BURDEN OF PROOF ON AN APPELLANT ATTACKING THE EXCESSIVENESS OF DAMAGES AWARDED

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CASE TITLE: NCC v. MOTOPHONE LTD & ANOR (2019) LPELR-47401(SC)

JUDGMENT DATE: 12^TH APRIL, 2019

PRACTICE AREA: CIVIL PROCEDURE

LEAD JUDGMENT: UWANI MUSA ABBA AJI, J.S.C.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Civil Procedure.

FACTS

This is an appeal against the decision of the Court of Appeal.

The facts are that the 1st Respondent was awarded 2 Communications licenses as Private Network License and the Mobil Cellular License premised on continuing conditions to be met by the 1st Respondent, otherwise the License would be invalidated without the necessity of formal withdrawal or revocation. However, the 1st Respondent failed to meet some of the conditions especially the requirement to start operation within 6 months of the award of the Licenses and also interconnection with NITEL. The 1st Respondent also did not meet the condition of Frequency Allocation by the Federal Ministry of Communications (the 2nd Respondent). Thus, the 1st Respondent lost the frequency by which it could offer services as a communications company and therefore would not be able to offer services. It was because of this loss and withdrawal of the frequencies that the Appellant offered to refund the License fees to the 1st Respondent. In its considered judgment delivered on 8/7/2005 at pages 36-63, the Federal High Court granted to the 1st Respondent damages in the sum of N93,651,950 and the US $10 million.

Dissatisfied, the Appellant appealed to the Court of Appeal which also in its judgment of 10/7/2010 affirmed the judgment of the Federal High Court, hence an appeal to the Supreme Court.

The Respondents also filed a Cross-appeal.

ISSUES FOR DETERMINATION

The Court determined the appeal on these issues couched as follows:

MAIN APPEAL

1. Whether the Court of Appeal was right in law to have dismissed the appeal having regards to: – (i) The fundamentally defective state of the papers relied upon for the originating proceedings. ii. The complete absence of legally admissible or tenable evidence. iii. The valid and subsisting portions of the final Ruling of Adah, J.
2. Bearing in mind the very peculiar nature of this proceeding (particularly the dearth of pleadings, supporting affidavit and admissible evidence) whether the Court of Appeal was wrong in not allowing the appeal on damages.
3. Whether the Court of Appeal had the necessary jurisdiction to proceed with and determine the appeal, the action being fundamentally defective, incompetent and premature.
   4. Whether the lower Court considered the material issues for determination in issue 4 formulated before it when it resolved issue 2, 3 and 5.
4. Whether the lower Court ought to have raised the issue of the relative strength of the parties suo motu and resolve same without inviting the parties to address same.

CROSS-APPEAL

Whether upon the finding of NCC breach of contract, the learned Judge did correctly or at all assess damages suffered by MOTOPHONE or whether the issue ought to be re-assessed?

DECISION/HELD

On the whole, the Court found no merit in the main appeal and the cross-appeal and both were accordingly dismissed.

RATIOS:

• APPEAL- INTERFERENCE WITH AWARD OF DAMAGES: What an appellant must show in order to succeed in an appeal or cross-appeal against the award of damages
• COURT- JURISDICTION: Whether legislation which provides for a condition precedent before a Court will have jurisdiction to hear a matter can have a retrospective effect on the jurisdiction of the Court
• DAMAGES- MEASURE OF DAMAGES: Measure of damages in an action for breach of contract
• EVIDENCE- AFFIDAVIT EVIDENCE: Whether a verifying affidavit attached to an originating motion for judicial review and documents accompanying same are legally admissible in evidence
• JUDGMENT AND ORDER- SUBSISTING JUDGMENT: Whether a judgment not set aside by a Higher Court will be deemed valid and subsisting
• PRACTICE AND PROCEDURE- PRELIMINARY OBJECTION: Whether a preliminary objection is filed only against the hearing of an appeal and not against one or more grounds of appeal