MTN COMMUNICATION LIMITED v. SIDNEY C. AMADI, ESQ (2012)

MTN COMMUNICATION LIMITED v. SIDNEY C. AMADI, ESQ

(2012)LCN/5747(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 11th day of December, 2012

CA/PH/418/2010

RATIO

PLEADINGS: WHETHER PLEADINGS CAN CONSTITUTES EVIDENCE

EVIDENCE: WHETHER A PARTY IS UNDER OBLIGATION TO CALL ANY WITNESS

A party is not under any compulsion or obligation to call any particular witness to prove his case. See Dauda v. Iba (2007) 2 NWLR (pt.1018) 321. This is in accord with the long standing position of the law that it is not necessary in the prosecution of a case, in order to discharge the onus of prove lying upon, a Party, to call every available piece of evidence. It is enough if evidence called is sufficient to discharge the onus. See Adawa v. State (2003) 5 NWLR (pt. 814) 619. PER UCHECHUKWU ONYEMENAM, J.C.A.

CONTRACT: ATTITUDE OF THE COURT TOWARDS CONTRACT MADE BY PARTIES

It is correct as stated by the Appellant that parties are bound by the terms and conditions of the agreement they have freely entered into. It is the law that in matters of contract in which the terms and conditions are embodied in a written document, neither of the parties nor the court is permitted to introduce extraneous terms on which they are not in agreement. In other words, where parties are ad idem on the terms of contract, the role of the Court is to give effect to the terms without more.

See Ladipo v. Lajide (1973) 5 S.C. 207 at 225; Koiki v. Magnusson (1991) 8 NWLR (pt. 615) 492; Int. ile Ind. (Nig) Ltd v. Aderemi (1991) 8 NWLR (pt. 614) 268; kayadee Ventures Ltd v. The Hon. Minister of Fed. Capital Territory (2010) LPELR- SC. 264/2002. PER UCHECHUKWU ONYEMENAM, J.C.A.

CONTRACT: MEANING AND NATURE OF AN EXCLUSION CLAUSE

Exemption, Exception, Limitation or Exclusion clause is a contractual provision providing that a party will not be liable for damages for which that party would otherwise have ordinarily been liable. An exemption clause may take many forms, but one common thing in all such clauses is that they exempt a party from a liability which he would have borne had it not been for the clause. In some cases the clause protects a party not only from a contractual liability but even from liability that may arise in Tort. See P. S. Atiyah; an Introduction to the Law of contract 167 (3d ed. 1991).

Simply put, an exclusion clause seeks to modify or exclude the prima facie obligations that arise when an agreement is entered.

The Courts have generally been hostile to exclusion clauses. Once there is any ambiguity in the clause, it will be construed against the person who is trying to rely on the clause. Accordingly, an exclusion clause provision must be comprehensive and obviously clear that it covers the liability. Under the common law, a party can only be availed of an exclusion clause when such party abides by the terms and conditions of the contract. PER UCHECHUKWU ONYEMENAM, J.C.A.

CONTRACT: TESTS FOR THE EFFECTIVENESS OF AN EXCLUSION CLAUSE

For an exclusion clause to be effective, it must pass at least these 3 tests:

(a) It has been incorporated into the agreement

(b) Its wording must cover the liability in question.

See Stevens & Bolton LLP March, 2012.

In International Messengers Nigeria v. Pegofor Industries Ltd. (2005) ALL NLR 234; the Court reinstated the common law rule that exemption clause is not available to a party who is in fundamental breach of a contract. PER UCHECHUKWU ONYEMENAM, J.C.A.

JUSTICES

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

Between

MTN COMMUNICATION LTD. Appellant(s)

AND

SIDNEY C. AMADI, ESQ. Respondent(s)

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): The Appellant lodged this appeal against the judgment of Rivers State High Court, Port Harcourt Judicial Division in Suit No. PHC/1718/2005 delivered by Enebeli A. on 31st March, 2010 as a result of the action commenced by the Respondent on 18th October, 2005.
The Respondent’s claim against the Appellant as stated in paragraphs 15 and 16 of his statement of claim dated 18th October, 2005 is as follows:
“(15) A DECLARATION that the blockade of the Plaintiffs Sim Card Number 08033168369 by the Defendant and thus depriving the Plaintiff the use of same is illegal.
(B) A MANDATORY ORDER directing the Defendant to remove the blockade and restore the use of the plaintiffs sim card Number 08033169369.
(C) The sum of N1, 500.00 as special damages for the loss of use of call credits in the same value which the plaintiff recharged his GSM Sim Card on 14/10/2005 and which the Defendant has deprived the plaintiff of the use of same.
(D) The sum of N5M being and representing general damages against the Defendant for its negligence which caused the loss of use of Plaintiffs sim card Number 08033168369.
(E) A PERPETUAL INJUNCTION RESTRAINING the Defendant from howsoever blocking the Plaintiff’s Sim Card Number 08033168369.
(16) In the alternative, the Plaintiff shall also rely on the doctrine of res ipsa loquitur.
On 3rd February, 2006, the Respondent filed list of witness, written statement on oath and an affidavit in confirmation of messages in Sim card No. 08033168369 with a photocopy of the Starter park, all being documents that were relied upon at trial.
The Appellant filed her statement of defence, list of documents, written statement on oath of her sole witness with leave of court obtained on 18th July, 2006.
At hearing, the Respondent testified as the sole witness – CW1. He tendered 3 (three) documents – Exhibits A, ‘B’ and ‘C’ to wit; – an Affidavit, his MTN Starter Pack No, 892340000001794624 and a Nokia Handset respectively, in proof of his case. On her part, the Appellant’s sole witness -DW 1, Mrs. Asamine Anueyiagu, the Regional Service Manager of MTN Port Harcourt, tendered 2 (two) documents Call Details of Respondent between 1st August, 2005 and 27th February, 2005 and the terms and conditions for purchase and or use of a Sim only Starter Pack as Exhibits ‘D’ and ‘E’ respectively.
At the conclusion of hearing, counsel on both sides addressed the Court, where upon the learned trial Judge subsequently delivered his judgment in favour of the Respondent. Dissatisfied with the decision of the lower court, the Appellant filed a Notice of Appeal with 4 (four) grounds on 10th May, 2010.
Briefs were properly filed and exchanged. The Appellant’s brief dated 1st November, 2010 but filed on 3rd November, 2010 was prepared by Prince C. Nwadike Esq. He distilled the following 3 issues for the determination of this appeal;
(A) “Whether the learned trial Judge was right in entering judgment in favour of the Claimant/Respondent when the Claimant/Respondent failed to prove his case on the preponderance of evidence as required by law.
(B) Whether on a proper evaluation of the evidence, oral and documentary, the findings of the learned trial Judge that the Defendant/Appellant is in fundamental breach of the contract by failing in her duty to provide Telephone services, notwithstanding the network failure experienced by the Defendant/Appellant on 14th – 18th October, 2005 and the provisions of terms and conditions of contract entered into by Claimant/Respondent with the Defendant/Appellant.
(C) Whether the learned trial Judge was right by awarding the sum of N1, 000,000.00 (One Million Naira) only to Respondent as general damages in absence of evidence of any financial loss on which the assessment of damages could have based.
For the Respondent, his brief was settled by Worgu Boms Esq. who formulated 2 issues for determination. The 2 (two) issues are:
(i) “Whether the trial court was right when it held that the Respondent had proved his claim.
(ii) Whether the trial court was right when it held that the Respondent deserved to be compensated in general damages for the wrongful act of the Appellant”.
On 6th of November, 2012 when this Appeal was heard, Mr. P. C. Nwadike for the Appellant identified and adopted Appellant’s brief relying on same as their argument in this appeal. He urged the Court to allow the Appeal and set aside the Judgment of the learned trial Judge delivered on 31st March, 2010. Thereafter, Mrs. D. Fubara-Manuel for the Respondent in identifying, adopting and relying on their brief urged the Court to dismiss the appeal and uphold the decision of Enebeli A. delivered on 31st March, 2010 in Suit No. PHC/1718/2005.
The facts of the suit at the lower court are briefly stated hereunder.
The Respondent a subscriber of the Appellant (MTN) with an MTN Sim Card No. 08033168369 issued with MTN starter Pack, Exhibit B; on 14th October, 2005 at about 9:38:06 am, paid for and received N1,500.00 (One Thousand, Five Hundred Naira) only call credit which was loaded into his sim card via the Appellants virtual Top up (V.T.U.) mechanism through an MTN Dealer with MTN Sim Card No. 2348037725787 (08037725787). On same date, the Respondent sought to call his wife, on her phone no. 08036739966 at about 15:03:28 and 15:33:50 but was embarrassed when he heard a voice message from the Appellant that he had insufficient call credit. He could not also make business calls. When he accessed his phone to confirm his credit status; he found out that the Appellant had credited him with credit worth N150,000.00 (One Hundred Fifty Thousand Naira) only as against the N1,500.00 (One Thousand, Five Hundred Naira) only call credit he paid for. The Respondent stated that he placed a call on the friendship centre of the Appellant and lodged this complain through a road side MTN call vendor same day. On 15th October, 2005 the Appellant replied him through a message to say the irregularities had been corrected and that he can make calls as soon as he recharges. It was also the Respondents case that the Appellant blocked his phone on that 14th October, 2005 till 18th October, 2005 when he filed this Suit. On their own the Appellant stated that she had network problem on 13th October, 2005 which resulted in her mistakenly crediting subscribers huge amounts when the subscribers recharged their lines. It was her case that the Respondent was one of such subscribers who was so credited and his was to the tone of N150,000.00 (One Hundred and Fifty Thousand Naira) only. The Appellant added that when she discovered this anomaly which was due to network failure, she effected corrections and sent generic SMS to all affected subscribers, the Respondent inclusive. However, by Exhibit D tendered by the Appellant, she showed that the Respondent placed a call to his wife at about 15:04 pm on 14th October, 2005 for which he was charged N18.18k (Eighteen Naira, Eighty Kobo) only. Under Cross Examination, the Appellant through her sole witness Dw1 admitted that occasions arise when a person called may not be able to effectively communicate with the caller although the call credit will read as if a successful call has been made.
It is against this background of facts that this Appeal was brought. I have examined the issues distilled by counsel to the parties respectively; and have come to the conclusion that the Respondent’s issues cover the 3 issues raised by the Appellant except for locution. The 2 issues as formulated by the Respondent will effectively and directly settle this dispute. I therefore adopt them for the determination of this Appeal.
On whether the trial judge was right when he held that the Respondent proved his case; Mr. Nwadike submitted that the only evidence led by the Respondent remains exhibits ‘A’, ‘B’ and ‘C’. He argued that the fact that he did not call one Faith Ndah and Ogbonna to prove the allegation that on 14th October, 2005 he sought to load his Sim through the aforementioned persons without success means he abandoned that aspect of his pleading as pleading does not constitute evidence. See Obmiami Brick & stones (Nig) Ltd v. African Continental Bank Ltd. (1992) 3 NWLR (pt. 229) 260 at 293; B. J. Ngalari v. Mothercat Ltd. (1999) 12 SSNJ, 101 at 120. Relying further on the Supreme Court decision in International Bank for West Africa Ltd v. Imano (Nig) Ltd. (2001) 3 SCNJ, 160 at 182-183; the learned counsel submitted that the learned trial Judge ought to have resolved the issue against the Respondent, Learned counsel urged the court to resolve the issue against the Respondent.
In reply, Mr. Boms referred extensively to paragraphs of his statement on oath and the record generally to show that the Respondent proved his case. He referred particularly to paragraph 3 of page 5, paragraph 4 of page 9A, pages 2, 5 – 9, pages 41, 51, 52 and 53 of the record; Exhibits D and E tendered by the Appellant to buttress the fact that the Respondent proved his case. He emphasized that in civil matters, the law requires only proof on preponderance of evidence. See Dibiamaka v. Osakwe (1989) 3 NWLR (pt. 107) 106 at 113.
On the Respondent’s failure to call Faith Ndah and Ogbonna to testify, Mr. Boms for the Respondent submitted that it is not every fact pleaded that a party must lead evidence on to succeed in a case. He argued that the most important requirement is for the Plaintiff to adduce evidence in support of the central issue and issues joined. See Awoyoolu v. Aro (2006) 4 NWLR (pt. 971) 481 at 496 paragraphs D – F.

The law is settled that pleading does not have the connotations of evidence – and cannot be understood as such in the determination of the merit or otherwise of a case. Accordingly, a party who seeks judgment in his favour is required by law to produce adequate credible evidence in support of his pleading. Where there is none, then the averments in the pleading are deemed abandoned. The same principle applies to a defendant who relies on his defense for the purposes of pulling down the case against him. See Arabambi v. Advance, Beverage Ind. Ltd. (2005) 19 NWLR (pt. 959) 1.
The Appellant’s contention is that, as the Respondent did not call one Faith Ndah and Ogbonna to give evidence, he abandoned that aspect of his pleading since pleading does not constitute evidence.
The Respondent’s pleading as it relates to faith Ndah and Ogbonna is at paragraphs 10, 11 and 12 of the Respondents statement of claim. I shall herein reproduce same;
10. “The Plaintiff immediately called one Faith Ndah who runs the shop of the MTN VTU on his phone number 0803706434 and asked him to recharge the Plaintiffs phone with call credit worth (N3,000.00), Three Thousand Naira.
11. Mr. Faith Ndah then informed the Plaintiff that he was in Lagos and would ask his staff to recharge Plaintiffs Nokia GSM Handset.
12. The Plaintiff subsequently received a call from one Ogbonna who is a staff of Mr. Faith Ndah and who informed Plaintiff that he had made repeated attempts to recharge Plaintiffs phone but it was not possible as a result of “network problem”. See page 6 of the record.
In his evidence at paragraphs 11, 12 and 13 of the Respondent’s statement on oath, the Respondent stated as follows;
“11. That I immediately called one Faith Ndah who runs the shop of the MTN VTU on his phone number 08037064344 and asked him to recharge my phone with call credit of N3, 000.00.
12. That Faith Ndah told me that he was in Lagos but asked one Ogbonna, his staff, to recharge my phone with N3, 000.00 call credit.
13. That the said Ogbonna subsequently called me and informed me that he had made repeated attempts to recharge my phone but that it was not possible as a result of “Network problem”.
See page 9B of the record.
The Respondent’s evidence reproduced above supports his averments at paragraphs 10, 11 and 12 of his pleading. While the principle of law which the Appellant urges the Court to invoke is correct, See Obmiami Brick & Stones (Nig) Ltd v. African Continental Bank Ltd. (1992) 3 NWLR (pt. 229) 260, the said principle applies only in the absence of evidence in support of an averment in pleading. The apparent quarrel of the Appellant is that neither Faith Ndah nor Ogbonna was called to give evidence. The Appellant, with due respect misconstrued the applicability of this principle since there is evidence in support of the averments in relation to Faith Ndah and Ogbonna. I hold that the issue of the Respondent abandoning his pleading does not arise. I will quickly put on record that the fact that it was only the evidence of the Respondent that supported the averments in question as neither Faith nor Ogbonna was called to testify does not affect the strength of the Respondent’s case.
A party is not under any compulsion or obligation to call any particular witness to prove his case. See Dauda v. Iba (2007) 2 NWLR (pt.1018) 321. This is in accord with the long standing position of the law that it is not necessary in the prosecution of a case, in order to discharge the onus of prove lying upon, a Party, to call every available piece of evidence. It is enough if evidence called is sufficient to discharge the onus. See Adawa v. State (2003) 5 NWLR (pt. 814) 619. In the instant case, the learned trial Judge upon the preponderance of evidence and balance of probabilities came to the conclusion that the Respondent discharged the burden of proof on him to entitle him to succeed in his claim without calling any other witness. I do not find reason, to fault the learned trial Judge’s conclusion since the discharge of burden of proof on a party is not dependent on the number of witnesses the party calls. The Respondent was under no legal obligation to call more than one witness in proof of his case, especially when his sole witness was believed by the Court as presenting cogent and credible evidence in proof of his claim. See Agbi v. Ogbeh (2006) 11 NWLR (pt. 990) 65.
From the foregoing, I hold that the Appellant has failed to successfully urge the Court to hold that the Respondent’s averments at paragraphs 10, 11 and 12 of his pleading were abandoned. The learned trial Judge was therefore right when he failed to resolve the issue against the Respondent for the sole reason that he abandoned his pleading. Issue 1 is resolved in favour of the Respondent.
Issue 2
The Appellant submitted that the Respondent’s action at trial Court was on breach of contract and damages for negligence because of Appellant’s network failure between 14th-18th October, 2005. Learned counsel for the Appellant referred to Articles 10, 11, 16, 20.2 and 21 of Exhibit E – terms and conditions for purchase and/or use of a Sim only Starter Pack which the Respondent under cross examination admitted he saw when he bought the Sim only Starter Pack. He submitted that parties are bound by the terms of their written contract. He further submitted; where there is any disagreement between parties to such written agreement on any particular point, the only reliable evidence and legal source of information to resolve the claim is the written contract and in the instant case Exhibit E particularly Article 21. See Lasmie v. Data Processing Maintenance & Services Ltd (2005) 18 NWLR (pt. 959) 438; Ezemba v. Ibeneme (2004) 14 NWLR (pt. 894) 617.
It was therefore, the learned counsel’s contention that assuming without conceding that the Appellant is in fundamental breach of contract between the Respondent and her, because of network failure on 14th – 18th October, 2005, the Appellant, its employees and/or her agents are not liable for breach of contract and/ or any negligent act as stated in Exhibit E.
Finally Mr. Nwadike, learned counsel for the Appellant while agreeing that the learned trial Judge had the discretion to award general damages based on guiding principles; maintained that assuming without conceding that the Respondent’s action was for breach of contract and negligence of Appellant in providing telephone services to the Respondent, the Respondent did not lead credible evidence of the outlay of his earning and income and as such the learned trial Judge erroneously estimated the damages which the Respondent is not entitled to. See Allied Bank Nig. Limited v. Akubueze (1997) 6 NWLR (pt. 509) 784. He submitted that a claim for damages does not become one for liquidated damages merely because a specific amount was claimed and the Court should have heard evidence before giving the Judgment. See African Continental Bank Plc. v. Akor Daniel Nwankwo (2007) ALL FWLR (pt. 366) 780.
Learned Counsel urged the Court to answer the issue in favour of the Appellant.
Mr. Boms in reply contended that the Appellant in her statement of defence averred that she had network problem on 13th October, 2005 which was the reason why the Respondent and other subscribers of the Appellant could not make calls. See paragraph 5 of page 14 and paragraph 5(b) of page 29 of the record. Learned counsel for the Respondent invited the Court to note this referred Appellant’s averment as against his complaint that the Appellant deprived him of the use of his phone from 14th – 18th October. Mr. Boms further invited the Court to look at Exhibit D and E tendered by the Appellant and submitted that while Exhibit D confirmed that the Appellant negligently prevented him, from making calls from 14th – 18th October, 2005 when he filed this Suit. It was learned counsel’s submission that the Appellant was in fundamental breach of the terms of contract particularly paragraph 16 of Exhibit E (See page 26 of the record) and as such the exemption clause in Exhibit E cannot avail her.
On the amount of damages awarded, learned counsel for the Respondent contended that the learned trial Judge did not rely on wrong principles of law, neither did he act arbitrarily nor based his award on speculated facts but on clear facts which were proven to the satisfaction of the Court. He submitted that in making awards of general damages the common principle is that general damages are usually awarded at the discretion of a Court to assuage the loss suffered by a claimant from the acts of a defendant based on an inference the Court had drawn during the trial. See U.B.A Plc v. B. T. L. Ind. Ltd (2006) 19 NWLR (pt. 1013) 61 at 143 paragraphs 9 – 11.
Counsel urged the Court to resolve the issue in favour of the Respondent.
In resolving issue 2, the best start point is to reiterate the case of the Respondent as earlier stated in this Judgment when the facts of the Suit at the lower Court were brought to bare. See paragraphs 3 – 14 at pages 5 – 6 of the record; paragraphs 4 – 15 at pages 9A – 9B of the record, pages 51 – 53 of the records.
From the record therefore, the Appellant is under a misconception in their understanding of the case of the Respondent and that informed the way out submission of the learned counsel for the Appellant. For clarity, I emphasize that the Respondent’s case was not on breach of contract and damages for negligence because of the Appellant’s Network failure that occurred between 14th-18th October, 2005 as vigorously argued by the Appellant’s counsel in Appellant’s issue 2. The right picture of the Respondent’s case was aptly captured by the learned trial Judge in his findings and conclusions as follows;
“The Defendant blocked Claimant’s phone on 14th October, 2005 till 18th October, 2005 when he filed this Suit. The time and date material for the determination of this case is 14/10/05 to 18/10/05 when the action arose. It has nothing to do with 13/10/05 when the Defendant claim to have had network problem. And the claim by the Defendant (DW1) under cross-examination that they experienced network problem between 14/10/05 and 18/19/05 is an afterthought and discountenanced hereby because by their Statement of defence and the 17 paragraph written statement of D.W.1 (Evidence) there is no where such fact is pleaded or given in evidence”. See page 115 lines 28 – 33 to page 116 of the record.
These findings of the learned trial Judge flow from the pleadings and evidence on record, I cannot fault them, I adopt and uphold same as correct. The law stands that once evidence led in support of facts pleaded is admissible, relevant and uncontradicted and not discredited by cross-examination; a Court can legally rely on it. See Obmiami Brick & Stone (Nig) Ltd v. A.C.B. Ltd (1992) 3 NWLR (pt. 229) 260 at 294; From the findings and conclusions of the learned trial Judge owing to the Respondent’s uncontradicted and undiscredited legal evidence in support of his pleadings, which I have affirmed, I hold that the learned trial Judge was right when he held that the Appellant blocked the Respondent’s phone line from 14th – 18th October, 2005 and deprived him of the use of it for five days.
It is correct as stated by the Appellant that parties are bound by the terms and conditions of the agreement they have freely entered into. It is the law that in matters of contract in which the terms and conditions are embodied in a written document, neither of the parties nor the court is permitted to introduce extraneous terms on which they are not in agreement. In other words, where parties are ad idem on the terms of contract, the role of the Court is to give effect to the terms without more.
See Ladipo v. Lajide (1973) 5 S.C. 207 at 225; Koiki v. Magnusson (1991) 8 NWLR (pt. 615) 492; Int. ile Ind. (Nig) Ltd v. Aderemi (1991) 8 NWLR (pt. 614) 268; kayadee Ventures Ltd v. The Hon. Minister of Fed. Capital Territory (2010) LPELR- SC. 264/2002.
In the instant, the terms and conditions of contract between the Appellant and Respondent is Exhibit E – in which case the Courts are only allowed to interpret same as it relates to the parties. The Appellant and Respondent both relied on Exhibit E in fighting their case, howbeit, Articles 21 and 16 respectively. While the Appellant relied on Article 21 to urge the Court to hold that assuming the Appellant is in fundamental breach of her contract with the Respondent, neither the Appellant, its employees and/or its agents are liable for breach of the contract. Said Article 21 of Exhibit E provides:
“Without detracting from the other provisions of these terms and conditions, MTN shall not be liable to any loss or damage suffered by you and whether same is direct or consequential, in the event that such loss or damage was caused by negligent act or omission on the part of MTN, its employees and/or its agents”.
The Respondent on his own contended that as the Appellant was in breach of Article 16, the said Appellant was in fundamental breach of the terms of the contract for which the exclusion clause in Article 21 cannot avail him. See I. A. Ogwu v. Leventis Motors Ltd (1963) ANLR (Re- Print Edition) 507 at 511 – 512.
Article 16 of Exhibit E provides:
“For security reasons, should you enter an incorrect PIN code more than three (3) consecutive times, your SIM card will be “blocked” (i.e. will not be allowed to Access the Network) in which event you shall not be able to make or receive calls on the Sim Card. The block can be removed by entering, when prompted by your Terminal Equipment, the *PUK* number which you can obtain by calling MTN Customer Service.”
Article 21 of Exhibit E is an exclusion clause. Exemption, Exception, Limitation or Exclusion clause is a contractual provision providing that a party will not be liable for damages for which that party would otherwise have ordinarily been liable. An exemption clause may take many forms, but one common thing in all such clauses is that they exempt a party from a liability which he would have borne had it not been for the clause. In some cases the clause protects a party not only from a contractual liability but even from liability that may arise in Tort. See P. S. Atiyah; an Introduction to the Law of contract 167 (3d ed. 1991).
Simply put, an exclusion clause seeks to modify or exclude the prima facie obligations that arise when an agreement is entered.
The Courts have generally been hostile to exclusion clauses. Once there is any ambiguity in the clause, it will be construed against the person who is trying to rely on the clause. Accordingly, an exclusion clause provision must be comprehensive and obviously clear that it covers the liability. Under the common law, a party can only be availed of an exclusion clause when such party abides by the terms and conditions of the contract.
For an exclusion clause to be effective, it must pass at least these 3 tests:
(a) It has been incorporated into the agreement
(b) Its wording must cover the liability in question.
(c) It must not be prohibited by statute or other law.
See Stevens & Bolton LLP March, 2012.
In International Messengers Nigeria v. Pegofor Industries Ltd. (2005) ALL NLR 234; the Court reinstated the common law rule that exemption clause is not available to a party who is in fundamental breach of a contract.
While it is correct that the Appellant and Respondent are bound by Exhibit E, it is also correct that the Appellant is exempted from liability by Articles 10, 11, 16, 20.2 and 21 of Exhibit E as submitted by the Appellant’s counsel. However, the law prohibits the Appellant from exclusion of liability when she is in fundamental breach of Exhibit E and for a breach which the exclusion provision does not unequivocally cover. By Article 16 of Exhibit E, the Appellant only has the right to block the phone line of the Respondent when he has entered an incorrect PIN code more than 3 (three) consecutive times, There is no other article in the said Exhibit E which permits the Appellant to block the phone line of the Respondent. I had earlier in this judgment upheld the findings of the learned trial Judge that this is a case of the Appellant blocking the Respondent’s line from 14th – 18th October, 2005 and not a question of network failure on 13th October, 2005. The Appellant would have been exempted from liability had the facts on record shown that there was network failure from 14th – 18th October, 2005, or on other liabilities expressly and clearly excluded in Exhibit E. Exhibit E, as rightly found by the learned trial Judge does not exclude the Appellant from liability for blocking the Respondent’s phone line when he has call credit units in his Sim Card. Rather the Appellant by Exhibit E owe the Respondent duty of care and is duty bond to provide the Respondent its telephone services once the Respondent has re-charged his Sim Card provided by the Appellant. Simple operation of contract is that where parties voluntarily agree to do an act and one of the parties neglected or defaulted from carrying out or doing what was agreed to be done, then there is a breach of that contract by the party, who neglected or defaulted in performing his or her own side of the contract – and the person responsible for the breach will be liable in damages to the other party. See Obimiami Brick & Stone (Nig) Ltd v. African Continental Bank Ltd. (supra) at 312. It is for this that I agree with the submission of the learned counsel for the Respondent and the conclusion of the learned trial Judge that the Appellant’s act of blocking the Respondent’s phone line was in fundamental breach of Exhibit E. It is also my conclusion that since there is no exclusion clause provision in exhibit E clearly covering the liability of the Appellant for blocking the Respondent’s phone line in the manner it did, the Appellant cannot to that extent rely on the exclusion clauses in Exhibit E particularly Article 21.
Accordingly, I hold that the Appellant who is in fundamental breach of Exhibit E cannot be availed by the exclusion clause in the Article.
Before I conclude on this, it is pertinent to state that contrary to the Appellant’s counsel’s contention; having gone through the record, I do not see anyway and how the learned trial Judge allowed extrinsic evidence to add to, vary, subtract from or contradict the terms of Exhibits E. Having said this, I hold that the learned trial Judge in construing Exhibit E did not offend section 132(1) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria 2004.
On the propriety of the N1,000,000.00 (One Million Naira) only, damages awarded in favour of the Respondent, the Appellant submitted that assuming without conceding that the Respondent’s action was for breach of contract and negligence, the Respondent did not lead credible evidence in proving the outlay of his earning or income. The Appellant therefore contended that the damages awarded were extremely high and as such the learned trial Judge did not exercise his discretion judicially and judiciously.
A party is said to be in breach of a contract when he acts contrary to the terms of the contract, See Pan Bisbilder (Nigeria) Ltd v. First Bank of Nigeria Ltd (2000) 1 SC 71; Cameroon Airlines v. M. E. Otutuizu (2011) LPELR – SC 217/2004.

The damages which a party ought to receive in respect of a breach of contract is such as may fairly and considerably arise according to the usual course of things from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of breach of it.
See S. B. N. Plc v. Opanubi (2004) 15 NWLR (pt. 896) 497, UBA Ltd v. Odusote Bookstores Ltd. (1995) 9 NWLR (pt. 421) 558.
The principles guiding the award of damages in tort are different from those guiding the award of damages in contract. The object of damages in tort is to put the Plaintiff in that position he would have been in, if the tort had not been committed whereas; the object of contract damages is to put the Plaintiff in the position he would have been in, if the contract had been satisfactorily performed. See Hadley v. Baxendale (1854) 9 Exch. 341; Agbanelo v. Union Bank of Niger Ltd. (2000) 4 SC (pt. 1) 233 at 245.The assessment of damages is based on restitutio in integrum (a position the injured party would have been if the contract was not breached) and not restitutio in opulentium that is giving the Claimant a windfall. See Akwa Rubber Estate v. Liv Ind. Ltd (2001) 5 NWLR (pt. 706) 408 at 423; Igbinovia v. Okomu Oil Palm Plc. (2002) 17 NWLR (pt. 796) 386 at 406 – 407; Shell DP v. Jammal Engineering Ltd (1994) 4 SC 33, Udeagu v. Benue Cement Co. Plc (2006) 2 NWLR (pt. 965) 600.
It is worthy of note however that even when an innocent party does not suffer any monetary loss, he may still successfully sue the faulting party for breach of contract and damages will be awarded to reflect infringement of his legal right. Hadley v. Baxandale (Supra).
While resolving this issue, I had earlier held that the Appellant was in fundamental breach of the terms of her contract with the Respondent, in which case the learned trial Judge was right in awarding damages in favour of the Respondent. However, I must state here that in an action for breach of contact there is no dichotomy between special and general damages. The Defendant is only liable for the loss arising from the breach.
See Multichoice v. Azeez (2010) 15 NWLR (pt. 1215) 40 at 53, Eadle Super Pack (Nig) Ltd v. ACB Plc (2006) 19 NWLR (pt. 1013).
Now whether the learned trial Judge exercised his discretion Judicially and Judiciously in awarding N1,000,000.00 (One Million Naira) damages to the Respondent depends on whether the damages awarded by the lower court;
(a) – was such that could reasonably arise naturally from the Appellant’s blockade of the Respondent’s line from 14th – 18th October, 2005.
(b) – represents restitutio in integrum as against restitution in opulentium.
To determine this I need to bring to bare the facts that were before the court. From the record, the facts before the trial court which he accepted and relied on in determining the amount of damages that would assuage the Respondent’s loss are;
(a) Respondent is a legal practitioner.
(b) Respondent is a subscriber to the Appellant and that the Appellant owed a duty of care to provide him with telephone services when he loads his phone line with Appellants call credits.
(c) Respondent loaded his phone line with N1, 500.00 (One Thousand, Five Hundred Naira) only, call credit on 14th October, 2005.
(d) Appellant unilaterally blocked the Respondents phone line from 14th – 18th October, 2005.
(e) Appellant by “d” above was in fundamental breach of her terms and conditions for use of Starter Pack.
(f) Respondent was arbitrarily deprived from; calling or receiving calls from his family, clients and forced to pay extra money to public phone vendors and discussed clients private matters in the open; the use of his N1, 500,00 (One Thousand, five Hundred Naira) only, card re-charge on his phone by reason of the blockage of his phone.
An appeal court is always wary to interfere with an award of damages by a lower court. It can only be constrained to interfere:
(a) Where the learned trial Judge acted under a misapprehension of facts, or law;
(b) Where he failed to take into account relevant matters;
(c) Where the amount awarded is low or too high;
(d) Where failing to interfere would amount to injustice.
See Cameroon Airlines v. Otutuizu (2011) LPELR – SC. 217/2004 Per Rhodes – Vivour, J.S.C. (page 31 paragraphs D – G).
With the evidence and facts on record, the learned trial Judge acted within the principles of law based on the right apprehension of facts before him as set out above. The amount of damages awarded by the learned trial Judge in my view does not constitute a windfall to the Respondent. It is reasonable owing to the status of the Respondent and the nature of his job. As well, it is my opinion that failing to interfere in the amount of damages awarded cannot cause any injustice to the parties, Therefore, I hold that the learned trial Judge exercised his discretion judicially and judiciously in the award of N1, 000,000.00 (One Million Naira) damages in favour of the Respondent. Consequently, this is not a case where this court will interfere with the N1, 000,000.00 (One Million Naira) damages awarded by the lower court.
Issue No. 2 is resolved in favour of the Respondent.
Having resolved the 2 issues in favour of the Respondent, I hold that this appeal has no merit and it is accordingly dismissed. I affirm the Judgment of the trial court delivered on 31st March, 2010 by Hon, Justice A. Enebeli of Rivers State High Court, Port Harcourt in Suit No. PHC/1718/2005
I award a cost of N50, 000.00 (Fifty Thousand Naira) only in favour of the Respondent.

A. A. B. GUMEL, J.C.A.: I have before now read the lead judgment just delivered by my learned brother, Onyemenam, JCA. I agree with all the reasoning and conclusions so ably set out in the judgment. I adopt them as mine in dismissing this appeal for lacking in merit. I abide by the order for costs in the lead judgment.

CHIOMA NWOSU-IHEME (Ph.D) J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother U. Onyemenam, JCA. I agree with the reasons therein and the conclusion that the appeal is bereft of merit.
Accordingly, I also dismiss the appeal with no order as to costs.

Appearances

Mr. P. C. NWADIKEFor Appellant

AND

D. FUBARA-MANUEL (MRS)For Respondent