALLFWLR (278) 1100 @ 1112, Mogaji v. Odofin (supra).

From the tenor of his case and reliefs sought against the Respondent, it is predicated on alleged violation of the Appellants legal right provided for, guaranteed and protected by the provisions of Section 37 of the 1999 Constitution (as altered) which provides that: –
The privacy of citizens, their homes, correspondence, telephone conversation and telegraphic communications is hereby guaranteed and protected.

The claims in paragraph 25 of the Appellants Statement of Claim are as follows: –
1. A declaration that the Defendants action of sending the same message to the Plaintiff?s phone every ten to twenty seconds constitute a nuisance which unduly interferes with the Plaintiff?s comfortable and convenient use and enjoyment of his MTN line.
2. A declaration that the Defendants act of surreptiously obtaining and retaining information from the Plaintiff?s SIM card on her database constitutes a violation of the Plaintiff?s right to privacy.
3. The sum of N5,000,000.00 (Five Million Naira) being general damages for the Defendant?s acts constituting a nuisance.
4. Punitive damages for the Defendants violation of the Plaintiff?s privacy.
5. Cost of this suit and attorney fees.
As can be seen, the declarations sought in paragraphs (i) and (ii) are on the facts of sending and receipt of messages on the Appellant?s line registered with the Respondent said to constitute a nuisance which unduly interferes with his comfortable, convenient use and enjoyment of the line as well violation of the Appellant?s

right privacy. The legal and evidential burden on the Appellant was therefore to prove, on the balance of probabilities, that: –
(a) His legal right to privacy was breached by the Respondent through the messages sent to his line,
(b) The Respondent has no right/authority to retain information on its database from the telephone line (sim card) of the Appellant as its registered customer and
(c) The Respondent retained such information from the Appellant’s sim card and the retention constituted violation of his right to privacy.
I should state right away that the evidence adduced by the Appellant did not show that any information was accessed and retained by the Defendant in its database, from his sim card beyond or outside its ordinary business of providing digital mobile cellular and data services to its registered customers such as the Appellant.
The fact that messages or notifications were sent to the sim card of the Appellant by the Respondent does not alone, show that any unauthorized information was accessed from the Appellant?s sim card or that he was subscribed to a particular service, e.g. MTN Back up, without his

consent or authority. Although the first unsolicited message said to have been sent to and received by the Appellant on the 13th August, 2013 was one welcoming him to the MTN Back-up service, making him to assume that he was registered for the service which he did not apply nor request for, the Respondent has explained that the service is one which a subscriber may have access to store his contact details and access them in the event of a lost sim or replacement of a phone line.
The service is therefore not one which involved unauthorized accessing and retaining of subscribers information from his sim card.
Under cross-examination, the Appellant had stated, inter alia, that: –
I was not informed I was subscribed to the MTN sim card backup. I assumed I was subscribed to the MTN Sim card back up. I dont know the essence of back up service.
Clearly, the Appellant did not suggest that the subscription to MTN Back-up service is the same as accessing and retaining information from a customers sim card, without authority or consent.
In addition, there was no iota of evidence to show that as the

Appellant’s service provider, the Respondent has no authority under the relevant statutes, regulations or even the contractual agreement with the Appellant to store information from his sim card in its database for the purpose of providing him with the general services it provides or for which he subscribed.
Furthermore, was there any credible evidence to, again on the balance of probabilities, establish any breach of privacy by the messages and notification sent to the Appellants sim card, even if unsolicited, such that his use and enjoyment of the telephone services provided by the Respondent were reasonably interfered with? Without any difficulty, after a careful and calm look at the evidence before the Lower Court, I readily agree with it that there was no hard, and I would add credible and satisfactory evidence, to establish the alleged breach of the Appellant?s privacy by such messages or notifications. The messages may be inconvenient and sometime irritating or even annoying since they were unsolicited for and may in-appropriate cases, constitute a nuisance that may be actionable, but the Appellant did not set out the details of the messages and

notifications which reasonably interfered with his use and enjoyment of the sim card for which he subscribed and was registered with the Respondent. Eso, JSC in the case ofIpadeola v. Oshowole (1987) 5 SC, 376, (2005) 5 SCNJ, 201, referred to with approval, the learned authors of Clerk and Lindsell on Torts, on what nuisance is when he said: –
what is nuisance? The learned authors of Clerk and Lindsell have an excellent description-not definition-in their book on Torts (see 13 Edition paragraph 1391). The learned authors said: –
An actionable nuisance is incapable of exact definition and it may overlap with some other heading of liability in tort such as negligence or the rule in Ryland v. Fletcher. Nuisance is an act or omission which is an interference with, disturbance of, or annoyance to a person in the exercise or enjoyment of
(a) A right belonging to him as a member of the public when it is public nuisance, or
(b) His ownership or occupation of land or some casement, profit, or other right used or enjoyed in connection with land, when it is a privacy nuisance.

In Adediran v. Interland Transport Limited (1991) 1 NWLR (214) 155, Belgore, JSC, defined nuisance as follows:

Nuisance is an act or omission tending to interfere with, disturb or annoy a person or persons in the exercise or enjoyment of a right belonging to that person or persons; if the person whose right is so infringed is an individual, the nuisance is a private one, but when it affects the public or a class of the public, it is then a public nuisance.
See also Nwachukwu v. Egbuchu (1990) 3 NWLR (139) 435, Eholor v. Idahosa (1992) 2 NWLR (223) 323, Hongkong Synthetic Fibre v. Ajibawo (2008) 7 NWLR (1087) 511, UTB Nigeria Limited v. Ozoemena (2001) 7 NWLR (713) 718.
From the above definition, whether or not anything or fact/s constitutes nuisances, private or public, is to be determined not merely by an abstract or subjective consideration of the thing or fact itself, but with reference to the nature and peculiar circumstances in which it occurred or happened and the reasonable effect it has on the person or the public, UTB Limited v. Ozoemena (supra).
In the present appeal, there was no credible evidence from

the Appellant that his use and enjoyment of the services provided by the Respondent on the sim card he subscribed for was reasonably interfered with by the messages and notification sent to the sim card.

For instance, there was no evidence that the messages and notification sent to the sim card prevented the Appellant from the free use and enjoyment of the services he subscribed for with the Respondent or in any manner, violated any right to privacy provided either by statute, including the Constitution or the contract between him and the Respondent on the subscription to the sim card.

Perhaps, I should also point out that failure by the Respondent to produce the information for which notice was issued did not mitigate the burden of proof on the Appellant as the law is that he is to succeed on the strength of his case and that he was entitled to procedure secondary evidence of the information which the Respondent failed to produce after a notice to produce under Section 89(a)(ii) of the Evidence Act, 2011. Section 91 mandates the Appellant to produce the secondary copies of the information which the Respondent who had denied having iit, failed to produce. In

the case of Ainoko v. Yunusa (2008) LPELR-3663 (CA) this Court per Adekeye, JCA (then), dealing with notice to produce and consequence of failure to do so, had re-stated the law that: –
On the issue of notice to produce, I have to say that a party on whom notice to produce is served is not under any obligation to produce the document. The service of the notice to produce only entitles the party serving the notice to adduce secondary evidence of the document in question by virtue of Section 98 of the Evidence Act.
In other words, the service of a notice to produce a document does not relieve the person serving the notice of the burden of producing the document if he can or of proving its contents. Consequently the non-response to a notice to produce will not cause the Court to invoke the presumption of withholding of evidence under Section 149(d) of the Evidence Act against the defaulting party. Buhari v. Obasanjo (2005) 13 WLR (910) page 241, UBN v. Idris (1999) 7 NWLR (Pt 609) page 105, Gbadamosi v. Kabo Travels Limited (2000) 8 NWLR (Pt. 668) page 243.?
See also Onye v. Kema (1999) LPELR-6562 (CA), Chukwuka v. Nduka (2008) LPELR 3985

(CA), Lawal v. Magaji (2009) LPELR-4427, CPC v. INEC (2011) LELR-9085. Adegbuyi v. Mustapha (2010) LPELR-3600, Venn v. Access Bank Plc (2014) LPELR ? 24077 (CA), Ukaegbu v. Nwololo (2009) 3 NWLR (1127) 194, Jolayemi v. Olaoye (2004) 12 NWLR (887) 322, (2004) 18 NWLR NSCQR, 682, Etene v. Nyong (2012) LPELR-8031 (CA).
In this appeal, the failure to produce by the Respondent did not automatically invoke the presumption under Section 149(d) of the Evidence Act or nutigate the burden of proof on the Appellant.

Over all, the Appellant?s Counsel has not demonstrated any credible evidence before the Lower Court to show that the burden of proof placed on the Appellant was sufficiently discharged on the balance of probabilities or preponderance of evidence in order to be entitled to judgment for the claims against the Respondent.
The issues (iii) and (iv) of the Appellant are resolved against him.

In the final result, the appeal is unmeritorious, it fails and is dismissed. The judgment by the Lower Court is consequently affirmed.
Parties shall bear their respective costs of prosecuting the appeal.

TOM SHAIBU YAKUBU, J.C.A. : I was opportuned to have had a preview of the judgment rendered by my Lord, MOHAMMED LAWAL GARBA, JCA on this appeal. I am satisfied with the resolution of the issues thrown up in the appeal by His Lordship. Therefore, I have nothing to add.

I adopt the lead judgment as mine. The appeal, for being unmeritorious, is consequently dismissed.
Each side to bear its costs of this appeal.

JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother MOHAMMED LAWAL GARBA JCA. afforded me the opportunity of reading before today a draft copy of the lead judgment just delivered.
I adopt the judgment as mine with nothing further to add.

Appearances:

Appellant not represented
For Appellant(s)

N. Taiya (Mrs.)For Respondent(s)

Appearances

Appellant not representedFor Appellant

AND

N. Taiya (Mrs.)For Respondent