IN THE COURT OF APPEAL (IBADAN DIVISION)
STANLEY SHENKO ALAGOA (Presided) JUSTICE, COURT OF APPEAL
CHIDI AOMA UWA JUSTICE, COURT OF APPEAL
MODUPE FASANMI JUSTICE, COURT OF APPEAL
MULTICHOICE NIGERIA LIMITED APPELANT
MR. BANKOLE AZEEZ RESPONDENT
STANLEY SHENKO ALAGOA, JCA (Delivering the leading judgment):
In the High Court of Justice Ibadan, Oyo State of Nigeria, the respondent as plaintiff took out a writ of summons against the appellant as defendant claiming as follows at page 6 of the record of appeal:
1. A declaration that the scrambling by the defendant of plaintiff's DSTV satellite services in October and November, 2004 when he is not in default of service charges is illegal, arbitrary and wrongful and a breach of the contractual agreement between them and the defendant.
2. Plaintiffs claim from the defendant payment of
N1,000,000,00 (one million naira only) being general damages for the loss of enjoyment and deprivation of the services of the defendant.
Pleadings were filed and exchanged by the parties and the case went on to be heard with respondent as plaintiff calling one witness Dr. Abdul Liadi Azeez as PW1 while the appellant as defendant also called one witness Mrs. Oluwakemi Shaba as DWl. A number of exhibits were tendered and admitted. Counsel for the parties submitted written addresses which they adopted and relied upon in court.
In a considered judgment delivered on the 29th June, 2006 the learned trial Judge found in favour of the plaintiff. For a fuller' appraisal, of the issues it is necessary to delve into the background facts of this case. The respondent Mr. Bankole Azeez was the 2nd plaintiff in the court below having instituted action with one Dr. Olayinka Azeez who from evidence is his father as joint plaintiffs against the appellant, a digital satellite television services business outfit. The name of Dr. Olayinka Azeez was later to be struck out by the court but nevertheless the learned trial Judge accepted his evidence in court as PWI.
Briefly, the respondent's case in the court below is that he was a subscriber to the satellite television services rendered by the appellant and he paid the sum of
N9,000.00 monthly and was regular in his payment. That amount ( N9,000.00 a month) was the sum chargeable by the appellant for a double decoder which allowed the viewing of more than one channel at a time. He paid this sum until the 2nd October, 2004 when while watching a cable news network programme, the service was scrambled and he contacted Favourite Systems Ltd. an agent of the appellant who indeed confirmed that his service had been scrambled. Upon complaint by the respondent the service was restored but the respondent was informed that the subscription fee
had been increased from
N9,000.00 to N9,550.00 monthly and the balance of N550.00 was paid by the respondent to the appellant on the 4th October, 2004. On the 1st November, 2004, the respondent's service was again scrambled by the appellant and the respondent had to travel to the appellant's office in Lagos to lodge a complaint before the service was reconnected by the appellant. It is on the basis of these facts that, the respondent took out a writ against the appellant. The learned trial Judge in delivering judgment for the respondent on the 29th June, 2006 stated as follows:
The scrambling by the defendant of the plaintiffs DSTV services on the 2nd October, 2004 and 1st November, 2004 when he was not in default of service charges is arbitrary and wrongful and a breach of the contractual agreement between the plaintiff and the defendant. A sum of (N627.00) six hundred and twenty seven naira is hereby awarded as damages for the said breach of contract."
Dissatisfied with this judgment, the defendant as appellant has appealed to this court by a notice of appeal filed on the 11th 45 August, 2006 and contained at pages 88-90 of the record of appeal. The following are the grounds contained in the notice of appeal:
Ground 1 - The learned trial Judge misdirected himself by concluding that it is implied in the contract between the parties that notice of increment of subscription fee for defendant's service would be given to the plaintiff before disconnecting his service.
Ground 2 - The learned trial Judge misdirected himself by finding that the defendant had no legal excuse or reason to scramble or disconnect the service to the plaintiff on 2nd October, 2004 and 1st November, 2004 when there were sufficient evidence before the honourable court explaining why the service to the plaintiff was disconnected.
Ground 3 - The learned trial Judge erred in law by relying on inadmissible evidence of hearsay evidence which offends section 77 of the Evidence Act.
Ground 4 - The judgment is against the weight of evidence.
The appellant has in paragraph -3 at page 5 of its brief of argument dated the 25th July, 2008 and filed same day formulated the following two issues for the determination of this court viz:
Whether the trial Judge was right in concluding that there is an implied term that the defendant appellant ought to give notice of increment of its subscription fee to the plaintiff respondent and if a breach of such term is material to the contract to warrant award of damages.
Whether the learned trial Judge was right in concluding that the defendant appellant had no legal excuse or reason in disconnecting the plaintiff respondent's service on 2nd October, 2004 and 1st November, 2004 respectively.
The respondent has for his part distilled in paragraph 3.1 at page 3 of his brief of argument dated the 30th January, 2009 and filed on the 2nd February, 2009 but deemed properly filed and served on the appellant on the 26th May, 2009 following the grant on that day of a motion on notice brought pursuant to order 7 rules 1 and 10(1) of the Court of Appeal Rules, 2007 and the inherent jurisdiction of this court for an order extending time within which the respondent may file his brief of argument out of time and also for an order deeming the respondent/applicant's brief of argument already filed and served as properly filed and served, the following two issues:
1. Whether the learned trial Judge rightly held that the appellant was in a breach of implied term to inform the respondent of the increment of its subscription fee.
2. Whether the learned trial Judge was right in her decision that the appellant had no legal excuse or reason to scramble or disconnect the service to the respondent on the 2nd day of October, 2004 and on 1st 20 day of November, 2004 respectively.
Both briefs of argument were adopted and relied upon by the respective counsel Adewumi Ogunsanya with him M. K. Adesina for the appellant and A. A. Adedeji with him Olusegun Idowu for the respondent on the 27th January, 2010 when this appeal came up for hearing. While appellant's counsel urged us to allow the appeal and set aside the judgment of the lower court, respondent's counsel urged us to dismiss the appeal and uphold the judgment of the lower court.
A cursory look at the issues formulated by the parties in their respective briefs of argument shows that they are the same save that different words have been used. I shall therefore resort to the issues formulated in the appellant's brief of argument in the determination of this appeal.
Issue 1 - is as to whether the trial Judge was right in concluding that there is an implied term that the defendant/appellant ought to give notice of increment of its subscription fee to the plaintiff/respondent and if a breach of such terms is material to the contract to warrant award of damages.
On this issue appellant has contended that there was no material term, whether express or implied imposing a duty on the appellant to give notice of increment of its subscription fee for her services to the respondent before the increment becomes effective.
Appellant submitted that, from the evidence before the trial court, it is quite clear that the contractual relationship between the parties involved payment of subscription fee by the respondent for services provided by the appellant. It has been argued by the appellant that the subscription period is the contract period as the contract terminates by operation of law at the expiration of the subscription fee paid and it therefore follows that each subscription period paid for by the respondent constitutes a new contract. In other words, appellant's submission is that there is no other obligation on the respondent to pay for the following month or subscribe again and there was no obligation on the appellant to provide services to the respondent and as such the issue of implied term of the contract between the parties does not arise.
Appellant went further to submit that, the practice of giving notice is a matter of courtesy and not obligatory and breach of which would not entitle the respondent to remedy in damages and that the notice of increment is given to the general public, whether they are subscribers or intending subscribers. Appellant argued that, even if there is an implied term that the appellant is under an obligation to give notice of increment of its subscription fees to the respondent which is not conceded, from the totality of the evidence before the court such obligation or duty is owed to the respondent and not to Dr. Olayinka Azeez who as PWI testified that he did not receive any notice and not that the respondent did not receive any notice. It therefore followed, appellant submitted that there was no categorical denial by the respondent of not receiving notice of increment. Appellant went further to submit that, the evidence of DWI Mrs. Oluwakemi Shaba that the subscription fee for the month of September, 2004 was
N9000.00 and was increased to N9,500.00 in October and this increase was communicated to the respondent and that there were three modes of communication to subscribers by writing letters, sending sms text messages to their mobile telephone numbers or via DSTV screen ought to have been believed by the learned trial Judge and the evidence of' DWI remained uncontradicted. Appellant went on further to contend that it was not contemplated by the parties to the contract that failure by the appellant to give notice of increment of subscription fee for her services would result to remedy in damages to the respondent. There was, appellant submitted, no express term to that effect and it cannot be inferred in the contract and the learned trial Judge therefore failed to properly evaluate the evidence before the court.
Respondent has submitted in his brief of argument that for a 5 contract to exist, there must be a mutuality of purpose and an intention; the two contracting parties must agree. Reliance was placed on Ajayi-Obe v. Executive Secretary Family Planning of Nigeria (1975) 3 S.C 1, Odutola v. Paper Sack (Nig.) Ltd. (2007) 7 10 WRN 1; (2006) 28 NSCQR 470; (2006) 18 NWLR (Pt. 1012) 470. It was the respondent's further submission that the implication of a term in a contract is a matter of law for the court. Reliance was placed on O'Brien v. Associates Fire Alarms Ltd. (1968) 1 WLR 1916.
Pertaining to implied terms in a contract, The Law of Contract (second edition) Lexis Nexis Butterworths chapter 3, paragraph 3.20 at page 542 states as follows:
"In implying terms in fact the exercise involved is that of ascertaining the presumed intention of the parties collected from the words of the agreement and the surrounding circumstances."
In Trollope & Coils Ltd. v, Northwestern Metropolitan Regional Hospital Board (1973) 2 All ER 260 at 267, Lord Pearson said as follows:
"It must have been a term that went without saying, a term necessary to give business efficacy to the contract, a term which though tacit is part of the 35 contract the parties made for themselves."
See also Shell Uk v. Lostock Garages (1977) 1 All E.R 481, Lord Denning MR. at 488, Shirlaw v, Southern Foundaries Ltd. (1939) 2 K.B 206 at 227, where MacKinnm L. J said as follows:
"Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying; so that, if while the parties were making their bargain an officious by- stander were to suggest some express provision for it in the agreement, they would testily suppress him with a common "oh, of course."
Black's Law Dictionary 8th edition page 345 refers to a contract implied in fact as
"a contract that the parties presumably intended as their tacit understanding as inferred from their conduct and other circumstances."
It is necessary to visit the evidence of DWI Mrs. Oluwakemi Shaba which the appellant has reproduced at page' 8 of the appellant's brief of argument. It runs thus:
''The subscription fee for the month of September, 2004 was
N9000.00. It was increased to N9,550.00 in October. We communicated this increase to the plaintiff. We have three modes of communication to our subscribers by writing letters, sending SMS text messages to their mobile telephone numbers or via DSTV screen."
The learned trial Judge in reference to this piece of evidence had said as follows:
"From the entire evidence before me. it is implied in the contract between the parties that notice of such increase would be given to the 2nd plaintiff. The defendant confirmed that such notices are usually given by the defendant to their subscribers by writing letters, by sending text messages to their mobile phones and SMS messages to their screens. However she failed to state that the 2nd plaintiff was given such notice and by what means before his service was scrambled on the 2nd October 2004 and reconnected on 3rd October, 2004 after the 1st plaintiff's protest."
The learned trial Judge came to the finding that 2nd plaintiff was entitled to be informed of the monthly increase from
N9000 to N9550 based on the evidence of DW1 that such communication to its subscribers was done by any of three modes but that she failed to state that 2nd plaintiff was given such notice and by what mode the notice was given to him. DWI at page 33 of the record of appeal said under cross-examination as follows:
"Whenever we revise our fees we communicate the revision to our customers."
This witness also admitted under cross-examination that plaintiff on 30th September, 2004 paid
N9,000.00 and that the said payment made on the 30th September, 2004 was for the month of October, 2004 only for his service to be scrambled on the 2nd October, 2004. It is thus clear that even though revision of subscription fee is not specifically provided for in the contract between the parties, nonetheless the evidence given by DW1 lends support to the position taken by the learned trial Judge. The learned trial Judge properly evaluated the evidence led by the parties.
The next consideration under this issue is, whether a breach 20 of such terms is material to the contract to warrant award of damages. The learned trial Judge had noted at page 54 of the records that, it is the law that damages recoverable against the party in breach are such losses within the reasonable contemplation of the parties. Reliance was place by that court on Oceanic Bank International (Nig.) Ltd. v. G. Chitex Ind. Ltd. (2000) 6 NWLR (Pt. 661) 464 at 468 (6) and (7); (2000) FWLR (Pt. 4) 678 where the Court of Appeal held as follows:
"6. Damages recoverable against the party in breach are such losses within the reasonable contemplation of the parties. The duty of the court in instances of breach is 35 based on the evidence led by a claimant to restore an injured party as far as is monetarily practicable to the position he would have been but for the breach. There must be a conspicuous relation between the award made and the injury suffered by the beneficiary of the award.
7. In the law of contract there is no dichotomy between special and general damages as it is the position in tort. The narrow distinction often surmised is one 45 without a difference. In contract it is damages simpliciter for loss arising from breach. Such loss must be in contemplation of the parties or one reasonably contemplated. The loss must be read not speculative or imagined."
See also UBA Plc. v. BTL Ind. Ltd. (2005) 22 WRN 1; (2004) 8 NWLR (Pt. 904) 166 at 191 (l4) to the same effect. With those authorities as parameters for assessment of damages payable, the learned trial Judge noted that the respondent's service was scrambled for two days viz 2nd October, 2004 and 1st November, 2004. The learned trial Judge by simple mathematical calculation (came to the conclusion that since the month of October has 31 days and the respondent's service was scrambled for one day (2nd October, 2004) at the appellant's subscription rate of
N9,550.00 per month, respondent was entitled to N308.00 for the 2nd October, 2004 when he was deprived of the appellant's services.
The court also by the same mathematical process noted that the month of November has 30 days and if the respondent's service was scrambled for one day, (1st November, 2004) loss for that day could be ascertained by the simple mathematical process of dividing
N9,550.00 by 30 which comes up to N319.00. The learned trial Judge then added N308.00 and N319.00 which cumulatively add up to N627.00 for the scrambling or disconnection of the respondent's services for the two days of 2nd October, 2004 and 1st November, 2004 and held that, the respondent was entitled to N627.oo as damages and no more. I cannot agree more with the learned trial Judge that, the respondent is entitled to N627.00 and no more. Anything more would be speculative and not in line with the principles governing the award of damages; In the premises, I resolve issue 1 in favour of the respondent against the appellant.
Issue 2 is, whether the learned trial' Judge was right in concluding that, the appellant had no legal excuse or reason in disconnecting the respondent's service on the 2nd October, 2004 and 1st November, 2004.
Appellant has submitted under this issue in addition to its arguments in issue 1 that by the nature of the contractual relationship between the parties which is based on payment of monthly subscription fee, the payment of the correct subscription fee of
N9,550 was the only pre-condition by the respondent to put the appellant under an obligation or duty to provide service to the respondent, and the respondent having made a short-payment for the service has not discharged his own obligation under the contract and the appellant was at liberty not to continue with the contract. With respect to the disconnection of the 1st November, 2004, appellant submitted that DW1's evidence that the appellant's system at the time was faulty which affected services to its customers was not contradicted and the learned trial Judge's finding that "the viva voce 5 evidence of the defendant's witness that it was a general problem is not enough" is perverse. Reliance was placed on Asafa Food Factory v. Alraine (Nig.) Ltd. (2002) 52 WRN 1; (2002) FWLR (Pt. 125) 756; (2002) 12 NWLR (Pt. 781) 353; (2002) 5 S.C (Pt. 1) 1; (2002) 10 MJC 162 at 175.
Appellant argued that although the learned trial Judge in evaluating the evidence before the court concluded thus,
"her evidence that every account went off contradicts paragraph 11 of the statement of defence that the fault in their system affected some customers,"
The conclusion of the learned trial, Judge was wrong as the fact that DW1 said in evidence that the problem affected the appellant's customers generally cannot be said to contradict the pleadings to the effect that the fault affected some customers. Reliance was placed on Idiot v. The State (2006) 39 WRN 46 at 64. Appellant therefore submitted that, this is a proper case in which an appellate court would be justified to disturb the findings and or the probative value ascribed to the evidence in the matter by a lower court.
Okwejiminor v. Gbakeji (2008) 17 WRN 1 was relied upon. In conclusion appellant submitted that, the appellant established cogent and credible reasons for the disconnection of the respondent's service on the 2nd October, 2004 and 1st November, 2004 respectively.
The respondent on his part adopted his submissions and arguments canvassed in respect of issue 1 just as the appellant did and went on further to say that the learned trial Judge was right in her decision that, the appellant had no legal excuse or reason to scramble the service of the respondent on the 2nd October, 2004 and the 1st November, 2004 respectively. Respondent argued that it was clear from the records that the only reason for the scrambling of the respondent's services was because the respondent paid the sum of
N9000.00 instead of N9,550.00 which new increment was never communicated to him. Respondent went on to say that it is very obvious that the appellant upon becoming aware that it was in breach of the implied term of the contract to inform the respondent of an increment in the subscription fee that made it to immediately reconnect the respondent even before the balance of N550.00 was paid by the respondent.
The records will settle this issue once and for all. DW1 at page 32 of the record of appeal had said as follows:
"It is true that the 2nd plaintiff s account was switched off, that is because he was supposed to pay particular amount for the month under contention but he paid less, therefore our system did not read the payment and our system went off automatically. He was supposed to pay nine thousand five hundred and fifty naira (
N9,550.00), he paid W9,000.00. When the account went off, he contacted our office and we explained to him that his account went off automatically and why. He made a pledge that he would pay the balance on the spirit of good business relationship and based on the pledge his account was switched on the following day."
I agree with the respondent that once the respondent was able to establish that his service was scrambled on the 1st November, 2004 in spite of his payment of the subscription fee, the onus shifted on the appellant to show that the scrambling was not deliberate. This burden was never discharged by the appellant. The learned trial Judge was therefore right in holding that the scrambling of the service of the respondent by the appellant had no legal excuse or justification. I therefore resolve issue No.2 also in favour of the respondent against the appellant. Both issues as formulated by the parties having been resolved in favour of the respondent the appeal fails and is dismissed and the judgment of Bolaji-Yussuf J. delivered on the 29th June, 2006 is hereby affirmed. There shall be
N30,000.00 (thirty thousand naira) costs in favour of the respondent against the appellant.
CHIDI NWAOMA UWA, JCA: I read before now the judgment delivered by my learned brother, S. S. Alagoa, JCA. I entirely agree with the decision arrived at in holding that the appeal fails and the dismissal order made therein. I abide by the order made as to costs.
MODUPE FASANMI, JCA: I had the advantage of reading in advance the lead judgment of my learned brother and noble Lord S. S. Alagoa, JCA just delivered now.
I agree entirely with the lead judgment. I also dismiss the appeal. I abide with the order made on cost.
Adewumi Ogunsanya Esq. with M. K. Adesina Esq. for appellant.
A. A. Adedeji Esq. with Olusegun Idowu Esq. for respondent.