ETISALAT v. ADOYI (2021)

ETISALAT v. ADOYI

(2021)LCN/14954(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, January 13, 2021

CA/A/955/2019

RATIO

EVIDENCE: BURDEN OF PROOF IN CIVIL CASES

It is elementary as it is long settled that, civil cases are proved on the preponderance of evidence or balance of probabilities. Burden of proof is on the party who asserts a fact and has to prove same with cogent and credible evidence for his case not to fail. When the burden of proof is discharged, it then shifts to the defence and continues to shift. A party is not allowed to rely on the weakness of the case of the opposing party, rather on the strength of his case. See the cases of DAODU V. NNPC 1998 2 NWLR PT. 538 355, KALA V. POTISKUM 1998 3 NWLR PT. 540 1, ITAUMA V. AKPA-IME 2000 7 SC PT 11 24, ELIAS V. DISU 1962 1 ALL NLR 214, LONGE V. FBN PLC. 2006 3 NWLR PT. 967 P. 228, IMAM V. SHERIFF 2005 4 NWLR PT. 914 P. 80, ELIAS V. OMO-BARE 1982 2 SC P. 25 and AGBI V. OGBEH 2006 11 NWLR PT. 990 P. 65. PER WILLIAMS-DAWODU, J.C.A.

RELIEF: DUTY OF A CLAIMANT SEEKING DECLARATORY RELIEFS

A claimant seeking declaratory reliefs has the burden to prove by credible and cogent evidence that he is entitled to the relief he seeks. It is the same burden and hurdle that the Respondent had to cross in order to show that he was entitled to his claims. PER WILLIAMS-DAWODU, J.C.A.

EVIDENCE: ADMISSIBILITY OF EVIDENCE

DAMAGES: OBJECTIVE OF AN AWARD OF DAMAGES

It is a settled principle which evolved over time by decisions of the apex Court that an appellate Court will not upset an award of damages merely because it might have awarded a different sum if it heard the case itself. See the case ofCHIEF F.R.A WILLIAMS V. DAILY TIMES OF NIGERIA LTD. For an appeal to succeed against the award of damages, the Appellant needs to show that the trial Court proceeded upon some wrong principle of law, that the award was an entirely erroneous estimate or that it was unreasonably excessive. From the foregoing stated position of the law therefore, one shall consider the submissions of the Appellant on the monetary awards made by the Court below. PER WILLIAMS-DAWODU, J.C.A.

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

EMERGING MARKETS TELECOMMUNICATIONS SERVICES LIMITED (ETISALAT NIGERIA) APPELANT(S)

And

ANTHONY ADOYI RESPONDENT(S)

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of the Federal Capital Territory, Kubwa, Abuja delivered on July 15th, 2019 by Hon. Justice K. N. Ogbonnaya, wherein the Court found in favour of the Respondent (the Plaintiff at the Court below) against the Appellant (the Defendant at the Court below) for breach of contract and awarded monetary reliefs as sought.

The gist of the facts that culminated into this case was that the Respondent a subscriber and customer of the Appellant with services on two numbers, 081820036767 and 09083040521 alleged that there were unjustifiable and unwarranted deduction of N200 (Two Hundred Naira) from his airtime and incessant, embarrassing, scornful messages and calls to his number. The Appellant denied sending such messages and making unnecessary deductions. It claimed that the Value Added Services, licensed provider sends messages to subscribers including the Respondent to advertise their services where they have previously subscribed to it like the Respondent. The matter was tried, the Respondent testified on his own

behalf and the Appellant called one witness, one of its Managers. The Court in its wisdom found in favour of the Respondent.

At the Court the following were the reliefs sought by the Respondent:
a) A Declaration that the act of sending unsolicited and harassing promotional, marketing or advertising text messages and calls to the Plaintiff’s mobile telephone numbers: 08182036767 and 09083040521 and unwarranted deduction of his airtime/credit by the Defendant or its agents were unlawful, illegal and indeed a gross infraction and transgression of the Plaintiff’s privacy and breach of contract between the Plaintiff and the Defendant.
b) An Order of perpetual injunction restraining the Defendant, its agents, privies or anyone acting on its behalf or instruction from calling the Plaintiff or sending unsolicited text messages to any of the Plaintiff’s mobile numbers: 08182036767 and 0908304521 in relation to promotion, marketing or advertising of the Defendant’s or its agents’ products.
c) Payment of N100,000,000.00 (One Hundred Million Naira) only by the Defendant to the Plaintiff as general damages for breach of contract between the

Plaintiff and the Defendant.
d) Payment of the sum of N100,000,000.00 (One Hundred Million Naira) by Defendant to the Plaintiff as punitive damages for the psychological trauma and embarrassments suffered by the Plaintiff as a result of the Defendant’s action, invasion and transgression of the Plaintiff’s privacy by the Defendant.
e) Payment of the Sum of N2,000,000.00 (Two Million Naira) by the Defendant to the Plaintiff being the estimated value of the Plaintiff’s airtime/credit unwarrantedly and unjustifiable deducted by the Defendant from the Plaintiff’s account on his mobile telephone numbers: 08182036767 from the date of subscription to the Defendant’s network till date.
f) Payment of N2,000,000.00 (Two Million Naira) by the Defendant to the Plaintiff being the cost of this action.

The Appellant is pursuing this appeal pursuant to its Notice of Appeal dated and filed September 24th, 2019 containing Seven (7) Grounds of appeal. It seeks that the appeal be allowed and the judgment of the Court below set aside.

In accordance with the Rules of this Court, parties filed and served their briefs of argument. The Appellant’s brief

settled by Adedapo Tunde-Olowu Esq., was dated and filed November 29th, 2019. The Respondent’s brief settled by Sunday A. Ijiga Esq., was dated and filed December 30th, 2019 to which the Appellant responded by a Reply brief dated and filed May 25th, 2020 and was deemed as properly filed and served on October 14th, 2020.

The Appellant submitted four (4) Issues as follows for determination:
1. Whether Exhibit 5, legally inadmissible evidence which was wrongly admitted by the lower Court can be used to form the basis of a judgment (Grounds 1 and 2).
2. Whether the lower Court properly evaluated the uncontroverted evidence before it that the Respondent himself subscribed to Value Added Services and was therefore wrong when it held that the Appellant had breached the Respondent’s right to privacy (Ground 3).
3. Whether in the light of the evidence adduced by the Respondent, there was any legal basis for the lower Court to award the Respondent sundry monetary reliefs totaling N12,020,000 (Twelve Million, Twenty Thousand Naira) (Grounds 4, 5 and 6).
4. Whether delivery of the judgment dated 15th July, 2019 outside the mandatory period as

provided for in Section 294 of the Constitution of the Federal Republic of Nigeria, 1999 as (sic) (amended) occasioned miscarriage of justice to the detriment of the Appellant (Ground 7).

The Respondent distilled the following four (4) Issues:
1. Whether in the circumstances of this case, the Learned Justice of the Trial Court was wrong in admitting Exhibit 5 tendered by the Respondent and the weight attached thereto.
2. Whether the contents of Exhibit 6 which are some E-mail correspondences exchanged between the Appellant and its Agents tendered by the Appellant was a foolproof that the Respondent subscribed to Value Added Services (VAS) to justify the deduction of the Respondent’s airtime/credit contained therein.
3. Whether the Learned Justice of the Trial Court properly discharged his duty of dispassionately evaluating all evidence adduced by parties in this case and arrived at the correct decision.
4. Whether the delivery of the judgment in this matter by the Learned Justice of the Court below outside 90 days stipulated by the Constitution of the Federal Republic of Nigeria, 1999 (as amended) occasioned any miscarriage of justice on the part of the Appellant.

As empowered, I have reformulated the Appellant’s Issues into one as follows and so adopted:
Whether or not the Court below was right, given the evidence before it, to enter judgment in favour of the Respondent, whether the delivery of judgment after the mandatory Ninety (90) days occasioned miscarriage of justice and whether Exhibit 5 was legally inadmissible and could form the basis of the judgment.

SUBMISSSION ON BEHALF OF THE APPELLANT
Mr. Adedapo Tunde-Olowu Esq., learned Counsel for the Appellant submitted that the Court was wrong to have admitted Exhibit 5, typed text messages allegedly sent to the Respondent’s phone from the Appellant which was tendered without fulfilling the preconditions in Section 84 of the Evidence Act 2011 and its reliance on it renders the judgment null and void and cited in support the cases of CYPRIAN EZEWUDO V. JAMES EZENWAKA & ORS 2016 LPELR-41019 and ASUQUO V. EYO 2014 5 NWLR PT.1400 247. That thereby, miscarriage of justice was occasioned on the Appellant and that no proper foundation was laid regarding how the excerpts of the text messages were produced from

his phone as there was no certificate of authentication and cited in support the case of FRN V. OJO & ANOR. 2018 LPELR-45541. He therefore urged this Court to discountenance Exhibit 5 and cited in support the cases of LUFTHANSA GERMAN AIRLINES V. BALLANYNE 2013 1 NWLR PT. 1336 527 and UMAR V. BAYERO UNIVERSITY, KANO 1988 LPELR- 3358. He further argued that once Exhibit 5 is expunged, the Respondent’s averment with regard to unsolicited messages and calls from the Appellant are of no moment and un-substantiated and should be deemed abandoned and cited the case ofSUSAINAH (TRAWLING VESSEL) V. ABOGUN 2007 1 NWLR PT. 1016 456. That, messages received by the Appellant were solicited messages he had subscribed to receive from VAS providers and Exhibit 6 was not controverted. He submitted that, the Court reached a perverted decision when it ignored Exhibit 6.

Further, he submitted that the Court did not properly evaluate the evidence before it when it held that the Appellant had breached the Respondent’s right to privacy despite the contents of Exhibit 6 and the terms and conditions as contained in Exhibit 7. He argued that the Respondent failed to

establish his case that the unsolicited messages were from the Appellant’s representatives. Whereas the Appellant through DW1, Exhibit 6 which was not controverted, showed that the Respondent subscribed to some VAS, which was the likely reason for his alleged continued receipt of text messages and calls from third party. In support, he cited the cases of MUOMAH V. ENTERPRISE BANK LTD. 2015 LPELR-24832 and N.D.I.C. V. RABO FARMS LTD. 2018 15 NWLR PT. 1643 482. He submitted that the Court’s pronouncements were inconsistent with the unchallenged evidence in Exhibit 6 when it held that the Appellant was one and the same with the VAS providers and that the finding should be set aside and cited in support the case of ASAA V. OJAH 2015 LPELR-24278. Therefore, the finding of the Court was perverse, he added.

The learned Counsel argued that the monetary award had no basis as it was not premised on any legal or statutory authority. That the merit of each relief was not determined by the Court and that the Respondent failed to establish breach of contract, therefore the issue of restoration did not arise. Further that general damages should not have been

countenanced only damages for injuries suffered as a direct result of the breach and in support cited the cases of EZENDUKA V. N.S. ENG. CO. LTD. (NO. 2) 2002 6 NWLR PT. 762 202. He argued that the Respondent failed to prove that the Appellant willfully acted in such negligent and reckless manner that its actions ought to be punished and cited the cases of KABO AIR LTD. V. MOHAMMED 2014 LPELR-23614 and JULIUS BERGER NIGERIA PLC. & ANOR. V. UGO 2015 LPELR-24408. Further that the claim in respect of credit/airtime deducted from the mobile number is in the nature of special damages and needed to be specifically pleaded and proven strictly which the Respondent failed to do and cited in support the case of A.T.E. V. MIL. GOV. OF OGUN STATE 2009 15 NWLR PT. 1163 645. And that the Respondent was just on a fishing expedition for undue financial gain from the Appellant. He argued that as the Respondent failed to establish his claim, he was not entitled to the cost of the suit, notwithstanding that cost follows event and cited the case of OBAYAGBONA V. OBAZEE 1972 5 SC 247 and U.T.B. NIG. LTD. V. OZOEMENA 2007 3 NWLR PT. 1022 448.

The learned Counsel submitted that the Court erred in law to have delivered the judgment outside the 90 days stipulated in Section 294 (1) of the 1999 Constitution as amended. He claimed that the Court must have lost its impressions of the trial due to inordinate delay of almost Thirteen (13) months, from June 13th, 2018 when the final written addresses of parties were adopted to July 15th, 2019, when judgment was delivered. In support he cited the case of AKOMA & ANOR V. OSENWOKWU & ORS 2014 LPELR-22885. In conclusion, he urged that a miscarriage of justice was occasioned on the Appellant, the appeal be allowed and the judgment set aside.

SUBMISSION ON BEHALF OF THE RESPONDENT
Mr. Ijiga Esq., the learned Respondent’s Counsel submitted that, Exhibit 5 was properly admitted by the Court in accordance with the Evidence Act, 2011 as they were messages retrieved and typed from the unsolicited messages and the Appellant failed in spite of the notice, to produce a comprehensive printout of the content of Exhibit 5. That, Exhibit 5 is relevant and a sufficient proof of its content and referred to Section 89 (a) of the Evidence Act and the case of

FADLALLAH V. AREWA TEXTILES LTD. 1997 8 NWLR PT. 578 P. 546. That, it did not assist the case of the Appellant not to have produced the call or message logs in rebuttal of Exhibit 5 which has probative value and the Court would not allow technicalities over substantial justice and cited the case of BRILA ENERGY LTD. V. FRN 2018 LPELR- 43926 CA and Section 15 of the Evidence Act.

He submitted that the Court was right to hold that, the Appellant and the VAS, its agent, are the same and the Respondent did not know the VAS provider but the Appellant. That, it was not correct for the Appellant to claim that, Exhibit 6 was unchallenged. Further that, the Nigerian Communication Commission (NCC) which the Appellant alleged to have licensed VAS warned the Appellant several times against unsolicited messages and calls. That the NCC had to make the publication contained in Exhibit 4, certified true copy of the Guardian Newspaper dated September 12th, 2016, tendered by the Respondent as part of such warnings wherein the Appellant’s trade name, as it then was, was mentioned. He argued that there was a contractual relationship between the Respondent and the Appellant and cited in support the case

of NJIKONYE V. MTN NIGERIA TELECOMMUNICATION LTD. 2008 9 NWLR PT. 1092 339.

The learned Counsel submitted that the Respondent proved every allegation of fact against the Appellant on the preponderance of evidence. That, the Appellant failed to specifically, clearly and pointedly deny the averments in respect of the Respondent’s claims which meant admission and therefore no further proof is needed and cited the cases ofDPMS LTD & ANOR. V. AKERELE 2018 LPELR-45532 CA and GBADAMOSI V. KABO TRAVELS LTD. 2000 8 NWLR 668 243. Therefore, the Court was correct in declaring the Appellant’s act illegal and the award of damages in order and cited the cases of OKWEJIMINOR V. GBAKEJI 2008 1 SC PT. 111 263 and CHIA V. FIRST BANK & ANOR. 2018 LPELR-44140 CA. He argued that the Respondent was not wrong to claim both general and punitive damages in one single action and cited in support the cases of BRITISH AIRWAYS V. ATOYEBI 2014 13 NWLR PT. 1424 P. 253 and KABO AIR LTD. V. MOHAMMED supra. That, the Appellant’s conduct was malicious, fraudulent, insolent and in flagrant disregard of the regulatory laws in the telecommunication industry in Nigeria.

He submitted that in spite of the overdue time of delivery of the judgment in the instant appeal, the Court still showed full grasp of all witnesses’ evidence at the time of judgment writing. He argued that the learned Appellant’s Counsel also contributed to delaying the Court as it was late as July 26th, 2018, when it forwarded additional list of cases to the Court. That, the allegation of miscarriage of justice cannot hold and in conclusion urged that, the appeal be dismissed in the interest of justice.

THE POSITION OF THE COURT
SOLE ISSUE
Whether or not the Court below was right, given the evidence before it, to enter judgment in favour of the Respondent, whether the delivery of judgment after the mandatory Ninety (90) days occasioned miscarriage of justice and whether Exhibit 5 was legally inadmissible and could form the basis of the judgment.

Having very carefully considered the Record and the briefs of both sides for and against the instant appeal, I proceed thus in the resolution of the singular Issue adopted which for ease of reference has been reproduced above.

It is elementary as it is long settled that, civil cases are

proved on the preponderance of evidence or balance of probabilities. Burden of proof is on the party who asserts a fact and has to prove same with cogent and credible evidence for his case not to fail. When the burden of proof is discharged, it then shifts to the defence and continues to shift. A party is not allowed to rely on the weakness of the case of the opposing party, rather on the strength of his case. See the cases of DAODU V. NNPC 1998 2 NWLR PT. 538 355, KALA V. POTISKUM 1998 3 NWLR PT. 540 1, ITAUMA V. AKPA-IME 2000 7 SC PT 11 24, ELIAS V. DISU 1962 1 ALL NLR 214, LONGE V. FBN PLC. 2006 3 NWLR PT. 967 P. 228, IMAM V. SHERIFF 2005 4 NWLR PT. 914 P. 80, ELIAS V. OMO-BARE 1982 2 SC P. 25 and AGBI V. OGBEH 2006 11 NWLR PT. 990 P. 65.

The Court below whose primary duty is to evaluate evidence and to ascribe probative value to same in its performance of this privileged role, made some findings

and its decision thereupon is herein being appealed. I shall begin the determination of this appeal with the consideration of its findings.

The brief issue to be resolved centres around the claim of the Respondent that the Appellant and its agent breached their network service agreement with him as there were always unsolicited calls which violated his right to privacy and unwarranted deductions of his airtime not from his use. And in spite of his complaints to the Appellant, no deserved attention was given and he had to institute the action at the Court below.

On the other hand, the Appellant denied the allegations and that the Respondent’s action is speculative and the calls must have been from the Value Added Services licensed provider by the NCC and that the Respondent subscribed to some of the products by them.

The Respondent in proof of his case amongst others tendered Exhibit 5, the print-out messages to his phone which carried the date, time and the number that sent the unwanted messages. The messages printed out were admitted in evidence as Exhibit 5. The Appellant objected to the tendering of the SMS messages at the trial citing

Section 84 of the Evidence Act, that, there ought to be a certificate before computer generated evidence will be admitted. The Court held at the hearing that the document, SMS messages, sought to be tendered were not computer generated document, they were the SMS messages sent to the Respondent’s phone, very relevant to the issue at hand and he was the one seeking to tender them. The Court on that note admitted them and were marked Exhibit 5. See pages 317-320 of the Record.

According to the Court, the Exhibit “will help this Court to fully and finally consider determine and resolve the issues in dispute between the parties in this case … admitting same was the right (sic) to do because due processes of law were followed …”
See page 298 of the Record.

The Court refused to expunge the Exhibit. It found there from that, the Respondent continued to get unwarranted and unsolicited messages and monetary deductions long after he first complained to the Appellant about violation of his privacy, and after he had entered the DO NOT DISTURB facility as instructed by the Appellant. The Court discountenanced Exhibit 7, the terms and

conditions of the contract, between the Appellant and Respondent, that, it would not avail it in respect of its obligations to the Respondent. The Court found that the Appellant breached the Respondent’s right to privacy by giving access to his mobile number to the agents and marketers who sent unsolicited messages and deducted money from him without his consent. The Court found from Exhibit 4, the CTC of the Guardian Newspaper publication, that the NCC issued final warning to the Telecommunication firms to desist from sending unsolicited messages to subscribers and the name of the Appellant was cited along other similar service providers. See page 301 of the Record. The Court in that regard stated thus on page 301 of the Record:
“The above shows and further confirmed that there was a menace, there has been a warning to the Defendant and other operator like them even before the Plaintiff came to complain.”

That in spite of the publication of 12/9/16, the Appellant continued with the menace till November, 2016 months after the Respondent’s complaint. As earlier stated, the Court found that the VAS and the Appellant are the same and the Appellant

had the responsibility to inform the VAS and ensure that they followed the law and the order of the NCC. Further on page 302 of the Record, the Court stated thus:
“Attaching this Exhibit 4 further buttress (sic) and concretized the claim of the Plaintiff. By that Exhibit 4, the Plaintiff strongly established and proved his case placing no one in doubt. Without doubt, that piece of evidence is very credible and warrants the grant of the reliefs sought by the Plaintiff.”

The Court on Exhibit 6 had this to say: “It is imperative to state (sic) this Court will not regard Exhibit 6 as hearsay evidence as sought by the Plaintiff, as it has a right to do so.”
See page 303 of the Record.

The Court posited that it is not hearsay because it is an evidence of the Appellant’s received from its department, the facts contained therein though not direct from the DW1 is still the evidence of DW1 and submission of the Appellant. And found as follows on page 304 of the Record:
“A critical look at the said evidence shows that the Defendant well aware of the complaint made by the Plaintiff. It also confirmed that they continued with the menace

complained of. It confirmed that for reason best known to them, they continued the deduction of money from the Plaintiff’s airtime for their own gain and benefit. The writer of most messages to the Defendant head office was angry with them stating that they have not stopped the menace. It equally showed that the menace continued even after the warnings, long before the last meeting.”
It then concluded thus in that regard on page 305 of the Record:
“The content of the Exhibit 6 is very relevant to the issue in dispute especially the E-mail of the 9/11/16.”

The Court further found as follows in respect of the defence of the Appellant on the VAS as follows on page 306 of the Record: “The e-mail exchanged by the Defendant and their so called partners shows that they are one and the same with their partners. So whatever “Sin” or breach by either affects all of them…”

It then concluded on the overall that “there is no merit in the defence of this case” and judgment was entered for the Respondent.

Having very carefully gone through the proceedings at the Court below one finds on the whole that the findings of the Court all

through were to the effect that the Appellant was in breach of the network service contract with the Respondent, did not attend to the complaints of the Respondent in spite of the steps he took and the Appellant’s promises to remove the objects of his complaints and also the deductions persisted. See pages 304, 305 and 306 of the Record. From the evaluation by the Court, Exhibits 4, 5 and 6 stood out as the anchor for the case and the Court found most firmly upon them. However, the learned Appellant’s Counsel urged that Exhibit 5 be discountenanced as in violation of Section 84 of the Evidence Act, that Exhibit 6 showed that the Appellant was not liable for breach to the Respondent and that the monetary awards were wrong, ought not to have been made. Therefore he sought that they be set aside.

From the Record, Exhibit 6 in my considered view and humbly cannot assist the defence of the Appellant, in that it continues to be responsible to the Respondent based on the network service contract between the two regardless of the VAS interventions. The point as one finds and which appears to be the pattern of the operation between the Appellant is that the VAS

services go through the Appellant’s website/platform because they have no line by way of SIM card. It is the Appellant that is seen and that maintains a contract with the Respondent based on its SIM card given to the Respondent. See pages 335 -337 of the Record, the hearing, particularly the evidence of the DW1. There is no contract between the VAS and the Respondent and the Respondent properly lodged all the complaints with the Appellant. In my view and humbly, whether or not the Respondent subscribed to some products as the DW1 argued it did not remove the duty owed to the Respondent by the Appellant to attend to his complaints of being bombarded with unsolicited messages. From the evidence which was not challenged, it was the Customer care department of the Appellant that he lodged his complaints and the Department did not deny knowledge of his relationship with the Appellant. He was informed of the steps to take to put a stop to unsolicited messages. There was no challenge of the fact that he reported that the messages continued after he took the steps instructed by the Appellant and the latter’s failure to further respond. The consequent institution of

the action at the Court below. One agrees with the finding of the Court that the Appellant failed in its responsibility in that regard towards the Respondent to the effect that he was disturbed by the unsolicited messages and the unwarranted deductions from his airtime.

As regards Exhibit 5, the Appellant argues that it be expunged for non-compliance with Section 84 of the Evidence Act 2011 as amended.

It is trite and settled that admissibility of evidence is governed by Section 6 of the Evidence Act. A piece of evidence is admissible once it is found relevant and irrespective of how it was obtained unless the evidence be it oral or documentary, is excluded by statutory provision. The Appellant’s argument in respect of Exhibit 5 is that it may be relevant but has not complied with the requirement of other statute, a precondition for admissibility as it was sent to the Respondent’s phone and printed by him from another computer. In my view and humbly, the step taken by the Respondent is the reason why one is unable to agree with the learned Appellant’s argument in the particular circumstance of Exhibit 5. The Respondent retrieved some of the

messages sent to his phone by the Appellant and typed them out. It is necessary to bear in mind that the messages were not public document or for the public domain, they were sent to the Respondent through the registered line he has with the Appellant. Further, the Respondent put the Appellant on notice to produce the certified true copies of a comprehensive printout which it failed to do. See page 7 of the Record. Having done all the foregoing, it will not be substantial justice for the Respondent to be deprived of relevant evidence as Exhibit 5 for his case due to no fault of his, on the basis of Section 84 of the Evidence Act. Whether or not he will get judgment is another matter entirely, he should not be disallowed to present his case before the Court with the necessary evidence for which he gave notice to the Appellant, the custodian of the comprehensive printout. Failure to produce the comprehensive printout on the part of the Appellant brings it under the presumption that such document if produced would be against it. In my considered view and humbly, Exhibit 5 as held by the Court remains part of the pieces of admitted evidence in the Respondent’s

case, it will not be expunged. If that be the position, the reliance on same by the Court is proper and correct in the circumstance of this appeal.

On the monetary awards, one needs to state that the objective of an award of damages is to give the successful party compensation for the damage, loss or injury he has suffered. The recognized heads of damage by law are divisible into, pecuniary and non-pecuniary loss. Money is awarded not as a replacement for other money but a substitute for that which is generally more important than money, it is the best that the Court can do in the circumstance. See the case of AGBANELO V. UNION BANK OF NIGERIA SC 2000 7 NWLR PT. 666 P. 542.
It is a settled principle which evolved over time by decisions of the apex Court that an appellate Court will not upset an award of damages merely because it might have awarded a different sum if it heard the case itself. See the case ofCHIEF F.R.A WILLIAMS V. DAILY TIMES OF NIGERIA LTD. For an appeal to succeed against the award of damages, the Appellant needs to show that the trial Court proceeded upon some wrong principle of law, that the award was an entirely erroneous

estimate or that it was unreasonably excessive. From the foregoing stated position of the law therefore, one shall consider the submissions of the Appellant on the monetary awards made by the Court below.
I have very carefully considered the circumstances of this appeal, the Record before this Court on the whole and one will re-echo and state as per the apex Court in the case of ELIOCHIN NIG. LTD. & ORS V. MBADIWE 1986 LPELR 1119 SC, that “The primary object of an award is to compensate the plaintiff for the harm done to him or a possible secondary objective is to punish the defendant for his conduct in inflicting that harm. Such a secondary object can be achieved by awarding, in addition to the normal compensatory damages, damages which go by various names to wit; exemplary damages, punitive damages, vindictive damages, even retributory damages can come into play whenever the defendant’s conduct is sufficiently outrageous to merit punishment as when it discloses malice, fraud, cruelty, insolence, flagrant disregard the law and the like”. See also the cases of UKPAI V. OMOREGIE & ORS. 2019 LPELR-47206 CA and EZEAGU V. NWONU 2016 LPELR – 40164 CA.

The Respondent established breach of contract and invasion of his privacy as correctly found by the Court. Where there is a legal wrong, there is a remedy, ubi jus, ibi remedium. Having thoroughly considered the circumstance of the case and the awards globally, one is of the considered view that the general damages be reduced to the sum of N2,500,000.00.

Punitive damages which is awarded where the Defending party acted with malevolence, spite, high handedness, malice, aggression insolence, aggravating the Claimant’s injury to his feelings. See the cases of ELIOCHIN V. MBADIWE supra; UDOFEL LTD. V. SKYE BANK PLC. 2014 LPELR-CA/C/201/2012, WILLIAMS V. DAILY TIMES NIG. LTD. supra and ILEREMO V. CHIEKWE 1991 2 NWLR 173 316.

From the Record, one is able to agree with the Court’s finding as to the tardy/insolent manner the Appellant handled the Respondent’s case and not as caring as expected of its customer’s problems in enjoying the service being paid for. Unnecessary time was being wasted and it would appear as if the Respondent had to beg and run after the Appellant before his matter could be resolved with the efforts being more from his side

in order to get result. See pages 299 to 306 of the Record. One agrees from the record that there needs to be punitive damages, however, not in the awarded sum, as it is not primarily to compensate the wronged party, the Respondent herein, but to punish the party on the wrong, the Appellant, and deter it from similar behavior in the future. Therefore in my considered view, the awarded sum is hereby reduced to the sum of N1,500,000.00.

The submission to the effect that the claim for damages for the credit/airtime deducted from the Respondent’s mobile number is in the nature of special damages is correct. Indeed, such claim ought to be specifically pleaded with particulars in respect thereof and not a mere estimated value and must be strictly proved. The Respondent in his testimony during cross-examination stated that it was a “cumulative deduction” but no details of how the sum of N2 Million he put to it was arrived at. It must be strictly proved which does not mean unusual proof or beyond reasonable doubt. In other words, there is need for credible evidence of such character as would suggest that the party claiming is entitled to such an award. See the

cases of EZENWA BROS. NIG. LTD. V. ONA-JONES NIG. LTD, 2012 LPELR-9789 CA, ODULAJA V. HADDAD 1973 11 SC 357. One fails to find any evidence or particulars in respect of the estimated value of airtime placed before the Court and for that reason, that award was made in error and as empowered, it is hereby set aside.

It is important to state that there appears to be no appeal on the award of the sum of N2,000,000.00 as cost of the Respondent’s suit which from the way it was argued in the Appellant’s brief, appears to be relief (f) the cost of the action. Though the Appellant made submission on it in its brief on pages 24 to 26 but carefully going through the Appellant’s Notice of Appeal, one is unable to find any ground of appeal in that regard. Grounds 1 and 2 are on Exhibit 5, Ground 3 on the issue of the VAS, Ground 4 on general damages, Ground 5 on punitive damages, Ground 6 on the estimated value of airtime and Ground 7, the last, is on the provision of Section 294 (1) of the 1999 Constitution. Therefore, there is no ground of appeal on the cost of the action. See pages 364 – 370 of the Record. The submission in respect thereof on pages 24 to 26 of

the Appellant’s brief of argument is therefore of no moment.

The provision of Section 294 of the Constitution of the Federal Republic of Nigeria 1999, prescribes Ninety (90) days period within which judgment must be delivered after the conclusion of evidence and final written addresses. From the Record, one is unable to find that the delivery of the judgment after the period prescribed, occasioned miscarriage of justice on the Appellant. One holds this position not being unmindful of the objective, intendment and purport of the provision.

In the light of the foregoing, the sole issue herein is resolved partly in favour of the Appellant and in consequence this appeal succeeds in part. At this juncture, it is pertinent to note that the Court in reference to the reliefs did not use alphabets as contained in the Respondent’s claim. Therefore Reliefs (1) (2) (3) (4) (5) and (6) in the Judgment on page 275 of the Record are Reliefs (a) (b) (c) (d) (e) and (f) respectively on page 2 of the Record. For the sake of clarity – relief c for general damages is reduced to N2,500,000.00, relief (d) is for punitive damages is reduced to N1,500,000.00, the award in

respect of relief (e) on the estimated value of the Respondent’s airtime/credit is hereby set aside and relief (f), the cost of the Respondent’s action, there is no ground of appeal in respect thereof, it therefore cannot be reviewed unilaterally by the Court.

PETER OLABISI IGE, J.C.A.: I agree.

MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; E.O. WILLIAMS-DAWODU, JCA. I agree with the reasoning, conclusion and orders therein.

Appearances:

Mr. Adedapo Tunde-Olowu, with him, Rebecca Ebokpo For Appellant(s)

Mr. Sunday A. Ijilia, with him, ThankGod S. Alfa and Idoko Igah For Respondent(s)